Volume 72 — Missouri Appeal Reports

— Hon. P. C. Stepp, Judge. (1) An unincorporated religious society can not become indebted as such society. 20 Am. and Eng. Ency. of Law, p. 817. (2) Even if there was anything in the note to show the intention of the makers to bind the church as principal, yet as the church is not a person or a corporation, and could not be held in any way, the makers incurred a personal liability. Fay v. Richmond, 18 Mo. App. 355; Simmons v. R’y, 19 Mo.

— Hon. P. C. Stepp, Judge. Until the draft sued upon had been presented to the bank on which it was drawn by the holder, and payment refused, and notice of dishonor given to the drawer, the holder has no action against the drawer. 3 Am. and Eng. Ency. of Law, p. 212, note 1; Purcell v. Allemong, 22 Gratt. (Va.) 739; Pollard v. Bowen, 57 Ind. 232; Judd v. Smith, 3 Hun. (N. T.) 190; Case v. Morris, 31 Pa.

— Hon. P. C. Stepp, Judge. (1) The original Robertson note to McCammon, for which the note in suit was given in renewal, was a gift or donation without consideration and was unenforcible either against McOammon’s estate or defendant Robertson. Matter of James, 146 N. Y. 78; 48 Am. St. Rep. 774; Whitaker v. Whitaker, 4 Am. Rep. 711; Appeal of Waynesburg College, 56 Am. Rep. 252.

— Hon. C. A. . Anthony, Judge. (I) The record in this case fails to disclose any negligence whatever on the part of appellant. It is a mere conjecture and wild guess on the part of the jury to say that the death of this fat animal on a hot day closely crated and put in an express car after a three mile drive in the sun was caused by any act or omission of defendant’s agent. . The Powhattan, 12 Eed. Rep. 880; Paddock v. R. B., 60 Mo.

— Hon. Cyrus A. Anthony, Judge. (1) There was no valid assignment of the judgment to plaintiff Hamill, the purported assignment not being attested by the clerk as required by Revised’ Statutes 1889, section 6043. Bank v. Bulkey, 68 Mo. App. 327.

— Hon. W. S. Herndon, Judge. (1) In the common law action for negligence, if the shipment went through on the first train,- this was a sufficient performance of duty. Smith v. B. B., 18 S. E. Rep. 977; and if in such a case the train be delayed by an unavoidable wreck on the road, there is no liability because there is no negligence. Hutchinson, Carriers [2 Ed.], secs. 328, 330; B. B. v. Arnold, 40 S. W. Rep. (Tex.) 829; B. B. v. Sherwood, 31 N. E. Rep.

— Hon. H. M. Ramey, Judge. (1) One good and sufficient reason for reversing this case is the refusal of the trial court to admit the photograph in evidence. (2) It was error to permit witness Trunk to give his opinion as to the cost of grading. (3) It was error to give plaintiff’s second and third instructions. There was no evidence that the grading of Francis street was of any benefit to Kent’s lots peculiar to them.

— Hon. T. H. Parish, Judge. (1) It is elementary that before plaintiff can recover from the defendant he must show two things: First, that the defendant is indebted to him for money loaned. Second, the amount which the defendant owes him. If he proves merely that the defendant owes him money, but fails to show how much, he can recover at most only a nominal sum.

Circuit Court. — Hon. T. H. Parish, Judge. (1) There was evidence at least tending to show that plaintiff purchased the stud of Lowenstein, to whom defendant had sold it. Such purchase was an affirmation of defendant’s sale, and he can not now allege the sale was tortious. The instruction given wholly ignoréd this phase of the case. (2) But the act of 1891 does not apply.

— Hon. H. M. Ramey, Judge. . (1) Under this evidence a peremptory instruction should have been given to find for plaintiff. Com’rs v. Bolles, 94 U. S. 46; Inhabitants Mont. Tp. v. JRamsdell, 107 U. S. 431. (2) The instruction given by the court on its own motion is not the law, and if it was, there is no evidence to justify the giving of it.

— Hon. E. J. Broadutjs, Judge. It is the settled rule in criminal as well as civil actions that a general verdict for plaintiff is improper where several distinct and independent offenses defined by different statutes with different punishments are joined in the indictment, as it can not be determined to which of the counts it applies. State v. Bedell, 35 Mo.

' — Hon. E. J. Broaddus, Judge. The most favorable view of the evidence in favor of respondent shows the damages to be as follows: Medicines and medical attention for boy’s leg, $35; loss of two months’ services of boy at fifty cents per day, $26; making a total of $61. The verdict was for $200.

<p>Chattel Mortgages: consideration: indemnity. A chattel mortgage depends upon the genuineness of the debt and not upon its inception, and the consideration may be shown to be other than that expressed. And, in this case, there being evidence to sustain the finding of the court that the mortgage in controversy was given to indemnify the plaintiff as a surety for the defendant, the judgment is affirmed since the court did not overlook the defendant's theory in the trial of the case.</p>

— Hon. E. J. Broaddus, Judge. (1) The amendatory act of 1868 (Laws 1868, p. 220) by its fourth section amends the fourteenth subdivision of section 1 of article 3.

— Hon. John A. Hockaday, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It does not allege the value of the property at the time of the fire. Story v. Ins. Co., 61 Mo. App. 534; Coleman v. Ins. Co., St. Louis court of appeals, 69 Mo. App. 566.

— Hon. Cyrus A. Anthony, Judge. The court committed error in overruling defendant’s motion to tax all costs accruing subsequent to the Saturday before the August term, against the plaintiff. The proof showed a good and sufficient tender or offer to permit, judgment to be rendered against the defendant, and that the same had been personally served on the plaintiff.

— Hon. W. S. Herndon, Judge. (1) In order to convict under the indictment in this case, there must be proof of a sale of some specific quantity of intoxicating liquor less than four gallons, and proof of a sale of one bottle of beer is not proof of the sale of less quantity than four gallons. State v. Quinn, 25 Mo. App. 102 p State v. Brosius, 39 Mo. 534; State v. Anderson, 81 Mo. 78; Bishop on Statutory Crimes [2 Ed.], see. 1039.

— Hon. J. H. Parish, Judge. STATEMENT BY ELLISON, J. The judgment below was for defendant and plaintiff appeals. The following is the principal portion of the agreed statement of facts, including portions of bill of lading.

— Hon. P. C. Stepp, Judge. (1) If the language of the policy and application is to be taken for what it says, the policy sued on was void. (2) The above contingency happened, and it can cut no possible figure that the note was taken in the name of Cowhick; it was a note for a “portion of the premium of the policy.(3) Nor does it make any difference that the policy recites the receipt of $15 because: First.

— Hon. H. T. Herndon, Judge. (1) The statement is not sufficient to inform defendant of the facts constituting the cause of action. Hill v. St. Louis Co., 90 Mo. 103. (2) While an agent may bind himself in prosecuting his principal’s business to a third party, still, if such party makes any attempt to collect from the principal or even charges - him with the debt, he thereby loses the right to hold the agent. He can not hold both. Schepflin v. Dessar, 20 Mo. App. 573, 575.

— Hon. A. M. Woodson, Judge. The second count does not constitute any proceeding in equity, and if it did the court decided that appellant has no case, and according to the decisions, including those cited by respondents, when the court decides that the plaintiff can' not recover a cent, then a nonsuit is not voluntary. Where the ruling of the court strikes at the root of the case and precludes a recovery, then the appellate court will review the action of the trial court.

— Hon. W. W. Rucker, Judge. (1) A brakeman on a freight train, which does not carry passengers, has no authority to eject trespassers from the train, unless specially authorized so to do by the conductor; and if in the absence of such authority he does eject trespassers, and inflicts injury upon them, the railway company is not responsible for such acts so done outside of the scope of his authority.

— Hon. Andrew Ellison, Judge. Nothing on the face of this message indicated, nor did the evidence show, that the company was informed that any transaction concerning the sale of a horse was involved; there was nothing to indicate that the message related to business at all.

