Volume 65 — Missouri Appeal Reports

<p>1. Alteration of Written Documents: pebshmptions. Thepre-. sumption, that an alteration of a written document was made prior to, or at least contemporaneous with, its execution, is not overcome as a matter of law hy suspicious circumstances apparent upon the face of the document; hut, when an alteration or interlineation is of a suspicious character, that circumstance alone, without any additional proof, will warrant a finding against that presumption by the trier of the facts.</p> <p>2. -: effect of RECORDING paper as altered. A deed conveying land to a married woman was altered by a stranger so as to make the conveyance purport to be to her separate use, and it was then filed for record with the recorder of deeds and recorded by him as thus altered. Held, that the recording of the deed in this form would not avail a subsequent creditor of the married woman in an action . in equity by him to charge the land as her separate estate.</p>

<p>1. Justices’ Courts: appointment op next friend for minor. The appointment of a next Mend for an infant in proceedings instituted hefore a justice of the peace need not be preceded by the infant’s application therefor in writing.</p> <p>2. -: execution: amendment of return: jurisdiction. A return to an execution issued by a justice of the peace may only be amended in the circuit court in the course of the pendency of the cause in that court on appeal; the mere fact that such a return is offered in evidence in the circuit court does not warrant its amendment in that court.</p> <p>3. Practice, Appellate: nonprejudicial error. But the erroneous reception in evidence of an amendment thus allowed by the circuit court without warrant will not justify the reversal of the judgment in the cause, when the facts shown by the amended return appear from other undisputed evidence, so that, upon the whole, the judgment was for the right party.</p> <p>4. Justices’ Courts: sufficiency of statement. The statement in a suit instituted before a justice of the peace states a cause of action, when it advises the defendant what he is called upon to answer.</p>

<p>1. Damage Feasant: effect of statutory appraisement. When the statutory appraisement of the damage done hy animals running at large contrary to the provisions of article 2 of chapter, 5 of the Bevised Statutes is made in the absence of, and without notice to, the injured person, he is not bound thereby.</p> <p>2. -:-: ENTRY of judgment on appraisement. There is no warrant for the entry of judgment on the appraisement on the refusal of the injured person to accept the latter; and such judgment, if thus entered, will have no efficacy.</p> <p>3. -: -: RIGHT TO RESORT TO ACTION AT LAW: ELECTION OF remedy. The taker of animals running at large in contravention of the statute may resort to an action at law for the recovery of his damages, since the statute does not purport to furnish an exclusive remedy. Nor will the mere fact, that he has already set proceedings under the statute in motion, deprive him of his right to invoke the concurrent remedy by action.</p> <p>4. --:-. Semble, that the general purpose of the statute in its provision for an appraisement is merely to fix prima facie the amount of the damage, to the end that the owner may be entitled to retake the animals on payment thereof, and that the taker may treat the animals as strays on nonpayment.</p>

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

<p>1. Practice, Appellate: abstract: filing bill of exceptions. The general recital in the appellant’s abstract, that the hill of exceptions was filed within the time required, will suffice when it is not. controverted by counter abstract.</p> <p>2. Statute of Frauds: original unbertaking. The vendor of a stallion, in connection with the sale of it, guaranteed to the vendee that a stated number of mares would be bred to the animal. Eeld, that this was an original undertaking, and, therefore, not within the statute of frauds.</p> <p>3. 'Damages: profits. Probable profits form a legitimate element' of damages, when their extent can be shown with reasonable certainty.</p>

<p>Appeal from the Pike Circuit Court. — How. Reuben E. Roy, Judge.</p>

<p>Appeal from the Pike Circuit Court. — Son. Reuben E. , Roy, Judge.</p>

<p>1. Statute of Frauds : sheriff's sales. A sheriff’s sale of land is within the statute of frauds.</p> <p>2. --: -: memorandum op CONTRACT. In order to satisfy that statute the memorandum of such a sale must, in addition to other elements, contain the name of the purchaser.</p> <p>3. -: pleading. A defendant who files no pleading (as where the proceeding is on motion of the adverse party), hut who has given notice of his denial of a contract sought to he enforced against him and offered evidence showing the invalidity of that contract under the statute of frauds, is entitled to the benefit of that statute by way of defense.</p>

<p>1. Practice, Appellate: papers not treated as part op record proper. Neither an exhibit attached, to the petition, nor a memorandum made by the trial court to disclose its views of the law and facts, is a part of.the record proper; accordingly, neither will be considered on appeal in the absence of a bill of exceptions.</p> <p>2. Pleading : answer: matter not admitted by failure to reply. Allegations of fact in an answer, which have no tendency to overcome the cause of action pleaded by the petition, do not constitute new matter requiring a reply; nor is the statement in an answer of a conclusion of law, as distinguished from matter of fact, admitted by the failure of the plaintiff to reply.</p>

<p>Administration: effect of temporary absence of executor. When letters of administration with the will annexed are granted under Revised Statutes, section 13, during the temporary absence of the executor from the 'state, the executor is entitled to qualify and administer upon his return. 'Sed quaere, whether an administrator thus appointed may not be continued in office, if the executor remains absent for an unreasonable length of time, or fails to signify his intention to assume the trust within a. reasonable time after his return.</p>

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

— Hon. Richard Field, Judge. (1) Defendant’s objection to the unsigned proof was valid. Tbis point was not waived by the letter of April9, but was pressed; nor is there any denial of liability as was claimed below. (2) Pending full compliance with policy requirements as to proofs and appraisal, the insurer could only treat with insured by way of compromise, because insured had no perfected demand; and it was not tantamount to a denial of liability to so state. Noonan v. Ins.

— Hon. Argus Cox, Judge. (1) It was error to permit plaintiff to testify as to agent Adams’ admission, after loss, that he had not canceled the policy sued on. An agent can not bind his principal by admissions as to a past act. 1 Rice on Evidence, p. 445, citing: Hubbard v. Elmer, 8 Wend. 446; Ins. Co. v. Schroeder, 29 Pac. Rep. 1078; First Baptist Church v. Ins. Co., 28 N. Y. 153.

— Hon. Daniel P. Stratton, Judge. (1) Upon the pleadings and evidence it was error to submit to the jury the issues sought to be raised by defendant’s second amended answer. Zwislerv. Storts, 30 Mo. App. 163. (2) Tender of performance can never take the place of satisfaction, unless accepted. Accord, to be good, must be in full satisfaction and must be executed. Readiness to perform is not enough. “The execution of the accord must be complete and perfect.” 1 Am. and Eng.

