Volume 73 — Missouri Appeal Reports

Louis City Circuit■ Court. — Hon. D. D. Fisher, Judge. It is immaterial in this case as to what was the custom in Texas, as to the authority of traveling salesmen to bind their employers in a contract to sell goods. The contract was to have been executed in St. Louis, and the law of the place of performance of the contract is the law to govern in this case. Kerwin v. Doran, 29 Mo. App. 397; Finch v. Mansfield, 97 Mass. 89.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p>

<p>1. Criminal Law: power op police officer to make arrests without warrant: evidence. A police officer of the city of St. Louis may lawfully arrest an offender, regardless of the grade of the offense, when he has reasonable and probable cause to suspect the person of the commission of the offense; and the exclusion of evidence offered by defendants, which clearly justified the arrest in this case, was palpable error. R. S. 1889, see. 5, p. 2194.</p> <p>2. -: resistance to arrest: limit of authority of officer in overcoming. An officer, in making a lawful attempt to arrest, has the lawful right, if resistance is made, to overcome it, and make the arrest, by using such force as is reasonably necessary for the purpose; but if he uses violence when no resistance is offered, or excessive violence when offered, he is not excusable, and can not justify the use of such violence under the plea of a lawful right to make the arrest.</p> <p>Pofficer°tomake warrantT“hout</p> <p>RanesTtt umitof cer^n'overcorni” ■ ms'</p>

Louis City Circuit Court. — Hon. Pembrook R. Flitcrapt, Judge. The plaintiffs are not entitled to recover in this action, because they have not exhausted their remedy against the Targarette Co. Bank v. Leyser, 116 Mo. 77; Humphreys v. Mill Co., 98 Id. 542; 4 Am. and Eng. Ency. of Law, 579. Actual fraud must be proven in an action of this kind in order to enable plaintiff to recover. Woolfolh v. January, 131 Mo. 620;- Mill Co. v. Farrell, 75 Fed.

<p>Jurisdiction, Appellate: amount involved. When the amount involved in a eause exceeds the sum of $2,500, the appellate court has no jurisdiction on appeal.</p>

Louis City Circuit Court. — Hon. Pembbook R.Elitcbaet, Judge. The instruction for the giving of which the court sustained the motion for new trial was, under the evidence, not objectionable, because there was no direct evidence as to suicide, except the admission of a man too sick to know what he was'Saying, and plaintiff should have the benefit. of the presumption of law against suicide. State v. Patrick, 107 Mo. 172; Berry v. Wilson, 64 Id. 164.

<p>1. Interplea: ANSWER: judgment. A debtor, when sued for a fund admitted to be due, is entitled to have an interpleading therefor upon an answer containing proper allegations.</p> <p>2. Pleading: presumption. Where there was nothing in the record to show that plaintiff asked to be allowed to plead further, after a ruling of the court on her motion for judgment, the presumption was that she chose to stand upon the motion, and declined to plead further.</p> <p>lNSv'ferTIÍud¿me'nt.</p> <p>^sumpaot>:.pre"</p>

<p>1. Benefit Society: constitution: family: definition. By the use, in the constitution of a "benefit society, of the words “and their families,” in declaring the purpose of the beneficiary department of the society to be to provide relief for members and their families in case of death or total disability, must be understood such persons as habitually reside under one roof and form one domestic circle, or such as are dependent upon each other for support, or among whom there is a legal and equitable obligation to provide support.</p> <p>2. -: certifícate: designation: will: equity. The designation, by a member, of a certificate in a benefit society, instituted for the purpose of personal benefit to members and their families, was an expression of his will, which, on his death, entitled the beneficiary, who was a member of his family, to the benefit, to the exclusion of his heirs who were not members of his family.</p> <p>constitution: family: definition.</p> <p>Bca?írdcs1gní’ non.win.eqmty.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Although there is no clause of defeasance in the instrument, yet “if a surplus remains in the hands of the trustee, after the purposes of the trust have, been discharged, it will go to the grantor, in whose favor a resulting trust for such excess will be implied, even if it be not expressed in the conveyance.’’ Hargadine v. Henderson, 97 Mo. 385; Ring v. Ring, 12 Mo. App. 92; Bigelow v. Stringer, 40 Mo. 208.

