Volume 44 — Missouri Appeal Reports

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

<p>Appeal from the McDonald Circuit Court. — Hon. Joseph Cravens, Judge.</p>

— Hon. John L. Thomas, Judge. (1) Tlie petition does not state facts sufficient to constitute a cause of action against defendant, and the verdict is, therefore, invalid. Brassfleld v. Patton, 32 Mo. App. 575. (2) The court erred in refusing to sustain defendant’s demurrer to plaintiff’s evidence, and to give the instructions asked by defendant. Townsley v. Railroad, 89 Mo. 33; Clardy v. Railroad, 73 Mo. 576. (3) The court erred in giving the instructions it did to the jury.

<p>1. Railroads: killing stock : sufficiency of statement. The statement in an action for statutory damages for the killing of stock by a railway company must allege that the stock came upon the railroad track at a place where the company "was under a legal obligation to erect and maintain fences, and was injured owing to the company’s failure to observe this obligation. But, where this appears from the statement by reasonable inference, a judgment against the company will be upheld.</p> <p>2. -: -: sufficiency of the evidence. The evidence showed that there were two points in the fence at which the stock* sued for could have entered upon the railroad tracks, but did not positively or in any direct manner show at which of these two places the entry had actually been made. Held that, under the evidence, it was sfor the jury to determine the point of actual entry.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) A promise to pay the debt of another is valid. Rottman v. Pohlman, 28 Mo. App. 399. (2) Where it is evident that the testimony rejected might have changed the result, and was competent and relevant, this court will reverse the judgment. 1Wilson v. Board of Ed., 63 Mo. 137 ; Wilson v. Allen, 67 Mo. 502 ; In re Bishoff v. Stumpf, 10 Mo. App. 474; Broom v. Wright, 15 Mo. App. 406; Chaffee v. Railroad, 64 Mo. 193.

— Hon. M. Oliver, Judge. The criminal court of Greene county has same jurisdiction relating to criminal matters that circuit courts in other counties have. It had no jurisdiction of Haseltine’s motion to retax costs. No appeal from the judgment of a justice overruling such motion is authorized by the statutes. State v. Baldwin, 79 Mo. 243. The criminal court of Greene county had no jurisdiction of the person of Powell to render any judgment or to make any order against him.

— Hon. Joseph Cravens, Judge. (1) Mortgages of personal property, where possession is not delivered to the mortgagee, must be acknowledged or proved, and recorded in the same manner as the conveyances of lands. R. S. 1889, sec. 5176. ( 2) It is clearly provided by statute that the acknowledgment to conveyances of real estate, when taken before a justice of the peace, can be only taken before a justice' of the peace within the county where the land is situated.

<p>1. Practice, Trial: joinder of two causes of action in one count. When two causes of action of the same class are stated, in one count, the proper method of objection is a motion to require the plaintiff to elect upon which cause he will proceed to trial.</p> <p>• 2. Practice, Appellate: transcript. On the appeal of a cause, the transcript therein must contain all the evidence which is to be considered on such appeal. It is not permissible for the parties by stipulation to provide that the evidence, which is contained in another transcript in regard to one of the issues, shall be considered by this court in the determination of such appeal.</p> <p>3. Married Women: charging separate estate. Held that the proof was sufficient to establish an intention on the part of a married woman to charge her separate estate with indebtedness contracted by her, and that the sufficiency thereof was not impaired by the fact, that the creditor could file mechanic’s lien for the indebtedness against other property of the married woman.</p> <p>4. Mechanics’ Lien: sufficiency of account. When a contract for the papering of the walls of a building at a fixed price per roll is made between the pwner and the contractor therefor, an account filed as a mechanics’ lien for the work will be insufficient, if it merely states the aggregate amount due for the work, without showing the number of rolls used and the price per roll. But the failure of the account to state the date of the doing of the work will not vitiate the lien, if the affidavit attached thereto shows that the lien was filed within the requisite time.</p> <p>5. ---: JOINDER OF CLAIMS UNDER DIFFERENT CONTRACTS. It ÍS permissible to embrace in an account filed as a lien, items for work on the same building under different contracts with the owner, but, in order to enforce the lien for the entire work, the evidence must show that the lien was filed within six months after the completion of the work under each contract.</p>

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

<p>1. Practice, Trial: form; of judgment on allowance of counterclaim. When the claim sued on by the plaintiff is admitted, and there is a finding in excess thereof in favor of the defendant on a counterclaim set up by him, the judgment should be for defendant for the amount of the difference between the finding on the counterclaim and the admitted claim of the plaintiff.</p> <p>2. Fraud: misrepresentations. Held that the evidence in this case was sufficient to sustain a counterclaim for misrepresentations touching the boundaries of land sold by the plaintiff to the defendant, and the location of certain improvements, in that the defendant had the right to treat unqualified representations of the plaintiff in respect to the location of said boundaries as warranties, and not merely as the expression of an opinion, and in that the plaintiff’s belief in the correctness of the representations, when he made them, would not relieve him from.liability.</p>

. Hon. Thomas H. Bacon, Judge. The information is bad, because : First. It is not based on the affidavit of one having knowledge of the commission of the alleged offense, nor is it based on the personal knowledge of the prosecuting attorney. Second. It fails to set out the name of the person to whom the alleged illegal sale of the liquor was made by the defendant as a registered druggist.

<p>1. Pleading: negligence : amendment. While a petition, founded on an allegation of negligence on the part of the defendant must state wherein the negligence consisted, this may be done in general terms sufficient to advise the defendant of the charge against which he is called upon to defend himself ; and, if such petition fails thus to particularize the charge, the defect may be remedied by amendment.</p> <p>2. Master and Servant: putting the servant in danger op injury without notice. A servant assumed a position which was not hazardous in itself, but was made so through an act done by the master without notice to the servant. Held that the servant was not guilty of contributory negligence, he having the right to assume that he would not be put in danger by an act of the master over which he had no con tro1.</p> <p>3. Practice, Appellate: excessive damages. Courts will set aside a verdict as excessive even in the case of personal injury, where the excess is so gross as clearly to indicate bias or prejudice on the part of the jury; but the fact, that such injury cannot be measured by a definite money standard, should make courts cautious in disturbing a verdict for that cause alone. Verdict in this cause held not so excessive as to warrant interference.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The two offices held by the plaintiff, viz., those of secretary and director of the defendant corporation, were separate and distinct, and,. even in the absence of express provision, there would have been an implied contract for compensation for the services rendered by him as secretary, notwithstanding that he was also a director. Rogers v. Hastings, etc., Co., 22 Minn. 25; Ten Eyelet).Pontiac Co., 3 Law. Ann.

