Volume 45 — Missouri Appeal Reports

— Hon. Richard Field, Judge. (1) The amendment to the petition making the children of William A. Wilson parties defendant was proper. Modern practice favors such amendments, or will render the proceedings effective — new parties may be added. Lewis on Eminent Domain ; In re Railroad, 26 Hun, 194; Wood o. Commissioners, etc., 122 Mass. 394; Fitch v. Stevens, 2 Met. 505 ; Milholland v. Thomas, 7 Ind. 165; Russell v. Turner, 62 Me. 496 ; Railroad v. Carter, 85 Mo. 448.

— Hon. Richard Field, Judge. (1) The motion in arrest of judgment should have been sustained, because: The petition is fatally defective in this: First. The publication charged to be defamatory has no reference to the extrinsic facts pleaded by way of inducement, and the petition does not contain any averment that the publication complained of was of and concerning the extrinsic facts pleaded. Thisis traversable matter that must be pleaded.

— Hon. Richard Field, Judge. (1) Under the written agreement, made at the time the note was made, considered with the note itself, the note became due October 20, 1888, and was payable then unless defendant signed it, as security, in which event it was to become due January 1, 1890.

— Hon. Charles W. Sloan, Judge. (1) In January, 1889, a married woman’s contract, under the laws of this state, was absolutely void, unless she was possessed of a separate estate at the time of making same. Bank v. Collins, 75 Mo. 281; Arnold v. Brockenbrough, 29 Mo. App. 637, 638; Lee v. Cohick, 39 Mo. App. 675.

— Hon. Chas. W. Sloan, Judge. (1) There is a marked and radical distinction between a garnishment on execution and a garnishment on attachment. Drake on Attachment [6 Ed. J secs. 692, 693; Railroad v. Alvey, 43 Ind. 180.

— Hon. Rudolph Hirzel, Judge. (1) The instruction, numbered 1, as asked by-plaintiff, should have been given ; it stated the correct rule for the measurement of damages. Walker v. Borland, 21 Mo. 289: Watson v. Harmon, 85 Mo. 443; Stevens v. Springer, 23 Mo. App. 375, 385; State v. Bacon, 24 Mo. App. 403. The plaintiffs under the above cases might properly have asked an instruction for punitive damages. The instruction asked by plaintiff was authorized and proper.

— Hon. G. D. Burgess, Judge. (1) Defendants, by their notes sued on, made an unconditional promise to pay, and the court was. not warranted in making another, or in anywise changing the written contract entered into by the parties. Snyder v. Murdock, 51 Mo. 175; Walker v. Owen, 79 Mo. 56B; Weaver v. Lapsley, 42 Ala. 601; s. c., 94 Am. Rep. 671; Burnley v. Tufts, 66 Miss. 49; s. c., 5 S. W. Rep. 627; Tufts v. Griffin, 12 S. E. Rep. 68 ; Barrotes v. Anderson, 3 Cent.

— Hon. Gf. D. Burgess, Judge. (1) Appellant says that the change of venue should have been granted as prayed for.

— Hon. Gr. D. Burgess, Judge. (1) The original information charged an offense known to the law, and was sufficient in form. Laws, 1887, p. 179, et seq.; State v. Searcy, 39 Mo. App. 393 ; State v. Hutton, 39 Mo. App. 410. (2) An information may be amended in matter of form or substance at any time by leave of court before trial. R. S. 1879, sec. 1766. (3) The amended information charged an offense in the language of the statute, and was sufficient.

— Hon. Gf. D. ‘ Burgess, Judge. (1) The evidence did not authorize a reformation of the contracts. Brohammer r. Boss, 17 Mo. App. 1; Modrell r. Riddell, 82 Mo. 31; 2 Pomeroy’s Equity, secs. 870, 894; Story on Agency [4 Ed.] sec. 127. (2 ) The defendant is not bound by the representation of the agent beyond his authority when authority is disclosed.

— Hon. Gr. I). Burgess, Judge. (1) It was also error in the trial court to sustain the interpleader’s objection .to the question asked defendant Hainds, “Whether, at' the time of his transaction with Wheeler about the stock of goods, the debts of the firm of Cash & Hainds could have been collected by process of law.” .

<p>1. Trial Practice: demurrer to evidence. The evidence in this,' case found abundant to sustain the claim made in the petition ;i; and it is accordingly held that a demurrer to the evidence was!! properly overruled. ;</p> <p>2. -: BURDEN OP PROOF AND PREPONDERANCE OP EVIDENCE : instruction. An instruction that the burden of proof is upon the plaintiffs to establish defendant’s liability by a preponderance of the testimony is properly refused, when couched in the unexplained legal terms “burden of proof” and “preponderance of evidence.”</p> <p>3. --: PREPONDERANCE OP EVIDENCE : SCOPE OF SERVANT’S AUTHORITY : PLEADING AND EVIDENCE : INSTRUCTION. An instruction that the jury must believe from a preponderance of the testimony that plaintiff.’s injuries were caused by the wrongful acts of defendant’s servants which was within the scope of their authority was properly refused in this case as there was no issue as to-acts complained of being in the scope of the servant’s authority presented either by the pleadings or the evidence.</p> <p>4. New Trials : newly-discovered evidence : diligence. Before a new trial will be granted upon the ground of newly-discovered evidence, there must be a showing of honest endeavor and diligence to procure and produce the testimony when the trial was-had in the first instance.</p> <p>5. --:--: CHANGING VERDICT : CHARACTER OP NEW WITNESS. In passing on a motion for new trial on the ground of newly-discovered evidence, the trial court can investigate the character and credibility of the newly-found witnesses. If it should be clear that the newly-discovered evidence would have no effect upon another verdict, the motion should be denied ; and, if it be doubtful how the evidence would affect the result, the motion should be sustained.</p>

— IIon. v Henry M. Ramey, Judge.. (1) One of these “essentiáls,” with which there must be a strict compliance, is the furnishing a good and sufficient bond. The bond must be signed by the plaintiff, or some one for him, as principal, and without such signature the signing of the security alone is ineffectual, and the bond is a nullity.

