Volume 53 — Missouri Appeal Reports

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

Louis County Circuit Court. — Hon. W. W. Edwaeds, Judge. Agency can be established only by evidence of express appointment, previous course of dealing, ratification or estoppel. Alexander v. Hollins, 11 Mo. App. 109; s. o., 81 Mo. 657. When no agency is shown, one cannot be held to have ratified the unauthorized acts of another. Hammerslough v. Cheatham, 81 Mo. 13. There can be no ratification of an unauthorized act, without full knowledge of all material facts.

<p>Appeal from the Oregon Circuit Court. — Hon. W. N. Evans, Judge.</p>

<p>Appeal from the Oregon Circuit Coivrt. — Hon. W. N. Evans, Judge.</p>

— Hon. C. C. Bland, Judge. (1) A failure to prove that the animals were struck by the engine or cars, either by direct evidence or by proof that the animals were found near the track, and signs showing that they had been struck, coupled with the fact that the trains of defendant were run over the road on that day, is fatal in cases of this kind. Lindsay v. Railroad, 36 Mo. App. 53; Gilbert v. Railroad, 23 Mo. App. 65.

— Hon. W. L. Wallace, Judge. These executions having been afterwards fully satisfied out of the property, the plaintiff was not in any event entitled to recover more than nominal damages for the trespass by defendants, if they were guilty of trespass. “The special property of the officer has. no further existence or effect than is necessary to. obtain the end sought by the levy of the writ.” 2 Freeman on Executions, sec. 268, and cases cited. “A bailee, mortgagee or other…

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

<p>Appeal from the Mississippi Circuit Court. — Hon. H. 0. O’Bryan, Judge.</p>

— Hon. W. N. Evans, Special Judge. (1) There was a fatal variance between the charge and the proof, and the demurrer to the evidence should have been sustained. State v. Fanning, 38 Mo. 360. (2) The allegations and the proofs must correspond in criminal as well as civil cases. “An indictment charging the defendant with selling intoxicating liquors to A is. not sustained by proof of selling to other persons.

Charles Circuit Court. — Hon. W. W. Edwaeds, Judge. The exclusion of a physician’s testimony is a statutory one, and it is not only in derogation of the common law but its tendency is to suppress .the best evidence on the subject to which it relates. Hence, the burden is on the objector to show that all the elements of exclusion exist. Henry v. Railroad, 10 N. Y. Sup. 508; Lins v. Ins. Co., 8 Mo. App. 363; Gartside v. Ins. Co., 8 Mo. App. 592; Kendall v. Gray, 2 Hilt.

<p>Appeal from the St. Louis County Circuit Cowrt. — Hon. ~W. W. Edwards, Judge. ■</p> <p>(1) The transcript of the first or original judgment fails to show on its face the necessary facts to-confer jurisdiction on Justice Perry Sappington. Revised Statutes, 1879, see. 2839; Rohland v. Railroad, 89 Mo. 180, 182; Heath v. Railroad, 83 Mo. 61?, 624. (2) On the face of the transcript it affirmatively appears that the citation in the revivor proceedings was not served in the time required by the statute. Revised Statutes, 1889, secs. 6148, 6297. The rule of law is that, where an act is required to be done at least a given number of days before a fixed time, the ordinary rule of construction of excluding the first and including the last does not apply, but that both the first and the last days must be excluded. Taylor v. McKnight, 1 Mo. 120; Dougherty v. Porter, 18 Kan. 206; Garvin v. Jennerson, 20 Kan. 371; Robinson v. Foster, 12 Iowa, 186; Queen v. Justice, 8 A. & E. 173; O’Connor v. Townes, 1 Tex. 107; State v. McLendon, 1 Stew. (Ala.) 195; Small v. End/rick, 5 Wend. 537; Twrwpike Co. v. Haywood, 10 Wend. 422; Mitchell v. Foster, 9 Dowl. 527; Railroad v. Shropshire, 8 A. & E. 173; Beard v. Gray, 3 Oh. Rep. 104; Railroad v. Herfordshire, 3 B. & Aid. 581. A summons returnable in less time than the law allows is absolutely void. Williams v. Rains, 10 Mo. 771; Williams v. Bower, 26 Mo. 601; Johnson v. Baker, 38 111. 98. France v. Evan, 90 Mo. 74. If the words “at least” and “before” could in any view be considered technical and to be understood according to their technical import, we cite the following authorities: Roberts v. Willcock, 8 Watts & Ser. 470; Polk v. Lane, 4 Yerg. 36; Norton v. Town Clerk, 4 0. & B. 37; Queen v. Jtistices, 8 A. & E. 173; Mitchell v. Foster, 12'A. & E. 472. (3) The justice in the revivor proceedings attempted to render a new judgment and for a larger amount than the original. A scire facias to revive a judgment is not an original proceeding, but is only a continuation of the old case, and it is not competent to render a new judgment for an amount larger than the old judgment sought to be revived. Humphrey v. Lundy, 37 Mo. 320; Coomes v. Moore, 57 Mo. 338; Weaver v. Boggs, 38 Md. 255; Broiun v. Bird, 10 Ark. 533; Greer v. Bank, 10 Ark. 455; Evans v. White, 12 Ark. 133; McGill v. Perigo, 9 Johns. Eep. 259; Treasurer v. Foster, 7 Yt. 52; Barrow v. Bailey, 5 Fla. 9-16, citing Phillips v. Brown, 6 Term Eep. 284; Freeman on Judgments, sec. 444; 2 Tidd, 1096; 2 Archbold’s Practice, 86.</p> <p>(1) The recitals in the docket entries in the original suit and judgment are sufficient. The correct rule is that jurisdiction or the want of it must appear from the whole record. If any part of the record proper recites the facts necessary to show jurisdiction, it is sufficient. State ex rel. v. Cauthorn, 40 Mo. App. 94, 97-8; Adams v. Cowles, 95 Mo. 501, 507; Gibson v. Vaughan, 61 Mo. 418, 420; Zimmerman v. Snowden, 88 Mo. 218, 220; Iba v. Railroad, 45 Mo. 469, 475. (2) Service of citation on the twenty-eighth day of April to appear on the eighth day of May was service “at least ten days before the day of appearance.” The rule of the statute is: “The time within which an act is to be done shall be computed by excluding the first day and including the last.” 2 Eevised Statutes, sec. 6570, p. 1542, subdiv. 4; City of St. Louis to use v. Bambrick, 41 Mo. App. 648, 650; State ex rel. v. Cóu/nty Court, 33 Mo. 102; Deere, Mansur & Co. v. Eucht, 32 Mo. App. 153; Bailey v. Lubke, 8 Mo. App. 57; Littleton v. Christy’s Adm’r, 11 Mo. 390. There is nothing peculiar or unusual in the use of the words “at least” and“ before” in prescribing tbe number of days for service of process. See cases last above cited. Tbe above is tbe generally .accepted rule according to tbe best authority. Bemis v. Leonard, 118 Mass. 502, 506, 507; Butter v. Fessenden, 12 Cush. 78, 79; note to Cressey v. Parks, 46 Am. Rep. 410, et seq.; Stebbins v. Anthony, 5 Col. 348; Forsythe v. Warren, 52 111. 68; Turnpike Co. v. Haywood, 10 Wend. 422, 423-24; Northrup v. Cooper, 23 Kan. 432, 438; Beckwith v. Douglas, 25 Kan. 229, 231; Walsh v. Boyle, 30 Md. 262, 266. (3) Tbe judgment of revival is in exact conformity to tbe .statute. However, if tbe justice bad included tbe accrued interest in bis judgment, this might have been error, but would not have rendered tbe judgment void. Bauer v. Miller, 16 Mo. App. 252, 256, 257.</p>

<p>Implied Contract for Compensation for Services. An agree- • ment for compensation for the rendition of services cannot be implied contrary to the admitted intention of the parties. And held that, under this rule, the plaintiff in this action was not entitled to compensation for household services rendered by her as a member of the household.</p>

— Hon. J. F. G-reen, Judge. The requirement that the affidavit for appéal shall he filed immediately does not mean on day of trial, hut it means sufficient time to give the hond, etc., and that the justice must give the defendant the papers to perfect the appeal; and, if the defendant perfects his appeal as soon as he gets the papers and files them, it ought to be held sufficient. State -v. Anderson, 84 Mo. 524; State v. Herman, 20 Mo. App. 548.

