Volume 54 — Missouri Appeal Reports

— Hon. W. D. Hubbard, Judge. It was not necessary for the plaintiff to prove, it was the duty of the court to take, judicial notice of the fact that the city of Billings was a city of the fourth class and situated within the territory over which the court had jurisdiction. Revised Statutes, 1889, sec. 1579; City of Savannahv. Bichey, 33 Mo. App. 522.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) The traffic in public offices is unlawful at common law, as being against public policy, and is also provided against by statutes; consequently no valid contract can arise out of a transaction tainted with such illegality. Keener on Selection on Contracts, p. 820; Hopkins v. Drescott, 4 C. B. 578; Flarty v. Odium, 3 T. R. 681; Lidderdale v. Duke, 4 T. R. 248; Wells v. Foster, 8 M. & W. 149.

<p>Appeal from the Barry Circuit Court. — Hon. Joseph Cravens, Judge.</p> <p>(1) The mortgage filed with plaintiff’s petition, which he was in this action seeking to foreclose,, was given expressly to secure the payment of two certain promissory notes, executed by one of the defendants to plaintiff’s decedent; said notes were not alleged to be lost or destroyed, and were not filed with the petition and no verified copy of said notes was filed with the petition, and defendants’ motion to dismiss, the action should have been sustained. Burdsal v. Davies, 58 Mo. 138;. Peck v. Bell, 65 Mo. 224; Dyer v. Murdoch, 38 Mo. 224. (2) The two notes mentioned in the mortgage that plaintiff was seeking to foreclose, and to secure the payment of which notes said mortgage was given, were not filed with the petition, and no reason was given for not filing them; and defendants’ motion to require plaintiff to file said notes should have been sustained. ' 1 McQuillin’s Pleading & Practice, sec. 279, and note 113; Bail/road v. Knudson, 62 Mo. 569; Christie v. Bail/road, 94Mo. 453; Kingsland, etc., Mfg. Co. v. Iron Co., 29 Mo. App. 526; Bothwell v. Morgan, 37 Mo. 107. Between the original parties to a negotiable note, or to any other instrument, the consideration may be inquired into, and if consideration fail there can be no recovery. Klein v. Keyes, 17 Mo. 326; Baile v. Ins. Co., 73 Mo. 371; Liebke v.. Knapp, 79 Mo. 22; Fontaine v. Boatman’s Savings Bank, 57 Mo. 552; Hollocher v. Hollocher, 62 Mo. 267; Hacker v. Brown, 81 Mo. 68.</p>

<p>1. Justices’ Courts: notice of -appeal: presumptions. The transcript of a justice of the peace recited, the rendition of judgment for the plaintiff, also that the defendant had, on the same day, filed the affidavit and signed the bond for an appeal, and that the justice had on the next day approved the bond and allowed the appeal. The approval of the bond bore the latter date. Held, that it must be presumed that the bond was not executed by the surety thereto until the date of its approval, and accordingly that statutory notice of the appeal was requisite.</p> <p>2. -: --. When notice of an appeal from a justice of the peace is required under the statute in relation thereto and is not given, it is the imperative duty of the circuit court at the second term after the appeal is taken to either affirm the judgment or dismiss the appeal, as the plaintiff may elect.</p>

<p>1. Administration: sale of defendant’s equity of redemption in MORTGAGED LANDS: EFFECT ON LIABILITY FOR THE MORTGAGE DEBT. When a debt allowed against the estate of a decedent is secured by a mortgage of land of the decedent, and the equity of redemption is sold by the administrator of the decedent’s estate under an order of the proper probate court, the land becomes primarily liable for the payment of the mortgage debt.</p> <p>2. -: -: LIABILITY OF ADMINISTRATOR FOR NEGLECT TO SECURE LIQUIDATION OF MORTGAGE DEBT BY PURCHASER OF EQUITY OF REDEMPTION. Accordingly, if dividends upon the debt are paid by the administrator out of the decedent’s estate after such sale of the land, it is his duty to recover the amount of these payments from the purchaser. And where he has refused and failed so to do, notwithstanding that the land was sufficient in value to pay the d$bt, he should on his final settlement be treated as having made the claim his own, and, therefore, be charged with the amount of the payments which he has thus failed to recover.</p> <p>3. -; -: RIGHT OF PURCHASER ON PAYMENT OF MORTGAGE DEBT. Moreover, if the purchasers pay the debt after purchasing the land, ' such payment will operate as a satisfaction of the debt so as to debar the purchasers from further dividends thereon from the estate.</p> <p>4. -: appeals. It is not necessary that all the distributees who file objections to the final settlement of an administrator should' join in an appeal from the judgment of the probate court on that settlement.</p> <p>5. -: -. An objection, that the appellants from such a judgment have no interest in the estate, cannot be raised by an objection by the appellee to the introduction of . evidence in the appellate court.</p> <p>6. -: -. A surety on demands allowed against the estate of the decedent may join in such an appeal when, though he was not a party to the objections filed to the settlement in the probate court, the order granting the appeal treats him as an objector.</p> <p>7. -: -. Tlie heirs of an intestate may appeal from the judgment on such final settlement, notwithstanding that the estate in course of administration is insolvent.</p>

— Hon. Joseph Cravens, Judge. (1) Instruction 1 is erroneous for tbe reason that 'this was a transfer of property by a creditor in payment of an antecedent debt, and it does not matter whether Haggerty made the sale with .the intent to hinder or delay or defraud his creditors, unless ■the plaintiff knew of and participated in such fraudulent intent or purpose. Shelly v. Boothe, 73 Mo. 74; Albert v. Beset, 88 Mo. 150; Frederick v. Allgaier, 88 Mo. 601; Morgan v. Wood, 38 Mo.

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

— Hon. Ben. E. Turner, Judge. (1) The notice .of annual meeting introduced in evidence is insufficient to give the annual meeting jurisdiction to make the division of the district as it is alleged was made.