<p>Appeal from the St. Louis City Circuit Court. — Hon. PembrookR. Elitoraft, Judge.</p> <p>The court erred in permitting the amendment of the original petition. In actions of unlawful entry and detainer, no amendment of the original petition essentially changing the description of the property will be permitted in the circuit court on appeal from a justice. Scovill v. Glassner, 79 Mo. 449; Sehworer v. Christophel, 64 Mo. App. 81; Doiudly v. Wamble, 110 Mo. 280; Gistv. Loring, 60 Id. 487; Madhins. v. Trice, 65 Id. 656; Haggard v. B. B., 63 Id. 302; Ha/nsberger v. B. B., 43 Id. 196; Dean v. Trax, 67 Mo. App. 517; Bobertsv, Lynch, 15 Id. 456; Johnson v. Fischer, -56 Id. 552; Finley v. Magill, 57 Id. 481; Beach v. Heck, 54 Id. 602; Ormev. King, 60G-a. 523; Van Dyke v. Besser, 35 Id. 173; 9 Pac. Coast Law Jour. 356; Murphy v. Lucas, 2 Ohio St. 395; Thiemann v. Meier, 25 Mo. App. 307; Wehringer v. Ahlmeyer, 23 Id. 277; Lewis v. Steele,' 1 Minn. 88; Burns v. Nash, 23 111. App. 552; Tahum v. Crone, 30 S. W. Rep. 885.</p> <p>The court erred in permitting the introduction in evidence of the notice of demand over the objection of defendants. The descriptions of the property sued for must be identical in the petition on which the cause is tried and in the notice of demand for possession. Roberts v. Lynch, Finley v. Magill, and Beach v. Hech, supra.</p> <p>The amendment was properly allowed. R. S. 1889, sec. 5159; Roberts v. Lynch, 15 Mo. App. 456; Rohrbaughv. Reed, 57 Mo. 292; Turner v. Northcutt, 9 Id. 251, 253; Hackney v. Williams, 3 Id. 320; Krafts Admr’s v. Hurts, 11 Id. 75; Gist v. Loring, 60 Id. 487; Webb v. Robertson, 74 Id. 380; Allen v. McMonagle, 77 Id. 478; Dean v. Trax, 67 Mo. App. 517, and citations.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. Executors can'not delegate discretionary powers without express authority to do so, and no such authority is given by the will of McLean to Crane & Campbell. Meeh. on Agency, sec. 189, and citations.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. When defendant accepted plaintiff’s offer, made in his letter of May 17, 1893, and defendant mailed to the bank at Jefferson City the bond described in the petition, and drew his draft on plaintiff for the price, the contract of sale was then complete. Allen v. Chouteau, .102 Mo. 309; Sandell’s Cases on Contracts, 989; Bish. on Con. [Enlarged Ed.] 124, 125, secs. 328, 329.

<p>1. Judgment: motion to quash execution: jurisdiction. Where the circuit court has jurisdiction of the parties and the subject-matter, its judgment can not be reviewed on a motion to quash the execution. If the judgment rendered by the circuit court was erroneous the proper remedy was by appeal from the judgment.</p> <p>2. -: --: extrinsic evidence: admissibility. As the judgment was at most “error or illegal allowance,” the refusal of the court to admit extrinsic evidence, offered by defendant on the motion to quash the execution, to show that, in fact, he never consented to the rendition of the judgment, was not error.</p>

<p>1. Corporation, Private: omission in minutes op board, parol evidence supplying: admissibility. In the absence of any stature prescribing what the minutes of the meetings of the board of directors of a private corporation shall show, an omission of the minutes of the board to show that any of the directors were present in a meeting of the board may be supplied by parol evidence.</p> <p>2. -: power to buy and sell its own stock: rule: exception. The rule is that a corporation can not buy and sell its own stock, unless the authority is conferred by its charter. But it may do so, where it buys in its stock for the purpose of saving a debt and with a view to a reissue of the same, or under circumstances where the transaction is fair on its face, not tainted with fraud, and clearly to the interest of the corporation, unless prohibited by its charter.</p> <p>3. Pleading: evidence: competency: presumption. Where a petition contains two counts, one of which fails to state a cause of action, objections made and exceptions saved as to the admission of testimony in support of such count should be sustained. But where it does not appear on which count the finding was, this court will presume, in fairness to the trial judge, that it was on the count stating a cause of action, and that the other count was not considered by him, and therefore without prejudice to appellant.</p> <p>4. Corporation: SUIT POR CONTRACT PRICE OP STOCK: PLEADING: EVIDENCE. In a suit’ by a corporation for the contract price of certain shares of its stock sold to defendant, where the petition averred its readiness to comply with its part of the contract, and the evidence failed to show that plaintiff had at any time transferred the certificates of stock to defendant on its books, or otherwise, and no offer was made to produce such certificates in court, to be transferred to defendant on the trial, or at all, the judgment was erroneous.</p>

<p>1. Landlord and Tenant: verbal lease: parol evidence: competency. In. an action for rent under a verbal lease for a term of years, a general objection to the admission of parol evidence to prove the alleged contract of renting, offered in connection with other proof tending to show that defendant took possession of the premises under the agreement, was properly overruled.</p> <p>2. -: -: ENTRY: TENANCY PROM MONTH TO MONTH. An entry into houses in cities and towns under a verbal letting for a term of years, creates a tenancy from month to month, under section 6371, Revised Statutes 1889, and not from year to year, as formerly held, before the enactment of this section, under sections 5182, 5186.</p> <p>3. -: -: INTENTION TO OCCUPY PREMISES: EVIDENCE: JURY QUESTION: ABSENCE OP INSTRUCTIONS: PRESUMPTION. “Any overt act indicating dominion and a purpose to occupy and not to abandon the premises,” is sufficient to carry the question of possession to the jury, and to make such possession effectual and continuous, it is not necessary that a party should remain in person upon the premises, or keep his servants there; and where, as in the case at bar, the acts and conduct of defendant were sufficient to bring the question of possession within this rule, this court will assume, in the absence of instructions, that the court below, as the trier of the facts, submitted the question to itself, and, as the judgment shows, that the finding thereon was adverse to defendant.</p>