<p>Appeal from the Ripley Circuit Court. — Hon. W. H. Righter, Judge.</p>

<p>Appeal from the Lawrence Circidt Goxwt. — Hon. M. Gv McGregor, Judge.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p> <p>To sustain their action plaintiffs must prove that the representation was known to be false by the defendant, that it was made with intent to deceive or defraud, that it was exclusively relied upon by plaintiffs, that they had a right to rely upon that representation, and that they acted upon it, and were injured in consequence thereof. Jolliffe v. Collins, 21 Mo. 338; Bryan v. Hitchcock, 43 Mo. 527; Parker v. Marquis, 64 Mo. 42; Franklin v. Hollé, 7 Mo; App. 246; Bispham’s Principles of Equity [2 Ed.] p. 216; Brownlee v. Hewitt, 1 Mo. App. 360; Dunn v. White’s Adm’r, 63 Mo. 181. The testimony shows that plaintiffs were not induced by defendant’s statements to change their course of conduct in relation to the transcript judgment, and that they did not rely exclusively upon defendant’s statements. Story on Equity Jurisprudence [7 Ed.] see. 202; Bispham’s Principles of Equity [2 Ed.] p. 270; Glasscock v. Minor, 11 Mo. 655, 657; Smith v. Richards, 13 Pet.’ 26; Parker v. Marquis, 64 Mo. 38; Anderson v. McPike, 86 Mo. 293; Smith v. Dye, 88 Mo. 581. Plaintiffs had in their possession an abstract which plainly informed them that their lien was subsequent and not prior- to defendant’s lien. Glasscock v. Minor, 11 Mo. 655; Buford v. Caldioell, 3 Mo. 477; Dunn v. White, 63 Mo. 181; Story on Equity Jurisprudence [7 Ed.] sec. 200; Bryan v. Hitchcock, 43 Mo. 531. A mere expression of opinion, especially when-unaccompanied by any fraudulent design, does -not constitute the basis for relief on the ground of fraud. Glasscock v. Minor, .11 Mo. 655; Smith v. Richards, 13 Pet. 26; Warnellv. Heim, 57 Mo. 478. The plaintiffs allege in their petition, as ground for equitable relief, the insolvency of T. C-. Bryant, the maker of the note secured by their mortgage. This allegation stands unproven, and their action in equity must fail. Moreover their note is signed by Elizabeth Bryant, who even though she was a married woman at the time of its execution had full capacity to contract, sue and be sued at law as well as in equity; and it is neither alleged nor proved that she is insolvent. Gabañne v. Lisa, 1 Mo. 682; Janney v. Spedden, 38 Mo. 395; Levering v. Schnell, 78 Mo. 171; Holland v. Johnson, 80 Mo. 39.</p>

— Hon. H. N. Phillips, Special Judge. The courts however in construing the statute as affecting the question of the priority of a mortgage lien and a rhechanics’ lien, attaching subsequently to the date of the mortgage, seem to have made a distinction between erecting and repairing a building completed at the' date of the mortgage. Haeussler v. Thomas, 4: Mo. App. 463; Hall v. Mullanphy, 16 Mo. App. 454.

Louis County Circuit Cowrt. — Hon. W. W. Edwaeds, Judge. (1) Instruction number 1 is improper. Plaintiff could have no interest in the $1,250, awarded defendant for the value of the fee. The court instructed the jury to make the sum of $4,732.50 the basis of their calculation. Such sum was the entire amount received by defendant, $3,500 being the amount allowed for the improvements, and the $1,250 allowed for the fee.

<p>1. Negligence: instructions. A machine was suddenly and without warning set in motion by the foreman in charge of it, while a servant was under his direction engaged in oiling it, and, therefore, not in a position to observe his action. In a suit by the servant for damages for personal injuries occasioned thereby, an instruction authorized a recovery if the jury believed that the foreman was careless and negligent in setting the machine in motion at the time and under the circumstances surrounding him, and the injuries sued for were caused thereby. Held, that this instruction was sufficiently definite in its statement of the act of the negligence, and that it was not necessary to set forth therein the circumstances thus referred to. •</p> <p>£. Practice, Appellate: conflict in instructions: error in favor of appellant. An appellant is not entitled to complain of a conflict in instructions, resulting from the fact that those given at his own instance are too favorable to him.</p>

<p>Appeal from the Webster Circuit Cou/rt. — Hon. W. I. Wallace, Judge.</p> <p>The court erred in refusing to give the instructions in the nature of a demurrer to the evidence asked by defendant at the close of all the evidence. The proofs of loss, furnished defendant by plaintiff, did not comply with the requirements of the policy, in that they did not bear the certificate of a magistrate as required by the policy. The condition that the assured shall procure the certificate of the nearest magistrate as to the honesty of the loss must be strictly complied with. Nooncmv. Ins. Co., 21 Mo. 81; Leigh v. Ins. Co., 37 Mo. App. 543; Fnvin v. Ins. Co., 24 Mo. App. 24. It cannot be said that the conversation which the agent, Harrison, had with assured on June 17, 1890, operated as a waiver of such certificate. It was then too late to furnish the certificate. It was almost a month after the time had expired, and was twenty days after he had received notice that his proofs were objected to by the company on account of the absence of the certificate. A waiver cannot be "founded upon any matters or conversations accruing after forfeiture of the contract, because of non-performance; to constitute a waiver the statements or conversations relied on must have been made or occurred before the time for making proofs had expired. Gale v. Ins. Co., 33 Mo. App. 664; Leigh v. Ins. Co., 37 Mo. App. 549; Frwin v. Ins. Co., 24Mo. App. 152; Beatty v. Ins. Co., 66Pa. St. 9; Underwood v. Ins. Co., 57 N. Y. 500; McPilte v. Ins. Co., 61 Wis’. 43. And further there was no waiver on the seventeenth, because the agent served notice on assured that he did not waive any condition in the policy. There can be no waiver, when the party expressly states and gives the other party to understand that he does not waive. 2 Wood on Insurance [2 Ed.] p. 946; Underwood v. Ins. Go., 57 N. Y. 500; Blossom v. Ins. Go., 64 N. Y. 162; Briggs v. Ins. Go., 8 W. Rep. (Mich.) 124.</p> <p>It was not error for the trial court to refuse defendant’s instruction in the nature of a demurrer to the evidence, because there was evidence tending to establish a waiver, and, where there is any such evidence, it is a matter of fact to be submitted to the jury. McCluer v. Ins. Go., 31 Mo. App. 62; Stavinow v. Ins. Co., 43 Mo. App. 513; Summers v. Ins. Go., 45 Mo. App. 46; Loeb v. Ins. Co., 99 Mo. 50. If the plaintiff’s proof of loss was defective, it should have been returned at once with specific objections so plaintiff could ■ amend. Organ v. Ins. Go., 3 Mo. App. 576; Farits v. Ins. Go., 26 Mo. App. 511; Travis v. Ins. Go., 32 Mo. App. 198. Receiving and holding proofs of loss without objecting, and turning them over to the company’s adjuster, are acts inconsistent with a design to object. Lo'eb v. Ins, Go., 99 Mo. 50. The notice, given to plaintiff on the seventeenth day of June, is of no avail. A party cannot do a thing, and then avoid its consequences by saying he does not do it. Erwin v. Ins. Go., 24 Mo. App. 153; Simmers v. Ins. Co., 45 Mo. App. 46; Philips v. Ins. Co., 14 Mo. 236.</p>