: Among the condition of the defendant’s subscription was one that the capital stock should all be bona■ fide subscribed and one half thereof paid up in lawful money. Revised Statutes, 1889, sec. 2768. This requirement is declared by the authorities to be condition precedent, the performance of which must be shown before the subscriber shall become a stockholder, or liable for his subscription.

<p>1. Instructions: submission of several causes of action. When several causes of action sued upon by the plaintiff are before the jury, the instructions authorizing a recovery by him should indicate specifically to which of these causes of action they are severally addressed, and should not direct a finding generally for the plaintiff upon a given state of facts.</p> <p>2. Trespass to Realty: landlord’s right of action. A landlord can maintain an action of trespass for injury to the freehold committed by a stranger while his tenant is in the possession of the land.</p> <p>3. -: measure of damages. Held, in the course of discussion, that the measure of damages for a trespass to land and asportations injurious to the freehold is the consequent depreciation' in the value of the freehold.</p>

— Hon. J. H. Slover, Judge. (1) There was no lien on these lots at the time of the trial of this cause. The court below erred in holding that such lien existed. The tax bills were issued October 8, 1889, receipted for October 11, 1889, suit brought October 10, 1891, not within tUo years after their issue, October 8, 1889. City Charter, Session Acts, 1875, art. 8, secs. 3, 4, pp. 251-2.

— Hon. J. H. Sloven, Judge. (1) Instructions numbers 4 and 6 are both erroneous, number 4, in that it requires that both Gregory and White be found guilty of fraud, and number 6 in that it required defendant to show the bill of sale was “without consideration” and in requiring defendant to show “that plaintiff (Gregory) knew of and participated in such fraudulent purpose.” The instructions should have included White who was the instrument by which the fraud was perpetrated.…

— Hon. J. H. SSloveb, Judge. (1) Plaintiff’s application to sue as a poor person must be disposed of before a judgment for costs could be rendered against her. Revised Statutes, 1889, sec. 2918, 2919. (2) This written dismissal was obtained by unfair means and is not binding upon plaintiff. Girard, v. St. Louis Gar Wheel Go., 46 Mo. App. 74, and authorities therein cited; Blair v. Railroad, 89 Mo. 383; Maher v. Railroad, 105 Mo. 320; Bank v. Crandall, 87 Mo. 208.

— Hon. John W. Henry, Judge. The right of a mortgagee to take possession of personal property, by virtue of a chattel mortgage, 'which provides that “in case of a sale or disposal, or attempt to sell or dispose of said property,” the mortgagee or Ms assigns, etc., may take the said property or any part thereof into his possession, arises when a constable takes possession of the property under an execution against the mortgagor, for the purpose of selling the property to…

— Hon. E. H. Field, Judge. (1) There is not a particle of evidence in this case that brings it within the class.of cases to which the usury acts, pp. 169, 70,- 71, Laws of 1891 apply. (2) The burden of proof is on the defendant bo show that plaintiff exacted usurious interest..

— Hon. James H. Lay, Judge. ' . . (1) The evidence shows that the deposit and those made subsequently in the names of the two children, were clearly intended to be gifts to the children, and should be given the legal force and operation of gifts absolute and complete to them. Minor v. Rogers, 40 Conn. 512, Am. Rep. 69; Schooler v. Schooler, 18 Mo. App. 69; Vogel v. Gast, 20 Mo. App. 107; McCoy v. Hyatt, 80 Mo. 130.

Glair Circuit Court. — Hon. D. P. Stratton, Judge. (1) The 'defendant Taylor is not entitled to be subrogated to tbe rights of Burch, the beneficiary in the. deed of trust given by Reed to Burch, now held by plaintiff until he has satisfied all the debts due from Reed to plaintiff-, for which the land is mortgaged to secure. 1 Hilliard on Mortgages [2 Ed.] sec. 35, p. 33; Jones on Mortgages [2 Ed.] sec. 884; 1 Story’s Equity Jurisprudence [12 Ed.] sec. 502a; Wilcox v. Bank,…

— Hon. James H. Lay* Judge. (1) The petition is fatally defective. There is no averment in the petition directly or by implication that, the city of Clinton had ever opened or established Allen street by ordinance or otherwise. Révised Statutes, 1889, secs. 1495, 1498, 1514, art. 4, ch. 30; 2 Dillon on Municipal Corporations [3 Ed.] secs. 949,. 1041, ch. 23.

— Hon. James H. ' Lay, Judge. (1) The court erred in permitting plaintiff to prove that there was an understanding that the agent of the Herman of Freeport should procure the consent of the defendant to the insurance in the Herman of Freeport before the application should be sent in.

<p>Appeal from the'Barton Circuit Court.. — Hon. D. P. Stbatton, Judge.</p> <p>(1) A preference by an insolvent is lawful only when voluntary. A purchased preference is fraudulent and void. Bump on Fraudulent Conveyances [2 Ed.] pp. 191-2;- Kissom v. Edmonson, 1 Ired. Eq. 180; Pettibone v. Stevens, 15 Conn. 19; White v. Graves, 8 J. J. Marshall (Ky.), 523. (2) The stipulation for reversal of the judgment of the circuit court in the case of Locke, Hulett & Co. filed in the court of appeals was an attempted fraud on the rights of the moving creditors whose attachments were subsequent in time. The agreement to file the stipulation and procure a reversal in the case of Locke, Hulett & Co., was a part of the same contract by which the plea in abatement in this case yas withdrawn and judgment entered in favor of respondent, and if that part of the contract relating to the Locke, Hulett case was fraudulent it ought to vitiate the entire contract and postpone the lien of' respondent to that of the moving creditors.</p>

— Hon. L. P. Stratton, Judge. (1) Tbe entry of satisfaction is nothing but a receipt, is only prima facie and not conclusive evidence of payment. Joerdens v. Schrimpf, 77 Mo. 383-387; Knox Co. v. Goggin, 105 Mo. 182-189; Christy v. Scott, 31 Mo. App. 337; Chappel v. Allen, 38 Mo. 223; Valle v. Iron Mountain Co., 27 Mo. 455; Crosby v. Chase, 17 Me. 371; Bean v. Boothly, 57 Me. 303; Homer v. Grashoh, 33 Md. 525; Peter’s Appeal, 2 Cent. Pa. 528; Hughes v. Torrence, 2 Cent.

