Volume 58 — Missouri Appeal Reports

— Hon. Wm. S. Hebndon, Judge. (1) The plaintiff had the undoubted right to remove the stock from the defendant’s pasture at any time he chose, upon paying the pasturage then due, being liable only for what damage the defendant might sustain, if any, by reason of his breach of alleged contract. (2) Defendant was not standing upon or asserting his agister’s lien, but was standing upon and asserting his rights under the terms of said contract, and thereby waived his said lien.

— Hon. Budolpbc Hiezel, Judge. (1) The action of the circuit court in rendering judgment against the defendant was unauthorized. The omission or failure of the probate court to charge defendant with interest in his final settlement affords n'o ground for the circuit court to do so in an equitable suit like this. Sheets v. Kirtley, 62 Mo. 417; Miller v.. Major, 67 Mo. 247; Patterson v. Booth, 103 Mo. 417; Phillips v. Broughton, 30 Mo.

W. W. Ruceen, Judge. (1) The admission of prejudicial hearsay is reversible error. Golts v. Griswold, 113 Mo. 144; State v. Grote, 109 Mo. 345; Dunn v. Altman, 50 Mo. App. 231. (2) One’s agency can not be shown by his own declaration. Waverly Timber & Iron Co. v. St. Louis Cooperage Co., 112 Mo. 383. Also see our brief in Davis & BanJán v. Ciato son.

— Hon. W. W. Rucker, Judge.. (1) Appellant insists that the court erred in refusing to give the second instruction asked by plaintiff below.

— Hon. John A. Hockaday, Judge. (1) As the danger of moving these large wheels in the manner in which it was done- was one obvious to the senses, and plainly one which would necessarily imperil the life and limbs of plaintiff, he assumed the risk of doing the work in that particular manner at that time, and, therefore, can not recover from defendant for any injury so received. Levitt v. Railroad, 50 Mo. 302; Aldridge v. Ins. Co., 78 Mo. 559; Fugler v. Bothe, 117 Mo. 475.

— Hon. Henry M. Ramey, Judge. (1) The burden is upon the plaintiff; to show affirmatively that the prosecution of which he complains was instituted willfully, falsely and maliciously, and without probable cause. Sappington v. Watson, 50 Mo. 83; Sharpe v. Johnston, 59- Mo. 557;« White v. Shradsld, 39 Mo. App. 635. (2) The want of probable cause is the essential ground- of the action. Other things may be inferred from this. But this cau not be inferred from anything else.

— Hon. J. H. Slover, Judge. (1) Whether the guest deposits his money on the credit of the innkeeper or not is a question for the jury, and not a conclusion of law for the court. Houser v. Fully, 12 P. F. Smith (Pa.), 95; Sneider v. Geiss, 1 Yates,'35; 11 Am. and Eng. Encyclopedia •of Law, p. 86.

— Hon. Jno. W. Henry, Judge. (1) As alleged in the petition and found by the court, neither the ordinance nor the contract for the work was substantially complied with. Under the old charter of Kansas City, therefore, the tax bills would have been absolutely and wholly void. Bank v. Payne, 31 Mo. App. 512.

— Hon. Jno. W. Henry, Judge. (1) Respondent’s contention is that, as the judgment rendered in Wisconsin and sued on in this case is in the alternative, an action in debt can not be maintained on it in this state, that is, he should still have the- right to return the property.

— Hon. El. L. Soarritt, Judge. ' (1) Whatever the danger, it was a risk incident to the employment. - Plaintiff was foreman of the crew and he knew as much about the condition of the mine as defendant. Watson v. Coal Co., 52 Mo. App. 366, is so nearly in point and reviews the authorities so fully that we need no more than refer to it.

<p>1. Evidence: pleading: reasonableness op regulation as to transfer tioket. In an action for unlawful ejection from a street car, evidence that regulation requiring the holder of a transfer ticket to take the other line at the point of transfer; was reasonable and necessary to protect the company against fraud and imposition?" is admissible without being specially pleaded, and the admission of such evidence is not a violation of the rule declared in Northrup v. Insurance Company, 47 Mo. 435.</p> <p>2. Street Railways: regulation as to transfer check reasonable : acceptance op CHECK. A regulation requiring a transfer check is not unreasonable and the passenger must comply with the condition thereof to entitle him to passage; and this is so when the charter of ■ the company provides for passage over two lines for one fare.</p> <p>3. -: -: conductor’s duty: ejecting passenger. When a passenger enters the car at a point other than that prescribed by the transfer check which he has accepted, it is the duty of the conductor not to receive the ticket and to require the payment of fare; and if plaintiff refuse to pay, the company can not be held liable for putting him off the train without physical hurt or damage.</p>

— Hon. Jno. A. Hockaday, Judge. (1) The court erred in refusing to give the demurrer to the evidence prayed by defendants upon the close of plaintiffs’ evidence. The evidence did not show any negligence on the part of any one. The stock yards did not belong to defendants, nor were they controlled by them. The defendants did not order or require the plaintiffs’ cattle to be unloaded into those yards, nor did defendants’ agents unload them there.

— Hon. James H. Lay,. Judge. (1) The petition states a good cause of action against defendant Wykoff, if no other party. The-petition charges that the ordinances passed vacated a part of a street, but did not provide for an assessment-of damage to abutting landowners. This assessment, of damages is required by the law, and if irreparable-, damages and if no adequate remedy at law are alleged, injunction is the proper remedies. R. S., secs. 1514, 1524; 10 Am. and Eng.

— Hon. A. L*. Thomas, Special Judge. (1) Upon the agreed statement of facts the judgment should have been for the defendant upon the-amended return of the constable in the case of Munson v. Fee. (2) The court should have permitted the constable to amend his return, or the copy thereof, filed in this case upon the garnishment process in Munson v. Fee.

— Hon. James H. Lay, Judge. This record discloses a maze of errors.

— Hon. Jambs H. Lay, Judge. (1) The court erred in admitting the testimony of defendant, Williams, as to his efforts to get a machine to thresh the flax, as also the testimony of Ellege, Poe, Williams and Wolfe as to such efforts. A man’s efforts to pay rent when due is no defense for a failure to pay. An effort to perform a contract. is no justification or defense for not performing it. This proposition is elementary and hardly needs citation of authorities.

— Hon. Ed. L. Scarritt, Judge. (1) The cause of action being once barred was forever barred. Judgment was rendered May, ■ 1885, and transcript filed April 8, 1892.