Louis City Circuit Court. — Hon. James E. Witheow, Judge. (1) The previous decision in this case, as well as the numerous authorities then cited, establish beyond controversy that, while a contract for the sale of land is still executory, by operation of law and without any agreement of the parties to that effect, the purchaser has a right to demand a good and marketable title. Birge v. Bock, 24 Mo. App. 330.

<p>1. Criminal Law: indictment : specification of date. An indictment for selling intoxicating liquors “on tlie —— day of June, A. D. 1886, that day being then and there the first day of the week, commonly called Sunday,” is not vitiated by reason of the blank left in the specification of the date of the offense.</p> <p>2. -: judicial notice. A court may take judicial notice that beer is a fermented liquor.</p> <p>3. --: INDICTMENT : NECESSITY FOR FOLLOWING WORDS OF THE statute. An indictment need not follow the precise words of the statute, but may use other words of equivalent import. Held accordingly that, when the statute prohibited the sale of fermented or distilled liquor, an indictment for the sale of intoxicating liquor was good, especially when the liquor was further designated by name, and the court took judicial notice that it was a fermented liquor.</p>

<p>Criminal Law: dramshops : permitting minors to plat. Revised Statutes, 1889, section 4588, prohibit a dramshop-keeper from permitting a minor to play at the game of pool in his dramshop without the consent in writing of the minor’s father; the verbal consent of the father does not constitute any defense to an information against a dramshop-keeper for the violation of that prohibition.</p>

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

<p>1. Praotiee, Trial: bill of exceptions. Before signing a bill of exceptions presented by the defendants, the trial judge inserted in it a proviso that it should be subject to revision by the plaintiff, and that any additional evidence, desired by the plaintiff and not objected to by the defendants, should be inserted therein ; and it was filed with that proviso. Held that this proviso did not nullify t'he bill.</p> <p>2. Municipal Corporations: nuisances : evidence. The board of health of the town of Kirkwood, acting within the scope of its powers, duly adjudged a drain and sewer pipe, which discharged sewage from the premises of the defendant into a public street of that town, to be a nuisance, and thereon, pursuant to the ordinances of the town, a proceeding was instituted before the recorder of the town against the defendant for a failure to abate the nuisance within a specified time. Held that, in such a proceeding before the recorder, the adjudication of the board of health was prima fade evidence of the existence of the nuisance.</p> <p>3. -:--. • The fact, that the municipality has not established a public sewer, does not constitute a defense to a proceeding, charging the defendant with the maintenance of such a nuisance, at least not until it appears that the proprietor of the premises neither has, nor cau devise, any other reasona ble means of disposing of his sewage than the one c omplained of.</p>

<p>1. Practice, Appellate: dismissal por failure to prosecute. This court has the clear power to disincumber its docket of appeals, which neither party can or will prosecute. Held, accordingly, that this case should be stricken from the docket, since the death of the respondent had been suggested at the October term, 1888, and no steps had been taken to revive the cause or prosecute it in the name of his legal representative.</p> <p>2. --: abatement of action by death op appellant. Qucere, whether section 2201 of ,the Revised Statutes of 1889, in reference to the abatement of an action, if the action should not be revived at or before the third term after the suggestion of the death of a party, is applicable to appellate proceedings pending m this court.</p>

Charles Circuit Court. (1) Tliere was no proof offered that tbe crossings in queslion were public roads. This was a fatal omission. Acts, 1885, p. 87; R. S. 1879, sec. 6976 ; Baclean v. City of Cape Girardeau, 71 Mo. 392.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The court erred in not giving both of the appellant’s instructions at end of the plaintiff’s evidence, as there was no evidence tending to show that the debt sued for was fraudulently contracted. ( 2 ) The instructions given for respondent were improper, and are not the law of the case. Bank v. Sells, 8 Mo. App. 85, 91 ; Dunn ».

<p>1. Witnesses: guardian and ward. A guardian is not an incompetent witness to prove his own default in an action on his official bond, instituted by his ward against a surety on that bond.</p> <p>3. Guardian and Ward: sufficiency of evidence to charge the guardian. A policy of life insurance was by its terms payable to the wife of the assured, but she was appointed guardian of one of her sons, and in her annual settlements debited herself with one-fourth of the proceeds of the policy, the son being entitled to one-fourth of the estate of the assured. Held that the evidence was sufficient to warrant the submission of the issue to the jury, whether or not the ward had acquired a right to the amount thus debited, but did not warrant a peremptory instruction as to the existence of that right.</p> <p>3. --- : EFFECT AND REVIEW OF ANNUAL SETTLEMENTS. Annual settlements of a guardian are not conclusive, but are subject to review at the final settlement, or, if there is no final settlement, then in a suit upon the guardian’s bond.</p> <p>4. --: allowance for maintenance. In an action by a ward upon the bond of his guardian, a surety upon the bond may avail himself of the right of the guardian to claim a credit for the board and maintenance of the ward, if the circumstances would have authorized an allowance therefor in the probate court. Such allowance cannot be claimed, however, for board and maintenance, furnished by the natural guardian without any intention or design of charging therefor.</p>

<p>1. Criminal Law: presence of defendant at trial. Semble that, in a criminal prosecution even for a misdemeanor, the defendant must be present either in person or by agent or attorney, when he is tried.</p> <p>2. Municipal Corporations: proceedings for violation of ordi nances. A proceeding by a municipal corporation for the violation of its ordinances is to be governed by the rules applicable to civil proceedings, and the mere fact, that the statute provides that in cities of the fourth class the original writ shall be a capias, instead of a summons, does not convert the proceeding into a criminal action.</p> <p>3. -: -: imprisonment of offender. The statute provides that it shall be part of the judgment in such a proceeding, if against the defendant, that the defendant shall be imprisoned until the judgment shall be complied with ; it also provides that any defendant committed under such judgment may be discharged upon payment of the fines and costs, or upon perfecting an appeal. Held, accordingly, that a defendant taken in custody under such a judgment does not entitle himself to a release by merely tendering sufficient property upon which to levy the execution.</p> <p>4. -:-:-. The defendant in such a case is not. however, bound to pay the costs of an unsuccessful proceeding of habeas corpus, in order to entitle himself to a discharge from imprisonment; he is entitled to a discharge on the payment of the fine together with the costs of the original proceeding against him.</p>