James H. Lay, Judge. (1) The petition of plaintiff, held to be insufficient upon the demurrer of defendant Grlazebrook, was not the third petition adjudged insufficient by the court. • Revised Statutes, secs. 2066, 2067, 2068; Spurlock v. Bailroad, 93 Mo. 13, 530; Corrigan v. Brady, 38 Mo. App. 659.

— Hon. D. P. Stratton, Judge. (1) Defendants are bound, notwithstanding the alleged oversight of said defendants in construing plaintiffs’ letter. Where one of two innocent partiest must suffer, he who commits the error must bear the loss. Bice v. Coffman, 56 Mo. 434; Mfg. Co. v. S. H. Henry and B. T. Henry, 44 Mo. App. 263; English v. Bice, 20 Mo. 583 ; 2 Parsons on Contracts [15 Ed.] pp. 792 to 801; 3 Parsons on Contracts [15 Éd.] p. 398.

— Hon. D. P. Stratton, Judge. (1) Defendant did not object to the giving of plaintiff’s instructions at the trial. The first time he objected to them was in his motion for a new trial. Not haying objected to them at the trial, he cannot be heard to complain of them either in his motion for a new trial or in this court.

.Appeal from the Nodaivay Circuit Court. — Hon. Cyrus A. Anthony, Judge. (1) The interest here attached (should we admit :it to have been partnership property) was clearly such an interest as O. E. Rnmsey could convey to an individual creditor. 1 Bates on Partnership, secs. 186, 291; 1 Jones on Mortgages, sec. 120; Conant v. Fray, 49 Ind. 530; Beyburnv. Mitchell, 16 S. W. Rep. 593.

<p>Error to the Jackson Circuit Court — Hon. John W. Henry, Judge.</p>

Appeal' from the Gentry Circuit Court. — Hon. C. H. S. G-oodman, Judge. (1) Tlie court erred in allowing defendant to testify as to the amount of law business done by him in the state of Kansas. If admissible at all it should have been shown by the books of Harris & McCartney.

<p>Appeal from the Moniteau Circuit Court. — Hon. E. L. Edwards, Judge.</p> <p>(1) The court should have sustained defendant’s demurrer to the plaintiff’s evidence. Loeffler v. Railroad, 96 Mo. 267; Williams v: Railroad, 96 Mo. 275; Barker v. Railroad, 98 Mo. 50; McAlester v. Railroad, 64 Iowa, 395; s. c., 19 American & English Railway Cases, 108, and note; Scheffer v. Railroad, 32 Minn. 518; Conely v. Railroad, 12 Atl. Rep. 496; Railroad v. Shroeder, 16 Atl. Rep. 212, par. on 214; Blanchard v. Railroad, 18 N. E. Rep. 799, and note. (2) It follows that it was error to give plaintiff’s first, second, third, fourth and fifth instructions.</p> <p>(1) The plaintiff in this case bases her right to recover on the ground that she is the mother of Frank McKenna who was killed. Revised Statutes, 1879, sec. 2121; Session Acts, 1885, pp. 153-4. (2) The court committed no error in overruling defendant’s demurrer to the plaintiff’s evidence. There was ample evidence to show that the death of plaintiff’s son was occasioned by the unsafe condition of the track in connection with the negligence of defendant’s employes in running over it at an unusually rapid rate of speed. Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306; Sullivan v. Railroad, 107 Mo. 66; Cox v. Granite Go., 39 Mo. App. 424; McDermott v. Railroad, 87 Mo. 285; Dowling v. Allen <& Go., 89 Mo. 299; Moore v. Railroad, 85 Mo. 588; Stoher v. Railroad, 91 Mo. 509; Porter v. Railroad, 75 Mo. 66; Stoher v. Railroad, 105 Mo. 192; McPherson v. Railroad, 97 Mo. 253; Grayharsh v. Railroad, 103 Mo. 570; Wash v. Railroad, 52 Mo. 434. (3) The instructions asked on behalf of the plaintiff are amply sustained by those given and approved in the case of Riñe v. Railroad, 100 Mo. 228; s. c., 88 Mo. 392.</p>

— Hon. R. H. Field, Judge. Can it be said that this plaintiff, who by his own act caused the release of the property attached, by signing the forthcoming bond, without any claim to the property at the time or notice of claim, and by his silence cause a great injury to Nichol & Co., be allowed to set up at this late day an after acquired title to said property or any claim to said property? The weight •of authority and reason would say no. Mfg. Co. v. Bean, 20 Mo. App.

— Hon. Mathew Eyre, Special Judge. , . ,(1,)..A failure to include all such houses in the mechanic’s lien statement required to be filed with the clerk renders the same invalid as to those which are included therein, because it fails to bind those which are omitted'. Bice v. Nautasket Co., 140 Mass. 256; Foster v. Cox, 123 Mass. 44; Stevens v. Lincoln, 114 Mass. 476; Schuleriburg v. Vrooman, 7 Mo. App. 133; McCauley v. Mildrum, 1 Daly (N. Y.), 396.

— Hon. J. H. . Sloyeb, Judge. (1) The court erred in submitting to the jury the question of a permanent injury. In the first place the petition does not allege that the injuries were permanent. In the second place there was no evidence that the plaintiff’s injuries were permanent.

— Hon. D. P. Steatton, Judge. (1) The evidence clearly shows that the policy was delivered upon condition that the Lancashire policy be surrendered, which was never done. (2) The evidence clearly shows that the premium for the policy had never been paid, nor was credit given therefor. Union Bld’g Ass’n v. Ins. Co., 49 N. W. Rep. 1032. (3) The evidence clearly shows that the Lancashire policy was in full force at the time of the fire.