— Hon. J. H. Slover, Judge. This lease was good against plaintiff, and therefore good against defendant, whether signed by lessee or not, as it had possession of the premises under the lease and of the lease signed by lessor. Hulett v. Nugent, 71 Mo. 131. At least it should have been left to the jury to say whether defendant accepted the lease or not, and the court had no right to take it away from them when it was a disputed fact.

— Hon. James G-ibson, Judge. As the contract of employment sued upon reserved to the defendants the fight to. annul the agreement, provided the plaintiff proved incompetent to conduct a successful business, it was error-for the court to exclude evidence offered by the defendants to show that the business as conducted by the plaintiff was unsuccessful and was conducted at a financial loss. Carson v. McCormick Company, 36 Mo. App. 468.

— Hon. John W. Henky, Judge. Our contention in the case is that the passage of the ordinance of February 25, 1887, was an appropriation of the appellants’ property and was a taking thereof for public use within the meaning of the constitution. The damage to their lot was done by establishing the widening of the street; this was done by the passage of the ordinance. Sheehy v. Kansas City, 94 Mo. 574-, West v. Springfield, 78 Mo. 107.

— Hon. James Gibson, Judge. (1) It is the duty of the mayor and common council of Kansas City, within the first month of each fiscal year, to apportion the revenue to be raised for such year to the expenses of the several departments and for all public works tinder proper headings, and for such other objects as may be necessary to provide for; and no payment can be made from any revenue or fund account in excess of the amount actually collected and in the treasury.

— Hon. J. H. Sloyee, Judge. The court was powerless in law to grant a second or third new trial to defendant’s case, because it had already granted one new trial in the same case. R. S. 1889, sec. 2165; State ex rel. v. Adams, 76 Mo. 605. (1) When the trial, court, during the term when a judgment is rendered, vacates it, its action in so doing must, in the absence of a showing to the contrary, be considered warranted by the exercise of its general power.

— Hon. Ed. L. Scarritt,. Judge. (1) The contract in this case was for compounding a felony and was void. R. S. 1889, secs. 3681, 3682; Bishop on Contracts, secs. 491-496, 487; Crisup v. Grosslight, 44 N. W. Rep. (Mich.) 621; Barron v-Tucker, 53 Vt. 338; Ormerocl v. Dennison, 100 Pa. St. 561; McBratney v. Chandler, 22 Kan. 692, 695; Marshall v. Railroad, 16 How. 314; Jcmis v. Roentgen, 52 Mo. App. 114.

— Hon. Richard Field, Judge. (1) The ground of the trial court for granting a new trial was that the testimony of Michael Landy, the husband and coplaintiff of Johanna Landy, was improperly excluded by the court. His testimony was properly excluded because: First. The pleadings did not justify its admission. The petition of plaintiffs alleged that they were “the owners” of the property damaged and had “possession” thereof.

<p>1. Practice, Appellate: objection to jurisdiction oe trial court. An appellant is not in a position to renew in this court his objection to the jurisdiction of the trial court, when the record contains recitals showing jurisdiction, and there is nothing therein to the contrary, excepting the allegations of his motion for the dismissal of the cause.</p> <p>2. Mechanics’ Liens: jurisdiction. Held, in the course ofidiscussion, that an action for the enforcement of a mechanic’s lien is a proceeding in rem, and must be brought in a county in which the property ' sought to be charged is situated; also that, if the owner of the property resides and is served with process in that county, summons for the contractor issued to another county is proper.</p>

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

<p>Appeal from the Stoddard Circuit Court. — Hon. John G-. Wear, Judge.</p>

<p>1. Criminal Law: petit larceny: presumption of guilt arising from possession. The recent possession of stolen property by the defendant in a prosecution for larceny will not raise a presumption of guilt, if it was not exclusive; the defendánt must be actually and knowingly possessed of the property.</p> <p>2. -:-: -. In this cause the goods were found, recently after the theft, in the room of the defendant at a hotel, to which employees at the hotel had ready access, the defendant having surrendered the key to the clerk for the use of the ehambormaid; nor was there any evidence that the room had not been entered by any of the employees between the time of the discovery of the theft and the finding of the goods. Held, Rombauer, P. J., dissenting, that the evidence did not warrant a presumption of guilt.</p>

<p>1. Attachment: title requisite for maintenance on interplea. An intei-plea can not be maintained for attached property, unless the1 interpleader has the general title to or a special interest in the prop* erfcy, and is entitled to the possession of it, when the interplea is filed; the ownership and right of possession at the time of the attachment of the property will not suffice.</p> <p>2. -: interplea by pledgee. Accordingly, a iiledgee can not maintain an interplea for property attached under a writ against the pledgor, when his claims have been satisfied, though subsequently to the attachment,¡by the sale of the property by him with the consent of the pledgor for more than the amount secured by the pledge. '</p>

<p>Appeal from the St. Loiiis County Circuit Court. — Hon. Rudolph Hirzel, Judge.</p>

<p> Appeal from the Clark Circuit Court. </p>

<p>Appeal from the Hannibal Court of Common Pleas. — ■ Hon. R. E. Roy, Judge.</p> <p>When a person, from the nature of his occupation, is under obligation according to his means to receive and be at trouble and expense about the personal property of another, he has a particular lien upon it, and the law has given this privilege to persons concerned in certain trades and occupation's which are necessary for the accommodation of the public. It is now the general rule that every bailee for hire, who, by his labor and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges.. 2 Kent’s Commentaries [11 Ed.], secs. 634,. 635; 37 Central Law J., p. 254; Orinnell v. Coolc, 3 Hill (N. Y.), 491; White v. Smith, 44 N: J. L. 105; Iiammond v. JDanoson, 126 Mass. 294; Small v. Robinson, 69 Me. 425; The B. F. Wooley, 7 Fed. Rep. 108; The Two 'Marys, 10 Fed. Rep. 919; Fulhim v.. Harding, 9 Mo. App. 32; Monteith v. Printing Go., 16 Mo. App. 450; Overton on Liens, 13, 14; Story on Agency [6 Ed*], secs. 353, 354, 360, 365, 374.</p>

<p>Appeal from the Knox Circuit Cowrt. — Hon. Ben. E. Turner, Judge.</p> <p>The evidence clearly discloses that the defendant did not owe Julia Hughes anything at the date of the execution of the note, and that the note was not given for an indebtedness due her. The note was only prima facie evidence of consideration. When the defendant adduced evidence in rebuttal of the plaintiff’s prima facie case, the burden was cast upon the plaintiff to establish, by a preponderance of the evidence, that the note was based upon a valuable consideration. Feurt v. Ambrose, 34 Mo. App. 360; Bogie v. Nolan, 96 Mo. •85. There is no evidence, which this court can consider, that the defendant was indebted to the estate of Patrick Hughes at the date of the execution of the note. The alleged statement of Julia Hughes, that she was present and saw her husband pay defendant $500 in his lifetime, can not be considered as any evidence of such indebtedness, because she, being the wife ■ of Patrick Hughes, was not a competent witness to said transaction. Revised Statutes 1889, sec. 8922; Waddle v. McWilliams, 21 Mo. App. 298; Herndon v'. The Triple Alliance, 45 Mo. App. 426; Brandon v. Daioson, 51 Mo. App. 237; Holman v. Bachus, 73 Mo. 49.</p>