W. D. Hubbard, Judge. (1) The instrument sued on is negotiable; the words “with exchange” are surplusage because the bill was drawn at Rogersville, Missouri, and was payable at the same place. 1 Daniel on Neg. Inst. [3 Ed.] p. 57, sec. 54. Nor do the words, “ interest from date if not paid when due,” render it non-negotiable. The rule of precision as to amount applies to principal and not to interest. 1 Daniel on Neg.

<p>Practice, Trial: bill or exceptions. Where a bill of exceptions is filed in term time, there must be some recital in the record proper that it was filed; and, when it is filed in vacation, there must be a recital of the record in term time that leave was given by the court for the filing of it in vacation, together with a file mark or recital of the clerk showing that it was filed within the time granted.</p>

<p>Appeal from the Pike Circuit Court. — Hon. E. M. Hughes, Judge.</p>

— Hon. J. L. Thomas, Judge. (1) The court erred in admitting the oral testimony of John O. Long, the purpose and effect of which was to change, vary and contradict the written contract of sale executed by the parties to this suit. Bunce v. BecJc, 48 Mo. 266 ; Cooch v. Conner, 8 Mo. 391, 394, 395 Smith v. Thomas, 29 Mo. 307, 315 ; 1- Greenl. Ev., ch. 15 ; 2 Whart., sec. 920. (2) The court erred in refusing the instructions, numbered 1, 2 and 3, asked by plaintiff.

— IIon. James D. Fox, Judge. ’ (1) The defendant’s motion to dismiss, and in arrest, should have been sustained. First, because the complaint does not show, or charge, that the persons confined in said prison (and whom defendant is charged with liberating) were held under a conviction by the city court, or by some of the state courts or magistrates. 26 Mo. 199.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Plaintiff liad a right to leave his horse securely fastened on the public street, while in the prosecution of his profession of a practicing physician. He was guilty of no negligence, éither direct or contributory. The defendant was guilty of negligence which was the proximate cause of the damages suffered by the plaintiff, and is, therefore, liable in this action.

<p>Appeal from, Pulaski Circuit Court. — Hon. C. C. Bland, Judge.</p>

<p>Appeal from the Howell Circuit Court. — Hon. Joseph Cravens, Judge.</p>

— Hon. M. Gr. McGteegor, Judge. The offense under the information and statute is confined to “real property,” and the “crusher and engine” were not real property, and there is no evi-' dence tending to show they were, and the prosecuting witness says, “ I was not disturbed in my possession of any shafts or lots.

<p>1. Corporation: proceeding against stockholder by motion not-an independent action. A proceeding by motion under the-statute against a stockholder of a corporation is not an independ. ent action ; it is a proceeding in the case, in which the judgment against the corporation was recovered, in such a sense as enables the court to take in it judicial notice of the judgment.</p> <p>2. --:--: practice, appellate. On the appeal of such a proceeding, the appellate court can review findings of fact as freely as in a case in equity.</p> <p>3. -- — : capital stock : release oe shareholder’s liability-Where a contract of subscription for capital stock of a corporation is absolute on its face, no extrinsic or collateral agreements between the subscriber and the promoters or agents of the corporation, who obtained the subscription, not amounting to fraudulent representations on the part of the latter, can be shown for the purpose of discharging or reducing the liability of the former as a. stockholder.</p> <p>4. ---:---; LIABILITY OE SUBSCRIBER EOR SHARES OE CAPITAL STOCK. One who has subscribed for shares of the capital stock of a. corporation is liable on the subscription in either of the following cases, namely, when the subscription was made in his own name individually, but upon a secret trust for another ; or when the-subscription is made as trustee for a corporation which has no power to subscribe for such shares.</p> <p>5. ---:--: CANCELLATION OE SUBSCRIPTION FOR SHARES. The liability of a subscriber for such shares cannot be discharged for the mere cancellation of the subscription, which is unaccompanied by a reissue of the shares subscribed for, and, therefore diminishes-the trust fund afforded by the capital stock of the corporation.</p>

<p>1. Practice, Trial: fraud : peremptory instruction. A peremptory instruction to the jury to find fraud in fact is not proper, if the conceded facts do not establish the fraud so plainly that fair-minded men could not differ concerning the conclusion to be drawn therefrom.</p> <p>2. Fraud: instructions. It is not error to instruct the jury, upon an issue of fraud, that the fraud must be .established to their satisfaction.</p> <p>3.--:--. When a sale is fraudulent as to the creditors of the vendor, it is invalid, even if the vendee.has paid to the vendor the full value of the property sold. And the refusal of an instruction. to that effect, asked by the party charging the fraud, will be . error, where there is sufficient evidence upon which to predicate it.</p>

— Hon. Ben. E. Turner, Judge.’ (1) Revised Statutes, 1889, section 2611, is a penal statute, and so far as it is regarded as punitive should be strictly construed. Parish v. Railroad, 63 Mo. 284. ( 2) A railroad company is not liable in double damages, under this statute, for an injury to stock which, does not result from direct or actual collision with the engine or cars. Lafferty v. Railroad, 44 Mo. 291; Hughes v. Railroad, 66Mo- 325; Siebertv.

<p>Appeal: jurisdiction. An action for the condemnation of land for public uses involves title to land, and the supreme court has-exclusive jurisdiction of an appeal therein.</p>

Original Proceeding by Habeas Corpus. (1) The county court had no jurisdiction or power to ascertain and determine the result of said local-option election, and its action in doing so, and its order in declaring the result, are therefore void. 1 R. S. 1889, sec. 4598, p. 1050; sec. 4684, p. 1070; State v. Mackin, 41 Mo. App. 99.

