Volume 46 — Missouri Appeal Reports

— Hon. J. M. Davis, Judge. (1) Except as to lier separate estate a married woman can have no agent. Wilcox ®. Todd, 64 Mo. 390; Hall ®. Callahan, 66-Mo. 316. (2) The land involved in this case was not the separate property of Mrs. Brown; but after her marriage her husband became entitled to possession thereof. Dyer ®. Wittier, 89 Mo. 81. (3) Marriage of Mrs Brown revoked the authority of Cox as her agent. Ewell’s Evans on Agency, 99.

— Hon. M. G. McGregor, Judge. (1) The court erred in sustaining a demurrer to plaintiff’s petition. Defendant’s demurrer admits everything stated in plaintiff’s petition and it undoubtedly states a cause of action. McKinzie v. Mathews, 59 Mo. 99.

— Hon. W. I. Wallace, Judge. The affidavit and information were both good; both charge an offense in the language of the statutes. State v. Parker, 39 Mo. App. 116; State v. McDaniel, 40 Mo. App. 356; State v. Hatfield, 40 Mo. App. 358; State v. Ferguson, 29 Mo. 416; City of St. Charles v. Meyer, 58 Mo. 86 ; State v. Batson, 31 Mo. 343. (I1) This information is not verified as required by law. R. S. 1889, sec. 4329; State v. Shaw, 26 Mo. App. 385; State v. Harris, 30 Mo.

— Hon. C. H. S. Goodman, Judge. (1) “ Forcible entry and detainer is not applicable in a case of a peaceful entry by one under color of title in himself, or as tenant of some person other than plaintiff.” Ferrell ®. Lamar, 1 Wis. 8; Winter field ®. Strauss, 24 Wis. 394. This was also the English rule and is followed in New York The People ». Fields, 1 Lans. (N. Y.) 222,224.

— Hon. Henry M. Ramey, Judge. (1) The court erred in refusing instruction, numbered 1, asked by the interpleader. The plaintiff had no lien on the goods for the purchase price. Straus v. Leather-Pad Co., 14 S. W. Rep. (Mo.) 940; Parker v. Rhodes, 79 Mo. 88 ; Norris ». Brunswick, 73 Mo. 256 ; Haworth v. Franklin, 74 Mo. 106; Range Co. v. Alexe, 28 Mo. App. 184; Woolf oik v. Kemper, 31 Mo. App. 421. (2) The court should have given instruction, numbered 2, asked by interpleader.

— How. Chas. W. Sloan, Judge. (1) The paper purporting to be a notice of appeal does not describe the judgment of the justice. It describes a judgment for $15 and costs ; and not the judgment for the recovery of the horse sued for and damages for the detention. The statute requires the notice to be-in writing, stating the fact that an appeal has been taken from the judgment therein specified.

— Hon. E. M. Hughes, Judge. (1) The products of the wife’s lands may be levied upon for a debt made by the husband for the . cultivation of such, lands. R. S. 1889, sec. 6868; R. S. 1879, sec. 3295. (2) Cultivation includes reaping and sowing crops. See the terms agriculture and cultivation, Anderson’s Dictionary of Law. (3) The proper proceeding was a suit against the wife to subject the products of her lands to payment of this debt. State to %ise v. Armstrong, 25 Mo.

<p>1. Master and Servant: contributory negligence. A carpenter while at work on an elevator shaft, and while the elevator was in use and above him, leaned a portion of his body inside of the shaft. The boy in charge of the elevator, though knowing that persons were at work in the shaft, lowered the elevator at full speed without giving the warning which he had been accustomed to give, and the carpenter, being absorbed in his work and in a poor position for observation, was struck by the elevator unawares and injured. Held (Kombauer, P. J., not concurring), that it was a question of fact for the jury, whether or not the carpenter was guilty of contributory negligence.</p> <p>2. -: fellow-servants. At the time of such injury the building in which it occurred was in process of erection, and the carpenter was engaged at work in the course of its construction. The elevator was used at the time for the purpose of raising and lowering the workmen and their materials, and also persons desirous of inspecting rooms in the building. Held that the carpenter and the elevator hoy were fellow-servants engaged in the same general employment.</p> <p>3. -: INJURY OF SERVANT THROUGH INCOMPETENOY OF FELLOW-SERVANT. Held (Kombauer, P. J., dissenting), that, where a servant continues in the service with knowledge of the incompetency of a fellow-servant without complaint, it is ordinarily a question for the jury whether he is to be deemed to have accepted the risk of injury through such incompetency ; though, where the danger is so glaring that it is rash and foolhardy for him to continue in the sei’vice, the court can so pronounce as a matter of law.</p>

<p>1. Injunctions : assessment oe damages : counsel fees. Upon the dissolution of a temporary restraining order only the necessary counsel fees in obtaining such dissolution can be assessed as damages upon the injunction bond, regardless of the number of counsel actually engaged in the defense.</p> <p>2. -: -: time FOR filing motion. When the circuit court, on the final hearing of a cause, dissolves a temporary-restraining order made by it therein, and the plaintiff in the cause thereon appeals from the judgment, the motion for the assessment of damages on the injunction bond may be made by the defendant on the affirmance of the judgment by the appellate court; due notice of the motion to the plaintiff, however, is requisite in such case.</p> <p>3. -: effect of appeals : damages. In the case of such dis-dissolution of a temporary restraining order, and of an appeal from the judgment by the plaintiff, the appeal, though accompanied by a supersedeas bond, does not keep the restraining order in force. Accordingly, no damages should, in such case, be assessed upon the injunction bond for the services of counsel in the appellate court.</p>

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

<p>1. Pleading: release procured through fraud. A plaintiff, who has been induced by fraud or undue influence to release his right of action, may sue upon such right of action without first obtaining the annulment of the release by suit in equity; and if such release is pleaded as a defense to his action at law he may in his reply set up the fraud or undue influence in avoidance of it.</p> <p>2. Release: sufficiency of evidence of fraud. Such a release stands upon the footing of a'compromise, and should be upheld when fairly made. It should not be vacated for fraud in an action at law, unless the evidence of the fraud, if believed, and the circumstances attending its execution, are such as would warrant a chancellor in setting it aside. And held that the evidence in this cause was sufficient under this rule.</p> <p>3. Fraud : unusual provisions in a reléase. An unusual provision in an instrument, whereby the draftsman of the instrument obtains an advantage over the other party, excites suspicion of a fraudulent motive. This rule is applied herein to a provision in the release of a cause of action, stating that the party making the ■ release agreed to release “ deliberately, of his own free will, and without any undue influence from anyone.”</p> <p>4. -: rescission of contract : restoration of benefits received. If a party to a contract seeks to have it annulled because he was induced to enter into it by fraud, he must ordinarily restore to the!other party the consideration received by him under it; but he is not bound to restore such consideration, where the contract consists of the release of a cause of action on his part, and the consideration received was less than what is due him for such cause of action.</p> <p>5. -: -. If a party to a contract does not labor under a disability or infirmity, his mere failure, through his own fault or neglect, to read it or inform himself of its contents, is not sufficient to annul it or overcome its legal effect as to him.</p> <p>6. Instructions: negligence. An instruction was predicated upon the hypothesis of negligence on the part of the defendant in raising aweight, when, strictly speaking, the injury sued for resulted from the want of ordinary care in attempting to get the weight down after it had been partly raised with an insufficient appliance, and could not safely be raised any further. Held, that an assignment of error on the ground of such distinction was too refined for practical purposes, and that the giving of the instruction did not constitute prejudicial error.</p> <p>7. -: excessive number. The defendant in the cause offered seventeen instructions. Held that, under the issues of this cause, that number was excessive, and that the trial court might properly have refused all of them'for that reason.</p> <p>8. Negligence : master and servant. A crane for the raising of heavy weights was firmly attached to a foundry building, and used in connection with the foundi’y business. While a very heavy weight was being raised with it by employes at the foundry, the building began to crack, owing to the strain to which it was subjected. Thereon the superintendent of the workmen directed those engaged in lifting the weight to swing the weight around, knowing that the commencement of this operation would increase the strain upon the building. Held that, although none of the employes at the foundry were at that moment at work in the building, still, since they were liable to return to work in it, it was negligence upon the part of the superintendent not to warn them of the danger of .what he was about to do.</p> <p>Per Biggs, J., dissenting :</p> <p>9. Fraud: rescission or contract. Where a contract has been obtained by fraud, the defrauded party may rescind it without the aid of any court, if he acts promptly after the discovery of the fraud ; but, in such case, he must return, or offer to return, whatever of value he has received on account of such contract. And this rule is applicable to the compromise and release of a disputed claim for less than its amount.</p>

