Volume 68 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Leroy B. Yalliant,-Judge. The stipulation, signed by Robt. W. Groode, as attorney for interpleader, was incompetent and irrelevant, and its admission in evidence by the court was error. Williarclv. Gas Go., 47 Mo. App. 5; Black v. Rogers, 75 Mo. 448; Weeks on Attys., sec. 130; Whar. on Agency, sec. 594. A new trial should have been granted interpleader, that she might have corrected the mistake in her testimony. R. S. 1889, sec. 2240.

Louis City Circuit Court. — Hon. John M. Wood, Judge. The court erred in instructing the jury what to find the facts to be. Hanlon v. O’Keeffe, 38 Mo. App. 273. Instructions given not supported by the evidence are erroneous, and where the suit is based on a contract with evidence only supporting a contract, it is error to instruct the jury to find for the reasonable value of the material and labor. Gessley v. Mo. Pac. B’y, 26 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The judgment in the court below was not authorized by the law under the evidence. Buhe v. Compton, 49 Mo. App. 304; Green v. Steinberg, 15 Id. 32; Pierce v. Rollins, 60 Id. 520; Ansele v. Groby, 62 Id. 421. This action was properly brought under section 6392 of the statutes.

Louis City Circuit Court. — Hon. John M. Wood, Judge. The principle governing this case is that, when one of two innocent parties must suffer by a third, he who has enabled such third party to occasion such loss ought to sustain it. Bice v. Qroffman, 56 Mo. 434; Savings Association v. Kehlor, 7 Mo. App. 158; Carroll v. Bailroad, 14 Id. 490; Crews v. Qarneau, Id. 505; Banlc-v. Frame, 112 Mo. 502; Lumber Co. v. Parh Ass’n, 64 Mo. App. 377.

<p>Appeal from the St. Louis City Circuit Court. — Hon. John M. Wood, Judge.</p> <p>Both plaintiff and Seib had color of title to the proceeds of the policy, and this is all that is necessary to entitle defendant to interplead the parties. Wilkersonv. Metropolitan Life Ins. Go., 63 Mo. App. 404; Samev. Same, 64 Id. 172; Roberts v. Clayton, 49 Id. 608; 2 Am. and Eng. Ency. Law, p. 496.</p> <p>The right of a defendant to interplead in a pending cause is recognized and established in this state. Roberts v. Clayton, 49 Mo. App. 608, 612; Roselle v. Farmers Bank, 119 Mo. 84; Heusner v. Mutual Life Ins. Co., 47 Mo. App. 36; Sherman v. Rockwood, 47 Id. 336;</p> <p>In a proceeding before a justice a defendant may interpose any defense he may have, whether it be legal or equitable in its nature. State v. Hinze, 45 Mo. App. 403; Wolff v. Vette, 17- Id. 36; Sherman v. Roclmood, 26 Id. 682; Brown v. Broion, 106 Mo. 611; McFarland v. Mo. Pac. Bhj Co., 125 Mo. 253.</p> <p>Relief sought by a bill of interpleader must be-strictly equitable relief. It could not, therefore, be cognizable before a justice of the peace. 2 Am. and Eng. Eucy. Law, title, “Interpleader,” 506; Id., title,. “Interpleader,” 494; Jefferson Co. v. Cowan, 54 Mo. 237, 238.</p> <p>The jurisdiction of a justice is confined within the statutes, and for his authority he must rely entirely on them, otherwise it will be denied. Enslow v. Newland, 22 Mo. App. 581; Dillard v. Railroad, 58 Mo. 74; Jefferson Go. v. Cowan, 54 Id. 237.</p> <p>Interpleas are allowed before justices in attachment, but only because it is in the nature of a replevin engrafted thereon by statute. Huiser v. 'Beck, 55 Mo. App. 668. See, also, Crow v. Stevens, 44 Id. 137; Springfield, etc., v. Glazier, 55 Id. 95.</p> <p>If the justice had no jurisdiction to try abill of inter-pleader, the circuit court, on appeal, could have none. Enslow v. Newland, 22 Mo. App. 584; Willis v. Stevens, 24 Id. 503; Hicks v. Martin, 25 Id. 368; Rankin v. Fairley, 29 Id. 587.</p>

Louis City Circuit Court. — Hon. James E. Withbow, Judge. K¡ « The services, if any, performed by plaintiff, were gratuitous, and not intended by either party, at the time of the performance, to be paid for. Bittrich Gilmore, 53 Mo. App. 53; Potter v. Carpenter, IQ A. . 157; Kinner v. Tschirpe, 54 Mo. App. 575; Hoolan v. Bailey, 30 Id. 585; Allen v. Bowman, 7 Id. 29; Kerr v. Cusenbary, 60 Id. 558; Hartnett v. Christopher. 61 Id. 64; Vandyke v. Walker, 49 Id. 381.

Louis City Circuit Court. — Hon.. Pembrook R. Elitcraft, Judge. To render the mortgage to the bank fraudulent as to defendant’s creditors, it must appear that the deed was executed for that purpose; it is not sufficient that-the effect of the deed is such as to hinder or delay creditors. Spencer v. Deagl, 34 Mo. App. 455, 457,. 458; Dougherty v. Cooper, 77 Mo. 528, 531. There is no evidence that plaintiffs are “creditors” of defendant.

Louis City Circuit Court. — Hon. ' Leroy B. Valliant, Judge. Defendant’s objection to the introduction- of any testimony, at the beginning of the trial, because the petition stated no cause of action, should have been sustained. 8 Am. and Eng. Eney. of Law, pp. 459, 460, 461; People v. Tomlinson, 35 Cal. 503; Rood v. State, 5 Neb. 174; 2 Bish. Crim. Law [Ed. 1892], secs. 545, 546; Whar. Crim.

<p>1. Criminal Law: abandonment op wipe: evidence. On a prosecution against defendant for criminal abandonment of his wife, it was reversible error to exclude evidence offered on his part tending to show that- his wife was an habitual drunkard, in order to furnish a ground for separation and divorce under the statute.</p> <p>2. -: --: evidence: onus. It is incumbent upon the state, on such prosecution, not only to make out a ease of willful abandonment, but it must give affirmative evidence of want of good cause. A defendant can not be held guilty of criminal abandonment who has any cause for leaving his wife which is sufficient in law.</p>

Louis City Circuit Court. — Ho,n. Lebot B. Y allí ant, Judge. The justice of the peace of the fourth district of St. Louis is not the' successor in office of the justice of the fifth district, and had no authority to issue an “alias summons” upon a cause of action instituted before a justice of the fifth district. Laws, Mo. 1891, p. 175; Black’s Law Diet. 1134; 2 Bouv. Law Diet. 681.

Louis City Circuit Court. — Hon. Pembrook R. Elitoraet, Judge. Cahill could not assign a part of the amount due him from the railway company without the latter’s consent. Love v. Fairfield, 13 Mo. 300; Loomis v. Robinson, IQ Id. 488; Bank v. Noonan, 88 Mo. 372; McLeod v. Snyder, 110 Id. 298. The authority of the local agent to bind defendant must be shown, either by an express delegation, or by the conduct or necessities of its business.