— Hon. Joseph Cravens, Judge. (1) The instruction at the close of the case ought to have been given. The evidence showed that the animal was struck within the limits of Butterfield, at a point where the track could not be fenced without great. inconvenience to tlie company and its patrons in handling freight, and danger to its employes in switching cars and making up trains. The law does not require' a fence at such a place. Robinson v. Railroad, 21 Mo.

<p>Divorce: indignities : conduct or complainant. When a divorce is sought on the ground of indignities rendering the condition of the complainant intolerable, and the alleged indignities consist of wranglings and exhibitions of temper, due to the lack on the part of both husband and wife of a proper conciliatory spirit, the divorce should not be granted. In a case of this character, the indignities must be frequent, and not isolated, and they must be of such a nature as to tend to the subversion of the family relation ; and it must further appear that the complainant is the innocent and injui ed party.</p>

<p>Contract in Writing: ignorance op contents. A party who is sui juris cannot, in the absence of fraud or imposition, deliberately sign a written contract, and then escape its obligation on the ground that he did not know its contents.</p>

The court erred in sustaining the application of Koch, Sons & Co. to be made parties defendant. Section 1993, Revised Statutes, 1889, is made for the benefit of the plaintiff. He may join, as parties defendant, those situated as stated in the statute, but a stranger cannot insist on being made a party defendant simply because his interest may be affected in some collateral way. Kortjohn v. Seimers, 29 Mo. App. 271; Boyer ». Hamilton, 21 Mo. App. 520.

— Hon. H. C. O’Bryan, Judge. (1) The carrier’s liability is limited to his own line, and the carrier is not liable for damages occurring beyond the terminus of its railroad, except by special contract. Machine Co. v. Railroad, 70 Mo. 672; Railroad v. Pratt, 22 Wall. 124; Perkins v. Railroad, 47 Me. 593 ; Péople v. Railroad, 55 111. 95; Cobb v. Railroad, 38 Iowa, 601 ; McCarthy v. Railroad, 9 Mo. App. 167; Railroad v. Mfg.

—Hon. Joseph Cravens, Judge. The court erred in permitting the introduction of any testimony by the plaintiffs. Both the original and amended statements of plaintiffs show that there was simply a mistake or ignorance of the law, and money paid under mistake or ignorance of the law cannot be recovered back. 2 Greenl. Ev. [14 Ed.] sec. 123; Sav. Inst. v. Enslin, 46 Mo. 200 ; Wolfe v. Marshall, 52 Mo. 167; Savings Ass'n v. Kehlor, 7 Mo.

<p>Appeal from the Howell Circuit Court. — Hon. Joseph Cravens, Judge.</p>

<p>Appeal from the Howell Circuit Coicrt. — Hon. Joseph Cravens, Judge.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The amended statement filed by the respondent was insufficient. R. S. 1889, secs. 6138 and 6139; Nutter v. Houston, 32 Mo. App. 451, and cases cited; Rosenburg v. Boyd, 14 Mo. App. 429; Hill v. Ore (1) Even if the original statement was not sufficient, it was not error to overrule the appellant’s motion to dismiss the case, and grant respondent leave to file a sufficient amended statement.

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

Louis City Circuit Court. — I-Ion. James E. Withrow, Judge. The memorandum filed with the justice was not a statement of a cause of action. Swartz v. Nicholson, 65 Mo. 508; Rosenburg v. Boyd, 14 Mo. App. 429; Butts v. Phelps, 79 Mo. 302 ; Razor v. Railroad, 73 Mo. 471. As the memorandum filed with the justice did not state a cause of action at all, it was not susceptible of amendment on appeal. Hence the action of the court below in permitting an amendment was error.

Louis City Circuit Court. — IIon. James E. Withrow, Judge. The evidence offered by plaintiff did not prove that the plaintiff wrongfully entered and expelled the defendant, or that there was some deliberate disturbance of defendant’s possession by plaintiff, whereby he was depiived of the beneficial enjoyment of the demised premises. Taylor on Landlord & Tenant, secs. 307-318 ; Cray v. Caff, 8 Mo. App. 329 ; Smith v. Thurston, 19 Mo.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Statutes must be construed in reference to the subject-matter, the objects which prompted and induced the enactment, and the mischief they were intended to remedy. Spiller n. Young, 63 Mo. 42; Henschell v. Smith, 50 Mo. 454 ; Bolton n. Bans down, 21 Mo. 399 ; Hay don ’ s Case, 3 Rep. 7.

<p>1. Appeal: jurisdiction. An action for the condemnation of land for public uses involves title to land, so that an appeal therein lies to the supreme court.</p> <p>3. -:-. When a constitutional question is properly raised upon the record of a cause, the supreme court has jurisdiction o£ an appeal in the cause ; and where the appeal is allowed to this court, the cause should be transferred to the supreme court, without inquiry whether there is any merit whatever to the question raised, or whether it is a mere sham.</p>

<p>1. Husband and Wife : right of action for nuisance. A right of action for a nuisance affecting the enjoyment of premises is in the husband, when the premises are occupied by him and his wife as a home, and the legal title thereto is in the wife, but when there is no permanent injury to the freehold.</p> <p>2. Practice, Trial: election of cause of action. An action was brought by a husband and wife jointly for a cause of action belonging to the husband alone. A motion was made by the defendant that the plaintiffs be required to elect whether they would proceed upon a cause of action on behalf of the husband or on that of the wife. Thereupon they elected to prosecute the action on behalf of the wife, and were nonsuited. Held that since they had elected to enforce a cause of action for the wife, which she never had, the court committed no error in instructing the jury to find for the defendant.</p>

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

<p>1. Ejectment: res ad judicata. A judgment for the plaintiff in an ejectment suit is res adjudicata, in an action by the plaintiff against the sheriff and his bondsmen for the refusal of the sheriff to execute the writ of restitution; and in such an action the defense, that the title upon which the judgment was based was invalid, is not permissible.</p> <p>2. Refusal of Sheriff to Execute Writ of Restitution: damages. In case a sheriff wrongfully refuses to execute a writ of restitution, issued in an action of ejectment, it is the duty of the plaintiff in that action to make reasonable efforts to prevent the accumulation of damages; and, when the term of office of the sheriff expires, it devolves upon such plaintiff to place an alias execution in the hands of the successor of such sheriff, and, failing to do so, he cannot recover damages for any time subsequent to that at which he could have obtained possession under such alias writ.</p> <p>3. -: -: interest. Where an action ex delicto is. based upon the simple negligence of a defendant, to whom no pecuniary benefit has, or could have, accrued by reason of the injury or wrong, interest is not allowable. And under this rule interest is not allowable in an action for the refusal of a sheriff to execute a writ of restitution.</p>