<p>Information: affidavit : variance. An affidavit against defendant did not state that he exhibited a weapon in the presence of anyone. The information did so state naming the persons. Held, while an affidavit need not be so formal and definite as the information, yet it should state the elements of the offense , and, if it is insufficient as such, it is not cured by the information.</p>

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

<p>1. Practice, Trial: judgment : constructive service. When the defendant in an action is served by publication only, there cannot be a personal judgment against him.</p> <p>3.--:--. A judgment entry must dispose of the case as against all of the defendants.</p>

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

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

<p>1. Criminal Law: arraignment oe the defendant. Even in a prosecution for a misdemeanor it must affirmatively appear from the record that there has been an arraignment of the defendant- and plea by him, before the trial.</p> <p>3. -: APPEAL FROM void judgment. The defendant in a criminal proceeding may appeal from the judgment of a justice of the peace, which is void because of an omission to arraign him, and on such appeal the circuit court may arraign him and have his plea entered, and then proceed to retry the cause anew ; but the circuit court cannot affirm the void judgment of the justice.</p>

— Hon. John. L. Thomas, Judge. (1) There was no evidence that the defendant cut and removed, or caused to be cut or removed, any part of the timber described in plaintiff’s petition, and there was no evidence that plaintiff was in the actual or constructive possession of the land from which the timber was alleged to have been cut and removed. Cochrane ■v. Whitesides, 34 Mo. 417; Brown v. Hartzell, 87 Mo. 564; Lindenbower v. Bentley, 86 Mo. 515; Hill v. Million, 9 Mo.

<p>1. Bailroads: effect of failure to plead municipal ordinance. The violation of a municipal ordinance limiting the rate of speed of a railway train is evidence of negligence on the part of the railway company, when the ordinance is not pleaded, though in such case it does not amount to negligence per se.</p> <p>---: INJURY TO STOCK RUNNING AT LARGE IN VIOLATION OF statute. When the owner of stock knowingly permits it to run at large in violation of statute, and it is injured by a railway train at a place where the railway company is not under legal obligation to fence its road, the railway 'company is responsible to the owner, if the injury was caused by the gross, wanton or wilful negligence of its employes, but not if such injury resulted merely from the violation of a municipal ordinance limiting the rate of speed of railroad trains.</p> <p>8. Instructions: admissions by party as a witness. If such owner, when called as a witness by the railway company, testifies that he knew his stock was running at large, his knowledge should be treated as a conceded fact, and should not be submitted to the jury as matter in issue.</p> <p>Per Thompson, J.:—</p> <p>4. Railroads: injury to stock running at large in violation of statute. Although the owner of stock knowingly permits it to run at large in violation of statute, he may recover for an injury to it by a railway train, if such injury was due to the negligence of the employes of the railway company in running the train; and the railway company is thus liable, whether such negligence was gross or wanton, or consisted only of the want of ordinary or reasonable care, c</p>

<p>1. Mechanics’ Liens: splitting cause of action. If a subcontractor does work and furnishes materials, under one general contract with the original contractor, upon two buildings situated upon contiguous lots, he is not restricted to one lien therefor, but may file a separate lien against each building ; the statute ( R. S. 1889, sec. 6729), allowing him in such case to file one lien against both buildings, does not render that procedure mandatory.</p> <p>2. --: special contract : action of quantum meruit. Notwithstanding that a mechanic has a special contract for work done by him, his action need not be upon the contract, but may be for the reasonable value of the work, in which case, however, his recovery for work embraced in the contract must not exceed the contract price.</p> <p>3. -: PROOF OF SERVICE OF NOTICE OF LIEN : EFFECT OF AMENDMENT OF statute . At the time of the service of the notice of a mechanic’s lien, required by statute, the fact of such service could not be established by the mere official return of the sheriff, but, while an action on the lien was pending, and before the trial, the statute was amended so as to render such return evidence of service. Held that the amendment pertained only to the remedy; that its enactment imposed no new obligation or duty on the defendant, and did not take away from him any vested right; and that it applied, as a new rule of evidence, to the service of the notice prior to its enactment.</p> <p>4. Instructions: measure of damages. The measure of damages is a question of law, and, if the court instructs the jury on the question, it must do so properly and fully. And held, under this rule, in an action of quantum meruit, wherein the suit was brought for work done under a special contract and for extras, and the verdict exceeded the contract price for the work done under the contract, that an instruction to the jury to assess the damages “at such sum as they may find plaintiff is entitled to recover,” was fatally defective.</p> <p>-5. Mechanics’ Lien: proof of account of subcontractor. Semble that in a mechanic’s lien suit, instituted by a subcontractor against both the owner of the land and the original contractor, the subcontractor should be required to prove the items of his account against both of the defendants, unless both made default.</p>

<p>1. Attachment: levy upon property held under a prior levy. If personal property be levied upon under a writ, it may still be subjected to further levies, either by the same or another officer, each levy being made subject to the prior levy or levies.</p> <p>2. -: -: method oe levy. If the subsequent levy is made by the same officer as the first, no overt act is required of him in making it; he need only make the requisite return of it on the writ under which it is made. If the subsequent levy is made by another officer, it is made by notifying the officer in possession of the property of the making of it; nor need the return specify or describe the property ; it is sufficient to refer to the property as all which is in the custody of the officer in possession.</p> <p>3. -: -: LIABILITY OF OFFICER IN POSSESSION WITH RESPECT TO subsequent LEVY. When the subsequent levy is made by another officer than the one in possession, the latter should, in his return, show what was done with respect to such subsequent levy, and is liable for the damages occasioned if he wrongfully ignores it. And held that a constable and his securities were liable on his official bond where he, at different times, levied a number of writs in his hands without regard to, or mention of, an intermediate levy made by a sheriff, and such intermediate levy was, in consequence, ignored in the application of the proceeds of the property by the successor in office of such constable.</p>