<p>1. (Garnishment: fraud: evidence. In a proceeding by a judgment creditor of defendant, to subject to garnishment the proceeds of sale of the contents of a store owned by defendant, who was in failing circumstances, at the time of the sale, of which fact the garnishee knew, where there was substantial evidence of undue and ■ unusual haste in the purchase, and the purchase was made in a lump without detailed inventory and appraisement, and without any satisfactory explanation why the goods were not inventoried nor appraised, and the price was grossly inadequate, — Held: That such facts might be considered by the jury as badges of fraud.</p> <p>2. -: -: liability of garnishee. If such sale was fraudulent, the garnishee was accountable to plaintiff for the entire proceeds received by him without regard to what he had paid for the goods.</p> <p>3. Practice, Appellate: weight of evidence: verdict. Where a verdict is so strongly opposed to the weight of the evidence and surrounding circumstances as to show clearly that it is the result of bias, prejudice, or passion on the part of the jury, the appellate court will vacate it, but the court can not assume that a verdict is necessarily the result of bias or prejudice, because opposed to the weight of the evidence.</p>

— Hon. D. W. Shackleford, Judge. (1) The court erred in striking out appellant’s answer. R. S. 1889, sec. 4505; State ex rel. v, Court of Appeals, 99 Mo. 216; State ex rel. v. Sedden, 93 Mo. 520.

— Hon. John W. Henry, Judge. When these ordinances were passed providing for the work for which the purported tax bills pretend to be issued, there was no law authorizing a city of the fourth class to provide for the doing of work and paying for same by tax bills to be issued in favor of contractors and against the adjoining property. The law in force at that time pertaining to such cities was passed in 1877, and may be found in section 4942, Revised Statutes, 1879.

— Hon. W. W. Buceen, Judge. (1) Each parcel of land, in case different persons become owners of the equity of redemption, must bear its proper share of the mortgage debt, and this is determined by ascertaining the value of the several parcels of the land liable for the debt. 1 Story’s Equity [11 Ed.], sees. 477, 484; Cheesebrough v. Millard, 1 Johns. Ch. 409, 412, 415; Stevens v. Cooper, 1 Johns. Ch. 425, 428, 430; Hall v. Morgan, 79 Mo. 47.

— Hon. J. H. Lay,' Special Judge. (1) One who advances money to discharge an existing incumbrance, at the request of the mortgagor ’ or owner of the land, under an agreement for a first lien as security for the money advanced, may invoke the equitable doctrine of subrogation, when the rights of no innocent third person intervene. Moore v. Lindsey, 52 Mo.

— Hon. J. H. Slover, Judge. The record shows that the appellant had ample property out of which to pay its debts, and the conveyances complained of by respondent could by no manner of means have had the effect of hindering, delaying, or defrauding creditors. Voluntary conveyances are sustained where the grantors had sufficient property to pay their debts. TJpdergraff v. Thealcer, 57 Mo.

— Hon. J. H. Slover, Judge. (1) Under the un contradicted evidence plaintiff was entitled to a lien against the interest of both W. J. Reid and Jennie L. Reid in the building and improver ments. Kline v. Perry, 51 Mo. App. 422; Seaman v. Pacldoclt, 51 Mo. App. 465. (2) Defendant W. J. Reid was an owner within the meaning of the mechanics’ lien law, of the land upon which .the improvements were situated. Sec. 6726, R. S. 1889.

— Hon. E. J. Broaddus, Judge. (1) Where the servant, for his own pleasure and amusement, and not to serve his master or to advance his interest, injures another, the master is not liable. Railroad v. Cooper, 32 S. W. Rep. 517' (2) The relation of master and servant does not impose on the master liability for any act of the servant, unless the act was done in the performance of the master’s business, and for the accomplishment of an object for which the servant was employed.

— Hon. John A. Hockaday, Judge. (1) The petition does not state a cause of action. The sale, upon her own showing, was on account of her default, and under a deed of trust that she knew -all about, and which she had assumed to pay. The sale was strictly according to the contract, and she can not complain of that. McKees v. Swany, 50 Mo. 388; 2 Jones on Mortgages, sec. 1678; Kennedy v. Simms, 120 Mo. 73. The petition shows that defendant was guilty of laches.

— Hon. John A. Hockaday, Judge. (1) If appellant could be removed by the council at all, it must have been “for cause” which in legal intendment means upon sufficient charges, “notice thereof and a hearing.” State v. Walbridge, 62 Mo. App. 162; State v. Brown, 57 Mo. App. 99; State v. St. Louis, 90 Mo. 19; State v. Walbridge, 119 Mo. 383.

<p>Flection Contest: evidence : construction or constitutional provision: jurisdiction. When the evidence in a cause, on appeal, presents a state of fact demanding the construction and application of a constitutional provision, in order to determine the rights of the parties, the determination of the appeal is within the exclusive jurisdiction of the supreme court.</p>

<p>1. Mortgage Debt: promise to another for benefit of third-person: RIGHT OF ACTION OF THIRD. PERSON AGAINST PROMISOR: RULE: limitation of rule. While the rule, as recognized in. this state, is that where one person makes a promise to another for the benefit of a third person, such third person may maintain an action on the promise in his own name against the promisor, a limitation of the rule is, that where the promisee is himself under a corresponding legal or equitable obligation to the person for whose benefit the promise is made, such third person’s right of action is derivative, and not independent, hence limited in extent to the right of recovery by the promisee. Vrooman v. Turner, 69 N. Y. 280; Sewer Pipe Co. v. Thompson, 120 Mo. 218.</p> <p>2. -: - : LIMITATION OF RULE: DAMAGES: MEASURE OF RECOVERY. Under the rule, as limited in Vrooman v. Turner, supra, the plaintiff could in no event recover more than nominal damages. State to use v. Plass, 58 Mo. App. 148.</p>

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. The demurrer to the evidence should have been sustained. Culbertson v. R’y, Sup. Ct. Mo., June 30, 1896; 36 S. W. Rep. 834; Lane v. Railroad, Sup. Ct. Mo., December 23, 1895; 33 S. W. Rep. 645. The failure of defendant to lower the crossing gate, although an invitation to cross, did not absolve the plaintiff from the duty of exercising ordinary care. Patt. on R’y Acc. Law, p. 164; Wood on R. R. [Minor’s Ed. 1894]; 2.

<p>1. Actions: special tax bill: cognizance: weight op evidence: instructions. An action on a special tax bill was originally one at law, but when defendant interposed an equitable defense going to plaintiff’s entire claim with a prayer for relief which a court of equity only could grant, it became triable as a suit in equity, subject to review, on appeal, on the weight of the evidence, and not on declarations of law.</p> <p>2. Contract, Void, Recovery for Work Under: estoppel. The fact that defendants were passive, and did nothing to warn plaintiff’s assignor that they would resist payment for the work, could avail plaintiff nothing by way of estoppel, where the work was done upon a public street under a void ordinance or contract, and, as held in the Verdin case, the void and valid parts of the contract were not separable, so as to enable plaintiff to recover in part. 131 Mo. 26.</p>

<p>Street Improvements: special tax bill: demurrer: pleadinq. In a suit on a special tax bill, by the assignee of a claim for street improvements, which the petition alleged to be a lien on defendants’ property — Held, on demurrer: That since no facts showing its invalidity were stated in the petition, it was not necessary for plaintiff to anticipate and avoid in the petition any defenses the answer might set up; it would have been sufficient even if it had only alleged in general terms that the bill was duly issued to plaintiff’s assignor, that it was assigned to plaintiff, and that defendant was the owner of the property charged thereby.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembeook R. Flitoeaet, Judge.</p>

Louis City Circuit Court. — Hon. John M. Wool, Judge. When a person voluntarily performs some service for another, he assumes the same risks as the servants of such person while so engaged. Potter v. Faulkner, 1 Best. & S. 800; Wischam v. Rickarcl, 136 Pa. 109; Osborn v. R. R., 68 Me. 28.