<p> Appeal from the Scotland Circuit Court. </p>

Louis County Circuit Court. — Hon. Rudolph ITirzel, Judge. The condition of the tunnel, and the nature and character of the danger to be apprehended, were perfectly apparent, open and obvious to plaintiff, and he had actual knowledge of their existence, and, therefore accepted the risk. When the servant knows the condition of things and also the danger that exists in such condition, he assumes the risk. Walton v. Kansas & Texas Coal Co., 52 Mo'.

— Hon. W. N. Evans, Judge. (1) The general denial, though coupled with an independent defense, was sufficient to put in issue plaintiff’s title. Cavitt v. Tharp, 30 Mo. App. 134. (2) An indorsement purporting to be signed by the payee of a note, unsupported by evidence aliunde,'is not sufficient. Bank v. Pennington, 42 Mo. App. 355.

<p>Appeal from the Louisiana Court of Common Pleas.— Hon. R. E. Roy, Judge.</p>

— H.on. Ben É.. Turner, Judge. The Iowa court had jurisdiction of the parties and the subject-matter, and by the garnishment process-had attached the debt of. the garnishee to the defendant, so that it was in custodia legis. This is a bar to-this action.

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

— Hon. E. M. Hughes, Judge. The court erred in the admission and exclusion of testimony, and in taking the case entirely away from the jury. Hamilton v. Ins. Co., 94 Mo. 353; Hayivard v. Ins. Co., 52 Mo. 181; Pellcington v. Ins. Co., 55 Mo. 172; Bailie v. Ins. Co., 73 Mo. 371; Brecltenridge v. Ins. Go., 87 Mo. 22.

— Hon. E. M. Hughes, Judge. ' (1) It was' error to permit defendant to amend his set-off in the circuit court, by adding a new item, and increasing the amount of his claim.. R. S., secs. 6345, 6346 and 6347; Boughton v. Railroad, 25 Mo. App. 10; Wehringer v. Ahlemeyer, 23 Mo. App. 277. (2) The court erred in permitting evidence to be offered as to work performed after December 10.

— Hon. James Gtbson, Judge. STATEMENT BY ELLISON, 1. This is a slander suit in which, the plaintiff took a nonsuit for the reason that the court sustained a demurrer to his evidence. The petition charged that the defendant spoke concerning the plaintiff the words, “I believe Liske stole my meat,” intending and being understood thereby to accuse the plaintiff of-grand larceny.

— Hon. Ed. L, Scaeeitt, Judge. (1) “If there is any evidence, however slight it may be, and whether direct or inferential, it must go to the jury, who are the exclusive judges of its weight and sufficiency.”' Twohey v. Fruin, 96 Mo. 104, 109; citing Charles v. Patch, 87 Mo. 450, 462. “In passing upon a demur to the evidence, the court is required to make every inference of fact in favor of the party, offering the evidence which a jury might, with any appearance of propriety,…

— Hon. Jambs H-Lay, Judge. (1) The peremptory instruction given by the court is erroneous as to the assessment of the value of the property. The value should be fixed as of the date of' trial and not as of the date of the levy under the writ of replevin. Chapman v. Kerr, 80 Mo. 158; Wix v. Kepner, 81 Mo. 158; Burkeholder v. Budrow et al., 19 Mo. App. 60; Shults v. Hickman, 27 Mo. App. 21; Hoester v. Teppe, 27 Mo. App. 207; White-v. Storms, 21 Mo.

— Hon. James Gibson, Judge. (1) The simple statement of this ease is enough to indicate that the finding should have been for plaintiff. The court took the position that the ordinance only authorized the grading of that part of the street exclusive of the portion designated as sidewalk. This position is wholly untenable.

— Hon. James Gtbson, Judge. (1) There is no general statutory law in this state conferring upon justices off the peace jurisdiction over actions to enforce liens against real estate, except mechanics’ liens. Pleasant Rill v. Basher, 25 S. W. Rep. 566.

— Hon. Ed. L. Scarritt, Judge.' The defendants seek to escape liability by alleging in their answer that fraud was practiced upon them by Leigh H. Irvine and Prank Blair and by such fraud they were induced to sign the bond and that Louis C. Irvine was a'participant in such fraud and that this plaintiff took an assignment of the bond with full notiqe of the fraud.

— Hon. J. H. Slover, Judge. STATEMENT BY ELLISON, J. Plaintiff is a company engaged as a wholesale dealer in lumber; and, instituted this-action to recover ■damages for negligent transmission of a telegraphic dispatch'. Plaintiff recovered below.

— Hon. James Q-ibson, Judge. (1) Tbe court erred in sustaining tbe objection to tbe introduction of any evidence under tbe pleading.

— Hon. James Gibson, Judge. (1) Surface water that does not flow in any defined channel, under the common law and the law of this state is a common enemy and a city may fight it from its streets as best it can and is not liable for injury caused by its flow being changed. Such a damage is damnum absque injuria. .McCormick v. Railroad, 57 Mo. 433, 437; Abbot v. Id., 83 Mo. 271; Jones v. Railroad, 84 Mo. 151; Moss v. Railroad, 84 Mo. 86; Martin 'v. Benoist, 20 Mo.

— Hon. Ed. L. Scarritt, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. The deceased was well aware of the condition of the car and of the danger in making the coupling, and the accident was simply the resdlt of a miscalculation on his part. Under such circumstances the plaintiff was not entitled to recover. Noland v. Schickle, 3 Mo.

— Hon. James G-ibson and Hon. J. H. Sloven, Judges. (1) The oral agreement for arbitration between the parties upon which the alleged award in evidence is claimed to have been made, included therein the claim for an alleged breach by appellant of an oral lease to respondents of the premises in controversy for a period of two years, and said award purports to settle said controversy in regard to the rental of said lands.