<p>Appeal from the Wright Circuit Cou/rt. — Hon. W. I. Wallace, Judge.</p>

<p>1. Practice, Appellate: procedure by certificate and abstract: requisites of abstract. When an appellant files an abstract of the record, in lieu- of a full transcript, as allowed by section 2253 of the Revised Statutes, his abstract must, in order to entitle him to the review of matters of exception, affirmatively show that his bill of exceptions was duly filed; and, therefore, when the bill of exeeptionswas filed in vacation, the abstract must show the allowance of a. sufficient extension of the time for the filing thereof.</p> <p>2. Forcible Entry: certiorari. An action of forcible entry and detainer may be removed by certiorari to the proper circuit court, notwithstanding that there have been several mistrials before the-, justice of the peace before whom it is pending.</p>

<p>¡Sales: claim for unpaid purchase money: effect of statute. Section 4914 of the ¡Revised. Statutes of 1889, which provides against the allowance of exemptions out of personalty levied upon under an execution, when the judgment under which the execution is issued is for the unpaid purchase price of the property, does not confer any lien for the unpaid purchase price upon the vendor.</p>

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

— Hon. M. Oliver, Judge. (1) The information is fatally defective in this, that it is not sufficiently specific to inform the defendant of the nature and cause of the accusation against him. State v. Fare, 39 Mo. App. 110; State v. Hayward, 83 Mo. 299; State v. Clevenger, 20 Mo. App. 626; State v. Schlottmcm, 52 Mo. 164. (2) The cause «hould'have been dismissed. The filing of defendant’s •affidavit for change of venue divested the jurisdiction ■of the justice.

— Hon. James E. Ureen, Judge. (1) The court erred in permitting defendant to repeat contents of alleged letters and conversations between himself and Mrs. Webb, who was in nowise a party to the record. Costigan v. Trans. Co., 33 Mo. App. 290; 1 Gtreenleaf on Evidence [12 Ed.] secs. 171, 177; Major v. Watson, .73 Mo. 663.

<p>Criminal Law: obstruction of public road : necessity of proof of establishment of road. A eoirvietion cannot be obtained under section 7827 of the Revised Statutes, 1889, for the obstruction of a public road, unless there is some evidence that the road obstructed was legally established. And held, that the evidence in this cause was insufficient for that purpose.</p>

— Hon. J. T. Nevell, Special Judge. When goods are consigned and shipped by the vendor to the vendee, his right of stoppage in transitu ceases when they have passed into the actual or constructive possession of the buyer or his agent. 5 Wait’s Actions & Defenses, pp. 615, 621; 1 Jones on Liens, sec. 938; Stevens v. Wheeler, 27 Barb. 658; Millard v. Webster, 8 Átl. Rep. 470. There is no evidence in this case that M. M. Johnson was a forwarding agent or a carrier.

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

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

<p>1. Assignment: rejection of claim by assignee: res ad judicata. When a claim is presented for allowance to the assignee under a voluntary assignment for the benefit of creditors, and is rejected by him on the ground that it is less than the demands of the assignor offsetting it, such rejection constitutes a judgment, and, in the absence of an appeal therefrom, is conclusive between the parties.</p> <p>,2. -: artificer’s lien, assignability of. An artificer’s lien for work on a chattel is not assignable, it being dependent upon the possession of the chattel, which the artificer has no right to transfer. But this rule is not applicable to the assignee under a voluntary assignment for the benefit of creditors, and, accordingly, such lien will pass to him under a general assignment.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p> <p>(1) Plaintiff was not a party to the proceedings and judgment in the (so-called) case of M. 0. Cantrell v. Springfield Hardware Company in the circuit court of the United States, was not bound nor in any way affected by them, and they were improperly admitted in evidence against him to prove that Donham and not Cantrell owned two-thirds of the books when defendant seized them. Dugge v. Stumpe, 73 Mo. 513; Graves v. Ewart, 99 Mo. 13; AtJdson v. Dixon, 96 Mo. 588; Freeman on Judgments [3 Ed.] sec. 154; 1 Greenleaf on Evidence [14 Ed.] secs. 522, 523, 535; Wood’s Practice Evidence, pp. 733, 734. (2) The court erred in its rulings on the testi-' mony offered by the defendant tending to prove that Boper, the deputy marshal, had returned the books to the plaintiff after the execution sale. Now the only available theory on which such testimony might possibly have been relevant is that it went only in mitigation of damages; for in such actions the return of the property to the owner’s possession and his acceptance of it is available to the wrong-doer only in mitigation, not in bar of the action. JBJavmer v. Wilsey, 17 Wend. 91; Coffin v. Field, 7 Cush. 860. But, if it was admissible for this purpose, there was manifest error in rejecting the questions propounded by the plaintiff on the cross-examination, tending to elicit the fgct that this pretended redelivery of the books was an idle formality to avoid the consequences of this action, and which did not, in truth, clothe plaintiff with the beneficial possession or ownership of his property for any appreciable time, and was not intended to, as the defendant and his counsel knew, at the time they gave the key to the room where the books were into plaintiff’s hands, that a receiver had already been appointed to hold them, and that plaintiff could not retain their custody at all.</p>

— Hon. James H. Lay, Judge. (1) The court erred in refusing to permit plaintiff to prove the damaged condition of the flax by reason of it having been left in the field and in refusing the plaintiff to prove that it was in a perishable condition, and, if not cared for, would result in the loss of plaintiff’s rent. 4 American & English Encyclopedia of Law, p. 897. (2) Plaintiff’s instruction number 5, refused by the court, properly declared the law.

<p>..Appeal from the Buchanan Circuit Court. — Hon. A. M. Woodson, Judge.</p>

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

<p>Appeal from the Wayne County Circuit Court. — Hon. J. E. Green, Judge.</p>

— Hon. Joseph Cravens, Judge. (1) The interpleader did not take sueh. open, notorious and unequivocal possession of the property in controversy as is required by the statute; and the alleged sale to him was void as against the plaintiff. Revised Statutes, 1889, sec. 5178; Laflin v. Rosenburg, 42 Mo. 439; Wright v. McCormick, 67 Mo. 426; Stewart v. Bergstron, 79 Mo. 524; Stern v. Henley, 68 Mo. 262; State to use v. Helman, 20 Mo. App. 304.

Louis City Circuit Court. — Hon.. Daniel D. Fisher, Judge. (1) The petition does nor state facts sufficient-to constitute a cause of action. Broion v. Hoffmeister, 71 Mo. 411; State to use v. Broolce, 29- Mo. App. 289. (2) Upon the pleading and proof the-judgment should have been in favor of defendants and against plaintiff. (3) The law presumes that money-deposited in bank in the joint names of husband and. -wife is the husband’s money. Hemsereich v. Corlas,. 24 Mo.

— Hon. W. W-Edwards, Judge. (1) The purchase by J. L. Jones, the executor, from relator, the legatee, was an attempt on the part of the executor to make a profit out of his trust. He cannot speculate in his duties as executor, or make them the subject of a contract for his own benefit, or for that of another. Such a contract is illegal and against public policy.

<p>Mechanics’ Liens: tenue oe action: justices’ courts. Au action to enforce a mechanics’ lien must be brought in the county where the land sought to be charged is situated. This rule applies to actions instituted in justices’ courts.</p>

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The court, byrefusing appellant’s declarations of law, held and proceeded on the theory, that Straub’s estate after Ms death could and did order and accept materials from respondent under the agreement between respondent and Straub, and that appellants were bound by the classifications of Mr. Joyce as to the kind of stone used in the body of the church.

