Volume 48 — Missouri Appeal Reports

<p>Appeal from the Laclede Circuit Count. — Hon. W. I. Wallace, Judge.</p>

— Hon. W. D. Hubbabd, Judge. The defendant, D. E. Davis, was not in possession of the land in controversy at the commencement of this suit and plaintiff cannot recover. R. S. 1889, secs. 5087, 5088.

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

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

— Hon. W. D.. Hubbard, Judge. Municipal corporations, acting without negligence or malice, like individuals, are liable for injuries from their acts, although acting within the scope of corporate authority. MeOombs o. Town Council, 15, Ohio, 475, reviewed in 18 Ohio, 229 ; City of Cincinnati v. Penny, 21 Ohio St. 499. An action will lie for money actually paid to the defendant, and which it is against equity and good conscience for him to retain. Dillon on Mun.

<p>Appeal from the Reynolds Circuit Court. — Hon. J. P. Green, Judge.</p>

— Hon. James H. Lay, Judge. (1) The demurrer to the testimony offered at the close of the state’s case'should have been sustained. Defendant was prosecuted as a dramshop keeper, and there was no evidence showing or tending to show that he was a dramshop keeper, as that term is defined by Revised Statutes, 1889, section 4569.

— Hon. D. P.. Stratton, Judge. “It is hereby agreed that the issues joined upon-the interplea of M. E. Pollard, in each .of the above-entitled causes pending in the circuit court of Cedar-county, Missouri, shall be determined on the following statement of facts, which are admitted to be trae: That the interpleader, M. E. Pollard, received from the-estate of her father certain money, of which on September 1, 1883, she loaned the defendant, J. T. Wood, $1,301, for which she…

— Hon. D. P.. Stratton, Judge. (1) The petition charges that defendant won the-money in a game of draw poker from plaintiff. The facts set forth in said instruction, numbered 2, tended to-show that defendant did not win anything from plaintiff.

— Hon. C. H. S. Goodman, Judge. (1) It was necessary that this $5 indorsement should have been made with the knowledge or consent of at least one of the parties liable on the note. Randolph, Com. Paper, sec. 1624, pp. 721-2. And, if no payment was actually made, the statute would not be stayed by an indorsement like this. 3 Randolph, Com. Paper, sec. 1624, p. 722, and cases cited.

<p>Appeal from the Daviess Circuit Court. — TIon. C. H. S. Goodman, Judge.</p>

— Hon. C. H. S. Goodman, Judge. (1) The police judge’s docket, as originally sent to the circuit court, as well as the amended transcript and the written complaint filed in the court before the same was dismissed, and each of them, were sufficient to advise the defendants of what they were charged with, and is a full compliance with the statute. R. S. 1889, sec. 1635.

— Hon. C. H. S„ Goodman, Judge. The evidence conclusively shows that the note sued-upon was given for necessary medical treatment to the defendant in a.case of typhoid pneumonia. A stronger case of actual necessaries could not be presented. Contracts of infants for necessaries are neither void nor voidable, but are permitted to be made as a matter of necessity. 1 Parsons on Contracts [3 Ed.] 244-5.

— Hon. C. A. Anthony, Judge. (1) I do not think that plaintiff violated the provisions of section 6137, Revised Statutes, 1889, by the statement of his cause of action originally filed in the justice’s court. First. Because the pleadings in a justice’s court are not required to possess that technical precision required in circuit courts. Second. Because, from the face of the statement, there was intended to be charged but one cause of action, though stated in different forms.

— Hon, C. A. Anthony, Judge. (1) There is a misjoinder of parties plaintiff. The loss, if any, was payable to Gr. W. Shelton, mortgagee, as his interest may appear. The petition alleges that the mortgage was unpaid. The mortgage exceeded the amount of the policy ; Shelton, therefore, was the only proper party to sue on the policy. Griswoldv. Ins. Co., 1 Mo. App. 97-100'; Bartlett v. Ins. Co., 41 N. W. Rep. 579 ; Megher v. Stewart, 6 Mo.

— Hon. Riciiaed Field, judge. (1) This is a case where a deed of trust is made to secure two. different notes, executed by the same party to separate and distinct persons, who are each named in the deed of trust as beneficiaries.

^Esm. Gr. D. Burgess, Judge. (1) The court erred in giving instruction 2, asked by plaintiff, in its definition, of 'negligence. “Negligence, ” “ recklessness ” and “ carelessness ’ ’ are defined to be “a wilful disregard of ordinary prudence.” Instruction, numbered 1, asked by plaintiff authorizes a recovery by plaintiff if the ‘ ‘ collision was caused by the carelessness or negligence of engineer Joslyn.” In other words, a recovery is authorized upon a finding by the jury…

— Hon. A. M. Tyoodson, Judge; The only theory c.n -which the court could refuse declaration, numbered 1, offered by appellant would be, first, that under the contract the relation of landlord and tenant was not created; second, that, if said relation was created, the tenancy expired when the corn was gathered and prior to the time of the bringing of this suit. (1) The relation of landlord and tenant may be created for a period of one year, by parol.

— Hon. W. I. Wallace, Judge. (1) The right of set-ofE did not exist at common law. The statute must give or it does not exist. And the statute being in derogation of common law-must be strictly construed. And a party to be entitled to its benefits must be clearly within its provisions. Mate ex rel. v. E Idridge, 65 Mo. 584; Primm, Taylor ■& Brown v. Ransom, 10 Mo. 444. (2) The parties to the two judgments are not the same. Appellant’s judgment is • against Smith and Campbell.

— Hon. M. G. McGregor, Judge. The court erred in overuling defendant’s motion to dismiss appeal. The affidavit for the appeal is insufficient.

— Hon. M. G. McGregor, Judge. This is an action for damages for malicious prosecution, brought against the defendant and one A. B. Ellison. After the testimony was introduced, respondent dismissed as to Ellison, and the cause proceeded against the Pacific Express 'Company and resulted in a judgment in favor of the plaintiff. Defendant brings the case here.

— Hon. J. M. Davis, J adge. • The assignee of the crop grown on the demised premises is accountable to the landlord for the value of such crop to the extent of the landlord’s lien, if the crop be consumed by him, and the assignment made to him be a voluntary assignment. Knox v. Hunt, 18 Mo. 243; Saunders v. Ohlhausen, 51 Mo. 163; Hulett v. Stoclcwell, 27 Mo.