— Hon. Ed. L. Scarritt, Judge. The contention of the defendants is that the justice of the peace before whom the suit was brought upon said tax bill had no jurisdiction in any such case for the reason among others that there was no statute authorizing such suit to be brought before a justice of the peace or conferring on such justice of the peace jurisdiction in such suit, and that the words in section '2, article 9 of the charter of 1875 do not confer upon a justice of the…

— Hon. James Q-ibson, Judge. The defendant admitted his liability for the amount of $27.40 and there was no proof of payment. There was not even proof of a good tender. Upon the undisputed facts there should have been a judgment for the plaintiffs for $27.40.

Appeal front the Jackson Circuit Court. — Hon. James-Gibson, Judge. (1) “At common law a tender made at the law day, and refused, satisfies the condition of the mortgage as fully as if payment had been made, and reveststhe estate in the mortgagor, who may re-enter forthwith. But if the mortgage secures a debt, this subsists as á personal duty after the estate is divested by the tender, and may be recovered as a personal obligation by an action at law.

— Hon. Jambs Gtbson, «Judge. (1) Where grantee assumes mortgage indebtedness he becomes principal debtor to mortgagee and mortgagor, the surety. Bank v. Wood, 56 Mo. App. 214; Fitzgerald v. Barker, 70 Mo. 685; FLeimv. Vogel, 69 Mo. 529; George v. Andrews, 60 Md. 26; Calvo v. Davies, 73 N. Y. 211; 1 Jones on Mortgages, sec. 742; Flagg v. Gellmacher, 98 111. 293; Ins. Co. v. Hanford, 143 U. S. 187.

— Hon. J. H. Sloyer, Judge. (1) The justice had no jurisdiction because the ‘ amount or balance claimed to be due exceeded $250. Plaintiff’s account filed shows balance of $251.65. His petition claims this amount exclusive of interest and costs. The justice found the debt to be $251.65, interest $6.25, and for the aggregate and costs plaintiff took judgment. R. S. Mo. 1889, see. 6159. (2) The circuit court had no jurisdiction because the justice had none.

— Hon. J. Y. C. Karnes, Special Judge. (1) In this case there were no defective appliances or machinery, which might or might not prove to be dangerous, upon being used. The condition of the ice plant and dip vat was perfectly well known to the plaintiff, the danger, if any, continuous and perfectly obvious. Under such a state of facts plaintiff is not entitled to recover.

— Hon. J. H. Slover, Judge. (1) A grantee may make the defense that a clause of assumption: was inserted in the deed fraudulently or by mistake or in violation of the agreement between grantor and grantee. Flagg v. Munger, 9 N. Y. 483; Dyermand v. Chamberlain, 22 Hun, 110-114; Vrooman v. Turner, 69 N. Y. 280; Kilmer v. Smith, 77 N. Y. 231; Trustees of Northern Dispensary of N. T. v. Merriam, 59 How.

— Hon. J. HSloyer, Judge. (1) The court erred in admitting the evidence of John Ochsly, deputy United States marshal, to the effect that Curtis’ attorney sought to have Rice'arrested for selling liquor without a license, for the reason that such act was without the scope of said attorney’s employment, and was not known to, or subsequently ratified by, Curtis. Ferguson v. Terry,1 B. Monr. 96; Foster v. Wiley, 27 Mich. 248; Boulard v. Calhoim, 13 La. Ann. 445; Hagan v. Prov.

— Hon. Ed. L. Scabbitt, Judge. (1) It is error to use a technical term in an instruction without proper explanation. Digby v. Ins. Co., 3 Mo. App. 603. Again, the instruction ignores all the issues in this case, except one, and does not define that one. Instructions must not ignore the issues in a case. Russell v. Railroad, 26 Mo. App. 368; McDonald v. Cable Co., 32Mo. App. 70; Bailey v. Beasley,32 Mo. 406.

— Hon. J. H. Slover, Judge. (1) This raises squarely the question as to whether the second instruction given on behalf of the defendant was a correct declaration of law as applicable to the facts of this case. This was a gate at a farm crossing, put in at the request of the adjoining owner.

.Appeal from the Cooper Circuit Court. — Hon. D. W. ■ ' Shackleford, Judge. (1) The defendant had the right to make and enforce Teasonable rules and regulations for the transaction and conducting of its business, which in its judgment might be necessary for the successful, convenient and safe conduct thereof. Hutchinson on Carriers, sec. 522; 1 Roreron Railroads, 227; 1 Waterman on Corp., sec. 77, 245; Taylor on Corp., sec. 348; Pierce’s Am.

— How. James G-ibson, Judge. We submit -that nothing can be clearer than that, .under the law of this state, a garnishee must respond,' not only for what he owes the defendant at the time of the service of the garnishment, but also for what debts he may owe at any time after the service of the garnishment up to the time of filing his answer. This is so, for the simple reason that the statute expressly, and in good, set terms, so provides.

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

<p>Services in Nursing a Deceased Person: elements oe compensation on a quantum meruit. In an action or proceeding for compensation, on a quantum meruit for services rendered in nursing a deceased person, the plaintiff or claimant may show in enhancement of his claim the emission of disagreeable odors by reason of the disease of the person waited upon; but he is not entitled to show damages to his residence, in which he kept the deceased person, in consequence of such odors.</p>

<p>Appeal from the Franklin Circuit Court. — Hon. Rudolph Hibzel, Judge.</p>

<p>Appeal from the St. Lotiis County Circuit Court. — Hon. Rudolph Hirzel, Judge.</p>

<p>Appeal from the Texas Circuit Court. — Hon. O. O. Bland, Judge.</p> <p>The defendant’s demurrer to the evidence should have been sustained. There is no claim that the property in question was the separate property of the plaintiff, but her sole claim is based on her right to recover in her representative capacity as widow of Joseph Adey, deceased. It is a well settled rule of law that personalty passes to the administrator. He alone can sue for it. Reiman v. Wellenhamp, 71 Mo. 407; Smith v. Denney, 37 Mo. 20; Becraft v. Lewis, 41 Mo. App. 546; State-ex ret. v. Moore, 18 Mo. App. 406. Though the heir be the sole distributee of the estate, he can not maintain an action for it without the intervention of an administrator. Leahy v. Maupin, 10 Mo. 373; Smith v. Denny, 37 Mo. 20; Rannenhamp v. Borgmier, 32 Mo. 569; State ex rel. v. Moore, supra.</p>

<p>1. Trade Mark: prior use. It is of the essence of a trade mark that the right thereto should be exclusive. But evidence to prove a prior use of it by others than the claimant of it must be positive and satisfactory.</p> <p>2. Unfair Competition in Business: fraudulent imitation of names used to advertise GOODS. Held, in the course of discussion, that a person may give value to a name which is not the subject of a trade mark by identifying it with the sale of his goods, so that he will be protected against the fraudulent imitation of it by a competitor for the purpose of pirating his trade.</p>