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. If the finding by the trial court is not supported by at least some evidence tending to prove the facts found, the appellate court will reverse the lower court. Irwin v. Woodmansee, 104 Mo. 403, 407. See, also, Ex parte Raley, 99 Mo. 145, 149; SeL v. Collins, 55 Mo. App. 55, 62; Knapp, Stout é Co. v. Standley, 45 Id. 264,268.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. Where, upon inspection of the whole record, the appellate court is satisfied that material error has been committed, it will reverse the action of the trial court, although the error complained of was not referred to in the proceedings below, either by motion for new trial, in arrest, or in the bill of exceptions.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>• Knowledge on the part of those in charge of a moving car, that the plaintiff was attempting to board the same, is a necessary ingredient of the company’s liability. Meriwether v. Cable Co., 45 Mo. App. 534; Schepers v. E’y, 126 Mo. 665; Schaefer v. E’y, 128 Id. 64; Pitcher v. St. E’y, 34 Atl. Rep. 567; Pitcher v. St. E’y, 26 Id. 560. And must therefore be both alleged and proved. Wells v. E. E., 35 Mo. 164; Bliss on Code PL, sec. 287c; McQuil. PL . and Prac., sec. 281; Coleman v. Ins. Co., 69 Mo. App. 566.</p> <p>A recovery can not be had for any negligent acts of the conductor, when the only negligence charged is that of the motorman. George v. E’y, 40 Mo. App. 447; JIarty v. E’y, 95 Mo. 371; •Jacquin v. Cable Co., 57 Mo. App. 327-331; Gurley v. E’y, 93 Mo. 445; Haynes v. Trenton, 108 Id. 132; My v. E’y, 71 Id. 514; Vanhooser v. Berghojf, 90 Id. 499; Merrett v. Poulter, 96 Id. 240; Meriwether v. Cable Co., 45 Mo. App. 532-535; Buffington v. E. E., 64 Mo. 246; Current v. E’y, 86 Id. 66, 67; Price v. E’y, 72 Id. 415, 416; Benson v. E’y, IS Id. 513; Aultmanv. Taylor Co., 52 Mo. App. 356.</p> <p>It is not the duty of the conductor to be on the lookout at street crossings for persons desiring to become passengers, unless the car is stationary, and then only for those at the proper place for boarding the car. Meriwether v. Cable Co., supra; Schepers v. E’y, 126 Mo. 665; Schepers v. E’y, 128 Id. 64.</p> <p>The allegation that the car was negligently started while plaintiff was in the act of boarding the car at the place where it usually stopped to receive passengers contains an implied averment that the conductor knew, or ought, in the exercise of ordinary care, to have known, that plaintiff was attempting to board the car. Crane v. E’y, 87 Mo. 588 at 594.</p> <p>• Proof that the starting of the ear by the motorman was occasioned by some default on the part of the conductor, is not a failure to prove that the negligent starting of the car by the motorman caused the accident. R. S. 1889, sec. 2238; Wise v. B. B., 85 Mo. 178; Lee v. Cox, 16 Id. 166; Gates v. Watson, 54 Id. 585; Beeves v. Larkin, 19 Id. 192; Leslie v. B’y, 88 Id. 50; Werner v. B’y, 81 Id. 368; Bidenhour v. B’y, 102 Icl. 270.</p> <p>Even if it were a failure of proof, the record shows that the negligence of the conductor was regarded as the issue throughout the trial. See citations, supra; R. S. 1889, secs. 2113, 2114, 2117; Nobles v. Blount, 77 Mo. 239.</p> <p>The duty of defendant, to one attempting to board its cars at the usual starting place, not to start its cars rapidly and suddenly, before the would-be passenger has time to get safely aboard, applies as well to a case where the car is running slowly, with the power shut, off, as to a ease where it is standing still. Meriwether v. B’y, 45 Mo. App. 534.</p> <p>The only instruction permitting a recovery on the ground of negligently starting or increasing the speed of a moving car, was given at defendant’s request. Defendant could not, therefore, complain of any error in submitting this-issue to the jury, even if one had been committed. Loomis v. B’y, 17 Mo. App. 340; Johnson v. Simmons, 61 Id. 395; Baker v. B. B., 112 Mo. 533.</p> <p>appellant’s reply.</p> <p>If what is said in the petition about the motorman be stricken out, nothing is left charging negligence upon the defendant. It can not, therefore, be eliminated as surplusage. Bliss on Code PL, sec. 215; Hotel Go. v. Sauer, 65 Mo. 287; Crocker v. Manm, 3 Id. 476. See, also, Garner v. B’y, 84 Mo. 240; Doan v. B’y, 38 Mo. App. 414; Eoopman v. Gaboon, 47 Id. 363.</p> <p>The petition did not state a cause of action upon the theory of boarding a moving ear in that it did not aver knowledge on the part of' defendant of such attempt. Freymark v. Bread Go., 55 Mo. App. 437; Wells v. B. B., 35 Mo. 164; Coleman v. Ins. Co., 69 Mo. App. 566; Cook v. Putnam Co., 70 Mo. 668; Turley v. Edicards, 18 Mo. App. 677; McGoney v. Wallace, 22 Id. 377; White v. Chaney, 20 Id. 390; Field v. B’y, 76 Id. 614.</p> <p>This point was not waived by the defendant asking and the court giving instruction 3. R. S. 1889, sec. 2047; Smith v. Burris, 106 Mo. 97; McFntirev. Mc-Fntire, 80 Id. 473; Walker v. Bradbury, 57 Id. 66; Pelts v. Eichle, 62 Id. 177; Nance v. B’y, 79 Id. 197; State ex rel. v. Griffith, 63 Id. 545; Bateson v. Clark, 37 Id. 31.</p>

— Hon. D. W. Shackleford, Judge. (1) That there was an appearance in justice’s court by respondent will not be denied. No matters in abatement were set up either orally or in writing. The matter in abatement was waived, and the appearance was necessarily to the merits. Fordycev. Hathorn, 57 Mo. 120; Cannon v. 'McManus, 17 Mo. 345; Little .v. Harrington, 71 Mo. 390; Musgrove v. Mott, 90 Mo. 109.

— Hon. S. C. Peioe, Special Judge. ' (1) A plaintiff can not abandon his petition and recover upon a cause of action stated in his reply for the first time, and unless the judgment is supported by proof of the allegations of the petition it will not be upheld. Crawford v. Spencer, 36 Mo. App. 78, 82; Hill v. Mining Co., 119 Mo. 9, 30; Mohney v. Reed, 40 Mo. App. 99,110, and cases cited; McMahillv. Jenkins, 69 Mo. App. 281.

— Hon. W. W. Wood, Judge. (1) There was no evidence tending to prove an estoppel. (2) “All of the following elements must actually or presumably be present in order to an estoppel by conduct. First. There must have been a false representation or a concealment of material facts. Second. The representations must have been made with knowledge of the facts. Third. The party to whom it was made must have been ignorant of the truth of the matter. Fourth.

— Hon. E. J. Beoaddus, Judge. (1) This is admitted to be a statutory partition fence. Defendant need not repair so as to make it hog tight, the stock law being in force. R. S. 1889, sec. 5042; Madder v. Cramer, 32 Mo. App. 542, 548. (1) In order to justify his restraint of the hogs under article 2, chapter 5, Revised Statutes 1889, it was necessary for appellant to show either that the hedge was a lawful fence or that the hogs were illegally at large.

<p>Appeal from the Grundy Circuit Court. — Hon. P. C. Stepp, Judge.</p> <p>(1) The general statutes of the state of Missouri in relation to fire insurance companies, and the act of the legislature in regard to notice and furnishing blank proofs of loss, approved April 1, 1895 — Laws of 1895, p. 195 — do not apply to town mutual fire insurance companies. See Laws of 1895, p. 200; Maddox v. Ins. Co., 56 Mo. App. 343; LaForce v. Ins. Co., 43 Mo. App. 518; Haggard v. Ins. Co., 53 Mo. App. 98; Shehan v. Ins. Co., 53 Mo. App. 351; McCullough v. Ins. Co., 113 Mo. 606. (2) The law passed and approved April 1, 1895 — Laws of 1895, p. 195 — does not repeal the law enacted March 21, 1895 — Laws of 1895, p. 200. Two statutes upon the same subject should be construed so that both may stand. Andrew County ex rel. v. Schell, 135 Mo. 31, 42; Manlier v Faulhaber, 94 Mo. 430.</p> <p>After plaintiff had notified Mr. B. F. Wood, the defendant’s agent who issued the policy and who 'Was the only and nearest agent to the place of loss thereof, and the company failed to furnish blank forms of statements and proofs of loss to the insured, it could not thereafter be heard to complain of the assured’s failure to furnish such statements or proofs of loss. This appellant concedes this if the act of April 1,1895, applies to it. See Laws 1895, p. 195, secs. 1, 2. The act above referred to unquestionably applies to appellant, for it.is a general law, applying to all fire insurance companies alike, broad and sweeping in its terms, not amendatory of or made dependent upon any other act or law.</p>

— Hon. P. C. Stepp, Judge. . (1) Before the plaintiff can recover in this case Albert Gallatin, the assignee of the note sued on, and Wm. Davis, his partner, must re-convey to defendant the territory to the patent right, the original consideration for the note. Poe v. Stockton & Buperotv, 39 Mo. App. 550; Saving Machine Co. v. McBride, 27 Mo. App. 470; Janet v. Morton, 44 Mo. 275; Cahn v. Reid & Bungardt, 18 Mo.

— Hon. H. T. Herndon, Judge. (1) The statement sued on is insufficient. Hill v. St. Louis Co., 90 Mo. 103. (2) An agent in prosecuting the business of a known principal can not be held personally to a third party, except in two instances, i. e., first, a tort, and second, by express contract. Whitney v. Wyman, 101 U. S. 392.

— Hon. W. S. Herndon, Judge. (1) Where the facts are not controverted the question of probable cause is one of law. Christian v. Hanna, 58 Mo. App. 37 Thomas v. Smith, 51 Mo. App. 605; Boogher v. Hough, 99 Mo. 183; Hill v. Palm, 38 Mo. 14. (2) Advice of counsel that the plaintiff was guilty of the charge preferred against him, is a sufficient justification in an action for malicious prosecution. In such case there is probable cause.

— Hon. A. M. Woodson, Judge. (1) The defendant is only accountable as a collecting agent, and should only be charged with those accounts which he collected or which he might with reasonable diligence have collected. And the burden is on the plaintiff to prove that the debtors are solvent and that the accounts could have been collected by the use of proper diligence. Phelan v. Hutchinson, Phil. Eq. N. C. 116; 93 Am.