— Hon. James H. Lay, Judge. (1) Defendant could not treat said liogs as strays and proceed under the stray law, for the reason tha^ they were taken up in the month' of August, and by section 8259, chapter 154, Revised Statutes, it is provided that “no person shall take up as a stray any unbroken animal between the first day of April and the first day of November.” R. S. 1889, sec. 8259.

— Hon. R. H. Field, Judge. (1) The general rule is well established that a judgment in a former action, when offered in evidence in a subsequent action between the same parties upon a different demand or cause of action growing out of the .same transaction, operates as an estoppel or bar only upon the matter in issue and determined in the former action.

— Hon. James Gibson, Judge. In granting a new trial the court is not necessarily •confined to the grounds enumerated in the statute. LeaTiey v. Dugdale, 41 Mo. 517; Fine v. Rogers, 15 Mo. 315. Where a defendant is suddenly prostrated by sickness and cannot communicate with his counsel, who proceed to trial not knowing the cause of his client’s absence, a new trial should be granted. White v. Marlin, 63 Ga. 659.

— Hon R. H„ Field, Judge. (1) The jury should have been directed to return a verdict for defendant because a torn transfer check was not proper evidence of plaintiff’s right of passage; and this is so, even if the company had not had a rule relating to the same. Kellett v. Railroad, 22 Mo. App. 356; 2 Wood’s Railway Law, 1394, 1395; Mosher v. Railroad, 127 U. S. 390 ; Walker v. Railroad, 15 Mo.

— Hon. James Gibson, Judge. (1) The court, upon the prima facie case made ■by plaintiffs’ affidavits, should have made a rule on the j ustice to correct his record or show cause why the same should not have been corrected.' It is not the ■proper practice to try such an issue upon affidavits.Hill v. Patter son, 34 Mo. App. 169; Smith v. Chapman, 7 Mo. 217; Norton v. Porter, 63 Mo. 345.

— Hon. James Gibson, Judge. (1) A trustee is bound to perform all acts winch, are necessary for' the proper execution of his trust.Story on Contracts [5 Ed.] sec. 297. He is liable when he does not exercise the diligence that a good business man would, when exercising such a trust.

<p>1. Principal and Agent: action against agent . mistake. Where one through mistake pays to an agent money believed to be due the principal, and the agent receives.it and passes it into his principal’s possession with the knowledge of the payer, such payer cannot maintain an action for the money so paid against the agent.</p> <p>' 2. Evidence: money had and received. In an action against an agent for money paid through mistake of fact for his principal, it is error not to allow the defendant to show that the principal’s loss in the transaction was greater than the money paid through mistake.</p> <p>3. Money Had and Received: mistake : consideration. The action to recover money paid by mistake is for money had and received, which in equity and good conscience ought to be returned, and the mistake must be to such an extent as to destroy the consideration; and so where both parties believe the amount due greater than it really is, and, in consequence of such belief, an amount is paid, but less than the amount truly due, with intention to make future payment up to the amount believed to be due, upon discovery of the mistake, the action does not lie to recover the payment made.</p>

— Hon. John W. Henry, Judge. (1) The complaint Roes not state that plaintiff was in the actual possession of the land, nor does the proof show actual prior possession. The proof clearly shows a trespass and scrambling possession. Dyer n. Reitz, 14 Mo. App. 45 ; Kennedy v. Pruitt, 24 Mo. App. 419 ; Conroy, v. Duane, 54 Cal. 597; Anderson v. Mills, 40 Ark. 192 ; Miller v. Noriliwp, 49 Mo. 400; Bartlett r>. Draper, 23 Mo. 407.

— lion. Bichard H. Field, Judge. (1) This being an equitable proceeding, this court will render such a decree, or make such orders in the case, as under all the evidence in the case the trial • court should have made. (2) The trial court, in deciding this cause, was evidently endeavoring to follow the doctrine of this court, as announced in the case of Reed v. Reed, 39 Mo.

— Hon. John W. Henry, Judge. (1) The lien statement sufficiently shows the date of the delivery of the items of the materials. Cole v. Barron, 8 Mo. App. 509; Hayden v. Wulfing, 19 Mo. App. 353; Pool v. Wedemeyer, 56 Tex. 287, 289; O'Leary v. Roe, 45 Mo. App. 567; Kern v. Pfaff, 44 Mo. App. 29. (2) The indorsement of the clerk on the lien paper of the time of its filing is prima facie and best evidence of the time of filing; and of the fact that it was filed.

— Hon. Richard H. Field, Judge. (1) For the purpose of simplifying matters it may be well to concede for the sake of the argument, that where a mortgage, having the mere naked right of possession is deprived of that possession, he cannot recover damages for .the loss of the property, for the reason that his possession is not for the purpose of using it, but is for the purpose of foreclosure. Jones on Chat. Mort. [ 3 Ed.] p. 462.

— Hon. 0. A. Anthony, Judge. (1) The vital question to be determined by this court is, did Craig’s dealings with respondent, in the Knox business, constitute him Knox’s agent in so general and unlimited a degree as to bind Knox in whatever Craig saw fit to do, and to protect the borrower, ' respondent? We say not, and that the court erred in its finding in the affirmative and to that effect, under the evidence.

— Hon. E. M. Hughes, Judge. The instruction that under the evidence plaintiff could not recover was properly given. A carrier is not liable for losses due to the natural decay or inherent character of the goods shipped. Schouler on Bailments, p. 397; Hutchison on Carriers, sec. 222. A carrier is not a health or life insurer.

. Hon. Maurice Cramer, Judge. The only point in this case is one of interpretation of policy. Did the phrase, “On hay in bam or stack,” mean that the hay must be in insured barn % The court-will endeavor to give to the contract a rational and just construction, and the presumption is in favor of the comprehensive over the restricted sense. 2 Parsons on ■Contracts [5 Ed.] pp. 500, 501; Fur Co. v. Ins. Co., 17 Mo. App. 627.

Ben. E. Turner, Judge. The court below,erred in not sustaining defendant’s motion for judgment for failure of plaintiffs .to reply to new matter jjleaded by way of defense in defendant’s ■answer,' to-wit, tlie truth of the matter charged. R. S. 1889, sec. 2081. This was a matter the defendant had to plead, otherwise he could not have offered any proof as to the truth of the words charged ; hence, not having been replied to, he was entitled to judgment.