<p>1. Practice, Appellate: requisites op abstract piled in lieu op transcript. When a printed abstract of the record is filed in lieu of a transcript, it must contain a statement of every matter sought to be reviewed on appeal, and of all facts showing jurisdiction of the appeal by this court, with the exception of the record entry of the judgment and the' allowance of the appeal, which must be shown by the certificate of the clerk of the trial court.</p> <p>'2. Practice, Trial: failure op proop. When the evidence in a cause does not substantiate any cause of action stated or attempted to be stated in the petition, an entire failure of proof and not a mere variance results.</p> <p>'3. Equity : proceeding in aid op fraud. A party is not entitled to the aid of a court of equity in furtherance of fraud.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Wherry procured all the paraphernalia of a corporation, letter heads, envelopes, etc., with the name of the corporation printed thereon, and with such letter heads and envelopes carried on the correspondence with plaintiff by which the contract sued on was made in the name of the pseudo-corporation.

<p>Appeal from the Shelby Circuit Court. — Hon. Andrew Ellison Judge.</p> <p>The sole object of the statutory requirements as to notice of appeal, is to give the appellee notice that the cause is pending in the circuit court. The notice of the application for a change of venue gave all the ^requisite information. R. S., secs. 6342, 6343,6344; Page v. Railroad, 61 Mo. 78; Henderson v. Henderson, 55 Mo. 534,545; Berry v. Union Trust Go., 75 Mo. 430; Bates v. Scott Bros., 26 Mo. App. 428.</p> <p>The notice of change of venue was not sufficient to, and did not, supply notice of appeal. The notice of appeal is a thing apart from the actual notice which a party may have that an appeal has been taken, and great particularity is required in such notices. Wade on Notices, sec. 1211; Hammond v. Kroff, 36 Mo. App. 118; Tiffen v. Mellington, 3 Mo. 418. The appellee may have actual knowledge that an appeal has been taken. He may standby and see it perfected, yet he must have the statutory notice, and this notice must describe the cause in which the appeal is taken. The McGinnis-Ingels Go. v. Taylor, 22 Mo. App. 513, 516. When the statute specifically prescribes the character and manner of service, it is strictly construed. Hyde v. Goldsby, 25 Mo. App. 29; Charless v. Moring, 1 Mo. 537; Blanton v. Jamison, 3 Mo. 52; Smith v. Rawlins, '25 Mo. 408; St. Louis v. Goebel, 33 Mo. 565; Hewett v. Weatherby, 57 Mo. 276.</p>

— Hon. C. O. Bland, Judge. Dean’s statement of his authority and his commission from the German Insurance Company showed what his authority was beyond a doubt, as ihe testimony as to his authority is uncontradicted; and, in order to bind the company, the act of Dean must be within the line of his agency.

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

— Hon. James T. Neville, Judge. On the trial day the justice neither tried nor continued the case on the merits. He did not render judgment of nonsuit, but of his own motion allowed the merits to stand undisposed of and transferred all the papers with the first appeal to the circuit court.

— Hon. J.P. Hall, Judge. Even though the indictment was fatally defective, yet this could not serve to discharge or relieve the sureties. The obligation was not alone to answer the indictment, but also not to “depart the court without leave first had and obtained.” State v. Poston, 63 Mo. 521; State v. Millsaps, 69 Mo. 359; Bishop on Criminal Procedure [3 Ed.], sec. 264/c. Nor was there material variance between the language of the indictment and that of the recognizance.

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

<p>Eailroads: failure of traveler to look and listen. A person traveling on a street or public highway must, in approaching the crossing of a steam railroad, look and listen for approaching trains. The failure of the employees of the railway company to ring the bell does not dispense with this duty on his part.</p>

— Hon. John H. Raney, Special Judge. The information must be verified, as well as signed, by the prosecuting attorney, or by the oath of some person competent to testify as a witness and who knows the facts, or supported by the affidavit of such persons; but the verification of the prosecuting attorney may be upon information and belief. Const, of Mo., art. 2, sec. 12; R. S. 1889, secs. 4057, 4058.

<p>Appeal from the Audrain Circuit Court. — Hon. E. M_ Hughes, Judge. '</p>

— Hon. H. O. Riley, Judge. (1) There was no proof that the defendant owned or operated any railroad. Plaintiff can not recover on such proof. .Lindsay v. Bailroad, 36 Mo. App. 51; O’Donnell v. Bailroad, 7 Mo. App. 190; Gilbert v. Bail-road, 23 Mo. App. 65. This court certainly can not assume that “I. M. R. R.” means “St. Louis, Iron Mountain and Southern Railway,” nor that the defendant operated such a line.

<p>Appeal from the Mississippi Circuit Court. — Hon. H. C. Riley, Judge.</p>

— Hon. E. M.. Hughes, Judge. The motion to assess damages is part of the original case, and, after the lapse of the term at which the motion to dissolve is finally determined, the court loses-all jurisdiction of the case. R. S. 1889, sec. 5500; Loehner v. Hill, 19 Mo. App. 141; Neiser v. Thomas, 46-Mo. App. 47; Hoffelmannv. Franhe, 96 Mq. 533; Nolan v. Johns, 108 Mo. 431.

— Hon. E. M. Hughes, Judge. Defendant’s third instruction is manifestly wrong.

— Hon. James T. Neville, Judge. A' debt due one in a fiduciary capacity can not beset off against a demand due by him individually, Gansner v.- Franks, 75 Mo. 64; Hoocl v. Hayward, 48 Hun, 225; Gourleyv. Walker, 69 Iowa, 8Ó; Wisdom v. Becker, 52'111. 342; Blood v. Kane, 52 Hun, 225.