<p>Practice, Appellate: weight op evidence: new trial: conflict op evidence: verdict. The appellate court will not disturb an order granting a new trial on the ground that the verdict is against the weight of the evidence, when there is a substantial conflict in the evidence as to some material issue of fact.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. John M. Wood, Judge.</p> <p>The verdict is excessive, for the reason that, under the erroneous instructions of the court, the jury disregarded the credits given on the cause of action.</p>

Louis Court of Criminal Correction.— Hon. David Murphy, Judge. To constitute wife abandonment, under the statute, two things must concur: Desertion or abandonment, and nonsupport. State v. Weber, 48 Mo. App. 500. As to what is necessary to establish desertion or abandonment, see Id. 504. The burden is on the state to prove the existence of all such facts, even though negative proof is required. State v. Brinkman, 40 Mo. App.' 286.

Louis Court of Criminal Correction. Hon. David Murphy, Judge. The rules of procedure and construction are the same with reference to informations or indictments. The finding and filing of a second indictment for the same criminal transaction, suspends and quashes the first. State v. Anderson, 96 Mo. 241; State v. Vincent, 91 Mo. 662.

<p>Appeal from the St. Louis City Circuit Court. — Hon. John M. Wood, Judge.</p> <p>Tlie plaintiff’s action was upon an account stated, but the evidence failed to disclose the necessary elements of the account stated. The judgment is not supported by any evidence sufficient, under the instructions, to sustain it. Reinhart v. Hines, 51 Miss. 344; Hanson v. Jerome, 54 N. Y. 408; Road v. Kimmel, 58 Mo. 83.</p> <p>The amendment of the statement should not have been permitted. “Balance due” is insufficient, unless something is added to show for-what it is due. Patterson v. Luts, 1 Mo. App. 133; Sivarts v. Nicholson, 65 Mo. 508; Rosenburg v. Boyd, 14Mo. App. 429; Brashear v. Strode, 46 Mo. 221.</p> <p>The proceedings before the justice who rendered the judgment and in the circuit court were coram non judice. The justice could only have acquired jurisdiction by the filing of a transcript upon the change of venue. The instrument filed was not a transcript, because not certified to by the justice who granted the change of venue. R. S. 1889, secs. -6241, 6242.</p> <p>The appearance of defendant might constitute a waiver of lack of jurisdiction of the person, but jurisdiction of the subject-matter must exist or be conferred by law. Collier v.' Wilson, 56 Mo. App. 420.</p> <p>Plaintiff’s action was not based upon an account stated, but an open account, the first item of which was a balance due on an account stated, which did not prevent it from being incorporated in and made part of the account sued on. Estes v. Shoe Co., 54 Mo. App. 543.</p> <p>There is no question as to the amendment of the statement saved for review by this court. That matter was not referred to by defendant in his motion for new trial. Moreover, the amendments were authorized by statute (sec. 6347). The objection by defendant to the first item of the account was not an objection to the account as a whole. Reweg v. Heitcamp, 20 Mo. 568. See, also, Newberger v. Eriede, 23 Mo. App. 631; Hanson v. Jones, 20 Id. 595; Sprague v. Follett, 90 Mo. 547; Rathburnv. Teeter, 25 Mo. App. 283.</p> <p>After appearing before Justice Spaulding, taking a change of venue, and then before Justice Hennessy and trying the case on its merits, and appealing to the circuit court and again trying the case on its merits, it is too late for appellant to say the judgment was rendered without jurisdiction of the subject-matter. State v. Weatherby, 45 Mo. 17; Rosenheim v. Hartsoclc, 90 Id. 365; Hope v. Blair, 105 Id. 93; Musiclc v. R’y, 114 Id. 309.</p> <p>There is nothing in the point that Justice Hennessy had no jurisdiction because the transcript was not certified to. Sec. 6339, R. S. 1889; Barn v. Blomberg, 37 Mo. App. 604; Collier v. Wilson, 56 Id. 420.</p>

<p>Practice, Appellate: appeal, failure to prosecute. For failure to prosecute an appeal the judgment of the court below will be affirmed, on motion and the production of the certificate of the clerk showing that fact, no cause to the contrary being shown.</p>

<p>Practice, Appellate: appeal, failure to prosecute : affirmance. For failure to prosecute an appeal, the judgment below will be affirmed, on motion and the certificate of the clerk of the circuit court, sho'wing that fact, no cause to the contrary being shown.</p>

Louis City Circuit Court. — Hon. John M. Wood, Judge. A petition must be fatally defective in order that it may be held demurrable. 3 Black. Com. 315. Where a petition shows, at least by intendment, a contract between the parties, and a right of recovery thereon, a general demurrer will not lie, but the defect, if any, must be reached by motion to make more definité and certain. Kirsch v. U. S. Grand Lodge, 56 Mo. App. 101.

<p>Appeal from the Wayne Circtdt 'Court. — Hon. James F. Gbeen, Judge.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Section 6864, Revised Statutes, 1889, was not intended to disturb or modify the existing rule as to the unity of husband and wife by reason of the marital relation, and, therefore, does not authorize the wife to contract with or sue her husband. Ilgenfrits v. llgenfrits, 49 Mo. App. 127; McCorJde v. Goldsmith, 60 Id. 475.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Plaintiff was not employed by the board, by any official or corporate action of the board, nor did the board, as such, authorize Mr. McEall, or the appraisers, to employ plaintiff. Kane v. School District, 48 Mo. App. 408; State ex rel., etc., v. Wray, 55 Id. 646; Johnson v. School District, 67 Mo. 319; Hill v. Rich Hill Min. Co., 119 Id. 9 (30); Besch v. Carriage Mfg. Co., 3Q Id. 333; 17 Am. and Eng.

Louis City Circuit Court. — IIon. Thomas A. Russell, Judge. Alimony is a right which results from the marital relation, and the fact of marriage between the parties must be admitted or proved before there can be a decree granted. Vreeland v. Vreeland, 18 N. J. Eq. 43; Brown on Divorce, 260; Smith v. Smith, 61 Iowa, 138; McFarland v. McFarland, Id. 565; Wilson v. Wilson, 49 Id. 544; Becker v. Becker, 15 111. App. (Brad. 247).

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge.</p> <p>Both obligees were properly joined as plaintiffs. Clark v. Cable, 21 Mo. 223; Rainey v. Sivizer, 28 Icl. 310; Henry v. Mt. Pleasant, ID Id. 500; Ryanv. Riddle, 78 Id. 521; Ohnsorg v. Turner, 33 Mo. App. 486.</p> <p>Alterations and additions were provided for by the contract. Making alterations or additions was not, therefore, a departure from the contract, and does not release the sureties. Aschenbrordel Club v. Finley, 53 Mo. App. 256; Beers v. Wolff, 116 Mo. 185.</p> <p>If the evidence does not show a defense to the action on the bond, we submit the cause should be remanded, with directions to enter judgment for plaintiff, the judgments sustaining the liens being conclusive ; and there is no denial of the legal service rendered or its value. McFall v. Dempsey, 43 Mo. App. 369; Oberbeck v. Mayer, 59 Id. 292.</p> <p>A lien judgment against land and improvements is a mere incident to a finding against the contracting party. In an action by the principal contractor against the owner there can be no lien established,, unless there is also a personal finding against the owner. In the case of a suit by a subcontractor there can be no lien judgment, unless there is a finding of liability against the principal contractor. Russell v. Grant, 122 Mo. 161(179); Lumber Co. v Schuler, 49 Mo. App. 90; Steinkamper v. McManus, 26 Id. 51.</p> <p>Where a surety buys a judgment against himself and his principal, in the name of another person, he can not recover indemnity from the principal, without first satisfying the judgment. He may proceed upon the judgment, or satisfy it and sue the party for the money paid, but he can not do both. Brandt on Suretyship, sec. 194.</p> <p>Every reasonable intendment will be made in favor of the judgment of the lower court, until the contrary is made to appear affirmatively by the showing of complainant. Schreiner v. Orr, 55 Mo. App. 406; Spencer v. Croiv, 47 Id. 321; Vaugh v. R’y, 34 Id. 141; Beckley v. Stroh, 19 Id. 75; State v. Raiokins, 100 Mo. 666.</p>

<p>Appeal from the St. Francois Circuit Court. — Hon. James D. Fox, Judge.</p> <p>Transferred to supreme court.</p>

Louis City Circuit Court. — Hon, Thomas A. Russell, Judge. The court erred in allowing respondent alimony pendente lite, for the sustenance of herself and children, in the face of the fact that it conclusively appears from the record that the wife was living in appellant’s house, and that he furnished her and her children with all of the necessaries of life. Tayman v. Layman, 2 Md. Ch. 393; Anshuts v. Anshutz, 16 N. J. Eq. 162; Adams v. Adams, 49 Mo. App.. 592-596.