<p>Appeal from the Mississippi Circuit Gou/rt. — Hon. H C. O’Bryan, Judge.</p> <p>The evidence of Crosnoe, attempting to explain the meaning of the note, should not have been admitted. Parol contemporaneous evidence is inadmissable to contradict or vary the terms of a written instrument. 1 Story on Contracts, see. 820, etseq.; Frissellv. Mayer, 13 Mo. App. 331; Jones v. Shaw, 67 Mo. 667; Henshaw v. Button, 59 Mo. 140. The instructions were mislead-, ing.</p>

— Hon. W. N.. Evans, Judge. (1) The liability of defendants in this case should be measured by the law governing joint-stock companies, or voluntary associations formed for trade and profit, which are treated as and have the common attributes of common partnerships. 1 Bates on Partnership, sec. 72; Smith v. Warder, 86 Mo. 382; Perring v. Hone, 4 Bing. 28; Clagettv.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Held: if brought to the attention of the trial court by proper motion. Frdbruegger v. Meier, 14 Mo. App. 258; Bacon v. Perry, 25 Mo. App. 73; Gdttell v. Dispatch Go., 88 Mo. 359; 2 Thompson on Trials, sec. 2639. (4) Material alterations in a contract will discharge the surety, if made without his 'consent. Gugerty v. Veiths, 14 Mo.

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

<p>Appeal from the St. Louis City Circuit Cowrt. — Hon, Leroy B. Valliant, Judge.</p> <p>(1) The court erred in refusing instruction number 1 offered by defendant, and holding under the law and facts that an account stated had been proved. Railroad v. Kimmel, 58 Mo. 83; Brown v. Kimmel, 67 Mo. 430; 1 American and English Encyclopedia of Law, p. 114; Quincy v. White, 63 N. T. 370; Wiggins v. Burkham, 10 "Wall. 129; 1 Story’s Equity Jurisprudence [13 Ed.] sec. 526; Waymand v. Hilliard, 7 Bing. 101; Mellon v. Campbell, 11 Pa. St. 415. (2) The court erred in refusing to permit plaintiff to prove the nature of Murphy & Co.’s business. Crawford v. Spencer, 92 Mo. 498; Hill v. Johnson, 38 Mo. App. 383-392; Willimzs v. Tiedeman, 6 Mo. App. 276; VmBlarcom v. Bonovcm, 16 Mo. App. 535; Melchert v. Tel. Co., llEed. Rep. 193; Lyons v. Culbertson, 83 111. 38; In re Greene, 7 Biss. 338; Sprague v. Warren, 41 N. W. Rep. [Neb.] 1113; Watte v. Wickersham, 43 N. W. Rep. [Neb] 259; Mohr v. Miesen, 49 N. W. Rep. [Minn.] 862; Boyd v. Harrison, 41 Fed. Rep. 174. (3) The finding of a court is not sustained by the evidence. It is against the evidence. It is against the law and the evidence and the law under the evidence, and against the weight of the evidence. Ackley v. Staehlin, 56 Mo. 479; Hearne v. Kane, 63 Mo. 84; Bruen v. Fair Ass’n , 40 Mo. App. 425, and cases cited under point 2. (4) The court erred in refusing instruction number 5, asked by the defendant. Revised Statutes, 1889, sec. 3931-3936, as amended by acts of the Thirty-Sixth General Assembly, p. 126; .McGrew v. Produce Exchange, 85 Tenn. 577-8.</p> <p>(1) If an account is delivered to a person, and he makes no objection to it within a reasonable time, it is evidence of his consent to its correctness. Me Cormack v. Sawyer, 104 Mo. 36-43; Brown v. Kimmel, 67 Mo. 430; Pozoellv. Bailroad, 65 Mo. 658; Shepard v. Bank, 15 Mo. 141; Wiggins v. Bzwkham, 10 Wall. 129; Quincy v. White, 63 N. T. 370-377; Kent v. Highleyman, 17 Mo. App. 9; Ward v. Farrelly, 9 Mo. App. 370. It is not necessary to prove an express promise to pay; an implied promise is sufficient. Poivell v. Bailroad, 65 Mo. 658-661; Lockwood v. Thorne, 1 Kernan, 170, and cases above cited. If a proper account is rendered and payments made on it without objection, there is ground for charging defendant, on the theory of an account stated. Manion v. Carreras, 26 Mo. App. 229-234. If one item is disputed, the account is stated as to the balance. Wiggins v. Burkham, 10 Wall. 129. (2) Failure to show delivery does not of itself establish the fact that the transactions were gambling transactions; delivery may be dispensed with. Crawford v. Spencer, 92 Mo. 498; Cockrell v. Thompson, 85 Mo. 5.10; Hillv. Johnson, 38 Mo. App. 392; Williams v. Tiedeman, 6 Mo. App. 269. Sections 3931 and 3936 of the Revised Statutes, 1889, did not go into effect, until November 1, 1889. Declaration, number 5 was therefore properly refused, as it sought to affect all the transactions in the account; those occurring before Novemberl, 1889, as well as those occurring after, even if it otherwise correctly stated the law, which is denied. Although defendant may not have intended to deliver or receive the stocks or grain at the time he entered into the contracts, and thereby intended to commit a crime, unless his criminal intent was known to plaintiff, it is no defense to this action. The burden of proof is on the party asserting the illegality of the contract. Craivford v. Spencer, 92 Mo. 498; Cockrell v. Thompson, 85 Mo. 510; Hill v. Johnson, 38 Mo. App. 392.</p>

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

<p>Hearsay Evidence: reference by party to third persons. When one party refers the other to a specified agent of a corporation for information in regard to a matter in dispute, and this agent, in order to obtain the desired information, enters into correspondence with other agents of the corporation who have had the matter more directly in hand, this correspondence is not competent evidence against the first mentioned party as being within the scope of the reference.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p> <p>(1) It is obvious that the rule laid down by the trial court on the measure of damages is erroneous, and has no application whatever in the case at bar. Wallace v. Railroad, 47 Mo. App. 491; Mcvrkt v. Davis, 46 Mo. App. 272; Finney v. Berry, 61 Mo. 359; Van Bioosier v. Railroad, 70 Mo. 145; Dickson v. Railroad, 71 Mo. 575; Benson v. Railroad, 78 Mo. 504; Broion v. Railroad, 80 Mo. 457; Givens v. Van Studdiford, 86 Mo. 149; Smith v. Railroad, 98 Mo. 20; Blunt v. McCormick, 3 Denio, 283; Plate v. Railroad, 37 N. Y. 472; Henderson v. Railroad, 78 N. Y. 423; Dime v. Railroad, 101 N. Y. 117; Cobb v. Smith, 38 Wis. 21; Carl v. Railroad, 46 Wis. 625; Thayer v. Brooks, 17 Ohio, 489; Hopkins v. Railroad, 50 Cal. 190; Severy v. Railroad, 51 Cal. 194; Stein v. Burden, 60 Am. Dec. 453. (2) By reference to the plaintiff’s own statement in evidence, and to all the evidence, it is manifest that the overflowing of the gutters, and flooding plaintiff’s premises, primarily resulted from the fact that, the underground drain was too small, and the grade of St. Louis street between Jefferson street and Benton avenue was too slight to carry off the volume of water on occasions of hard and continuous rains. Evidently, then, it was a defect in the plan adopted and used by the city, and hence no liability attaches for the damages caused by the surface waters overflowing the curbing and gutters. Steivart v. City of Clinton, 79 Mo. 603, 612; Rychlickiv. City of St. Louis, 98 Mo. 497, 501; Haney v. City of Kansas, 94 Mo. 334; Abbott v. Railroad, 83 Mo. 271; Jones v. Railroad, 84 Mo. 151; Foster v. City of St. Louis, 71 Mo. 157.</p> <p>(1) Where a street is graded, or regraded, or any public improvement made, damaging an abutting property owner, he is entitled to damages under the provisions of article 2, section 21, Missouri Constitution, and the laws passed in pursuance of the same. The first count is an action for this class of damages. Revised Statutes, secs. 1815, 1821. The doctrine urged by appellant on this subject, as set forth in Foster v. City of St. Louis, 71 Mo. 157, is no longer the law in this state. Werth v. City of Springfield, 78 Mo. 109-118; Chicago v. Taylor, 125 U. S. 161. (2) A city has no right to collect surface water in drains and gutters and discharge it in its accumulated'form and in a body upon the lands of an owner abutting the streets in such city, and, if it does so, it is liable in damage to such owner. BychlicJd v. City of St. Louis, 98 Mo. 500; Steioart v. City of Clinton, 79 Mo. 612; Paddock v. Somes, 102 Mo. 238; McCormick v. Bailroad, 70 Mo. 360; Pye v. City of Mankato, 36 Minn. 373; Hitchims v. Mayor, etc., 68 Md. 100; Davis v. City of Crawfordsville, 119 Ind. 1; O’Brien v. City of St. Paul, 33 Am. Rep. 470. (3) The damages under both counts in the petition were permanent in their nature, and the plaintiff had the right to recover all damages by him. sustained, embraced in his petition, to said land. Wherever the nuisance is of such a character that its continuance is necessarily an injury, and where it is of a permanent character that will continue without change from any cause but human labor, then the damage is ah original damage, and may be at once fully compensated. A permanent grade was established, and the improvements were permanent in their nature. James v. City of Kansas, 83 Mo. 570; Bird v. Bailroad, 30 Mo. App. 378; Boivers v. Council Blufis, 45 Iowa, 652; Troy v; Bailroad, 3 Foster, 83; Bailroad v. Tivine, 23 Kan. 585; Smith v. Bailroad, 98 Mo. 20; .Babb v. Curators, 40 Mo. App. 173; Martin v. Bailroad, 47 Mo. App. 452; Taylor v. Bailroad, 38 Mo. App. 672; City of North Vernon v. Voegler, 103 Ind. 314; Fowle v. New Haven, 17 Am. Rep. 106.</p>