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

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

— Hon. Ben. E. Turner, Judge. There is a fatal variance between the allegation of the ownership of the property in the information and the proof. The ownership must be proved as laid. State v. Horn, 93 Mo. 190; State v. Fay, 65 Mo. 490. The court failed to instruct on the whole case, which is fatal. State v. Banks, 73 Mo. 568; State v. Palmer, 88 Mo. 592; State v. Biley, 100 Mo. 494. There was a complete failure of proof. State v. Ballard, 104 Mo. 634.

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

— Hon. W. D. Hubbard, Judge. The claimant of lien for material furnished must prove that the identical material charged went into construction of improvement sought to be charged in the lien. Schulenbwrg v. Hawley, 6 Mo. App. 34; Schulenburg v. Vroman, 7 Mo. App. 133; Schulenburg v. Robison, 5 Mo. App. 561; Fitzgerald v. Ttidmas,61 Mo. 499; s. c., 76 Mo. 513; Schulenburg v. Prairie Home Institute, 65 Mo. 295.

— Hon. M. GL McGIbegob, Judge. The statement of the cause, of action, the sufficiency of which is controverted by appellant, is a perfect statement of a cause of action by novatipn. That statement alleges every fact essential to establish the liability of defendant by novation, and the right of plaintiff to sue and recover thereon. The promise of the defendant was a direct undertaking to pay his own debt, and need not to have been in writing.

<p>1. Destruction of Fruit Trees and Hedges: measure of damages. The measure of damages for the wrongful destruction of fruit trees — and so held also of hedges sued for herein — consists of the difference between the value of the land, on which they grow, before and after their destruction.</p> <p>:2. Practice, Appellate: preservation of objections to rulings on instructions. To entitle himself to the review of adverse instructions on appeal to this court, a party must preserve his exceptions to the giving of them.</p>

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

— Hon. E. M. Hughes, Judge. The place where the steer entered upon the track, and where it was killed, was not a part of appellant’s station grounds, nor was it necessary to leave it open for the benefit of the public or the transaction of the business of the company. The necessity for leaving this space open must be shown in order to avoid a liability. It was outside of the town of Eoley and not within the station grounds.

<p>1. Practice, Appellate: review op ruling op trial court on demurrer to answer. A defendant is not entitled to a review of the ruling of a trial court in sustaining a demurrer to his answer, if he has not filed a motion in arrest of judgment.</p> <p>2. Right of Road Overseer to Remove Fence Obstructing a Public Highway. A road overseer has the right to remove a fence which obstructs a public highway in his district, after he has given the owner who has erected it the requisite statutory notice for its removal.</p>

<p>Appeal from the 8t. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>(1) Inasmuch, as tlie answer does not show defendant was free from fault in signing the contract, it did not state any defense. Clodfelterv. TLulett, 72 Ind. 138. The answer did, however, show that the representation complained of was not calculated to impose upon a man of ordinary prudence, and that defendant did not use ordinary prudence to inform himself as to the meaning of the term in question. There existed no relation of trust or confidence between defendant and plaintiff’s agent. They were strangers dealing with each other at arm’s length. Courts will not aid those who neglect the means of protection within their easy reach. Bail-road v. Cleary, 77 Mo. 634; Bell v. Byerson, 11 Iowa, 233; Dunn v. White, 63 Mo. 186; Bobinson v. Glass, 94 Ind. 212; 2 Parsons on Contracts [7 Ed.] * p. 774; Moore v. Turbeville, 2 Bibb, 602; Saunders v. Hatter-man, 2 Ired. 32; Bowers v. Thomas, 62 Wis. 480; Union Nat. Bank v. Hunt, 7 Mo. App. 42; Long don v. Green, 49 Mo. 364; Haivkins v. Hawkins, 50 Cal. 558; Cooley on Torts [2 Ed.] pp. 570. (2) The answer did not deny under oath the mating of the contract; hence its execution was admitted. The defense non est factum was not sufficiently pleaded, and could not be made.. Smith Co. v. Bembaugh, 21 Mo. App. 390-1; Bothschild v. Frensdorf, 21 Mo. App. 321; Corrigan v. Brady, 38 Mo. App. 649-656; Merrill v. Trust Co., 46 Mo. App. 236-42.</p> <p>(1) “As between original parties, if one has procured the signature of the other to a written instrument,, whether by fraud or not, which does not contain the contract made by the parties but a different one, he cannot be permitted to avail himself of the writing, but must stand by the real contract.” Wright v. McPike, 70 Mo. 175; Cole Bros. v. Widmaier, 19 Mo. App. 7. (2) Abbreviations in a writing may be explained by parol evidence. First Nat. Bank v. Fricke,’ 75 Mo. 178; Heideman v. Wolfstein, 12 Mo. App. 366. (3) The objection that the answer was not verified was not made in the trial court, but is advanced for the first time in this court. It will therefore not avail the appellant. Revised Statutes, 1889, sec. 2302; Haniford v. Kansas City, 103 Mo. 172; McDonald v. Cash, 45 Mo. App. 66. Section 2186, under which it is claimed the answer should have been verified, applies only to cases in which the “petition or other pleading shall be founded upon any instrument in writing.” The petition in the case at bar did not come within the purview of this requirement for verification, because the writing sued upon was signed by both parties. Section 2088 of the Revised Statutes is a corollary to section 2186; the first clauses of both are almost identical. Yet section 2088 does not apply to a contract signed by both parties to it. Campbell v. Wolff, 36 Mo. 459; Bowlmg v. Sax, 55 Mo. 446; Railroad v. Athison, 17 Mo. App. 484. The action in this case is really in assimipsit for the price of five thousand cards.</p>

— Hon. W. D. Hubbard, Judge. ' The petition alleges the existence of a lease.

