Volume 70 — Missouri Appeal Reports

— Hon. Andrew Ellison, Judge. (1) The petition is fatally defective, and fails to state a cause of action in this: It fails to allege that the relators were in possession of the mortgaged property under the mortgage at the time of the attachment; that relators were legally entitled to the possession at the time of the attachment; that thei’e had been any default in the payment of the mortgage debt or any part thereof ; or any breach of the conditions of the mortgage,…

— Hon. P. C. Stepp, Judge.' (1) Respondent city of Trenton fails to prove its own corporate existence as the record nowhere discloses that it has availed itself of the general laws authorizing cities and towns to become incorporated and courts will not take judicial notice of such incorporation. City of Hopkins v. B. B., 79 Mo. 98-100; State v. Hays, 78 Mo. 600-606; Bousey v. Wood, 47 Mo. App. 465-469; Spurloclc v. Dougherty, 81 Mo. 171-180.

— Hon. Paris C. Stepp, Judge. (1) “A partition of property, whether by deeds inter sese, or by the judgment or decree of court, effects the change of interest, title or possession against which the policy provided.” Trabue v. Ins. Go., 121 Mo. 75-81; s. c., 49 Mo. App. 331.

— Hon. P. C. Stepp, Judge. (1) When parties have put their agreement in writing and set their hands thereto they are bound by the conditions therein expressed. Nicholas v. Larkin, 79 Mo. 264, 270; Davis v. Smith, 15 Mo. 467; Gibson v. Perry, 29 Mo. 245; Wendell v. Osborne, 63 Iowa, 103; s. o., 18 N. W Rep. 709; Reeves & Go. v. Corrigan, 57 N. W. Rep. (N. D.) 80.

— Hon. Paris O. Stepp, Judge. ' (1) Plaintiff earnestly contends that the introduction of the chattel mortgage in evidence against his objection was a material and prejudicial error, for by this means the issue joined upon the note was transferred to the mortgage, upon which instrument no issue was raised by the pleadings.

— Hon. W. W. Rucker, Judge. (1) This case was tried by the court below on the theory that proof that the plaintiff’s property was destroyed by fire which escaped from the defendant’s steam engine of itself raised the presumption that the fire escaped by reason of the defendant’s negligence.

— Hon. G-eo. E. Longan, Judge. (1) The information is good. It sets out a good common law assault and battery charge, as contemplated by section 3492 of the Revised Statutes of Missouri of 1889, and follows approved precedents. R. S. 1889, sec. 3492; Wharton’s Precedents of Indictment and Pleas [3 Ed.], form 213-215, pp. 232-236. (2) The affidavit or complaint is no part of the information.

— Hon. Andrew Ellison, Judge. (1) - The administratrix had no authority to assign the stipulation. It was not a note or bond, within the meaning of the latter part of section 209 of article 9, chapter 1, Revised Statutes, 1889. Stagg v. Linnenfelser, 59 Mo. 336; Weil v. Jones, 70 Mo. 560; Richardson v. Dreyfus, 64 Mo. App. 600-604.

— Hon. P. C. Stepp, Judge. (1) A mortgage is a mere security for the debt, and until maturity or condition broken does not change the title. As the mortgages set up by defendant were not due, and no effort had been made to take possession or close them, there was no such change of title, interest or possession as would avoid the insurance. Ethirigton v.Ins. Co., 55 Mo. App. 129; Pease v. Iron Co., 49Mo. 128; Jecho v.Ins. Co., 7 Mo. App. 308; Morrison v. Ins.

— Hon. W. S. Herndon, Judge. Tbe deposition of defendant, Henrietta Peyton, should have been suppressed on plaintiff’s motion. A notice to take depositions on the ninth day of March, will not authorize the taking of them by adjournment from day to day on the eighteenth of March, without having commenced the taking on the ninth. Fox v. Carlisle S Mason, 3 Mo. 197, side page.

—Hon. W. 8. Herndon, Judge. (1) The indictment is insufficient in not stating with more definiteness the time and place of committing the alleged offense, and in not alleging to whom the whisky was sold. Under the indictment and the evidence in this case the defendant was not fairly put upon his defense. State v. Stegall, 65 Mo. App. 245.

— Hon. W. S. Herndon, Judge. (1) The residence of a corporation, if it can be said to have a residence, is necessarily where it exercises its corporate functions; it dwells in the place where its business is done; it is located where its functions are exercised; it is present where it is engaged in the prosecution of its corporate enterprises. 4 Am. and Eng. Ency. of Law, page 206, and note 2, and authorities cited.

— Hon. H. M. Ramey, Judge. (1) It was error to permit the stenographer to read from his notes of a former trial, evidence of defendant when he was present and testified at the trial of this case. Lesser v. Boekhoff, 38 Mo. App. 445. The giving of plaintiff’s instructions, numbers 1 and 2, was error. Davis v. Brown, 67 Mo. 313; Noyes,. Norman & Co. v. Cummings, 51 Mo. App. 194; Bank v. Overall, 16 Mo. App. 610; Bowen v. B. B., 75 Mo. 426; State v. Sivils, 105 Mo. 530.

— Hon. A. M. Woodson, Judge. (1) Defendant’s, instruction number 1 in the nature of a demurrer to the evidence should have been given. The rule of law is well settled in this state that a municipal corporation is not liable for tbe negligence of its officers in tbe execution of such powers as are conferred on the corporation or its officers for the public good.

— Hon. E. J. Bboaddus, Judge. (1) The court committed error in admitting the cross-examination of plaintiff so as to show an estoppel in pais, when the same was not pleaded against the objections of plaintiff. Hulett v. Stockwell, 27 Mo. App. 335.

— Hon. Andrew Ellison, Judge. (1) The petition is fatally defective because it fails to allege that the indemnity sued for was due and payable at the time of the filing of the petition. Ins. Go. v. Hall, 41 Pac. Rep. (Kan.) 69, loe. cit. 71, and numerous authorities cited. (2) The petition does not allege, either directly or inferentially, that the personalty destroyed by fire was at the time of the fire in the same place where it was insured. This is likewise a fatal defect.

— Hon. Andrew Ellison, Judge. (1) The accident did not occur at the crossing of a traveled public road or street. Failure to give the signals required by statute was, at most, only evidence from which the jury might find defendants guilty of negligence — it was not negligence per se. R. S. 1889, sec. 2608; R. S. 1889, ck. 140; Bauer v. R’y, 69 Mo. 219; Hodge v. R’y, 71 Mo. 50; State ex rel. v. R’y, 19 Mo. App. 104; State ex rel. v. R’y, 46 Mo.

— Hon. Argus Cox, Judge. (1) An interplea is in the nature of a replevin suit engrafted on the action of attachment, and can not be maintained in a partition suit. The action is allowed only in attachment suits,' where the personal property of some other person than the defendant has been seized. R. S. Mo. 1889, sec. 572.

— Hon. Paris C. Stepp, Judge. (1) When a party asks relief in a court of e.quity on the ground of fraud, it is necessary that the evidence adduced to establish the fraud should be clear and convincing.

— Hon. Cyrus A. Anthony, Judge. , (1) The alleged agreement of plaintiff, Leeper, to indemnify defendant, Paschal, against liability on note of I. E. Brown, in evidence, comes within the statute of frauds, ánd is not available as a defense, because not in writing. R. S. 1889, sec. 5186, p. 1257; Bissig v. Britton, 59 Mo. 204; Haeberle v. O’Dag, 61 Mo. App. 390; 8 Am. and Eng. Ency. of Law, pp. 678,679; Foster v. Napier, 74 Ala. 393; Willis v. Boss, 77 Ind. 1; 8 Am. and Eng.