<p>Municipal Corporations: wholesale meat merchant: license: information. An information of a police court of the city of St. Joseph, charging the defendant with violating section 72, ordinance 136, of said city by then and there, etc., engaging in the business of selling fresh meats at wholesale from ears on track without first having obtained a license from said city as a wholesale meat dealer, sufficiently charges the offense under said ordinance and the charter ' of said city.</p>

— Hon. A. M. Woodson, Judge. (1) An irregularity • has been defined in Hirsh v. Wiesberger, 44 Mo. App. 506, and cases cited; Branstetter v. Hives, 34 Mo. 318. (2) The judgment or order rendered or made at the September term, 1896; should have been set aside as irregular and void for the reason that the admissions of the parties and testimony show that the plaintiff did not appear in court when the cause was called.

— Hon. E. J. Broaddus, Judge. (1) The authorities are agreed generally against the right of one proprietor to divert a natural water course, so as to throw the water upon adjacent proprietor to his injury. Benson v. B. B., 78 Mo. loe. cit. 504.

<p>Appeal from the Caldwell Circuit Court. — Hon. E. J. Broaddus, Judge.</p> <p>(1) The court erred in refusing to give plaintiffs instruction number 2. Loejfel v. Pohlman, 47 Mo. App. 574; Rodliff v. Ballinger, 141 Mass. 1; Becm% v. Shipper, 35 Pa. St. 239; Ice Go. v. Potter, 123 Mass. 28; Tiedeman on Sales, sec. 35, p. 39. (2) When goods are shipped on consignment or where the present title does not pass the transaction does not constitute a sale, and the transaction does not constitute a sale upon condition, or any sale at all. Neither section 5178 nor 5180, Revised Statutes of Missouri 1889, can have any application to this case. Plow Co. v. Porter, 82 Mo. 23-31.</p> <p>(1) The sale and delivery being complete, the vendee of chattels may convey a good title to an innocent purchaser, regardless of collateral conditions made by the vendor. Patchin v. Biggerstaff, 25 Mo. App. 534. (2) A creditor who takes goods in settlement of his debt is an innocent purchaser in good faith. Peder v. Abrahams, 28 Mo. App. 454; Beclpath v. Laivrence, 42 Mo. App. 101;- Laivrence v. Owens, 39 Mo. App. 318. (3) .. The word “creditors,” as used in section 5178 of the Revised Statutes of Missouri, embraces both prior and subsequent creditors. Collins v. Wilhoit, 108 Mo. 451; Elliot v. Keith, 32 Mo. App. 119; Oester v. Sitlington, 115 Mo. 247.</p>

— Hon. E. J. Broaddus, Judge. The good faith of the physician in writing the prescription can not be tried in this action. If he did write it and did sign it, and file it, then he is responsible as a physician for his conduct, but he is not responsible as a druggist for selling without a prescription, but must be prosecuted as a physician for illegally writing and signing the prescription or filling it out at his own drug store under sections 4623 and 4624.

— Hon. Jno., A. Hogkauay, Judge. (1) Defendant’s motion to dismiss should have been sustained, as the police court had no jurisdiction of this cause. Nothing will be presumed to be within the jurisdiction of courts of inferior, limited or special jurisdiction; and no intendments can be indulged in their favor. Works on Jurisdiction, p. 156; Hawes on Jurisdiction, p. 257; Wells on Jurisdiction, sec.-30; Brown on Jurisdiction, sec. 20; 12 Am. and Eng.

— Hon. Jno. A. Hookaday, Judge. A very different question arises in this case from that presented in the Ferguson*s Estate, 124 Mo. 574, and similiar cases. All of those cases follow Mitchell v. Ladew, 36 Mo. 526. The identical point was then decided in that case favorably to plaintiff’s contention by the supreme court. Mathews v. Bioitsler, 46 Mo. 301; Hanson v. Manley, 33 N. W. Rep. (Iowa) 357; 2 Cobbey on Chattel Mortgages, sec. 980.

— Hon. J. T. Morris, Special Judge. (1) Instruction number 2 given for plaintiff was erroneous in tbat it made the defendants liable if they might have seen the animal in time to prevent a collision. Hoffman v. R’y, 24 Mo. App. 546; Brooks v. R’y, 27 Mo. App. 573; Jewett v. R’y, 38 Mo. App. 48; Welch v. By, 20 Mo. App. 477; Wallace v. By, 74 Mo. 594.

— Hon. E. L. Soarbitt, Judge. (1) “The vendor of personal property transfers the title and interest therein, subject to liens recognized by law.” Richardson v. Peterson, 58 Iowa, loe. cit. 726. The same principle applies to equitable liens and the rights of the cestui que trust in trust property. This building material was trust property. The relation of trustee and cestui que trust existed between their subcontractor and the plaintiffs as to this material.

— Hon. Gr. F. Longan, Judge. (1) The evidence did not establish negligence on the part of the defendant. It was not sufficient to submit that issue to the jury, and did not justify a finding by the jury, and the finding against the defendant upon this evidence was contrary to the instructions as given by the court. First. The law presumes that the trainmen gave the signals required .by the statute. Jenett v. B. B., 50 Mo.

— Hon. Jno. W. Henry, Judge. (1) The statutes of this state make taxes of every nature a lien upon the property of railroads assessed therewith, and authorize a fragmentary sale of the road to compel payment of taxes. R. S. 1889, secs. 7737, 7739, 7742, 7743. (2) Special taxes come within the meaning of sections 7737 and 7739. City v. Gates, 110 Mo. 374; Keith v. Bingham, 100 Mo. 300..

— Hon. H. M. Ramey, Judge. (1) The court below erred in overruling defendants’ demurrer to plaintiffs’ evidence. (2) At the worst, this injury should only be deemed to have resulted from an accident. Both parties were intent on shoving the boards from the car. Accidentally, and not carelessly or purposely, the brother of the deceased swears that the front end dropped a little first.

— Hon. E. J. Broaddus, Judge. (1) Jarvis, Conklin & Company and Cross were agents of the borrower and not of the Mutual Benefit Life Insurance Company. The borrower paid their commissions in giving the second mortgage of $250. They acted on his behalf in obtaining the loan from the insurance company. Knox Go. v. Goggin, 105 Mo. 182; Knglemann v. Reuse, 61 Mich. 395; Radley v. Gatterlin, 64 Mo. App. 629; Thomas v. Desney, 57 Iowa, 58; Smith v. Wolf, 55 Icl. 555.

