Volume 41 — Missouri Appeal Reports

<p>1. Bills and Jiotes: transfer as collateral security for antecedent indebtedness. The transfer of a promissory note as collateral security "for antecedent indebtedness does not, without more, constitute the transferee a holder for value.</p> <p>3. Corporations: subscription of stock procured through fraudulent misrepresentation. If one be induced to take capital stock of a corporation by fraudulent misrepresentations by a corporate officer that the entire capital stock had been subscribed and paid for, when in fact but little of it had been thus paid or subscribed for, he can, in the absence of an estoppel, set up the misrepresentation as a defense to an action on a note given by him to the corporation in payment of the subscription, if the holder be not a bona fide purchaser for value.</p> <p>3. - : -: EFFECT OF INSOLVENCY OF CORPORATION. In an action upon such note by a creditor of the corporation, who is not a purchaser for value, the right of the stockholder to set up such fraud by way of defense is not affected by the insolvency of the corporation ; but whether the stockholder could set up the fraud in a direct proceeding against him by creditors of the corporation after such insolvency is left undecided.</p>

<p>Appeal from the Newton Circuit Court. — Hon. Jos. Cravens, Judge.</p>

<p>Appeal from Si. Louis Court of Criminal Correction. Hon. R. A. Campbell, Judge.</p>

<p>Appeal from the Greene Criminal Court. — Hon. M. Oliver, Judge..</p> <p>The information states that the property destroyed belonged to the heirs of L. A. D. Crenshaw, deceased ; and it is not necessary to say that the defendant had no interest in the same. State v. Guernsey, 9 Mo. App. 312; State v. West, 21 Mo. App. 309; Stale ex ret. v. Thayer, 15 Mo. App. 391-396; State v. James, 63 Mo. 570; State v. Meek, 70 Mo. 355; State' v. Burr, 81 Mo. 110.</p> <p>The offense attempted to be charged is purely statutory. The statute denounces the acts therein named as criminal only when they áre done to the property of another, in which the person charged has no interest, and this want of interest in the property is the very gravamen of the offense. This qualification of the offense as to the interest of the party charged, in the property alleged to have been injured, is in the same- section of the law which creates the offense, and there is no better settled principle in criminal pleading, where such is the case, than that the exception or qualification named in the statute must be expressly negatived — otherwise no offense is charged. State v. Shijtett, 20 Mo. 415; State v. Sutton, 24 Mo. 377; State v. Meek, 70 Mo. 355; State v. Jaques, 68 Mo. 260.</p>

<p>Insurance: assignment to mortgagee : additional insurance by assignor. A policy of fire insurance, which provides that it shall be avoided by the procurement of additional insurance by the insured or his assigns without the consent of the insurer, will become void on the procurement of additional insurance by the insured without such consent, though prior thereto the first insurance was with the consent of the insurer assigned by the insured to a mortgagee of the property, such assignment being absolute in form but in reality as security for the mortgage debt.</p>

<p>1. Practice, Appellate: jurisdiction. A cause will not be transferred from this court to the supreme court on motion of the appellant, on the ground that it involves the construction of the federal constitution, if it appears from the record that the appeal was granted to this court by the trial court upon motion of the appellant, and if it nowhere appears from the record that a question involving the construction of the federal constitution was raised in the trial court.</p> <p>2. Injunctions: restraint op the evasion op domestic exemp- . TIONLAWS THROUGH POREIGN PROCEEDINGS. A citizen of this State has no right to purchase claims against resident employes of a domestic corporation and to sue thereon and garnish the corporation in a foreign state, when his sole purpose is thereby to evade our exemption laws, by subjecting to the payment of these claims indebtedness from the corporation to such employes which is exempted from process by the statutes of the state ; and a citizen who engages in this practice may be restrained here by injunction from further prosecuting or instituting such foreign garnishment proceedings.</p> <p>3. -: -: RIGHT OP GARNISHEE TO ENJOIN POREIGN GARNISHMENT. Such injunction may be awarded at the suit of the corporation alone, — at all events in the absence of a demurrer in the trial court for a defect of parties, when the corporation is threatened with a multiplicity of vexatious garnishment proceed-' ings of this kind.</p>

<p>Appeal from the Wayne Circuit Court. — Hon. John L. Thomas, Judge.</p> <p>(1) Unless aided by statute, neither the first nor second petition states a cause of action, and no attachment will lie. Hearne v. Keith, 63 Mo. 84; Burckhardt v. Helfrich, 77 Mo. 382; Bauer ». Gray, 18 Mo. App. 170. (2) The first attachment bond was void, because approved by the clerk, who, himself, was a surety thereon, and who was, as well, one of the sureties on the collector’s bond, for whom the suit was brought. Owens v. John, 59( Mo. 89. (3) The attachment, affidavit and bond of respondents being thus defective, thé lien of appellants’ writ became superior to that of respondent, and cannot be affected by the filing, subsequent to appellants’ levy, of a new affidavit and bond. So far as appellants are concerned, the filing of a new affidavit, bond and petition by respondents amounted to an abandonment of their priority in point of time. Waples'on Attach., pp. 105, 106 ; Wade on Attach., sec. 72, p. 150; Jacobs v. Hogan, 85 N. Y. 244 ; Peck v. Hill, 3 Conn. 431 ; Fairfield n. Baldwin, 12 Pick. 388; Putnam «. Hall, 3 Pick. 445; Witte v. Meyer, 11 Wis. 300 5 Whitney v. Brunette, 15 Wis. 69. The sufficiency of the affidavit, bond, etc., and other proceedings may properly be attacked by appellants. Metzner v: Graham, 57 Mo. 406; Gilbert v. Gilbert, 33 Mo. App. 259 ; Drake on Attach., secs. 84, 85, 124; 1 Wade on Attach., sec. 2.</p> <p>Section 6741 of the Revised Statutes of 1879, now-section 7595, Revised Statutes, 1889, is constitutional. This section furnishes the sureties on a collector’s bond a right of action by attachment, upon the happening of the contingencies therein named. The original petition and affidavit were not void, hence the amended petition and affidavit relate back and protect the levy made under the writ herein. R. S. 1889, sec. 568; Mus grove v. Mott, 90 Mo. 107; Henderson v. Drace, 30 Mo. 362; Glaflin v. Homer, 20 Mo. App. 314; Burnett v. MoOluey, 92 Mo. 230. Judicial proceedings which are amendable are not void. The amended petition and affidavit are unquestionably good under section 7595, Revised Statutes, 1889, and under the general attachment law. The clerk’s approval of the original bond was not a void act. Huff v. Shepherd, 58 Mo. 242; R. S. 1889, sec. 3244; Webster v. Smith, 78 Mo. 163. The attorney for the plaintiff had a right to swear plaintiff to the affidavit. Smith v. Ponath, 17 Mo. App. 262, and cases cited. When Kelley et al. prosecuted their cause against Stevens to a judgment, establishing their attachment, they waived their right” to have their cause transferred to Reynolds county under section 570, Revised Statutes, 1889, and the circuit court of Wayne county did right in overruling the motion of the appellants to postpone the attachment of the plaintiffs, because the appellants had no legal right to file said motion.</p>