<p>1. Statutory Action to Quiet Title: plaintiff’s possession. The possession of land by the plaintiff through an agent is a sufficient possession for the purposes of an action to quiet title under the statute.</p> <p>2. -: action by nonresident. A nonresident of the state may ' maintain this action. But held, in the course of discussion, that the court may. subject him to terms, and may require him to enter his voluntary appearance to an action for the assertion of title by the defendant.</p>

<p>Criminal Law: practice, appellate: saving exceptions. The ruling of the trial court in excluding evidence in a criminal proceeding will not be reviewed on appeal, when no exception thereto was saved in that court.</p>

<p>1. Contracts: quantum meruit. A contractor who has failed to . comply with the terms of his contract may nevertheless recover the ' reasonable value of the work and materials furnished by him, provided they were of value to the other contracting party; but he can not recover more than the contract price, and his claim will be subject to a reduction for damages caused by the non-fulfillment of his contract.</p> <p>2. -: -: consistency op INSTRUCTIONS. If different terms in instructions may express .the same notion, it can not be said that they are repugnant or inconsistent. This rule is applied in this action, wherein one instruction authorized a recovery for the real value of work and materials furnished by the plaintiff, and the other for their reasonable value to the defendant.</p>

<p>1. Administration: survival of claim: royalty for use of patented process. The grant of an exclusive right to use a patented pro-j, cess for a term of years required the payment by the grantee of a stipulated royalty, and contained a covenant by him that this royalty would annually amount to a designated sum; but it did not provide for his personal services or the exercise of his personal shill or capacity. Held, that it was not terminated by his death, and that the demand of the grantor under it for the subsequent annual royalty was allowable against his estate. "</p> <p>2. -: allowance of debt not due. A debt not yet due may be allowed as a demand against the estate of a decedent, when it is payable absolutely at a definite time.</p>

<p>1. Damages: breach of contract for lease. The damages for the breach of a contract for a lease are purely compensatory. Accordingly, when the party who is to receive the lease occupies the premises to be demised for the entire term for which the lease is to be given, but is compelled to pay therefor more than the rent contracted for, his damages can not exceed the difference between the amount paid and that which he agreed to pay.</p> <p>2. Principal and Agent: liability of agent for contracting without authority. An agent, who enters into a contract on beljalf of his principal, but fails to bind the principal for lack of authority to do so, binds himself.</p> <p>3. Practice, Appellate: entry of proper judgment under con-' ceded facts. Error in ah instruction as to the plaintiff’s damages will not necessitate the reversal of a judgment in his favor, if there is no dispute concerning the facts by which the amount of these damages is determined.</p>

— Hon. W. N. Evans, Judge. Instruction number 3 asked by the defendants correctly defined the legal measure of damages in actions of this kind. Fisher v. Goebel, 40 Mo. 475; Woodworth v. McLean, 97 Mo. 330; Wright v. Sander-son, 20 Mo. App. 534; Sullivan v. Beardon, 5 Ark. 140; Sirt v. Sahn, 61 Mo. 496. There was an entire failure on the part of the defendants to perform their contract.

— Hon. J. H. Slovee, -Judge. (1) The petition in this case is riot based on the-provisions of section 2609 of the Revised Statutes of' 1889. It does not allege that the railroad company had been required to put up boards by the officers having-charge of streets in the city of Independence, and there was no evidence of any such requirement. Hence, by the express terms of the statute no duty was thereby imposed on the -defendant in this case.

— Hon. Jno. W-Henry, Judge. The deeds made by respondent (Forbis), Otty Sauerbier, and Hall were and are fraudulent as regard» the city and the improvement, and the grantees therein should not be counted as owners. Stifel v. Brown, 24 Mo. App. 108; McGuir v. Smock, 42 Ind. 1; McFivin v. Shannon, 64 Yt. 583; State v. North Bergin, 37 N. J. L. 402; Baird v. Dean, 48 N. J. Eq. 193; State v.. Burkholder, 30 W. Ya. 593.

JError to the Jackson Circuit Court. — Hon. John. W. Henry, Judge. (1) The license or grant of the city pleaded in justification were insufficient as to both law and fact. Lewis on Em. Dom., sec. 116, foot paging 153. For, when property has once been dedicated to public use, no power in the state can authorize a use thereof inconsistent with such dedication and destructive of such public use.

— Hon. James Hibson, Judge. The objections to evidence offered by plaintiffs, on the hearing before the referee, to the effect that ‘ ‘defendant agreed that if plaintiff James buys this property, every bill that I pay will have to be receipted and held in my desk with Dr. James’ O. K.,” should have been sustained by the referee, and the defendant’s exceptions to the findings of fact of the referee, and those applicable to the introduction of this evidence complained of, and…

— Hon. Ed. L. Soarritt, Judge. This action of the court was misleading, unfair and unjust, for the reasons stated and for the additional reasons: First. It will be observed that all this took place in the absence of counsel and without the pretense of an effort to obtain their presence. This, under the authorities hereinafter cited, was error. Second. One of the jurors said that the jury wanted the “former testimony of plaintiff” re-read.

— Hon. Ed. L. Scarritt, Judge. (1) When the Water Power Company delivered the flour in controversy to the Atchison, Topeka & Santa Ee Eailroad, at Hutchinson, Kansas, and had received its bill of lading therefor consigning the flour to N. E. Glorsuch., and caused the bill of lading-to be delivered to N. F. Grorsuch, at Kansas City, then the delivery of said bill of lading was a delivery of said flour; divested the title of the Water Power Company and vested it in N. F.…

— Hon. H. M. Ramey, Judge. (1) It was the duty of the city engineer, under the ordinances of the city and under the charter as a city of the second class (1 R. S. 1889, sec. 1406, latter part of section on page 408), to take chai’ge of and superintend the improvement of Fifth street, and to issue tax bills therefor in favor of the contractors, when, and only when, the work was completed - in substantial ■compliance with the contract and the ordinances of the city.

<p>Appeal from the Mississippi Circuit Court. — Hon. H. C. Riley, Judge.</p>

<p>1. Practice, Appellate: matters of exception: instructions. Rulings on the giving and refusal of instructions cannot be reviewed5 on appeal, if no exception was taken thereto in the trial court.</p> <p>2. -: exhibits to pleadings. An exhibit to a pleading, not being a part of the pleading, can not be considered on appeal, if it is not set forth in the bill of exceptions.</p>