— Hon. Daniel P. Steatton, Judge. (1) The chattel trust deed in evidence is not void * ‘for the reason that it shows upon its face that it is an instrument for the use and benefit of the grantor.’ Metmer v. Graham, 57 Mo. 404; Hubbell v. Allen, 90 Mo. 574; Brackett v. Harvey, 91 N. T. 214; Ford v. Williams, 24 N. Y. 359; Conkling v. Shelly, 28 N. Y. 360; Miller v. Lockwood, 32 N. Y. 293; Robinson v. Flliott, 22 Wall.

— Hon. Jas. H. Lay, Judge. The petition in this case fails to state that the plaintiffs were the owners of the insured property, either at the time of the issuance of the policy, or at the time of loss. Such a petition is not sufficient to support a judgment and the judgment must, therefore, be reversed. It has been expressly so held in each of the following cases: Storey v. American Central, 61 Mo.

Bates Circuit Court. — Hón. James H. Lay, Judge. . (1) The purported abstract of the record filed herein is not a compliance with' the statute, nor with rule 15 of this court, and the appeal ought to be dismissed. R. 8. 1889, sec. 2653; Rules 14, 15 and 18 of this court; Coodsonv. Railroad, 23 Mo. App. 76; Morris v. Colcheb, 18 Mo. App. 693; Brand v. Cannon, 118 Mo. 595; Johnson v. Carrington, 120 Mo. 315.

— Hon. James H. Lay, Judge. (1) The trial court erred in its refusal to admit in evidence the signatures Of the name of the defendant in the hands of plaintiff’s witness, L. D. Winsett. The rule is as follows: “Writings outside of papers in the case are admissible for purposes of comparison: First. When conceded to be genuine. 'Second. When they are such as the other party is estopped to deny. Third.

— Hon. Charles L. Dorson, Judge. (1) The statute requires mechanics’ liens to he filed within a certain time.

— Hon. E. L. Soarritt, Judge. The intervening petition was proper procedure. The suit in which it was filed is an equity suit, in which title to the property is the basis of the relief sought by the complainant. Intervener shows in his petition he is the owner and, so, is interested, not alone in the subject-matter, but in the legal controversy as well. Daniells, Chafi. [2 Am.

— Hon. E. L. Scaebitt, Judge. (1) Elliott, the interpleader, after the lapse of the term at which the judgment against him was rendered, can not have such judgment corrected or annulled by motion. His remedy was by appeal. The res was in court. Elliott was duly served and Ms remedy was by motion to set aside during the term at which it was rendered; and failing, then by appeal. State ex rel. v. Harper, 54 Mo.

— Hon. John W. Heney, Judge. (1) The judgment complained of was rendered more than three days after the cause was submitted to the justice for his final decision, and the statute, section 6279, Revised Statutes of 1889, is mandatory, and, therefore, jurisdictional. The legislature which enacted the statute under consideration evidently regarded it as mandatory in its entirety, and, therefore, they afterward enacted section 6299 of the same chapter.

— Hon. John W. Henry, Judge. (1) The ordinance of Kansas City constituted an incumbrance against the property existing at the date of the deed executed by respondent. Charter, 1875, art. 7, sec. 5, p. 64; Winningham v. Pennock, 36 Mo. App. 688. (2) Appellant, as remote grantee of Asa W. Waters, was entitled to bring suit after the substantial breach of covenant occurring during the ownership of appellant. Allen v. Kennedy, 91 Mo. 324.

— Hon. J. MoD. Trimble, Special Judge. (1) There was no proper suit commenced on this tax bill against the interest of appellant herein during the life of the tax bill. Two years had elapsed before appellant was sued on the tax bill, hence the tax bill, together with the lien thereunder, was dead as against appellants’ interest in said real estate. Article 8, seer 4, Amended Charter of Kansas City, Mo., 1888; Smith v. Barrett, 41 Mo. App. 460.

— Hon. W. W. Rucker, Judge. (1) The probate court has no equity jurisdiction {Biitler v.Lawson, 72Mo. 227), nor of a married woman’s estate. Held: that even under the married woman’s act of 1889, the husband and wife can not contract with each other at law so as to authorize legal proceedings against each other. McCorUe v. Goldsmith, 60 Mo. App. 478. If this be the law plaintiff could not sue his wife Margaret Lindsay at law on any of the items of his account here in suit.

— Hon. J. H. Slover, Judge. The grant from Cothrell to Smith and G-illham gave the defendant, their assignee,- the right to construct a street railway to be operated by means of an endless cable.

— Hon. James H. Lay, Judge. (1) The court committed manifest error in the instruction given-of its own motion. Donnell v. Byern, 69 Mo. 468; Bullene v. Barrett, 87 Mo. 185. It is immaterial that the interpleader may not have asked an instruction concerning the fixtures.

— Hon. Richard Field, Judge. (1) O. K. creek was the natural course of drainage for all lands sloping toward it, and the city had the power to use said creek for the drainage of that part of the city. Persons buying property in the vicinity of said creek must know that the city may exercise this power, and in this case the city was discharging sewage into the creek at the time and before plaintiff bought this property. Laws, 1875, 256; Mining Co. v. Joplin, 124 Mo. 129.

— Hon. A. M. Woodson, Judge. (1) Tbe court erred in not directing a verdict for plaintiffs and in submitting the issues on the plea in abatement to the jury. This should have been given because of the conveyance of the shares of stock by the defendant to his son Thomas. (2) It was error for the court to refuse plaintiffs’ instruction number 5 and of his own motion to modify it by interlining the words “and fraudulently made” and to give it as thus modified.

_Error to the Cooper Circuit Court. — Hon. D. W. Shackleford, Judge. (1) ''The court erred in refusing defendant’s third instruction. There was evidence tending to show that defendant, while saying, according to plaintiff’s theory, that he would stand good for the reward, was at most only to be surety that others who had subscribed, or intended to subscribe, would pay the amount.

<p>Appeal from the Stoddard Circuit Court. — Hon. H. H. Bedford, Special Judge.</p>

<p>Appeal from the Wright Circuit Court. — Hon. Abg-us Cox, Judge,</p>

<p>Railroads: killing of stock: pkoof of collision. While it must, in an action against a railway company for double damages for the killing of stock, be shown that there was a collision, the proof may be inferential. And held, that the evidence in this ease on that sub-' ject was sufficient to warrant a verdict.</p>

— Hon. W. N. Evans, Judge. (1) Th'e evidence failed to support the allegations ■of negligence in the petition, and defendant’s demurrer should have been sustained. Noland v. Shields, 3 Mo. App. 300; Smith v. Railroad, 37 Mo. 292; Holman v. Railroad, 62 Mo. 562; Callahan v. Warne, 40 Mo. 136; Elliot v. Railroad, 67 Mo. 275; Breen v. St. Louis •Cooperage Co., 50 Mo. App. 202; Flynn v. The Union Bridge Co., 42 Mo.