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

— Hon. W. W. Rucker, Judge. (1) The transmission of a decedent’s personal estate to legatees and distributees, whether he died testate or intestate, “is governed exclusively by the law of the decedent’s actual domicil at the time of his death, no matter what was the country of his birth or his former domicil, or the actual situs of such property at-the time of his death.” Schouler on Executors and Administrators, sec. 16, p. 24; Story on Conflict of Laws [5 Ed.], secs. 465,…

— Hon. D. W. Shackleford, Judge. (1) The amended petition was filed November 18, 1895, and is defective in not stating separately the amount of damages asked. Acts of General Assembly, 1895, p. 168. And for the same reason the motion of appellant in arrest of judgment should have been sustained. The verdict was directly in the teeth of the statute. See acts above referred to.

— Hon. D. W. Shackleford, Judge. (1) There is no substantial evidence to support the verdict. In arriving at their verdict, the jury were left entirely without evidence by which to estimate or calculate the amount of plaintiff's damages, if any. McCartey v. Hagin, 42 Mo. App. 619; Peck v. R’y, 31 Mo. App. 123; State v. Lowe, 93 Mo. 547; Wright v. R’y, 20 Mo. App. 481; Brewery Co. v. Prodeman, 12 Mo. App. 573; Kick v. JDoerste, 45 Mo.

— Hon. Riohabd Field, Judge. (1) The probate court had no jurisdiction of the proceedings begun therein by Nettie King as the next friend of the minors named. The provisions of the Practice Act, article 2, chapter 33, Revised Statutes 1889, do not apply to the procedure in the probate courts. R. S. 1889, secs. 5299-5324. (2) There was no evidence whatever at the trial of this cause to support the finding and judgment of the trial court.

— Hon. Richard Field, Judge. (1) The court erred in sustaining the demurrer to plaintiff’s evidence for the reason that plaintiff showed a prima facie right of recovery. “Where there is any substantive evidence on an issue of fact, its determination is a matter for the jury.” Gutridge v. B’y, 105 Mo. 520; Finch v. Ullman, 105 Mo. 255; Burger v. B’y, 112 Mo. 238.

— Hon. Richard Field, Judge. (1) The statement or petition is vague, indefinite and uncertain, and the defendant (executor), could not know from the statement what facts would be involved — he could not tell from the statement whether plaintiff was suing on a quantum meruit, or for damages for the breach of a contract. Watkins v. Donnelly, 88 Mo. 322; Brashears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508.

— Hon. Richabd Field, Judge. Where a vendee has received and accepted under contract of sale a portion of the goods contracted for, the facts that the goods so accepted were of a quality inferior to that called for by the contract does not authorize him to repudiate the contract altogether and to refuse to accept the residue.

— Hon. G-. E. Longan, Judge. (1) The preamble and section 47 of the constitution clearly show that the object, scope and purpose of establishing and maintaining a beneficiary department was to provide relief for a particular class, viz., the family of a deceased member. Being so limited by the organic law of the society, the member has no power to designate a person not coming within the class.

— Hon. G-eo. F. Longan, Judge. (1) All demands against an estate must be, first, exhibited against the estate, and second, presented to the court for allowance within two years’ time from the date of the letters. R. S. 1889, secs. 187,188,194,196, 197 and 199; Nelson v. Eaeberle, 26 Mo. App. 3; Greenabaum v. Elliott, 60 Mo. 32; Price v. McCause, 30 Mo. App. 627.

— Hon W. W. Wood, Judge. (1) The summons issued by the justice of the peace was void, and the service of it did not confer jurisdiction upon that court, and the judgment should not be enforced, but should have been vacated. R. S., secs. 6145, 6146, 6147; Brandenburgerv. Easley, 78 Mo. 659; Hill v. Ore and Steel Co., 90Mo. 103-105; Leas v. Express Co., 45 Mo. App. 598; Webster v. B’y, 57 Mo.

— Hon. E. C. Ceow, Judge. The petition is fatally defective in not averring that at the inception of the proceedings the fact existed, “in the opinion or judgment of the city council, that the general revenue fund of the city is (was) not in a condition to warrant an expenditure therefrom for bringing the street to the established grade. ’ ’ Sess. Acts 1893, p. 92, sec. 106.