<p>1. Justices’ Courts: sufficiency of .statement : action founded on negligence. In an action instituted before a justice of the peace against a railway company for the communication of fire by sparks from an engine, it is not essential to allege negligence on the part of, the railway company; the ordinary rule applies, that it is essential only that the statement of the cause of action should advise the defendant of what he is sued for, and be sufficiently definite to bar another action for the same subject-matter.</p> <p>2. Railroads-; burden of proof. If, in such action, it is shown that the fire was communicated by sparks from an engine of the railway company, a prima facie case of negligence is made out.</p> <p>8. Practice, Appellate ; weight of evidence. This court will not review the weight of evidence in an action at law, when there is substantial evidence in support of the verdict.</p> <p>4. Justices of the Peace: jurisdiction : injury to land. The fact, that ah action for an injury to land affects the inheritance, does not deprive a justice of the peace of jurisdiction. His jurisdiction, within the prescribed pecuniary limits, extends to all actions founded on torts, the only exception being actions in •which the title to land comes into question, and is in issue.</p>

<p>Gifts : delivery. In order to give validity to a gift, there must be such a delivery of the subject of it as works an immediate change in the dominion of the property.</p>

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

<p>Fraudulent Conveyances: instructions. An instruction to the jury that an insolvent debtor may lawfully prefer one creditor over the others is erroneous, if the jury are not further told that the preference must have been made solely for the purpose of paying an honest debt, and not with the intention of hindering, delaying or defrauding other creditors. This qualification need not, however, be stated in the same instruction with the general rule, but may be stated separately, it being sufficient if all the instructions, taken together, properly declare the law.</p>

<p> Error to the Cape Girardeau Circuit Court. </p> <p>The petition charges fraud specifically, and these-charges stand admitted under the pleading, while the-executors have released the estate of the testator from the payment of a record debt, and are now enjoying the property of the estate. Courts of equity have an original, inherent and independent power to relieve against-every species of fraud, and should relieve in this case. Kerr on Fraud, p. 43; 1 Story on Equity [8 Ed.] sec.. 186.</p> <p>Plaintiff, being neither a creditor, heir, devisee nor legatee, and having no interest in the estate of Frank C. Kreiger, deceased, cannot maintain this suit. R. S. 1889, sec. 280. Plaintiff’s petition states no fraud and no facts sufficient to constitute a cause of action. Defendant, Henry C. Yoshage, as administrator of the estate of Prank C. Kreiger, had no power to bind said estate by his note or by his false representations ; and, by giving his personal note to the guardian of Bernard Bitterer with plaintiff as surety, he bound himself individually and did not attempt to bind said estate. Stirling v. Winter, 80 Mo. 141; Mfg. Go. v. Montgomery, 74 Mo. 101; Rittenhous v. Ammerman, 64 Mo. 197 Story on Prom. Notes [7 Ed.] sec. 63; Story on Agency, sec. 280; 1 Parsons on Notes & Bills, p. 161. The guardian of Bernard Bitterer, by neglecting to have his claim probated against the estate of Prank C. Kreiger, and by accepting the individual note of Henry C. Yoshage and his sureties in payment of his claim, surrendered his right of action against said estate. Ba'uer v. Gray, 18 Mo. App. 164, 173.</p>

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

<p>1. Administration: law and equity. The trial of objections to items of the final settlement of an administrator is governed by the rules of chancery and not by the procedure at common law, and questions of fact are, therefore, open to review by this court upon appeal thereto.</p> <p>2. -: chattel mortgage. Personalty belonging to the estate of a decedent was subject to two chattel mortgages, but neither mortgage debt was allowed against his estate. The one mortgage and the debt secured by it were purchased by the widow of the decedent through the administrator, who advanced the money for the purchase; as to the other mortgage and debt, there was an agreement between the mortgagee and the administrator that the latter should sell the property at private sale and pay the debt out of the proceeds, which was to the advantage of the estate, and was done. The administrator on final settlement charged himself with the entire proceeds of the sale. Held that he was entitled on such settlement to credit for the amount paid in satisfaction of the latter debt, but not for the amount of the debt acquired by the widow.</p> <p>3. --: final settlement : allowance for legal services. The final settlement of an administrator was contested. Some of the objections thereto were sustained and others were disallowed. Held that the administrator was entitled to have a reasonable allowance or credit for attorney’s fees for the defense of his final settlement.</p> <p>4. Practice, Appellate : second appeal : res adjudicata. A proceeding in equity relating to the administration of the estate of a decedent was dismissed by this court on the grounds that it was collusive and that the facts alleged in the petition had not been established, but this court in its opinion suggested that the equities of the parties under the facts shown could be worked out upon the final settlement of the estate in the probate court, and the course suggested was taken. Held by the court, upon appeal from such final settlement, that this court had in the former proceeding (38 Mo. App. 289) made no finding of facts except in so far as was necessary to the disposition of the case then before it, and that, to that extent only were the facts not subject to review in the subsequent proceeding. But held by Thompson, J. (dissenting), that the language used by this court on the first appeal was the deliberate expression of the opinion of the court as affecting the rights of the parties, all of whom were then before the court, and should be treated as conclusive in the subsequent proceeding especially since this was necessary to prevent injustice.</p>

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

Louis City Circuit Court. — Hon» Daniel D. Fisher, Judge. (1) The petition fails to show any legal capacity in plaintiff to sue upon the alleged causes of action, which admittedly belong primarily to the Exchange corporation itself. 3 Pomeroy Eq. Juris., pp. 10, 11; 1 Morawetz on Corp., sec. 240; Angelí & Ames on Corp.,. sec. 312; Thompson on Liability of Officers & Agents-of Corp., p. 382, et seq.; Hawes v. Oakland, 104 U. S-450; Slattery r>. Trans.