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

<p>Practice, Appellate: affirmance for failure to file transcript. The fact that an administrator de bonis non is without funds belonging to ■ the estate, and, therefore, without means for the payment of the cost of a transcript of a cause appealed by his predecessor, is no reason why the judgment appealed from should not be affirmed for failure to file such transcript.</p>

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

<p>1. Obstruction of Public Highway: right or action by private persons. A private person has a right of action for the illegal obstruction of a public highway by another, if he is damaged differently than the public at large, not merely in degree but in kind.</p> <p>2. -:-: injunction. It appearing that a retail dry-goods store'fronted on one of the streets of a city leading to the public square, and being but seventy-five feet from the square ; that the street was narrow after it left the public square; that it had upon it one street railroad track ; that the street railroad company was about to lay upon it another track, and to operate its road therein, without legal warrant; that the obstruction of the street which would thus ensue would block up the street, and, by impeding and preventing the access of vehicles to the store from the public square, would divert business from said store, held that, although the additional track would go only up to the store and would not be in front of any part of it, both the occupant and the owner of the premises would be especially injured .by it, the former by the diversion of trade, and the latter by the consequent diminution in value of his premises; and, held, further, that an injunction to restrain the laying of the track was a proper remedy.</p> <p> Per Thompson, J.: </p> <p>3. Under Revised Statutes, 1889, section 3303 a decree enjoining a threatened illegal obstruction of a public highway, though made at the suit of a private individual, should not be reversed, if it be doubtful whether the plaintiff will suffer damages different in kind, from those of the public generally, or whether his damages can be adequately redressed in an action at law.</p>

<p>1. Common Carriers: delivery to consignee. A common carrier ceases to be liable as such, and assumes only the liability of a warehouseman, if, after the arrival of the goods carried at their destination, he notifies the consignee of their arrival and places them in a reasonably safe place, regard being had to their character, to await the action of the consignee in taking actual possession of them. It is not necessary that the carrier should in such case notify the consignee of the place of the storage of the goods, but only that there should be such notice of the arrival of the goods, and that the carrier should hold itself ready to inform the consignee of the place of storage upon application therefor.</p> <p>2. --:---. But if, at the time of the arrival of such goods, there was in force a prior understanding between the consignee and the carrier that all consignments to the consignee, of the kind of the one in question, should upon their arrival be placed upon a certain car track for the consignee by the carrier, then it will be sufficient for the carrier to so place the same and notify the consignee thereof, whether such place be a reasonably safe one or not.</p> <p>3. Practice, Appellate: error in pavor op the appellant. An appellant is not in a position to complain of a ruling which is erroneous, because too favorable to him.</p>

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

— Hon. James. M. Sandusky, Judge. (1) It is a well-settled principle of law in this state that courts cannot take judicial notice of a fact that a county has adopted by a majority of the votes of the citizens thereof any special law, and an indictment must contain allegations of every fact which is legally essential to the punishment to be inflicted. 76 Mo. 600 ; 79 Mo. 98; State v. Cleveland, 80 Mo. 108, 287; 81 Mo. 171: State v. Buster, 90 Mo. 514.

— Hon. Henry M. Ramey, Judge. (1) The petition failed to state a cause of action. It declared upon an alleged conditional contract, and the conditions precedent upon which plaintiff is entitled to recover are not set out in the petition. Therefore defendant’s objection to the introduction of any evidence under the petition should have been sustained. Bobbitt v. Ins. Co., 66 N. C. 70; 8 Am. Rep. 494; Parks v. Heman, 7 Mo. App. 18; Brecheisen r. Coffey, 15 Mo.

— Hon. Oliver M. Spenoer, Judge. (1) First. The contract in evidence constituted an absolute sale, so that the defendant could have recovered from Holloway any installment of the purchase price named in it, notwithstanding the clause about liquidated damages. Ayers v. Pease, 12 Wend. 898; Cartwright v. Gardner, 5 Cush. 273; Dooley v. Watson, 1 Gray, 414; Graham v. BicJcham, 4 Dallas, 149. Second.