<p>Appeal from, the Iron Circuit Court. — Hon. J. F. Green, Judge</p>

<p>1. Divorce: pleading. The rule, that affirmative matter of defense must be pleaded, to warrant the admission of it in evidence, applies to divorce cases only in a limited sense. When such matter is not pleaded in a divorce case, the defendant is not entitled as a matter of right to introduce evidence thereof; nevertheless, the court may, in the interest of the public and in the exercise of a sound discretion, receive and consider such evidence.</p> <p>2. -: recrimination : palliation or mitigation. To constitute a defense to a divorce suit as a matter of recrimination, the plaintiff’s conduct must have been such', as would entitle an innocent defendant to a divorce. Matter of provocation, palliation or mitigation, on the other hand, consists of misconduct on the part of the plaintiff, to which the ground for divorce, alleged by him, is to be ascribed as a natural or probable result, 'and which is, therefore, received in extenuation of the defendant’s action. And, held, that the defendant’s conduct in the case at bar constituted matter neither of recrimination nor of provocation or palliation.</p> <p>3. -: non-support of wife. While the husband is the head of the family and legally chargeable with its support, the propriety and amount of his expenditures for its support must necessarily rest to a great extent in his discretion. If non-support can ever amount to an indignity within the meaning of the statute defining the grounds of divorce, as to which no opinion is expressed, it can only be non-support of a very flagrant character.</p>

<p>Appeal from the Greene Circuit Court. — Hon. O. H. Travers, Judge,</p>

<p>1. Replevin: form of judgment on appeal from a justice of the peace. If an appeal is taken to the circuit court from the judgment of a justice of the peace in an action of replevin, the judgment in the circuit court must conform to the rules of practice obtaining in actions of replevin instituted in that court, and need not comply with the statute prescribing the form of the judgment of the justice.</p> <p>2. -: FORM OF JUDGMENT IN THE CIRCUIT COURT: NON-PRE JUDICIAL error. If the judgment of the circuit court in an action of replevin is in favor of a defendant, from whom the property in controversy has been taken in the proceeding, the plaintiff is not prejudiced by, and is not entitled to complain of, its failure to give to the defendant the right to a return of the property. <</p>

<p>Appeal from the 81. Francois Circuit Court. — Hon. James D. Fox, Judge.</p>

<p>1. Practice, Appellate: non-prejudicial error. The admission^ of evidence, claimed to be incompetent, to disprove a plea of res adjudicate/ is not prejudicial, when a peremptory instruction to the jury to find against the plea would have been" warranted by the other evidence in the case.</p> <p>2. Instructions: burden of proof : non-direction. The failure of the trial court to instruct the jury in regard to the burden of proof amounts to non-direction when no such instruction is asked, and,, therefore, does not constitute error.</p>

<p>1. Contracts: alteration of proposal. Where one party submits to the other for signature the draft of a contract between them, and the latter alters it by inserting an additional provision therein, and 'then signs and returns it, the first draft is to be treated as a rejected proposal for a contract, and the altered form as a counter proposition.</p> <p>:2. -: -: acceptance. To render such contract binding in its altered shape, it must have been accepted by the party to whom it was returned; but express notice of the acceptance is not essential, when apparently not contemplated, though, in such case, the acceptance must be clearly manifested by some other act. And held, that, in this cause, the submission of the issue as to such acceptance to the jury was warranted by evidence of the retention of the contract in its altered form, without objection, by the party to whom it had thus been returned, and that it was a question for the jury, whether such acceptance was disproved by the testimony of such party, that he had not read the contract after its return.</p> <p>.8. Practice, Trial: prejudicial error in the admission of incompetent evidence. The rulings of the trial court in the admission of incompetent evidence are considered, and held to have constituted prejudicial error.</p>

— Hon. John Gr. Wear, Judge. (1) The instruction to find for defendant was error. The question whether in fact the deed is to the grantor’s use is for the jury. Weber v. Armstrong, 70 Mo. 220; Few son v. Tootle, 72 Mo. 632; State ex ret. r>. Cooper, 79 Mo. 446 ; Bullene v. Barrett, 87 Mo. 186 ; Thompson v. Foerstel, 10 Mo. App. 299. There was nothing on the face of this deed of trust from which a power of sale in the grantor could be inferred. Thompson v. Foerstel, 10 Mo.

<p>.Error to the Phelps Circuit Court. — Hon.. C. C. Bland, Judge.</p>

<p>Appeal from the Lawrence Circuit Court. — Hon. M. G. McGregor, Judge.</p>

— Hon. H. N. Phillips, Special Judge. The court erred in giving and refusing instructions, and as to each instruction given and refused. In neither of the instructions given by the court are the jury told that they must find from the evidence that the offense was committed in the county of Ripley and state of Missouri. The venue must be laid in the county and state, of course, and must be proved as any other fact. State v. Cook, 58 Mo. 546 ; State v. McGrath, 73 Mo. 181.

<p>1. Municipal Corporations: right oh waterworks company to MAKE EXTRA CHARGE FOR WASTE OF WATER BY CONSUMER. A' municipal ordinance granted to a company the right to supply water to citizens, and authorized the company “to make all needful rules and regulations for shutting of£ water for non-payment of water rent by private consumers, or for waste or any wrongful use of water.” It also established a schedule of prices for water used for horses and washing carriages at livery stables, and a maximum price where water was paid for by meter measure. Held, that the company was -warranted in making a regulation, pursuant to which it ascertained by meter measurement the water used at a livery stable, and charged at said schedule rate for the amount of water reasonably necessary for the horses kept and carriages washed at said stable, and at said maximum rate for the water wasted there, that is, for the amount there in excess of what was reasonable for said purposes.</p> <p>3.--: right of waterworks company to shut off water from premises of consumer. Held, further, that the company, in case of the non-payment of the extra charge, was not restricted to an action at law for the recovery of that charge, but had the right to shut off the supply of water to the consumer.</p> <p>3. Injunction: remedy of consumer 'in case of excessive charge by waterworks company. One who seeks to restrain by injunction any act for the collection of money must first tender what is justly due. Held, under this rule, that where the waterworks company makes an excessive charge for water thus wasted, and is about to shut off the supply of water to the consumer owing to the non-payment of this charge, the consumer must first determine and make an approximate tender of the amount justly due the company before he can successfully invoke equitable protection by injunction..</p>