<p>1. Criminal Law: burden oe prooe. In a prosecution for the selling of lottery tickets in a lottery called policy it is incumbent upon the state, in order to warrant a conviction, to introduce some evidence having a tendency to prove that the tickets sold entitled the buyer to a chance to acquire property having some value by lottery, or by a scheme or understanding similar to the lottery.</p> <p>2, -:-: circumstantial evidence. The proof need not he direct and definite, but may be made by circumstances from which an inference of guilt can be lawfully drawn.</p>

<p>Criminal Law: selling lottery tickets : sufficiency of the evidence. In order to warrant a conviction for the selling of tickets in a lottery, or device of the nature of a lottery, known as “ policy,” there must be some evidence that “policy” is a lottery or such a device.</p>

Louis Circuit Court. — Hon. Daniel 'D. Fishek. Judge. (1) Chancery has jurisdiction1 over the persons of infants and has power and authority to make and enforce all necessary and proper orders for their care, custody and maintenance.

<p>1. Promissory Notes: notice op equities. In order to affect one, .who purchases a negotiable -promissory note for value, and before maturity, with notice of its invalidity, it is not necessary to bring home to such purchaser notice of the specific facts which impeach the validity of the note.</p> <p>2. ---:--: NEGLECT on the part op the purchaser. Neglect on the part of such purchaser to pursue his opportunities of inquiry is not evidence of bad faith, unless the circumstances are such as to wai'rant the inference that it was wilful and intentional, and due to a purpose to avoid the discovery of the facts.</p> <p>3. ---:-: sufficiency of the evidence. The evidence in this cause considered and held sufficient to affect the purchaser of a note with notice of its invalidity.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Roeder was not a purchaser of the notes, and the transaction between Roeder and the plaintiff did not constitute a sale. -Hurck v. Mr shine, 50 Mo. 116 ; Wolff v. Walter, 56 Mo. 292. (2) Roeder, by the payment of the notes, was not subrogated to any rights under the mortgage. Feliz v. Clark, 5 Pet. 481; Allen v. Dermott, 80 Mo. 56; Johnson v. Johnson, 81 Mo. 335 ; Taylor v. Tarr, 84 Mo. 426; Price ».

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) If plaintiff places his right to recover on the ground that the stock was not delivered in a reasonable time, his proof utterly fails. The contract he himself introduced in evidence recites that the appellant did not agree to carry the stock by any particular train, nor in time for any particular market. He does not show that it was not carried in a reasonable time.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) In an action on an assigned account a general denial will impose upon the plaintiff the burden of proving both the account and the assignment. Bond v. Long, 86 Mo. 266. Moreover, this was an action on the case, and not assignable. (2) The action on the second count is contrary to the statute, which provides : “Every action shall be prosecuted in the name of the real party in interest.” R. S. 1889, sec. 1990.

<p>1. Pleading: sufficiency of forms appended to revised statutes. The forms of pleading appended to the Revised Statutes are not understood to have the force of law.</p> <p>2. -: account! Held, in an action upon an account, a copy whereof was attached to and was referred to in the petition, that, read in connection with the account, the petition stated a good cause of action.</p> <p>3. Instructions : wagering contract. An issue, as to whether the debt sued upon which arose from alleged sales of grain was a gambling debt, was submitted to the jury under an instruction which told the jury to find that the debt was of that character, if it was “mutually agreed and understood” between the plaintiff and defendant that no grain should be delivered or received in settle- ■ ment of the sales, but that settlement should be made merely by the payment of differences. Held that the expression “understood ” was equivalent to the use of the word “ intended,” and that its use, therefore, did not render the instruction erroneous.</p> <p>4. —>— : excessive number. Held that the tender of thirteen different instructions under the issues of this cause would have warranted the refusal of all of them.</p>

Lotus City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) The engine and boiler never became a part of the realty, but always remained personalty. Rogers v. Crow, 40 Mo. 91; Collins v. Mott, 45 Mo. 100; Graves v. Pierce, 53 Mo. 423; Richardson v. Rock, 81 Mo. 264 ; Thomas v. Davis, 76 Mo. 77; Baldwin v. Merrick, 1 Mo. App. 281; Goodin v. EUeardsville, 5 Mo. App. 289. (2) The right of removal was not lost.

Hon. Maurice Cramer, Judge. (1) The. defendant’s first instruction is erroneous in directing the jury that “the burden of proof in this cause is on the plaintiff,” without any explanation whatever as to the meaning of this technical expression. Such expressions should, if possible, be avoided in instructions to laymen, whose minds are apt to be confused rather than, enlightened by them; when used, their meaning should be explained in ordinary language.

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

<p>I. Jurisdiction, Appellate. This court lias no recognizance of questions arising under the constitution of the United States, and cannot, for the purpose of determining its own jurisdiction, consider whether such questions are fairly debatable.</p> <p>2. Presentation of Constitutional Question. Qucere, whether a constitutional question was sufficiently raised in the case at bar to require the transfer of the cause to the supreme court, when such question had not been raised either by instruction, objection to evidence, or motion for new trial.</p>

<p>Appeal from the Scott Circuit Cotort. — Hon. Ó. C. O’Bryan, Judge</p>

<p>Partnership: sufficiency of the evidence. The evidence in this cause is considered, and is held, sufficient to warrant a finding, that the defendant was liable for the debt in controversy as a member of a partnership, whose existence was in dispute.</p>

<p>^Negligence : highways : municipal ordinance. An ordinance of , the city of St. Louis required every person, who made any excavation in or adjoining any public street, to fence the same with a substantial fence not less than three feet high, etc. Held that suoli an ordinance can only be made the basis of a civil liability when it rests upon, and has for its object, the enforcement in a particular way of an obligation imposed by the general law; and held, further, that the ordinance came within this principle, in that an obligation to guard such an excavation existed at common law, and the ordinance merely prescribed that this obligation should be discharged in a certain manner.</p>

— Hon. Leroy B. Valliant, Judge The estate of a married woman in realty may bo subjected to a mechanics’ lien.