<p>Appeal from, the St. Louis City Circuit Court. — Hon. George W. Lubke, Judge.</p> <p>(1) An injunction cannot, under any circumstances, be granted restraining the defendant from the doing of an act, however wrongful it may be, unless it is clearly and satisfactorily shown that the defendant threatens or presently intends to do the particular thing enjoined. Therefore, the court erred in entering a decree against appellant restraining it from stretching its wires nearer than eight feet to respondent’s wires, the evidence being that appellant under no circumstances intended to go nearer, than ten feet. Besides, the evidence failed to establish clearly, or at all, that injury or unreasonable interference would be caused by - appellant stretching its wires nearer than eight feet. (2) The injunction in this case is in the nature of a mandatory injunction, since by the temporary injunction and final decree perpetuating it, appellant is enjoined from generating and transmitting electricity through its wires, unless it will do something, viz., stretch a net wire work or other substitute under its wires. This is the same thing as decreeing that it shall do the thing specified. While courts of equity have the power to issue mandatory injunctions, it is not a power which is regarded with favor; on the contrary, courts of equity use it with great reluctance, and only under special circumstances, and with great caution ; its exercise is to be confined to cases where there is no other remedy. 1 High on Inj., sec. 12; Kerr on Inj. 230, 231; Drewsy on Inj. 265.. Unless the damages which would ensue from withholding a mandatory injunction will be extreme,' the writ should not be issued. Burrell v. Pritchard, L. R. Ch. App. 274; Brewsey v. Tremaunt, L. R. 9 Ch. App. 219. (3) The evidence in this case shows that appellant is as rightfully upon the street in question as respondent, although the respondent used the street for its business before appellant. The appellant was, and is, upon the street by virtue of lawful municipal law or ordinance.. A prior user of a street has no superior right to other subsequent users. Therefore, a right of action by the former against the latter must depend upon the question of negligence. All that is required of any person using the street is reasonable use and care. Macomber v. Metols, 34 Mich. 212. Persons using the highway have no prescriptive rights. A highway must admit of new uses whenever the general benefit requires it. New uses are constantly arising, and private rights must yield to them. The power to regulate the use is not limited to the mere right of way, but extends to all beneficial uses which the public good may from time to time require. Ferrenbach v. Turner, 86 Mo. 416 (affirming this court); Building Co. v. Tel. Oo., 88Mo. 258 ; s. c., 13 Mo. App. 447. (4) The evidence in this case on both sides showed that if any injury or damage should ever happen to respondent’s property or employes from the electricity generated by appellant’s dynamo machines and transmitted through its wires, such damage or injury would, and could, not happen at all when appellant’s machines and wires are in their normal position, and could only result, if at all, from appellant’s wires breaking from some unusual cause, or through negligence, and the ends falling upon respondent-swires, and certain concurrent, but not inevitable or even probable, conditions being present. The evidence does not establish that the dangers apprehended by respondent as a basis for an injunction were either certain, imminent, constant’or highly probable, but on the contrary the great and overwhelming weight of the testimony was, and is, that such apprehended dangers were, and are, uncertain, improbable, accidental, remote, speculative, contingent and barely possible under very unusual circumstances or conditions,’ or the result of negligence. Under such a state of facts a lawful business ' cannot be interrupted, or enjoined, or unusual or arbitrary conditions be imposed on its continuance beyond what public authority has imposed in granting it the right to enter upon, and use, the streets. A lawful business is nota nuisance, nor do the defendant ’ s wires and business constitute a public nuisance, since the defendant is authorized by law to stretch its wires and transmit electricity through them. Wood on Nuisances, secs. 1, 15, 16; Hinchman ©. Railroad, 2 C. E. Green, p. 75; Gay v. Tel. Co., 12 Mo. App. 485; High on Inj., sec. 767. Nor should such business be interfered with by injunction under the facts of this case. High on Inj., secs. 740, 742, 752, 787, 788, 818 ; Rhodes v. Dunbar, 57 Pa. St. 274; Building Co. v. Tel. Co., 88 Mo. 258 ; Gay v. Tel. Co., 12 Mo. App. 485; Flint v. Russell, 5 Hill. 151; Railroad v. Applegate, 8 Hana, 289; Carpenter ». Cummings, 2 Phil. 76 ; Bigelow v. Bridge Co., 14 Conn. 565; Spencer v. R. W. Co., 8 Sims, 193; Earl of Repin v. Hobart, 3 Wylore & Keene, 169; Duncan v. Hayes, 7 C. E. Green, 25. (5) But it is clearly shown that any injury or danger which might, under any possible conditions, happen to respondent from the breaking of appellant’s wires from some unusual and unprecedented storm, or some unforeseen accident, or through any possible negligence of appellant, can be avoided at small and trifling cost by the use by respondent of a fusible plug placed on its wires near their entrance into its office. It is shown, and not contradicted, that in case of one of appellant’s wires breaking and coming in contact with one of respondent’s wires, and all other conditions being present necessary to cause a transmission of appellant’s current of electricity over one of respondent’s wires, this fusible plug would, by melting and opening the circuit, prevent appellant’s current from going into respondent’s office and doing any damage. The only inconvenience that would follow would be that the cause would have to be removed before the wire could be used, which would be in a very short time. An injunction against a nuisance will be granted only where there is a strong and mischievous case of pressing necessity, and not because of a trifling invasion of legal rights, or where it appears, that by a slight expenditure of money the danger or annoyance may be avoided. Rosser v. Randolph, 7 Porter, 238. (6) When a summary remedy is provided by statute for the abatement of the nuisance by the municipal authorities, a court of equity may properly refuse to interfere by injunction, when no obstacle is shown to be in the way of proceeding at law. 1 High, 745; Powell v. Foster, 59 Ga. 790. Article 3, scheme and charter, section 25, subdivision 6, provides for the abatement of all nuisances by the municipal authorities in a summary way.</p> <p>(1) An injunction is the most flexible of remedies. The trial court, or the appellate court, may, by its final decision, continue or dissolve, in part or in whole, or may in any manner “modify an injunction already granted. Cassidy v. Metcalf, 66 Mo. 519, 535'; 1 High on Inj., sec. 39, note 5 ; Packer «. Carpenter, Hemp. 441. In general, relief by injunction should be granted if it appear from the whole proof, that defendant threatens to do, or continue doing, some act complained of; or that thereby some lawful right of plaintiff will be denied or interfered with, without legal excuse therefor; and that for such threatened injury no adequate remedy is afforded by an action for damages as such, as, if it appeared that the injury apprehended would be a recurring one, requiring a multiplicity of suits for damages; and it is not necessary that such injury should be irreparable. Towne v. Bowers, 81 Mo. 491, 495-6; Turner v. Stewart, 78 Mo. 480, 482, and cases cited ; McPike v. West, 71 Mo. 199, 200 ; Bank v. KercJieval, 65 Mo. 682; Harris v. Board, 22 Mo. App. 462. (2) Under the issues in this case, the decree below should be affirmed, if on the whole proof it appears that the apprehension of injury alleged by plaintiff is a reasonable one, though it be uncertain how frequently such injury will occur, or whether it may or may not, in every detail, correspond with plaintiff’s averments thereof; and that, if. and whenever such injury should occur, there is a real danger of serious damage to plaintiff, in respect of its property or the profitable conduct of its business, or any obstruction thereto, as authorized by said' act of congress, or in respect of the safety of its employes in fulfilling their ordinary duties, or all of these; and that there is no adequate remedy therefor by an action, for damages as such — whether because it would require a multiplicity of suits, or would involve a loss of profits difficult to estimate, or both. Plaintiff is entitled to relief by injunction if there be probable ground for believing that, unless such relief be granted, the injury apprehended will occur. It is no defense to urge that plaintiff can avoid such injury, at an additional expense, by some device or expedient not nee'ded except for defendant’s acts complained of; a fortiori, if such expedient would merely substitute one kind of injury for another, as in the case of fusible plugs. 1 High on Injunctions, sec. 22. And. in determining the questions of fact involved, including physical or natural laws, the courts will take judicial notice of “such matters of science as are involved in the cases brought before them,” and may consult works on science in relation thereto. Brown v. Piper, 91 U. S. 42; 1 Whart. Ev., secs. 282, 335. (3) Plaintiff is entitled, under the act of congress of July 24, 1866 (R. S. U. S., sec. 5263), duly accepted by it, to maintain and operate its telegraph lines on Locust street, in the city of St. Louis, without interference by any other person with the safe and ordinary operation thereof. Said act is paramount to any state law, or municipal ordinance. That act was an exercise of the power of congress over interstate commerce, and is binding on “the judges in every state.” Tel. Co. v. Tel. Co., 96 U. S. 11; U. S. Const., art. 1, sec. 8, art. 6, par. 2. Any state law, though purporting to be enacted under the police power of the state, which conflicts with said act of congress, is void. The “settled doctrine” of the United States supreme court-on this subject includes every attempted interference with interstate commerce, under the authority of a state. Railroad o. Husen, 95 U. S. 465, 470-71; Brown •v. Houston, 114. U. S. 622, 630, 632. Defendant’s alleged right, under the city ordinances of St. Louis, to erect and maintain its poles and wires in such manner as to interfere with plaintiff’s right, under said act of congress, to carry on its telegraph business without interference or obstruction, would be a violation of said act of congress. A refusal by any state court to require third persons to abstain from interfering therewith would be a denial of plaintiff’s rights under article 1, section 8, and article 6, paragraph 2, of the United States constitution. (4) The defendant’s poles were not rightfully erected on Locust street. City ordinance number 12723 conferred no' such right, for the city charter contains no authority for its enactment. On this ground alone, on the proof made, plaintiff is entitled to equitable relief. 2 R. S. 1879, pp. 1585-8; City Charter, art. 3, sec. 26 ; 2 Dillon, Mun. Corp., secs. 660, 698, and cases cited.</p>