<p>1. Pleading: allegation of nonpayment of claim sued upon. An allegation in a suit upon a judgment, that the judgment remains valid and in full force, is equivalent to an allegation that the judgment is unpaid.</p> <p>2. Judgments: assignment of. The statutory mode of assigning judgments is not exclusive; an assignment hy a writing not attached to the judgment is valid.</p> <p>3. Justices’ Courts: judgment in proceeding on landlord’s summons: recital op service, on defendant. It is not necessary that the judgment of a justice of the peace in the city of St. Louis in a proceeding upon a landlord’s summons should recite that service was had upon the defendant in the ward in which the property sued for is situated, or in an adjoining ward.</p> <p>4. -: judgment by default. The'fact, that a judgment by do-fault against a defendant was rendered by a justice of the peace in less than three hours after the time at which the summons was returnable, will not invalidate the judgment.</p> <p>5. -: judgment: jurisdictional facts. When a court of inferior or limited jurisdiction exercises special statutory powers, as where there is a proceeding upon a landlord’s summons before a justice of the peace, its jurisdiction must appear from tho face of the proceed ing.</p> <p>C. -: -: --. And held, Bond, J. not concurring, that, in a suit uqion a money judgment rendered by a justice of the peaco against the defendant upon five days service in a proceeding upon a landlord’s summons, it must affirmatively appear that the verified statement required by the statute was filed by the plaintiff.</p>

— Hon. John W. Henry, Judge. (1) The railroad of the defendant is benefitted by the improvement of Summit street. The court found as a fact that this railroad is used as a switching road, having factories, warehouses, lumber yards, etc., along its line from which it receives a share of its business. The auditor admitted in his testimony that streets were a necessity to their road, and without such means-of access it would be of no use except for through business.

— Hon. C. O. Tichenor, Special Judge. • If Briscoe had the authority, to make the contract allowing Hitt to retain $100 of the company’s money, he had the right to modify it so as to allow him to retain more. “The same power which enabled him to make it was sufficient to enable him to release it.” Indianapolis Bolling Mill Co. v. Bailroad, 120 U. S. 256; Sparks v. Transfer Co., 104 Mo. 539; 17 American & English Encyclopedia of Law, pp. 130, 135.

<p>Subrogation: payment op prior lien. Under the equitable principio of subrogation one who pays a mortgage under ah agreement for an assignment or for a new mortgage, as in this ease, for his own benefit, acquires a right to the security held by the owner; and so, where tho mortgagor attempts to secure the payor of the prior lien by a new mortgage on the premises, which is ineffectual by reason of a mutual mistake of the parties, the payor will be subrogated, to the rights of the original mortgagee, notwithstanding a subsequent mortgage taken with notice of the intention that the said payor had a prior lien to such subsequent mortgagor.</p>

on Circuit Court. — Hon. John W. Heney, Judge. (1) The court should have sustained the objection ■of plaintiff to the introduction of any evidence of a gift by plaintiff to defendant of the fixtures, for the reason that defendant had answered only by general 'denial ■and this being an affirmative defense and a plea of new matter should have been specially pleaded and could not be shown under a general denial. Muelrath v. Roemheld, 3 Mo.

— Hoh. R. H. Field, Judge. (1) The relator, Fred C. Hey, is not the proper party to maintain this action.

— Hon. D. P. Stkatton, Judge. Before the plaintiff was entitled to recover he should have shown that he had complied with his part of the contract. Blackwell v. Adams, 28 Mo. App. 63; Reiger v. Bigger, 29 Mo. App. 421, cited and approved in Barlmess & Russel v. Briscoe, 47 Mo.. App. 202; Gaty v. Foster, 18 Mo. App. 643; Sibald v. Iron Co., 83 N. Y. 378, cited and approved in Gcvty v. Foster, supra; ' Wyle i). Marine Nat. Bank, 61 N. Y. 416; Beauchamp v. Higgins, 20 Mo.

— Hon. Richabd Field, Judge. (1) The parol contract was when entered into a perfect and complete contract in all its details, and after plaintiff loaded his cattle into the defendant’s special train it was fully executed on his part.

— Hon. J. R.. Edwards, Judge. (1) As the term during which Hammitt & Morrison had a right to make ties out of the oak timber on the land had not expired at the time of the institution of the suit, no cause of action for failure to make ties out of the timber could have accrued. Collins v. Monterney, 3 111. App. 182. .

— Hon. John A. Hockaday, Judge. It is not disputed that appellant shaved witnesses Smith and Fox on Sunday. The question is whether or not under the facts and circumstances of this case the work done is within the exception provided in the statute. 1 Revised Statutes, 1889, sec. 3852, p. 919.

— Hon. Henry M. Ramey, Judge. (1) The entire ordinance should be considered to ascertain the legislative intention. Being ascertained,. the intention will control the interpretation of all the parts. Sutherland on Statutory Construction, sec. 218, 241. (2) The specifications are so full as to leave absolutely no doubt as to the most minute details for the construction of pipe sewers.

— Hon. Gr. D. Bung-ess, Judge. Under the proofs, it is clear that Hershe was defendant’s agent, and that his authority was plenary. The defendant, knowing the facts, received and retained the money.

— Hon. J. H. Slover, Judge. (1) “Nothing is better settled than that, after the term at which a final judgment is rendered, the court cannot interfere with it. Brewer v. Binwiddie, 25 Mo. 351; Harbor v. Railroad, 32 Mo. 426; Mann v. Warner, 22 Mo. App. 581; Blanchard v. Wolff, 6 Mo. App. 204.

— Hon. O. W. Sloan, Judge. (1) Guardians of insane persons are trustees and are governed by the law pertaining to trustees. Michael v. Loche, 80 Mo. 551;State to use v. Jones, 89 Mo. 478. (2) Trust funds in the hands of trustees.are to be managed and disposed of by them for the equal benefit of all creditors. State ex rel v. Brockman, 39 Mo. App. 131, and cases cited.