<p>Attachment: levy on books. The statutory levy on boobs of account of a defendant impounds whatever debts and rights of action, present or prospective, are exhibited by the accounts contained in the boobs, and vests in the receiver in charge of the-boobs under the levy whatever rights of action, legal or equitable, such defendant would have had, if he had continued in the possession of the books ; the receiver in such case stands in the shoes of the debtor, as regards the rights of action, just as a receiver in equity does. Reid, accordingly, that, where the boobs levied upon, -showed the transfer of notes and accounts as collateral security, the levy upon them, when perfected by notice from the receiver to the transferee, constituted a levy upon those notes and accounts subject to the lien of the transferee.</p>

<p>1. Contracts, Implied: summoning a physician. The general rule is that, where a person requests the performance of a service, and the request is complied with and the service performed, the law raises an implied promise to pay the reasonable value of the services; but this rule does not obtain, where a person requests a physician to perform services for a patient, unless the relation of that person to the patient is such as raises a legal obligation on his part to call in a physician and pay for the services.</p> <p>2. Corporations: liability to surgeon summoned to attend an employe. An employe of a corporation was injured while at work, and thereon the superintendent of the corporation caused a. surgeon to be summoned to attend him. Held, that the corporation was not liable for the services of the surgeon, in the absence of evidence that its superintendent had been authorized by it to' summon medical aid in the case of emergency.</p>

—Hon. E. M. Hughes, Judge. At common law, while no action to recover a legacy would lie without the assent of the executor,, such assent might be compelled in equity, provided there were assets which were not needed for the payment of debts, the executor being a mere trustee for the benefit of the legatee. Preston on Legacies, p. 49; Lark v. Linstead, 2 Md. Ch. 162; Wind v. Jekyll, 1 P. Wms. 575; Story’s Eq. Jur. [15 Ed.] secs. 540, 589, 593; Les-sing v. Vertrees, 32 Mo. 431.

<p>The Evidence Considered and held to establish a payment of notes by the maker to the payee after the latter had transferred the notes for value and the maker had notice of the transfer, and, therefore, to constitute no defense to an action on the notes by the transferee against the maker.</p>

<p>Subscriptions: effect of misrepresentations to subscriber. The defendant, and others, signed a subscription paper, by which each agreed to pay a specified amount towards the erection of an opera house, that paper reciting as a ¡consideration that one H. would erect the opera house within specified limits. The subscription of the defendant was obtained by persons, who circulated the subscription paper, through the representation that the opera house would be erected upon a certain lot, which was not done, but there was no evidence that H. had authorized those persons to make any representation touching the location of the opera house. Held, that this unauthorized misrepresentation did not release the defendant from his subscription.</p>

— Hon. X). A. DeAkmond, Judge. (1) Tlie sheriff, when levying in the country upon land in which plaintiff has a homestead, in an attachment proceeding, is bound to only ascertain if the value of such tract of land is in excess of $1,500. R. S. 1879, sec. 2689; State ex rel. Sligo, etc., v. Mason, 15 Mo. App. 141; s. o., 88 Mo. 222. (2) The law did not require the sheriff to apprise the attachment defendants of their right, if any, to hold property exempt.

— Hon. J. M. Davis, J udge. (1) The answer in this case is a general denial and puts in issue the facts alleged in petition of inter-pleader. The alleged judgment of Swiggett et al. was not offered in evidence, and there was nothing before the court to show the amount or date of said alleged judgment, neither were the alleged garnishment papers against Hale Standley offered in evidence.

— Hon. I. W. Boulware, Special Judge. ’ The plaintiff having been in the actual possession of the land under color of title for a number of years can maintain trespass, even against the legal owner who has never been in possession. Ware t>. Johnson, 55 Mo. 500 ; Chapman v. Templeton, 53 Mo. 463; Fitch v. Cosser, 54 Mo. 267; Watts v. Louris, 81 Mo. 236 ; Lincleoiboioer v. Bentley, 86 Mo. 575; Brown ». Hartzell, 87 Mo. 564.

— ITow. E. L. Edwards, Judge. (1) The court erred in excluding the guaranty writing. The fact that it was addressed to Story did not constitute a sufficient ground for its exclusion. /. .1 undisclosed principal can sue in his own name. Bank v. Jennings, 18 Mo.

— Hon. John W. Henry, Judge. (1) The mechanics’ lien was void on its face, because it said the houses — four in number — were on five lots, and did not say they were contiguous; and for the further reason that it did not allege that the materials were furnished under one general contract, and should not have been admitted in evidence. Under section 6705, Revised Statutes of 1889, a lien is not given on more than one lot. Fitzgerald v. Thomas, 61 Mo. 499.

— Hon. John W. Henry, Judge. (1) The court erred in submitting the case to a. jury. It should have been tried by the court. 2 R. S., sec. 6715. (2) The court erred in rendering j udgment against answering defendants, and subjecting the property to a lien, as Hillyer, the -contractor, was never under the jurisdiction of the court, never having been duly served with process, nor made any appearance whatever in the case.

— Hon. Henry M. Ramey, Judge. The theory upon which the defendants’ attorneys demurred to the petition, and upon which the court sustained the demurrer, is that the petition is based only upon the non-payment of a draft, and that it is to be regarded as merely founded upon commercial paper, and to be governed by the rules relating to that, and that alone.

— How. Oliver M. Spewoer, Judge. The court should have given the seventh instruction of the defendant as asked. To give what he did of it, and strike off the balance, was to deny what the supreme court of this state have many times asserted, viz. : That surface water may even be turned upon the servient land without liability. Stewart v. City of Clinton, 79 Mo. 612 ; Rychlicki v. City of St. Louis, 98 Mo. 501; Jones v. Railroad, 84 Mo. 153 ; Imlerv.

— Hon. Henry M. Ramey, Judge. By section 5178, Revised Statutes, 1889, in making the change of possession, regard must be had to the situation of the property, and “a reasonable time is a' question of fact for the jury.” Lesser v. BoeTchoff, 38 Mo. App. 445 ; Dyer v. Balsley, 40 Mo. App. 559; Organ Co. v. Pettit, 34 Mo. App. 536; State to use v. Heilman, 20 Mo. App. 304.