<p>Insurance, Life: reduction in case or suicide. A provision in a policy of life insurance, which reduces the amount of the insurance in case of the suicide of the insured below that otherwise contracted for, makes the suicide a defense to the extent of the reduction, and is, therefore, contrary to the statute on the subject and invalid.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>(1) The judgment in favor of the guardian ad litem was without authority of law. Contesting the validity of a will is a purely statutory proceeding, and the trial court had no jurisdiction to render any other judgment in the cause, than that the will produced was ■or was not the will of the testator, according to the finding upon the issue. R. S. 1889, sec. 8888; Ltjne v. Marcus, 1 Mo. 410; Swain v. Gilbert, 3 Mo. 347; Young v. Bidenbaugh, 67 Mo. 589; McBwrath v. .Hollander, 73 Mo. 112; Apleby v. Brock, 76 Mo. 315; Babb v. Bruere, 23 Mo. App. 606, and cases cited. (2) The judgment, as an allowance or taxation of costs in the case in favor of the guardian ad litem, is also without authority of law. At common law, parties to suits were not entitled to recover costs in any case. Steele v. Wear, 54 Mo. 534; State v. Bailroad, 78 Mo. 557. The allowance and taxation of costs is a matter of statutory origin, and all statutes touching costs and fees must be strictly construed against the party claiming them. Conroy v. Frost, 38 Mo. App. 354; Ford v. Bailroad, 29 Mo. App. 625; Shedv. Bailroad, 67 Mo. 690; Thompson v. Union, etc., 77 Mo. 521; Williams v. Chariton Co., 85 Mo. 646. And no fees are provided by statute for ■services rendered by guardians ad litem or minor ■defendants in civil cases, other than in suits in partition.</p> <p>Services performed by a guardian ad litem, commissioner, amicus enrice, or other person appointed by the court are not voluntarily rendered, and the court making such appointment possesses the inherent power, independently of express statute, of allowing the person .so aiding it a reasonable compensation for his services, to be taxed against the proper party. Nagel v. Schilling, 14 Mo. App. 576; In re St. Louis Institute of ■Christian Science, 27 Mo. App. 633; Kerbaugh v. Vance, 5 Lea (73 Tenn.), 113; Personsv. Young, 7 Lea (75 Tenn.), 293; Wilbtir v. Wilbur, 138 111.446; Cole v. Superior Court, 63 Cal. 86; McCue v. O’Hara, 5 Redf. 336; Holloway v. Mcllhenny Co., 27 Tex. 657; Ball v. Washington Co., 2 Gr. Greene, 473; Wébb v. Baird, 6 Ind. 13; Redfield on Practice in Surrogates’ Courts, page 95; Robinson v. Fidelity Trust Co., 11 S. W. Rep. 806; In re Matthews, 27 Hun, 254. And the court may make such allowance a lien against the property protected. Golev. Superior Court, 63 Cal, 86; Persons v. Young, 7 Lea, supra; Qott v. Coole, 7 Paige, 521. The proper defense of a suit against an infant is a necessary, for the cost of which his estate may be liable. A request for the defense of such a suit may be presumed from the necessities of the case. Nagel v. Schilling, 14 Mo. App. 576.</p>

<p>Appeal from the Scott Circuit Court. — Hon. H. C. Riley, Judge.</p>

— Hon. W. S* Herndon, Judge. (1) The court erred in refusing defendant’s instruction number 1. Plaintiff’s view of the train-according to all the testimony, including his own, was-unobstructed when he was twenty-seven feet distant from the crossing. If he didn’t see it, it is because he didn’t look. Stepp v. Railroad, 85 Mo. 229-235; Smith-v. Railroad, 52 Mo. App. 36, 39, 40; Eusili v. Railroad,. 45 Mo. App. 535-539, and cases cited.

— Hon. Jno. W. Henry, Judge. (1) It was competent for the jury to find for the defendant upon one count and for the plaintiff upon the other counts of the petition. Consequently, it was also competent for the court to sustain the defendant’s motion for a new trial as to the counts upon which the verdict was adverse to it, leaving the verdict upon the first count in full force. The finding upon each of the counts must be considered by itself.

<p>1. Assignment: validity of pbior.chattel mortgage. The evidence is considered and held to warrant a finding, that a voluntary assignment for the benefit of creditors by an insolvent and a prior mortgage by him were separate and independent transactions.</p> <p>2. -: -: EFFECT OF SALE BY ASSIGNEE WITH CONSENT OF mortgagee. The priority of a chattel mortgage is enforceable against the proceeds of the mortgaged property under a sale of the property free of lien, made by the assignee with the consent of the mortgagee, if such was the agreement of these parties at the time of the sale.</p> <p>3. -: -. The fact, that the debts secured by a chattel mortgage were overdue at the time of the execution of the instrument, will not affect its validity.</p> <p>4. -: rights 'of assignee and creditors. Held, arguendo, that when a voluntary assignment is by its express terms made subject to a prior mortgage, neither the assignee nor the creditors of the mortgagor can claim under it any higher title or greater interest than is conveyed by it to the former.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>The petition, to be subject to a challenge by demurrer, must be entirely destitute of a statement of any cause of action. If a cause of action be artificially or indefinitely stated, such a demurrer can not prevail. Marie v. Garrison, 83 N. Y. 14-23; People v. Mayor, etc., 8 Abb. Pr. 7; Morse v. Gillman, 16 Wis. 504; Simmons v. Prather, 5 Ore. 504; Myer v. Railroad, 7 N. Y. State Rep. 245; State v. Carroll, 63 Mo. 156; Boogher v. Knapp, 76 Mo. 457. The petition in this case, aside from the reliance upon the provisions of the ordinance, which is fully set forth, contains sufficient elements of a cause of action, and, if lacking at all, is only wanting in precision and definiteness of averment. ■ 1 Sutherland on Damages, 148; Sutherland v. Ware, 67 Me. 64; Cooley on Torts [2 Ed.], 706; Charless v. Rankm, 22 Mo. 570; Ray, Imposed Duties,- chap. 11; Lancaster v. Ins. Go., 92 Mo. 460.</p> <p>The law raises no implied promise in respect of services rendered against the will of the recipient, or in respect of mere gratuitous services. Addison on Contracts [8 Eng. Ed.], star paging, 1030; Stokes v. Leivis, 1T. R. 20; British Empire Shipping Co. v. Lomes, 30 L. •J. Q. B. 229; Bartholomew v. Jackson, 20 Johns, 28. The appellants’ damages are too remote; mere risk of loss is insufficient to support an action. Cooley on Torts [2 Ed.], star paging, 72; Academy of Music v. Hackett, '2 Hilt. 217; Ashley v. Harrison, 1 Esp. 48; Butler v. Kent, 19 Johns. 223; Addison on Torts [6 Ed.], note p., side paging, 39; Chamberlain v. Boyd, 11 Q. B. Div. 407.</p>

<p>1. Insurance: fire: validity of conditions of policy. Conditions in a policy of fire insurance, providing for the inspection of the books of the insured, the production of vouchers by him, and an examination of him under oath or affirmation, are valid even to the extent that the violation of them works an absolute forfeiture.</p> <p>2. -: -: place of compliance with conditions. The place of business of a trading concern whose stock in trade is insured, and not the place of residence of the insured, is the proper place for his-compliance with said conditions when none other is specified by the policy.</p> <p>3. -: -: timely demand. An insurance company, a few days after receiving proofs of loss, demanded of the insured that he should comply with these conditions, and requested him to at once designate a time therefor. He returned no answer, and thereupon the company repeated its demand with the designation of a date, doing so first, about a month after its initial demand, and again some time later. Seld, that timely demand had been made.</p> <p>4. -: provision for arbitration. Semble, that the pendency of an arbitration to determine the amount of the loss under a policy of fire insurance in suit herein was not a defense in bar or abatement to the action, though good ground for the continuance of the trial on. proper application.</p> <p>5. -: fraudulent negligence. Negligence of the insured is one of the risks insured against by a policy of fire insurance, but not fraudulent negligence. Regardless of any provision to that effect in the policy, the insured can not recover for loss by a fire on his premises which originated through his own neglect and could readily have been extinguished by him, if, though aware of it, he made no effort to put it out.</p> <p>6.--: -: instructions. An instruction, based upon the theory of such fraudulent' negligence, may group together a series of facts o£ which there is evidence, and declare that they establish such negligence if that is their legal effect.</p>