<p>1. Stenographers: appointment op: construction op act op April 2, 1883. The act of April 2, 1883, in reference to the appointment of official stenographers of the circuit court in counties of not less than forty-five thousand nor more than one hundred and fifty thousand population, designed to have as many of such officers as there were, or should be, circuit courts, or divisions thereof, and that each of such stenographers should be commissioned by the individual judge who, at the time, presided over such court or the division thereof where the stenographer served; and the act is a general law applicable not only to the counties then having the requisite population, but also those thereafter acquiring such population. Said act, too, obviously intended that where the circuit court of one of these counties should be subsequently divided, then each division should have a stenographer appointed by the judge thereof. So where, in 1889, the circuit court of Buchanan county was divided, the new judge of division number two had the power to appoint the stenographer of said division, and this, notwithstanding the fact, that, prior to the division, the judge of the circuit court had duly appointed an official stenographer of said court.</p> <p>2 -: legislative OFFICE. The office of official stenographer is legislative, not constitutional, and may be modified, controlled or even abolished by the power that created it.</p> <p>3. -: duties : deputy. The duties of official stenographer axe to be entered upon under oath for their faithful and impartial performance, and may not be performed by an unsworn deputy. The deputy who may be called in to assist the court stenographer, under the terms of the act, was not intended to be an officer to take charge of the business in another court or division, but rather an assistant for duties to be done in the court or division for which his principal is appointed.</p>

Avpeal from, the Montgomery Circuit Court. — Hon. W. H. Biggs, Special Judge. (1) Plaintiff acquired a right to the roadway by prescription. He had had the uninterrupted use thereof for more than ten years — the statutory period. House v. Montgomery, 19 Mo. App. 170 ; Folly r. McCall, 30 Ala. 20, 29 ; Ricord v. Williams, 7 Wheat. 110 ; Wash. Easements, 27, 28; Ward v. Warner, 82 N. Y. 265.

— Hon. Cxrtjs A. Anthony, Judge. . (1) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to plaintiff’s evidence for the reason that the plaintiff’s testimony clearly established the fact that he was guilty of culpable and gross carelessness, which was the direct cause of the injury, and further that he acknowledged the same at the time of the accident. Boland v. Kansas City, 32 Mo. App. 8; O’ Donald v. Railroad, 7 Mo.

— Hon. Cyrus A. Anthony, Judge. (1) The court committed error in giving instruction number 1, in behalf of plaintiff. A general instruction intended to cover the whole law of the case should conform to the issues and be in harmony with the theory on which plaintiff seeks to recover, as' contained in his petition, and- should ‘omit no essential element to such recovery; that is, the issues cannot be changed from those made by the pleadings, nor ignored in such instruction.

— Hon. Cyrus A. Anthony, Judge. (1) The defendant is indicted for selling liquor in less quantities than five gallons under the merchant law found in 2 Revised Statutes, 1879, page 1244.

— Hon. Cyrus A. Anthony, Judge. (1) Tlie court erred in admitting any testimony in tlie case, and in refusing defendant’s demurrer to the evidence. It is not charged in the petition, either directly or by necessary implication, that the cattle did not enter upon the railroad track within the limits of an incorporated town.

— How. James Gtbson, Judge. (1) Tbe divorce law guarantees to the wife the right to the companionship of a sober man, and gives her the right to a divorce from a habitual drunkard. As to what constitutes drunkenness see 1 Bishop on Marriage and Divorce, section 813; Golding v. Golding, 6 Mo. App. 602. Webster defines a drunkard to be : “One who habitually drinks to excess ; one who uses intoxicating liquor immoderately.” Webster’s Unabridged Dictionary, title, drunkard.

— Hon. Cyrus A. Anthony, Judge. (1) To reverse the decision of the lower court, we rely principally on the proposition, that if each of two persons, owning adjoining tracts of land, makes a concurrent promise to build and maintain a certain portion of a division fence between them, so that it will turn stock (.the only consideration being a promise for a promise), and neither builds his part, so as to meet the requirements of a division fence under the statute, then, before…

— Hon. Cyrus A. Anthony, Judge. (1) To entitle the plaintiffs to recover, it devolved upon them to show, that they made the shipments of stock; that the shipments were made between the points, and at the time charged in their petition, and that they paid to defendant as freight for the transportation thereof an amount in excess of the rates prescribed by law. All these facts were matters of written contract, and parol evidence was inadmissible to establish them.

— Hon. James G-ibson, Judge. (1) Every deed of gift and conveyance of goods and chattels, in trust, to the use of the persons so making such deed of gift or conveyance, is declared to be void as against creditors, existing and subsequent, and purchasers. R. S. 1879, sec. 2496.

— Hon. Cyrus A. Anthony, Judge. (1 ) At the time said transfer of said policy was made the said plaintiff was sui juris, and had full and complete power and authority to enter into the contract and make said transfer ; and her action in the premises was binding on her, and she was not prevented nor prohibited from assigning and transferring said policy by the provision oí section 5891, chapter 119, Revised Statutes of Missouri, 1879.

— Hon. J. H. Slover, Judge. Plaintiff, having failed to give the name of the contractor, A. A. Frazier, in his lien, the same is void. Hoffman v. Walton, 36 Mo. 618; Kelly v. Laws, 109 Mass. 395; Ward v. Blade, 7 Phil. Pa. 342; Phillips on Mech. Liens [ 2 Ed. ] sec. 21, 345. (1) A. A. Frazier, the original contractor, is not a necessary party to the suit, and, consequently, is not a necessary party to the lien. Goff v. Papin, 34 Mo. 180; Steinmann v. Sir imple, 29 Mo.

— Hon. John W. Henrt, Judge. (1) The affidavit to the lien statement does not state that Sturtevant was the owner, nor does it, in general terms, cover all the facts stated in the lien, but specifies part of such facts only. The lien statement is, therefore, not verified by the affidavit and is void. R. S. 1889, sec. 6709.

— Hon. Andrew Ellison, Judge. (1) The'court erred in sustaining the demurrer to plaintiffs’ • evidence. Its action involves the construction of sections 5180 to 5181 of the Revised Statutes of 1889. These sections have reference to such sales as are made on the condition that the title is to remain in the vender till purchase price is fully paid. Bailey v. Mfg. Co., 88 Mo. 305. But this has nothing to do with the case at bar.

— Hon. D. A. DeAkmond, Judge. (1) The judgment, to reverse which the writ of error has been sued out, is not a final judgment, and cannot, therefore, be reviewed by this court.

— Hon D. P. Stratton, Judge. (1) The demurrer admits the falsehood in the publication, and the malice in the publisher. Townsend on Libel, note to p. 350; Boogher v. Knapp, 76 Mo. 457. The publications being admitted to be false, the malice of the publisher also being admitted, it cannot be, on demurrer, claimed as a privileged publication; for, if false and malicious, it cannot be privileged.