<p>1. Life Insurance.: forfeiture 'of policy for non-payment of premiums : validity of provisions of POLICY. When a life-insurance company does business and issues policies in this state to residents thereof, the validity of the provisions of the policies in regard to forfeiture for non-payment of premium must be determined in conformity with our statutes, which override the freedom of the parties to contract and make ineffectual a waiver of their effect, ¿n whatever terms such waiver may be expressed.</p> <p>2. -:--. If the provisions of a policy of life insurance, . in case of a default in the payment of a premium after two full annual premiums have been paid, entitle the insured to the unconditional commutation of the insurance effected by it into nonforfeitable insurance of a value equal to or greater than that prescribed by the statute in such case, that statute has no application.</p> <p>3. Evidence: judicial notice : scientific information. The rule,, that courts will take judicial notice of ordinary mathematical' propositions, as well as of scientific facts which universal experience has rendered axiomatic, is not applicable to the ascertainment of the present net value of a life-insurance policy, depending-partly on extraneous facts and partly on the accuracy of an intricate computation.</p> <p>4. -: expert evidence. In such a case expert evidence is-admissible, and, while such evidence is merely advisory, it cannot be rejected, unless it proves itself unworthy of credit on the-application of simple mathematical tests.</p> <p>5. Practice, Appellate: weighing the evidence. This court will not weigh conflicting evidence in an action at law tried by the-trial court sitting as a jury, and this rule applies to a judgment based upon expert evidence, which cannot be rejected as a matter of law.</p>

<p>.L. Bill of Exceptions : incorporation of evidence. • Notwithstanding the applicability of the statute in relation to official stenographers in counties having forty-five thousand inhabitants or less, evidence, which is not incorporated, but merely called for in a bill of exceptions, will be disregarded by this court, if a transcript thereof was not made at the time of the signature of the bill; evidence thus referred to in a bill of exceptions should be written out, and a copy of it should be attached to the bill at the time of signature, so as to render it capable of identification.</p> <p>:2. Fraetice, Appellate : necessity of exceptions to rulings complained of. This court will not review the rulings of the trial court on motions to strike out parts of the petition in the cause when the record fails to show that exceptions were saved to such rulings.</p>

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

<p>1. Nuisances: character or remedial action. An action was brought for damages for the erection by the defendant of an obstruction to a water-course running through the lands of the-plaintiff and defendant, and an order was also asked therein to ■restrain the re-erection by defendant of this obstruction, the same-having been washed away prior to the institution of the suit. Held, that the action was one at law.</p> <p>2. --: measure oe damages. If a nuisance is temporary, or is--likely to be removed, or has been removed, a party injured by it can in an action at law only recover the damages actually sustained fcy him at the date of the institution of the suit. And, held' (Thompson, J.. dissenting), that, the aforesaid obstruction having-been rebuilt by the defendant after the institution of the suit, the allowance of the damages which were sustained by the plaintiff up to the date of the trial was erroneous.</p> <p>3. Practice, Appellate: immaterial error. But it appearing-that the excess of the damages amounted to only $10, and that the right of the plaintiff thereto in another action would be incontrovertible, held, that the reversal of the judgment was not warranted.</p>

(1) The petition does not state facts sufficient to entitle respondent to recover against the appellant as stakeholder. The petition does not state that appellant received the money sued for, knowing that it was staked on any betting declared gaming by the statutes of this state, and appellant’s objection to the introduction of any evidence should have been sustained.

<p> Appeal from the Greene Circuit Court. </p> <p>(1) The circuit court below had no jurisdiction of the subject-matter of voucher, number 4. The record shows no appeal was taken from any action of the probate court on said voucher. And if the circuit court had jurisdiction on the evidence it committed an error in disallowing said voucher. Branson v. Branson, 102 Mo. 613, 620. (2) The circuit court below committed error in charging said executor interest on assets of said deceased, in his hands during administration. R. S. 1879, sec. 99 ; Eaton v. Walsh, 42 Mo. 272, 275; Bidgway v. Eerfoot, 22 Mo. App. 661, 665; Ipswich ¶. Story, 5 Mete. 313 ; Winship v. Bass, 12 Mass. 199; Myers v.- Myers, 98 Mo. 262, 267.</p>

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

<p>1. Administration: action to cancel fraudulent allowance of demand in favor of administrator : pleading. The defendant in this cause presented in the proper probat6 court a claim in his favor as a demand against an estate which was being administered upon, and obtained a judgment in that court allowing his claim as such a demand. The plaintiffs, who, together with the defendant, were the distributees of the estate, instituted this action and sought therein to have the allowance canceled as fraudulent. Held, that the petition sufficiently averred fraud on the part of the defendant in procuring the allowance, and showed sufficient diligence on the part of the plaintiffs, notwithstanding that this action was commenced two and a half years after the allowance was made.</p> <p>■0. -:--: sufficiency of the EVIDENCE. When a judgment is attacked and sought to be set aside for fraud, a recovery cannot be had unless it appears that there was fraud in the proceedings whereby the judgment was procured ; the fact that the cause of action upon which the judgment was based was fraudulent will not suffice. But held, that the requisite fraud was established by the evidence in this cause.</p> <p>.3. -:-: notice of claim to distributees. While the law does not entitle the distributees of an estate to notice of the presentation of claims in the probate court for allowance as demands against the-estate, still, when an administrator presents a claim in his own favor for such allowance, circumstances may exist, and they are held to have'existed in this cause, making it the duty of the administrator to give notice thereof to those immediately interested in the estate.</p> <p>4. Practice, Appellate: motion to retax costs. A question relating to the taxation of the costs in the trial court must be presented to that court, before it can be made the subject of review in an appellate tribunal.</p>

— Hon. Henry M. Ramey, Judge. (1) The court erred in failing to sustain appellant’s objection to the introduction of any evidence. (2) The court erred in admitting incompetent evidence. (3) The errors of the court in instructing the jury: First. The third instruction given by the court of its own motion allows respondent to recover for tlie negligent construction of the trench' in which he was working.

— Hon. J: H. Sloveb, Judge. (1) The action of the court in admitting the testimony, as to plaintiff’s sewing and keeping a hairdresser, was erroneous. The fact was immaterial and not relevant to the issues, and could only tend to inflame the minds of the jurors. (2) We sought by instruction 11 to have the idea expressed that the presumption of a performance of a duty attended the acts of an individual the same as if the acts had been that of a public official.

— IIon. E. L. Edwards, Judge. (1) Tbe court erred in not giving instructions, numbered 1, 6, 7 and 9, asked by tke defendant. All the evidence shows that at the time of the division this-was not a lawful fence. Section 5652, Revised Statutes, 1879, prescribes what shall constitute a lawful fence.

— Hon. H. M. Ramey, Judge. (1) The court erred in permitting the plaintiff, under the pleadings, to offer in evidence the special contract between plaintiff and appellants, and the final estimate of the civil engineer of the Chicago, St. Paul & Kansas City Railroad.