— Hon. J. D. Perkins, Judge. (1) It is error to instruct the jury that a debtor may prefer one creditor to another, without also instructing, that such preference must have been for the sole purpose of securing an honest debt, and not with the intention of hindering, delaying or defrauding creditors. Distilling Go. v. Greath, 45 Mo. App. 169; Dunham-Buckley & Go. v. Halberg, 69 Mo. App. 509; Dry Goods Go. v. Schooley, 66 Mo. App. 406.

— Hon. J. D. Perkins, Judge. (1) If the defect arises from a want of legal capacity, and if the parties act under a mutual mistake of the law, and are both equally well informed in regard to the facts, he would have no legal remedy against the agent; not in assumpsit, for it was not his contract. Not in tort, for he is chargeable with no deceit. Taylor on Corporations, note under see. 754.

— Hon. D. P. Stratton, Judge. . (1) Under the facts alleged in the petition, the defendants Rundell, Moore and Cole, as between themselves and plaintiff, are bound and liable as co-makers of the note sued on. Butter v. Gambs, 1 Mo. App. 466; Bank v. Payne, 111 Mo. 300; Sylvester v. Downer, 49 Am. Dec. 786. (2) If the defendants are to be treated as guarantors, they would still be liable to plaintiff.

— Hon. D. P. Steatton, Judge. (1) The landlord has the right to have his rent paid in money or other things. 2 R. S. 1889, sec. 6384. (2) As to whether a tenant has disposed of the crop grown on the leased premises so as to endanger, hinder or delay the landlord in the collection of his rent, is a question of fact to be determined by the jury. Caruthers v. Williams, 53 Mo. App. 183; Easeltinev. Ausherman, 87 Mo. 413.

— Hon. D. P. Stkatton, Judge. When one person contracts to labor for another for a specified term, or for a particular service, and leaves the service of his employer before the expiration of such term, or the completion of such service, without any cause proceeding from the employer or the act of God, he can not maintain an action for the value of the services he has rendered. Earp v. Tyler, 73 Mo. 617; Gruetmer v. Furniture Co., 28 Mo. App. 263; Moore v. Mfg.

— Hon. D. P. Stratton, Judge. Plaintiff cites the following authorities as in his opinion sustaining his position: Cravens v. Pettit, 16 Mo. 210; Hogan v. Page, 22 Mo. 55; Schultz'v. Lindell, 40 Mo. 330; Gitt v. Fppler, 56 Mo. 138; Norfleet v. Bussell, 64 Mo. 176.

— Hon.. J. H. Sloveb, Judge. (1) One who sells goods and takes the purchaser’s notes therefor can not sue upon the notes, and at the same time attach on the ground that the debt was fraudulently contracted. Finley v. Bryson, 84 Mo. 671; Jones v. Brown, 167 Pa. St. 395 (recently decided); Blackwell v. Fry, 49 Mo. App. 641; Emerson v. Steel Go., 100 Mich. 127; Bodermond v. Clark, 46 N. Y. 354; Insurance Co. v. Cochran, 27 Ala. 228.

— Hon. E. L. Soarritt, Judge. (1) The conveyance from Bayha to the Merriam Park Lodge Company was and is void and passed no title. The Merriam Park Lodge Company was not a corporation; never was incorporated, either before or since the conveyance. Bouthitt v. Stinson, 63 Mo. 268. A deed made to a firm in the firm name conveys no title. Arthur v. Weston, 22 Mo. 378; Land Ass’n v. Schaller, 10 Minn. 338.

— Hon. Jno. WV Henry, Judge. (1) The defendant, by putting its refusal to pay on the ground that the act was outside the scope of the bond, in its letter of March 28, 1893, waived all other grounds and can not take advantage of the fact that plaintiff first gave notice December 18, 1891, though some knowledge may have come to them in July, 1891. There is no conflict in the evidence.

— Hon. W. W. Ruoker, Judge. (1) There was no evidence offered by plaintiffs tending to show that defendant company was incorporated; this fact was put in issue by denial under oath. R. S. 1889, sec. 2126.