•— Hon. J. M. Davis, Judge. (1) Evidence as to quality of shipment of two hundred pounds was inadmissible. This shipment was paid for, and used, by defendant. The contract was in writing, and contains no warranty, and the goods were the very goods ordered by defendant. Wallace v. Blake, 2 New York Sup. 403; Iron Co. 'v. Pope, 15 N. E. Rep. 335; Bottle Co. v. Gunther, 31 Fed. Rep. 208; Glassworks Co. v. Coal Co., 5 Atl. Rep. 253.

— Hon. J. M. Davis, Judge. (1) The appellant was not required to fence the stream in question. R. S. 1889, sec. 2543, p. 639. (2) Section 2611, page 659, Revised Statutes of Missouri, 1889, does not require the right of way to be fenced, but the “railroad.” “It is not the right of way which the law requires to be fenced, but its road.” See opinion of Judge Smith in Emerson v. Railroad, 35 Mo. App. 627. (3) The statute is penal and must be strictly construed.

— Hon. J. M. Davis, Judge. (1) The petition contains two counts. The first is aptly framed under section 3921, Revised Statutes, 1879, page 669. The second under the next section, section 3922, Revised Statutes, 1879, page 669. Both are penal, and a right of action thereon is barred in three years. Holliday m. Jackson, 21 Mo. App. 660; Young m. Railroad, 83 Mo.

— Hon. M. Gr. MoGtRegor, Judge. (1) The proof of service upon the notice is conclusive, and cannot be contradicted by oral evidence. It occupies exactly the same position as a return upon a subpoena or summons. R. S'. 1889, sec. 8938; R. S. 1889, sec. 2019 ; Phillips v. Evans, 62 Mo. 17 ; Putnam v. Man, 3 Wend. 202; Wheeler v. L'ampman, 14 Johns. 481; Hallowell v. Page, v24 Mo. 590 ;, 2 Salk. 601; Stewart v. Stringer, 41 Mo. 400; Delinger v. Higgins, 26 Mo. 180.

— Hon. M. Gf-. MoGIke&or, Judge. (1) The court erred in refusing to give instruction number 1, asked on behalf of plaintiff, and in giving instruction number 1, asked on behalf of defendant. No article could have been more necessary to defendant under the circumstances than a wagon. 7 Wait’s Act. & Def. 134; 5 Wait’s Act. &Def. 64; Wait on Fraud. Oon. & Creditors’ Bills, sec. 459 ; Mahoney v. Evans, 51 Pa. St. 80 ; 59 N. H. 354; 47 Am. Rep. 214, 215.

— Hon. M. G. McGregor, Judge. Statement by the court. This is an action brought by plaintiff against defendant to recover the principal and interest of two promissory notes given by defendant to plaintiff in payment for a lot of ice purchased by defendant from plaintiff. Defendant filed an answer containing three counts: The first was a general denial except that it admitted the signing of the two notes sued on. Second.

— Hon. W. I. Wallace, Judge. Ordinarily, the instructions given for respondent would have been correct, but, applied to the facts in this case, they are grossly erroneous. Wm. H. Price conveyed a lot, worth two hundred dollars, to Melissa Kee. He didn’t owe her a dollar. He testifies: “I was not owing Melissa Kee anything, but my wife was and she and I are one.

— Hon. G. D. Burgess, Judge. (1) There was no evidence in this case tending to show that the animal was seen in time to have avoided the injury, and the respondent was not entitled to recover. Young v. Railroad, 79 Mo. 336. (2) It does not appear, even if the engineer had seen, or could have seen, the animal as she came upon the track, that it was possible to have stopped the train with safety, in order to avoid the injury. Maher v. Railroad, 64 Mol 267.

— Hon. R. H. Field, Judge. (1) The true rule of the appellate courts is: Wherever error intervenes a presumption of prejudice arises, and, unless the record shows, beyond a doubt, that no prejudice resulted, there must be a reversal. Clark v. Fairley, 30 Mo.

— Hon. J. H. Slover, Judge. Statement of the case by the court. Held: in questions of execution of a written lease by an agent, that the authority must be in writing. Jennings v. McGomb, 112 Pa. St. 518, 521; Post v. Mortens, 2 Robertson’s Reports (N. Y.) 437, 439; Folsom v Perrin, 2 California, 603, 604 ; Porter v. Bleiler, 17 Barb. 149, 154; Judd v. Arnold, 31 Minn. 430, 431.

<p>Appeal from the Hannibal Court of Common Pleas. Hon. Thos. H. Bacon, Judge.</p>