<p>Appeal from the Hoivard Circuit Court. — Hon. John A. Hockaday, Judge.</p> <p>(1) The plaintiff is not, under the evidence, entitled to a verdict. Lawson on Bailments, sec. 654; Hutchinson on Carriers, sec. 642; Beach on Con.' Neg., sec. 160-163; JEckerd v. R. R., 70 Iowa, 353; Cut-wright v. R. R., 52 Mich. 606; 50 Am. Rep. 274; Rides v. R. R., 46 Mo. App. 304; Stanley v. Union Depot Go., 114 Mo. 611. (2) Plaintiff’s second instruction is error, for it in effect relieves him from any care on his part, and further, it is error in telling the jury that the plaintiff had the right to assume that it was a safe place to alight when he could see the situation as well as any employee of defendant and was as much of a judge under the circumstances of the propriety of alighting at the point as any person could be.</p> <p>(1) The demurrer to the evidence was properly overruled. It was the defendant’s duty to provide a reasonably safe place at its stations for the passengers upon its trains to alight. ■ R’y v. McLane, 32 S. W. Rep. (Tex.) 776; McDonald v. R’y, 55 N. W. Rep. (111.) 102; Poole v. R’y, 25 L. K. A. (Mich.) 744; Cartwright v. R’y, 18'N. W. Rep. (Mich.) 380; Hutchinson on Carriers, sec. 648; Quinn v. R. R., 43 Hun. 640. (2) Plaintiff’s second instruction was properly given. When the train was stopped, the station announced, and the gates opened, the plaintiff had the right to assume that it was at a proper place for him to alight, and if, in doing so, he exercised such care as an ordinarily prudent person would have done, he was not guilty of contributory negligence.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hois. Horatio D. Wood, Judge.</p> <p>The court erred in sustaining plaintiffs’ motion for a new trial on account of the refusal of the instructions asked by them. Nines v. B’y, 107 Mo. 457; Dimmiti v. B’y, 103 Id. 433; Bennett v. B’y, 46 Mo. App. 668; Patterson v. B’y, 56 Id. 660; Minter Bros. v. B’y, 56 Mo. 287; Harris v. Howe, 12 S. W. Rep. 225; Milling Co. v. By, 41 Id. 810.</p> <p>The contract sued on was a through contract for the transportation of the goods in question from South Omaha to Los Angeles, and the clause contained therein limiting the liability of defendant to injuries occurring upon its own road did not change its character. McCann v. Eddy, 133 Mo. 59; Hutch, on Can, sec.. 152.</p> <p>The contract being a through contract, the stipulation limiting liability is void. Davis v. Jacksonville Line, 126 Mo. 69, 80; McCann v. Eddy, supra.</p> <p>The defendant having forwarded the goods over a route different from the one agreed on, became an insurer of the goods. Hutch, on Car., secs. 310, 311, 314, 316, 280b, 145; Goodrich v. Thompson, 44 N. Y. 344; Goddard v. Mallory, 52 Barb. 87; Commission Co. v. B. B., 64 Mo. App. 144; B. B. v. Boggs, 40 S. W. Rep. 21; B’y v. Allison, 59 Tex. 193; Thomp. on Car. 431; Schoul. on Bail, and Car., secs. 590-594, 600-615.</p> <p>appellant’s beply.</p> <p>It does not follow that because the contract of shipment was made with defendant and a through rate given by it, that the contract is necessarily a through contract, where there are express provisions in the contract negativing such a character, as there were in the contract at bar. Bennett v. B’y, 46 Mo. App. 668; McCarty v. B’y, 9 Id. 159; Goldsmith v. B’y, 12 Id. 479.</p> <p>The distinctions between the McCarty-Eddy case and the one at bar are numerous and radical, and there can be no reason why a contract like this should not-be valid, when made where it does not contravene a statute like ours. In any event, no state can control a shipment like this, which was. an interstate shipment, over which congress has exclusive jurisdiction. Stanley v. R. R., 100 Mo. 435; Grimes v. Eddy, 126 Id. 168; Selvegev. R’y, 135 Id. 163; R’y v. Illinois, 118 U. S. 557.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. Certified to Supreme Court. Where the defects of appliances are obvious to the sense of any man, whether master or servant, the servant assumes the risk. Wray v. E. L. £ W. P. Co., 68 Mo. App. 380; Marshall v. Hay Press Co., 69 Id. 256-261; Fugler v. Bothe, 117 Mo. 473; Steinhauser v. Sprawl, 127 Id. 541.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The court erred in refusing to give the second instruction requested by plaintiff. The court should have declared as a matter of law that the mechanic’s lien attached to radiators. Buchanan v. Cole, 57 Mo. App. 11; Kelly v. Rowane, 33 Id. 440; Capehart v. Foster, 63 N. W. Rep. (Minn.) 257; DimmicJc v. Cooh, 115 Pa. St. 573; Banlcv. North, 160 Id. 303; Goodinv.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. A purchaser is not bound to investigate or to search out the reasons which may move the vendor in making the sale. Sammons v. O’Neill, 60 Mo. App. 530. Instruction number 5 offered by plaintiffs should have been given as applicable to the facts of the case. Sammons v. O’Neill, supra.

Lo%ús City Circuit Court. — Hon. Selden P. Spenceb, Judge. Insolence and disrespect shown to an employer or his managing officer, agent of superintendent by an •employee or agent, is a sufficient cause for discharge. Forsythe v. McKinney, 56 Hun. (N. Y.) l;-s. c., 8 N. Y. Supp. 561; Bailey v. Lanahan, 34 La. Ann. 428; Leatherberry v. Odell, 7 Eed.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. This court is not bound by the finding of the lower court, but will render its own conclusion upon the proof contained in the record. Griesediech v. Griesediech, 56 Mo. App. 94; State exrel. v. St. Louis Court of Appeals, 99 Mo. 216.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The diligence required of defendant in this case was that he should not be negligent; and under all the circumstances of this case he exercised all the diligence the law required. Johnson v. R’y, 48 Mo. App. 633; Vastine v. Bailey, 47 Id. 415. Defendant was entitled to notice of plaintiff’s motion to affirm the judgment. Johnson v. R’y, supra, par. 3.

Louis City Circuit Court. — Hon. Pembrook R. Elitcraft, Judge. The check sued on is a negotiable instrument and governed by the same principles which govern ordinary bills of exchange in respect to the rights of the holder. Kavanattgh v. Bank, 59 Mo. App. 547; Burns v. Kahn, 47 Id. 215. It imported a consideration.- Newcomb v. Jones, 37 Mo. App. 478; Singer v. Lieckneite, 51 Id. 245. A prima facie case was made out upon its introduction. Feurt v. Ambrose, 34 Mo.

<p>1. Account: false representation as to authority to act for another: nonsuit: remedy. In a suit on aocount for a machine sold and delivered, against one party defendant, who knowingly and falsely represented that he had authority to act for his eodefendant in the purchase of the machine, the court properly granted an instruction of nonsuit as to such party. The appropriate remedy against such defendant was by action on the case for deceit, and not for goods sold and delivered.</p> <p>2. Instruction: evidence. In such aetion an instruction for defendant, that, to constitute a valid sale, there must have been an intention on the part of defendant to buy, as well as an intention on the part of plaintiff to sell, the machine in question; and unless the jury believed from the evidence that defendant authorized some person to buy said machine, and that such person did purchase the same on its behalf, or that, when said machine was delivered, defendant received or retained it with the .intention of purchasing it, they must find for defendant, was more favorable to plaintiff than the evidence warranted.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>The judgment entered by the court in favor of respondent was against the law. Legion of Honor v. Perry, 140 Mass. 580; Knights of Honor v. Naim, 60 Mich. 44; Bacon on'Ben. Soc., sec. 312; Schillings v.Boes, 85 Ky. 257; Skillings v. Ben. Ass’n, 146 Mass. 217; Rice v. M. A. Society, Id. 248; Brown v. Balfour,' 46 Minn. 63; Breckel v. Imperial Comcil, 11N. Y. Sup. 321; Saunders v. Robinson, 144 Mass. 306.</p> <p>The fund held by defendant was not subject to garnishment at the instance of a creditor of the beneficiary named in the relief fund certificate. Daniels v. Pratt, 143 Mass. 216; Borgraejfe v. Supreme Lodge, 22 Mo. App. 142; Supreme Lodge v. Schmidt, 98 Ind. 381; Keener v. Grand Lodge, 38 Mo. App. 550. See, also, R. S. 1889, sees. 2831, 5867, 5872.</p> <p>The ruling below was according to law, and the sum due the beneficiary under the certificate was subject to garnishment for his debts. R. S. 1889, secs. 5218, 5221; Landa v. Hoick, 129 Mo. 671; Briggs v. Karl, 139 Mass. 473, 476; Bolt v. Kehoe, 30 Hun. (N. Y.) 619, 623-625; Com. Trav. Ass’n v. Newkirk, 16 N. Y. Sup. 177; Harkinsonv. Page, 31 Eed. Rep. (N. Y.) 184-188, Laws 1821, p. 87.</p> <p>After the death of his wife, the relation between the defendant Heitz and the garnishee was that of creditor and debtor. Defendant's rights were vested, and he had an action at law against the garnishee to his sole use. Taylor v. Nat. Temp. Union, 94 Mo. 35; Hernionv. Triple Alliance, 45 Mo. App. 26; Aiken v. Ass’n, 12 N. Y. Sup. 579, 580; Mower v. Ass’n, 1 Pa. St. 173. And he had the right to dispose of his claim absolutely. Briggs v. Karl, Aiken v. Ass’n, Mower v. Ass’n, supra.</p> <p>This court should not declare as a policy what the legislature has studiously omitted expressly to enact with respect to benefit societies. State v. Dill, 60 Mo. 436; Hall v. Stephens, 65 Id. 670, 678; Com. Travelers’ Ass’n v. Newstead, 16 N. Y. Sup. 177; Bolt v. Kehoe, 30 Hun. 619, 622; Session Acts of Mo. 1881, pp. 86, 87; Grand Lodge v. Ellsner, 26 Mo. App. 108; Theobald v. Supreme Lodge, 59 Id. 91.</p> <p>Even if it be law that the money was exempt, yet the defendant alone can make this defense, after his right has become vested. The garnishee can not make it for him, especially after the decision on the plea in abatement in favor of respondent. Aiken v. Mass. Ben. Ass’n, 13 N. Y. Sup. 579, 580; BLoivland v. B’y, 134 Mo. 478, 480; State to use v. Barada, 57 Mo. .566; Abernathy v. Whitehead, 69 Id. SO-, State ,v. Barnett, 96 Id. 133.</p>

Louis City Ci/rcmt Court. — Hon. Leroy B. Yalliant, Judge. The agreement to assign one half of whatever might be recovered, by Crecelius against Bierman, to Clopton, operated as an equitable assignment of that interest, and when the judgment was obtained the equitable assignment became a legal transfer of title. Schubert v. Hirschberg, 65 Mo. App. 579.