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

<p>Appeal from the Webster Circuit Court. — Hon. Argus Cox, Judge.</p>

<p>1. Practice, Trial: bill of exceptions: incorporation of oral evidence. Oral evidence, which is merely called for by a bill of exceptions, and is written out after signature of the bill by the trial judge, will be disregarded on appeal.</p> <p>'2. Practice, Appellate: presumptions. If all claims for damages on the dissolution of an injunction are disallowed by the trial court after hearing evidence, but the evidence thus heard is not preserved by bill of exceptions, it will be presumed on appeal that the order of disallowance was warranted thereby.</p>

<p>1. Forcible Entry and Detainer: sufficiency of statement of cause of action. Tlie statement of the cause of action in a suit for unlawful detainer will, under the doctrine of stare decisis, he held sufficient when it is in exact accordance with the form set forth in the appendix to the Revised Statutes.</p> <p>2. -: rights of grantee of landlord. Land was leased by a receiver appointed in a suit for the partition of it, and thereafter sold under the. decree in partition. Held, that the purchaser, as the assign of the receiver, could maintain an action of unlawful detainer against the lessee for holding over after the expiration of the term.</p> <p>3. -: -: effect of tenant’s possession for over three years. The fact, that a defendant in an action for unlawful detainer has for more than three years been in the possession of the premises sued for, will not avail him when his possession was in no sense adverse but was held only as tenant under the assignor of the plaintiff.</p>

<p>1. Statute of Limitations: commencement or action in justices’ COURTS. When an action is instituted before a justice of the peace by process as distinguished from the voluntary appearance of the parties, it is deemed to have been commenced, not from the filing of the statement of the cause of action, but only from the delivery of the writ to the constable for service.</p> <p>'2. -: pleading IN justices’ courts. The statute of limitations need not be specially pleaded in an action commenced before a justice of the peace.</p>

<p>Practice, Trial: change of venue: number-of changes. The statutory provision, that in no ease shall more than one change of venue he grantéd to either party, is peremptory and must he obeyed.</p>

Louis County Circuit Court. — Hon. Eudolph Hirzel, Judge. It was not necessary to plead the matters of aggravation.

<p>1. Pleading: general demurrer. The test of the sufficiency of a petition on general demurrer is whether the facts therein stated, if true, show a cause of action against the demurring defendant. Such a demurrer can not he sustained on the ground that the petition is badly or inartistieally drawn, unless it is so wholly wanting in necessary averments that it entirely fails to state a cause of action.</p> <p>2. -: -. The fact, that a petition jumbles two complaints or causes of action together in one count, is not ground for general demurrer.</p>

<p>Original proceeding.</p>

<p>Appeal from the Phelps Circuit Court. — Hon. C. C. Bland, Judge.</p>

<p>Appeal from the Wright Circuit Court. — Hon. Argus Cos, Judge.</p>

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

<p>Appeal from the Wright Circuit Court. — Hon. Argus Cox, Judge.</p>

— Hon. A. M. Woodson, Judge. (1) The verdict of the jury on each of the above issues of fact is against the great weight of the evidence. The trial court, in its opinion on motion for new trial, found that the verdict was against the evidence.

— Hon. James H. Lay, Judge. (1) Plaintiff is not under the law required to show that her life and conduct as the wife of defendant had been wholly free from blame in order that she might be divorced from her husband for any of the grounds specified in the petition if proven, but it is enough if the evidence fails to show that she has been guilty of anything charged in the cross bill against her, which, if true, would be grounds upon which defendant might be divorced.

— Hon. J. H. Slover, Judge. (1) The first ear load, and the other car loads in question, were separate transactions, though the contract in reference to all was made at one time. Aldrich v. Pyatt, 64 Barb. (N. Y.) 391; Seymour v. Davis, 2 Sandf. (N. Y.) 239, 244; Price v. Lea, 1 Barn. & Ores. 158; Oil Co. v. Breioer, 66 Pa.

— Hok. A. M. Woodson, Judge. (1) Under the evidence introduced by plaintiff, the case should have been submitted to the jury. The rule is well settled that if there is any evidence tending to prove the issues, the case must go to the jury. Qroll v. Tower, 85 Mo. 249; Moody v. Beutsch, 85 Mo. 237; Baum v. Trynear, 85 Mo. 151.

Francois Circuit Court. — Hon. William Carter, Special Judge. (1) The trial court erred in quashing the original information filed in this cause. The information follows and pursues the language of the statute. It is sufficient if the offense be set forth with substantial accuracy and certainty to a reasonable intendment. The substantial rights of defendant are not prejudiced thereby. R. S., sec. 3785; State v. Fare, 39 Mo. App.

Louis County Circuit Court. — Hon. Rudolph Hiezel, Judge. The award of alimony can not be justified as within the power of the court to grant'alimony jpendente lite, for that had been fully done and none further was asked for. This award was on final decree and after a finding against the wife; it also expressly stated the alimony to be in gross. Such alimony can only be awarded to a successful wife.

<p>The Evidence in this cause is considered and held to he entirely-opposed to the verdict.</p>

<p>1. Landlord and Tenant: tenancy fbom year to year. An oral letting of a farm at the will of the lessor creates a tenancy from year to year, and is terminable by the lessor upon sufficient notice.</p> <p>2. Statute of Frauds: assignment of freehold interest in land. The assignment of a freehold interest in land is within the statute of frauds, and must, therefore, be in writing.</p>

<p>Appeal from the Pike Circuit Court. — Hon. Reuben E Roy, Judge.</p>

<p>Sales: INSTRUCTIONS. The defendant in this cause ordered a shipment of needles, from the plaintiff, this being the only dealing between them. The needles were shipped as ordered, but the bill of lading stated that the shipment consisted of notions. This appearing, the trial court declared by instruction that, under these facts, the defendant was under no obligation to receive the shipment. Held, that the instruction was incorrect.</p>

<p>Appeal from the Webster Circuit Court. — Hon. Argus Cox, Judge.</p>

<p>1. Trespass: interference by injunction. Equity will not restrain the commission of a trespass, unless it appears that the injury is irreparable and not susceptible of adequate pecuniary compensation.</p> <p>2. -: -: multiplicity of actions. The right to equitable relief for the prevention of a 'multiplicity of suits arises only when different persons assail the samé right, and not when repeated trespasses are committed by the same person.</p>

<p>Appeal from the St. Francois Circuit Cou/rt. — Hon. James D. Eox, Judge.</p>

— Hon. Rudolph Hirzel, Judge. The court having reformed the deed in accordance with defendant’s prayer for affirmative relief, the remaining issues in the case are ' to he considered in the light of this correction, and as if the deed had, in terms, originally embraced the description inserted therein by -the decree of the court. Bliss on Code Pleadings, secs. 348, 349, 350; Barlow v. Elliott, 56 Mo.