<p>Criminal Law : abandonment op wipe. In order to warrant the conviction of a husband for the abandonment of his wife (R. S. 1889, sec. 3501), the state must establish that the husband abandoned his wife without cause and with a criminal intent, and that he failed and refused to provide for her. And held that the evidence in this cause shows merely an inability but honest effort on the part of the defendant to procure work so as to support his wife, and, therefore, did not warrant a conviction.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The court erred in admitting the testimony of plaintiff’s wife, over defendant’s objection. Kennedy r>. Kennedy, 57 Mo. 77; Haerle v. KreiTin, 65 Mo. 205; Mfg. Co. v. Tinsley, 75 Mo. 459. (2) The court erred in refusing to give the instructions asked by defendant. Palmer v. Railroad, 76 Mo. 222 ; Kenney v. Railroadr 70 Mo. 248. (3) The court erred in giving the instructions it did, at plaintiff ’ s instance.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Where funds are in court under an execution* the distribution is under the rules of the common law and not under section 570, Revised Statutes, 1889. Swallow v. Duncan, 18 Mo. App. 631. (2) Goods seized under execution cannot be seized under other process; but a levy may be imposed by suitable notice. Metzner v. Graham, 57 Mo. 404; Patterson ». Stephenson, 77 Mo. 329.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. All usurious interest retained and paid on an original note, as well as that retained on the renewal note, must be applied as part payment of the latter note, when suit is instituted by the holder. Bank v. Miller, 73 Mo. 187.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) If tlie case of Koenig v. Morrison, pleaded in estoppel, was upon a quantum meruit, respondent then exercised his right of election, in which he waived and abandoned the contract forming the basis of his action in this suit. He took the position before that court, trying the case, that he had not complied with the contract, and could not sue upon it.

Louis City Circuit Court. — Hon. James E. Withrow, Judgei Section 598, .Revised Statutes, 1879, is a part of every contract made by a carrier which issues a receipt or bill of lading in this state, and overrides any provision or condition in the contract inconsistent therewith. Heil v. Railroad, 16 Mo. App. 363 ; Or ay croft v. Railroad, 18 Mo. App. 489; Baker v. Railroad, 34 Mo. App. 98.

<p>Common Carriers: limitation of liability. Notwithstanding the statute (R. S. 1889, see. 944) a common carrier may agree to carry goods to the terminus of its own route only, and stipulate for a cessation of its liability as a common carrier beyond that point.</p>

<p>Error to the Knox Circuit Court. — Hon. Ben. E. Turner, Judge.</p>

<p>Appeal from the Montgomery Circuit Court. — Hon. E. M. Hughes, Judge.</p>

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

— Hon. John Gr. Weak, Judge. The mortgage should have been admitted in evidence and should have gone to the jury to be considered by them. Thompson on Trials, sec. 1453. It is universally held to be the true doctrine that the identity of property described in a mortgage is a question of fact for the jury, and parol testimony is admissible in aid of the instrument.

<p>Husband and Wife: liability for necessaries. A wife is not personally responsible for a debt contracted by her husband for necessaries for herself and family ; nor can the rents of her realty accruing after the husband’s death be subjected to the payment of such indebtedness.</p>

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

Louis City Circuit Court. — Hon. Lerot B. Valliant, Judge. (1) The grand lodge having confessed its liability, and paid the fund into court, the sole question is, what did Dr. Sater, viewed in the attitude of a testator, intend; and this is to be determined from a consideration of the application, the laws of the order, certificate, and status of the two sets of children, and other surrounding facts. Snyder v. Ins. Co., 33 Mo. App. 64; Am. Ass’nv. Kir gin, 28 Mo.

— Hon. C. C. Bland, Judge. (1) The. court erred in admitting illegal and improper evidence over the objections of defendants made thereto at the time. The testimony introduced by the state, impeaching the character of defendants for chastity, was inadmissible and should have been excluded, and defendants’ objections thereto should have been sustained. State v. Clawson, 30 Mo. App. 139.

— Hon. • John G. Wear, Judge. The finding of the court is against and contrary to the evidence in the case; the evidence is that the attachment was levied on the property in controversy before the mortgage was filed for record ; so, as to the plaintiff, the mortgage was invalid and an absolute nullity under section 5176 of the Revised Statutes of Missouri. Rawlings v. Bean, 80 Mo. 614, 619, and cases cited. There is no error in this record.

— Hon. E. M. Hughes, Judge. (1) Defendant did not put plaintiff upon proof of its incorporation as the statute requires. R. S. 1889, sec. 2186. Besides, appellant having dealt with respondent as a corporation, is estopped from denying its corporate existence, and proof of such fact was, therefore, wholly unnecessary. Gas Co. v. City, 11 Mo. App. 55; 84 Mo. 202; Broadwellv. Merritt, 87 Mo. 95.

— Hon. É. A. Seat, Special Judge. (1) A special judge agreed upon by the parties to try the cause of action has the same power and authority of a regular judge, and his authority continues until a full and complete determination of the case, and he was judge of the circuit court for all the purposes of the case; so says Judge Black.

— Hon. Thomas H. Bacon, Judge. (1) The court erred in the instructions given for the state. The first instruction assumes that the fact that Iiagist had sowed a crop of wheat on defendant’s land entitled Hagist to the exclusive possession of the land. The relation of the parties to and the possession of the land ought to have been submitted to the jury-under the evidence. Bush v. Bush, 89 Mo. 360.