— Hon. J. A. Hock ad ay, Judge. (1) The court erred in striking out part of plaintiff ’s petition. In this action the plaintiff had the right to set up the facts constituting the contract and estop defendant from claiming a forfeiture. 42 Mo. 456; 43 Mo. 148 ; 52 Mo. 181. (2) The court erred in excluding plaintiff’s evidence.

— Hon. E. M. Hughes, Judge. (1) The court erred in sustaining the demurrer to plaintiff’s first count, and the evidence in support of sanie. Abbott v. Railroad, 83 Mo. 271, 280, 281; McCor- ■ mick v. Railroad, 57 Mo. 433, 437; Young v. Commissioners, 25 N. E. Eep. (111.) 689; Jones v. Hanover, 53 Mo. 462;. Benson v. Railroad, 78 Mo. 504, 512; Schneider v. Railroad, 29 Mo. App. 68; Burke v. Railroad, 29 Mo. App. 370.

<p>Appeal from the Pettis Circuit Court. — Hon. RichardEield, Judge.</p> <p>The court erred in not sustaining the demurrer to the-petition; it stated a good cause of action. A. 0. Cabiness and Lizzie Collier were not joint obligees. The- - constable was the obligee in the bond, and the two claimants of property were the beneficiaries, and either one injured could sue alone without joining the other, pro-, vided the one suing is the sole owner of the property for which suit is brought. State to use v. Leutzingei\ 41 Mo. 498; Johnson v. True,. 25 Mo. App. 451; Levering v. Sehnell, 78 Mo. 169; State to use r. Hessélrneyer, 34 Mo. 77. Each party injured may have a ■separate suit on the bond. R. S. 1889, sec. 6311. Although the bond in form might be joint, yet, if founded upon separate consideration moving, to each, it will be construed as several, and any party may maintain an action on it for a breach affecting himself only. Cross v. Williams, 72 Mo. 577.</p> <p>The petition does not state facts sufficient to constitute a cause of action, and the demurrer was rightly sustained. Conditions precedent required bylaw should be fully pleaded, as should also every fact necessary to bring the case within the statute when the remedy is created by the statute itself. Bliss on Code Pleading, sec. 202; Jaeeard v. Anderson, 32 Mo. 188 ; ' Pier v. Heinrichoffen, 52 M6. 333; Parks v., Pieman, 7 Mo. App. 14; Abbott’s Trial Brief on Pleadings, sec. 345, and cases cited in note; Abbott’s Trial Brief on Pleadings, sec. 342, and cases cited. And the law will not assume anything in favor of the pleader that he has not averred. Cruger v. Railroad, 12 N. Y. 190, 201. Those cases which held that the informality of the written notice of claim is no defense on an indemnifying bond (Eichelmann v. Weiss, 7 Mo. App. 87 ; State ex rel. v. Watson, 30 Mo. 122; State ex rel. v. Johnson, 1 Mo. App. 219) and others do not construe the statute under which this action is brought or control this case. Those decisions construe the old special act for the county of St. Louis, and which is now a part of the scheme and charter. Scheme & Charter, art. 12; R. S. 1889, p. 2178. The bond sued on was not a voluntary bond. The petition alleges that the constable exacted the bond. It should, therefore, allege all the facts and the statutory conditions that gave him a right to exact the bond, or the bond is void and will not support an action. Roberts v. Samuel, 17 Mo. 555 ; State ex rel. v. Rucker, 19 Mo. App: 587, 590. There is a demurrable defect of parties appearing on the face of the petition, and the demurrer was rightly sustained on that ground. Demurrer was the right remedy to reach the defect. R. S. 1889, secs. 1994, 2043; Dewey v. Carey, 60 Mo. 224; Ryan v. Riddle, 78 Mo. 521; Henry v. ML Pleasant Twp., 70 Mo. 500 ; TMeman v. Goodnight, 17 Mo. App. 429; Dicey on Parties, p. 119; State ex rel. v. True, 25 Mo. App. 451.</p>

— How. D. A. DeArmond, Judge. (1) Parol evidence is admissible to show proceedings omitted by the clerk of defendant from its records, and to prove, in the absence of any record of the fact, that the board of defendant was in session when it accepted the bid of the Racine School Furniture Company for the seats and desks.

— Hon. James. H. Lay, Judge. (1) The subject-matter of the contract pleaded is. lawful and authorized and not ultra vires, and the contract would be clearly binding on the corporation if entered into by the proper officers. Further, the action of the township by its officers and agents, when attempting to exercise' its lawful power and authority in that behalf, but in an unauthorized manner, may be made the foundation of a right of action.

— Hon. Andrew Ellison, Judge. (1) The court erred in sustaining the motion to dismiss. The action was for damages for a breach of the bond — each of the defendants was severally liable to the relator. If the action did not survive as against the personal representative of Evans, then it should have been continued as to the surviving defendants. The statute is mandatory- R. S. 1889, sec. 2196; Bullock v. King, 48 Ga. 550; Hess v. Lowery, 23 N. E. Rep. 156.

— ITow. Cyrus A. Anthony, Judge. (1) The exclusion of plaintiffs’ letter of inquiry to defendants concerning Daggett’s solvency, and their answer thereto, is admissible as part of the res gestee (Greenl. Ev. [12 Ed. — Redfield’s] secs. 108-112), and contradicts the allegation and evidence of defendants as to their ignorance of Redpath’s claim. Schradski v. Albright, 93 Mo. 42-48; Traynick v. Keeble, 8 S. Rep.

— Hon. Cybus A. Anthony, Judge. (1) Plaintiff rightfully and lawfully plowed the .ground and sowed his own wheat.. It grew there with the knowledge of Drydale and Schuster to maturity, without notice or dissent from either, and by contract and assent from Schuster, as aforesaid.

— Hon. James Gibson, Judge. The court should have sustained defendant’s demurter to the evidence, or under instruction, numbered 9 in the abstract, asked by defendant and refused by the court, directed a verdict for the defendant. Hanson v. Jacob, 93 Mo. (1887) 331, 340; Walsh v. Bidder, 2t0 Mo. App. (1886) 374, 378; Mungerv. Hess, 28 Barb. (Ñ. Y.) 75 ; Hill v. Balesco, 17 111. App. 194; Fillmore v, Hubbard, 31 How. Pr. (N. Y.) 424; Kelsey v. Griswold, 6 Barb.