<p>Insurance, Mutual Fire: cancellation op policy and surrender on premium note: subsequent assessment by order oe court, without notice. In a suit to recover an assessment, made by order of the circuit court of Cook county, Illinois, on a mutual fire policy, making the assured a member of the company, and reciting that a premium note had been given upon issuing the policy, and that the policy might be canceled at any time by either party, in which case the note should be returned, upon the payment by assured of all losses, where, previous to the proceedings in which said order was made, said policy was canceled by the company and the note returned, and the assessment was for losses by the company before the cancellation of the policy, but assured was not made a party to such proceeding, — Held: That upon the cancellation of the policy, and surrender to assured of its premium note, it was no longer a member of the company, and not having been made a party thereto, was not bound by the decree of the Illinois court.</p>

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. A thief can not acquire any title to stolen property, by means of a larceny thereof, and can not, therefore, confer gny title on his vendees. Parish v. Morey, 40 Mich. 417; Breckenridge v. McAfee, 54 Ind. 141; Sharp v. Price, 48 111.' 513; Arrendale v. Morgan, 5 Sneed (Tenn.), 703; Courtis v. Cane, 32 Vt. 232; Barstoio v. Mining Co., 64 Cal. 388; Newmark on Sales, sec. 175; Cobbey’s Rep., see. 410; 2 Black. Com. 449.

Louis City Circuit ■ Court. — Hon. Hoeatio D. Wood, Judge. It was mandatory on the circuit court to affirm the judgment of the justice when the first term had elapsed and no notice had been served ten days prior to the beginning of the second term. B. S. 1889, sec. 6344. Not only this, but the court has no jurisdiction to do other than that section of the statute (B. S. 1879, sec. 3057) requires.

Louis City Circuit Court. — Hon. John A. Talty, Judge. When a contract is ambiguous, or when it is drawn with the understanding between the parties that it shall conform to or be limited^by an existing custom or condition of business between the parties, parol evidence is admissible to explain, or show the real extent of the contract, and the court erred in excluding such evidence. Norton v. Bohard, 105 Mo. 615; Broughton v. Null, 56 Mo.

— Hon. E. J. Broaddus, Judge. (1) The court below erred in giving defendant’s declaration of law in the nature of a demurrer to plaintiff’s evidence. (2) Plaintiff’s remedy was appeal from final settlement and-order of distribution. Bran-son v. Branson, 102 Mo. 613; Patterson v. Booth, 103 Mo. 402; Nelson v. Barnett, 123 Mo. 564; French v. Stratton, 79 Mo. 560.

— Hon. E. J. Bboaddus, Judge. (1) The defendants ought not to be heard on that part of their answer setting up estoppel, because the facts stated do not constitute an estoppel.

— Hon. John A. Hockaday, Judge. The circuit court erred in giving the declarations of law asked by the defendant, and in finding for the defendant. The justice had jurisdiction of this cause, as Moniteau township, Howard county, is adjoining Missouri township, Boone county; this was plainly alleged in the petition and was fully sustained by the proof, as required by law.

— Hon. A. M. Woodson, Judge. (1) It was freely admitted on the trial, and is the law, that the warrant in question did not bear interest and that Hull, the treasurer, had no authority at any time to pay any further sum thereon than the amount expressed in its face. Dyer v. Covington Twp., 19 Pa. St. 200; Allison v. Juniata Co., 50 Pa. St. 351.

—Hon. W. S. Herndon, Judge. (1) It is the duty of the trial court in passing upon a demurrer to the evidence to make every inference of fact in favor of the party offering the evidence, which the evidence warrants, and which the jury with any degree of propriety might make. Wilson v. Board of Education, 63 Mo. 137; Noeninger v. Vogt, 88 Mo. 589; Bine v. B. B., 100 Mo. 228; Buesching v. Gas Light Co., 73 Mo. 219.

Appeal 'from the Grundy Circuit Cowrt. — Hon. P. O. Stepp, Judge. (1) The land where the posts were set has been the property of Mary Ann Macy, wife of the defendant, since January 27, 1865, and she has been the wife of defendant since October 4, 1866.' Limitation could not run against her after her marriage.

— Hon. P. C. Stepp, Judge. (1) The demurrer to the evidence should have been sustained. Warren v. IVy, 59 Mo. App. 367. (2) The contributory negligence of the plaintiff was such, in this case, as to destroy his recovery. Milburn v. IVy, 86 Mo. 104. (3) Even if defendant was negligent, as charged, the plaintiff’s own negligence is so great as to preclude his recovery. Corcoran v. IVy, 105 Mo. 399. (4) The plaintiff had no right to abandon the cattle after they were injured.

— Hon. Jno. ~W. Henry, Judge. (1) The instructions given by ‘the trial court in behalf of the plaintiff are erroneous. Said instructions undertook to cover the whole case, and should therefore embody all the facts essential to plaintiff’s recovery, and should not, by ignoring the same, exclude from the consideration of the jury points raised by the evidence of defendant. The above rule is well settled. Cultivator Co. v. R’y, 64 Mo. App. 305; Machine Co. v. Bohhst, 56 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Voluntary associations are left to enforce their own rules, without any interference from the courts. State v. Odd Fellows’ Grand Lodge, 8.Mo. App. 154; People v. Board of Trade, 80 111. 136. .

Louis City Circuit Court. — Hon. John. A. Talty, Judge. When the wife is the real party in interest and the husband is only a nominal party, he is not a competent witness, except when he acts as her agent. Paul v. Leavitt, 53 Mo. 595; Joice v. Branson, 73 Id. 28; Reno v. Kingsbury, 39 Mo. App. 240; Dearie v. Kreihn, 65 Mo. 202. .

Louis City Circuit Court. — Hon. Sellen P. Spencer, Judge. The petition does not state facts sufficient to constitute a cause of action. R. S. 1889, see. 3869; Callahan v. Ingram, 122 Mo. 365. The jury having awarded the respondent nominal damages, by way of compensation, their finding of exemplary damages can not be sustained. 1 Suth. Dam., sec. 406; Girard v. Moore, 86 Tex. 675; Stacy v. Publishing Co., 68 Me. 279; Jones v. Mathews, 75 Tex. 1; Kuhn v. R’y, 74 Iowa, 137.

<p>Notary Public: certificate to aoknowledsment of one impersonating; ANOTHER: LIABILITY OF NOTARY AND SURETIES ON BOND. In a suit against a notary and sureties on his bond for an alleged false certificate of acknowledgment of one B. E. S. to a mortgage, where the notary certified that the person whose aeknowlegdment he took was B. JEL. S., that he was personally known to him to be B. E. S., and the same B. BL. S. who signed the mortgage, and the evidence was that a B. E. 8. did own the land described in the mortgage, but he was not the B. BE. 8. who executed the instrument, and there was no direct testimony or circumstances tending to prove that the name of the person signing the mortgage was not B. EE. 8. Eeld, that there was a failure of proof, and plaintiff could not recover.</p>

Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge. It is not necessary that the writing relied on to prove the trust should be contemporaneous with the creation of the trust. On the contrary the declaration of trust may be long subsequent to such creation.Barrett v. Joy, 16 Mass. 221; Forster v. Hale, 5 Ves. 308.

<p>Practice, Appellate: prosecution op appeal by abstract: pleadings: judgment. Where, as here, an appeal is prosecuted by an abstract, and it does not affirmatively appear that a bill of exceptions was taken and properly filed, nothing is presented for review beyond the record proper; and held, that the record proper in this case shows that the judgment was authorized by the pleadings.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. The court erred in holding that appellant was a stockholder as to the amount ($554.45) represented by the check deposited by her with the association on -March 30, 1897. Wild v. B. é L. Ass’n, 60 Mo.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The court erred in admitting any evidence in support of the amended petition, as it omitted any allegation of the ownership of the buildings. Colev. Barron, 8 Mo. App. 511; Pensermean v. Pensermean, 22 Mo, 27; Bryam v. Bhodes, 96 Id. 485; R. S. 1889, sec. 6709; Id., sec. 6720; Peck v. Bridwell, 6 Mo. App. 451.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The court erred in refusing to allow appellant to show what the profits of the partnership business were. It also erred in refusing to allow him to show the amount still owing to employees of the firm. Each partner has a lien on the partnership assets for the payment of partnership debts, for his net share of the assets, and for advancements for the use of the firm. Tennant v. McKean, 46 Mo.