<p>1. Justices’ Courts : attachment proceeding : incorporation of STATEMENT OF CAUSE OF ACTION IN AFFIDAVIT FOR ATTACHMENT. While the statute contemplates that, in an action by attachment before a justice of the peace, the affidavit for attachment and the statement of the cause of action should be separately made and filed, that practice is not essential to the jurisdiction of the justice, and Iris jurisdiction will attach where the statement of the cause of action is incorporated in the affidavit.</p> <p>3.--: SUFFICIENCY OF STATEMENT OF CAUSE OF ACTION. The statement of the cause of action in this suit is considered and held sufficient for jurisdictional purposes.</p>

— Hon. E. M. Hughes, Judge. The testimony of the several witnesses offered by the defendant as to the effect of a fire on meadow lands is admissible. It is a proper matter for expert testimony. Rogers on Expert Testimony, secs. 10, 111, and authorities there cited; 1 Greenl. Ev., sec. 440; Eyerman v. Sheehan,- 52 Mo. 221; White v. Stoner, 18 Mo. App. 540; Railroad v. Wright, 115 Ind. 378; Leopold v. Van Kirk, 29 Wis. 548; Curtis v. Railroad, 18 Wis. 327.

<p>1. Practice, Appellate: right of respondent to assign errors. A respondent has no right to assign errors in the appellate court. Held, accordingly in this cause, which was an action of unlawful detainer, wherein the plaintiff recovered judgment, but the trial court failed to render judgment for double the rental value of the premises, that the error could not be corrected upon an appeal by the defendant.</p> <p>2. Practice, Trial: amendment. Held, in the course of discussion, that the trial court had power to correct the judgment after the term of its rendition, if it appeared from matters of record that the entry of the proper judgment had been directed, and that the error made in entry was a mere misprision of the clerk.</p>

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

Louis City Circuit Court.— Hon. Lekoy B. Yalliant, Judge. (1) The name is a means of identity. A party who is served by a wrong name, knowing he is intended as the defendant, is bound by the judgment. Parry v. Woodson, 33 Mo. 347. (2) An order of publication intended to notify Aaron Weisberger is valid, if directed to “A.” Weisberger, that being the name by which he is usually and commonly known in the community. Steinmann v. Strimple, 29 Mo.

<p>Appeal from the Greene Criminal Court. — Hon. M. Oliver, Judge.</p>

<p>1. Landlord and Tenant: lien: waiver by mode op action. When the law creates a lien hi favor of a specific kind of indebtedness, and a claim for such indebtedness is inseparably commingled with a claim for indebtedness not entitled to the lien, the entire demand is reduced to the lower level and the lien is lost. Held, accordingly, that the lien created by the statute (R. S. 1889, sec. 6376 ) in favor of a landlord’s claim for rent cannot be enforced in an action for the recovery of one entire demand, both for the rent of the leased premises and for the board of the tenant by the landlord.</p> <p>3, -: ATTACHMENT POR RENT : DEMANDS REACHED BY GARNISHMENT. When process of garnishment is had under a writ of attachment issued under Revised Statutes, 1889, section 6384, for the enforcement of a landlord’s claim for rent, the rights of the attaching landlord are derivative from the tenant; contract rights, resulting from an agreement made between the landlord and the garnishee, cannot be enforced in such a proceeding, but must be enforced by a direct action between these parties.</p> <p>3. Practice, Appellate: garnishment. In this cause, a judgment against a garnishee by the trial court being merely reversed, and the garnishee having failed to apply in due time for his allowance in this court, the judgment of reversal was modified so as also to remand the cause, but only for the purpose of enabling the garnishee to obtain, in the trial court, an allowance for his defense in that court.</p>

Louis City Circuit Court. — Hon. • Daniel D. Fisher, Judge. In this state a vendor has alien for unpaid purchase money. Davis v. Lamb, 30 Mo. 441; Bledsoe v. Caines, 30 Mo. 448 :■ Davenport v. Murray, 68 Mo. 198. The lien exists where there is an exchange of properties instead of a sale. Pratt v. Clark, 57 Mo. 189; Pratt v. Eaton, 65 Mo. 160 ; Linville v. Savage, 58 Mo. 248 ; McMurray v. Brown, 91 U. S. 257. The bill states a cause of action. Bradley v. Bosley, 1 Barb.

<p>Municipal Ordinances: regulating the running oe railroad trains: judicial review. The manner of the exercise of a power expressly granted to a municipal corporation may be so unreasonable or oppressive as to call for judicial intervention. A fortiori is such the case, when the power is not expressly granted, but at best necessarily implied, because, in that case, the power cannot exceed the necessity which calls for the implication of it. And held that, under this rule and the facts of this case, an ordinance adopted by Marshfield, and prohibiting railway trains from running at a greater rate of speed than four miles an hour within the city limits, was invalid.</p>

<p>1. St. Louis Court of Criminal Correction: proceedings on recognizances. The St. Louis court of criminal correction exercises the dual function of an examining magistrate and of a trial court. In every case which it has the jurisdiction to try, it may take the recognizance of the accused for his appearance, and declare a' forfeiture thereon, and award execution on the forfeiture, in like manner and with like effect as the St. Louis criminal court. In other cases, to-wit, in cases of felony, it can act as examining magistrate only, take such recognizance, and, m case the accused fails to appear at the time specified, may enter a default against him, but thereon it must certify the recognizance with the record of such default to the St. Louis criminal court.</p> <p> Per Thompson, J., dissenting: </p> <p>2. -:-. Even in case of felony, wherein the judge of the St. Louis court of criminal correction acts in open court as an examining magistrate and takes a recognizance for the appearance of the defendant, that court may not only declare a forfeiture of the recognizance but also award execution thereon ; it need not send any part of its record to another court for proceedings on the default.</p>

<p>Practice, Trial: filing of bill of exceptions. When the time for the filing of a bill of exceptions is extended by the trial court beyond the term, the judge of the trial court cannot, after the expiration of the period of extension, allow further time for the filing of such bill.</p>

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

<p>Practice, Trial: place op suit. When both the plaintiff and the defendant are non-residents of this state, suit upon a transitory cause of action may be brought by summons in any county in which the defendant is found.</p>

<p>Justices’ Courts: garnishment : right of plaintiff to file reply out of time. In a garnishment proceeding before a justice of the peace, the plaintiff must deny the answer of the garnishee, if he desires to do so, within the time provided by statute, and, if he fails to make such denial before the justice, he is not entitled as a matter of right to make it in the circuit court on appeal. And held in the case at bar, wherein no such denial was filed before the justice, and the garnishee was, therefore, entitled to a discharge upon his answer, that it was not error for the circuit court on appeal to refuse the plaintiff leave to file a denial, or to strike out such denial after leave had been given to file it.</p>