<p>1. Statutes : constitutionality. Provisions prescribing the qualications of directors of school boards are germane to the general subject of ah act which provides for their election, and an act, which according to its title provides for the election of certain officers, sufficiently indicates by its title that their qualifications are provided for in it. Held, accordingly, that section 5 of the act of March 30,1887, entitled “ An act fixing the number of directors in public school boards in certain cities, and providing for election of such directors, and for districting said cities therefor,” is not opposed to the provision of the constitution of this state, prescribing that no bill shall contain more than one subject, which shall be clearly expressed in its title.</p> <p>2. St. Louis: QUALIFICATIONS OF DIRECTORS OF PUBLIC SCHOOL board. Section 5 of the act above referred to, which requires that no person shall be eligible for office as a director ‘ ‘ who shall not have paid a school tax within said city for two consecutive years immediately preceding his election ” construed, and held to mean that no person shall be eligible “ who shall not have paid, at any time preceding his election, a tax for the benefit of schools within said city for the two consecutive calendar years, next preceding the year of his election, assessed on property in which he has an interest subject to taxation at the date of assessment or date of payment.”</p> <p>3. -:-. The payment by a copartnership of a tax in part for school purposes against its personal property is a payment within the purview of said section by one who is a member of the copartnership at the time.</p> <p>4. -:-. The payment of taxes on land by one having a tenancy by the curtesy initiate, out of his own means, constitutes the payment of taxes within the purview of said section.</p> <p>5. :-. And so will the payment of delinquent taxes on land purchased by the payor, though the land was purchased, and the payment was made, immediately before the election, and for the express purpose of qualifying for office.</p> <p>6. -:-. But if delinquent taxes on land, assessed against the owner, are paid by a stranger, who has no interest in the land, for the purpose of qualifying for office, such payment will not satisfy the requirements of said section.</p> <p>7. -:-. Nor will the payment of taxes for the current year, • though made prior to the election, be considered in the determination of the eligibility of directors ; the payment required is that of taxes for the two years immediately preceding the election.</p> <p>8. -:-. Nor is the payment of a merchant’s license any evidence of tlpe payment of a school tax, it not appearing that the charge for license included any taxes for schools.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon Daniel D. Fisher, Judge.</p> <p>(1) The court erred in overruling the demurrers to the evidence offered by defendant at the close of plaintiff’s case, and at the close of the whole case. Loeffier n. 'Railroad, 96 Mo. 270 ; Yarnell v. Railroad, 75 Mo. 584; Rogstad v: Railroad, 14 Am. & Eng. R. R. Cases, 648; Taylor' n. Railroad, 86 Mo. 463 ; Sloop v. Railroad, 22 Mo. App. 596; Diel n. Railroad, 37 Mo. App. 454; Milburn v. Railroad, 21 Mo. App. 431; Cone’s Ad/mlrn. Railroad, 14 West. Rep. 100;' Artz v. Railroad, 34 Iowa, 153; Anderson v. McPilce, 86 Mo. 300; Bene «. Jeantet, 129 U. S. 683; Peterson v. Case, 18 Am. & Eng. R. R. Cases, 581. (2) The court erred in refusing the' instructions asked by defendant. Rafferty v. Railroad, 91 Mo. 37; Henry v. Railroad, 76 Mo. 295 ; Tarnell v. Railroad, 75 Mo. 584. (3) The court erred in giving the instructions asked by plaintiff. Turner v. Railroad, 76 Mo. 262; Loejjler v. Railroad, 96 Mo. 270; Bell v. Railroad, 86 Mo. 608 ; Prior v. Railroad, 69 Mo. 218; Judd v. Railroad, 23 Mo. App. 64. (4) The court erred in giving the instructions of its own motion. Bell v. Railroad, 86 Mo. 612; Eisenberg v. Railroad, 33 Mo. App. 85; Eath v. Railroad, 39 Mo. App. 447; Rafferty v. Railroad, 91 Mo. 37; Meyers v. Trust Co., 82 Mo. 237; Dulce v. Railroad, 12 S. W. Rep. 636.</p> <p>(1) The trial court could not properly withdraw the cause from the jury on the ground of contributory negligence. First. Because the evidence was not so decisive as to warrant the court in declaring, as a matter of law, that there was such contributory negligence. Second. Because there was substantial evidence to the effect that there was no contributory negligence at all. Third. Because, even if the plaintiff ’ s son was guilty of contributory negligence, the defendant was liable if its servants could, by the exercise of reasonable care, have discovered her son’s danger in time to have avoided the accident. Guenther v. Railroad, 95 Mo. 286; Dunltman v. Railroad, 95 Mo. 232; Sullivan v. Railroad, 97 Mo. 113; Bergman v. Railroad, 88 Mo. 678; Welsh v. Railroad, 81 Mo. 466.. (21 The fact that the accident occurred on these yards of the defendant does not relieve the defendant from liability on any theory on which the cause was submitted to the jury. Merz v. Railroad, 88 Mo. 672 ; 14 Mo. App. 459 ; Kelly v. Railroad, 18 Mo. App. 160 ; 95 Mo. 285, 286 ; 2 Shearman & Rediield on Neg., sec. 484, and note 1, p. 298; Sullivan v. Railroad, 97 Mo. 119. (3) The specific objections made to the individual instructions are not well taken. The use of the terms, “due” and “proper,” were not erroneous, nor was it prejudicial under the evidence in this cause. Donahoe ®. Railroad, 83 Mo. 543; Thompson on Trials, sec. 1731; Dahlstrom v. Railroad, 103, 104. (4) The instruction on the quantum of damages is not erroneous. Parsons ®. Railroad, 94 Mo. 296 • Ooogan w. Foundry Go., 87 Mo. 326; 14 Mo. App. 588; Nagel ®. Railroad, 75 Mo. 653.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Aside from by-laws, every benevolent society, organized for the purpose of extending aid to its members, and which pays such benefits from contributions assessed upon its members, has the inherent power to expel a member for fraud upon the fund. Niblack on Mut. Ben. Societies, secs. 37-41, 59; Bacon on Benefit Societies, sec. 97; Society v. Commonwealth, 52 Pa. St. 125-33.

<p>1. Bills and Notes : burden of proof. In an action on a note by an indorser against tbe maker, the plaintiff establishes a prima facie case by producing and offering in evidence the note with the . indorsement of the payee.</p> <p>3. Payment: evidence. Payment may always be proven by inferential evidence.</p> <p>3. Witnesses: competency of party. The maker of a promissory note is not a competent witness in a suit thereon against him by an indorsee, if, at the time the payee of the note, who was also an indorser, is dead ; and this rule is so though such payee was merely an accommodation indorser, and was, moreover, subsequently released from liability through the failure of the holder to make due presentment of the note for payment.</p> <p> Per Thompson, J., dissenting. </p> <p>4. -:-. If a note be by the payee indorsed for the accommodation of the maker, and the note given is directly by the maker to a third person in payment of a liability of the maker to such third person, such payee, though in form a contracting party, is not one in substance, and if the payee, moreover, is released from liability on the note through the absence of any presentation of it for payment at its maturity, his death will not render the maker an incompetent witness in a suit against him on the note by an indorsee, especially when the testimony of the maker is not antagonistic, but is favorable, to the payee, as if its sole tendency be to show that, prior to the acquisition of the note by the plaintiff in the suit, the note was paid out of funds of the payee at her direction.</p>

' Hon. Thos. H. Bacon, Judge. The petition is sufficient. It declares and the demurrer admits that the stock of goods sought to be charged is respondent’s separate property — the proceeds or continuation in trade of the same stock owned by her separately at the time the debt was contracted; she being then a feme covert such obligation can only be enforced in equity against her separate property, even after dissolution of coverture. Davis v-.