— Hon. John A. Hockaday, Judge. (1) It was error to permit $3,600 to be deducted from the receipts of the Mexican eating-houses for wages to plaintiff’s son. First. The evidence shows that this was an unnecessary and useless expense. Defendant protested against the employment of plaintiff’s son, as it entailed unnecessary cost. “An expenditure which is both unauthorized and unnecessary cannot be charged to the firm.” Bates on Partnership, sec. 767; Marsh v. Mastersen, 2 Cent.

— Hon. E. L. Edwards, Judgo. (1) The proposition to put in the number 71 furnace for $850 when accepted by defendant constituted a new contract and a rejection of the old one for the number 61 furnace. Hence instructions based on the old contract and guaranty were improper; and numbers 1, 2 and 3 given for defendant should have been refused. ShicMes v. Chouteau, Harrison, Valle I. Co., 10 Mo. App. 241.

— IIon. D. P. Steatton, Judge. (1) The rule is without exception, that, when there is an attempt to rescind a contract on account of fraud, the party offering to rescind must, as soon as the fraud is discovered, return or offer to return the property received by him in the transaction, and if he does,not do this promptly upon discovery of the fraud he cannot take advantage of it afterwards. Crumb v. Wright, 97 Mo. 13; Girard v. Car Wheel Co., 46 Mo.

— Hon. C. O. Tichenob, Special Judge. (1) The rejection of the testimony of the plaintiff Cahill by the court, based upon the ground that the contractor to whom the .materials were furnished was dead, was erroneous. The statute is an enabling, not a disabling, one. Bates v. Forchet, 89 Mo. 128. (2) Where at common law a party could testify, he can still do so notwithstanding the death of the party to the contract or cause of action.

— Hon. R. H. Field, Judge. (1) Defendant contended in the circuit court that this statute applied only to the transmission of the message and that the transmission was required to be done “promptly and with impartiality and good faith.” The circuit court, as will be perceived from its finding of facts and its refusal of defendant’s declarations of law, extended the statute to a case of negligence in the delivery of the telegram.

— Hon. Richard Field, Judge. (1) The Midland National Bank acquired no better right to the property in controversy than Brannock & Co., or the Currier Commission Company had therein. Nat. Bank of Commerce v. Railroad, stipra; The Brunswick Co. v. Martin Co., 20 Mo. App. 158.

— Hon. James Gibson, Judge. (1) This action is not on the note, but is based on the judgment of Huling and Chapman against Sharp, and the payment of said judgment by Sharp. Held: and by its judgment awarded plaintiff exactly the amount paid out by him on the judgment and costs, with interest át six percent., when the note provided for interest at eight per cent.

<p>Criminal Law: bail: recognizance taken without previous issue or writ op habeas corpus. When a person has been indicted and arrested for a bailable offense, only the judge of the court wherein the indictment is pending has authority to admit him to bail without first issuing a writ of habeas oorpus for him; and if any other judge admits him to bail and takes his recognizance without first issuing that writ, the recognizance is void and unforceable.</p>

.Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge. Neither of the four errors assigned by the appellant for the reversal of the judgment in this cause was brought to the attention of the trial court by its motion for a new trial, nor even hinted at therein, and for that reason they can not now be considered in this court. Bacon v. Perry, 25 Mo. App. 73; Bayv. Thompson, 26 Mo.

<p>Error to the Garter Circuit Court. — Hon. John Gf. Weak, Judge.</p>

<p>Appeal from the Hotoell Circuit Cou/rt. — Hon. W. N.. Evans, Judge.</p> <p>The exceptions made by the statute, and contained in the words “unless the same is so surrounded by artificial or natural barriers,” were not negatived by the indictment. This is fatal to the validity of the indictment. 1 Wharton’s Criminal Law, sec. 379. When there is an exception in the enacting clause of the statute defining a crime, the indictment charging a violation of the statute' must show that the defendant is not within the exception. Malone, Criminal Brief, page-44; State v. Sutton, 24 Mo. 377; State v. Crenshaw, 41 Mo. App. 24; State v. Barr, 30 Mo. App. 498.</p>

<p>Error to the Cafe Girardeau Circuit Court. — Hon. H. C. O’Bryan, Judge.</p>

<p>Appeal from the Greene Circuit Court. — Hon. H. E. Howell, Special Judge.</p>

<p>1. Mandamus: proceeding to compel surrender of corporate BOOKS AND PAPERS BY RETIRING OFFICER. McmdamUS will lie Upon the petition of a private corporation to compel the surrender of its records, hooks and papers, when these are withheld hy one of its former officers. Especially will the courts exercise this jurisdiction when it is made to appear that the hooks and papers have been concealed and cannot he reached hy ordinary legal process.</p> <p>2. -: -: auditing of officer’s Accounts. Wlien the term. of a secretary expires, it is his absolute legal duty, whether his-accounts have been adjusted or not, to deliver up on demand all the propeity in his possession by virtue of his office. Accordingly, such suirender will be enforced by writ of mandamus without first requiring the adjustment of his accounts.</p> <p>3. -: peremptory writ. Held, in the course of discussion, that in proceedings by mandamus the peremptory writ must in all particulars, staidly conform to the alternative writ, and, therefore, that a peremptory writ must be denied, if the relator is not entitled to the performance of the command of the alternative writ.</p>

<p>Alteration of Boundary of School District: limitation as to-assessed valuation os’ PROPERTY. Under section 7972 of the Revised Statutes of 1889 a change of the boundary line between two-school districts, which left one of the districts with property of an assessed valuation of less than $30,000, was permissible only if such district contained within its limits nine square miles, or more, of territory.</p>

<p>1. Practice, Appellate: appeal from final settlement of the guardian. The rules applicable to appeals in equitable actions will govern an appeal from the judgment on the final settlement of the guardian of a minor.</p> <p>2. -: review of matters of fact in actions in equity. In chancery causes appellate courts are invested with full power to make their own findings of fact.</p> <p>3. Guardian and Ward: nature of the guardian’s obligations. In the care and management of the ward’s estate a guardian is bound to employ such diligence and prudence as in general prudent men of discretion and intelligence in such matters employ in their own like affairs; but, in the absence of gross negligence, a guardian is not liable for more than he actually receives.</p>

'Appeal from the Shelby Circuit Court. — Hon. Thomas H. Bacon, Judge. (1) There was no affidavit, as a foundation of this •case. The pretended affidavit was simply signed “M. Dimmitt.” It does not appear that he had any ■authority to administer oaths. At the top of the instrument, it says: “Before M. Dimmitt, mayor of the city of Clarence, Missouri.” But that is no part ■of the complaint, and does not cure the defect below.