<p>Appeal from the St. Charles Circuit Cowt. — Hon. E. M. Hughes, Judge.</p>

<p>1. Promissory Notes: burden on proof: instructions. When it has heen shown, in an action by the indorsee of a negotiable promissory note against the maker, that the note was procured by fraud, it devolves upon the plaintiff to prove that he acquired the note in good faith before its maturity and for value; and an instruction requiring him to establish this by the preponderance of the evidence is held to be correct.</p> <p>2. -: oonolusiveness op evidence. Proof of such a purchase is considered, and is held not to have been conclusive because made by interested witnesses and because it was, moreover, opposed to other evidence.</p>

<p>1. Divorce: dower. When a divorce is granted to the wife for the fault or misconduct of the husband, her right of dower is not lost; and the court is accordingly not authorized in such a ease to require of her the relinquishment of her dower.</p> <p>2. -: vacating decree. Nor has the court the right, even during the term and of its own motion, to vacate a valid decree of divorce in the absence of any legal ground for its action.</p> <p>3. -: modification of decree by including allowance for alimony. But, when the decree is in favor of the wife, the court may on her motion modify it by including therein an allowance of alimony.</p>

<p>1. The evidence is considered and held not to establish a cause of aetion.</p> <p>2. Mutual Benefit Societies: waives or requirements oe by-laws : powers oe subordinate lodoe. Reid, in the course of discussion, that a subordinate lodge-has no power to waive the requirements of the by-laws of the parent organization, in so far as the rights of the latter are concerned.</p> <p>3. -; CONSTRUCTION OE AMBIGUOUS PROVISIONS OE BY-LAWS: ACTS oe parties. Reid, in the course of discussion, that in the construction of provisions of the by-laws of a benefit society, as in the construction of written contracts in general, the courts should give that meaning to ambiguous terms which was given thereto by the parties themselves.</p>

<p>Action for Personal Injuries: examination on injuries sued for: practice, appellate. The defendant in an action for personal injuries is not entitled, as a matter of right, to an order for examination of the person of the plaintiff. An application for such an order addresses itself to the discretion of the trial court, which will only he interfered with on appeal when manifestly abused. And held, that the application made in this cause was untimely, and, therefore, properly refused.</p>

<p>Appeal from the Madison Circuit Court. — Hon. James D. Eox, Judge.</p>

<p>Attachment: fraudulent concealment of assets: intended preference. A debtor has no right to conceal any of his effects from his creditors, though he does so for the purpose of subsequently using them toward the discharge of valid elaims against himself. A concealment of assets for that purpose is, accordingly, ground for attachment.</p>

<p>Appeal from, the Greene Circuit Cowrt. — How. James T. Neville, Judge.</p>

— Hon. James T. Neville, Judge. When the appeal .was taken, the whole case was appealed, that as to Conlon, the original contractor, as well as Jarvis-Conklin Mortgage Trust Company. Carthage v. Bowman, 55 Mo. App. 204.

<p>2. Criminal Law: unlawful sale op spirituous liquors : liability op agent. One who makes an unlawful sale of liquors (in this causo the sale was charged to have been made without any prior oath and bond as required hy Revised Statutes, section 3890) is liable to the statutory penalties, whether he sells the liquor as owner or as agent or servant of the owner.</p> <p>2. -: -■: burden op proof. When proof of a sale of spirituous liquor has been made, the person charged with having made the sale in violation of this statute must show that the requirements of the law have been complied with. Accordingly, when he claims that he acted merely as the servant or agent of another, he must establish such compliance on the part of his principal.</p> <p>3. -: nondireotion op jury. The nondirection of the jury in trials for misdemeanors is not ground for the reversal of a judgment against the defendant.</p>

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

<p>1. Attachment: refusal of officer to pat preferred claims for labor: intervention in court. An insolvent corporation made an assignment for the benefit of creditors. The next day the property was attached, and subsequently, and after the assignee had filed an interplea therefor, it was sold as perishable. Employees entitled to preferences under Revised Statutes, section 4911, duly delivered sufficient statements of their claims to the attaching sheriff, but did not have their claims allowed by the' assignee. Held, that, on failure of the sheriff to pay them, the employees were entitled to intervene in court by motion, and thereupon to an order on the sheriff to pay them without awaiting the result of either the interplea or the attachments.</p>