Louis City Circuit Court. — Hon. John M. Wood, Judge. It was the husband’s duty to protect,and defend the good name of his wife, and he was so far as came to his knowledge responsible for the acts and language of his relatives which he did not try to prevent. Brown on Div. [1 Ed.], 138; Albee t>. Albee, 31 N. E. Rep. (111.) 153; Olcott v. Olcott, 25 Atl. Rep. (N. J.) 469; Lay v. Lay, 50 N. W. Rep. (Iowa) 979; Hutchins v. Hutchins, 24 8. E. Rep. (Va.) 903.

<p>1. Instructions. Where the same alleged vice in one party’s instructions is to be found in the instructions of the other party, the party objecting is in no position to urge his objection.</p> <p>2. Improper Remarks of Counsel in Argument to Jury: conflict in proof. A reversal will be granted for improper remarks of counsel in his closing argument to the jury, where there is a sharp conflict in the proof on all the material issues, and the court can not say that the jurors have not been influenced or controlled by such remarks.</p>

Louis Court of Criminal Correction. Hon. David Murphy, Judge. The state must prove beyond a reasonable doubt to warrant a conviction under section 3501, Eevised Statutes, 1889, that defendant abandoned his wife without good cause and with a criminal intent, and that he failed and refused to provide for her. State v. Bruening, 60 Mo. App. 51; State v. Broyer, 4A Id. 393; State v. Brinkman, 40 Id. 284; State v. Greenup, 30 Id. 299; State v. Fuchs, 17 Id. 458.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. There was a fatal variance between the petition and the evidence. The ease alleged was that defendant employed plaintiff to sell defendant’s property, and that plaintiff found a buyer to whom defendant did sell it. The proof wholly failed to show a sale, .but established an exchange of properties. Martin v. Ash-land Mill Go., 49 Mo. App. 23, and citations; Benj. on Sales [4 Am. Ed.], secs. 2, 85, pp. 2, 109; 2 Bouv.

<p>Practice, Appellate: appeal, failure to perfect: affirmance. For failure of appellant to perfect his appeal by filing in the appellate court either a transcript of the record or clerk’s certificate, showing the judgment and allowance of the appeal, the judgment will, on motion, and the production of the clerk’s certificate showing these facts, be affirmed, no cause to the contrary appearing.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>To maintain their defense appellants were obliged to show, first, fraud on the part of the mortgagors; and, second, knowledge of and participation therein by the mortgagees. Shelley v. Booth, 73 Mo. 74; Peering v. Collins, 38 Mo. App. 73; Morgan v. Wood, Id. 255.</p> <p>If the mortgagors in good faith and for the purpose of securing a dona fide indebtedness gave the mortgage in question, or even if they gave it with a fraudulent intent, yet if the mortgagees took the mortgage to secure a valid indebtedness, and either did not know of the fraudulent purpose of the mortgagors, or, if knowing of such fraudulent purpose, they did not participate therein, in any of these events the case of the mortgagees is completely established. Alterger v. White, 117 Mo. 347; Peering v. Collins, 38 Mo. App. 73; Shelley v. Booth, 73 Mo. 74.</p> <p>While plaintiff’s petition embraces all the property levied upon, at the trial he limited his evidence in regard to the value thereof to the articles described in the indemnity bond, and also embraced in the chattel deed of trust. Kamerich v. Castleman, 29 Mo. App. 659; Wetzel v. Waters, 18 Mo. 396; Kreher v. Mason, 25 Mo. App. 291; Palmer v. Shenhel, 50 Id. 571.</p>

<p>Appeal from the Si. Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge.</p> <p>The court erred in refusing the witnesses of defendant to testify in regard to the genuine signature offered to be proved for the purpose of comparison, and in refusing to permit them to compare writing of defendant, which had been admitted to be genuine, with the check in suit and submit their evidence to the jury. Sec. 8944a, Sess. Acts, 1895, p. 284.</p> <p>The court erred in sustaining plaintiff’s objection to the inquiry of defendant on cross-examination, tending to inquire into the diligence used by plaintiff when he received the check, and to show that if he had made inquiry he would have ascertained facts which would have precluded him from being an innocent purchaser. Meier v. Bloom, 80 Mo. 179; Vaughn v. Tracy, 22 Id. 415.</p> <p>The court improperly instructed the jury requiring “actual notice of any facts impeaching its validity,” actual, presumptive, and constructive notice, not being defined to .the jury. Moreover, in this case actual notice was not necessary. Abbe v. Justus, 60 Mo. App. 300; Drey v. Doyle, 99 Mo. 459; Buel et al. v. St. Louis T. Co., 45 Id. 562; Mueller v. Putnam Ins. Co., Id. 85; Wiser v. Ghesley, 53 Id. 547.</p> <p>The check in question was negotiable commercial paper. Famous Shoe é C. Co. v. Crosswhite, 124 Mo. 34.</p> <p>The general doctrine of notice, as it affects the good faith of the transaction, does not apply to negotiable commercial paper. Hamilton v. Mackey, 60 Mo. 178; Mayes v. Robinson, 93 Id. 122; Jennings v. Todd, 118 Id. 296-303.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The court erred in overruling plaintiff’s objections to defendant’s testimony, which was immaterial and altered and varied the written contract with defendant. Lemon v. Lloyd, 46 Mo. App. 452; Gelatt v. Ridge, 117 Mo. 553; Phiston v. Grove, 48 Mo. App. 455; Pearson v. Carson, 69 Mo. 97. The court erred in giving the instructions asked by defendant, and refusing instructions asked by plaintiffs. Melton v. Dunlop, 22 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The statement filed must be verified by the affidavit of the landlord or his agent; if not, the justice is without authority to issue a summons or proceed with the cause. Jaffray v. Claplin, 119 Mo. 117; Whitson’s Fst., 89 Id. 58; Norvell v. Porter, 62 Id. 309; Huthsing v. Maus, 36 Id. 101; Lewin v. Dille et al., 17 Id. 64.

<p>1. Corporation, Foreign: suit for price of stock: plea, fraudulent REPRESENTATIONS: EVIDENCE: LIABILITY OF PURCHASER. In a suit by an Illinois corporation, authorized to do business in Missouri, for the price of certain shares of its capital stock, donated to plaintiff by the original holders, and sold and transferred to defendant at less than its par value, to be full paid and nonassessable, where the defense was that defendant had been induced to make the purchase by fraudulent representations of plaintiff’s agents as to its capital stock and assets, and there was evidence tending to show that a certain invention received in payment for the original issuance of such stock had no substantial market value, and was not salable in plaintiff’s hands, and there was also evidence tending to show that defendant was fully apprised of the nature and extent of such consideration, and that such stock had been issued, as full paid and nonassessable, to the transferrer of the patent right to such invention so received in payment of plaintiff’s stock — Held: That such transaction, though not conclusive against the creditors of plaintiff, was conclusive between plaintiff as donee and defendant as purchaser of its stock.</p> <p>2. -: CONTRACT, CONSTRUCTION OF: CONTEMPORANEOUS WRITING: evidence. In such action, where a printed statement, attached to the contract in question, and introduced in evidence, was contemporaneous with and part of the transaction, the court did not err in construing the contract in the light of such statement.</p>

— Hon. C. A. Anthony, Judge. (1) It is thus seen that plaintiffs do not claim, first, that the contract was not fairly entered into; or, second, that plaintiffs’ agent was in ignorance of its terms; or, third, misapprehended them; or, fourth, that he did not read the contract. No mistake, imposition, deception, misrepresentation, fraud, unfairness, or oppression is charged, and plaintiffs admit that they signed the contract.