— Hon. Oliver M. Spencer, Judge. (1) In the face of the foregoing provisions of the contract entered into by the defendant for the construction of this sewer, it will not do for him to claim that the plaintiff was in duty bound to protect its tracks at its own expense. (2) Again, the weight of passing engines and trains upon an unsupported track over the sewer would be liable to crush it.

— Hon. Chas. W. Sloan, Judge. ¡It thus conclusively appears from plaintiff’s own pleadings and evidence, that all these services were rendered by him before he became of age. This being true, his mother would be entitled to the wages sued for in this action, under the rulings of the appellate courts of this state. Matthews v. Railroad, 26 Mo. App. 83; Industrial Home v. Fritchey, 10 Mo. App. 344; Gtiion v. Guión, 16' Mo. 52.

— Hon. Richard Field, Judge. (1) The court ought to have struck out the amended petition. Charter, secs. 15, 23, 24, 29, 31; Session Laws, 1873, p. 364; Session Laws, 1875, p. 294, secs. 4, 7; R. S. 1889, sec. 978, p. 304, and p. 424, sec. 1465; Eyerman v. Blakesley, 13 Mo. App. 407; Eyerman v. Scollay, 16 Mo. App. 498; Weber v. Schergens, 28 Mo. App. 587; 1 Dillon Mun. Corp. [ 2 Ed. J sec. 332, p. 345 with note; Pendergastv. Richards, 2 Mo. App. 187.

— Hon. Richard Field, Judge. (1) The court should have allowed defendant to withdraw from the stipulation. Especially so, after plaintiff filed an amended petition in the test case, Galbreath v. Newton. Howe v. Lawrence, 22 N. J. Law, 106; Becker v. Lamonte, 13 How. Pr. 23 ; The Hiram, 1 Wheaton, 440; 3 Peer Williams, 342 ; Molin v: Kinney, 1 Cain, 117; 1 Hoffman, Ch. Pr. 28, 29; Holly v. Young, 68 Me. 215; 1 Grreenl. Ev. [13 Ed.] see. 206; Griffith r>.

— Hon. John R. Bothwell, Special Judge. The undisputed facts show that the consideration to the defendant was not only the furnished room, but the personal services of the attendant, together with supplying by plaintiff of the coal, water, toilet articles and all other such necessary supplies and conveniences, from which facts there arose between the parties in law the relation of lodging-house keeper and lodger, and not that of landlord and tenant as provided by the terms…

— Hon. Richard Field, Judge. The court erred in rendering judgment on said motion. It being the return term, the cause was not triable at that term. R. S. 1879, sec. 3514, p. 602. This section was in force at the time of the rendition of •said judgment. Section 2042, Revised Statutes, 1889, did not go into effect until November 1, 1889. R. S. 1889, sec. 6614, p. 1552. Summons being served thirty days before court, the case was triable at the first term. R. S. 1889, sec. 2042.

— Hon. J. M. Sandusky, Judge. The court erred in giving instructions, numbered 3 and 4, for the plaintiff, and numbered 4, of its own motion. First.

— Hon. J. M. Sandusky, Judge. (1) In the western states it is held that the owners •of lands bordering upon unnavigable lakes situate within congressional surveys own the bed of the lake to the center, as in the case of unnavigable streams. Gould •on Waters, sec. 85, p. 160; Ridgeway v. Ludlow, 58 Ind. 248 ; Edwards ¶.

— Hon. J. M. Sandusky, Judge. Under the provisions of the deed of trust, the legal title to the property was vested in the trustee. Jones v. Mack, 53 Mo. 147. By the terms of the deed of trust, possession of the property was delivered to the trustee, and the grantor therein took a lease back ; she thereby became a tenant of the trustee. Plaintiff, by his purchase at trustee’s sale, acquired the right of possession, and can maintain this action.

— Hon. E. M. Hughes, Judge. (1) The note sued on should have been admitted in evidence. Defendant did not deny the execution of the note, bnt denied that he signed it. The note might have been properly executed so as to have bound him, although not signed by him. R. S., sec. 6217; Rothschild v. Frensdorf, 21 Mo. App. 318. (2) Defendant’s checks admitted by him to be genuine were admissible evidence.

— Hon. Jno. A.. Hookaday, Judge. (1) The evidence discloses the fact that this allowance as a credit in the annual settlement was not only not properly made, but clearly showed that it was procured by fraud and fraudulent concealment, to the injury of the plaintiff, so that the case of Miller v. Vivian, 67 Mo. 247, is not applicable to the case at bar.

— Hon. Jno. A. Hookaday, d udge. ' (1) The demurrer to the evidence should have been sustained. The contract offered in evidence could at best be only construed as a license for Hubbard to cut certain tie timber; all that he did cut, the uncontradicted evidence is that he paid for. He was sued for a balance of certain timber alleged to have been sold him and for which he guaranteed so much money. The timber was never sold to him.

— Hon. Jno. A. Hockaday, Judge. • (1) The better doctrine now is that these statutes are highly remedial in their nature, and should receive a liberal construction. De Witt v. Smith, 63 Mo. 263; Oster v. Rabeneau, 46 Mo. 595 ; Putnam v. Ross, 46 Mo. 337; Phillips’ Mechanics’ Liens, sec. 379.

— Hon. W. A. Martin, Special Judge. (1) The trial court allowed the plaintiff to read in ' evidence a purported copy of the policy, after the defendant had disproved such loss and accounted for the original, and offered the same in court to be used as evidence. This was error; nor was it harmless error, but prejudicial to the defendant.