<p>Appeal from the Greene Circuit Court. — Hon. James T. Neville, Jiidge.</p> <p>Bond, J., dissenting.</p> <p>(1) The court below erred in admitting, against objection of defendant, testimony of coplaintiff; and motion of defendant to quash execution and judgment of court sustaining same in rebuttal. Stumpf v. Muella, 17 Mo. App. 283; Muff v. Railroad, 22 Mo. App. 584; Koons v. Railroad, 65 Mo. 597. (2) The contract and conveyance between Belle Young and S. A. and S. 0. Haseltine, dated August 28, 1889, in evidence, is void for champerty, the grantees seeking the benefit Of such contract in this suit. Duke v. Harper, 66 Mo. 51; Bent v. Priest, 86 Mo. 475, 490; Pike v. Martindale, 91 Mo. 268, 284; Million v. Ohnsorg, 10 Mo. App. 432, 434; 3 Am. and Eng. Encyclopedia of Law [1 Ed.], 85, 86, 87, and notes. (3) The assignments and conveyances from Belle Young (now Belle Schermerhorn), under which plaintiffs, S. A. and S. C. Haseltine, claim, are void against the executions mentioned in plaintiff’s petition for fraud against creditors, since, on their own admissions, said assignees hold under same a secret trust for the benefit of the assignor. R. S., sec. 5170; Byland v. Gallison, 54 Mo. 513; Bobb v. Woodward, 50 Mo. 95; Henderson v. Henderson, 55 Mo. 534, 558, 559; Gates v. Lebaume, 19 Mo. 25; State v. Benoist, 37 Mo. 500; Byrne v. Becker, 42 Mo. 269; Croiv v. Beardsley, 68 Mo. 435, 439; Cason v. Murray, 15 Mo. 378, 383; Knox v.Hunt, 18 Mo. 174; Johnson v. Sullivan, 23 Mo. 474, 482; National Tube Worles v. Bing, etc., Co., 118 Mol 365, 376; Kuykendall v. McDonald, 15 Mo. 420. (4) The set-off of executions made by the sheriff, as shown by the record in this cause, was fully authorized by law, and is valid and binding in law and equity, and the court below committed error in setting the same aside. R. S., secs. 8169, 8170, 8171; City of Kansas to use v. Bidenow, 84 Mo. 253; Smith v. Spengler, 83 Mo. 408; Green v. Conrad, 114 Mo. 651, 664; Vance v. Corrigan, 78 Mo. 94, 96, 98; Louisiana v. Miller, 66 Mo. 467; City of Baton Bapids v. Haupt, 29 N. W. Rep. 860, 63 Mich. 371; Morrowis v. Bright, '20 Mo. 298; Weiss v. Wahl, 5 Mo. App. 408; Crowden v. Elliott, 2 Mo. 60; Whaley v. Cope, 4 Mo. 233; Austin v. Free-land, 8 Mo. 309, 312; Kent v. Bogers, 24 Mo. 306; Webber v. Leighton, 8 Mo. App. 502. Personal judgments against the owner of property on account of assessments for improvement are void. Such judgments can only be levied on the land benefited. St. Louis to use v. Allent, 53 Mo. 44; St. Louis v. Clemens, 36 Mo. 457; s. 0., 49 Mo. 552. But the debtor in a suit for taxes for such improvement can set off any debt or claim he may have against the holder of such tax bill. City of Kansas v. Ridenour, 84 Mo. 253; Creen v. Conrad, 114 Mo. 651.</p>

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

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

<p>1. Railroads: killing op stock: sufficiency of evidence. The evidence in this cause is considered, and is held sufficient to support the verdict therein holding the defendant railway company liable for the killing of stock.</p> <p>2. -: pleading and PROOF. The statement of the cause of action herein alleged that the stock was killed by a collision with the defendant’s train. Meld, that evidence was admissible to show, and that a recovery could be had’upon the ground, that the stoek was so injured by the collision as to necessitate the killing of it.</p>

<p>An instruction in this cause is held erroneous because not predicated on the issues.</p>

<p>1, Railroads: killing or stock: diligence Required within depot grounds. When stock comes upon railway tracks, and is run over and killed by a locomotive, within the depot grounds of the railway company, and not at a public crossing, the mere fact that the servants of the company in charge of the locomotive could by the exercise of ordinary care have discovered the stock in time, to have avoided injury thereto will not render the company liable for the loss. Such liability will result only, if such servants failed to exercise ordi-</p> <p>" nary care to prevent the accident after they discovered the danger to which the stock was exposed.</p> <p>2. -: -: insufficiency oe evidence. The evidence is considered and is held insufficient to establish the requisite negligence.</p>

<p>1. Practice Trial: instructions. In the trial of an action at law before the court sitting as a jury, the declarations of law requested of the court should he framed in like manner as on a trial by jury.</p> <p>2. Replevin: BURDEN of proof. In an action of replevin the plaintiff must recover upon the strength of his own title.</p>

<p>Promissory Notes: competency op oral evidence to vary liability op indorser. It is not competent to vary the obligations of an indorser of a promissory note by evidence of a contemporaneous oral agreement on his part to pay the note, if the maker would not.</p>

<p>1. Promissory Notes: purchase fob. antecedent debt. The purchaser of a negotiable promissory note is a purchaser for value, when he takes it in payment of an antecedent debt.</p> <p>2. -: BIGHTS OF TRANSFEREE OF BONA FIDE PURCHASER FOR VALUE. When the tona fide purchaser for value of such a note transfers it to another, his title and-rights pass to such transferee. Such transferee, accordingly, takes the note free from equities, though the transfer was made after maturity and with actual notice of the equities.</p> <p>3. -: weight of evidence. Meld, that the weight of the evidence herein establishes a transfer of the note in suit in good faith before maturity and for value.</p>

<p>PER CURIAM.</p> <p>1. Fraudulent Conveyances: exempt property. Held, in the-course of discussion, that a conveyance of property which is exempt from levy under execution and attachment can not he fraudulent, either actually or constructively, as to creditors.</p> <p>BY BIGGS, J.</p> <p>2. -: sales: reasonable time. But held, hy Biggs, J., that the-sale in controversy in this cause was invalid as to the creditors of the vendor for the want of a delivery of the goods sold within a reasonable time, and that, the facts being undisputed, the lapse of such reasonable time appeared as a matter of law.</p>

— Hon. Henry C. Riley, Judge. (1) The proceedings in the divorce case had no' tendency to establish fraud, nor did they constitute ground for interference with the right of the appellant to dispose of his property as he saw fit, especially before the commencement of that ease. Accordingly the objection of the appellant to the reception of evidence of those proceedings should have been sustained, and the instructions offered by him on the subject should have been giyen.

— Hon. James T„ Neville, Judge. Where from the nature of the covenant it is apparent the parties contracted on the basis of the continued existence of a given thing, a condition is implied that if the performance becomes impossible from the total unfitness, destruction, or perishing of the thing, that shall excuse such performance and render such contract void. Chitty on Contracts [11 Am. Ed.], sec. 1076; Walker v. Tucker, 70 Ill. 527; Lowery v. Coal Company, 54 Pa.

<p>Appeal from the Lawrence Circuit Court. — Hon. W. M. •Robinson, Judge.</p>

<p>Appeal from the Gape Girardeau Court of Common Pleas. Hob. Alexander Ross, Judge.</p>

<p>1. Eminent Domain: Recital or jurisdictional facts. In proceedings of eminent domain every jurisdictional fact must affirmatively appear upon the face of the record. Nothing will he supplied by intendment or implication.</p> <p>2. -: -: PUBLIC) ROADS: REPORT OP ROAD COMMISSIONER. Accordingly, in a proceeding for the opening of a public road, the report of the road commissioner must affirmatively show the refusal of nonconsenting owners to relinquish the right of way through their lands; and a recital, that they failed to make the relinquishment,, will not suffice for this purpose.</p> <p>3. -: -: - — : qualifications of commissioners: ascertainment OF PROBABLE damases of nonconsentinq owners by county court. And, under this rule, the judgment of condemnation in such a proceeding will be void, when the record fails to show that the commissioners possessed the qualifications prescribed by statute; also, when the record fails to show that the county court ascertained the probable damages to noneonsenting owners at the outset, as the statute requires.</p>