Louis City Circuit Court. — Hon. Daniel D. Eishbr, Judge. (1) When Kaminski took the note sued on, it was in pursuance of tho agreement of dissolution, and he had no power to bind defendants, Gray & Withmar, by his indorsement of it after it passed into his hands.

— Hon. W. D. Hubbaed, Judge. (1) The court below erred in not withdrawing the case from the jury and directing a verdict for defendant at the close of plaintiff’s evidence. Powell v. Railroad, 76 Mo. 83; Lenix v. Railroad, 76 Mo. 86-91; Bank v. Bank, 10 Wall. 939; Glass v. Gelvin, 80 Mo. 297; Commissioners v. Clark, 94 U. S. 284; Spiva v. C. and M. Co., 88 Mo. 68.

<p>1. Guardian and Ward: rights of natural guardian. A father, as natural guardian of his child, has no control whatever over the property of such child which is not derived from him, unless he has qualified by giving bond in accordance with the statute ; hence, until he thus qualifies, he has no right to sue for such property.</p> <p>2. Estoppel: bailor and bailee. When one receives as bailee property from another, and, on his refusal to return the property to the bailor, the latter sues him for the property, he is estopped in such suit from denying his bailor’s title.</p> <p>3. Bailment: agistment : lien. One who feeds and takes care of a horse under a contract with another who is merely a bailee of the horse, and whom he knows to be in charge of the animal as bailee, is bound to know the extent of the authority of such bailee, and has no lien as against the bailor for the feed so furnished, or for his services, if such bailee had no authority under the terms of the bailment to contract therefor.</p>

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

<p>Appeal from the Marion Circuit Court. — Hon. Thos. H. Bacon, Judge.</p>

<p>1. Ejectment: privies to judgment or ouster. If, during the pendency of an action in ejectment, the defendant to the suit conveys the premises sued for to a third person, who enters into possession under the title thus acquired, the latter may be ousted under a judgment against liis grantor in that action even though, subsequent to such entry by him, he may have acquired title paramount to that of either party to the ejectment suit.</p> <p>2. Damages: failure of sheriff to execute writ of possession. If a sheriff wrongfully refuse to execute a writ of possession issued under a judgment in an action of ejectment, he is liable for substantial damages. Semble that the measure of damages in an action for the wrong is the value of the rents and profits of the premises from the date of the return of the writ to the date of the judgment in such action, subject to possible reduction depending on the principle, that a man, who is damaged by a continuing injury, must do what he reasonably can to prevent the accumulation of damages.</p>

— Hon. GK D. Burgess, Judge. (1) The indictment should have been quashed. Sess. Acts, 1887, p. 179, et seq. First. The indictment should refer to the statute by its title and the date of its passage; and a failure to do so, or a misrecital of the title in a material part thereof, is good ground for motion to quash. Second. It is not alleged that due notice of the holding of the election, or of its result, was ever given. Whart. Crim. Law [7 Rev. Ed.] sec. 263; 1 Bish. Crim.

— Hon. John W. Henry, Judge. (1) In action for tlie enforcement of a tax lien, tlie “owner” is tbe person in whom title is vested as appears by the public records. Vance v. Corrigan, 78 Mo. 94; State v. Sack, 79 Mo. 661 ; Kuhleman v. Schuler, 35 Mo. 142; Schaeffer v. Lohman, 34 Mo. 68. (2) The charter under which the tax bill was issued contemplates the bringing of suit against the persons who own the property at the time the lien attaches to it. Sess. Acts, 1875, p. 252.

— Hon. R. H. Field, Judge. (1) The undisputed evidence proved that the excavation was barricaded on Saturday night when the workmen quit work. This discharged the full duty of the city. It had a right to presume that the barriers would not be removed by a stranger on Sunday. This is a question of law upon facts which are undisputed, and from w'hich different inferences cannot be drawn. There was no negligence and the defendant is not liable.

— Hon. Andrew Ellison, Judge. (1) The provision in the note and policy for the suspension and avoidance of the policy, on default in the payment of the note when due, was… Held: or in the case of a guarantor, or some person who is only conditionally or collaterally liable. McIntyre v. Ins. Co., 13 Ins. Law Jour. 216 (Mich. Sup. Court, 1883); Thompson v. Ins. Co '., 104 U. S. 232, followed in case of Ins. Co. v. Dosier, 106 U. S. 30. See also authorities cited on first point.

<p>Appeal -from the Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p>

— How. D. P. Stratton, Judge. (1) The court erred in holding the defendant Morris to be an incompetent witness. His testimony was objected to and excluded for the reason that he was “party to the suit, and James A- Stearns is dead, and witness was therefore incompetent.” Plaintiff had already stipulated to facts which released Morris from any liability, and which removed all his interest in the suit.

— Hon. M. Gf. Mo Gregor, Judge. (1) The court erred in refusing to hear the evidence offered by plaintiff to show that the report of the commissioners was just and true and that the damages assessed were adequate and sufficient. R. S. 1879, sec. 896; Railroad v. Probate Judge, 14 Am. & Eng. R. R. Oases, 355 ; Railroad v. Voorhees, 14 Am. & Eng. R. R. Oases, 227; Bridge Co. ©. Ring, 58 Mo., loe. cit. 494.

— IIon. M. G. McGregor, Judge. (1) The court erred in sustaining the motion for the peremptory writ, as the return set up three good reasons why the writ should not issue: First. That appellants had, prior to the commencement of this cause, caused to be levied upon the taxable property in the city the full amount of taxes that the law would permit them to levy, and that in said sum so levied would be no sum with which to pay the said judgment.