— Hon. D. P. Stratton, Judge. (1) The court sustained a demurrer to plaintiffs’ evidence and for the purpose of determining the propriety of its action in so doing, the rule is that the demurrer admits everything which the evidence conduced to prove, though but in a slight degree. Wilson v. Board of Education, 63 Mo. 137; Buesching v. Gaslight Co., 73 Mo. 219. (2) The first proofs of loss were sufficient.

— Hon. A. M. Woodson, Judge. (1) In the event of the death of the engineer nothing could have been found in his office to answer the call of the ordinances for plans and specifications. He did not even communicate to the council his intention to adopt the St. Joseph avenue specifications. Becker v. City of Washington, 94 Mo. 375; Galbreathv. Newton, 30 Mo. App. 380. Those two cases suggest the limit to a rule which at best is a perpetual menace..

— Hon. E. J. Broaddus, Judge. (1) The deed of November 26, 1895, was construed by the court as a general deed of assignment to be administered under the statute. Under the evidence and by the law of this state it is not such a deed. Hurgadme v. Henderson, 97 Mo. 375; In re Assignment of Zioang, 39 Mo. App. 356; Buggy Co. y. Woodson, 59 Mo. App. 550; Jajfrey v: Matheivs, 120 Mo. 317; Hasse v. Distilling Company, 64 Mo. App. 131. This is also the law in other jurisdictions.

— Hon. John A. Hockaday, Judge. The depositions of John E. Field and J. J. Walley, offered and read in evidence by plaintiffs, should have been suppressed. The alleged notary who' took the depositions certified that he took them in the city of Denver, Arapahoe county, and state of Colorado. It is absolutely necessary for the depositions to be taken at the exact time and at the exact place' where the opposite party is notified they will be taken.

— Hon. W. W. Rucker, Judge. (1) The petition is insufficient to • authorize the introduction of any evidence, and appellant made timely objection thereto. R. S. 1889, see. 7479; Hamilton v. -Clark, 25 Mo. App. 428; Crum v. Elliston, 33 Mo. App. 590; Foundry Co. v. S chías s, 43 Mo. App. 304; Huff v. Henry, 57 Mo. App. 341; Lockhart v. Little, 30 S. O. 326; 20 Am. and Eng. Ency. of Law, sec. 4, p. 1095; Rosentutes v. Brady, 63 Mo. App. 398.

— Hon. W. W. Rucker, Judge. (1) The debt due from Thomas to plaintiff, which was collected under the garnishment, was not such property as the statute (R. S. 1889, sec. 4903) specifically exempts from execution to the head of a family, but becomes exempt only when claimed in lieu of specifically exempt property under the provisions of Revised Statutes, 1889, section 4906.

— Hon. W. W. Rucker, Judge. (1) Although the defendant did not return the horse to the plaintiffs, it was competent for him to interpose the defense of failure of consideration when sued on the note given for the purchase price of the horse. R. S. 1889, sec. 2090, p. 548; 1 MeQuillin’s Pleading and Practice, sec. 373. And defendant was not precluded from making such defense because he had made some payments on the note. Werner v. O’Brien, 40 Mo. App. 483.

— Hon. Rudolph Hirzel, Judge. (1) In an action by a father seeking to recover more than compensatory damages against one who has debauched his daughter, he must allege and prove that the debauching was the result of a seduction. Smith v. Young, 26 Mo. App. 575. (2) In case of criminal connection without seduction damages are confined to loss of service. Hillv. Wilson, 8 Blackf. (Ind.) 123.

— Hon. D. W. Shackleford, Judge. The court erred in giving defendant’s instruction number 2. No such implication arises where one calls in a physician to attend upon a person to whom he is under no legal obligation to furnish necessaries. Meisenbachv. Cooperage Co., 45 Mo. App. 232; Veitch v. B/ussell, 3 Ad. &E11.,(N. S.) 927; Sellen v. Norman, 4 Car. 80; Crane v. Baudouine, 55 N. Y. 256; Smith v. Watson, 14 Yt. 332. This rule holds good between father and son.

— Hon. Richard Field, Judge. (1) At common law a judgment was not assignable so as to vest the legal title in the assignee; the only interest which he acquired by his purchase was an equitable interest, and he took the judgment subject to all equities that might exist in favor of the judgment debtor at the time of the assignment.' He, could not maintain an action on .it in his own name and was not a necessary party to a scire facias to revive the judgment.

— Hon. Richard ♦ Field, Judge. (1) There was no evidence whatever offered by the defendant, or introduced at the trial, tending to show payment of the note sued on, or to show that the witness Samples was substituted by agreement as the debtor of the payee of the note, and that the makers had been thereby released. Short merely notified Samples that he held a lien for the corn grown on the premises, and advised him to hold the money back for him.

Richard Field, Judge. '(1) There was no waiver of proofs of loss under the policy sued on in the second count of plaintiff’s petition.. Investigation by the adjuster does not waive proofs. Briggs v. Ins. Co., 31 N. W. Rep. (Mich.) 616; Beatty v. Ins. Co., 66 Pa. St. 9. (2) The defendant’s letter of November 27, was a plain requirement that proofs of loss should be furnished. It was received long before the time for making them expired.

— Hon. Richard Field, Judge. (1) Plaintiff’s evidence shows that he utterly failed to comply with the reasonable condition of the policy that he should keep a set of books, showing a complete record of business transacted, including all purchases and sales for cash and credit. Crigler v. Ins. Co., 49 Mo. App. 11; Landman v. Ins. Go., 18 Ins. L. J. (La.) 813; Kelly Coodfellow Co. v. Ins. Co., 33 S. W. Rep. (Tex.) 554; Pelican Co. v.'Wilkerson, 13 S. W. Rep. (Ark.) 1103; Ins.

— Hon. Richard Field, Judge. (1) The court committed error in refusing to sustain defendant’s demurrer to plaintiffs’ amended petition because said petition failed to state a cause of action in this, that it failed to charge that the acts complained of were done either negligently, unlawfully, maliciously, knowingly, or willfully. An actionable nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.

— Hon. Riohaed Field, Judge. (1) The court erred in admitting evidence of the acts and declarations of the alleged agent before the plaintiff had made a prima facie case of agency. Evidence of acts and declarations of agent are admissible only when such acts and declarations are within the scope of authority. Mechem- on Agency, secs. 100, 714, 716; 1 Greenleaf on Evidence, secs. 113, 114; 1 Am. and Eng.

— Hon. Aeg-us Cox, Judge. (1) Defendants’ demurrer to evidence ought to have been sustained and judgment rendered for them. The presumption is that Hollenbeck in taxing the costs did his duty. Hammond v. Gordon, 93 Mo. 223; Thomas v. Williams, 99 Mo. 291. Relator did not attempt to show that any costs were illegally taxed, except by the judgment of the Greene county circuit court, which is not binding on any of these defendants, because: First.

— Hon. E. C. Crow, Judge. (1) Under the following authorities we might be justified in the contention that it would have been perfectly competent for those creditors of Cohn to have proceeded in their own name, though that would have been inconvenient on account' of their number.