<p>Husband and Wife: Reduction of chose in action of wife to possession OF HUSBAND: LIABILITY OF HUSBAND AS TRUSTEE OF WIFE. A ward died, and her legatee was the wife of her curator. Einal settlement was made by the curator in 1872, and he thereon gave his note to his wife for the amount of the estate of the decedent. He subsequently renewed the note, and continued to acknowledge his indebtedness thereon to his wife up to the time of his own death. Held, that in equity he was his wife’s debtor, and that she was entitled to an allowance of her claim against his estate.</p>

— Hon. J. 0. Lamson, judge. (1) The trial court, under the pleadings and evidence adduced, should have directed the jury to find a verdict for plaintiffs, because there was no substantial testimony adduced to support the allegations in defendants’ answer. Wolff v. Campbell, 110 Mo. 114; Klaus-mann, etc., Co. v. Schoenlau, 32 Mo. App. 357.

<p>1. Forcible Entry and Detainer: rightful owner: possession: offsetting trespass. In an aetion of forcible entry and detainer the question of rightful owner is immaterial and one trespass can not he offset with another.</p> <p>2. -: evidence: other lands of plaintiff. In an aetion of forcible entry and detainer evidence as to how other parties held other lands of the plaintiff is properly excluded.</p> <p>3. -: EXCESSIVE DAMAGES: MOTION IN ARREST: REMITTITUR. Where-the finding of the jury as to damages and monthly rents exceeds the amount stated in a complaint for forcible entry and detainer and the judgment is entered in accordance with the verdict, there is error on the face of the record and the judgment will be arrested unless the-excess is remitted.</p>

<p>Appeal from the Newton Circuit Court. — Hon. J. C. Lamson., Judge.</p>

<p>Appeal from the Cape Girardeau Circuit Court. — Hon. Henry 0. Eiley, Judge.</p>

<p>1. Parties, Misjoinder of: who entitled to object. The objection, that there is a misjoinder of parties defendant is open only to a defendant who'has been improperly joined.</p> <p>2. Mechanics’ Lien: parties. The parties to the contract are the only necessary parties defendant to an action by a subcontractor for the enforcement of a mechanic’s lien, though others who are interested in the controversy, or in the property sought to be charged, may be joined in order that the proceeding may bind their interests.</p> <p>3. -: representative parties. Held,, in the course of discussion, that proceedings at law are not subject to the rule which obtains in equity, that, when oestuis que trust are numerous and it would be oppressive or inconvenient to make all of them parties defendant to an action, one or more of them may be sued as representing the aggregate body; and, accordingly, that when property belongs to an unincorporated association, the titl,e of such association or of its members in the aggregate will not be bound by making the trustees of the association parties defendant to a proceeding for the enforcement of a mechanic’s lien.</p> <p>4. Conveyances: deed to uninoorporated body. Held, arguendo, that a deed which purports to convey land will not pass any title, if the grantee named therein is an unincorporated association.</p>

<p>Appeal from the Newton Circuit Court. — Hon. J. 0. Lamson, Judge.</p>

<p>• Railroads: obligation to pence. A railway company whose road runs between two farms which are fenced, and whose right of way there forms a lane which it permits to be used as a public road, is under duty to fence the space between such road and its tracks.</p>

— Hon. Henry . C. Riley, Judge. It conclusively appears from the testimony of all the witnesses and the record offered in evidence that the animal was killed on a public crossing. There was no evidence remaining on which a judgment for the plaintiff could be predicated, and the court erred in not finding for the defendant upon a demurrer of the testimony. Miller v. Railroad, 47 Mo.

<p>Motion for New Trial: amendment aeter expiration oe time allowed for FILING. JSeld, Biggs, J., dissenting, that a motion, for new trial may he amended by the insertion of an additional ground therein during the term at which it was filed, though after the expiration of the four days allowed for the filing of it; but, to warrant sueh amendment, the failure to insert such additional ground in the motion when it was filed must be properly accounted for.</p>

<p>1. Law and Fact: reasonable time. What is a reasonable time, is ordinarily a question of fact; and, held, that it was so in this cause.</p> <p>2. Contract: indefiniteness of provision. A contract for the sale of two race horses stipulated for the payment of a definite sum as a consideration, and provided for the payment of a further fixed sum by the purchaser “if he did well and had no badluek with the horses.’'* Held, that this provision was too vague and indefinite to admit of enforcement.</p> <p>3. Principal and Agent: action in excess or authority. A purchase was made by the defendant through, and in the name of, an 'agent, and the fact of the agency was known to the seller. A bill of sale was drawn, which stated the consideration as a certain sum which was paid by the purchaser, and the agent’s authority was limited to the iiayment of that amount. The agent, however, unknown to his principal, agreed orally to pay a further sum upon a stated condition. Held, that this agreement was in excess of the agent’s authority and not binding on his principal.</p>

<p>Appeal from the Netoton Circuit Court. — Hon. J. C. Lamson, Judge.</p>

— Hon. J. C. Lamson, Judge. (1) The plaintiff was not entitled to any attorney’s fee in this ease, and the court erred in allowing one. The statute manifestly does not give a plaintiff double damages for killing or injuring stock and allow an attorney’s fee in addition, as was done in this case. Such was not the legislative intent. R. S. 1889, secs. 2611, 2613; Laws, 1885, page 89; Dartv. Bagley, 110 Mo. 42, 51; State v. JDiveling, 66 Mo. 375.

— Hon. J. C. Lamson, Judge. The court erred in overruling defendant’s demurrer to the plaintiff’s evidence, and in refusing to give to the jury at close of all the evidence the peremptory instruction designated as number 1 of its instructions.