— Hon. E. L. Scabbitt, Judge. (1) Petition does not state facts sufficient to constitute a cause of action and inconsistent causes joined. Eo consideration for promise to extend time. Swaggard v. Hancock, 25 Mo. App. 596; R. 8.1889, Frauds and Perjuries. (2) No proof that this defendant had notice of time extended by Griffin, verbally as alleged, and such extension not .good as against this defendant, if proven. R. S. 1889, see statute of frauds.

— Hon. P. C. Stepp, Judge. We submit that the plaintiff’s first instruction is too broad. The court tells the jury that they “will take into consideration all the facts and circumstances detailed in evidence” “in determining whether or not there was an understanding and agreement that plaintiffs would charge and should receive compensation for the services” claimed to have been rendered.

— IIon. C. A. Anthony, Judge. (1) The court erred in sustaining plaintiff’s motion to strike out the principal part of defendant’s answer. The portion stricken out sets up a good defense. (2) The written memorandum shows on its face that it is informal and incomplete, and evidence is admissible to explain it and show the additional terms. Sparks v. Brown, 33 Mo. App. 505; s. o., 46 Mo. App. 529; Finks v. Hathaway, 64 Mo. App. 186; Quick v. Glass, 128 Mo. 320.

— Hon. W. S. Heenlon, Judge. (1) There was an entire failure of proof. Evidence in a criminal case which merely causes a suspicion of guilt is not sufficient to sustain a conviction. State v. Ballard, 104 Mo. 634.- There was no evidence offered after the close of the state’s evidence in chief that tended to strengthen the evidence as to the concealment of the pistol carried by defendant. State v. Anderson, 81 Mo. 78.

— Hon. W. S. Herndon, Judge. The respondent was one of the sureties on the bond of the contractor. And respondent being the surety for Ward, the contractor, his own claim for material that went into the building over and above the contract price could itself be set up as a set-off and counterclaim. Beits v. Leete, 28 Mo. App. 540. The appellate court can not revise the verdict of a jury on conflicting evidence. Donovan v. Ryan, 35 Mo. App. 160; Malting Co. v. Miller, 38 Mo.

— Hon. W. S. Herndon, Judge.- (1) An accord and satisfaction is the substitution of another agreement between the parties in satisfaction of the former one, and an execution of the latter agreement. 3 Blackstone, Com., p. 15; 1 Am. and Eng. Ency. of Law, p. 94; Dry Goods Go. v. Gross, 65 Mo. App. 57. (2) Courts are liberal in their construction of the plea of accord and satisfaction, and will often hold the plea good although informal.

— Hon. W. S. Herndon, Judge. (1) The court erred in overruling the motion to quash the indictment for the reason the indictment charges the defendant with the commission of two separate and distinct offenses and has improperly joined them in one indictment. Maxwell, Criminal Procedure, sec. 53-516; Bailey v. State, 40 S. 442; B. B. v. Trueman, & C. & P. 727; State v. Nelson, .29 Mo. 329; Com. v. Hill, 10 Cash. 539; Com. v. Sullivant 104 Mass. 552.

— Hon. H. M. Ramey, Judge. (1) It not appearing how the mortuary benefit was created or limited, it must be assumed that it was payable “at such time and in such manner” as the corporation had power to provide. It had the power to provide this benefit for the relief and aid of the member himself, and could permit him by testament to appropriate it to defray the expenses of his last sickness and funeral.

— Hon. A. M. Woodson, Judge. (1) We maintain that it was the duty of the plaintiff on learning of the forgery to elect which remedy it would pursue; whether on the original debt, and tender the discount or profit of the forged note, or whether it would keep the ten per cent discount and sue upon the forged note. Mason v. Jacob, 93 Mo. 331; Johnson v. Bank, 116 Mo. 558.

— Hon. E. J. Broaddus, Judge. (1) N-o evidence should have been allowed under the amended statement, because it does not state facts sufficient to constitute a cause of action. It was not the same cause of action upon which the case was tried before, either in the circuit or appellate court. In the former trial plaintiff claimed that the Wabash Railroad Company killed and injured the stock, in controversy. (See statement and opinion 65 Mo. App. 649).

■ Appeal from the Carroll Circuit Court. — Hon. W. W. Ruoker, Judge. (1) The court obviously erred in giving instruction number 2 at the request of the plaintiff. The instruction is erroneous for the reason that it failed to inform the jury of the proper elements of compensation within the meaning of the law.

— Hon. P. C. Stepp, Judge. (1) The court committed error in giving instruction number 5 on the part of the plaintiff, which assumed as a fact a material allegation of the petition, viz., that the derrick was a dangerous machine, which allegation was controverted by defendant by both the answer and evidence. Natta v. R’y, 133 Mo. 13; Fullerton v. Fordyce, 121 Mo. 1; Dulaney v. Sugar Company, 42 Mo. App. 659; Wright v. Fonda, 44 Mo.

— Hon. W. S. Herndon, Judge. (1) The court erred in refusing to permit appellant to prove that respondent in 1888 conveyed by deed to Railey, in trust for ¥m. Pence, curator, to secure the payment of a note for $1,200, which at the time this suit was instituted and at the time of the trial, was due and unpaid, all of the land described in the warranty deed executed to him by appellant’s intestate, George Gabbert, deceased.

— Hon. H. M. Ramey, Judge. (1) The plaintiff relies for recovery solely on the ground that the defendant negligently operated the saw in question without any guard or wedge.

— Hon. A. M. Woodson, Judge. (1) The finding does affirmatively state that defendant’s and plaintiff’s transactions were controlled by the written contracts set out in the answer; and if the contract of 1894 was, as alleged, a renewal of the contract of 1893, then the question is upon the construction of said contract. The fourth paragraph of the report necessarily implies that the contract for 1893 was renewed and continued for 1894.

— Hon. H. M. Ramey, Judge. (1) The four notes for $125 each bore the indorsement in blank of the payee therein, Norton Blake. They were in the plaintiff’s possession as owner, and were claimed by him; the burden of proving otherwise rested upon the defendant; and in the total absence of all evidence in that direction, the court should have instructed the jury to find as to that item of the set-off in favor of the plaintiff.

— Hon. E. J. Beoaddus, Judge. (1) The court erred in overruling the relator’s motion. * The relator’s petition in this case stated a meritorious -'cause of action. (2) Writs of certiorari are in the nature of writs of error and operate in a similar way. B. B. v. Young, 96 Mo. 39. Relator was not guilty of laches in suing out its writ. State ex rel. v. Bowerman, 40 Mo. App. 577; R. 8. 1889, sec. 8028; 4 Ency. of Plead, and Prac., pp. 176, 181; State ex rel. v. Cauthorn, 40 Mo.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. A lawyer does not insure the correctness of his opinions. To render him liable, the error must have been such as no lawyer of average capacity would have made. Watson, v. Muirhead, 57'Pa. St. 161; Morrill v. Graham, 27 Texas-, 646; Bounan v. Tollman, 27 How.

— Hon. J. E. G-reen, Judge. The deceased wife knew of the dangerous condition of the sidewalk, ‘and in attempting to pass over it in such condition was guilty of contributory negligence. Dill, on Mud- Corp., sec. 789; Boyd v. Springfield, 62 Mo. App. 456; Bruker v. Covington, 69 Ind. 33; Parkhill v. Brighton, 61 Iowa, 103. The deceased wife by the use of the sense of sight, could, under the existing circumstances, have seen the opening in time to .have averted the injury.