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

— Hon. O. C. Bland, Judge. . (1) The court erred in giving instruction number 1. This instruction entirely ignores any supposed or alleged negligence or want of care on the part of the defendant or its superintendent.

Louis City Circuit Cotvrt. — Hon. Jacob Klein, Judge. (1) The plea of the statute of limitations contained in the appellant’s amended answer should have been sustained. 1 Revised Statutes, 1889, secs. 183, 5329; Johnson v. Smith’s Adm’r, 27 Mo. 591; Coleman v. Willi, 46 Mo. 236; Stateexrel. v. Hoshaw, 86 Mo. 193; Bentv.

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

Louis. Hon. Shepard Barclay, Judge. (1) A granite pavement is not such a permanent improvement to the realty as can be taxed against the remainder-men. Whatever may be the decisions in other states upon this point, the question is certainly settled in this state by Reyburn v. Wallace, 93 Mo. 326. See, also,Mehle v,.Bensel, 2 South. Rep. 201; Hitner v. Fge, 23 Pa. St. 305.

— Hon. John W. Matson, Special Judge. The chief point relied upon by the appellant for the reversal of this cause is the giving of the instruction at the conclusion of the evidence offered by plaintiff, withdrawing the ease from the consideration of the jury. This was manifest error. Conroy v. Vulcan Iron Works, 62 Mo. 39; Stoddard v. Railroad, 65 Mo. 514; Thorp v. Railroad, 89 Mo. 650; Devlin v. Railroad, 87 Mo. 545; Bridges v. Railroad, 6 Mo. App. 389; Dalev.

<p>1. Railroads: condemnation of right of way: service of notice of filing of commissioner’s award. Sections 2033 and 2034 of the Revised Statutes, being the general provisions of the code in regard to the service'of notices, are applicable to the notice which section 2738 of the Revised Statutes requires the cleric of the circuit court to give of the filing of the award of the commissioners in proceedings of eminent domain by railway companies.</p> <p>2. -: -: REVIEW OF JUDGMENT OBTAINED ON CONSTRUCTIVE notice. Qucere, whether a party, who has been served by constructive notice in such proceedings, may avail himself of the provisions of section 2218 et seg. of the Revised Statutes for the review of final judgments obtained on such service.</p>

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

Louis City Circuit Court. — Hon. . Daniel D. Fisher, Judge. (1) Where it is expressly agreed or impliedly understood between the parties to an account, while it is accruing, that the account is to be kept open and continued as one and the same continuous transaction and course, of dealing, the account is considered as one continuous account and one demand. Bing v. Jami-son, 2 Mo. App. 584 (589j ; Bing v. Jamison, 66. Mo. 424 (428); Boylan v. St. Bt.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in permitting plaintiff, over the objection of defendant, to read from an alleged bill of exceptions the alleged testimony of the deceased witness, John J. Kenney, alleged to have been given a. former trial of the cause, without first having introduced any evidence or proof that such testimony had been given as alleged by said Kenney, or that the testimony to be read was- substantially the same as…

<p>Error to the St. Louis City Circuit Cowrt. — Hon. Daniel Dillon, Judge.</p>

<p>Hotels: liability op proprietor. When the proprietor of a hotel employes a servant to receive and keep the property of guests while at meals, his liability for the default of this servant in the custody of property so .received is not affected by the fact that he has also provided a check-room for the safe keeping of such property.</p>

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. The time when payment is to be made, if provided for in a building contract, is binding upon all the parties to it, and no lien can be enforced until its-expiration; or, when a precise date is not specified, but a mode for ascertaining or fixing'the time of payment has been adopted — as, where the parties have agreed that the superintendent shall pass upon the work — his-decision is final, and payment cannot be…

<p>1. Instruction, Defect In: when cured by correct instruction. Before the error in one instruction can be cured by another instruction which is correct, the entire charge must be consistent.</p> <p>:2. Contracts: right or party rendering services to compensation. If a party rendering services intends that they should be gratuitous when he renders them, he cannot subsequently recover therefor; nor is it necessary, in order that he should be debarred from the right to compensation, that the party accepting the services should also have considered them as gratuitous.</p>

— Hon. C. H. S.. GIoodman, Judge. (1) The alleged bill of exceptions in this case-cannot be considered; it was not filed within the time-allowed by the court. The trial judge had no authority to, nor could he legally extend the time for filing the-bill of exceptions after it had once expired, nor could heat a subsequent term of the court sign and allow the-bill of exceptions. Revised Statutes, 1889, sec. 2168 j. ■State v. Mosley, 22 S. W. Rep.

— Hon. E. J. Broaddus, Judge. (1) The general allegation of defects in the car, upon which a recovery was permitted, was insufficient to authorize an instruction or to support a verdict in plaintiff’s favor. Gurley v. Railway, 93 Mo. 445. (2) The witnésses were allowed to usurp the province of the jury, by giving opinions and drawing conclusions therefrom wholly unwarranted by any testimony in the case. Muff v. Railroad, 22 Mo. App. 584; Russ v. Railroad, 20 8. W. Rep. 472.

— Hon. James M. . Sandusky, Judge. .,.(4) The action must be prosecuted in the name of ■the real party in interest, which in this case is the Ray County Savings Bank. Revised Statutes, Mo. (1889), ch. 33, sec. 1990, art. 1, p. 526.