— Hon. J. II. Slovek, Judge. (1) The act of voluntarily attempting to board a moving car, going at the rate of six or eight miles per hour, standing on the track between the rails, and attempting to catch the brakerod with the hand and the brakebeam with the foot, as the car comes up, is-an act of gross negligence and rashness, such as will prevent a person from recovering from any injury received while engaged in such an attempt.

— Hon. R. H. Field, Judge. (1) The court should have ascertained the balance due Harrison & Platt on' their $525 Kirk note; and allowed Ackerman to redeem the Kennedy note upon the payment of the amount so found due. Ins. Co. v. TwnstaTl, 72 Ala. 142; Johnson Co. v. Bryson, 27 Mo. App. 349; Williams x. Ingersoll, 89 N. Y. 508; Hutchins v. Simon, 57 Miss. 628 ; Newby x. Hill, 2 Mete. (Ky.) 530 ; Van Blarcom x. Bank, 37 N. Y. 540; Railroad x. Iron Co., 50 N. H. 57.

— Hon. J. H. Slover, Judge. (1) Upon the undisputed evidence in the case, the court should declare that both plaintiff and her husband were guilty of contributory negligence. Harlan v. Railroad, 64 Mo. 480 ; Zimmerman v. Railroad, 71 Mo. 476 ; Powell v. Railroad, 76 Mo. 80 ; Kelly v. Railroad, 88 Mo. 534; Yancey v. Railroad, 93 Mo. 433; Butts v. Railroad, 98 Mo. 272; Beyel ». Railroad, 12 S. E. Rep. (W. Ya.) 532, 534.

— Hon. James-G-ibson, Judge. (1) “If the appeal be not allowed on the same-day on which the judgment is rendered, the appellant shall serve the appellee, at least ten days before the-first day of the term at which the cause is to be determined, with a notice in writing, stating the fact that an.appeal has been taken from the judgment therein specified.” R. S. 1889, sec. 6842 ; R. S. 1879, sec. 3055.

— Hon. J. H. Slover, Judge. (1) The court had no jurisdiction of the subject-matter of the suit, for the reason that there was no instrument sued on, or a statement of the account, or a •statement of the facts constituting the cause of action upon which the suit is founded, filed before process was issued in this suit. R. S. 1889, sec. 6138; Peddicord ». Railroad, 85 Mo. 160-162; Pattison v. Lutz, 1 Mo. App. 133-135 ; Barr ». Blomberg, 37 Mo. App. 605, 608.

—Hon. R. H. Field, Judge.- (1) The court erred in overruling defendant’s demurrers to the evidence offered at the close of plaintiff ’ s evidence and at the close of the whole evidence. Rogstad v. Railroad, 14 Am. & Eng.

— Hon. J. H. Sloven, Judge. (1) The undisputed facts are, first, that the attachment was against Charles Witascheck, and was levied on the property of Albert Witascheck, and, second, that the suit was prosecuted for two months, and then decided in favor of plaintiff in this case. These amount to a demonstration that the attachment was wrongfully levied, and the suit was maliciously, oppressively prosecuted.

— Hon. Jas. Gtbson, Judge. Statement of the case: — This was an action by the plaintiff to recover from defendant by virtue of a covenant in the deed from one Michael F. Marks to the defendant, whereby the defendant was made to assume and agree to pay a part of a certain deed of trust on said real estate which said incumbrance at the time was held and owned by the plaintiff.

— IIon. J. H. Sloveb, Judge. (1) Tenant from month to month, who leaves premises without giving one month’s notice in writing to landlord of intention to terminate tenancy, is liable for rent of such premises for the month succeeding his leaving the premises,; and if he leaves in the middle of the rental month, although having paid in advance for such month, he is liable for the rent of the succeeding month. 2 R. S. 1889, sec. 6371; Gunn v. Sinclair, 52 Mo. 327; Winters v.…

— Hon. D. Á. DeArmond, Judge. (1) The motion to quash the indictment should have been sustained.' R. S. 1889, sec. 4105, p. 959; 1 Bishop on Cr. Law [ 6 Ed.] sec. 802, p. 446. (2) The defendant’s demurrer to the evidence offered by the state at the close of the state ’ s evidence should have been sustained. The proof was that the defamatory words were not uttered in the English language.

— Hon. R. H. Field, Judge. (1) The court erred in overruling the objection of the defendant and appellant, to the introduction of any evidence under the petition of the plaintiff, for the reason that said petition did not state facts sufficient to constitute a cause of action. Chitty’s Pleading, star p. 298.

— Hon. James Gibson, Judge. . (1) An interplea being in the nature of a replevin, it certainly will not lie where the action of replevin will not; mere naked possession is not sufficient to maintain an action of replevin. To maintain an action of replevin plaintiff must have in himself the right of property, general or special, coupled with the right to the immediate and exclusive possession of the property.

— Hon. James Gibson, Judge. (1) The justice’s judgment was absolutely void, especially against this defendant, because the necessary jurisdictional facts do not appear from the justice’s record. This proposition requires no citation of authorities in this state. Zimmerman v. Snowden, 88 Mo. 218; Bigelow on Estop. [ 4 Ed.] p. 48.