<p>Appeal from the Sowell Circuit Court. — Hon. W. N. Evans, Judge.</p>

Lotus City Circuit Court. — Hon. Jacob Klein, Judge. (1) The expression in the lease, “the same to he used as real-estate and conveyancers’ offices,” does not amount to a covenant that the demised premises should he used for no other purpose. Other uses are not expressly negatived, and equity will not raise a covenant hy implication in restraint of a beneficial use of property. Brugman v. Noyes, 6 Wis. 1; Shumway v. Collins, 6 Gray, 227.

<p>1. Mechanics’ Liens: parties : priority over earlier mortgage. When the holder of a mechanics’ lien for materials furnished in the construction of a building fails to make a mortgagee under a preexisting mortgage on the land a party defendant to his action for the enforcement of his lien, the statutory priority of the mechanics’ lien over the mortgage, so far as the building is concerned, will not be lost thereby, but the effect of such failure will be to render the judgment in that action only prima facie instead-of conclusive evidence of the validity of the mechanics’ lien as against those claiming under the mortgage.</p> <p>Per Bond, J.:</p> <p>2. -: CONSTRUCTIVE SERVICE ON OWNER BY PUBLICATION IN ACTIONS in justices’ courts. Personal service on the defendant owner in an action for the enforcement of a mechanics’ lien in a justice’s court is not essential to the jurisdiction of the justice, hut such service may he hy publication for the purposes of a special judgment against the property.</p>

<p>Confession of Judgments: sufficiencf of the statement. The statement of the facts out of which the indebtedness arose, which is filed as the basis of a judgment by confession, will be sufficient, if the consideration of the judgment is fixed thereby so that the judgment debtor and creditor are prevented from shifting it, and it is such as the law recognizes as valuable, and if the origin of the debt is given with sufficient detail to furnish a clue to an attacking creditor, enabling him to start an investigation into the adequacy and good faith of the transaction. And held, that the statement in question herein was sufficient under this rule.</p>

<p>1. Justices Courts: jurisdiction. Justices of the peace in this state have jurisdiction, subject to the statutory limitation as to amount, over actions for injuries to animals occasioned by railway trains in other states.</p> <p>2. Practice, Appellate : foreign laws: sufficiency of recitals of the bill of exceptions. When one of the decisions of a court of another state is read in evidence at the trial from the printed reports thereof, it need not be copied in full in the transcript. A reference to the volume and pages containing it, so as to fully identify it, is all that is requisite; it can there on be read in this court from that volume.</p> <p>3. Railroads: right of person unloading freight to occupy tracks. A person, who is engaged in unloading his freight from a car on a railway track to his wagon,has no right to so place his wagon as to obstruct another railway track on which cars are being operated, when, though this may be a matter of convenience to him, it is not necessary for him to occupy that position.</p> <p>4. ———: liability to trespassers. . Under the common law in the state of Illinois — and held also in the course of discussion that such is the law of this state — a railway company is not, in the absence of wilfulness or wanton negligence on the part of its servants, responsible for the injuries suffered by a tresx>asser on its tracks through a collision with one of its trains.</p>

<p>Practice, Appellate: estoppel op appellant. An appellant is estopped from complaining of errors into which he himself has led the trial court. Accordingly, it was held that the appellant herein could not complain of the construction placed hy the trial court on the contract in suit, when he, as well as the respondent, had proceeded on that construction in their respective pleadings and throughout the trial, including the instructions.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The appearance of the witnesses of the respondent, except as shown by subpoena marked exhibit “A,” was voluntary; and a witness cannot recover fees or mileage, unless he has appeared at court in obedience to the order of the court duly served on him in accordance with law. Her son v. Railroad, 18 Mo. App. 439; Hitchens v. State, 8 Mo. 283; Cohen v. Palley’s Heirs, 51 Ala. 511.

<p>Witnesses: costs or attendance. A witness, who accepts service of a subpoena, attends under process and not voluntarily, and is entitled to his costs, including mileage.</p>

<p>1. Practice, Trial: construction or ordbr vacating prior dismissal or appeal. An order vacating a prior dismissal of an appeal from a justice of the peace, upon the condition of the payment of the-costs of the term, allows a reasonable time for such payment when it specifies no time therefor.</p> <p>2. Prohibition, Province of. The question, whether such payment was made within a reasonable time, will not be determined on an application for a writ of prohibition. It is not the office of that writ to correct the erroneous exercise of judicial powers, when the court against which it is asked has jurisdiction, and there is a remedy by apipeal.</p>

<p>Appeals: jurisdiction: construction or revenue laws. Whether a delinquent tax, assessed hy a drainage district, and extended on the general tax hooks of the county, can he enforced'hy the collector of the county hy reason of the provision of the statute requiring him to enforce all taxes against lands contained in the hack tax hook, is a question which involves the construction of the revenue laws of the state, and the supreme court, therefore, has exclusive jurisdiction of an appeal which raises it.</p>

— Hon. E. J. Bboadus, Judge. (1) Granting new trials is no longer a matter of judicial discretion with, trial courts. Such action is now subject to review on appeal, in determining which the ■appellate courts will employ the usual rules of appellate procedure. Revised Statutes, 1889, sec. 2246; Amended Acts of 1891, 70; Burke v. City of Kansas, 34 Mo. App. 570; Taylor v. Architect Co., 47 Mo. App. 258..

— Hon. John W. Henry, Judge. (1) The evidence shows that there was no privity of obligation whatever between plaintiff and Starr. The test of privity is mutuality of obligation, which is wholly wanting here. Lindsay v. Machine Co., 4 Mo. App. 570; Stephens v. Babcock, 3 B. & A. 354; Irafton v. United States, 3 Story 0. C. 646; Hoover v. Wise, 91 U. S. 308; Homan v. Ins. Co., 7 Mo. App. 22; Hillv. Morris, 15 Mo. App. 322; Mechem on Agency, sec. 197, and note.

— Hon. Andrew Ellison, Judge. (1) Plaintiff’s motion was filed to retax specific costs after the term at which, the general judgment was rendered. -.If the judgment was erroneous it must be resisted by appeal or writ of error. Monk v. Walker, 22 Mo. App. 577; Bosley v. Parle, 35 Mo. App. 233; Uerson v. Railroad', 18 Mo. App. 439. (2) The motion filed by defendant is nothing but a motion to retax costs.