<p>Appeal from the Lawrence Circuit Court. — Hon. Joseph French, Special Judge.</p> <p>The petition is not sufficient to support a judgment. State to use v. Bacon, 24 Mo. App. 403 at 406; Bank v. Fisher, 55 Id. 53; Inhabitants v. Williams, 53 Mo. 141; Fraser v. Roberts, 32 Id. 457; Jones v. Fuller, 38 Id. 366, 367.</p> <p>There was no evidence to support the allegations of the petition, intended to be pleaded, and the case should have been taken from the jury at the close of plaintiff’s evidence. Berning v. Medart, 56 Mo. App. 443; Carroll 'v. Interstate B. T. Co., 107 Mo. 653; Powell v. B, B., 76 Id. 80; Lenox v. B. B., Id. 86; Beichenbach v. Ellerbe, 115 Id. 588, 595; McCartney v. Finnell, 106 Id. 445.</p> <p>The court erred in permitting witnesses to testify, over defendant’s objection, to mere mathematical calculations and logical conclusions from false or imaginary premises, to influence the jury in awarding damages. Hurt v. B’y, 94 Mo. at 260; Weaver v. B’y, 60 Mo. App. at 210; Belch v. B. B., 18 Id. at 83; Birney v. B. B., 20 Id. 410.</p> <p>The instructions given in behalf of plaintiffs were contradictory, misleading, and erroneous, especially number 3, giving the court’s definition of a compliance with a written contract. Gregory v. Singleton, 54 Mo. App. 60; Frederick v. Algaier, 88 Mo. 603; Stevenson v. Hancock, 72 Id. at 614; Hickman v. Link, 116 Id. 123; Bankston’s Adm’r v. Farris, 26 Id. at 177.</p> <p>The court erred in refusing the instructions offered by defendant, particularly instruction number 17, that if plaintiffs voluntarily surrendered the premises to defendant, they could not recover. Kraft v. Boyd, 32 Mo. App. at 401; Mackler v. Cramer, 32 Id. 550; Bowland v. City of Kansas, Id. 8.</p> <p>The verdict and judgment are contrary to the admitted facts. Holt v. Martin, 53 Mo. App. 188; Keivland College v. Borck, 44 Id. 19; Wilburn v. B’y, 48 Id. 224; Mauerman v. R’y, 41 Id. 348; Boggess v. B’y, 118 Mo. 328.</p> <p>For a violation of plaintiff’s covenants they forfeited all rights to mine or search for ore, and defendants had a perfect right of re-entry. Lunsford v. Lead Co., 54 Mo. 426; Boone v. Stover, 66 Id. at 435; Ghynowitchv. Mining Co., 74 Id. 174.</p> <p>The petition in this case is good under repeated decisions of our courts. Kerr v. Simmons, 82 Mo. at 275.</p> <p>Where there is any evidence, which tends to establish the complaint or defense, from which the jury might reasonably infer the essential facts, the courts should not take the case from the jury. Twohey v. Fruin, 96 Mo. 104.</p> <p>The testimony of plaintiff as to payment of royalty in computing damages, was not speculative, nor a mere expression of opinion by a non-expert witness, and does not fall within the rule laid down in Hurt v. II. B., 94 Mo. 261.</p> <p>Plaintiffs held the premises in controversy under a lease, and not under a license. Boone v., Stover, 66 Mo. 430.</p> <p>The character of work done upon the premises by respondents and their subtenants between the time their plant was destroyed by fire, and the date of the alleged forfeiture under the lease, would avoid such forfeiture; or, at least whether such work was a substantial compliance with the lease, was a question for the jury. Mineral Land Go. v. Boss, 36 S. W. Rep. (Mo.) 216.</p> <p>appellant’s beply.</p> <p>The facts in this case are entirely different from those stated in Mineral Land Co. v. Boss, cited by respondents, and it has no application.</p>

— Hon. J. F. Green, Judge. Trial can not proceed against a prisoner for an offense for which he has not been arraigned, and of which he has not pleaded guilty. State v. West, 84 Mo. 440; State v. Barnes, 59 Id. 154; State v. Saunders, 53 Id. 234. A justice of the peace has special and limited jurisdiction, and must proceed in all cases in the mode prescribed by statute.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The reply is a departure from the cause of action stated in the petition, and defendant’s motion to strike it out ’should have been sustained. Stephen on PI. 354; Gould’s PI. 28; 1 Bouv. Law Diet., 460; R. S. Mo. 1889, sec. 2052, p. 543; State v. Grimsley, 19 Mo. 177; Mortland v. Holton, 44 Mo. 64; Philibert v. Burch, 4 Mo. App. 470; Magruder v. Admire, Id. 133; Suman v. Ireman, 3 Id. 596; Hillv.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>The court erred in overruling defendant’s demurrer to plaintiff’s evidence. Bank v. R’y, 42 Mo. App. 291; Bymock v. R’y, 54 Id. 460; Hurt v. Ford, 36 S. W. Rep. 674; Hanson v. Jacobs, 93 Mo. 343; City, etc., v. Bank, 34 S. "W. Rep. 90; Skilling v. Boll-man, 73 Mo. 683; Matheny v. Mason, Id. 683; Idahoe case, 93 U. S. 575; R. S. Mo. 1889, secs. 744, .745. The instruction given by the court of its own motion is erroneous.' Kauffman v. Christophel, 62 Mo. App. 100; Ittner v. Hughes,'34 S. W. Rep. 1113; Gay v. Tielmeyer, 64 Mo. App. 112; Schro'eder v. R’y, 108 Mo. 326; Ashby v. Shaw, 82 Id. 81; Hanson v. Jacobs, 93 Mo. 343; Capíes v. R’y, 17 Mo. App. 15.</p> <p>The court erred in refusing to give the instructions asked by defendant. City, etc., v. Bank, 34 S. W. Rep. 90; Bank v. R’y, 42 Mo. App. 291.</p> <p>The judgment and verdict are excessive. Capíes v. R’y, 17 Mo. App. 15.</p> <p>The demurrer interposed by defendant to plaintiff’s evidence was properly overruled. Bank v. R’y, 132 Mo. 492; Hendricks v. Evans, 46 Mo. App. 313.</p> <p>The instructions given by the court of its own motion correctly state the law. Clough v. Holden, 115 Mo. 364; Reichenbach v. Ellerbe, Id. 595; Magaffin v. R’y, 102 Id. 543; Scharffv. Meyer, 133 Id. 428.</p> <p>The instructions offered by defendant were erroneous. DuvenicJc v. R’y, 57 Mo. App. 550; Rogan v. R’y, 51 Id. 665; Scharffv. Meyer, supra.</p> <p>A bill of lading is both a receipt and a contract. The receipt may be contradicted, the contract can not. Lawson on Con. of Car. 132; Ray, Neg. Imp. Duties Frt. Car., secs. 25, 136, 139, 143.</p> <p>An as effective transfer of ownership and right to possession may be made by the transfer of the bill of lading as can be made by a physical delivery of the goods themselves.- 2 Am. & Eng. Ency. Law, 240; Means v. Bank, 146 U. S. 627; Conard v. Ins. Co., 1 Pet. 386; Bows v. Bank, 91 U. S. 618.</p> <p>When the defendant failed to deliver the goods in accordance with the terms of the contract it took upon itself the burden of proving that the consignor was not the true owner of the goods when the contract was entered into, and that it did make delivery to the true owner. Wolff v. R’y, 93 Mo. 473; Colgate v. Pa. Co., 102 N. Y. 120; Bank v. R. R., 106 Id. 195, 579; Idaho case, 93 U. S. 575.</p>

<p>Criminal Law: misdemeanor: sale oe intoxicating liquors by proprietor oe drug store. Thejiwner or part owner of a drug store is not amenable to the provisions of the dramshop law, but under the law governing sales of intoxicating liquors by druggists (E. S. 1889, sees. 4611-4622). State v. Williams, 69 Mo. App. 286.</p>

. Appeal from the Butler Circuit Court. — Hon. C. L. Keaton, Special Judge. The petition does not state a cause of action against appellant. 1 Pom. Eq. Juris. 178; 2 Jd,.pp. 911-914.. There was no partnership in a legal sense. Bank v. Sato Co., 104 Mo. 425. If there was a partnership, then defendant, Kolb, had full power and authority to sell, pledge, or otherwise dispose of any effects belonging to the partnership for any purpose within the scope of the partnership.