— Hon. .John W. Henry, Judge. (1) In order to recover, respondent must prove all the material allegations of the petition. An instrument signed* by Bingham alone was read in evidence, which purports to be an assignment of a half interest in his contract to Todd, and which recites and ratifies the power of attorney executed by Bingham to J. E. Guinotte, the respondent.

— Hon. James Gibson, Judge. (1) The sale of the goods, in order to be considered bona fide with respect to creditors, must have been made without any trust whatever, either express or implied. Mfg. Co. v. Steele, 36 Mo. App. 496; Coburn v. Pickering, 3 N. H. 424 ; Parker v. Patte, 4 N. H. 178 ; Connelly v. Walker; 45 Penn.

<p>Appeal from the 'Jackson Circitit Court. — Hon. R. H. Field, Judge.</p> <p>There was no evidence to support the verdict. Stepp v. Railroad, 85 Mo. 229; Moore v. Railroad, 28 Mo. App. 622; • Walton v. Railroad, 32 Mo. App. 634-; JDiel v. Railroad, 37 Mo. App. 454; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673.</p>

— Hon. Cyrus A. Anthony, Judge. (1) The court erred in permitting the plaintiff to prove what the injury or damage was to his place in consequence of the alleged overflow. If the injury was permanent, and went to the entire value of the estate, the damages would be the difference in the market value of this land immediately before the injury occurred and immediately afterwards.

— Hon. D. P. Stratton, Judge. (1) The complaint must be verified by affidavit. R. S. 1889, sec. 5092 ; Fletcher v. Keyte, 66 Mo. 285. { 2) In unlawful detainer cases justices of the peace have exclusive original jurisdiction. McQuoid v. Lamb, 19 Mo. App. 153 ; Bast r>. Ketchum, 5 Mo. App. 433; Fletcher v. Keyte, supra.

— Hon. D. P. Stratton, Judge. (1) The doctrine as to mechanics’ liens is that the statute is highly remedial in its nature, and should, receive a liberal construction to advance the just and beneficent objects had in view in its passage. Dewitt v. Smith, 63 Mo. 263; Putnam v. Boss, 46 Mo. 337; Oster v. Babeneau, 46 Mo. 595 ; Hayden v. Wulfing, 19 Mo.

— Hon. W. I. Wallace, Judge. (1) The testimony offered by defendant, and rejected by the court, was admissible. The assignment says, “all my interest in the partnership notes, etc., which belonged to us while in business together. ” A note to be conveyed had to possess the compound quality of coming within both of these requirements at the time of the conveyance. If it was wanting in either it was not conveyed.

— Hon. M. G-. MoGtREGor, Judge. (1)' The court erred in giving the first instruction asked by plaintiff. The instruction was misleading. Proof of words of similar import amounting to the same thing is not sufficient, and though the phrase, “enough of said words to constitute the charge,” is used, that is more than neutralized by the instruction telling them that they should consider all of the conversation and the facts and circumstances detailed in evidence.

— How. Jambs G-iBsoNj Judge. (1) When the discharge of a servant is justified on the grounds of his having been intoxicated, and evidence is produced tending to show intoxication during the hours of his service, evidence that others had seen him sober at other times during his hours of service is immaterial, either as evidence in chief or in rebuttal. Suttie v.^Aloe, 39 Mo. App. 38-40 ; Coale v. Railroad, 60 Mo. 227-232 ; Lester ?>.

— Hon. D. P. Stratton, J uclge. (1) The court committed error in overruling defendant’s demurrer at the close of plaintiff’s evidence, and in overruling a similar demurrer after all the evidence had been introduced. We submit that the undisputed facts herein make out one of the clearest cases of contributory negligence ever reported in the books.

— How. Oiias. W. Sloan, Judge. (1) Plaintiff delivered the horses and harness into the possession of Abbott, who was, therefore, rightfully in possession of them by plaintiff ’ s own act. Possession is presumptive proof of ownership. ■ 1 Glreenl. Ev., sec. 34; Jackson v. Love, 33 Am.. Rep. 687; 1 Thompson on Trials, sec. 1407; Stephens v. Board of Education, 32 Am. Rep. 510.

— Hon. John W. Henry, Judge. (1) The lien of the assessment of benefits, and of' the judgment rendered thereunder, attached as of the date of the approval of the ordinance for the opening of the street. Charter, City of Kansas, art/ 7, sec. 5; Revised Ordinances, 1888, p. 64; Blossom v. Van Court, 34 Mo. 390; McLaren v. Sheble, 45 Mo. 130.

<p>Appeal from, the Jasper Circuit Court. — How. M. Gr. McGtEegob, Judge.</p> <p>Cited: Funk v. Galliger, 49 Conn. 124; 44 Am. Rep. 210; Kitchen v. Greenbaum, 61 Mo. 110; Const. Mo., sec. 10, art. 14 ; R. S. 1889, sec. 3833, art. 8 ; sec. 3936, art. 8; Shaffner v. Pinchbeck, 24 N. W. Rep. 367; Boyd v. Mill Creek, 24 N. E. Rep. (Ind.) 661; Jackson v. McLain, 13S. W. Rep. (Mo.) 393; Nichols v. Trible, 13 S. W. Rep. (Ark.) 796 ; Sullivan v. Hergan, 20 Atl. Rep. (R. I.) 232; Goodrich v. Houghton," 9 N. Y. Sup. 214.</p> <p>(1) Our statutes, sections 3832 and 3833, page 915, «imply prohibit, first, the establishing of any lottery, and, second, the advertising and sale of lottery tickets in this state. (2) In this case there was no sale or purchase in this state. State v. Shaffer, 89 Mo. 280; Kling v. Fries, 33 Mich. 275; Case v. Biker, 10 Vt. 482; 33 Am. Dec. 211 ; Washburn x>. F'letcher, 42Wis. 152. (3) The purchase was made in Louisiana, where it was lawful. Sess. Acts, La. 1868, 24, 25, 26. And «courts will recognize the validity of contracts made, and to be performed in' another state, precisely as they would be recognized in that state, and, especially, when executed, will protect the results. Cohn v. Pinker, 34 Fed. Rep. 472; Kentucky v. Bassford, 6 Hill (N. Y.) 526; Slix v. Matthews, 63 Mo. 37; Boach ». Type Foundry, 21 Mo. App. 118; Mathews ». Paine, 77 Ark. 55 ; McGrow v. Hamlin, 29 Mich. 476 ; Antoine v. Smith, 40 La. Ann. 560 ; McIntyre ®. Parks, 3 Met. (Mass.) 207; Jameson v. Gregory, 4 Met. (Ky.) 370. (4) But, even if the original transaction was tinctured with illegality, so that it would not have been directly enforced by courts of this state, still, it having been executed, and the money paid, the respondent, into whose hands it happened to come, cannot avail herself of the illegality of the original transaction so as to shield herself from paying it over to the party for whose use she collected it. McBlair v. Gibbs, 17 How. (■U. S.) 232; Armstrong v. -Toler, 11 Wheaton, 258; Brooks v. Martin, 2 Wall. 70; Warren v. Hewitt, 45 Ga. 501; Kitchen v. Greenbaum, 61 Mo. 115; DeLeon v. Previne, 49 Tex. 88 ; Bank v. Bank, 16 Wall. 483; State v. Shadd, 80 Mo. 358 ; Land v. Coffman, 50 Mo. 243.</p> <p>The contract entered into between plaintiff, Bathurst and Kuhn, in' Carthage, Missouri, upon which this suit is based, whereby they entered into an agreement to deal in lottery tickets in the state of Louisiana, in partnership or jointly, cannot be enforced, or a suit based thereon, in a state where lotteries and dealing in lottery tickets are prohibited, and ought not to be enforced here, even if the contract of partnership had been made in Louisiana, where it may be valid and enforceable. Watson v. Murry, 23 N. J. Eq. R. 257 (a case on all fours with this); Watson v. Fletcher, 7 Grattan, 1 ; Abbe v. Marr, 14 Cab 210; Hayden v. Little, 35 Mo. 418, supra; Buckingham v. Fitch, 18 Mo. App. 91, supra; Bank v. Bank, 38 Fed. Rep. 804; Kent v. Meltenberger, 13 Mo. App. 503; Parsons v. Randolph, 21 Mo. App. 353; Hamilton v. Sculls, Adm'r, 25 Mo. 165; McCoy v. Greene, 83 Mo. 626; Waterman v. Bucldand, 1 Mo. App. 45; Duncan v. Scott, 11 Serg. & R. 164; Thomas v. Brady, 10 Burr. 170; Scott v. Duffy, 2 Hains, 20 ; ITott v. Gun, 73 Pa. 198; Holman v. Johnson, Cowp. 343. And see Bishop, on Contracts, sec. 505, et seq., and sec. 549 ; 1 Bishop Criminal Law [6 Ed.] sec. 500.</p>

— Hon. J. H. Slover, Judge. The indorsement of the notes in which she had a statutory separate estate by the wife in blank, and the ■delivery of them to her husband, was a sufficient assent in writing by the wife under the statute, and gave the husband full authority to sell, incumber or otherwise dispose of the notes for his own use and benefit.