<p>1. Mechanics’ Liens: clerical error in lien account. A lien account through inadvertence misstated the year in which the work had been done, and the notice of lien had been given by a subcontractor to the owner, and, according to the year stated, these matters transpired more than a year before the filing of the lien. But statements in the affidavit to the lien aeccmnt showed that the account was filed, and that the notice was given in due time, and the owner was aware that the work was not done in the year stated. Meld, that the error did not invalidate the lien.</p> <p>2. -: lumping charge in lien account. The lien account of a subcontractor, who was wrongfully prevented from completing his work on a building by the owner, merely contained a charge “for two thousand, four hundred and ninety-three hours’ carpenter work” on the building at a stated price per hour, and a credit for a payment received thereon by him. Meld, that the account was sufficient.</p>

— Hon. Oliver H. Dean, Special Judge. (1) There was other insurance outstanding. The policy on its face being valid so that it took extrinsic evidence to show its invalidity, the contract of insurance in suit precluded the parties from making such inquiry. Ins. Co. v. Copeland, 90 Ala. 386; Ins. Co. v. Lamar, 106 Ind. 513; Ins. Co. v. Hulmán & Cox., 92 111. 145.

<p>1. Negligence: pleading. The petition in a suit for injuries resulting from defects in an elevator does not state two causes of action, because it charges negligence on the part of the defendant in failing to comply with a municipal ordinance for the inspection of elevators, and further in permitting the elevator to be operated by an unsound cable.</p> <p>2. Practice, Appellate: preserving objections to instructions. An appellant can not complain of an error in the instructions, unless he has saved an exception to the giving of them. i</p> <p>3. Contributory Negligence: insufficiency of evidence. The evidence in this cause is considered, and is held not to conclusively establish contributory negligence on the part of the plaintiff.</p> <p>'4. New Trials: right, of party to second new trial. When a party has already had one new trial, no matter what the reason, neither the trial court nor this court can grant him a second new trial on the ground that the verdict is opposed to the weight of the evidence.</p> <p>5. Master and Servant: liability of latter to third persons for negligence. A servant is only responsible to third persons for active negligence or misfeasance while acting in the scope of his employment, and, therefore, the managing officer of a corporation is not personally liable to one of its employees who at his direction uses an unsafe appliance furnished by the corporation, unless he was aware of the unsafe condition of the appliances at the time.</p> <p>6. -: -. But held by Bond, J., dissenting, that such personal liability exists, if such managing officer could have ascertained the unsafe condition of the appliance through the exercise of ordinary care.</p>

— Hon. H. C. Riley, Judge. (1) The evidence shows that no judgment could have been given against this plaintiff, defendant in the previous cause, for costs; that defendant had a complete defense to the demand for costs. Murphy v. Smith, 86 Mo. 333, 338; Thompson v. Union Elevator Company, 77 Mo. 520. (2) The court erred in giving judgment dissolving the temporary injunction and dismissing the petition.

<p>Costs ; PAYMENT OP DEBT AFTER INSTITUTION OF SUIT. When, the debt sued on is paid by the defendant after the institution of the suit, there should be judgment for costs in favor of the plaintiff.</p>

— Hon. W. D* Hubbard, Judge. Admitting for the sake of argument that there was-fraud on the part of the defendant which entitled the-plaintiff to rescind, yet, before the plaintiff was entitled to go behind the settlement and sue on his original contract or account, he must have made his election and returned, or offered to .return, the acceptance and the $9.50, received by him under the settlement.

— Hon. R. E. Roy, Judge. A railroad company is not liable for stock killed on stations or depot ground, except on proof of negligence. Swearingen v. Railroad, 64 Mo. 73; Lloyd v. Railroad, 49 Mo. 199; Morris v. Railroad, 58 Mo. 78. There is no duty upon a railroad company to look after or police any of its right of way, except the track or that part they assume actual corporate control of. Redmond v. Railroad, 13 Am. & Eng. R. R. Cases, 515; Ganóte v. Railroad, 13 Am. & Eng.

<p>1. Bill of Exceptions: nunc pro tunc entry. The statutory limitation of the time for filing a bill of exceptions can not be evaded by mine pro limo entries.</p> <p>2. -: DELAYS CAUSED BY COUNSEL POR RESPONDENT. The failure of a party to file his bill of exceptions in due time is not excused by the neglect of the opposing party to seasonably examine and return it to him, when he has not demanded the return of it.</p>

<p>1. Schools: liability of officers of district. Though school warrants arc issued in pursuance of proceedings at a meeting of the sehool board, held by two of the directors without notice to the third and of which no record has been kept by the clerk, and though they have been subsequently paid, no liability on the part of any of these officers to the sehool district will result, if they were issued in payment of valid demands against the district.</p> <p>2. -: -. But held, in the course of discussion, that the irregularities above stated would have constituted a good defense to an action against the district on the warrants.</p>

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

<p>1. Mortgages: nonpayment of taxes by administrator of mortgagor. Though." the administrator of a mortgagor of land, who has covenanted to pay the taxes on it, refuses and fails to pay accrued taxes on it which were assessed against his intestate, the mortgagee acquires no claim on his bond by subsequently purchasing the land on the foreclosure of the mortgage and thereon paying these taxes.</p> <p>2. -: -. But gucsre, whether the mortgagee could have acquired a preferred demand against the estate of the mortgagor by paying these taxes during the pendency of the administration and the life of the mortgage.</p>

Circuit Court. — Hon. H. C. Riley, Judge. All these parties were sharing profits equally. All participated in buying goods, settling accounts, hiring clerk, etc. There was a community of interest. Sharing in the profits alone is prima facie evidence of a partnership. Bank v. Altheimer, 91 Mo. 190; Philips■ v. Samuel, 76 Mo. 658.

<p>Appeal from the Greene Circuit Court. — J. T. Neville, ‘ Judge.</p>