— Hon. Henry C. Riley, Judge. The court should have sustained the motion for-security for costs. R. S. 1889, sec. 2916. The court should have granted plaintiff’s request to send the case to Madison county, upon the application for change of venue, that county being most convenient to plaintiff. R. S. 1889, sec. 2262.

— Hon. Rudolph Hirzel, Judge. A garnishment proceeding can not be based on a void judgment. France v. Evans, 90 Mo. 74. Nor on an execution, where the garnishee is summoned after the return day named therein. Bank v. McDonald, 46 Mo. 31. Nor on process served by one not authorized to serve it. Fletcher v. Wear, 81 Mo. 524. It is both the right and duty of the garnishee to make defense that the court has no jurisdiction of the subject-matter or of defendant.

<p>1. Agency, Continuing: presumption: evidence. The fact that one had acted for plaintiff in the' negotiation of a loan, raised no presumption that he continued as her agent for the purpose of collecting it; and an objection to a question asked plaintiff on cross-examination, whether she had formally revoked the original agency, was properly sustained.</p> <p>2. _: issue: instructions: finding. Held: That the only issue in this case was whether the agency was a continuing one; and this issue having been found against defendants upon instructions which fairly presented the law, they had no just ground of complaint.</p>

Louis City Circuit Court. — Hon. James E. Withbow, Judge. An instruction not 'warranted by the evidence is erroneous. Benjamin v. Street B’y, 50 Mo. App. 602; Cross v. B’y, 56 Id. 664. Punitive damages can not be recovered, unless it appears that the act complained of was unlawful, and was also wanton and malicious. State, etc., v. Bungling, 116 Mo. 162. An instruction, asked by defendant, on the ‘‘accident theory,” should have been granted.

Louis City Circuit Court. — Hon. John M. Wood, Judge. Personal property is not deemed to have been reduced to possessio-n by the husband by his use, occupancy, care or protection thereof, but the same remains the separate property of the wife, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sue, incumber, or otherwise dispose' of the same for his own use and benefit.

— Hon. J. G„ Wear, Judge. The proof does not establish adultery on the part of the wife. Brown v. Brown, 53 Mo. App. 453. The proof shows that defendant connived at the offense charged, which would bar him from taking advantage of it. Morrison v. Morrison, 136 Mass. 310; 2 Bish. on Mar. & Div., secs. 227, 235. See, also, Neff v. Neff, 20 Mo. App. 182; Derby v. Derby, 21 N. J. Eq. 36.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembrook R. Elitoraet, Judge.</p> <p>The judgment is contrary to the weight of the evidence, and not being based upon substantial legal evidence, should not be permitted to stand. McCarthy v. Fagin, 42 Mo. App. 619; Peck v. B. B., 31 Id. 123.</p> <p>When Hynes procured the execution of the contract, he had fully performed the duties of his employment, and evidence as to anything which happened after that, except payment, was inadmissible. Collins v. Fowler, 8 Mo. App. 588; Hayden v. Grillo, 35 Id. 647; Love v. Owens, 31 Id. 501; Lucióse v. Cunningham, 102 N. Y. '678; Watson v. Brooks, 8 Sawy. 316; Bice v. Mayo, 107 Mass. 550.</p> <p>Evidence of the fact that Hynes did not object to the cancellation of the contract was not admissible, the parties having a right to cancel it whether he objected or not, and the fact that they did so not constituting any defense to this action. Granger v. Griffin, 43 Ill. App. 4231; Broim v. Eelmuth, 21 N. T. Sup. 615.</p> <p>Whether or not Hynes advised Mrs. Morrison not to take any title other than her contract called for was immaterial, and therefore inadmissible, for, if Brettelle’s title was good he could have compelled specific performance, and if not good, that fact afforded no excuse for withholding Hynes’ commission. Christensen v. Wooley, 41 Mo. App. 53.</p> <p>The instruction which submitted the question of Hynes’ agency for Mrs. Morrison was erroneous, there being no evidence to that effect, Wylie v. Waddill, 52 Mo. App. 226; Wilkersonv. Eillers, 114 Mo. 245; Stone v. Eunt, Id. 66.</p> <p>The instruction which declared that, if the contract was canceled with the consent of Hynes, he could not recover, was prejudicial and erroneous. Grangerv. Griffin, supra; Brown v. Eelmuth, supra; Parker v.</p> <p>Walker, 86 Tenn. 566; Eanan v. Moran, 38 N. W. Rep. 909.</p>

<p>Descents and Distribution: right op widow to distribution UNDER SECTION 4517, REVISED STATUTES 1889: CONSTRUCTION OP statutes. To entitle the widow to distribution under section 4517, of the statute, it is not necessary that the “child or children” mentioned should he her child or children. Section 4522, providing that if the widow fails to elect, as provided in section 4519, she shall he endowed under sections 4513, 4515, 4516, applies only to dower in real estate in case such election is not made, and in no manner interferes with her endowment under section 4517, supra.</p>

Louis City Circuit Court. — Hon. Pembrook R. Elitcraft, Judge. The court erred in refusing to declare that the attempted appeal of Hennessey from the judgment of the justice in unlawful detainer did not operate as a supersedeas. Bather v. Gabanne, 105 Mo. 110. The judgment in this cause impairs defendants’ contract and adds to its burdens. Const, of U. S., art. 1, sec. 10; Const, of Mo., art. 2, sec. 15.

<p>1. Appeal, Pendency of. An appeal taken on. the fifth day of December, 1896, from a judgment of allowance made at the October, 1896, term of the St. Louis city circuit court, not expiring until the first Monday in December, which was the seventh day of that month, was in time.</p> <p>2. Commissioner Appointed to Take Depositions: compensation AND ALLOWANCE FOR STENOGRAPHER: TAXATION OF, AS COSTS: execution. In the absence of any statute fixing the compensation of a commissioner to take depositions, or providing how or by whom he shall be paid, he is entitled to a reasonable compensation- and allowance for a stenographer, where the parties have agreed one shall be employed, such compensation not to exceed in any event that allowed referees, to be determined by the court appointing him, and taxed as part of the costs; but the court has no power to order execution therefor until final judgment in the cause.</p>

Louis City -Circuit Court. — Hon. Thomas A. Russell, Judge. A corporation can, no more than an individual, accept the valuable services of one of its officers, outside of his official duties, without incurring the obligation of payment therefor. B. B. v. Bicharás, 8 Kan. 109.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The respondents, if entitled to reject the feathers in controversy, were bound, under the agreed statement of facts, to hold them subject to appellant’s order, and did not have the right to return the same to appellant against his objections. Walls v. Oates, 6 Mo. App. 242; Boyer v. Neel, 50 Id. 26; Machine Co. v. Bobbst, 56 Id. 427; Nichols v. Larhin, 79 Id. 264.

Louis City Circuit Court. — Hon. Thos. A. Russell, Judge. Although a sale by an agent is effected on terms other than those authorizing him to sell, the principal, by making the deed, ratifies the sale, and is bound to pay the commission. Gelatt v. Ridge, 117 Mo. 561; Wood v. Stephens, 556; Jones v. Perry, 37 Mo. App. 128; Bass v. Jacobs, 63 Id. 393.

Lo%iis City Circuit Court. — Hon. Thomas A. Russell, Judge. Temporary absence will not sustain an attachment if process can be served in time for the next term of court. Temple v. Cochran, 13 Mo. 116; Kingsland v. Morsham, 15 Id. 657; Ellington v. Moore, 17 Id. 424'; Adam’s Adm’rv. Abernathy, 37 Id. 196; Chariton Co. v. Moberly, 159 Mo. 238; Iron Go. v. Graham, 48 Mo. App. 638. The sheriff’s return is conclusive on the parties to the suit. Hallowellv.