<p>Appeal from the Jackson Circuit Court. — Hon. J. H. Slower, Judge.</p> <p>(1) The court erred in giving instruction, numbered 4, for plaintiff over defendant’s objection. There was no evidence to justify such an instruction. Village of Shelby «. Clagett, 46 Ohio St. 555. (2) The court erred in allowing plaintiff’s witness, G-. E. Parrott, over, defendant’s objection, to testify as to what notice he had received, and what knowledge he had of the general condition of the sidewalks and crossings at First and Campbell streets. The witness was. allowed, over defendant’s objection, to testify that the crossing was in a bad fix on account of the dirt, and this had no bearing upon the issues. Under .the circumstances, it cannot be said that this evidence was harmless and had no effect upon the jury. (3) Appellant complains of instruction, numbered 6, given by the court in favor of plaintiff, on account of the following expressions therein: First. “And the jury will also consider the age of plaintiff, Ellen Ross, and her condition in life, the nature and extent of the physical injury inflicted and the bodily pain and mental anguish endured.” Second. “And any and all such damages which it appears from the evidence will reasonably result from such injuries in the future.” Whether this expression means that the jury must consider her condition physically, mentally or otherwise does not appear. Where an instruction will admit of two constructions, it is misleading and erroneous. Legg v. Johnson, 23 Mo. App. 590. The fact that no objection was entered to the introduction of such testimony would not preclude defendant’s objecting to an instruction being based upon the same. Price v. Railroad, 72 Mo. 418 ; Hinds v. City of Marshall, 22 Mo. App. 216, 217. Not one word of evidence was introduced to show that said injuries were permanent, or even to show that they might possibly or probably continue for any length of time beyond the present. Filer v. Railroad, 49 N. Y. 46 ; 3 Suth. Dam. 722 ; Weisenberg v. City of Appleton, 26 Wis. 60; Curtis v. Railroad, 18 N. Y. 542 ; Crawford v. Railroad, 55 N. Y. Sup. Ct. 255; Mosher v. Russell, 44 Hun, 12. “Instructions should not be given when there is no evidence on which to predicate them.” Qressley v. Railroad, 26 Mo. App. 161; State ex rel. v. Emerson, 74 Mo. 607; Price v. Railroad, 72 Mo. 414. The fact that said expression is qualified by the clause, “which it appears from the evidence,” does not make it any the less objectionable, where there was no evidence to predicate such an instruction upon. Stephens v. Railroad, 96 Mo. 208. (4) There was an inconsistency between instruction, numbered 3, given for plaintiff and instruction, numbered 4, given by the court for defendant. Welch v. Railroad, 20 Mo. App. 477; Goetz v. Railroad, 50 Mo. 472.</p> <p>(1) Plaintiff’s fourth instruction states the law correctly, and there was no error in giving it. Russell v. Columbia, 74 Mo. 480; Thomas ». Railroad, 20 Mo. App. 485; Mitchell v. Plattsburg, 33 Mo. App. 555; Shortwell v. St. Joseph, 104 Mo. 114; Ridenhouse v. Cable Co., 102 Mo. 270; Wetzell & Griffith v. Wagoner, 41 Mo. App. 509; Schooler v. Schooler, 18 Mo. App. 269; Whalen r>. Railroad, 60 Mo. 323-325. (2) Under the evidence the jury was authorized to award permanent damages. The measure is properly stated. Welch v. McAlister, 15 Mo. App. 492; Winlder v. Railroad, 19 Mo. App. 99; Waldhier v. Railroad, 89 Mo. 87; Griffith v. Railroad, 98 Mo. 168; Haniford v. Kansas City, 103 Mo. 172; Joliet v. Conway, 119 111. 489. (3) Damages, in case of personal injury, are fixed by the jury under the facts and circumstances disclosed by the evidence. Such damages cannot be proven in any other way. Welch r>. McAlister, supra ; Winlder n. Railroad, supra; Waldhier v. Railroad, supra; Haniford v. Kansas City, supra; Griffith v. Railroad, supra. (4) When the facts composing the elements of damages are not controverted, the court will not reverse, even though an erroneous instruction as to the measure has been given. Hail v. Railroad, 16 Mo. App. 363 ; Blewett v. Railroad, 72 Mo. 583.</p>

— Hon. James G-ibson, Judge. r (1) There was a fatal variance between the petition and the evidence, between the case made in the petition and the instructions given, the petition making a case of injuries arising from the wilful orders and directions of the defendants, and the instructions confining the case to carelessness or negligence. Carelessly and wilfully are not equivalent terms, and cannot be so joined as to constitute negligence. Bindbeutal v. Railroad, 43 Mo.

— Hon. James Gibson, Judge. (1) The pla' tiff declared on one cause of action and recovered on another. His suit was for the contract price of the work alleging performance. He was allowed to recover damages on the theory that defendant had prevented him from performing the contract, in other words there was a failure of proof of the allegations set out in the petition. And the instructions given on behalf of the plaintiff did not correspond with the petition.

— Hon. James Hibson, Judge. These facts invoke the principle that when one sues on a contract he cannot recover unless the evidence shows that he has performed all the obligations imposed on him by the contract. The paving work which was being done by appellants for which they used the crushed rock had not been completed, and the contract between respondents and appellants was still in force at the time the former “shut down,” and refused to deliver more rock.

— IIon. James Hibson, Judge. (1) The court erred in permitting defendant to introduce evidence of the defects he found in his. ‘abstract. The provision in the contract, that in case the abstract showed a defective title, and the defect could not be cured within thirty days, then the same-was to be void, could not be taken advantage of by the defendant, but was designed for the benefit of the plaintiff. Hale o. Cravener, 128 111. 408; Roberts v. Wyatt,. 2 Taunt. 268.

— Hon. James Gibson, Judge. (1) The court erred in refusing to admit evidence offered by appellant as to the declarations made by the witness, Holloway, while he was in possession of the furniture in question. TJpdyke v. Wheeler, 37 Mo. App. 680. (2) It was error to admit evidence of the attempted compromise and settlement between Levinson, attorney for appellant, and Wurmser. 2 Whart. Ev. [3 Ed.] sec. 1090.

— Hon. Richard H. Field, Judge. (1) Only a suit for the value of the furniture sold and delivered was tried before the justice. It was error to permit the plaintiff to incorporate a cause of action in his suit by amendment in the circuit court for work and labor done and materials furnished, which was not sued for or tried before the justice. R. S. 1889, sec. 6345; Webb v. Tuoeedie, 30 Mo. 488; Beattie v. Hill, 60 Mo. 72.