<p>1. Conversion: taking or property or stranger to writ: estoppel in pais. When property is taken under a writ in the presence of a third person who is in possession of it under a claim, of title, but the officer taking it acts in'ignorance of such claim, and such third person, with every reason to believe that he is regarded merely as the bailee of the defendant to the writ, fails to in any manner disclose his claim of title to the officer, and, moreover, virtually consents to the taking of the property, he is estopped from asserting that the taking was tortious.</p> <p>2.-: -: effect of demand. Nor will tlie taking be rendered tortious by the failure of the officer to return the property upon subsequent demand therefor by the person from whom it was thus taken, if at the time of such demand it was not within his power to comply therewith.</p>

<p>1. Duress: threats or imprisonment. To amount to duress, threats of imprisonment must he of such a character, and made under such eireumstanees, as to excite the fear of imminent and immediate imprisonment on the part of a reasonably firm person.</p> <p>2. -: detention of property. When one of the parties to a contract, in the possession of property of the other, without lawful right or excuse, refuses to surrender it until a certain contract between them is first entered into, and thereon such other party executes this contract in order to get possession of the property, the contract is obtained by duress; and this, though the property could have been recovered by the owner by replevin.</p> <p>3. -: rights of surety. If a surety acts under duress in entering into a contract he will not be bound. And held, further, by Biggs, J. (Kombauer and Bond, JJ., expressing no opinion), that the surety may also avail himself of duress exercised against his principal alone.</p>

<p>Appeal from, the Lawrence Circuit Court. — Hon. Edwaed C. Ceow, Judge.</p>

<p>Appeal from the Madison Circuit Court. — Hon. James D. Pox, Judge.</p>

<p>Writ of Frror to the New Madrid Circuit Court. — Hon. Henby C. Riley, Judge.</p>

<p>1. Pleading: insufficiency of petition-: manner of objection. When a petition wholly fails to expressly or impliedly state facts essential to a cause of action, advantage may be taken for the first time of its insufficiency by objection to the reception of any evidence under it.</p> <p>' 2. Conveyances: breach of covenant of seizin or warranty: damages. Substantial damages for the breach of a covenant of seizin, or of warranty, in the conveyance of land can be recovered by the covenantee, only when he has been evicted or has yielded to a paramount outstanding title. ;</p>

<p>Appeal from the Lawrence Circuit Court. — Hon. Edward C. Crow, Judge.</p>

<p>Appeal from the Gape Girardeau Court of Common Pleas. Hon. Alexander Ross, Judge.</p>

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

<p>Appeal from the Pike Circuit Court. — Hon. Reuben F. Roy, Judge.</p>

— Hon. P. C. Stepp, Judge. (1) The court properly instructed -'the jury that a principal is concluded by the acts of his agent only when they are within the scope of his authority, and the evidence shows that Ballard, appellant’s agent, had no authority to make any contract save the one entered into in writing.

— Hon. P. C. Stepp, Judge. (1) This is an attempted statutory submission under section 397, Revised Statutes, 1889, which requires the submission to be in writing to persons named in the submission, with the matter in controversy to be specified and set forth in such submission. If lacking in any one of these elements, the proceeding is only a common law arbitration, and must be enforced by an action on the award or suit upon the bond if one be executed.

Original Proceeding by Prohibition. (1) When a cause is remanded with special directions to the trial court, the mandate operates as a special power of attorney to that court, and it is out of its power to open it up for other purposes; all of its acts in that direction are coram non judice; everything not included in the mandate is res adjudicata. Chouteau v. Allen, 74 Mo. 56; State ex rel. v. Qivan, 75 Mo. 516; Connor v. Pope, 23 Mo.

— Hon. Cyrus A. Anthony, Judge. (1) The court erred in admitting the evidence of a parol agreement between McLain and the defendant, to the effect that McLain was “to keep the steers and sell them and pay the note out of the proceeds.” The arrangement testified to was of no force or validity, and gave the defendant no interest in the steers or lien upon them. It was neither a mortgage nor a pledge and could confer no equitable interest in or lien upon the steers.

— Hon. W. M-Robinson, Judge. The evidence must correspond with the allegations: and he confined to the point in issue. Bruce v. Sims^ 34 Mo. 246; Manufacturing Co. v. School List., 54 Mo. App. 371; Altman-Taylor Co. v. Smith, 52 Mo. App. 351; Wright v. Fonda, 44 Mo. App. 634; Bank v. Mur-dock, 62 Mo. 73; Crews v. Lackland, 67 Mo. 621; Lenox v. Harrison, ,88 Mo. 491; State v. Roberts, 62 Mo. 388; Seibert v. Allen, 61 Mo. 482; Wilson v. Albert, 89 Mo. 537.

— Hon. C. L. Dobson, Judge. (1) The object and root of the contract for building the houses was to furnish security for the loan. This was accomplished and the contract substantially complied with by showing that the houses were as valuable and as good security as built, as they would have been had no changes been made.. Minor changes ■and defects will not prevent recovery.

— Hon. C. L. Dobson, Judge. (1) In the absence of a different or specific method prescribed by law, garnishment is the proper remedy whereby to subject' one judgment debt to the payment of another judgment debt under execution. R. S. 1889, chap. 92 of Judgments, 63 of Executions, and 74 of Garnishments, secs. 5218, 5221, 5229, 5244; 2 Wade on Attachments, 1886, secs. 492, 497; 8 Am. and Eng. Encyclopedia of Law, pp. 1163, 1169 to 1172; 12'Am. and Eng.

— Hon. P. C. Stepp, Judge. (1) The words “any object” are not sufficiently comprehensive to include all subjects upon which one’s powers of vision may be exercised, but in general apply to inanimate things, and are circumscribed in their application to things of the same class as “mark.” It is a rule of interpretation that where particular words are used, and words of general import follow, the latter are governed by the former. City of St. Joseph v. Porter, 29 Mo.

— Hon. P. 0. Stepp, Judge. (1) We submit that the words “protest waived” are not broad enough to include all the prerequisites necessary to excuse the holder of a promissory note from presenting the same at maturity, demanding payment, and duly protesting the same for nonpayment. We are aware that there is a line of good authority holding such to be sufficient. But there is also equally as good authority holding the contrary doctrine. Wall v. Bry, 1 La. Ann. 312; Birdv.

— Hon. P. C. Stepp, Judge. (1) The plaintiffs, after taking two continuances in the applications for which they swore thát an issue was pending on the plea in abatement; after taking and filing in the cause depositions of numerous witnesses; after announcing ready for trial, without any objection, or motion for judgment on the pleadings; after agreeing in open court that the cause should, proceed to trial with eleven jurors; were, upon every principle of justice, estopped to…

— Hon. Cybus A. Anthony, Judge. (1) Defendant’s instruction number 2, in the nature' of a demurrer to the evidence, should have been given, because there is no proper proof showing that J. F. Barnard was the receiver of the Omaha. & St. Louis Railroad Company.

’ — Hon. Cyrus A. Anthony, Judge. (1)- Similar contracts or notes have been construed, and the courts have always placed a strict construction on them. Lewis v. Tipton, 75 A. D. 498; Ramot v. Schotenfels, 83 A. D. 425; Atwood v. Lewis, 6 Mo. 392; Uhsdell & Pierson v. Cunningham, 22 Mo. 124; Salinas v. Wright, 11 Texas, 572.