<p>Married Women: criminal costs. A married woman who becomes a prosecuting witness is liable for costs, and a judgment may be rendered against her as provided by the statute.</p>

— Hon. J. H. Sdoveb, Judge. (1) Where a party even innocently and by mistake misrepresents a material fact, upon which another' is induced to act, it is the same as a false assertion! knowingly made; or, if made by a party not knowing-whether it was true or false, it affords good ground for relief as a wilfully false assertion.

(1) The county court had no jurisdiction to hear the application for a dramshop license at the same term at which the petition was filed. The statute expressly provides that “said petition shall be filed in the office of the clerk of the county court, and by said clerk laid before the court at the first term thereafter.” R. S. 1889, sec. 4576.

— Hon. E. M. Hughes, Judge. (1) The case sets out two causes of action in one •count: First. An action for trespass and in;j ury to realty. Second. Por consuming crop of grass. This is error, and the court ought to have sustained an objection to the introduction of evidence.

— Hon. James W* Sandusky, Judge. (1) The court erred in refusing to grant the continuance applied for by defendant. (2) The court-erred in overruling the defendant’s objection to the admission of any testimony or evidence on the part of the state, on the ground that the information had no. indorsement thereon of the name of any witness whatever, for the prosecution. R. S. 1889, sec. 4057; State v. Roy, 83 Mo. 268.

— Hon. Chas. W. Sloan, Judge. (1) It is not averred in the application, nor shown in the evidence, that the probate court was in error as to-any fact connected with the domicile of Richard P. Harper. The error, if error at all, was one of law based upon undisputed facts, and error coram nobis will not lie to correct such errors.- Calloway v. Nifong, 1 Mo. 223; Ex parte Toney, 11 Mo. 661; Powell r>.

James M. Sandusky, Judge. The damages awarded are grossly excessive; the verdict is against the overwhelming weight of the testimony, and' was .plainly the result of passion or prejudice oh the part of the jury No candid person can read the record in this case and escape the conviction that the jury was actuated by passion or prejudice in the verdict it rendered. This is manifest both from the evidence in the case and from the excessive amount of damages awarded.

— Hon. E. M. Hughes, Judge. (1) Defendant’s demurrer to the petition should ¡have been sustained. If defendant refused to make the assessment agreed to, plaintiff’s remedy was in ■equity to enforce specific performance. Rainsbarger v. Ins. Co., 38 N. W. Rep. (Iowa) 626; Benefit Ass'n v. Sears, 114 111. 108. Again, the petition does not state a cause of action.

— Hon. Trios. . IT. Bacon, J udge. (1) The telephone is a medium for the rapid communication of intelligence, recognized and regulated by the laws of the state under the same statutory provisions as those prescribed for the regulation of the telegraph, and the agent of the defendant telegraph company, under the facts in this case, properly resorted to the telephone in order to forward the plaintiff’s message. R. S. 1889, ch. 42, art. 5 ; Chesapeake, etc., Co. v. Tel.

Louis City Circuit Court. — Hon. Daniel D. Fisi-ier, Judge. (1) The court erred in trying the cause on a theory ’different from that alleged in the petition. Melvin v. Railroad,, 89 Mo. 106 ; Welsh v. Stewart, 31 Mo. App. 376. (2) On the theory of the case as made by the court, there is no evidence to support the verdict against-any of the defendants.

<p>Attachments: fraudulent concealment of property or effects. An insolvent debtor, in anticipation of attachment proceedings by creditors, and on the advice of his attorney, secreted money for. the purpose of using it in defending against such proceedings; held that this, as a matter of law, constituted a fraudulent concealment of the money, and ground for attachment.</p>

<p>1. Partnership: dissolution : choses in action. , Upon the death of a member of a partnership, whether before or after the dissolution of the firm, the surviving partner, at common law, succeeds to the choses in action of the partnership, holding them for partnership purposes, and is the proper party.to institute suit for the collection thereof. This common-law right of a surviving partner is not impaired by the statutes of this state, so long as the legal representative of the deceased partner has not qualified as administrator of the partnership estate by giving bond under the statute, owing to the failure of the surviving partner to do so.</p> <p>2. --: -: judgments. Accordingly, if a judgment is recovered in the names of all the partners after the dissolution of the partnership, and one of the partners dies after the recovery thereof, the surviving partners have the exclusive right to sue on such judgment and the legal representative of the deceased partner should not be joined in the action, when neither they nor such legal representative have given bond for the administration of the partnership estate.</p>

<p>1. Contracts: illegal consideration : sales of liquors without license. If the consideration of a contract is illegal in whole or in part, this defeats the entire contract, and it is immaterial, whether such illegality is disclosed by the contract or is established by evidence aliunde. Held, accordingly, that a mortgage would not be enforced by the courts, since the note secured by it was given for an account, consisting in part of items for liquors sold on credit to the mortgagor by the mortgagee without license, and since the statute forbade such sales and declared them void and the indebtedness therefor unenforceable.</p> <p>2. -:--: ratification. When a debt is invalid by reason of the illegality of its consideration, it is not made valid by a new promise for its payment. In this cause it appeared that a debtor gave property in payment of a debt, which was illegal because contracted in part for the sale of liquors without license, whereupon the wife claimed the property as hers and a compromise was affected, in accordance wherewith the sale was rescinded, and the debtor and his wife gave their note and mortgage for the debt; and it was held that the illegality arising from the manner of the creation of the debt also attached to such note and mortgage, and rendered the same invalid.</p>

Louis City Circuit Court. — Hon. r Daniel D. Fisher, Judge. (1) The trial court erred in giving the fourth instruction given on its own motion. The third paragraph of that instruction improperly submitted to the jury, as a question of fact, whether there was a market for wool at Latham, Kansas, when the question was not raised by the pleadings.