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. Plaintiff was a borrower within the meaning of the statute, which provides that a “borrower may repay his loan at any time.” R. S. 1889, sec. 2813; By-Laws of Ass’n, sec. 13. Tender is an offer to pay a debt or to perform a duty. Bliss on Code PI., sec. 364. See, also, Anderson’s Law Diet.; 25 Am. and Eng. Ency.

— Hon. J. C. Lamson, Judge. This action being one for common law negligence, it was necessary for plaintiff to show that defendant was not only negligent, but that such negligence was the cause of the injury. Wallace v. B. B., 74 Mo. 597. The contention that the bell was not rung nor the whistle sounded is not warranted by the evidehce.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The defendant in attachment will, at the trial of the issues under his plea in abatement, be estopped from denying the truth of statements made by him to the plaintiff, if the matters stated in themselves, without the aid of any inference, constitute ground for attachment, and were relied upon, as such ground, by plaintiff in the institution of the suit. McNichols v. Wise, 62 Mo.

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

Charles Circuit Court. — Hon. E. • M. Hughes, Judge. The court erred in admitting in evidence the deeds from Pettengill and others to George and Andrew Sehweigler, and the deeds from Andrew Sehweigler to George Sehweigler. 2 R. S. 1889, sec. 5111; Spalding v. May hall, 27 Mo. 134; Gibson v. Long, 29 Id. 134. .

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

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. A negative agreement not to engage in a certain line of employment during a specified time is clearly enforcible by injunction. High on Injunctions, secs. 1162-1165; Lassardv. Lucifer, 18 Ore. 221; 14 Canadian Law Times, p. 6; Donnell v. Bennett, 22 Ch. Rep. 835; Gill v. Farris, 82 Mo. 156; Slejfv. Cassell, 2 Jur. N. S. 348.

<p>Garnishment: right to exemption from execution oe garnishment debt: justice’s court: appeal: jurisdiction oe circuit court. The circuit court has no jurisdiction, in a ease of garnishment, to determine the rights of a defendant to hold as exempt from execution a garnishment debt, on appeal from the -judgment of a justice’s court; and the payment of the money into court on the order of the court to be paid oyer as directed, will not confer jurisdiction.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Pembbook R. Editcbaft, Judge.</p> <p>The court erred in refusing to exclude from the evidence the city ordinance offered and read by plaintiff. City Charter, art. 3, sec. 13; 2 R. S. 1889, p. 2094; Witsman v. B’y, 131 Mo. 613.</p> <p>The city charter is a public act, of which the courts take judicial notice. Const. 1875, art. 9, sec. 21.</p> <p>It makes the regulation of the time and manner of running street cars one subject. City Charter, art. 10, sec. 2. See, also, Id., sec. 6; 2 R. S. 1889, p. 2133.</p> <p>The municipal assembly may contract with a street railway by passing an ordinance which will become operative so soon as the company accepts its provisions. And this acceptance may include charter provisions. Union B’y v. Southern B’y, 105 Mo. 602; St. Louis B’y v. Southern B’y, Id. 577; Union Depot B’y v. Southern B’y,.Id. 562; Fath v. B’y, 39 Mo. App. 447; 105 Mo. 537. The contractual relation must be shown. Senn v. B’y, 108 Mo. at 152.</p> <p>The court erred in giving instruction number 1, which assumed that there was uncontroverted evidence to prove every essential fact to make the ordinance binding upon defendant. Henry v. Bassett, 75 Mo. 89; Kennedy v. Klein, 19 Mo. App. 15; Martin v. Johnson, 23 Id. 96; Voegeli v. Pichel M. & G. Go., 49 Id. 643; See, also, Matheiv v. B’y, 26 Mo. App. 76; Pindell v. B’y, 34 Id. 675; Bice v. McFarland, 41 Id. 489; Bobertson v. Drane, 100 Mo. 273.</p> <p>The court can not assume as a matter of law that any given rate of speed constitutes negligence per se. Powell v. B. B., 76 Mo. 80; Young v. B. B., 79 Id. 336.</p> <p>The court erred in giving the general instruction number 2. It was erroneous and misleading, in that it-omitted the question of plaintiff’s general contributory negligence. Gieson v. Horse B’y, 76 Mo. 282; Sullivan v. B’y, 88 Id. 169. And the error was nor cured by the later instruction number 11. Hohstadt v. Daggs, 50 Mo. App. 240. See, also, Barr v. City of Kansas, 105 Mo. 550.</p> <p>The court’s comment upon the evidence under instruction number 3 was a usurpation of the functions of the jury, and prejudicial to defendant. B. B. v. Pawley, 50 Mo. App. 489; State v. Elkins, 63 Mo. 159; White v. Lowenberg, 55 Mo. App. 69; Judd v. B. B., 23 Id. 57; Kendig v. B. B., 79 Mo. 207.</p> <p>The court erred in striking out of instruction number 8 the words “to have warned the driver and enabled the latter to turn out of the track and thereby avoid collision,” and substituting “to have saved himself from injury.” Hickman v. Pep>ot B’y Co., 47 Mo. App. 65; Smith v. B’y, 52 Id. 36; Lenix v. B. B., 76 Mo. 86; Powell v. B. B., Id. 80. See, also, Buel v. Transfer Go., 45 Mo. 562; Young v. Bidenbaugh, 67 Id. 574; Becraft v. Grist, 52 Mo. App. 586.</p> <p>Medical expenses must be established by proof, and proof can not be made as to matters not alleged. Luke v. B. B., 99 Mo. 347; Smith v. B’y, 108 Id. 244; Bhodes v. Nevada, 47 Mo. App. 499; Hunter v. City of Mexico, 49 Id. 17; Madden v. B. B., 50 Id. 666. See, also, Harding v. Wright, 119 Mo. 1.</p> <p>There was no evidence to show any permanent injury. It is error to submit an issue not supported by evidence. Logan v. Enterprise Co.,4J Mo. App. 510; Benjamin v. Street B’y, 50 Id. 603; Cross v. B’y, 56 Id. 665; Paddock v. Somes, 102 Mo. 226; State ex rel. v. Rope, Id. 410; Golts v. Griswold, 113 Id. 144.</p> <p>’The court properly admitted in evidence the city ordinance offered by respondent. R. S. 1889, sec. 2186; Walker v. Point Pleasant, 49 Mo. App. 244; Ludowiski v. Society, 29 Id. 337; Litho. Co. v. Obert, 54 Mo. App. 240; Merrill v. Trust Co.,46 Id. 236; Bates v. Scheik,4B Id. 642. See, also, 4 Am. and Eng. Ency. of Law, 209, 298; 8 Id. 620; B. B. v. Shambaugh, 106 Mo. 567; Leaf Co. v. Whipple, 51 Mo. App. 181; Ins. Co.v. Smith, 117 Mo. 261; Ins. Co. v. Beckmann, 47 Id. 93.</p> <p>A corporation in possession of and operating a given line of railroad, is presumptively the owner. State to use v. B. B., 46 Mo. App. 466.</p> <p>The assumption in an instruction of a fact of which there is some proof, and no controverting evidence, will not constitute reversible error. Dickson v. B. B., 104 Mo. 491. See, also,- Bergmann v. B. B., 88 Mo. 678; Riving v. Roblitselle, 85 Id. 64.</p> <p>The court did not err in instructing the jury. Smith v. B. B., 52 Mo. App. 36; Sullivan v. B. B., 117 Mo. 214; Rickman v. DepotB. B. Co.,4A Mo. App. 65; Senn v. B. B., 108 Mo. 142; Dickson v. B. B., 104 Id. 491; Becke v. B. B., 102 Id. 554; Runt v. B. B., 14 Mo. App. 160; Keitel v. B. B., 28 Id. 657; Werner v. B. B., 81 Mo. 368; Gerdes v. Christopher, 124 Id. 347; Gurley v. B. B., 122 Id. 141; Golden v. Clinton, 54 Mo. App. 100; 7 Am. and Eng. Ency. of Law, 516; Gratiot v. B. B., 116 Mo. 450. See, also, Bailer v. Cohen, 42 Mo. App. 97; Voegeli v. Pichel M. & G. Co., 49 Id. 652; Schroeder v. Michel, 98 Mo. 43.</p> <p>The testimony of Dr. Schultz as to expenses for medical attendance was admissible under the general allegation of damages. Gercles v. Christopher, 124 Mo. 347; Golden v. Clinton, 54 Mo. App. 100; Gorham v. B. B., 113 Mo.</p>