— Hon. Cyeus A. Anthony, Judge. (1) If the plaintiff failed to demur to the new matter set up in the answer, and replied to the same, thereby putting the new matter in issue, he certainly should not be allowed on the trial to ignore that issue, thereby misleading the defendant. In any event, after the plaintiff introduced the note in evidence, the defendant then had the right to show failure of consideration. Section. 2090, Revised Statutes, 1889, plainly gives this right.

Andrew Circuit Court. — Hon. Wm. S. Hekndon, Judge. The defense in this case is payment, and the burden of proving such alleged payment is on the defendant. Tarnell v. Anderson, 14 Mo. 619; Brown v. Morgan, 56 Mo. App. 382; Mfg. Co. v. Henry, 44 Mo. App. 263. The receipt for $400 dated February 20, 1886, offered in evidence by defendant is not evidence of a payment on either of the notes sued on.

— Hon. W. S. Herndon, Judge. (1) The court erred in dismissing the attachment. (2) The defendant, Glazier, was not guilty of contempt in failing to obey the order of the court, made at the February term, 1894, of said court. He could not be in contempt in disobeying an order which the court had no jurisdiction or authority to make. 3 Am. and Eng. Encyclopedia of Law, bottom page 788; R. S. 1889, sec. 3263; Matter of Greene County v. Bose, 38 Mo. 391.

— Hon. H. M. Eamet, Judge. (1) Under the evidence introduced by the plaintiffs the case should have been submitted to the jury. The rule is well settled that if there is any evidence tending to prove the issues, the case must go to the jury. Groll v. Tower, 88 Mo. 249, 251; Moody v. JDeutsch, 85 Mo. 237, 243; JDamhorst v. Bailroad, 32 Mo. App. 356.

— Hon. H. M. Ramey, Judge. (1) The court erred in sustaining the motion for judgment, and in overruling the motions for new trial and in arrest of judgment. It was not within the province or power of the circuit court to make a new contract for these parties. The simple duty of the court was to interpret and enforce the contract as entered into by the parties. The answer was sufficient and raised issues to be tried by a jury.

— Hon. H. M. Ramey, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. Compliance with a condition in a policy of fire insurance requiring proofs of loss is a condition precedent to recovery under the policy; and no proofs of loss were ever made or attempted to be made in this case. McCullough v. Ins. Co., 113 Mo. 606; Leigh v. Ins. Co., 37 Mo. App. 542; Hanna v. Ins. Co., 36 Mo. App. 538; 1 Beach on Insurance, 457.

<p>Druggist: selling liquor: prescription. A prescription failing to state that the liquor therein described was a necessary remedy is no defense to an indictment against a druggist for selling liquor.</p>

— Son. E. G-. Broaddus, Judge. ■ (1) Equity eases are practically triable ele novo in the appellate court. Blount v. Spratt, 113 Mo. 48. And the appellate court will review the facts as well as the law. Felton v. Gregory, 104 Mo. 488; GriesediecJc v. Griesedieck, 56 Mo. App. 94; Finley v. Schlueter, 54 Mo. App. 455; Clark v. Bank, 57 Mo. App. 277; McFl-roy v. Maxwell, 101 Mo. 294 (308); Benne v. Schneck, 100 Mo. 250; Lins v. Lenhardt, 127 Mo. 271.

— Hon. E. J. Beoaddus, Judge. ■ (1) The court should have given defendant’s instruction number 2, in the nature of a demurrer to the evidence, because upon the record, as shown by the amended petition, plaintiff was not entitled to recover j and, for reasons hereafter stated, defendant’s instruction number 3 should have been given, because if the animals in question were not struck by defendant’s agents and servants no recovery could be bad.

— Hon. Jno. A. Hockaday, Judge. (1) The local option law was not in force in the city of Fayette, or in Howard county, at the time of the trial and judgment. The general rule is, that where a penal law is broken, the offender can not be punished under it, if it expires, or is repealed,, before conviction, although the prosecution was begun while the act was in force.

<p>Appeal from the. Howard Circuit Court. — Hon. John A. Hookaday, Judge.</p>

— Hon. John A. Hookaday, Judge. The finding was against the law and the evidence, and for the wrong party. First. Section 4907, Revised Statutes, 1889, makes it the imperative duty of the sheriff to apprise the execution debtor, before making the levy, of his rights to exemptions under sections 4902, 4903, and 4906, and his failure to comply with the mandate of this statute, renders the levy void. Bombs v. Corbin, 20 Mo. App. 497. Second.

Circuit Court. — Hon. C. L. Dobson, Judge. (1) The only question in this case is this: Can a laborer or servant recover wages under section 4911, Revised Statutes of Missouri, 1889, in a case where a corporation suspends business by reason of its property having been taken possession of and sold by the holder of a chattel mortgage? The principal cases that appellant relies on are: Flanders v. Murphy, 25 Pac. Rep. (Mont.) 1052; 10 Mont. 398; Marshall v. Bank, 28 Pac. Rep.

— Hon. W. S. - Heendon, Judge. Plaintiff has no case. The demurrer asked by defendant, should have been given. Unavoidable accidents and detentions will not relieve the company from liability, where, as in this case, the contract was to ship on a certain day. Miller v. Bailroad, vol. 1, No. 15 App. Rep; Harrison v. Bailroad, 74 Mo. 364; Tucker v. Bailroad, 50 Mo. 885; Faulkner v. Bailroad, 51 Mo. 313.

— Hon. Vinton Pike, Special Judge. (1) The verdict is manifestly against the evidence. The defendant in so far as he attempts to say that his house was finished “on or near about the fourth day of December, shows himself upon the most superficial ■analysis to be unworthy of belief. Ciarle v. Fairley, 30 Mo. App. 335. (2) The verdict could not have been reached upon any other theory than that the jury considered that the law would not require one to pay for material twice.

— Hon. Cykus A. Anthony, Judge. (1) Having received the bill of lading in the regular course of business, and for value, prior to the attaching of any possible rights of the defendant, as commission merchant or otherwise, plaintiff is entitled to the proceeds of the shingles without diminution for freight paid by the defendant, or for sums paid by the defendant to the lumber company, or for defects in the shingles.

— Hon. Silas Woodson, Judge. (1) The indictment alleges the offense to have been committed in Buchanan county. This a material averment {State v. Welker, 14 Mo. 398); and it must be proven. State v. Burns, 48 Mo. 438. Proof that the alleged offense was committed in Kansas can not certainly sustain the allegation that it was committed in Buchanan county, Missouri.