Louis City Circuit Court. — Hon. Pembrook R. Elitcraft, Judge. The action of the court in refusing to give plaintiff’s instruction was proper. Shockley v. Fisher, 21 Mo. App. 551; Van Riper v. Morton, 61 Mo. App. 440. The instruction given for the defendant, marked 3, was properly given. Murdoch v. Milner, 84 Mo. 96; Grady v. O’Reilly, 116 Mo. 346; Montgomery Co. v. Robinson, 85 111. 174; Noyes v. Landon, 59 Yt. 569; Mech. on Ag’cy, sec. 469, and citations.

Louis City Circuit Court.&emdash;Hon. Selden P. Spencer, Judge. The judgment is- against the law and the evidence, respondent’s husband, at the time of his death, having been suspended for nonpayment of dues, and not in good standing, and having voluntarily withdrawn from the order. Const., art. 9, sec. 2; 26 Mo. App. 224; 36 Id. 332; 50 Id. 58; 63 Id. 282; 38 Id. 337; 126 Mo. 638; 1 Bacon, Ben. Soc. 187, 188.

Louis City Circuit Court. — Hon. John. A. Talty, Judge. The mere allegation and proof that defendant ‘‘occupied” the premises described in the petition is not sufficient. There should be the further showing that defendant had exclusive occupancy, or that it had control of the premises. Cooley on Torts, p. 609; Whit-taker’s Smith on Neg., p. 82; 12 Am. and Eng. Ency. Law, 689; O’Donnell v. Patton, 117 Mo. 18; Griffith v. Lewis, 17 Mo.

<p>Appeal From Order of Court in Conformity to Opinion of Appellate Court. An appeal, from an order of the circuit court, made in conformity to an opinion of tbe appellate court, is without merit.</p>

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. Respondent’s claim is against Miller. He alone is responsible for the debt. Plaintiff was bound to look into Miller’s authority, and must be held to a complete knowledge of all the limitations of the will, as well as those the law put thereon. Smith v. Ayer, 101 U. S. 320; Wilson v. Sill, 2 Beas. 143; Shaw v. Spencer, 100 Mass. 382; App. First National Bank, 7 Atl. Rep. 207.

<p>Account: evidence: sufficiency. The evidence in this eause is considered by the court, and held sufficient to support the judgment on the account sued on.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The court erred in refusing to give the jury defendant’s instruction offered in the nature of a demurrer to the evidence. Smith v. B’y, 52 Mo. App. 36. The court erred in admitting section 1275 of the ordinance relating to the running of street cars. Fath v. B’y, 105 Mo. 549.

Louis City Circuit Court. — Hon. Hobatio D. Wood, Judge. When there is a contract which is severable in its nature, and the plaintiff, having partially fulfilled the contract, is guilty of a breach of it, he may recover for the work or labor done,, or materials furnished, his proportionate share of the contract price less such damages as the defendant may have sustained through his breach of the contract.

<p>Error to the St. Louis City Circuit Court. — Hon. Pembrook R. Elitoraet, Judge.</p>

Louis Court of Criminal Correction. Hon. David Murphy, Judge. In civil law, when the mortgagee gives verbal permission to the mortgagor to sell the mortgaged property, he thereby releases his lien. Coffman v. Walton, 50 Mo. App. 404; Gage v. Whittier, 17 N. H. 312; Pratt v. Maynard, 116 Mass. 388; 2 Cobby on Chat. Mort., secs. 637, 686; Jones on Chat. Mort., sec. 456; Carter v. Fately, 67 Ind. 427.

<p>Jurisdiction, Appellate: action involving title to real estate. A suit, the object of which is to determine the priority of liens of deeds of trust, is an action involving title to real estate within the meaning of the state constitution limiting the jurisdiction of this court.</p>

<p>1. Evidence: suemoiency. 'The evidence in this cause is reviewed by the court and held sufficient to support the judgment.</p> <p>2. Witnesses: admissions impeaching: competency. Where witnesses sought to be impeached are parties to the suit, any statements or admissions made by them contradictory of their sworn testimony are admissible, without laying any foundation for their admission. Though in this case the attention of the witnesses was called to the statements by which their testimony was contradicted, and an opportunity given them to explain, which they failed to do.</p>

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

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. Defendants’ objection to the evidence should have been sustained, and their instructions for a nonsuit granted. R. S. 1889, sec. 5186; Browne on Stat. Frauds [5 Ed.], secs. 282, 460; Wood on Mas. and Ser. [2 Ed.], pp. 369, 379, 382, 383; Pitcher v. Wilson, 5 Mo. 46; Johnsonv. Beading, 36Mo. App. 306, and citations; Same v. Same, affirmed; Nally v. Beading, 107 Mo. 350; Townsend v. Hawkins, 45 Id. 286; Withnellv.

Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge. The petition does not state facts sufficient to constitute a cause of action in this, that it fails to state that the injuries were caused by the carelessness of defendant’s servant, while employed as such servant and pertaining to the particular duties of that employment. Hartman v. Mttehlebach, 64 Mo.

<p>Jurisdiction, Appellate: action involving title to real estate. An action for an alleged conversion of foundation stone situated on the land of defendant, which, it was conceded, had become a part of the realty, where the only question was whether defendant had parted with the title thereto, was an action involving title to real estate, hence not within the jurisdiction of this court.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The statement in the third instruction given for relator that ‘ ‘the law presumes the sale and transfer of the property from Leonard Kessler to plaintiff to have been lawful,” was erroneous. The transaction was out of the usual course of the business of Leonard Kessler. Bump, on Fraud. Oonv. [4.Ed.], sec. 63.

Louis City Circuit Court. — Hon. Hoeatio D. Wood, Judge. In actions for negligence it is the duty of the court trying the case to confine the jury, by its instructions, to the consideration of the specific grounds of negligence alleged in the petition. Jacquin v. Galle Co., 57 Mo. App. 331; Bavenscraft v. B. B., 27 Id. 617; Gurley v. B. B., 93 Mo. 445; WaldMer v. B. B., 71 Id. 514. The rule res ipsa loquitur has no application in this case.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>Any taking or assumption of a right to control or dispose of property constitutes a conversion. Any wrongful act which negatives or is inconsistent with the plaintiff’s right is per se a conversion. Warnick v. Baker, 42 Mo. App. 439; Allen v. McGonagle, 77 Mo. 478.</p> <p>• An officer must at all times determine, at his peril, whether he is acting within the limits of the authority conferred by his writ. When he goes beyond these limits he is always responsible, irrespective of the innocence of his intent. 2 Freem. on Ex., sec. 272; State ex rel. v. Koontz, 83 Mo. 323; State ex rel. v. Fitzpatrick, 64 Id. 185; State ex rel. v. Hope, 88 Id. 435; State ex rel. v. Fucker, 19 Mo. App. 587.</p>

Louis City Circuit Court. — Hon. Pembrook R. Elitcraft, Judge. The undisputed facts show that under the pleadings and evidence plaintiff was not entitled to recover, and that the instruction to that effect, offered by defendant, should have been given. Wilson v. Beckwith, 117 Mo. 61; Flynn v. Bridge Co., 42 Mo. App. 530; Thomp. on Neg., p. 1053; Wood on Mas. & Ser., sec. 368; Sparks v. B. B., 31 Mo. App.

Louis City Circuit Cowrt. — Hon. Pembkook R. Flitcbaft, Judge-. Under the issues in this ease, the burden of proof was on plaintiff to show, by a preponderance of the evidence, that it was entitled to the possession of the property in controversy, which was a question solely for the jury. Schroeder v. B. B., 108 Mo. 322; Wolff v. Campbell, 110 Id. 114; Church v. B. B., 119 Id. 222.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. That an agency can not be proven by the declarations of the party claiming to be the agent, is such an elementary rule of evidence it will not be discussed. Timber Go. v. Cooperage Go., 112 Mo. 383; Bank v. Leysor, 116 Id. 68. From the very nature of the case, particularity of instruction and singleness of method are to be expected, and of this, persons dealing with the agent may well be required to take notice.