<p>1. Pleading: marshaling of assets. In an action involving 'the priority of two liens against the same property, and not brought to marshal securities, there cannot be a decree requiring the holder of the first lien to first resort to other property, covered by his lien but not by the junior lien, especially when it does not appear that such other property is sufficient to satisfy such first lien.</p> <p>2. Married Women : charging separate estate : effect of decree. A charge upon the separate estate of a married woman by virtue of the general rules of equity takes effect only from the date of the decree establishing the lien ; and, therefore, it does not take priority over a mortgage of such separate estate made in good faith prior to the rendition of the decree, but after, and to a person chargeable with notice of the institution of suit for the recovery of the decree.</p>

<p>Practice, Appellate : failure to file transcript. The failure of an appellant to file a transcript in time will not be excused, because the official stenographer was too busy to transcribe the evidence.</p>

— Hon. T. H. Bacon, Judge.. This action is based upon section 4512 of the Revised Statutes of 1889, incorporated by the revisers from the statutes of 1879.

<p>.Practice, Appellate: weighing the evidence. Where there is substantial evidence in support of the verdict in an action at law, the finding will, upon appeal, be treated as conclusive.</p>

— Hon. J. H. Slover, Judge. (1) The demurrer to the evidence ought to have been sustained. The condition of the bond was that the $6, U00 loaned on the property should all be used in the erection of “four dwelling-house buildings,” so that the actual cost of the construction of said buildings should be $6,000. A breach of this condition was alleged. The only evidence offered by plain tifE was that such houses could be built for a less sum.

— Hon. D. A. DeArmond, Judge. (1) The husband and wife are jointly liable for damages growing out of the torts of the wife committed in the husband’s absence and without his consent. Munter v. Bande, 1 Mo. App. 489; Merrill v. The City of St. Louis, 12 Mo.

— Hon. Chas. W. Sloan, Judge. (1) The writ of error in this case, which was dated on March 22, 1890, was not issued within sixty days after the judgment for divorce was rendered, which was on January 18, 1890. And this court is prohibited by statute from either reversing, annulling or modifying said judgment. R. S. 1889, secs. 4510, 2275; Judge v. Judge, 38 Mo. 159; Salisbury v. Salisbury, 92 Mo. 683; Childs v. Childs, 11 Mo. App. 395; Nave v. Nave, 28 Mo.

— Hon. Chas. W. Sloan, Judge. Statement by tbe court. Defendant owned one hundred and forty-two acres of land, through which a railroad right of way, one hundred feet wide, existed, the right of way being obtained and graded for the track in 1872, but no rails had been laid. He sold it to plaintiff in 1882, for $35 per acre including the one-hundred-foot strip. He made a deed to plaintiff and plaintiff executed notes and deed of trust to him for the purchase money.

— How. Richard Field, J udge. (1) The writ of attachment is not invalid because the signature of the clerk of the court was omitted therefrom. The testee of the writ is complete, and the seal of the court was affixed thereto. Jett v. Shinn, 47 Ark. •874; Jump v. Baton's Creditors, 35 Mo. 193; Ligare v. Railroad, 76 Cal. 610 ; Burton v. Pettibone, 5 Yerger, 443; Boyd v. Fitch, 71 Ind. 306; State v. Davis, 73 Ind. 359 ; Gamble v. Tralien, 3 How.

— Hon. M. GMcGregor, Judge. (1) The court erred in excluding the evidence ■offered by plaintiffs that McOanse, Cotter & Co., as their agents, had no authority to sell their machines on any terms other than those contained in the printed -warranty furnished them and shown to defendants. Machine Go. v. Grow, 30 N. W. Rep. (Iowa) 609. (2) 'The first and second refused instructions, asked by plaintiffs, should have been given.

— Hon. Andrew Ellison, Judge. (1) The court should have sustained the demarre!. The defendants were only charged with circulating a petition to be presented to the district clerk, asking him to give the notice required by law that a proposition would be submitted to be voted on at thé annual school meeting to divide the district by cutting off the strip as charged in the petition. They were only petitioners in this instance, and their right to petition cannot be disputed.

— Hon. James Gibson, Judge. (1) Plaintiff’s instruction, numbered 1, is clearly erroneous.

— Hon. E. L. Edwards, Judge. (1) The first and second instructions for the plaintiff should not have been given. There is no evidence whatever in support of that portion of these instructions which permits the jury to allow the plaintiffs damages, on account of interference with the plaintiffs’ use of the premises, or the prosecution of their business thereon.

— Hon. E. L. 'Edwards, Judge. (1) John A. Derkum, through his agent, Maria S. Derkum, then acting for him, in respect to the deed of trust, had such notice as would put a reasonable man on inquiry as to the fact that the land in question had been sold to Pauline Derkum, and had not been paid for, and the court erred in holding otherwise.

— ITon. R. H. Field, Judge. (1) The damages are stipulated in the contract and this action cannot be sustained. The clause, “but for this cause this contract shall not cease to be operative as between the parties hereto,” makes it other than an option contract, but does not change the effect of the fact that the damages are agreed upon or stipulated. Morse n. Rathburn, 42 Mo. 594 ; 1 Sutherland on Damages [Ed. 1884] pp. 479, 504, 513, 519.

— Hon. Jas. M. Sandusky, Judge. (1) There being no evidence -that the city bnilt or controlled the viaduct, the case should not have been submitted to the jury. Bishop v. Centralia, 49 Wis. 669 ; Hemphill v. Boston, 8 Cush. 195; Hurgan v. Lowell, 3 Allen, 398 ; Landis v. Hamilton, 77 Mo. 563; Brink v. Collier, 56 Mo. 168-9.

— Hon. E. L. Edwards, Judge. ' (1) The $400 absolute dower allowed to widow, under sections 105, 107 and 108, Revised Statutes, was intended to be allowed and paid out of the personal estate of the deceased, and not out of his real estate. .Drowry n. Bauer, 68 Mo. 155. The facts in this case are in all respects similar to those in case of Jewell v. Knettle, 39 Mo. App. 262.