<p>Appeal from the Jackson Circuit Cou/rt. — Hon. C. L. Dobson, Judge.</p>

<p>Appeal from, the Howard Circuit Court. — Hon. John A. Hockaday, Judge.</p> <p>(1) Plaintiff’s second instruction authorized a recovery on a theory not set forth in the petition. Buffington v. B. B., 64 Mo. 246; WaldMer v. B. B., 71 Mo. 514; Price v. B. B., 72 Mo. 414; Bullene v. Smith, 73 Mo. 151; Ely v. B. B., 77 Mo. 34; Melvin v. B. B., 89 Mo. 106; Mfg. Go. v. School Bist., 54 Mo. App. 371. It was not warranted by the evidence. No one testified that the Fifth street depot did not afford “shelter and protection from the inclemency of the weather.” (2) The plaintiff’s first instruction was erroneous. The cancellation of the ticket and return of the fare, for the part of the trip between Sedalia and Nevada, modified the original contract, so that defendant owed no duty beyond carrying plaintiff to Sedalia, and unloading her in safety from its train at a place used for discharging passengers. (3) The court erred in refusing defendant’s ninth instruction and in amending and giving it as the court’s second instruction. By the amendment the court made the casual relation between defendant’s acts or omissions and plaintiff’s injuries, and also plaintiff’s contributory negligence to depend upon the depot 'being reasonably comfortable for passengers. This qualified the instruction so that it did not correctly declare the law. (4) The instructions as given by the court were inconsistent and calculated to mislead the jury, for which reason the judgment should be reversed.1 Nichols v. Jones, 32 Mo; App. 657-666; Martinowsky v. Hannibal, 35 Mo. App. 70-76; Frank v. B. B., 57 Mo. App. 181-186; Stone v. Hunt, 94 Mo. 475-481; Bluedorn v. B. B., 108 Mo. 439-450. (5) Upon the plaintiff’s evidence, as well as upon all the evidence in the case, the plaintiff was not entitled to recover. First. The defendant was not negligent as charged in the petition. Second. The supposed negligence of defendant was not the proximate cause of the injuries and ill health complained of, and defendant’s tenth instruction should have been given. Stepp v. B. B., 85 Mo. 229-233; Harlan v. B. B., 65 Mo. 22; Bowellv. B. B., 76-Mo. 80; Mathiasen v. Mayer, 90 Mo. 585; Hudson v. B. B., 101 Mo. 13-34; Stanley v. Union Depot Co., 114 Mo. 606-624; Banks v. B. B., 40 Mo. App. 458-463; Hicks v. B. B., 46 Mo. App. 304-309; Beed v. B. B., 50 Mo. App. 504-506. Third. Plaintiff’s own negligence caused her ill health.</p> <p>(1) The appellant’s complaint of plaintiff’s second instruction is not well founded. (2) The plaintiff’s first instruction was properly given, and the defendant’s third was correctly amended by the court. The suit was not based upon defendant’s failure to carry the plaintiff through to her destination, but for its wrongful and negligent conduct in not stopping the train at a suitable place, and where there were reasonable accommodations when she was required to leave the cars. (3) “The true rule is, that what is the proximate cause' of an injury is, ordinarily, a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances attending it.” Scumaker v. B. B., 48 N. W. Rep. (Minn.) 559; B’y v. Kellogg, 94 U. S. 469. (4) The facts found by the jury to be true certainly entitled plaintiff to a verdict. If the defendant found it necessary, on account of high water, to abandon the trip to Nevada, and to require passengers bound therefor to leave the train, it was the duty of its servants to stop said train at a suitable and proper place for them to alight, and where there were reasonable accommodations. Warden v. B’y, 35 Mo. App. 631; JEvans v. B’y, 11 Mo. App. 463; McGee v. B’y, 92 Mo. 408; Hutchinson on Carriers [2 Ed.], 615; Ray on Negligence of Imposed Duties, p. 147, sec. 49; B’y v. Mayes, 15 S. W. Rep. (Tex.) 43; B’y v. Hartnett, 34 S. W. Rep. (Tex.) 1057; B’y v. Bmitli, 33 S. W. Rep. (Tex.) 896. (5) The jury properly found under the evidence that the defendant’s wrongful and negligent conduct was the proximate cause of plaintiff’s exposure and consequent sickness. B’y v. Biddle, 34 S. W. Rep. (Ky.) 904; JEvans v. B’y, 11 Mo. App. 463; Winkler v. B’y, 21 Mo. App. 99; Brown v. B’y, 11 N. W. Rep. (Wis.) 356; 3 Sutherland on Damages [2 Ed.], p. 2097, sec. 938; B’y v. Hartnett, 34 S. W. Rep. (Tex.) 1057.</p>