<p> Original Proceeding by Mandamus, </p>

-^Hon. E. L. Edwards, Judge. The court erred in holding that land is not entitled to lateral support of adjoining land. Charles v. Rankin, 22 Mo. 566; Busly v. Holtleans, 46 Mo. 161; Moellering v. Evans, 22 N. E. Rep. 985. The petition does not state facts constituting a cause of action, because it is not alleged that there was any negligence or want of care or skill in the construction of the cut in the right of way.

— Hon. Eichadd Field, Judge. (1) Under the power “to prevent and remove nuisances,” as also by the express terms of the statute vesting authority “to regulate and prohibit the running at large of dogs, * • * * horses in the streets and alleys of such towns,” power is given to pass the ordinance. Eevised Statutes, sec. 1672; Spitlerv. Young, 63 Mo. 42; Dillon on Municipal Corporations [3 Ed.], sec. 350; [1 Ed.], see. 284.

<p>Practice, Appellate: fairly submitted: verdict stands. Where the two theories of the prosecution and defense are intelligently and properly submitted to the jury, their findings will not be disturbed.</p>

— Hon. A. M. Woodson, Judge. (1) The note was based upon an illegal consideration, and no action can be maintained upon it. Sprague v. Pi-ooney, 104 Mo. 358; Bank v. Otvens, 2 Pet. 538; White v. Bass, quoted 104 Mo. 359, 360; Pope v. Gormully, 144-U. S. 235; Bishop on Contracts, sec. 471. (2) It is no answer to this position that a part of the consideration was lawful. This case cannot be distinguished from Bick v. Seal,'¿AS Mo.

— Hon. John E. Ryland, Judge. (1) In this ease there was no such unwillingness or hostility on the part of the witness, J. M. Davis, to authorize or justify the prosecuting attorney in plying leading, suggestive and impeaching questions to said witness, and the court committed error in permitting the prosecuting attorney to abuse and violate the rule-of law governing in such case, by asking and plying such-questions. 1 Grreenleaf on Evidence [Redfield’s Ed.],, secs. 434,…

— Hon. Henby M. Ramey, Judge. (1) A reward for the “ apprehension and conviction” of the perpetrator of a crime is not earned unless the person claiming the reward has either by himself or his agent arrested the perpetrator and secured the evidence necessary for a conviction. Jwiiata Co. v. McDonald, 15 Atl.

— Hon. Andrew Ellison, Judge. (1) The Macon circuit court had no jurisdiction to try said cause. It could only have acquired jurisdiction by change of venue from the La Plata court, and the La Plata court had no power or jurisdiction to-mate the order until after all pleadings had been filed and the issues made up. Revised Statutes, 1889, sec. 2264, p. 584; Session Acts, 1877, pp. 215, 216; Amended Session Acts, 1879, 84; State ex rel. v. Bacon, 107 Mo. 627.

— Hon. D. J. Heaston, Special Judge. (1) The court erred in permitting plaintiff to introduce evidence tending to prove that John Yanhoozier lost his pocketbook and money, or that the plaintiff and Billy Thomas found a pocketbook and money belonging to the defendant.

— Hon. A. M. Woodson, Judge. It is error to allow such writings to be proved as standards of comparison, and in permitting witnesses to express their opinión as to the genuineness of the writing in question, based on a comparison of such standard with the disputed writing. State v. Clinton, 67 Mo. 380; State v.. Owen, 73 Mo. 440.

— IIon. John E. Ryland, Judge. The condemnation proceedings to establish the-public road that the defendant is charged with obstructing are absolutely void. Then no public road coiild be-established by reason of said proceedings. No dedication of any road. No public road established by prescription over Mrs. Emerson’s land, where the-defendant is charged with obstructing a public road.

— Hon. Richard Field, Judge. (1) Instruction number 1 states the law correctly and should have been given. In order to recover on the ground of a mistake of fact, the mistake must be mutual, and the monev cought to be recovered back must have been paid in ignorance of some fact, a knowledge of which would have prevented the payment.

<p>Appeal from the Jasper Circuit Court. — Hon. M. G. McGbegob. Judge.</p>

— Hon. Henry M. Ramey, Judge. The court erred in directing the jury to return a verdict in favor of Mary and Fred Hesse under the authorities of Lime Co. v. Batman, 44 Mo. App. 387; Fischer v. Auslyn, 30 Mo. App. 316; Leisse v. Schwarts, 6 Mo. App. 413; Collins v. Megraw, 47 Mo. 497; Seaman v. Padcloclc, 51 Mo. App. 465. (1) The very foundation to the right to this lien “is the existence of a contract for the work and materials with the owner of the property to be improved.

— Hon. Henry M. Ramey, Judge. (1) Parol evidence is not admissible to alter, vary or add anything to the contract as made by the letters of June 26 and 27, 1889. Keller v. Webb, 126 Mass. 393; Meinhardt v. Mode, 22 Ela. 279; Hollins v. Claybroolt, 22 Mo. 407; Pearson v. Carson, 69 Mo. 550; 1 Greenleaf on Evidence [14 Ed.] sec. 275.

— Hob. C. H. S. Goodmab, Judge. TJpon the undisputed facts in this case the finding should have been for the defendant. Gregory v. Railroad, 46 Mo.

— Hon. E. M. Hughes, Judge. “ Cases once legally commenced continue until some affirmative action is shown discontinuing them.” Bond v. White, 24 Kan. 45, at p. 47; Smith v. Bank, 24 Kan. p. 531. (1) The judgment of the appellate court, whether right or wrong, was binding on the lower court. It had no authority other than to follow its mandate that the nonsuit was voluntary. The judgment was affirmed and the case ended. McKinney v. Harral, 36 Mo.

— Hon. E. M. Hughes, Judge. “An appeal bond actually given, although given in ■ •a, case in which by law an appeal would not lie,” is valid. Chase v. Smith, 4 Cranch C. Ct. 90; Devised •Statutes, 1889, sec. 4380; Given v. Corse, 20 Mo. App. 132; Vogel v. Meyer, 23 Mo. App. 427; Brewing Co. v-. JSfeiderweiser, 28 Mo. App. 233; Stillwell v. Aaron, 69 Mo. 539; Bowen v. Beed, 34 Ind. (Black.) 430; Story ■on Contracts, sec. 548; State v. Suteliff, 17 Atl. Eep. •(E. I.) 920.

— Hon. G. D* Burgess, Judge. (1) The will of Meredith Brown did not. invest Landree, the executor, with any power or authority whatever with respect to the homestead willed by the testator to his wife 'for her use during her natural life. The title at her death became vested in the heirs of Meredith Brown.

— Hon. Or. D. ' Burgess, Judge. The conditions of an insurance ' policy against vacancy or non-occupancy are to be construed with reference to the property insured, and the non-occupancy occasioned by the ordinary change of tenants, being a mere incident to tenement property, will not vitiate the policy. Whitney v. Ins.

— Hon. Richard Field, Judge. (1) The court erred in admitting in evidence the letters written by the defendant to the plaintiff. These were communications between husband and wife, which were privileged, both at common law and under the statute. Revised Statutes, 1889, sec. 8922; Moore v. Moore, 51 Mo. 118; Buck v. Ashbrook, 51 Mo. 539; Berlin v. Berlin, 52 Mo. 151; Holeman v. Bachus, 73 Mo. 51; Dwyer v. Dwyer, 2 Mo. App. 20; Miller v. Miller, 14 Mo.

— Hon. Andrew Ellison, Judge. (1) A person who becomes a passenger on a freight train assumes the risks and inconveniences necessarily and reasonably incident to carriage by that method. “The passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance. Railroad v. Hazmrd, 26 111. 377; Whitehead v. Railroad, 99 Mo. 268; Wagner v. Railroad, 97 Mo. 521; Woolery v. Raiboad, 107 Ind. 381; Perkins v. Railroad, 60 Miss. 726; 1 Biss. 503.