<p>Practice, Appellate: proper submission : affirmance. If the issues are correctly submitted on evidence supporting either claim, the verdict was the end of the controversy, and affirmance follows.</p>

— Hon. Richard Field, Judge. (1) Acting recklessly or heedlessly means acting without any care at all, as the composition of these words would indicate, the suffix less meaning without. Hence reckless means rashly or indifferently negligent; and heedless, without care or heed. See Webster’s Dictionary, sub nomine, recklessness and heedless; also, Anderson’s Law Dictionary, title, wantonness, with which last word recklessness is said to be synonymous.

— Hon. John W. Henry, Judge. (1) Article 3, section 1, thirty-first subdivision of the charter of Kansas City, authorizes the approbation. This section has reference to police regulations, and means to confer additional powers upon the common council. St. Louis v. Schoenbusch, 95 Mo. 618-22; 1 Dillon, Mun. Corp., sec. 141; Beer Co. v. Massachusetts,. 97 U. S. 33; 1 Dillon, Mun.

— Hon. James Gibson, Judge. The court had no jurisdiction of the subject-matter, •as the action was local.

— Hon. Henry P. White, Judge. (1) The court erred in giving the first instruction for the state, and in refusing the first instruction asked by the defendant, since there is a total absence of proof that defendant abandoned or deserted his wife in Jackson county, Missouri; sufficient reason for the separation shown in Mrs. Weber’s efforts to make it perpetual from the first moment of her arrival; and positive evidence from her own mouth that she possesses several hundred…

— Hon. James Gibson, Judge. (1) The court erred in giving instruction 1, asked by the defendants.

— Hon. James Hibson, Judge. The refusal of plaintiff to give his deposition was grounded on the advice of his attorneys, and' not from any disrespect to the court or the proper administration of justice. His attorneys were mistaken as to the law, and as soon as they discovered their error they rectified it by advising defendant’s attorneys that Mr. Harwood would attend and have his deposition taken.

— Hon. James Gijbson, Judge (1) The mechanic’s lien was absolutely void and a nullity, and should not have been admitted in evidence, for the- reasons that the lots on which the eleven houses were built are not contiguous lots by a fourteen-foot alley. Fitzgerald v. Thomas, 61 Mo. 499 ; s. c., 76 Mo. 513. If, then, the lien as filed was void, plaintiff could not make it a valid one by thus dismissing as to' a part of the lots and houses. Goepp v. Gartiser, 35 Pa.

<p>Error to the Jackson Circuit Court. — Hon. James Gibson, Judge.</p>

— Hon. John W. Henry, Judge. The credit was given to J. P. Gleason, as is evidenced by the fact that the due bills 'or time checks cashed by plaintiff were signed by J. P. Gleason only, and there is no evidence that plaintiff had any knowledge of Kenefick & Gleason ever, at any prior time, having been partners, at the date he cashed these time checks. Gates v. Watson, 54 Mo. 585.

— Hon. John W. Henry, Judge. There are two Missouri cases which, when carefully-studied, are very strong authorities in favor of the-defendant: Heinz v. Railroad, 82 Mo. 233; Klein v. Fischer, 30 Mo.

— Hon. Jos. Cravens, Judge. On the first assignment of error, that the verdict is against the weight of evidence, appellants merely call attention to the evidence in the case. As to the second assignment of error, that the principals in this case did not become the debtor of the security (the plaintiff) until the notes were paid by him, appellants cite: Ilearne v. Keith, 63 Mo. 84, 89; Burckhardt v. Ilelfrich, 77 Mo. 376, 3S2 ; Beckham v. Tootle, 19 Mo.

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

<p>Appeal from the FranTclin Circuit Court. — Hon. Rudolph Hiezel, Judge.</p>

<p>1. Practice, Trial: supplying lost records. Lost records can only be supplied by order of court. Accordingly, an entry will not suffice for that purpose, if it does not contain an order for the substitution of another record or paper in the place of the one lost, but merely shows that the record or paper sought to be substituted was presented to the court as a copy of the missing one, and filed in the cause.</p> <p>2. -:--. Held, accordingly, that a return by the sheriff that he had executed the writ of attachment, “ by seizing and levying upon all the right, title and interest of the defendant ” in certain specified personalty which was accessible and susceptible of manual seizure, would not confer jurisdiction in such case, both because it did not show that the defendant owned or had some, attachable interest in the property, and because it failed to show a seizure of the property itself.</p> <p>3. -: -. Held, arguendo, that the test of the sufficiency of the return in such a case is, whether an action for a false return could be based on the return, in case the defendant had been damnified by the assumption of jurisdiction over the cause by the court issuing the writ.</p> <p>4. -: -. Held, also, that the return of a levy on personalty . was insufficient by reason of its failure to show the date of the levy, and that such return was, therefore, inadequate to confer jurisdiction under the circumstances mentioned.</p> <p>5. Practice, Trial: supplying lost records. Lost records can only be supplied by order of court. Accordingly, an entry will not suffice for'that purpose, if it does not contain an order for the substitution of another record or paper in the place of the one lost, but merely shows that the record • or paper, sought to be substituted, was presented to the court as a copy of the missing one and filed in the cause.</p>

<p>1. Practice, Trial: stipulation for extension of time for filing bill of exceptions. Under section 2168 of the Revised Statutes, 1889, a stipulation by parties or their attorneys for the extension of the time for the filing of a bill of exceptions may be made at least during the vacation immediately succeeding the term at which the exceptions were taken — whether it may be made thereafter is not decided; and it may enlarge the time already allowed by a previous order of the court for the filing of such bill, and be made after the expiration of the period of extension provided for by such order.</p> <p>2. Attorneys: implied authority. An attorney has an implied authority to stipulate that the action, in which he appears, shall abide the result of another action, in which he is not engaged, and to which his client is not a party.</p> <p>3. Res Adjudieata : garnishment. The plaintiff in a garnishment 11 oc ct ding v ill in the absence of fraud be concluded by an adjudication of the question of the liability of the garnishee to the principal defendant in an action between such principal defendant and such garnishee, instituted prior to the service of the summons of garnishment.</p> <p>4. Practice, Appellate : specification of error. An assignment of error that the most of the testimony of designated witnesses should have been excluded as privileged communications between attorney and client is not sufficiently specific in that it does not direct the court to any particular portion of the record, nor point out with distinctness the particular errors complained of, and it will, therefore, be disregarded.</p>

— Hon. Ben. E. Turnee, Judge. (1) Appearance cannot confer any jurisdiction when the court has no jurisdiction over the subject-matter of the suit, but, on the other hand, appearance does confer jurisdiction of the person where the court by law has jurisdiction of the subject-matter of the suit.