— Hon. Cyrus A. Anthony, Judge. (1) There was error in refusing defendant’s request for instruction number 1, directing a verdict for the defendant. There is no break in the current of authority that all rights arising out of one contract furnishes but one cause of action. Bliss on Pleading [2 Ed.], sec. 118; 1 Encyclopedia Pleading, 151; 21 Am. and Eng. Ency. of Law, 204; Sheenv. Springfield Eng. Co., 42 Mo. App. 158; Kurtz v. Carr, 105 Ind. 574; 1 Van Fleet, p. 238.

— Hon. W. W. Rucker,. Judge. (1) The rule as to plaintiffs’ right of recovery is stated too broadly and applied too severely. “In order to maintain the action of replevin the plaintiff must show the right of exclusive possession in himself as against the defendant in the action.” 20 Am. and Eng. Ency of Law, p. 1050. This last statement of the rule is recognized as the correct one in the adjudicated cases. Burns v. Lidwell, 6 Mo. App. 192; Pollock v. Bouglas, 56 Mo.

— Hon. D. W. Shackelford, Judge. The court erred in admitting evidence as to the damage done to the buggy by the horse kicking the same, after the accident. Also as to the damage done to the horse, by reason of its becoming frightened, and injuring itself by its own vicious propensities. Also as to the depreciation in the value of the horse as a driver or buggy horse, from having been spoiled as Such by fright, and from having become a kicking and unruly horse.

— Hon. Jos. D. Perkins, Judge. (1) A mortgage taken to secure a Iona fide debt is not invalid as against a judgment for purchase money, although the mortgagee knew at the time of accepting the mortgage that the purchase price of the mortgaged property had not been paid. Straus v. JRotham, 102 Mo. 261; Finite & Masse v. Pike, 50 Mo. App. 564; Lippman v. Campbell, 53 Mo. App. 121.

— HoN. Jos. D. PerkiNS, Judge. (1) Parol evidence was admissible to show the contract that Wright made with reference to the manner in which his subscription should be paid. Browne on Parol Evidence, p. 126; Laws of 1891, p. 77, sec. 2769; Greenl. Ev., sec. 284a; College v. Robertson, 67 Mo. App. 329; Johnson v. University, 41 Ohio St. 527; Roberts v. Moudy, 29 Mo. App. 26; College v. Tuttle, 33 N. W. Rep. (Iowa) 174; Schuler v. Myton, 48 Kan. 282.

— Hon. D. P. Stbatton, Judge. (1) Where a mortgagee intentionally withholds his mortgage on a stock of goods from record, and a third party extends credit to the mortgagor relying on the fact that his property is unincumbered, said mortgage is void as to such creditor. Williams v. Kirk, 68 Mo. App. 457; Bankv. Buck, 123 Mo. 141; Barton v. Sitlington, 128 Mo. 164; Bank v. Doran, 109 Mo. 40; Ayers v. Hamrick, 20 Fed. Rep. 553; Bumsey v. Town, 20 Fed.

— Hon. Jno. W. Henby, Judge. (1) Even though the record discloses an intention on the part of Scanlan, the grantor in the deed, to cheat, etc., his creditors, this will not affect the creditors secured by the deed of trusts unless they or their trustee participated in the fraud. Sammons v. O’Neil, 90 Mo. App. 533; Maybury v. Brooks, 7 Wheat. (U. S.) 552; Distilling Co. v. Ellis, 63 Mo.