- — Hon. M. G. McGregor, Judge. (1) There was a total failure of proof to sustain the allegations in plaintiffs’ original petition and the defendant’s demurrer to the evidence should have been sustained at the close of plaintiffs’ evidence. (2) The plaintiffs sought to cure this failure by filing an amended petition at the close of all the evidence! The court erred in permitting this amended petition to be filed against defendant’s objections.

— Hon. C. H. S. Goodman, Judge. Statement by the court. The'following is the material portion of plaintiff’s petition: “That on said day the defendants, under the names of E. H. Reynolds and T. R. Taylor, by their promissory note, filed with plaintiff’s original petition, herein and herewith referred to, and made a part of this petition, promised, for value received, ninety days after the date thereof, to pay to the order of the cashier of the He Kalb County Bank three…

— Hon. James M. Sandusky, Judge. (1) An executor of a will cannot,. by proceeding under sections 3896 and 3897, Revised Statutes, 1879, protect the estate from liability on a note signed by the testator. Hickman v. Hollingsworth, 17 Mo. 475; Sisk v. Rosenberger,. 82 Mo. 46; Peters v. Lindenschmidt, 58 Mo’. 464 ; R. S. 1879, secs. 213, 2360.

— Hon. J. H. Slover, Judge. (1) “ The ratification must be entire or not at all.

— Hon. Andrew Ellison, Judge. (1) The estate involved in tbis controversy is not. of that character, mentioned or contemplated by law; which authorizes the public administrator to take charge of.

<p>Appeal from the Stoddard Circuit Court. — Hon. John GK Wear, Judge.</p> <p>(1) Plaintiff had the general property in the mill and was entitled to the immediate and exclusive possession thereof according to the evidence. Story on Part., secs. 90, 94, 97 and 101; Fleming v. Clarke, 22 Mo. App. 218 ; Phelps v. McNeely, 66 Mo. 554. (2) Plaintiff purchased from Kelly, who purchased the property under a sale to pay a partnership debt, and his possession thereunder ■ for two years entitled plaintiff to recover. Weak v. Ftter, 81 Mo. 375, and cases cited; Phillips v. Schall, 21 Mo. App. 38, 42; Andrews v. Costigan, 30 Mo. App. 29 ; Phelps v. McNeely, supra. (3) Notice to one partner, or service on one member of a firm is sufficient to authorize a judgment to sell partnership property to pay a partnership debt, and confer a title on stranger to such judgment. Bank v.' Altheimer, 91 Mo. 190; Story on Part., sec. 263 ; Hagar v. Graves, 25 Mo. App. 165. (4) Each partner can dispose of the partnership' effects for the purpose of paying its debts, and so by law, sale under execution for a firm debt against one member, transfers the property of the firm. Weil v. Simmons, 66 Mo. 517; Bank D. Brenneisen, 97 Mo. 145. (5) The firm debt is a lien on the firm property, and its sale to pay such debt conveys title to firm property. Priest v. Chouteau, 85 Mo. 398.</p>

<p>1. Pleadings: waiver by answer. An objection to a petition on tbe ground that the suit was brought directly in the name of a person as plaintiff, instead of being brought in the name of the city of St. Louis to the use of such person, is waived by answer to the petition, notwithstanding that a demurrer to the petition on that ground was previously filed by the defendant and overruled by the court. A defendant can only preserve such an objection by standing on a demurrer assigning it.</p> <p>2. ' Practice, Trial: variance. If a petition alleges that plaintiff was about to erect a building on a lot of land and employed the defendant, a city surveyor, to survey the lot for the purpose of ascertaining the boundary lines thereof, and its depth below the grade of the street, and the proof shows that the defendant was employed to furnish plaintiff with a conventional grade in use for the erection of buildings, to-wit, a grade nine inches above that of the street, this constitutes simply a variance, and not a failure of proof.</p>

<p>Appeal from, the Stoddard Circuit Court. — How. John G-. Wear, Judge.</p>

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

<p>M'ror to the Marion Circuit Court. — Hon. Thos. H. Bacon, Judge.</p> <p>(1) The court erred in overruling the motion to quash and dismiss the proceeding, because the road is not a public necessity. Laws, 1887, sec. 7, p. 246 ; Leslie ®. Railroad, 2 Mo. App. 115; Leslie ®. St. Louis, 47 Mo. 474. It is not enough to justify a court in exercising the right of eminent domain, that the use is convenient, useful or even essential. x It can only be done on grounds of absolute necessity. Leslie ®. St. Louis, supra; County Court v. Griswold, 58 Mo. 175, 193; Mills on Eminent Domain, secs. 10, 12, pp. 94-96. And this is a jurisdictional fact. People ®. Town of Seward, 27 Barb. 94; Wilson ®. Wits ell, 24 Ind. 306 ; Road Laws, 1887, sec. 9. (2) There was no such notice given of the intended application to the county court for the road as the law requires. The record, before the amended nune pro tune entries, did not show how the notice was given. That it was “ due legal notice ” is not sufficient. Acts, 1887, sec. 6, p. 246 ; Railroad v. Young, 96 Mo. 39, and cases cited. The notice was signed by only four of the petitioners. There should have been twelve. The notice did not contain the description of any land. This was necessary to inform the owners how they were to be affected. State v. Elizabeth, 32 N. J. L. 357; Mills on Em. Dom., sec. 100, p. 253 ; Railroad «. Kellogg, 54 Mo. 334, (3) The width of the road was not determined by the county court. This authority is in the court exclusively. Session Acts, 1887, sec. 2, p. 246 ; Jefferson County ®. Cowan, 54 Mo. 236. The width of the road was not' referred to in the petition, notice or any order made by the court, but was determined by the road commissioner. He had no authority to do it. Acts, 1887, sec. 2, p. 246; Butler v. Barr, 18 Mo. 357. (4) Neither the record nor report of the county road commissioner shows that there was any attempt made to agree with, plaintiffs in error as to the amount of damages or compensation they demanded for their lands, nor that there was any negotiations or conference with them on the subject, nor what was done in regard to the matter between them. This the record must show affirmatively, Nothing should be left to inference. Railroad v. Young, supra ; Lind v. Clemens, 44 Mo. 540 ; Leslie v. St. Louis, supra; Bilis %). Railroad, 51 Mo. 200-208; Moses r>. Lock Co., 84 Mo. 245; Cunningham v. Railroad, 61 Mo. 38 ; Railroad v. Campbell, 62 Mo. 585 ; Craff v. St. Louis, 8 Mo. App. 562 ; Mills on Em. Horn., sec. 107, pp. 259 and 260. The law (Acts, 1887,. sec. 6, p. 246, amended) required that this should be done, and the county court ordered it. The purpose of this is that the amount demanded being known, the' petitioners or the county court may pay it, and all further proceedings are ended. And, until this is done, there is no authority, no jurisdiction, in the court to do anything further. Railroad v. Young, supra ; Bilis v. Railroad, 51 Mo. 203; Whitney v. County Court, 73 Mo. 30; Railroad v. • Campbell, supra ; Cunningham v. Railroad, 61 Mo. 35; Rogers v. St. Charles County, 3 Mo. App. 41 and 599 ; Mills on Em. Horn., secs. 105, 207, 259, 108, 261. Nor did the claim for damages waive the failure to obtain jurisdiction. Johns v. Marion County, 4 Oregon, 46; Mills on Em. Horn., sec. 388, p. 522. (5) The report of the three freeholders does not describe the tract. of land on which they assessed the damage. This the law required. Acts, 1887, sec. 8, p. 247. (6) The county court had no power or authority to correct its record, by entries nunc pro tunc, showing that plaintiffs in error were in court when the petition was filed. It requii’es no citation of authorities on the point that jurisdiction cannot be given by consent. But the record could not be supplied in this way in this class of cases. Anderson v. Pemberton, 89 Mo. 61; Blize v. Castlio, 8 Mo. App. 294-5. There was no memorandum or paper to correct by. State ex ret v. Primm, 61 Mo. 166 ; Robertson v. Ñeal, 60 Mo. 575.</p>