<p>Criminal Law: information, sufficiency of. An information filed in a court of record, signed by the prosecuting attorney and supported by the affidavit of a competent witness, as required by section 4057, Revised Statutes, 1889, is sufficient, and can not be impeached by attempting to show that it is based on insufficient evidence. State v. Grady, 84 Mo. 220.</p>

— Hon. R. B. Bristow, Special Judge. This is an active trust, which a court of equity will not decree a division or revocation of, in whole or part, urged by one cestui que trust and resisted by others, where its effect will be to put an end to the trust, and thus defeat the testator’s intention. Story v. Palmer, 18 Atl. Rep. 363; Ewing v. Shannahan,' 113 Mo. 188; Bancroft v.,Lessieur, 48 Id. 418; 2 Perry on Trusts [2 Ed.], secs. 920-922.

<p>1. Benefit Societies: authority of grand master to interpret laws of order: jurisdiotion. Where a ruling, by the grandmaster of a fraternal beneficial order, made under a delegation of authority from the Grand Lodge of the order, to pass upon all matters of law referred to him by the subordinate lodges, subject to its approval, was approved by the Grand Lodge, he had jurisdiction to make the ruling, and its approval by the Grand Lodge established a precedent for the guidance of the subordinate lodges.</p> <p>2. -: RIGHT OF MEMBER TO RESORT TO CIVIL COURTS FOR REMEDY for grievance against. A member having a grievance against such order is not required to exhaust all of his remedies in the judicatories of the order before he can resort to the civil courts for a remedy, when to do so would be a vain and useless step.</p> <p>3. -: expulsion of member: mandamus to compel restoration: estoppel. In a proceeding by mandamus against the Grand Lodge of such order to restore to membership one claiming to have been illegally expelled therefrom, where the expulsion was for a violation of a law of the order, and no authority was given to a grand officer or the subordinate lodges to waive an enforcement of its laws, absolution from the penalty of the violated law could not be invoked upon the doctrine of estoppel, on the ground that the subordinate lodge col lected assessments from relator after full knowledge of such violation.</p> <p>4. -: AGREEMENT OF MEMBER TO COMPLY WITH LAWS OF ORDER: estoppel. Where a member of such order, in his application for membership, agreed to comply with all laws and regulations of the order then in force and which might thereafter be enacted, he was amenable to a restriction subsequently imposed upon its members, and estopped to complain thereof.</p>

<p>Appeal from the St. Louis ■Criminal Co%vrt. — Hon. Henry L. Edmunds, Judge.</p>

<p>1. Judgment: attachment: fraud: validity. Where a judgment rests upon more than one ground, of attachment, proof of the falsity of the affidavit as to one ground will not render it void.</p> <p>2. -: jurisdiction: continuance: validity. Nor will a judgment he rendered void hy a continuance of the cause after the court has acquired jurisdiction.</p> <p>3. Judgment Absque Injuria. A judgment which is regular on its face, and without injury to complainant, will not he set aside.</p>

<p>Appeal from the Lincoln Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>Plaintiff’s first instruction is erroneous and misleading. Globe L. & H. Co. v. Doud, 47 Mo. App. 439. See, also, Painter v. Ritchey, 43 Mo. App. 111-114; Allen v. College, 41 Mo. 302; Hughes v. Dill, 24 Mo. App. 641; Carter v. Phillips, 49 Mo. 322, 323; Schmidt v. Smith, 57 Id. 135; Brown v. Chadwick, 49 Mo. 589; Napton v. Seaton, 71 Id. 369, 370.</p> <p>Defendant at best was a mere gratuitous bailee without hire, and would be liable only for gross negligence. McLean v. Rutherford, 8 Mo. 109; Wiser v. Chisley, 53 Id. 547; Rush v. R. R., 3 Mo. App. 62.</p> <p>If for more than two years plaintiff did not intend to make a claim for damages on account of the mixing of the wheat, he could not afterward convert it into a charge. Kerr v. Cusenbary, 60 Mo. App. 563.</p> <p>The first instruction given for plaintiff is a correct exposition of the law. Kerr v. Cusenbary, 60 Mo. App. 562; Smith v. Myers, 19 Mo. 434; Renter v. Roberts, 51 Mo. App. 227.</p> <p>The facts being in dispute, it became a question of fact to be determined by the jury whether the items charged were included in the original contract. Painter v. Ritchey, 43 Mo. App. 113.</p> <p>If there is any evidence to support a given theory, the appellate court has no power to review the finding of facts by the jury. Hx parte Haley, 99 Mo. 149.</p> <p>Every theory of the case was covered by the instructions, and the judgment will not be reversed, even though errors may have intervened. Cheek v. Waldron, 39 Mo.1 App. 26; Vaughn v. Daniels, 98 Mo. 230.</p>

— Hon. Reuben F. Roy, Judge.. The value of plaintiff’s services was a prominent issue. While the testimony of expert witnesses is advisory, still it is competent, and it is not for the trial court to limit the quantum of competent testimony, or to say that two witnesses are sufficient. Error is presumed to be prejudicial. Suttie v. Aloe, 39 Mo. App. 38; Clark v. Fairley, 30 Id. 340.

Louis City Circuit Court. — Hon. JohnM. Wood, Judge. Any recognition of a tenancy as subsisting after a right of entry has accrued and the lessor has notice of the facts, will have the effect of a waiver of the forfeiture, which can not thereafter be asserted. Garnhart v. Finney, 40 Mo. 449, 460; 2 Platt on Leases, 468; Horn v. Peteler, 16 Mo. App. 438, 440; Conger v. Burgee, 90 N. T. 600; Murray v. Harway, 56 Id. 342.