— Hon. E. C. Devobe, Special Judge. (1) Plaintiff’s petition is not sufficient to constitute a cause of action for divorce. It is intended to be bottomed upon indignities, but the word indignity does not appear in it. (2) Plaintiff alleges that, at some time prior to the filing of said petition, he was a resident of' the state of Missouri for more than a year, and that he so resided in this state at the time of filing his petition.

— Hon. James M., Sandusky, Judge. There was no proof of any negligence which-occasioned the delay complained of. The plaintiff charged in his petition, “that said defendant negligently and carelessly failed and refused to deliver said cattle on the morning” market. If the delay was occasioned by negligence, it devolved upon the plain-, tiff to introduce some proof of the fact. The maxim “Res ipsa loquitur” has no application to the-facts in this ease.

<p>1. Fraudulent Conveyances: proof of fraud. Direct testimony in support of the bona fieles of a transaction, which is attacked, as fraudulent, may be overcome by impeaching circumstances. The criminating facts, however, must be of a character to lead a reasonable and fair-minded person to infer a fraudulent and dishonest 'purpose in spite of the sworn statements of the witnesses. If the •evidence relied on to prove the fraud leads to no definite result, but only tends to east suspicion on the transaction, or if it is as consistent with an honest as with a dishonest purpose, the finding must be against the alleged fraud.</p> <p>A -: -: relationship of parties. The relationship of the parties to a preference, given by an insolvent to one of his e reditors is not of itself sufficient to establish that the transaction was fraudulent as to other creditors.</p>

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

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

— Hon. J. T. Neville, Special Judge. There is no controversy but that the plaintiffs were at the time the fence was torn down in possession of the premises which.it inclosed, and, when the defendant entered thereon and tore down the fence, about which fact there is no dispute, he committed a trespass for which, he was liable in damages. Moore v. Perry, 61 Mo. 174; Brown v. Marts ell, 87 Mo. 564.

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

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

— Hon E. M. Hughes, Judge. (1) The statute, section 4512, points out the remedy where sheep are killed by dogs. This does not dispense with the rule requiring proof as to the particular dog or dogs doing the killing.' It does not give anyone the right to kill trespassing dogs without regard to fact whether they have been or are killing or injuring stock.

— Hon. W. N. I Evans, Judge. No value of the household goods is alleged in the petition. This is a. necessary allegation, because recovery could be had, if at all, for only the actual cash value of this property at the time of the fire. Defendant’s objection to any evidence under the petition should therefore have been sustained, and for the same reason its demurrer to the evidence should have been sustained. Ins. Go. v. Greton, 98 Pa. St. 451; Grant v. Ins. Co., Low.

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

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

— Hon. M. G-. McG-begob, Judge. (1) The appellants contend that the court erred in rendering judgment on the instrument sued on, for the reason that it was not approved as required by law; that it lacked that element of legal validity; that unless so approved it is void; that it had no common-law origin — purely a creature of the statute — and must conform to its requirements.

<p>Appeal from the Jackson Circuit Court. — Hon. R. H. Field, Judge.</p>

— Hon. James H. Lay, Judge. (1) Growing out of the relation which the shareholder sustains to the corporation and corporate property and to the directors, as the mere agents or trustees of the corporation, we maintain his right at all reasonable times and in all reasonable ways, and for all reasonable purposes, to have an inspection of the books of the -corporation.

— Hon. M. G. McGregor, Judge. (1) The instruction given for the plaintiff was clearly erroneous and ought not to have been given, because it submitted issues not made by the pleadings. Hassett v. Rust, 64 Mo. 325; Gessley v. Railroad, 26 Mo. App. 156; Waddingham v. Hulett, 92 Mo. 528; Larimorev. Legg, 23 Mo. App. 645; 75 Mo. 96.

— Hon. Chas. W-Sloan, Judge. (1) Plaintiff in chief failed to make a prbna faciecase, as the weight and preponderance of the evidence proved the defendants had not signed the note and the court committed error in permitting it to be read in evidence to the jury. Monitor Floto Co. v. Born, 51 N. W. Bep. (Neb.) 129; Grreenleaf on Evidence, sec. 384 -, Haysler v. Dawson, 28 Mo. App. 538; Polachv. Hannauer, 26 Mo.

— Hon. Leslie O’Reae, Special Judge. (1) It was the duty of the circuit court of LaFayette county, on the defendants’ application for a change of venue, the application being against both the judge and the inhabitants of LaFayette county, to ' have first passed upon the application so far as its objection was to him, and, if sustained, to have given a reasonable opportunity for selection of a special judge.

— Hon. John E. Ryland, Judge. (1) The court erred in not confining the evidence as to acts of gambling to the time and within the dates specifically alleged in the indictment. 1 Bishop on Criminal Procedure [3 Ed.] secs. 401-7, 485, 486, 487, 488, 488a, 488b, and cases cited from these sections; State v. Owen, 73 Mo. 440; State v. Smith, 31 Mo. 120; 1 Q-reenleaf on Evidence [Redfield’s Ed.] sec. 63, and note 2, also sec. 65; Wharton’s Criminal Evidence [8 Ed.] sec. 146, and…

— Hon. E. L_ Edwards, Judge. “The law is just as imperative that the suit ■against the principal should be pressed to its final consummation, and that, too, with diligencé, as it is that it shall be commenced within the time limited. ’ Peters <o. Lindenschmidt, 58 Mo. 464; Lishe v. Bosenberger, 82 Mo. 46. The judgment of the lower court must, therefore, be reversed and the suit dismissed.

<p>1. Contracts: meeting on minds: instruction: harmless error.. Both, parties to a contract should consent to the same terms at the same time and the understanding of one is not sufficient; and an-instruction directing a finding on the sale that plaintiffs understood,, etc., is verbally defective; but in this case the defect was harmless.</p> <p>2. Instructions: assuming issue: evidence. An instruction should not assume a matter in issue, but this rule is not violated where the evidence particularly fixes the proper compensation of services.</p>

— Hon. E. M. Hughes, Judge. The only question presented by the record and that we ask this court to review, is the competency of R. E. Downing as a witness, and the refusal of the court to exclude his testimony.

— Hon. John A. Hockaday, Judge. The court erred in giving and refusing instructions. Hartnell v. Crumb, 90 Mo. 629. The rule as to the measure of damages is the same in sales both of real and personal property. Hartnell v. Crumb, 90 Mo. 637, 638, and cases cited; Kirkpatrick v. Downing, 58 Mo. 32, and cases cited.

<p>Appeal from the Buchanan Circuit Court. — Hon. James P. Thomas, Special Judge.</p> <p>(1) Under the pleadings and the evidence, the respondent could not recover. Gutmer v. Ande Fur Co., 28 Mo. App. 263; Fletcher v. Milburn, 35 Mo. App. 324; Fyerman v. Cemetery Co., 61 Mo. 489; Farp v. Tyler, 73 Mo. 617; Davis v. Brown, 67 Mo. 313; Lewis v. Slack, 27 Mo. App. 119; Railroad v. Levy, 17 Mo. App. 501. (2) Instruction number 1, given' on behalf of respondent, is in direct conflict with other instructions given in the case and was calculated to mislead the minds of the jury. State v. Simms, 68 Mo. 305; Simmons, Garth & Co. v. Roberts, .60 Mo. 581; State v. Mitchell, 64 Mo. 191; Fink & Basse v. Algerr missen, 25 Mo. App. 186. It hypothecates a state of facts, and, upon their existence; directs a verdict. Tho facts necessary to sustain a verdict in this case are not hypothecated, nor can this error be cured by construing all the instructions together. Thomas v. Babb, 45 Mo. 385; Goetz v. Railroad, 50 Mo. 472; Henry v. Bassett, 75 Mo. 89; Bank v. Murdock, 62 Mo. 70; Fink v. Phelps, 30 Mo. App. 431. Nor would the error of giving such an instruction be cured by the giving of other instructions properly declaring the law. State to• use v. Laurie, 1 Mo. App. 371; Mfg. Go. v. Hudson, 4 Mo. App. 145; Bank v. Westlake, 21 Mo. App. 565; State v. Mitchell, supra; Fink v. Algermissen supra; Billups v. Daggs, 38 Mo. App. 367; State v. Bearing, 65 Mo. 530. (3) Respondent’s instruction number 3 is meaningless, and was calculated to confuse and mislead the minds of the jury. “Instructions should not be so given as to leave the jury to conjecture their meaning.” State to use v. Lau/rie, supra; Greer v. Railroad, 80 Mo. 555; Bonahue v. Railroad, 83 Mo. 560; Chouteau v. Jupiter Iron Works., 94 Mo.388; Greer v. Parker, 85 Mo. 107; Young v. Ridenbaugh, 67 Mo. 574; Bunn v. Bunaker, 87 Mo. 597. (4) Appellant’s instruction number 4 fairly submitted all the questions of fact in the case to the jury.. It contains the law applicable to the pleadings and the evidence, and the court committed error in refusing to give it.</p>