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

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

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

<p>1. Pleading: construction : action to set aside fraudulent conveyance. Where a pleading is silent or ambiguous, it must be taken most strongly aga inst the pleader ; but this is not inconsistent with the rule, that pleadings must be fairly construed so as to reach the real intention of the pleader. Held under this rule, that this was an action by a subsequent creditor to set aside a transfer of his debtor’s property on the ground that it had been made to defraud creditors, and that the petition was sufficient, and that it was not essential for the plaintiff to plead his evidence in detail.</p> <p>2. -: action by subsequent creditor to set aside fraudulent conveyance. In such an action the nearness or remoteness of the time of the contraction of the debt sued ux>on to the date of the conveyance, while important as an evidentiary fact, is not decisive, and the statement of it is, therefore, not essential to the statement of a good cause of action.</p> <p>8. Fraudulent Conveyances: voluntary conveyance. Held, arguendo, that a voluntary conveyance is void 'as to ■ existing creditors, regardless of intent, but that, as to subsequent creditors, it is void only when made with the intent to hinder, delay or defraud them.</p>

— Hon. R. H. Field, Judge. (1) Appellant’s theory is sufficiently stated in his petition and instructions. His first instruction was a proper one. He was, also, entitled to a reasonable time in which to board the car. If, without allowing such time, defendant started the car forward with a violent and sudden jerk, whereby appellant, without his fault, was injured, defendant is liable. Appellant’s instructions upon this point were correct.

— Hon. J. H. ■ Slover, Judge. (1) Defendant’s instructions in the nature of demurrers to the evidence should have been given. The plaintiff’s negligence directly contributed to his injury. He could have seen the moving car if he had looked, heard it if he had listened, and was reckless in trying to go across the track before the car. (2) The city ordinance contained three of the essential facts constituting plaintiff’s cause of action.

— How. E. M. (1) Instruction, numbered 3, given by tbe court at plaintiff’s request, was misleading, as it told the jury that possession of the note by plaintiff raised a presumption of payment, unless explained by the testimony in the case, and, further on, that it devolved upon the defendants to make such explanation.

Original Proceeding by Prohibition. (1) This court has original jurisdiction to issue original remedial writs and to hear and determine the same. Const., art. 6, sec. 12; Const. Amend., sec.' 4, concerning courts of appeal. This power is confined to cases appealable to the Kansas City Court of Appeals. State ex rel. v. Rombauer, 101 Mo. 499.

— TIon. R. H. Field, Judge. (1) The contract for the foundations was not made with the owner of the lots, hence no lien can be adjudged against the lots. Jodd ®. Duncan, 9 Mo. App. 417; Squires v. Fithian, 27 Mo. App. 134. And this is so even though Roe had a contract for the purchase of the lots, and was in possession under that contract, and even though the’ owner had notice of Roe’s intention to build and knew that the work was being done. Thaxton ®.

— How. R. H. Field, Judge. (1) Plaintiff, holding note for collection, rightfully brings suit in his own name. Webb v. Morgan, 14 Mo. 428; Beattie v. Lett, 28 Mo. 596 ; Snider v. Express Co., 77 Mo. 527 ; Buddington v. Masterbrook, 17 Mo. Aj>p. 579. (2) The transferee of negotiable paper after maturity takes all of the right and title of his transferor. Griffith has all the rights of the National Bank of Kansas City, and the judgment should have been in his favor.

— Hon. R. H. Field, Judge. (1) The court ought to have sustained the demurrer to the evidence. Plaintiff by her application and policy warranted: That she was in sound health ; that she did not have cancer, consumption or diarrhoea, and on the basis of these warranties the policy was issued. The evidence shows that plaintiff had either cancer or consumption, and was not in sound health at the time of of filing her application. Day v. Ins. Co., 29 Am. Rep. 565 , Ins.

— How. J. H. Slover, Judge. The evidence in this case conclusively shows that the delivery to the respondent by the defendants, T. H. Ellis & Co., of the stock of goods levied on under the writ of attachment herein, was not followed by “an actual and continued change of possession” within the meaning of the statute concerning fraudulent conveyances, being section 5178, Revised Statutes. Clajiin o. Rosenberg, 42 Mo. 439; Lesen v. Herriford, 44 Mo. 323; Burgert ».

<p>Appeal from, the Jaekson Circuit Court. — Hon. James Gibson, Judge.</p> <p>The defendant, to sustain the issues on his part, cites the following authorities : Hutchinson v. Jones, 79 Mo. 496; Prior v. Kiso, 81 Mo. 248; Randall v. Rich, 11 Mass. 493; Colton v. Gorham, 33 N. W. Rep. 76; Whetstone v. McCartney, 32 Mo. App. 436; Walls' v. Atcheson, 3 Bing. 462 ; Hickells v. Atherstone, 10 Eng. Com. L. 943 ; Smith v. Niver, 2 Barb. 180 ; Kinsey v. Minnick, 43 Md. 121; Mathews v. Tobener, 39 Mo. 115 ; Kerr v. Clark, 19 Mo. 132 ; Clemons v. Broomfield, 19 Mo. 118; Koenig v. Miller, 38 Mo. App. 186 ; Martin v. Stearns, 52 Iowa, 345 ; Hill v. Robinson, 23 Mich. 24; Wilgus v. Lewis, 8 Mo. App. 340.</p> <p>Under a lease containing an express promise to pay rent for the term, the lessor has two concurrent remedies : First. An action of covenant against the lessee personally on the express promise to pay, contained in the lease, being based on privity of contract; and, second, of debt for use and occupation against the persons actually in possession of the premises, having for its basis the privity of estate. Whetstone v. McCartney, 32 Mo. App. 430 ; Mills v. Auriol, 1 Smith, Lead. Cas. [8 Ed.] part 2, 1259 ; Sutliff v. Atwood, 15 Oh. St. 186 ; Taylor v. Debus, 31 Oh. St. 468; Fisher v. Milliken, 8 Pa. St. Ill; Shaw n. Partridge, 17 Vt. 626 ; Bailey v. Wells, 8 W is. 141 ; Walton v. Crowley, 14 Wend. 63; Port v. Jackson, 17 Johns. 239 ; Hunckle n. Wynck, 1 Dallas, 305 ; Moale v. Tyson, 2 H. & McH. 387; Harris v. Heackman, 62 Iowa, 411.</p>

— Hon. J. H. Slover, Judge. ■ The paper filed with the justice and upon which the cause was tried was wholly insufficient as a statement of plaintiff’s cause of action, either in assumpsit or tort. Brashears v. Strode, 46 Mo. 221; Swartz ®. Nicholson, 65 Mo. 508; Butts v. Phelps, 79 Mo. 302; Weese v. Brown, 28 Mo. App. 521; Nutter ®. Houston, 32 Mo. App. 451; Hill ». Ore & Steel Co., 90 Mo. 104; Morrow v. Surber, 97 Mo. 161.