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

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p>

Original Proceeding■ by Habeas Corpus. (1) None of the evidence relative to the request of the deceased, Lizzie Blackburn, to her parents to keep her child after her death is admissible. Such request is irrelevant, as any arrangement of that kind under our law is void.

Louis City Circuit Court. — Hon James E. Withrow, Judge. (1) The testimony of plaintiff, so far as it is against himself, constitutes an admission binding on him. Shirts v. Oterjohn, 60 Mo. 305.

Louis City Circuit Court. — How. Daniel D. Fisher, Judge. ‘ It was error to refuse instructions asked at the-close of plaintiff’s evidence, and to all the evidence as for non-suit, also defendant’s instruction number 10, and to overrule the motion to exclude all evidence. 9 Bacon’s Ab., p. 458, title trespass, C, 3; Lindenbower v. Bentley, 86 Mo. 513, 519, 520; Garner v. McCullough, 48 Mo. 318; .Roussen v. Benton, 6 Mo. 392; Anderson v. Nesmith, 7 Mo. 167•; 2 Waterman on…

<p>.Practice, Appellate: return term. In the computation of time, ip order to determine to what term of this court an appeal thereto is returnable, the day on which the appeal was taken is to be excluded and the first day of .the next succeeding term of this court is to be included, and the appeal' is returnable to such next succeeding term, if, on such computation, it was taken exactly thirty days before the first day of that term.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Both the lease and the sale were in the language of the statute “contracts for the leasing,” etc., of buildings, tenements, etc., in the city of St. Louis. Flanagan & Co. were liable, if at all, after June, 1886, .under an implied contract (not in writing) for the leasing of a building or tenement in the city of St. Louis.

.Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Undue and unearned rent is not a demand within the sense and meaning of the use of the term in Revised Statutes, 1889, section 203, allowing undue claims to be proved against a decedent’s estate.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>(1) The view that trustees are entitled to compensation has received the sanction of the courts and the legislatures of nearly all the states, and trustees are now entitled to compensation for their time and trouble. Perry on Trusts [ 3 Ed. ] sec. 917; 2 American Law of Admr’s, sec. 524, p. 1160. (2) Amendatory acts are sometimes viewed in the light of legislative interpretations and respected by the court as such. State v. Dill,. 60 Mo. 433. (3) Statutes must be considered in reference to the subject-matter, and the objects which prompt and induce their enactment, and the mischief they were intended to remedy. Keenan v. Smith, 50 Mo. 525; Spitler v. Young, 63 Mo. 42; State v. Diveling, 66 Mo. 315.</p> <p>There is really but one question for the determination of this court in this case. Is D. Gf. Tutt, the surviving partner of the firm of D. Gr. Tutt & Co., entitled to any commission for his services in administering the partnership estate ? We contend that inasmuch as during the time the surviving partner was rendering the services for which he now claims compensation, the law, as a matter of public policy, forbade him to charge commissions, and inasmuch as that law was not changed by the legislature until the act of 1885, which was passed long after the services were rendered, and after the final settlement of the estate was filed in the probate court, he cannot now claim compensation. To hold otherwise would be to give a retrospective operation to the act of 1885. Gregory v. Menefee, 83 Mo. 413; State v. Auditor, 33 Mo. 290.</p>

<p>1. Corporations: extent oe powers. A manufacturing or business corporation, organized under the laws of this state, has no authority to engage in a business not within the scope of its pur- • poses, as set forth in its articles of incorporation. And held that . such a corporation had no power to engage in selling oysters under a charter “to buy and sell dairy products, especially milk, butter, cheese and ice cream, and to purchase, hold, mortgage or otherwise convey such real and personal property, as the purposes of the corporation shall require.”"</p> <p>2.--: ultra vires, DEFENSE OF. A person with whom a corporation has entered into a contract may plead, in defense to an action thereon, that the contract is ultra vires, as long as the contract has not been fully performed by the corporation. And held that the contract in the case at bar, which was a contract for the hiring of the defendant by the plaintiff corporation, had not been thus fully performed by the corporation, since the period of service contracted for had not expired at the time of the breach of the com tract by the defendant.</p>