— Hon. R. H. . Field, Judge. (1) The court erred in allowing plaintiff to file an amended complaint, because the one originally filed was not verified, and, the justice having no jurisdiction, the circuit court could not acquire jurisdiction on appeal of unlawful detainer. Reilly v. Powell, 34 Mo. App. 431 ; Fletcher v. Keyte, 66 Mo. 285; Turner v. Bondalier, 31 Mo. App. 582.

<p>Appeal from the Buchanan Circuit Court. — Hon. Oliver M. Spencer, Judge.</p> <p>(1) Appellant’s avoidance of the statute was good. R. S. 1879, sec. 3236 ; Rhodes v. Farish, 16 Mo. App. 430; Adams, Adm'r, v. Abernathy, 37 Mo. 196; Johnson v. Smith, 43 Mo. 499; Miller v. Tyler, 61 Mo. 401. (2) Defendant’s answer to a bill of discovery is evidence in support of the allegations in his bill. 2' Daniels’ Ch. PI. & Prac. [5 Ed.] 1537; Story, Eq., sec. 1483. The code of civil procedure has abolished the distinction in practice between law and equity, and with, it the bill of discovery. Bond v. Worley, 26 Mo. 253. And it has substituted for the bill of discovery the right to make the adverse party a witness, and to compel him to testify in behalf of the party subpoenaing him. R. S. 1879, sec. 4012; Eck v. Hatcher, 58 Mo. 235; Cornet v. Bertelsman, 61 Mo. 118. • (3) The respondent having been twice duly summoned as a witness on behalf of appellant, and refused to attend, the court did right in striking out his answer and rendering judgment against him for the principal and interest of the note sued on. R. S. 1879, sec. 4016; Haskell v. Sullivan, 31 Mo. 435; Snyder v. Raab, 40 Mo. 167; Harris v. Harris, 25 Mo.. 567. (4) The respondent’s affidavit is fatally defective in not stating facts excusing his disobedience of the-court’s subpoena. Biebinger is. Taylor, 64 Mo. 63 ; Pry v. Railroad, 77 Mo. 123 ; Lamb is. Nelson, 34 Mo. 501; Florez is. Ghrig’s Aclmlr, 35 Mo. 517 ; Leabo is. Goode, 67 Mo. 132 ; Bulls v. Phelps, 79 Mo. 304; Weil v. Posten, 77 Mo. 284 ; Broolts v. Mastín, 69 Mo. 58 ; Mitchell v. City of Clinton, 99 Mo. 153; Stearns v. Railroad, 94 Mo. 320 ; Seeley is. English, 17 Barb. 530 ; Implement Co. v. Wheeler, 27 Mo. App. 16. (5) How is this “good cause shown” to the court? By filing the affidavit of the party himself showing two things, viz.: First, the exercise of reasonable diligence on his part in preparing his answer. Second, a meritorious defense to the plaintiff’s cause of action. If he fails in his affidavit to affirmatively show both, the trial court, under many decisions of the supreme court, commencing with Meeehum t>. Jucly, 4 Mo. 361, is not warranted in granting him a new trial. Biebinger v. Taylor, 64 Mo. 63 ; Pry is. Railroad, 73 Mo. 123 ; Lane v. Nelson, 34 Mo. 252 ; Meeehum v. Judy, 4 Mo. 361 ; E lliott v. Leah, 4 Mo. 540 ; Lecompte v. Wash, 4 Mo. 557; Weimer is. Norris, 7 Mo. 6; Greene is. Goodloe, 7 Mo. 26; Field o. Matson, 8 Mo. 686 ; Kirby is. Chadwell, 10 Mo. 392 :f Austin v. Nelson, 11 Mo. 192 ; Faber is. Bruner, 13 Mo. 541; Campbell is. Gaston, 29 Mo. 343 ; Gehrhe v. Jod, 59 Mo. 522 ; Ovsen v. Tinsley, 21 Mo. 425; Adams is. Hicham, 43 Mo. 168; Castlio is. Bishop, 51 Mo. 162; Greer is. Parher, 85 Mo. 107; Houeh is. St. Louis Exposition, 28 Mo. App. 630; Bosbyshell v. Summers, 40 Mo. 172.</p> <p>(1) In this state the circuit courts have the common-law power to vacate their own judgments during the term when rendered. Randolph is. Sloan, 58 Mo. 155; State ex rel. v. Adams, 84 Mo. 315; Nelson is. Ghiselin, 17 Mo. App. 665; Murphy v. DeFrance, 23 Mo. App. 343 : Fannon v. Plummer, 30 Mo. App. 28. This power may exist subject to this limitation or qualification, that its exercise by the trial court is subject to review by the appellate court. (2) There is no pretense that the trial court in vacating its judgment and recalling the execution contravened any statute. There is no substantial ground upon which to claim that the trial court acted oppressively in so doing. The section •of the statute (R. S.,sec. 8924) was intended “as a substitute for the ancient chancery practice in regard to interrogatories appended to a bill, and had the same ■object in view, which was to give a party an opportunity to sift the conscience of his adversary. Eclc v. Hatcher, 58 Mo. 239. By failing to obey the order of the subpoena, the party puts himself in contempt of the court; and the punishment authorized by the statute for this •contempt, in addition to the usual punishment for contempt, is the striking out of his pleading. The statute does not require the court to strike out the pleading. The court may or may not strike out the pleading, as in its wise discretion it may deem just and expedient. In other words, the court has a discretion to strike out the pleading or not, and also a discretion to rescind, or not rescind, the order striking out the pleading. The -exercise of this discretion is not subject to review.</p>

<p> Original Proceedings by Habeas Corpus. </p>

<p>1. Probate Courts: trial by jury. The provision of the code of civil procedure for the trial of certain issues of fact by jury (R. S. 1889, sec. 2131) has no application to proceedings in the probate court, and in that court there can be no trial by jury in the absence of statutory provision therefor.</p> <p>2. --: -: CONTESTED CLAIM FOR WIDOW’S ALLOWANCE. Held, accordingly, that, where a claim was made for a widow’s allowance in the course of the administration of an estate, and the administrator denied that the claimant was the widow of the decedent, the issue was not triable by jury.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The burden of proof is on the sheriff to show that the costs were properly incurred, and are legally chargeable. Miller v. Muegge, 27 Mo. App. 670. (2) The sheriff can only get such fees and charges as are fixed' by section 4989, Revised Statutes, 1889, and, where property is seized by attachment, reasonable compensation for his trouble and expenses in keeping the same. Miller v. Muegge, supra.