— Hon. E. C. Crow, Judge. (1) There was no evidence to warrant the submission of the case to the jury, and the court should have given the peremptory instructions- asked by the defendant to find for the defendant.

— Hon. Howard Gray, Special Judge. The cause should be reversed because the record shows on the face thereof that the circuit court had no original jurisdiction of the subject-matter of the action. R. S. 1889, sec. 3318, act of the legislature approved April 1, 1891; Session Laws 1891, p. 107; Mason v. Hannah, 30 Mo. App. 190; R. S. 1889, sec. 6168, as amended by act of the legislature approved February 25, 1891; Session Laws 1891, p. 174; State v. Davis, 16 Atl.

— Hon. D. P. Steatton, Judge. (1) Plaintiff is not entitled to relief asked for the reason his district has not been deprived of a portion of its territory since April, 1895, by an extension of the city limits. See section 2, 8097a, page 260, Session Acts 1895. Plaintiff’s district was deprived of a portion of its territory by reason of the amendment of section 8083 making the school boundary and city boundary the same.

— Hon. D. P. Stratton, Judge. (1) Plaintiff’s petition states a suit to redeem the land in controversy. The proof shows' no valid contract' in writing; the ease is within the statute of frauds; therefore the court committed reversible error in refusing defendant’s peremptory instruction number 1, directing a verdict in favor of the defendant.

— Hon. E. L. Scarritt, Judge. (1) There is no evidence of either actual or constructive notice to the city of the alleged defect in the sidewalk causing the injury. Yocum v. Trenton, 20 Mo. App. 489; Salmon v. Trenton, 21 Mo. App. 182. (2) The court erred in admitting the testimony of S. K. Howe and Peter Hocker, Parkhill v. Brighton, 61 Iowa, 103. (3) The damages assessed are excessive. (4) The court erred in refusing to give defendant’s instruction number 11, as asked.

— Hon. J. A. Hockaday, Judge.- (1) The affidavit for appeal should be filed immediately after judgment is rendered and the transcript of the justice should affirmatively show this. R. S. 1889, sec. 4362; State v. Epperson, 4 Mo. 90; State v. Cox, 9 Mo. 180; State v. Thomas, 10 Mo. 235; Beore v. Staeckler, 49 Mo. App. 547; Hastings v. Hennessy, 52 Mo. App. 177; The City of BeSotov. Merciel, 53 Mo. App. 57; State v. Anderson, 84 Mo. 524.

— Hon. H. M.. Bamey, Judge.' (1) The plaintiff’s instruction number 12 is. erroneous. Held: and have given the credit relying on such member’s being so connected at the time the credit is given. Dowzelot v. Bcmlings, 58 Mo. 75; Cook v. Slate Co., 36 Ohio St. 135; Waite v. Dodge, 34 Yt. 181; 2 Bates on Partnership, sec. 609; Pope v. Bisley, 23 Mo. 185; Kahlo v. Mayer, 102 Mo. 96, 97; Thompson v. Bank, 111 U. S. 530.

— Hon. John A. Hockaday, Judge. Revised Statutes of 1879, section 6001, and Revised Statutes of Missouri, 1889, section 5888, provide that a notice shall be published in some newspaper notifying the policy holders that an assessment has been made by the board of directors of the company; and that if any person fails or refuses to pay said assessment for thirty days after the publication of said notice, and the delivery of a copy of the same to him, the board of directors may…

— Hon. John A. Hookaday, Judge. (1) The plaintiffs were only entitled to recover nominal damages in this case. Winkler v. B. B., 21 Mo. App. 109; Dulaney v. Sugar Befining Go., 42 Mo. App. 659; Bogan v. B’y, 51 Mo. App. 665. (2) The court erred in permitting the plaintiffs, over defendant’s objection, to assess the damages. This was a usurpation of the functions of the jury. Belch v. B. B., 18 Mo. App. 80; Kennedy v. Holliday, 25 Mo. App. 514; Watkins v. B’y, 44 Mo.

— Hon. Rudolph Hiezel, Judge. (1) It is submitted under the law the defense had the same right to have the services of a stenographer as to have a competent judge, and it is not denied that the stenographer was too sick to attend the trial. This fact being known to the court, affidavits in support of motion were not deemed necessary; (2) The evidence excluded from jury at instance of plaintiff was relevant to the issue and should have been submitted.

— Hon. D. W. - Shackleford, Judge. (1) The trial court erred in directing the jury to find for the plaintiff in the attachment. There was evidence tending to show that Merstetter had surrendered or returned the cash register to the appellant’s attorney and that the same had been accepted in payment of Merstetter’s indebtedness. Whether there was in fact a delivery of possession to appellant’s attorney raised an issue of fact which should have been submitted to the jury.

— Hon. D. W. Shackleford, Judge. (1) The exclusion of the parol evidence of Mary E. Young and Nellie Young offered to prove misrepresentations made by the attorney who drew the contract, as to the legal effect and operation of the instrument, were rightly excluded by the court, upon the first ground of objection made by the plaintiff, viz.: that such evidence can not be received to alter, vary, or contradict the writing. 1 G-reenleaf on Evidence [13 Ed.], chap. 15, sec. 275,…

— Hon. O. L. Dobson, Judge. (1) It is true that some kinds of constructive fraud are cured by subsequent possession taken (where mortgagor retains and sells for his own benefit). These cases, at first blush, seem to be against us.

— Hon. J. H. Lay, Judge. (1) The court erred in striking out part of the amended answer. It constituted a valid defense to the cause of action alleged in the petition. (2) In their petition the plaintiffs allege a cause of action at common law for negligence; in their proof, they rely upon-section 2615, Revised Statutes, 1889, making proof of negligence unnecessary where property is destroyed by fire communicated from an engine.

— Hon. P. C. Stepp, Judge. (1) The tax bill and ordinances authorizing the same are void for the reason the resolution declaring said work necessary was not published for two weeks, as required by law. Laws 1893, sec. 110, p. 92; Leonard v. Sparks, 63 Mo. App. 585; Leavitt v. Eastman, 77 Me. 177. (2) The tax bill is void on its face.

<p>Appeal to Supreme Court ■ from Texas Circuit Cou/rt. Hon. C. C. Bland, Judge.</p> <p>Transcript of record filed by inadvertence in appellate court.</p>

<p>Parties, Substitution of After Entry of Final Judgment. One asking to be substituted as party plaintiff in an action after final judgment and decree entered, on the ground that he has purchased plaintiff’s interest in the subject-matter of the action, whose grantor was not a party to such action when the final judgment and decree was entered therein, has no standing in court.</p>

— Hon. Benjamin E. Turner, Judge. When a note is taken by the husband in the name of himself and wife the survivor takes title to the'same. 1 Bish. Law of Married Women, sec. 93, and cases cited; Pike v. Collins, 33 Me. 38-43; PCoy v. Rogers, 4 T. B. Mon. (Ky.) 225; Shields v. Stillman, 48 Mo. 86; 18 Am. Dec., note p. 382, and citations.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Plaintiff having alleged a sale, and asked commission, that being a material averment, he must either prove it or fail in the suit. There can be no recovery where there is a failure of proof of a material averment. Bramley v. Golden, 27 Mo. App. 160; Groll v. Tower, 85 Mo. 249. See, also, Clements v. Teates, 69 Mo. 623; Nutter v. Houston, 32 Mo. App. 451.

<p>Appeal from the Texas Circuit Court. — Hon. C. C. Bland, Judge.</p> <p>Transferred to supreme court.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The matter, apparently restricting the obligation to liens for work, fixtures, and materials done and furnished, is mere recital. The covenant of indemnity following this recital is clear in its terms, and unlimited; and when clear and positive in its terms, it is' never restricted by recital. Elph. Inter., rule 36, pp. 129, 130; In re Baker, 51 Law Jour.