<p> Original proceeding Toy mandamus. </p>

<p>Appeal from the Monroe Circuit Court. •</p>

Louis City Circuit Court. — IIon. Daniel D. Fisher, Judge. The words, “taxable year of 1890,” are to be construed to mean the calendar year 1890, and, therefore, the taxes ought to be divided between the parties in proportion as they respectively had possession during said calendar year. The taxes for the year 1890 amounted to $775.27.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The notice of appeal in this case is not sufficient. The appellee has not waived the notice by signing its name to the printed indorsement on the back in acknowledging service. Tiffin v. Millington, 3 Mo. 418; Wade on Notice, sec. 1211; McGinnis ?>. Taylor, 22 Mo. App. 513; Hammond v. Hr off, 36 Mo. App. 118 ; Celia v. Schnairs, 42 Mo. App. 316.

Appeal'from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Statements and admissions of facts made by a party to the record against his interest are always admissible in evidence against him. 1 Greenl. on Ev., sec. 171 ; Wright v. Gillespie, 43 Mo. App. 244, 252.

— Hon. Ben. E. Teener, Judge. (1) The mortgage introduced in evidence known as the Mack mortgage was and is fraudulent and void as a matter of fact under the evidénce. First. It is not fraudulent and void as a matter of law. Hughes v. Cory, 20 Iowa, 399 ; Clark v. Hyman, 55 Iowa, 14; Hew v. Sailors, 114 Ind. 407; Boundy v. Converse, 71 Wis. 524. Second.

<p> Appeal from, the Newton Circuit Court. </p>

<p>1. Jurisdiction, Appellate. If a judgment debtor, claiming to have paid the judgment, makes a motion for the entry of satisfaction, and the motion is overruled after an appeal has been allowed to the supreme court, and while such appeal is pending in that court, this court will not take jurisdiction of an appeal from the order overruling such motion, since a conflict of decision might arise from its assumption of such jurisdiction.</p> <p>2. Judgment, Satisfaction of: waiver or right or appeal. Held, arguendo, that a judgment creditor cannot lawfully appeal ■from a judgment after he has accepted payment of the judgment.</p>

— Hon. Ben. E. Turner, Judge. The statute does give an action against defendant for a penalty for wrongfully issuing a marriage license to plaintiff’s minor daughter. R. S. 3889, sec. 6851. The civil remedy given in said section is penal in its nature and a part of the punishment within the meaning of said section. Sutherland on Statutory Construction, sec. 257.

— Hon. Ben. E. Turnee, Judge. (1) Where a decree of divorce has been obtained by fraud or deceit,' as where the complainant has practiced fraud or trickery to prevent the defendant from having notice of the suit, or from appearing in the action or from answering or defending the same, the innocent and deceived party may undoubtedly obtain the opening or vacating of the decree by making timely application and showing good cause.

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

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

<p>Justices’ Courts: affirmance for failure of appellant to payfiling- fee. If the circuit court of the city of St. Louis affirms the judgment of a justice of the peace owing to the failure of the appellant from the judgment to pay the filing fee prescribed by section 17 of the act establishing that court, the affirmance may and, indeed, should be set aside by that court upon due application showing sufficient excuse for the non-payment. And held, that sufficient excuse was shown in this cause.</p>

<p>Jurisdiction, Appellate: amount involved. When the object of a suit is not to obtain a money judgment but other relief, — in this cause an injunction, — the amount involved must be determined by the value in money of the relief to the plaintiff, and of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied; if either is necessarily in excess of $2,500, the supreme court has appellate jurisdiction in the cause.</p>

<p>1. Jurisdiction, Appellate: disputed boundary. Semble, that a question, of disputed boundary does not involve title to land within the purview of the constitutional provisions defining the jurisdiction of this court.</p> <p>2. ---: amount involved. The rule adopted in Evens & Howard Fire Bride Co. v. St. Louis Smelting & Refining Co., ante, p.634, is followed and applied.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) This court has no jurisdiction of this case, as the appeal has not been perfected as required by the statutes, there being no final judgment, and the statute requiring a bond to be given in appeals of this character. R. S. 1889, sec. 562 ; Jordan v. Wickham, 21 Mo. App. 536; Duncan v. Forgey, 25 Mo. App. 310, 312: Mackey v. Hyatt, 42 Mo. App. 443, 448; Fagley v. Tail, 11 Mo. App. 601; Metzenberger v. Keil, 31 Mo.

— Hon. Richard Field, Judge. (1) The ordinance in question imposed a duty and obligation upon the defendant and conferred a right upon plaintiff just as though it were a statute law of the state. Taylor v. Carondelet, 22 Mo. 110 ; 1 Dillon, Mun. Corp. [4Ed.J sec. 308, and note.

<p>Railroads: fencing track in platted town: incorporation. A railroad cannot lawfully fence its track where, the same passes through a platted town having dedicated streets crossing such track; and it makes no difference whether the town is incorporated or not, or whether the streets are in use or opened across the track, or not.</p>

the■ Buchanan Circuit Court. — Hon. Heney M. Ramex, Judge. The verdict is not supported by the evidence. Lionberger v. Pohlman, 16 Mo. App. 392 ; Zmsler v. Slorts, 30 Mo. App. 163 ; Fischer v. Trans. Co., 13 Mo. App. 133. The verdict is against the entire weight and current of the testimony. Taylor v. T'ox, 16 Mo. App. 527, 531.

— Hon. Henry M. Ramey, Judge. (1) It is gross negligence to alight from a moving car when there is no real or apparent necessity for doing so, or when one is not invited or requested by persons in charge of the car so to do. Clotsworthy v. Railroad, 80 Mo. 223; Nelson s. Railroad, 68 Mo. 593; Baches s. Railroad, 127 Pa. St. 316 ; Becor s. Railroad, 10 Fed. Rep. 15 ; Watts s. Railroad, 82 Gra. 229 : Asp el v. Railroad, 23 Pa.

— Hon. Chas. W. Sloan, Judge. (1) The remarks of counsel for plaintiff in his statement of the case, concerning plaintiff’s financial condition and the dependence of his family, were improper and highly prejudicial to this defendant. Overholt v. Vieths, 93 Mo. 422; Winters v. Railroad, 39 Mo. 468.

- — Hon. Richaed Field, Judge. (1) The statute on which this suit is based (R. S. 1889, sec. 6856) is the ninth section of the act of 1845, amended, and is but the assertion of the old. equitable doctrine, inherited in our country from the ecclesiastical courts, and which, having been denied in some of the states and allowed in others, has finally found place in the statute laws of most of the states, as in ours.