<p>1. Railroads: negligence. A railway company, whose tracks cross a public highway, and whose cars stand disconnected upon the highway, with a space between them sufficiently large to permit persons to pass through it, is guilty of negligence, if it closes this space suddenly and without warning to the traveling public; and, in the case of such negligence, it is liable for the injury thereby caused to a person, who. without contributory negligence on his part, climbs over the drawhead of a car instead of passing through the open space.</p> <p>2. -: -: contributory negligence. The person thus injured, who was a boy only nine years old, testified that he climbed over the drawhead instead of passing through the open space, because he would get mashed if he passed between the cars. Held, that this remark did not conclusively show that he appreciated the danger of his act, because his testimony, taken as a whole, rendered the inference permissible that this remark was made in the light of subsequent events, and not because he anticipated what happened.</p> <p>S. Physical Injury to Child: father’s measure of damages for nursing of child. If a child suffers physical injury through the negligence of a railway company, its father is entitled to recover, as part of his damages, reasonable compensation for the services of both his wife and himself in nursing the child.</p> <p>4. Practice, Trial: stipulation : depositions. A stipulation filed in this cause was to the effect, that a deposition taken in another action might be read in this cause with the same force and effect as if taken upon proper notice. Held, that this stipulation waived no right of either party in reference to the deposition, except the right of objection for want of notice, and did not entitle either party to read the deposition against the objection of the other party, if the witness was present at the trial.</p> <p>5. Physical Injury to Child: father’s right of recovery for services of child: sufficiency of evidence. The right of a father to recover for the value of the services of his child, when such child is injured through the negligence of a third person, is predicated upon the relation of master and servant; hence, it is necessary in such case to allege and prove the existence of that relation. But that relation is established by proof that the child was only nine years old ; that he lived with his parents at the time of and since the injury ; and that he was taken to his home when he was injured, and was nursed by his parents for several months thereafter.</p> <p>6. Instructions: assumption of facts. The assumption, in an instruction, of facts put in issue by the pleadings is held not to require a reversal of the judgment in this cause, since the evidence thereof was very clear and not controverted; but the practice of assuming in instructions facts which are denied by the pleadings is not approved by this court.</p> <p>7. Practice, Trial: remittitur of damages. Where the damages are capable of being definitely determined by an exact money standard, a remittitur is permissible for the purpose of obviating an excessive assessment of the same by the verdict of the jury.</p> <p>8. Injury to Minor Child: measure of parent’s damages for loss OF services. In assessing the damages of a father for the loss of the services of his minor child, when the child has been injured, but not killed, through the negligence of the defendant in the action, no deduction should be made for the cost of the-support of the child subsequent to the injury.</p> <p>9. -: DAMAGES OF PARENT FOR LOSS OF SERVICES: BURDEN OF PROOF. If a child, thus injured, is still capable of performing some kind of work, then the father, in suing for the loss of the services of the child, must establish by evidence the probable-earning capacity of the child in its injured condition in order to make out a case.</p> <p>10. Practice, Trial: excessive verdict. If a verdict is excessive under the instructions given by the court, the objection thereto on that ground will not be overcome by the fact that the instructions were erroneous, and that the verdict is not excessive under a. correct rule as to the measure of damages.</p> <p>11. Jurisdiction, Appellate: remittitur of damages. Qucere, whether a remittitur of damages by the voluntary action of the successful party is permissible, when the effect of it is to change the jurisdiction of an appeal in the cause from the supreme court to this court.</p>

<p>1. Practice, Trial: objections to evidence. Objections to the admissibility of evidence are waived, unless they are made at the time of the offer of the evidence ; but the right to object to evidence, on the ground that it fails to substantiate the plaintiff’s claim in a material respect, is not lost by the failure to object to its admissibility.</p> <p>2. Mechanics’ Liens: sufficiency of account. An account which is filed to obtain a mechanics’ lien, and which contains but a single item in gross and without detail for the entire contract price of a building, is insufficient to sustain the lien as to that item ; and, under the rule above stated, the defendant in an action for the enforcement of the lien may contest the validity of the lien in respect to that item, although the account was received in evidence without objection on his part.</p> <p>8. Married Women: personal judgment. A personal judgment cannot be rendered against a married woman for .a debt contracted prior to the revision of 1889 of our statutes.</p>

Louis Q-ity Circuit Court. — Hon. James E. Withrow, Judge. A party introducing a witness represents him to the court as worthy of credit, and stands as his indorser, and cannot discredit him, though he may contradict him by showing, by other witnesses, that a fact testified to-by him is different from that testified toby such witness.. 1 Gfreenleaf on Ev. [14 Ed.] sec. 442, p. 538; 1 Whart. on Ev. [ 3 Ed.] sec. 549; 2 Best on Ev. [ 1 Am.

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

<p>1. Justices’ Courts: setting aside affirmance of judgment for non-payment of filing fee. When the circuit court affirms the judgment of a justice of the peace for non-payment of the filing fee by the appellant, pursuant to the special statute applicable to the city of St. Louis, it has power to set aside the affirmance, and reinstate the cause during the same term, if the appellant shows sufficient excuse for the non-payment of that fee.</p> <p>2. Practice, Appellate: review of discretionary rulings. The exercise of this power addresses itself to the sound discretion of the circuit court, and the refusal of that court to set aside its affirmance of the justice’s judgment may, therefore, he reviewed and corected on appeal, when a strong case for setting aside the affirmance is presented.</p>

<p>1. Principal and Agent: liability of purchaser from agent. One who purchases goods from an agent, knowing, or having good grounds for believing, that, in selling them, the agent is exceeding his authority and acting in fraud of his principal, obtains no title, but is guilty of a conversion of the goods.</p> <p>2. Trover: demand. When the original taking of goods is tortious, an action for their conversion will lie without any demand for them.</p>

<p>1. Appeals: validity of creation of trial court. The question of the legal existence of the trial court cannot be raised on appeal.</p> <p>2. Local Option: burden of proof. The adoption of the local-option law is established prima facie by the state by the production of a certified copy of the result of the election, as spread upon the records of the county court in compliance with that law, and proof that the requisite subsequent publication of the result was made. (State v. Searcy, 39 Mo. App. 393, is approved.)</p> <p>3. Elections: certificate of election. Held, arguendo, that in the case of a general election, the county clerk is required to take to his assistance two justices of the peace, or two judges of the county court, only for the purpose of aiding him in examining and casting up the votes given to each candidate, and that these two justices or judges are not required to sign the certificate of election given to the candidate having the highest number of votes.</p> <p>4. Local Option: certificate of election. It is not essential to the validity of the election, putting the local-option law in force in any locality, that any certificate of the election should be signed by the two justices or the two judges of the county court, called in to aid the county clerk in casting up the votes.</p> <p>5. County Court Records : presumptions. It is presumed that the county court orders everything, which appears upon its records, to be recorded therein.</p> <p>6. local' Option: sales by druggists. A person who is indicted for a violation of the local-option law. and defends on the ground that he is a licensed druggist and as such made the sale of liquor for which he is indicted, must bring his sale within the provisions of the law relating to such sales by druggists, and, where the sale is for medicinal purposes, must, therefore, show a physician’s prescription.</p>

<p>Practice, Trial: inconsistency or verdict. A verdict which is inconsistent in its several findings cannot stand, unless it appears that the party objecting to it has not been prejudiced. And held, accordingly, that the verdict in this cause could not stand, since by it the jury found for the plaintiff in a count for damages for the non-performance of a contract, and at the same time found for the defendant for the full contract price on a counterclaim, based upon the same contract.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The person to whom the notice was given was a servant of the tenant, at the rented premises, in charge (with two other servants of equal rank and authority) of the tenant’s business at that place, in the absence of the latter, with recognized and express authority from the tenant to receive papers left with him at such place for his master during the latter’s absence; and such person, at the time of the service upon…

— Hon. Richard Field, Judge. (1) The court below erred in the admission of illegal, irrelevant and incompetent evidence on the part of the defendant. Merri.de v. Phillips, 58 Mo. 436; Hamilton v. Maries, 63 Mo. 167, at 175. Much of this evidence objected to is hearsay, and inter alios acta, so far as plaintiff is concerned, and all of it irrelevant and immaterial.