<p>Appeal from the Clark Circuit Court. — Hon. Benjamin E. Turner, Judge.</p> <p>Instruction number 1 was inconsistent and misleading. JEhoersv. Shoemaker, 57 Mo. App. 454; Frank v. B. B., Id. 181; Bedpathv. Lawrence, 43 Mo. App. 101; State v. Cable, 117 Mo. 380; State v. Brumley, 53 Mo. App. 126; James v. B. B., 107 Mo. 480.</p> <p>Instruction number 4, given for defendant, is erroneous in kaving no evidence to support it. Paddock v. Somes, 102 Mo. 226; Mfg. Co. v. Ball, 43 Mo. App. 504; State v. Parker, 106 Id. 217; Sparks v. Brown, 46 Id. 529; Thomas v. Ramsey, 47 Id. 84; Wilkinson v. JEiler, 114 Mo. 245; and because misleading. Welsh v. Edmonson, 46 Mo. App.'282; Sparks v. Transfer Co., 104 Mo. 531; Rtissellv. R. R., 26 Id. 368; McDonald v. R. R., 32 Id. 70; Barley v. Beasley, Id. 406; Cray craft v. Walker & Co., 26 Id. 469; Stoker v. Green, 94 Mo. 280.</p> <p>The verdict is against the evidence and the weight of the evidence. 1 Cobbey on Chat. Mort'., secs. 141, 142, 138; Martin v. Holbrook, 55 Ark. 569; Jones on Chat. Mort. [3 Ed.], sec. 94; Ackerman v. Hwnsiker, 39 Am. Rep. 621; 1 Cobbey on Chat Mort., sec. 144.</p> <p>The amount secured need not be stated in the mortgage. Jones on Chat. Mort. [3 Ed.], secs. 95, 99.</p> <p>If any part of the debt secured by mortgage is due, replevin will not lie. 1 Cobbey on Chat. Mort., sec. 183; Roberts v. White, 15 N. E. Rep. 568; Willi-'•son v. Smith, 52 Mo. App. 133; Lacy v. Gibony, 36 Mo. 320; Bowers v. Benson, 57 Id. 511; 1 Cobbey on Rep., sec. 173; Jackson v. Cunningham, 28 Mo. App. 354.</p> <p>Before an appellate court will be justified in setting aside a verdict for the want of sufficient evidence, there must be a total failure of evidence tending to support it. McKay v. Underwood, 47 Mo. 185, 186; Reid v. Ins. Co., 58 Id. 421, 429; Hayner v. Crow, 79 Id. 293, 296; Maddox’s Adm’r v. Nelson, 50 Id. 256, 262; Turner v. Gibbs, Id. 556, 558; McFarland v. United States, etc., Ass’n, 124 Id. 204, 222.</p>

<p>Appeal from the Scotland Circuit Court. — Hon. Benjamin E. Tuenee, Judge.</p> <p>The judgment is for the recovery of possession of premises, no part- of which is on lots 1 and 8, as charged in respondents’ complaint, and is erroneous and void. Lamme v. Buse, 70 Mo. 463; Benson v. Morroio, 61 Id. 345.</p> <p>Plaintiff can not be required to make further proof of a forcible entry than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained the same. R. S. 1889, see. 5102; Prewitt v. Burnett, 46 Mo. 372; King’s Adm’r v. Gas Light Co., 34 Id. 34; Beeler v. Cardwell, 29 Id. 72.</p> <p>The court, sitting as a 'jury, having passed upon the facts, this court will not disturb its finding on account of the weight of the evidence; and in this case the proof sufficiently identifies the land in the possession of defendant as the same described in the complaint. Meriwether v. Howe, 48 Mo. App. 148; Bice v. Arnold, 58 Id. 97; Carruthers v. Williams, Id. 100.</p> <p>The objection to the admission of testimony made by defendant was too indefinite and uncertain to authorize its exclusion. Bhorer v. Brochhag'e, 15 Mo. App. 16; Bavis v. Hilton, 17 Id. 319; Allen v. Mansfield, 82 Mo. 688; Shelton v. Durham, 76 Id. 434.</p>

<p>Insolvent Partnership Estate: petition: demurrer: jurisdiction. In an action on an administrator’s bond, where the petition, by its allegations, brought the demand with'in the purview of section 64, Revised Statutes 1889, relating to the allowance and classification of demands against insolvent partnership estates, — Seld, on demurrer, that when the administrator refused to pay the demand, plaintiff’s remedy was in the probate court to have its claim allowed and classified, which remedy it should have pursued before proceeding on the administrator’s bond.</p> <p>lNncrshfpNeste"V rer: jurisdiction,</p>

— Hon. Edwin R. MoKee, Judge. The general words of the act of 1895 following particular words, the latter are to be limited in their scope and application to the persons and things of the same kind and character as those specifically enumerated. St. Joseph v. Porter, 29 Mo. App. 605; State ex rel. v. May, 106 Mo. 488; State v. Dennisse, 109 Id. 438; Bachman v. Brown, 57 Mo. App. 68.