<p>Appeal from the Montgomery Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>The evidence introduced by plaintiff fails' to show either an express or implied contract, and she is not entitled to recover. By an v. Lynch, 9 Mo. App. 18; Woods v. Land, 30 Id. 176; Brock v. Cox, 38 Id. 40; Callahan v. Biggins, 43 Id. 130; Renter v. Roberts, 51 Id. 222; Bittrick v. Gilmore, 53 Id. 53; Barton Bros. v. Hunter, 59 Id. 610; Hobbs v. Cates, 60 Id. 320; Harnett v. Christopher, 61 Id. 64.</p> <p>Instruction number 10 was drawn upon the authority of Woods v. Land, 30 Mo. App. 181, and should have been given. Cunningham v. Snow, 82 Mo. 587.</p> <p>Compensation for services can not be implied contrary to the intention of the parties. Bittrick v. Gilmore, supra, and citations.</p> <p>It was the duty of the court under the evidence to have directed a verdict for defendant. Jackson v. Harden, 83 Mo. 175; Powell v. B. B., 76 Id. 84; Landis v. Hamilton, 77 Mo. 554. See, also, Guenther v. Berkicht, 22 Mo. 439-443; Woods, v. Land, supra; Penther v. Boberts, 51 Mo. App., and other authorities cited under point 1.</p> <p>There was sufficient evidence on which to base an implied promise. Hart v. Hart’s Adm’r, 41 Mo. 441; Bamsey v. Hicks, 53 Mo. App. 190; Bonsiek v. Boverschmidt’s Adm’r, 63 Id. 421. See, also, Beando v. Misplay, 90 Mo. 251.</p> <p>Defendant did not rest his case upon plaintiff’s evidence, and is in no position to urge the overruling of the demurrer to plaintiff’s evidence as reversible error. Bowen v. B. B., 95 Mo. 276; Jennings v. B. B., 112 Id. 274; Bonsiek v. Boverschmidt, supra. The evidence was ample to sustain plaintiff’s cause of action. Wolff v. Campbell, 110 Mo. 120; Gregory v. Chambers, 78 Id. 294; Steamboat v. Matthews, 28 Id. 248.</p> <p>An agreement or promise to dispose of property by will in a particular way, if made upon a sufficient consideration, is valid and binding. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Icl. 37; Sutton v. Hayden, 62 Id. 101. And the promise need not be writing; it is sufficient if made orally, and may be implied from circumstances in case of part performance. Sharkey v. McDermott, 91 Mo. 647; Hiatt v. Williams, 72 Mo. 214; Fuchs v. Fuchs, 48 Mo. App. 18, and citations, sttpra.</p> <p>"Where service has been performed under an agreement that remuneration will be made therefor, by deed or will conveying land, specific performance may be maintained against the heirs of the promisor, or an action at law against his personal representative. Koch v. Hebei, 32 Mo. App. 103; Sharkey v. McDermott, supra.</p> <p>There was no error committed in giving instruction number 5. R. S. 1889, sec. 8918; Meyer v. Thiemann, 90 Mo. 433; Leper v.. Taylor, 111 Id. 312; Nowack v. Burger, 133 Mo. 37.</p> <p>The declarations of an intestate are admissible against his administrator. 1 Grreenlf. Ev. [14 Ed.], secs. 189, 191, 207; Sutton v. Hayden, supra; Hart v. Hart’s Adm’r, supra.</p>

Louis City Circuit Court. — Hon. James E. Withbow, Judge. The court erred in permitting defendant’s counsel in his opening statement to the jury to state that when plaintiff moved out of the house she carried away part of the building, and that plaintiff’s cause of action was an offset to a claim of defendant against her. Sherman v. Lockwood, 26 Mo. App. 403.

<p>1. Trial Practiceevidence. The testimony of witnesses beneficially interested in the result of a suit, is properly excluded.</p> <p>2. Gift, without Intention of Passing Title at Time of Delivery : construction. Where money was delivered by a sick person to an agent, with directions to return it to the donor if she recovered, and if she died to divide it among certain of her relatives, the donation was testamentary in character, and not a gift causa mortis.</p>

Louis City Circuit Court. — Hon. B. Yalliant, Judge. The Oliver & Imboden Company, one of tbe plaintiffs and real party in interest, is alleged to be a corporation Of Kansas, and no averment is made in tbe petition showing its right to maintain an action in this state. It was error in the court to overrule this objection. Session Acts, Mo., 1891, p. 75; Carson-Band Co.-v. Stern, 129 Mo. —; Paulv. Virginia, 3 Wall. 168; Ducat v. Chicago, 10 Id. 410; Ins.

— Hon. Andrew Ellison, Judge. The sole point in this case is the construction of section 6864, Revised Statutes 1889. The intent and meaning of a statute is to be gathered partly from the mischief which the statute was intended to remove. Shultz v. B’y, 36 Mo. 13; Biddick v. Walsh, 15 Id. 519; State v. King, 44 Id. 283; In. re Bonino’s Estate, 83 Mo. 441.

Louis Court of Criminal Correction. Hon. David Muephy, Judge. In a criminal case the venue must be proved as laid in the indictment. The proof may be either direct or indirect, but it must be. one or the other, and the record must show it, or this court will reverse. State v. Hart-nett, 75 Mo. 251; State v. Burgess, Id. 541. There was no evidence, either direct or circumstantial, that the offense charged was committed in the city of St. Louis.

'Appeal from the Jackson Circuit Court. — Hon. J. W. Henry, Judge. (1) Kansas City became a constitutional city May 9, 1889, and the charter superseded all laws of the state, which in terms governed- or pertained to cities having one hundred thousand or more population. Const, of Mo., art. 9, sec. 16; R. S. 1889, secs. 1840-1892; State ex rel. v. Field, 99 Mo. 352; State ex rel. v. Scarritt, 127 Mo. 642.

— Hon. E. J. Broaddus, Judge. By the deed read in evidence Arnoldia assumed and agreed to pay an incumbrance on the land therein described of $4,700 as the same became due “together with the interest due thereon.” It has been conceded by the parties to the action that the incumbrance mentioned in the deed was made up of the deed of trust securing $3,500, the deed of trust securing $1,200; the first on its face bears interest at five and one half per cent per annum; the…

— Hon. C. L. Dobson, Judge. The alleged contract with Patrick Lyons was approved by the mayor and common council of Kansas -City on the twenty-first day of July, 1890, and in section 2, ordinance 1005 offered in evidence (the ordinance authorizing the contract), it is provided: “The work shall be completed within eighty (80) days from the time a contract therefor binds and takes effect.

— Hon. W. S. Herndon, Judge. (1) An indictment for a misdemeanor (or felony) ■which, contains but one count, can charge but one ofíense. Bishop’s New Criminal Procedure, sec. 432; also, secs. 459, 460; State v. Bach, 25 Mo. App. 554, 557; State v. Clevenger, 20 Mo. App. 626, loe. cit. 628; State v. Andrews, 27 Mo. 267; State v. Wilson, 39 Mo. App. 184; R. S. 1889, secs. 2058, 4221. English.

— Hon. E. J. Broaddus, Judge. (1) Refused instructions numbered 3 and 4 in the nature of a demurrer to the evidence should have been given. Laney v. B. B., 83 Mo. 466; Fitterling v. B’y, 79 Mo. 504; Bidenorev. B’y, 81 Mo. 227; Townsley v. B’y, 89 Mo. 31; Young v. B. B., 82 Mo. 427; Foster v. B. B., 44 Mo. App. 11; (Hardy v. B. B., 73 Mo. 576; Harrington v. B. B., 71 Mo. 384; Morris v. B. B., 79 ■Mo. 367; Ghubbock v. B. B., 77 Mo. 591, 593, 594.

— Hon. E. J. Broaddus, Judge. (1) The defendant is estopped from claiming the note in controversy not to be due, from the fact that he, himself, asked the purchaser of the note from Hauschild to purchase the said note, and gave as his reason at the time, that he wanted someone to help him get possession of a piece of land which Hauschild had previously leased to Eritz Kreitzman, and which was included in the land quitclaimed.

— Hon. E. J. Broaddus, Judge. (1) In controversies of the character here presented, the rule.applicable to appeals in equitable cases will govern, and the court will review the evidence, and will make their finding as to the facts. In re Estate of Meeks, 45 Mo. App. 186; Finley v. Schhteter, 54 Mo.

— Hon. J. A. Hockaday, Judge. (1) The court erred in admitting in evidence the writ of attachment and the return thereon, as the inter-pleader must recover on the strength of his own title and not the weakness or defects in the title of the opposing party, and the writ of attachment could in no way show or tend to show title in the interpleader. Albert v. Besel, 88 Mo. 150; Kennedy v. Dodson, 44 Mo. App. 550; Rhoades v. McNulty, 52 Mo. App. 301.