Louis City Circuit Court. — Hon. Leroy B. Vadliant, Judge. Under plaintiff’s general instruction the jury were, in effect, told that before defendants had the right to do the work in question, it was necessary to secure the consent of each one of the three persons named in the instruction. The use of the word “or” has been condemned as misleading. Guenther v. JR. JR., 95 Mo. 286 (296).

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The cause of action, if any existed, was statutory, and was barred by statute. Sec. 6775, R. S. 1889; Wood on Lim. [2 Ed.], p. 93. The judgment of the United States circuit court in Glenn v. Lucas Heirs was final, and a complete bar to this action. Leake on Con. [2 Ed.], pp. 76-85, 86;. Aclhins v. Barnwell, 2 East, 505; Sale v. Blane, 14 Q. B. 205; 2 Whar. on Con., secs. 750, 765.

Louis City Circuit Court. — Hon. Pembrook R. Flit craft, Judge. An indorsee of a promissory note, transferred, even after maturity, takes it divested of all rights and claims arising out of independent transactions. Unsold v. Stevenson, 33 Mo. 163; Mattoon v. McDaniel, 34 Id. 140; Arnot v. Woodburn, 35 Id. 101-103; Knous v. Given, 110 Id. 58; Hyd v. Basel, 43 Mo. App. 670.

<p>1. Vendors and Vendees: title: approval of attorney. Where a contract for the sale of real estate stipulates for an abstract title, showing fee simple in the vendor to be approved by an attorney, the approval of such attorney must be had before the vendee can be asked to accept the title.</p> <p>2. -: ABSTRACT SHOWING FEE SIMPLE TITLE: TITLE BY USER. Where a contract of sale of real estate stipulates for an abstract showing fee simple title to the bargained lands in the vendor, the abstract must show such title, and a title by adverse possession is not sufficient; nor does it matter that the vendee at the time of making the contract knew the condition of the title.</p> <p>S. -: performance: pleading. In an action by the vendee against the vendor for damages for failure to perform his agreement to furnish a title as agreed, it is sufficient to allege the vendee’s readiness and willingness to perform his contract.</p> <p>ON REHEARING.</p> <p>4. -: ABSTRACT SHOWING FEE SIMPLE TITLE: TITLE BY USER. Birge v. Book, 44 Mo. App. 69, distinguished.</p>

— Hon. D. W. Shackleeobd, Judge. (1) Under the allegation of the petition, evidence of waiver of proofs of loss (no proofs whatever having been made) was inadmissible. McNees v. Ins. Co., 61 Mo. App. 335. (2) Even if adjuster Luther Welsh, the only adjuster who saw the assured within the thirty days for making proofs, had waived proofs (and he did not), such waiver was not effective.

— Hon. C. L. Dobson, Judge. (1) Under the law of Kansas passed in 1868, said proceedings were all that was required to effect such change in the charter. Q-en. Stat. of Kan., 1889, par. 1169.

— Hon. W. W. Rucker, Judge. (1) The plaintiffs were properly joined in the action on the contract against the defendant. It is a contract made by the plaintiffs jointly as parties of the first part and the defendant as party of the second part.

— Hon. O. L. Dobson, Judge. (1) The filing or lodging of the original instrument sued on with the justice of the peace is absolutely necessary to give jurisdiction of the subject-matter of the action, and the justice can exercise no jurisdiction but that conferred by Revised Statutes, 1889, section 6139. Olin v. Zeigler, 46 Mo. App. 193; Ins. Co. v. Foster, 56 Mo. App. 197; Peddicord v. B. B., 85 Mo. 162; Dillard v. B. B., 58 Mo, 74.

— Hon. C. L. Dobson, Judge. ■ The court should have permitted the jury to pass on the question as to whether under the evidence the defendants purchased the goods with the intention of not paying for them. Herboth v. Gaal, 47 Mo. App. 255.

— Hon. E. L. Soarritt, Judge. (1) By section 5186, Revised Statutes, 1889, a lease for real estate for a term of one year or more must be in writing. And by section 5183, Revised Statutes, 1889, a lease can not be .surrendered unless it be by deed or note in writing signed by the party surrendering the same or his agent.

Error ' to the Jackson Circuit Court. — Hon. E. L. Scarritt, Judge. (1) Barnes paid the debt to relieve his own land of the incumbrances existing at the time of his purchase, and for the payment of which debt the land was the primary fund. Atherton v. Toney, 43 Ind. 215; Hancock v. Fleming, 103 Ind. 535.

— Hon. C. L. Dobson, Judge. (1) It is competent to ask the purchaser as a witness if he would have purchased had he not gone to plaintiffs and obtained information from them; also through whose influence he made the purchase, or what plaintiffs had to do in selling the property. Abbott’s Trial Evidence, p. 380; Mansell v. Clements, L. R. 9 Conn. 139; s. c., 8 Moak’s Eng. R. 449. Witness Clawges testified that he was a married man and the head of a family.

— Hon. E. L.. Scarritt, Judge. ’ (1) The judgment is not supported by the evidence in the case. The judgment should have been for the defendant notwithstanding the finding of the court that defendant was not an ‘Assessment plan,; company. See authorities cited under 2 below. (2) The agreed statement of facts specially stipulated that this case was to be submitted upon the question of forfeiture and waiver.

— Hon. J. H. Slover, Judge. (1) The court erred in admitting the resolutions of the directors and the bill of sale of the corporation, Meinrath Brothers & Company. 1 111. Stat., par. 20, 1886; Patterson on Corporations, par. 356; Taylor on Corporations [2 Ed.], par. 380; 1 Morawetz on Corporation [2 Ed.],par. 533and359; Lead Mining Co. v. Rem-hard, 114 Mo. 218. (2) The court erred in giving plaintiff’s instruction number 1.

— Hon. E, L. Scarritt, Judge. (1) Where there is no proof of loss, as the defendant claims there is not in this case, or if there was a proof of loss, whether it was sufficient or not, is a question for the court, and it is the duty of the court to take the case from the jury unless a waiver has been shown. Sheehan v. Ins. Co., 58 Mo. App. 351 at 356, 357; Maddox v. Ins. Co., 56 Mo. App. 343, 347; Gould v. Ins.

— Hon. E. L. Soakkitt, Judge. Demurrers were sustained to whole petition. Where injunction is only incident to decision of the whole case and claimant’s efforts are directed at the main thread and show no separately assessed damages against the injunction part alone, nó attorney fee damages are allowed. Anderson v. Anderson, 55 Mo. App. 268; Broivn v. Baldwin, 121 Mo. 136; State to use v. Eeckart, 62 Mo. App. 427 (430).

— Hon. D. P. Steatton, Judge. This was'neither a range heater or furnace, but was a Florida boiler; but whatever it was, it was a system of heating, ramifying the entire house; it was therefore a fixture. Goodin v. 'Ellardsville Hall, 5 Mo. App. 289; O’Brien v. Hansen, 9 Mo. App. 545; Donnewald v. Beal Estate Co., 44 Mo. App. 350; Bosnian v. Conlon, 57 Mo. App. 25; Davis v. Mugan, 56 Mo. App. 311; Bchulter v. Ins. Co., 1 Mo. .App. 285.

— Hon. D. P. Stratton, Judge. (1) On appeal from the probate court there is no-statutory authority to allow amendments. “Upon becoming possessed of the cause the court shall proceed to try the same anew,” means the same settlement tried before the probate court. R. S. 1889, sec. 292. (2) Even under the liberal statute of amendments applicable to appeals from justice courts, such an amendment as was permitted would not be allowable. Wehringer v. Ahlemeyer, 23 Mo.