<p>Jurisdiction, Appellate: suit to which a county is a party. A cause to whieh a county of this state is a party is within the exclusive jurisdiction of the supreme court.</p>

— Hon. Edwin R. McKee, Judge. The allowance of this claim in the probate court is not a judgment, but simply an establishment of the indebtedness of the deceased to the claimant. It .was the same character of paper after allowance that it was before. It is still an account, and non-negotiable. Thomas v. Liebke-, 13 Mo. App. 389.

— Hon. Reuben F. Rot, Judge. The court erred in giving the instruction which precluded a recovery by plaintiff on the second count of the petition. Taylor v. Short, 38 Mo. App. 21; Zwisler v. Storts, 30 Id. 163; Tioopey v. Fruin, 96 Mo. 104; Charles v. Patch, 87 Id. 450.

— Hon. Eeuben P. Eoy, Judge. According to -her testimony plaintiff was in possession of the hotel under such a contract as constituted her, at least, a tenant at will or by sufferance. Corby v. MaeSpadden, 63 Mo. App. 648. By her agreement plaintiff surrendered her legal right to have her tenancy terminated by a month’s written notice. (E. S. 1889, sec. 6371; Lyonv.

— Hon. E. M. Hughes, Judge. The court had jurisdiction to hear and determine this cause, both as to the main suit and the garnishment proceedings. Babb v. Bruere, 23 Mo. App. 604-, Gray v. Bowles, 74 Mo. 423; Chase v. Christianson, 41 Cal. 253. See, also, Freeman v. Thompson, 53 Mo. 183; Fields, v. Maloney, 78 Id. 179; Payne v. Mooreland, 15 Ohio St. 435; Dowdy v. Wamble, 110 Mo. 280.

<p>Criminal Law: judgment: pleading. A judgment on a verdict of guilty, in tlie absence of a plea of not guilty, is reversible error.</p>

— Hon. Reuben E. Roy, Judge. Appellant’s right of trial by jury was not waived. R. S. 1889, sec. 2133; Brown v. B. B., 37 Mo. 298; Cox v. Moss, 53 Id. 432; Briggs v. B’y, 111 Id. 168-175. There was but one cause of action and respondents recovered part in suit against appellant’s predecessor, and are not entitled to recover balance in this proceeding. Hoyle v. Farquharson, 80 Mo. 377; Buddie v. 'Horine, 34 Mo. App. 394; Lumber Co. v. Agr. & Meek. Soc., 59 Id. 24.

— Hon. Edwin R. McKee, Judge. The court should have sustained plaintiff’s demurrer to the evidence. W7here negligence is alleged it must be proven, and can not be merely imagined or deduced from surrounding circumstances. Hunt v. B. R., 89 Mo. 607; Bine v. Bhj, 100 Id 234. See, also, Lionberger v. Pohlman, 16 Mo. App. 392; Borgraefe v. Knights of Honor, 22 Id. 148; Gas Light Go. v. Ins. Go., 33 Id. 361; Price v. Lederer, Id. 437; State to use v. Bid, 36 Mo.

Louis City Circuit Cowrt. — HoN. Pembrook R. Flitcraft, Judge. . The court erred in admitting incompetent and irrelevant testimony. 1 Gfreenl. Ev. [15 Ed.], sec. 52. The court erred in giving and refusing instructions. Marchilclou v. O’Hara, 52 Mo. App. 523; Hycle v. Larkin, .35 Id. 366; Stennklev. R’y, 42 Id. 74; Middleton v. R. R., 62 Mo. 579.

Louis City Circuit Court. — Hon. Pembrook R. Flitcrapt, Judge. The existence of a mere right to file a mechanic’s lien, which the mechanic may or may not, at his option, perfect, is no breach of the covenant against incumbrances. Bussell v. Grant, 122 Mo. 161; Gris-wold v. B. B., 18 Mo. App. 52; Broivn v. B. B., 36 Id. 438; JErath v. Allen, 54 Id. 587. See, also, Blondeau v. Sheridan, 81 Mo. 545; Burén v. Hubbell, 54 Mo.