— Hon. Richard Field, Judge. The demurrer to the evidence should have been sustained. The court did not err in overruling defendant’s demurrer to the evidence. Wilson v. Board of Ed. 63 Mo. 137; Brinlc v. Railroad, 17 Mo. App. 177 ; Fisher v. Railroad, 23 Mo. App. 291; Noeninger v. Vogt, 88 Mo. 589 ; Buesohing v. Gaslight Co., 73 Mo. 219; Feurt v. Brown, 23 Mo. App. 332 ; Baum v. Fryrear, 85 Mo. 151; Groll v. Tower, 85 Mo. 249 ; 8age v. Reeves, 17 Mo.

— Hon. James M. Sandusky, Judge. (1) The first instruction given for plaintiff is bad, for the reason that, upon the finding of the facts therein .■set out, the jury were instructed to find for plaintiff ; it attempts to set out the whole case, but ignores the fact of the agreement made after ten days had expired, and leaves out the element of readiness on the part of the purchaser to pay cash. These omissions are not supplied by any subsequent instructions.

— Hon. Jas. M. Sandusky, Judge. (1) There is no power given municipal corporations to regulate billiard and pool tables, except by a license tax. Knox City v. Thompson, 19 Mo. App. 523. (2) Their ordinances must be in conformity to the state law. There is no law in this state to punish the keeper of a billiard table for permitting minors to play on such tables. The punishment prescribed is by civil action.

James M. Sandusky, Judge. (1) All actions must be prosecuted in the name of the real party in interest, except suits instituted by administrators, executors, trustees or persons expressly authorized by statute. R. S. 1889, secs. 1990, 1991 ; Grocery Co. v. Crow, 36 Mo. App. 293. (2) One receiving negotiable paper, as collateral security for indemnity, is not necessarily a holder for value. Tiedeman on Com.

— Hon. James M. Sandusky, Judge. (1) The information does not state facts sufficient to constitute a cause of action, or to constitute any offense. R. S. 1889, sec. 2608.

— Hon. E. M. Hughes, Judge. The court admitted improper evidence over plaintiff’s objections. The court excluded proper and legal evidence offered by the plaintiff. 2 Wagner’s Statutes of 1872, secs. 8, 9, 10, p. 1220 ; Railroad v. Young, 96 Mo. 39, and cases there cited ; Mitchell v. Railroad, 82 Mo. 106 ; Backenstoe «.

— Hon. John A. H'ookabay, Judge. (1) The court admitted improper evidence on the part of plaintiff : First. In permitting plaintiff, without showing any knowledge upon the subject, to testify as to the value of the goods. Miller v. Bryden, 34 Ill. App. 602; Quest «. Ins. Co., 33 N. W. Rep. 31; Frederick v. Ins. Co., 28 Ill. App. 215. Second. In permitting plaintiff to testify to conversation with local agent, after the fire. Williams v. Edwards, 94 Mo. 447. Third.

— Hon. John A. Hockaday, Judge. (1) Upon the testimony in this case the court should have directed a verdict in favor of the defendant. First. Because of the open gate. West v. Railroad, 26 Mo. App. 344; Morrison v. Railroad, 27 Mo. App. 418; Ridenour v. Railroad, 81 Mo. 227. Second.Because no negligence was shown in the management of the train. Young v. Railroad, 79 Mo. 336 ; Ravens-craft v. Railroad, 27 Mo. App. 617.

— Hon. John A. Hookaday, Judge. (1) The court erred in permitting defendants, J. P. Walker and J. H. Brownfield, to testify to parol authority said to be given by defendant Walker to defendant Brownfield to make a general assignment of all the firm assets for the benefit of creditors, as such authority should have been given by proper instrument under seal and duly acknowledged. R. S. 1889, sec. 424.

— Hon. E. L. Edwards, Judge. (1) A person buying tlie interest of a partner in a stock of goods becomes a tenant in common with the other partner or partners; becomes entitled to an account, and is entitled only to the aliquot portion of their value after all debts of the partnership are paid. Tennant, Walker & Co. v. Guenther é Blackman, 31 Mo. App. 429 ; Marx s. Goodnough, 16 Pac. Rep. 918; Dyckman s. Valiente,. 42 N. Y. 549 ;1 Story, Eq.

— Hon. E. L. Edwards, Judge. The sufficiency of the prescription was a question of law for the court; hence, the first instruction for the state was erroneous, and should not have been given. State v. Clevenger, 25 Mo. App. 653,; State v. Roberts, 33 Mo. App. 524; State v. Marchand, 25 Mo. App. 658.

— Hon. E. L. Edwards, Judge. (1) The trial court erred in refusing to instruct the jury as requested by the plaintiff. Where a person, under a mistake of fact, is induced by the fraud and concealment of another to perform for him valuable services, the law raises an obligation to pay what the services are reasonably worth, although when rendered there was no expectation that they should be paid for. Higgins v. Breen, 9 Mo. 497; Board,man v. Ward, 40 Minn. 399 ; 12 Am.

— Hon. J. M. Davis, Judge. As the facts stand admitted, the only question presented is, as to the correctness of the finding of the court, that a plate-glass front in a building is not a window. This ruling, we insist, is contrary not only to the intentions of the parties as expressed in the policy, but is at variance with the common understanding of everyone.

— Hon. Henry M. Ramey, Judge. (1) “As security for the within note I hereby mortgage and pledge,” are apt words of conveyance. They indicate the nature and intention of the instrument as plainly as if written out in the most formal language. “To mortgage” means to convey with a defeasance. The purpose was expressed. The use of the word “pledge ” in this connection gave the right to immediate possession. Bascom v. Rainwater, 30 Mo.

E. L. Edwards, Judge. (1) It has been expressly held, that testimony as to a former prosecution of defendant for seduction of the woman, whom he subsequently married, was inadmissible, where… Held: that testimony as to a former prosecution of defendant for seduction of the woman, whom he subsequently married, was inadmissible, where defendant was upon trial for wife abandonment.

— Hon. Ohas. W. Sloan, Judge. Our appellate courts having followed “the American doctrine,” and the legislature, desiring that the English doctrine should become the law of this state, in 1879, adopted section 598 of Revised Statutes, 1879. R. S. 1889, sec. 944. It has been held that said statutes have no other effect than to adopt in this state the “English rule.” Dimmitt v. Bailroad, 15 S. W. Rep. (Mo.) 762, 768.

<p>Appeal from the LaFayette Criminal Court. — Hon. John E. Ryland, Judge.</p> <p>(1) The statute does not extend the penal consequences to aiders and abettors. R. S. 1889, secs. 4570, 4583, p. 1044 ; Commonwealth ». Willard, 22 Pick. (Mass.) 476; Frey ®. Commonwealth, 83 Ky. 190; Commonwealth ». Williams, 4 Allen, 587; Hill v. Spear, 50 N. H. 253 ; Harney ®. /S'iaie, 8 lea, 113; Wliart. Crim., Law [7 Ed.] sec. 120. (2) Even if aiders and abettors were covered by the statute to constitute them aiders and abettors, the act must have been knowingly done. Village of St. Johnsbury v. Thompson, 9 Vt.. 571; Crowell v. State, 6 S. W. Rep. (Tex.) 318 ; Goins ®. State, 21 N. E. Rep. ( Ohio) 476 ; State v. Fry, 40 Kan. 311; 1 Whart. Crim. Law [7 Ed.) sec. 120 ; 1 Bish. Crim. Law, 658, and note; 1 Bish. Crim. Proc. [2 Ed.] 1024; Green v. State, 13 Mo. 382 ; State-». Hollensoheit, 61 Mo. 303 ; State v. Cox, 65 Mo. 29 ; Commonwealth v. Williams, 4 Allen, 587. (3) The court erred- in refusing instructions asked by appellant. Could the mere act of setting the glass on the counter constitute a sale or a crime?</p>

— Hon. JohnE. Rtland, Judge. (1) The prosecuting officer is not required to have personal knowledge of the offense charged. State v. Bansbarger, 42 Mo. App. 466; State v. Fletchall, 31 Mo. App'. 296; R. S. 1889, secs. 4057-9 ; R. S. 1879, secs. 1762-3. (2) The information of the common law is the information prescribed by the constitution and authorized by the legislature.