— 'Hon. J. A. Hockaday, Judge. (1) The court erred in admitting the testimony of plaintiff concerning two distinct causes of action under the first count, and in admitting his testimony, which was mere hearsay and conclusion, and then erred farther in refusing to strike out such testimony on the defendant’s motion.

— Hon. W. W. Rucker, Judge. ' (1) The petition in this case does not state facts sufficient to constitute a cause of action. A municipality is not liable, merely because of a defect or broken board in a sidewalk. The defect must be such as that on account of its existence the sidewalk, as a walk, is rendered unsafe for ordinary use. Young v. Kansas City, 45 Mo. App. 600; Salmon v. Town of Trenton, 21 Mo. App. 182; Staples v. Canton, 69 Mo. 592.

— Hon. D. W. Shackleford, Judge. (1) The defendant being by law required to maintain crossings is entitled to an opportunity to do the necessary work to keep them in good condition safe for use by the public, and necessarily must have the right to leave them torn up a sufficient length of time to make repairs in the track and in the crossings. Mann v. B. B., 86 Mo. 347; Shonhoff v. B. B., 97 Mo. 151; Cohn v. Kansas City, 108 Mo. 387-393.

— Hon. D. W. Shackleeobd, Judge. (1) The trial court erred in sustaining the demurrer to the petition. Whatever might have been the rule at common law, the wife may now, in Missouri, contract as a femme sole, and be sued as a .femme sole. R. S. 1889, sees. 1996 and 6864. The only limitation to her right to contract and sue as such femme sole is where her husband is the opposing or adversary party. Lindsay v. Archibald, 65 Mo. App. 117; McCorJcle v. Goldsmith, 60 Mo. App. 475.

— Hon. D. W. Shacjkleeobd, Judge. (1) The assignment to Edwards was good in equity without being attached to, or entered on, the margin of the record. Ereeman on Judgments [4 Ed.], sec. 425, and cases cited; Weir v. Davenport, 11 Iowa, 52; Schubertv. Hersberg, 65 Mo. App. 578; Banhv. Kemble, 61 Mo. App. 215; Harper v. Rosenberger, 56 Mo. App. 388; Kmory v. Joice, 70 Mo. 537.

— Hon. D. W. Shaceleeobd, Judge. (1) Money collected by the widow upon the policies of insurance taken out by the husband for her benefit is not subject to the claims of his creditors. R. S. 1889, sec. 5854; Wanschaff v. Benefit Society of Indiana, 41 Mo. App. 211, at page cited; Harvey v. Harrison, 14 S. W. Rep. (Tenn.) 1083; Bank v. Hume, 51 App. Rep. 780; Bank v. Hume, 128 IT. S. 195; McGutchen’s Appeal, 99 Pa.

— Hon. Argus Cox, Judge. (1) No legal contract was ever entered into with the plaintiff. The law requires these contracts to be executed in duplicate. R. S. 1889, sec. 3158. And the copy filed with the district clerk is the only competent evidence of execution. Fur. Go. v. Bist. No. 7, 51 Mo. App. 549; Taylor v. School Bist. No. 3, 60 Mo. App. 372; School Bist. No. 3 v. Smalley, 58 Mo. App. 658. (2) There was no competent evidence that plaintiff had a certificate.

— Hon. J. W. Wofford, Judge. (1) The police judge is uex officio a justice of the peace, within the limits of the city, in all matters.” City Charter, p. 31, sec. 17, art. 4. “All cases triable before such recorder shall be proceeded with in the same manner as trials before justices of the peace in misdemeanors.”- Revised Ordinances, 1888, p. 326,. sec. 893; City of Kansas v. O’Connor, 36 Mo. App. 594.

— Hon. D. P. Stratton, Judge. (1) If this is a criminal prosecution all the proceedings subsequent to the verdict of not guilty, rendered by the justice of the peace, are void. There could be no appeal from that judgment. The defendant having been acquitted could not be again put on trial. If it is not a criminal proceeding the jurisdiction of the appeal seems to be in the supreme court.

— Hon. D. P. Stratton, Judge. (1) The limit of recovery under the petition was $65, the alleged value of the mule. The judgment being for $71.12 is erroneous because in excess of what the court was authorized to render, and this will be determined from the face of the record. M B. v. Armstrong, 25 Kan. 561; Lester v. Cloucl, 67 Ga. 770; Horton v. B. B., 83 Mo. 541; Poulson v. Collier, 18 Mo. App. 583-604; Pendergast v. Hodge, 21 Mo.

— Hon. D. P. Stratton, Judge. Appellant contends that the verdict is not sufficient to support the judgment, for three reasons: First, because the verdict does not describe nor refer to in any manner the property as set forth in the judgment. Second, the jury did not find the value of the property. Third, the verdict does not state whether the defendant has the right of property or the right of possession only. And for these reasons the cause should be reversed and remanded.

— Hon. D. P. Stratton, Judge. (1) Appellant contends that there is no such- evidence in the trial of this cause as shows either malice or want of probable cause on the part of appellant. The amount of the verdict is altogether inconsistent with the idea that they believed Kaufman acted maliciously. The appellant is a young farmer with little educational advantages, as is shown by his testimony.

— Hon. D. P. Stratton, Judge. (1) The evidence did not authorize a finding for plaintiff on the first count. Heme v. B. B., 71 Mo. 636-638; Isaacs v. Skrainka, 95 Mo. 517-523; Jewett v. B. B., 50 Mo. App. 547; Agan v. Shannon, 103 Mo. 661; State ex rel. v. Bank, 120 Mo. 161. (2) The plaintiff’s first instruction is erroneous and misleading.

— Hon. E. C. Crow, Judge. (1) The trial court erred in refusing to allow relator, as damages, the reasonable attorneys’ fees paid by him in the prosecution of the interplea for the attached property. The attachment bond was intended as an indemnity to an interpleader the same as to a defendant or garnishee. This bond is in the statutory form. R. S. 1889, sec. 588.

— Hon. Argus Cox, Judge. The plaintiffs’ complaint wholly fails to state any cause of action. It does not state any facts from which this or any other court could determine how they claim the possession of the land, whether as lessors, purchasers from lessors, or owners, or in what way. If as lessors, when were the premises let, and when by the terms of the lease did defendant’s lease expire!

— Hon. Argus Cos, Judge. (1) The debt due Gr. B. Kincaid & Company had been fully paid off by Mrs. Sims before plaintiff commenced his suit before the justice. (2) Gr. B. Kincaid & Company or Gr. B. Kincaid were not creditors of Mrs. Sims, neither were they subsequent purchasers in good faith, and therefore the failure of the plaintiff to take immediate possession of the cow could not affect them. 2 R. S. 1889, sec. 5178.

— Hon. Argus Cox, Judge. (1) “Payment specifically in law means tbe discharge of a pecuniary obligation by money or wbat is accepted as tbe equivalent to a specific sum of money.” Century Dictionary; Tolmanv. Ins. Co.,1 Cusb. (Mass.) 73; 36 N. Y. 522; 2 Benj. on Sales [4 Am. Ed.], 952; Artley v. Morrison, 73 Iowa, 132; Robinson v. Weeks, 6 How. Pr. (N. Y.) 161; Williams v. Breffy, 96 U. S. 176; Williams v. Carpenter, 36 Ala. 76; s. o., 76 Am. Dec. 316.

— Hon. E. L. Scabritt, Judge. (1) In actions in Missouri on assigned nonnegotiable instruments, the defendant shall be allowed every just set-off, or other defense, which existed in his favor at the time of his being notified of such assignment. R. S. 1889, sec. 8161; Haeussler v. Greene, 8 Mo. App. 451. A note which is uncertain as to the amount to be paid isnonnegotiable. Bankv. Gray, 63 Mo. 33; Cushing v, Field, 70 Me. 50; Hopev. Baker, 112 Mo. 338.