<p>■Appeal from the St. Louis City Circuit Court.— Hon. John A. Talty, Judge.</p> <p>The court erred in refusing defendant’s instruction that plaintiffs having admitted in proofs of death that assured died from suicide, the burden was on them to show it resulted from accident or natural causes, and not suicide, and erred in giving plaintiffs’ instruction as to onus. 2 Bac. on Ben. Soc., sec. 471, p. 947; Niblack on Ben. 630; Ins. Co. v. Neivton, 89 TJ. S. 32; Cratty v. Ins. Co., 144 Id. 626.</p> <p>The demurrer to the evidence should have been sustained, and the verdict of the jury set aside. Merrett v. Mutual Ass’n, 98 Mich. 338; Ins- Co. v.,Tillman, 84 Tex. 31; Brown v. B’y, 49 Mo. App. 620.</p> <p>Defendent failed to show that Kornfeld intentionally took his own life. Keels v. Mutual B. F. L. Ass’n, 29 Eed. Rep. 201; Leman v. Ins. Go., 46 La. Ann. 1189; 15 S. Rep. 388; Bac. on Ben. Soc., sec. 471.</p> <p>The second instruction asked by defendant was properly refused. Bunker v. Hibler, 49 Mo. App. 536; McCartney v. Ins. Co., 45 Id. 373; Long v. Long, 44 Id. 141.</p> <p>Suicide being a crime, the presumption is, when circumstantial evidence alone is relied on, or where a body is found dead, that the deceased came to his death by accident or natural causes; and where suicide is relied on as a defense, the onus is on defendant, not only to establish the fact, but the intent. Leman v. Ins. Co., supra; Ins. Co. v. McWhirter, 73 Fed. Rep. 444, 450; Ins. Co. v. McConkey, 127 U. S. 661; Ins. Go. v. Nithhouse, 63 N. W. Rep. (Ind.) 1140; Hale v. Life Indemnity Co., Id. (Minn.) 1108.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>The court erred in refusing to give instruction of nonsuit. E. S. 1889, sec. 5187. See, also, Lyle v. Shinnebarger, 17 Mo. App. 66; Whaley v. Hinchman, 22 Id. 483; Vanstone v. Hopkins, 49 Id. 386; Pratt v. Miller, 109 Mo. 78; Burrell v. Highleyman, 33 Mo. App. 187; Johnson B. Co. v. Bank, 116 Mo. 558; Barton Bros. v. Hunter, 59 Mo. App. 610; Bernhard v. Wall, 29 Id. 206.</p> <p>The court also erred in submitting to the jury the determination of reasonable time in which to sell the horses. Viertel v. Smith, 55 Mo. App. 617.</p>

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

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

<p>Appeal from the St. Louis City Circuit Court.— Hon. D. D. Fisher, Judge.</p> <p>The depositions of Harriet Ury, Mrs. Erskine Mansfield, and Simon P. Shulz, were taken in this case in pursuance of the statute, and thereby became part of the costs of the case, and should have been taxed against plaintiff. R. S. 1889, secs. 4434, 4440, 8920, 2920, 2935; Ex parte Livingston, 12 Mo. App. 86, 87; Ex parte Mu/nford, 57 Mo. 603; Larimore v. Both, 114 Id. 446; Ex parte Priest, 76 Id. 229; 1 Mc-Quillan’s Plead, and Prac.,'Sec. 1004, p. 846; 6 Ency. Plead, and Prac., p. 635; B!y v. Evanssich, 61 Tex. 3.</p> <p>As none of the examinations ever became effective as depositions, it was improper to tax the cost of their taking as though they had been used as depositions. Hunter v. Oil Co., 28 Fed. Rep. 842; 2 "Wood & M. (U. S. O. C.) 65, 75; Lane v. Stone, 11 Pick. 527; Bosley v. Parle, 35 Mo. App. 232.</p> <p>The allowance and taxation of costs is a matter of statutory origin. • The statutes must be strictly construed, and the party claiming costs must be able to put his finger on the statute authorizing their taxation. The burden of proof is on him. Conroy v. Frost, 38 Mo. App. 354; Bing v. Paint Go., 46 Id. 377; Miller v. Mugge, 27 Id. 670.</p> <p>There was no warrant for taxing as costs the amount paid the stenographer. Plaintiff did not agree that these fees might be taxed as costs. She was not even consulted about employing him. Schawacher v. McLaughlin, 40 S. W. Rep. 938.</p> <p>The act authorizing the appointment of a special commissioner (R. S. 1889, sec. 4440) does not fix his compensation, nor provide how or by whom he shall be paid. Shed v. B’y, 67 Mo. 687.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>The instruction given by the court of its own motion is erroneous. Blackwell v. Adams, 28 Mo. App. 61; Bank v. Payne, 31 Id. 512; War son v. McElroy, 33 Id. 554; Murray v. B. B., 101 Mo. 236; Mohney v. Beed, 40 Mo. App. 110; Lewis v. Slack, 27 Id. 119; Eyerman v. Cemetery Ass’n, 61 Mo. 490; Parker v. Marquis, 64 Id. 38; Jacquin v. Cable Co., 57 Mo. App. 320; Maack v. Schnieder, Id. 432; Scott v. Maier, 56 Mich. 554; Loe v. B. B., 57 Mo. App. 357.</p>

Louis City Circuit Court. — Hon. Pembrook E. Flitcraet, Judge. Before a justice of the peace, a party can be brought into court only by service of summons, or by voluntary appearance, and the summons must state the nature of'the suit and the sum demanded; otherwise it is void. E. S. 1889, sec. 6145; Brandenburger v. Easley, 78 Mo. 569; Hill v. Ore & Steel Co., 90 Id. 103; Sanders v. Rains, 10 Id. 770.

Louis City Circuit Court. — Hon. Pembrook R. Elitcrapt, Judge.. The circuit court is only one court, though composed of seven judges, each sitting separately “for the trial of causes and the transaction of business in special term.” Const. Mo., art. 6, sec. 27. See, also, R. S. 1889, p. 2145, sec. 1; Haehl v. R'y, 119 Mo. 337. It is the duty of the sheriff of St. Louis to attend the St. Louis circuit court. R. S. 1889, p. 2158, sec. 4.

— Hon. Reuben P. Roy, Judge. An appeal will lie from a judgment that the various claimants do interplead. R. S. 1889, sec. 2246; Sess. Laws, 1891; Rogers v. Gosnell, 51 Mo. 466; State ex rel. v. Kumpff, 62 Mo. App. 332; Glassner v. Weisberg, 43 let, 214; Heusner v. Ins. Co., 47 Id. 336; State ex rel. v. Allen, 92 Mo. 20. Plaintiff claimed the whole debt. As Scott did not admit liability for the whole debt, he could not obtain the relief sought.

Louis City Circuit Cov/rt. — Hon. Selden P.vSpencer, Judge. To bring this case within the scope of the doctrine announced in Harrison v. Smith, 83 Mo. 210, and subsequent decisions following it, it must be shown, by clear and unmistakable evidence, that a trust or the relation of trustee and cestui que trust existed, which has not been shown. Woodford v. Stephens, 51 Mo. 443; Modrellv.

Appeal, from the St. Louis City Circuit Court. — Hon. John A. Talty, Judge. When a contract for the sale of goods is annulled, and the vendor receives back the goods and damages thereto, the vendee is entitled to the purchase money paid on account thereof. 1 Am. and Eng. Ency. Law, 887; Calm v. Reed, 18 Mo. App. 115.

Louis City Circuit Court. — Hon. Pembrook E. Flitoraft, Judge. The stipulation in the contract to pay $10 per day for every day’s delay in finishing the building, after February 15, 1893, “as and for stipulated damages,” is a reasonable and valid agreement, and plaintiff is bound thereby. Morse v. Bathbun,, 42 Mo. 594 ; Cochran v. B’y, 113 Id. 363; B’y v. Bust, 19 Fed. Rep. 239; Wolf v. B’y, 64 Iowa, 380-386; Hamaker v. Schroers, 49 Mo. 407; Tinkham v. Satori, 44 Mo.

Louis City Circuit Court.— Hon. John A. Talty, Judge. Negligence is the failure to do what the law requires to be done. Where .there is no duty there cam. be no negligence. B. B. v. Jones, 95 U. S. 441. The law does not impose upon the master the obligations of an insurer. He is not responsible' for occurrences which, a reasonably intelligent and prudent man could not have anticipated and provided against.