— Hon. John A. Ho ok ad ay, Judge. (1) The evidence , in this case shows that the credits were not just, and fails to show that they were placed on this account with the knowledge and consent of Parthena Nichols. The account being barred by the statute of limitations', the book, of accounts should have been excluded. Goddard v. Williamson, AdmW, 72 Mo. 131; Loewer v. Haug, 20 Mo. App. 163; Haver, Adm’r, v. Schwyhart, 39 Mo. App. 303; Thompson v. Brown, 50 Mo. App. 314.

Appedl from the Carroll Circuit Court. — Hon. E. J. Broaddus, Judge. I. The affidavit of William Griffin, the party - who served the written demand, was of itself sufficient to establish a prima facie proof of service. Revised Statutes, 1889, sec. 5124.

Appeal prom the Jackson Circuit• Court. — Hon. R. H. Field, Judge. (1) The case was a jury case and the appellant’s attorney had so announced in writing under rule one, and no.tvaiver of a jury had ever been made or entered. The records of the court show no waiver; the minutes of the court show no loaiver of a jury. (2) Appellant insists that error was committed to its prejudice in overruling the motion to set aside the order of dismissal and refusing to reinstate the case.

— Hon. E. J. ' Broaddus, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. There was no evidence whatever even tending to sustain the greater portion of the charges against the estate. Testimony was given only upon three of the twelve grain charges. The credits upon plaintiff’s account will be presumed to be just (except where denied) but the charges must be proven. This was not done, hence the judgment should have been for defendant.

— Hon. Andbew Ellison, Judge. (1) Under the most favorable decisions for the plaintiff by the courts of this state, his instruction No. 4 on the measure of damage, was erroneous and prejudicial to the defendant. These are the recent, cases of Buck v. Railroad, 46 Mo. App. 555; and Schmitz v. Railroad, 46 Mo. App. 380. The latter case overrules the decision in Mathews v. Railroad, 26 Mo. App. 75, as to deducting board from the amount of services.

— Hon. Luther Collier, Special Judge. (1) The first count in appellant’s first amended petition distinctly sets out in plain and concise language each of the covenants contained in the deed made by the respondent, the intermediate conveyances to appellant and the breaches thereof, and states a cause of action against the respondent unless the same is barred by limitation. State ex rel. v. Carroll, 63 Mo. 156. (2) The demurrer admits the truth of all facts pleaded.

— Hon. Paeis C. Stepp, Judge. The defendants claimed that, the petition was not :filed in time and, therefore, the action could not be maintained. The mechanics’ lien was filed in the cir■cuit clerk’s office, May 9, 1892, and the petition was ■ filed August 8, 1892 — 91 days.

— Hon. Cyrus A. Anthony, Judge. (1) Appellant contends that the expression in his deed: “Subject to prior mortgages, liens, judgments and taxes,” refers to such incumbrances as were prior to appellant’s mortgage. The respondent was simply, conveying his lands to appellant, which appellant held a mortgage on, subject to prior incumbrances. And the real consideration may be inquired into. Holt v. Morgan, 79 Mo. 47; 89 Mo. 617, exact page 622; 22 Mo. _App. 448; 49 Mo. 212.

— Hon. Cyrus A. Anthony, Judge. (1) The trial court should have sustained the objection interposed by the defendant to the introduction of any evidence to sustain the issues presented by the pleadings. .

— Hon. Cyrus A. Anthony, Judge. (1) Plaintiff, being not an adjoining nor nest adjoining land owner, and bis cattle being in Campbell’s corn-field without license, is not within the class of persons protected by. the double damage act. Tils v. Railroad, 55 Mo. 278; Terris v. Railroad, 30 Mo. App. 122; Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 384; Johnson v. Railroad, 80 Mo. 620; Peddicord v. Railroad, 85 Mo. 160; Carpenter v. Railroad, 25 Mo.

— Hon. Henrx M. Ramey, Judge. (1) The lease was executed by the defendants, personally and they alone were bound. A corporation cannot execute a lease or bond except by its seal and. countersigned by its president or secretary. Land Co. v. Jeffries, 40 Mo. 360. (2) If a lease, as in this, case, be not executed by the principal, still the sureties-who signed may be held liable. Land Co. v. Jeffries, supra.

<p>.’Pleading: special tax bill: sufficiency of petition. — A petition on a special tax bill, -wIlícIl alleges tire making of the bill, its contents with dates thereof, its assignment, its filing and that defendant owns the lot described therein is sufficient.</p>

— Hon. A. M.. Woodson, Judge. (1) If there is any ambiguity in a contract in writing or a promissory note, in the description of the person upon whom the responsibility of the note should, rest, ¡and for whose benefit the contract was made, parol evidence is admissible to afford án explanation, thereof. Bank v. Bank, 5 Wheat. 327; Metcalf v.. Williams, 104 U. S. 665; Smith v. Alexandria, 31 Mo. 103; Schultzev. Bailey, 40 Mo. 69; Musserv. Johnson,. 42 Mo. 74; Ins.

— Hon. James M. ■ Sandusky, Judge. (1) The record in this case discloses the fact that the motion for new trial was not filed within the'statutory period of four days. The defendant having failed to file his motion in time, neither it, nor any errors alleged to have occurred during the trial, nor any exceptions to the same, can be considered here. Bevised Statutes, 1889, sec. 2243; State v. Brooks, 92 Mo. 542; State ex rel. v. Mason, .31 Mo. App. 211.

Louis City Circuit Court. — Hon. Daniel D. Fishek, Judge. (1) A statement filed in a justice’s court, to be sufficient, must advise the defendant of the nature of the claim, and be sufficiently specific to be a bar to another action. The statement will be insufficient if it does not state the facts upon which the demands against the defendant is founded.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. No error prejudicial to defendant was committed in the giving or refusal of instructions. McPherson v. Railroad, 97 Mo. 253; Taylor v. Penquite, 35 Mo. App. 389; Redfield on Railways [6 Ed.], see. 167 and note 1; Davis v. Railroad, 89 Mo. 340; Doan v. Railroad, 38 Mo. App. 408; Nave v. Pac'. Fx. Co., 19 Mo.