— Hon. R. H. Field, Judge. The court erred in giving instruction, numbered 2, of its own motion. It presumed as a matter of law that a loose board rendered a sidewalk dangerous. This was a question for the jury. Salmon v. Trenton, 21 Mo. App. 186 ; Staples v. Canton, 69 Mo. 563 ; Bassett v. St. Jo., 53 Mo. 296 ; Brennan v. St. Louis, 92 Mo. 482-487. The appellant complains most of instruction, numbered 2, given by the court on its own motion.

—Hon. J. H. Slover, Judge. (1) Defendant Dold was the agent of plaintiff, employed at a salary of $3,000 per year to attend to the business' of plaintiff in Kansas City, and hence this case comes “ within the operation of the principle that, in all cases where a person is actually or constructively an agent for another, all profits and advantages made by him in the business, beyond his ordinary compensation, is to be for the benefit of his employer.” Story on Agency, sec.…

— Hon. Cyrus A. Anthony, Judge. (1) Said complaint is insufficient, as in neither court does it state sufficient facts to constitute a cause of action. It is not stated that the wood sued for in first count was sold or delivered by plaintiff to defendant, nor is it stated in the second count that the wood was hauled or the cars loaded by plaintiff for defendant, nor does either count show the facts or manner in which the indebtedness arose.

— Hon. C. H. S. Goodman, Judge. This action was rightly brought in the name of the township. First. Because the suit is on an official bond of the collector and treasurer, and section 8462, Revised Statutes, 1889, page 1959, second volume, requires that suit shall be brought in the name of the township. Second. Because there is no law authorizing a school district to sue on the township trustee’s or treasurer’s bond. Third.

— Hon. Andrew Ellison, Judge. (1) The personal judgment rendered by the circuit court against the administrator for costs was not directed by this court in the judgment here given {Carr v. Harding, Adm’r, 87 Mo. App. 24), and was not authorized by law. The motion filed by the administrator to retax the costs should have been sustained. Laughlin v. McDonald, 1 Mo. 684; Finney, Adm’r, v. State to use, 9 Mo. 225 ; Ranney, Adm ’ r, v. Thomas, 45 Mo.

— Hon. Andrew Ellison, Judge. (1) The petition states no cause of action. R. S., sec. 2039. (2) The objection to the introduction of any evidence at the commencement of the trial should have been sustained. The answer denies the contract, or that it ever existed, and, under this general denial, it is competent to show that the contract was conditional, and not fulfilled. Stewart v. Goodrich, 9 Mo. App. 125 ;. Green-way v. James, 34 Mo. 328; Covender v. Waddingham, 2 Mo.

— Hon. D. P. Stratton, Judge. (1) Besides the above and foregoing direct evidence to prove title in Morgan, the whole intention of the defendant’s evidence was to show title in Morgan, and a right of entry by the defendant under him, which cannot be done. Our statutes and the decisions exclude all inquiry into the title or the ownership of the land ; and limit the contest to the present right to retain possession of the premises. R. S., sec. 5111; Silveyv.

<p>1. Replevin: value of property in verdict : judgment. Where the plaintiff in replevin fails in his suit, and has the property in possession, the court or jury should assess the value thereof ; and a failure to do so is not cured by an assessment thereof in the judgment, which is erroneous.</p> <p>S. -: pleading : answer must olaim property. An answer in replevin, if defendant wishes to recover the property, should claim the same and demand a return thereof, otherwise a court on a finding in his favor cannot give judgment- for the value of the property.</p>

— Don. D. P. Stratton, Judge. • (1) The house and land in question was the widow’s quarantine. She was entitled to the possession, rent free, and the administrator had no right there. R. S. 1889, sec. 533 ; Orrich v. Pratt, Adm V, 34 Mo. 226. (2) A statement filed in a suit before a justice of the peace in the form of an account is sustained by evidence of a conversion. Coughlin v. Lyons, 24 Mo. 534 ; Hale v. VanDever, 67 Mo. 732 ; Allen v. McMonagle, 77 Mo. 478.

— Hon. (1) The evidence introduced by the defendant in support of his character, which had not been attacked, was inadmissible, and its admission was reversible error. Dudley v.' McCluer, 65 .Mo. 241; Rogers v. Troost, 51 Mo. 241 ; Porter v. Seiler, 23 Penn. St. 424 ; Humphrey ■o. Humphrey, 7 Conn. 116; Gutzwiller v. Laclcman, 23 Mo. 168.

— Hon. D. A. DeArmond, Judge. - (1) On the insufficiency of notice we cite: In re Wooldrige, 30 Mo. App. 619; State ex rel. v. Tucker, 32 Mo. App. 620; Bean v. County Court, 33 Mo. App. 635. (2) As to the saving of the point: It is the province of the court to determine upon the legal effect and sufficiency of testimony and to judge of the competency of evidence. This is raised by demurrer to the evidence.

— Hon. D. A. DeArmond, Judge. (1) The authority of the defendant to borrow the money is fully granted by sections 7032 and 7038, Revised Statutes of 1879, as amended Acts of 1881, pages 200 and 201, and the admissions made a prima facie case for plaintiff; -where the power is given subject to certain conditions, and the bonds import a compliance with the requirements of the law, the tona fide holder is not obliged to look further for proof of the performance or observance of…