— Hon. Henry M. Ramey, Judge. It is the duty of the judge in Buchanan county, when a jury, cannot be made up from the regular panel, to make out and deliver to the proper officer a list of jurors sufficient to complete the panel. And it is the duty of the judge to make out such list and to see that they possess the proper qualifications. And if any voir dire examination should be made the judge should make it.

Appeal /torn the Macon Circuit Cowt. — Hon Andrew Ellison, Judge. The sole question for the court is, can plaintiff recover for injury to his mare upon the ground of the neglect of the defendant, when by reasonable care and ■prudence on his part such injury might have been •avoided. No matter what the wrongful or neglectful •conduct of others, every man is bound to reasonable •care to avoid being a victim • of the wrong or neglect of others.

— Hon. James M. Sandusky, Judge. (1) We insist that the evidence in this case discloses the fact that the statement mailed to the deceased by defendant was not a final settlement of all matters between them; that it was only a statement of how the ■cash account stood at that day — and that Waller continued in his capacity of trustee of the funds, as agent of decedent after that date, the same as before.

<p>Appeal from the Hotoell Circuit Court. — Hon. W. N. Evans, Judge.</p>

<p>1. Judgments Rendered on Constructive Service: presumptions. When a judgment, obtained in another state upon the service of process beyond its territorial limits, contains a recital that the judgment defendant was legally summoned, such recital must he accepted as prima facie evidence that the laws of that state authorized this mode of service.</p> <p>2. Evidence: authentication op transcript op judgment op sister state. The transcript of the judgment rendered in another state of the Union, in order to satisfy the requirements of the act of congress in relation to the authentication of such records, and, therefore, in order also to satisfy our own statute, must be attested by the clerk of the court in which the judgment was rendered; an attestation by a deputy in the name of the clerk is insufficient.</p> <p>3. -: -: practice, appellate: non-prejudicial error. A transcript of this character was attested by a deputy clerk in the. name of the clerk, and this appeared therefrom; but it also appeared from other parts of the record that the clerk, whose name was signed by the deputy to the attestation, was the clerk of the court at the. time, and the judge whose certificate was attached to the transcript, certified to the signature as that of the clerk. Held, that the admission of the transcript in evidence against the judgment debtor was= not prejudicial error.</p> <p>4. -: -. The foreign judgment in question in this cause was rendered by the circuit court of Garland county of the state of Arkansas. The certificate of the judge attached thereto recited that he was-the "judge of the seventh judicial circuit in the state of Arkansas, of which circuit the county of Garland constitutes a part.” Held, that this certificate sufficiently showed that he was the judge of the-court which rendered the judgment.</p> <p>5. -: -. The transcript of the foreign judgment, which was-one of divorce, contained a copy of the complaint with the indorsements thereon, the writ of summons with the return of service and-file marks indorsed thereon, and a copy on the decree. Held, that: this was a sufficient transcript of the entire record.</p> <p>6. -: foreign statutes. A printed volume is admissible as prima facie evidence of the statutes of a sister state, if it purports to-contain the same; it need not purport to have been printed under the-authority of that state.</p> <p>7. Res Adjudicata: effect of foreign decree of divorce. A husband instituted an action of divorce in this state. While it was-pending, and before the trial thereof, the wife instituted a similar action in Arkansas and obtained a decree of divorce therein. Held, that this decree was valid and conclusive in the trial of the action in this state.</p>

— Hon. C. C. Bland, Judge. (1) The court should have taken the case from'the jury at the close of plaintiff’s testimony and at tha close of the whole testimony. There was no proof made that the company ever received or accepted the application. And the whole testimony shows that 0. Dean was the agent for the sole purpose of soliciting applications, receiving and receipting for the premium, and forwarding them to the company for acceptance.

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

— Hon. John. G-. Weak, Judge. (1) The order referred to in plaintiff’s statement was a “bill of exchange,” if it was anything. Tiedeman on Commercial Paper, sec. 2; Pouch v. Duff, 35 Mo. 312; Lee v. Porter, 18 Mo. App. 383. No action could be maintained upon such instrument by plaintiff, unless-accepted by defendant in writing, and there is no-statement or proof of such acceptance by defendant-Revised Statutes, secs. 719, 720; Lee v. Porter, 18 Mo. App. 377, 383.

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

<p>Appeal from the Wayne Circuit Court. — Hon. James E., G-reen, Judge.</p>

<p>Hearsay evidence: declarations oe vendor. Declarations made by the vendor of personalty after the sale and in the absence of thevendee are not competent evidence against the latter, unless they were made in furtherance of a conspiracy to defraud the creditors; and, to render the declarations admissible on that ground, there must be some independent evidence tending to establish the existence of such conspiracy and to show that its obj ect had not been accomplished when the declarations were made.</p>

<p>Jurisdiction of Appeals: cases of felony. An olíanse is a felony when it may be punished by confinement in the penitentiary. 3etS,, accordingly, that tho supreme court had jurisdiction of an appeal by the defendant from a conviction, assessing his punishment at imprisonment in the county jail, for an offense for which either that punishment or imprisonment in the penitentiary was authorized.</p>

— Hon. H. C. O’Bryan, Judge. The instruction number 2 should not have been given, because it led the jury to believe that Conner’s apparent possession justified the wrong of the ¿defendant, although the lease provided in its last paragraph that any wilful violation thereof should vitiate it at the option of the aggrieved party. It confused and misled the jury, and should not have been given.

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

<p>1. Practice, Trial: vacating judgment during term. The circuit court has power for good cause to vacate its judgment during the term at which it was rendered!</p> <p>2. -: -. Semble, that when the claims in controversy consist of the cause of. action sued on by the plaintiff and a counter-claim pleaded by. the defendant, and the trial occurs in the absence of the plaintiff, the failure of the judgment to adjudicate the plaintiff's cause of action is ground for vacating the judgment on his motion during the term.</p> <p>3. -: -. The plaintiff in this cause was a non-resident, and his counsel was called out of the state and was absent therefrom at the time set for the trial by reason of the dangerous illness of his wife and of his son. In his anxiety counsel omitted to ascertain the day of the trial, and notify the plaintiff of his absence. Held, that sufficient excuse was shown for the failure of the plaintiff to appear or to be represented by counsel at the trial.</p>

<p>Appeal from the Mississippi Circuit Court. — Hon. W. N. Randolph, Special Judge.</p>

<p>1- Delinquent Taxes: when action therefor is triarle. Án action to collect delinquent taxes is triable at the return term of the summons, when service of the summons is had more than fifteen but less than thirty days prior to such return term.</p> <p>2. -: power of circuit court to vacate sale: appellate review of its action. The sale of land under the judgment in an action for the recovery of delinquent taxes does not require the confirmation of the circuit court. And, while that court has the power to vacate the sale prior to the final return of the execution, the exercise of that power is erroneous in the absence of a sufficient cause and may be reviewed on appeal.</p>

<p>Appeal from the Gape Girardeau Court of Common Pleas. — Hon. J. W. Limbaug-h, Special Judge.</p>