— Hon. Chas. W. Sloan, Judge. (1) The admission of parol evidence to contradict and vary the. express terms of the Brown mortgage in this action at law was erroneous, and in direct conflict with every adjudication on the question by the appellate courts of this state. Miller v. Dunlap, 22 Mo. App. 97; Jones v. Shepley, 90 Mo. 307; Ins.

— Hon. R. H. Field, Judge. (1) The measure of damages as contained in instruction, we contend, is the true one, and is sustained by abundant authority. “The general rule is well established, that on the seller’s failure to deliver the goods, according to the contract.' the ordinary measure of damages is the difference betw ;en the contract price and the market price of the goods at the time when, and the place where, they should have been delivered.” Or the buyer may…

— Hon. J. H. Slover, Judge. (1) Our first point is that the court erred in refusing to allow the plaintiff to answer the question: “ State what occurred the first time that Dr. Ewing came to you and spoke to you about your services as an architect.” Watson distinctly states that he came to him from Mrs. Race as her agent; that he had been superintending the residence Mrs. Race was then building, and that he, during the whole of that time, acted as her agent, 2 G-reenl.

— TIon. A. M. Woodson, Judge. (1) It was error to refuse the instruction asked by appellant, declaring that respondent was not entitled to recover in this case. Said instruction ought to have been given for several reasons: First. The petition does not state facts sufficient to constitute any cause of action. Second. The evidence fails to make out a case against appellant.

— Hon. G. 3). Burgess, Judge. (1) Part of the contract of the sureties on a promissory note is the statutory right to notify the payee to sue to the principal, after an action has accrued, and, if suit is not brought within thirty days after notice, to be exonerated from liability. The right of the payee, in this regard, is to have this notice in writing. R. S., secs. 8343, 8344. It is not contended that a verbal notice to sue, with nothing more, is sufficient.

— Hon. G. L>. Burgess, Judge. (1) The uncontradicted testimony, admitted by tbe demurrer to be true, is that the goods were delivered to the carriel’, at its depot, boxed and marked for shipment, and, as an incident, prior to the shipment, placed by the order of the agent of the carrier- in its freight-room. This was delivery to the carrier, and the liability of common carrier began at the time of such delivery. Mason v. Railroad, 25 Mo.

— Hon. G. D. Burgess, Judge. The plaintiff’s fifth instruction referred to in the -opinion is as follows : “5.

— Hon. James M. Sandusky, Judge. (1) The circuit court had jurisd'ctionon appeal to try,this case. R. S. 1889, secs. 3434, 3318. There is no express prohibition of appeal by law in cases of this kind. (2) The judgment of the county court incorporating the city of Edgerton was not a legislative but a. judicial act. 1 Dillon, Mun.

<p> Per Smith, P. J.: </p> <p>1. Appellate Practice: province op appellate court : discretion op trial COURT. In this state it is incontrovertibly established by decisions of all the appellate courts, that they are empowered, by virtue of their superintending control over inferior courts, on appeal or writ of error, to review and interfere with the discretion of such inferior courts in setting aside their findings, verdicts and judgments, in those cases where-it is affirmatively shown that their action was illegal, because in contravention of some statute, or when oppressively or abusively exercised, or when their discretion has been unjudicially exercised.</p> <p>Per Ellison, J.:</p> <p>2. -:-: -. There are two kinds of discretion reposed in the trial courts of general jurisdiction, one is limited by rules or principles of law ; the other is absolute and exists where no fixed or certain rule of law .can apply. The former is reviewable, the latter is not, and from the nature of the case cannot be.</p> <p>8. -: -: setting aside judgment by default : common LAW: statute. By common law the granting a new trial or setting aside a judgment by default rested in the absolute discretion of the trial court and was not reviewable, and, while the common law as to new trials has been superseded by statute, yet no statute seems to have touched the power and discretion over judgments by default.</p> <p>4. -: -: SETTING ASIDE V. REFUSING TO SET ASIDE A judgment. There is a distinction between setting aside a judgment and refusing to set it aside. In the former case, the plaintiff is without remedy, in the latter, error will lie in behalf of the defendant.</p>

Louis City Circuit Court. — Hon, Jacob Klein, Judge. (1) An agent is required by general law to have •.authority in writing in order to bind his principal to a •contract for the sale of the principal’s lands, and, therefore, it is the duty of persons dealing with the agent to .ascertain whether or not such authority exists, in the .absence of any fraudulent representation by the agent that such written instrument exists, and that the requisite authority is conferred by it.

<p>1. Appellate Jurisdiction: title to real estate. A suit for the admeasurement of dower involves title to land, and this court has, therefore, no appellate jurisdiction thereof.</p> <p>2. -: practioe. If a writ of error is sued out in a cause whereof the supreme court has the exclusive appellate jurisdiction, this court cannot of its own motion dismiss the writ on the ground that the requisite statutory notice of the issue of the writ has not been given to the defendant in error; but the plaintiff in error may voluntarily dismiss the writ in this court.</p>

Louis Qity Circuit Court. — Hon. Daniel D. Eisher, Judge. (1) The petition does not state a cause of action against Mary C. Hunt, as devisee of Charles L. Hunt, because on its face the cause of action, if any, arose in 1884, and Charles L. Hunt died in 1885, thus stating a claim that could have been presented for allowance against his estate in the probate court, and no reason is given for the failure of the plaintiff to so present it for allowance.

<p>Í. Law and Fact: construction of written contracts. If an ambiguity in a px-ovision of a written contract cannot be solved by reference to other .parts of the contract, and if the surrounding circumstances are the subjects of controversy, the construction of the provision is a question of fact for the jury under proper instructions from the court.</p> <p>2. Construction of Ambiguous Contracts: construction by parties. In such case the interpretation put by the parties themselves upon the contract is of great weight, if not controlling authority.</p> <p>3. Disputed Claim: acceptance of. tender of part. Where a claim is disputed and a debtor tenders a part of it to the creditor in full satisfaction of it, the creditox-, if he accepts the tender, is bound by the terms thereof ; the creditor cannot accept the tender and prescribe the tei'ms of acceptance.</p>

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

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The sale of the landlord’s title under a judgment or mortgage antedating the lease extinguished the lease and annihilated the rents reserved. Simers «. Salius, 3 Denio, 214; Luff •». Wilson, 69 Pa.

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

Louis City Cirobit Court. — TIon. James E. Withrow, Judge. (1) The court erred in excluding evidence offered by the garnishees to prove that the defendant was the head of a family. They were not, in so doing, seeking to claim any personal exemption for defendant. Under the statute, if he was the head of a family, they were exempt from the process of garnishment, and were not liable for the payments made to defendant after garnishment.

<p>1. Justices’Courts: sufficiency of the statement of the cause OF action. The statement of a cause of action in a suit instituted before a justice of the peace is sufficient, if it advises the defendant of the nature of the cause of action, and is sufficiently definite to bar another action for the same matter.</p> <p>2. Practice, Appellate: failure of appellant to file motion for new trial in time. If an appellant fails to file a motion for new trial within the requisite time, only errors which appear on the face of the record proper can be noticed on the appeal.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence and motion for a new trial. Coates v. Express Co., 45 Mo. • 241; Ryan v. Railroad, 65 Tex. 13; Railroad v. Railroad, 37 Fed. Rep. 571; Whiteworth v. Railroad, 87 N. Y. 417; Railroad v. Daniels, 32 Am. & Eng.

<p>Chattel Mortgage: surrender. The voluntary surrender of a chattel mortgage, and of the note thereby secured, by the holder to the mortgagee will operate as a cancellation of the mortgage without a release thereof of record.</p>