— Hon. D. P. Stratton, Judge. (1) The court should have sustained defendant’s demurrer to the evidence at the close of plaintiff’s case; there was not a scintilla of evidence tending to prove that plaintiff was in possession of the premises, either actual or constructive, at the time of the alleged trespass. Hampton v. Massey, 53 Mo. App. 502; Limber é Milling Co. v. Zeitenger, 45 Mo.

D. P. Stratton, Judge. Any alteration of the. note in suit without the appellants’ (sureties) knowledge, made either with or without the knowledge of the-respondent (the payee in the note), operated to discharge appellants therefrom; and therefore instruction 3 given by the court is erroneous, and should not have been given had there been evidence authorizing it. Bank v. Armstrong, 62 Mo. 59; Bank v. Bunn, 62 Mo. 79; Bank v. Fricke, 75 Mo. 178; Robinson v. Berryman, 22 Mo.

<p>1. Appellate Practice: short appeal: criminal practice. Section 2253, Revised Statutes, 1889, does not apply to appeals in criminal cases.</p> <p>2. Municipal Corporations: fourth class cities: prosecution under ordinances: criminal cases. In cities of the fourth class under the Laws of 1895, page 65, prosecutions for the breach of ordinances are to be appealed as though criminal proceedings and in the same manner as prosecutions for misdemeanors,. and the same procedure applies.</p> <p>3. Cities of the Fourth Class: offenses before the law of 1895: retroactive. The application of the law of 1895 to a prosecution begun before its passage is not retroactive.</p> <p>4. Appellate Practice: record: affirmance. Where there is no bill of exceptions, and the record proper shows no error, the judgment will be affirmed.</p>

— Hon. E. O. Crow, Judge. (1) Appellant was not a stockholder of the association, but a creditor. Wildv. B. é L. Ass’n, 60 Mo. App. 200. (2) Under the laws of the state of Missouri, a building association has a right to borrow money. Wild v. B. é L. Ass’n, supra; R. S. 1889, sec. 2508; R. S. 1889, sec. 2816; R. S. 1889, sec. 2817; Detweiler v. Brechenhamp, 83 Mo. 45.

— Hon. Argus Oox, Judge. (1) If defendant agreed to furnish plaintiff the extras sued for, and also two machines for the sum of $210 for which plaintiff gave his note, the failure to furnish the extras constituted a partial failure of the consideration for said note. A partial failure of consideration is strictly a matter of defense, and not a counterclaim. Plaintiff admits that he was sued by defendant on his note and that said suit has been finally settled.

— Hon. W. W= Wood, Judge. (1) Defendant was authorized by law to lay its tracks in Grand avenue. Such use of the street is not a perversion from its original purpose. R. S. 1889, sec. 2543, subdiv. 4; Lockwood v. B’y, 26 S. W. Rep. 701; Manufacturing Co. v. B’y, 113 Mo. 308; Smith v. B.B., 98 Mo. 24; B’y v. B’y, 97 Mo. 468; Bude v. SL Louis, 93 Mo. 414; Gross v. B’y, 77 Mo. 321; Porter v. B. B., 33 Mo. 128; Lackland v. B. B., 31 Mo. 183.

— Hon. Richard Field, Judge. ■ (1) It stands admitted both, in plaintiff’s petition and instructions that plaintiff was a trespasser, and it therefore follows that the defendant’s servants in charge of the engine which injured him owed him but one duty, namely, not to wantonly or purposely run over him, and to use reasonable care and effort not to injure him after they saw him in a position of danger.

■Appeal from the Lafayette Circuit Court. — Hon. Richard Field, Judge. (1) It is essential either in trespass under our statute or in trover for the plaintiff to allege and prove that he had possession, actual or constructive, of the realty at the date of the defendant’s alleged wrongful entry upon it. Delandv. Vanstone, 26 Mo. App. 297; Hampton v. Massey, 53 Mo.'App. 501; Brown v. Hart-sell, 87 Mo. 564; Lindenboioer v. Bentley, 86 Mo. 515; Garner v. McCulloch, 48 Mo. 318.

— Hon. H. A. Hutchison, Special Judge. (1) Appellant was not a “wrongdoer” in restraining respondent’s hog from running at large on his premises. He had three days after restraining said hog in which to give notice to the owner thereof. See. 354, R. S. 1889. A party may steal an animal before it is posted. State v. Casteel, 53 Mo. 124. (2) The respondent had no complete right to the possession of the hog.

— Hon. D. W. Shaokleeord, Judge. (1) There is no evidence in this record as to the terms or conditions of the bond executed by defendants as sureties of O’Brien, the curator of plaintiff’s wards. Sureties are favorites in law and will not be bound beyondtbe strict ternas of their obligations. Brewing Co. v. Basen, 55 Mo. App. 277; State v. ChurchMll, 48 Ark. 426; 1 Brandt on Suretyship, secs. 92, 93.

<p>Appeal from the Chariton Circuit Court. — Hon. W. W. Ruckek, Judge.</p> <p>(1) The defendant Kuhler by his purchase of the hogs in question from John Tobin obtained the title thereto. Kuhler v. Tobin, 61 Mo. App. 576. (2) The alleged purchase of the hogs in controversy was made by the plaintiff Wren from John Tobin with actual notice and knowledge by Wren that the defendant William Kuhler had theretofore bought the same hogs from Tobin and made him a payment on the purchase to bind the bargain. With such knowledge Wren was not and could not be a bona fide purchaser. To be a bona fide purchaser, three things must be established: First, he must show that he has acquired the property by voluntary or involuntary transfer from the former owner; second, the property or an interest therein must be acquired for a valuable consideration; third, he must take the property in good faith and without notice of the defect in his vendor’s title. Tiedeman on Sales, see. 329. (3) The plaintiff Wren had paid nothing whatever on the hogs when the defendant Kuhler replevied them, nor had Wren at that time assumed any liability in anywise on account of his purchase, and therefore Wren’s purchase can not be upheld for want of consideration. Tiedeman on Sales, sec. 329, p. 533; Barnard v. Campbell, 58 N. Y. 76. “And he is a bona fide purchaser only to the extent of the consideration, which was transferred before learning of the defect of title.” Tiedeman on Sales, sec. 329, pp. 534, 535; Devoe v. Brandt, 53 N. Y. 462, 466; Lynch v. Beecher, 38 Conn. 490; Matson v. Melchor, 42 Mich. 477; Greenlee v. Marquis, 49 Mo. App. 294; Arnholt v. Eartwig, 73 Mo. 485; Faul v. Fulton, 25 Mo. 156, 163.</p> <p>(1) Appellant’s contention that the decision of this court in the case of Kuhler v. Tobin, 61 Mo. App. 576, was conclusive of the title as between Wren and Kuhler, is contradicted by the express language of the decision itself. (2) Kuhler paid $10 earnest money on a contract which he says bound him “ to take the hogs whenever they were ready.” If this was so, the risk was his and he was bound to take the hogs sick or well. If he refused to receive them because they were sick, as testified to by Tobin, then Tobin at his own election had the choice of three remedies. He could rescind the contract and keep the hogs as his own; or stand on the contract and sue for the full contract price: or sell the hogs to whomsoever he pleased and sue for the difference, if any, between market value and the contract price. He elected to sell the hogs, and such sale passed an absolute title to the purchaser. Lumber Co. v. Lumber Co., 51 Mo. App. 555; Anderson v. Frank, 45 Mo. App. 482; Vail v. B’y, 28 Mo. App. 372. (3) The sale to Wren was valid and complete notwithstanding the weight of the hogs and the precise amount of money to be paid had not been ascertained before the hogs were seized by the sheriff. Cunningham v. Ashbrook, 20 Mo. 553; Hamilton v. Clark, 25 Mo. App. 428.</p>