Louis- City Circuit Court. — Hon. Pembrook R. Elitoraet, Judge. If the injury arose from, and was occasioned by the use of defective plans, the owner of the property is responsible, although the work was done by an independent contractor. Lancaster v. Ins. Co., 92 Mo. 465; Horner v. Nicholson, 56 Id. 222; Crenshaw v. Ull-man, 113 Id. 640.

Louis City Circuit Court. — Hon. Jacob Klein, Judge.. The administrator as such had no cause of action, granting the truth of the averments of the petition, without a further showing that the fund was required for the payment of debts of the deceased. If Edward Jones was injured, his action was that of an equitable proceeding, following the fund in the hands of the fraudulent donees, brought in his own behalf. Straat v. O'Neill, 84 Mo. 68; McCracken v. M&Caslin, 50 Mo.

— Hon. Reuben E. Roy, Judge. The court erred in sustaining the demurrer to the answer of appellants to the alternative writ of mandamus. State ex rel. v. R. R., 77 Mo. 143; High on Ex. Leg. Rem., sec. 6.

<p>Appeal from the St. Louis Court of Criminal Correction. Hon. David Murphy, Judge.</p>

— Hon. W. W. Rucker, Judge.' (1) This court has held that a city is not legally obliged to supply, repair or maintain a passway to property abutting on a street. Calhoun v. Milan, 64 Mo. App. 398. It seems to us that this principle of law applies to this case. It will be observed that this is not a suit predicated upon article 2, section 21 of constitution of 1875, under which a suit for damages against a city may be maintained under certain circumstances without negligence.

— Hon. J. A. Hockaday, Judge. The statute provides that the damages shall be assessed by a jury, or if neither party requires a jury, by the court. The record of the judgment does not show any waiver of a jury by the plaintiff. 2 R. S. 1889, sec. 5500; Briggs v. B’y, 111 Mo. 168-175; Cox & Slingsby v. Moss, 53 Mo. 432; Scott v. Bussell, 39 Mo. 407. There is nothing in plaintiffs’ second point.

— Hon. W.. W. Rookeb, Judge. A bank cashier has no power or authority by virtue of his office to exchange a note which belongs to the bank for an ordinary book account on a third person. Banks do not deal in book accounts and the purchase of a book account is not an act done in the ordinary course of the business confided to such an officer. R. S. 1889, sec. 2745; Bank v. Hughes, 62 Mo. App. 576; Hyde v. Larkin, 35 Mo.

— Hon. W. W. Ruckeb, Judge. (1) The plaintiff’s fifth instruction presents the law correctly and was properly given. The plaintiff had the right to sue on his note by attachment, notwithstanding the note was not due when the suit was instituted. R. S. 1889, see. 522, p. 219. And although a mortgage had been given as security for the payment of the note, this fact did not preclude the plaintiff from1 suing on the note by attachment.

— Hon. W. W. Rucker, Judge. (1) The evidence introduced by plaintiff as to the condition of the sidewalk at the place where this accident is said to have occurred is so remote from the time of said alleged accident that it proves absolutely nothing of the condition of said sidewalk at the time of the accident. Morrisey v. Ingham, 111 Mass. 63; White v. Graves, 107 Mass. 325; Sloan v. People, 47 Ill. 76; Jones v. State, 26 Miss. 247; Murdock v. Broivn, 16 Mo. App. 548.

— Hon. W. W. Rucker, Judge. The petition does not allege that the money sued for was due when the suit was brought, nor are any facts alleged from which the court could determine whether the money was due or when it became due. This is fatal. Brown v. Shock, 27 Mo. App. 351; Shears v. Bond, '79 Mo. 468-471; Williams v. Knigh-ton, 1 Ore. 234; Sappington v. Ins. Co., 72 Mo. App. 74.

— Hon. Richard Field, Judge. The original statement did not state facts sufficient to constitute a cause of action. It was therefore error in the court to permit any evidence to be introduced. Vaughn v. B’y, 62 Mo. App. 461, 467. (1) The original statement contained a good cause of action. (2) And the amended statement is by all the law in Missouri statutes, as well as reported cases, permissible. I will only quote a few: R. S. 1889, sec. 2104.

— Hon. W. W. Wood, Judge. (1) All writings referred to and embodied in the contract of membership by its terms become a part of the contract, and the whole constitute one contract. Lancaster v. Elliott, 42 Mo. App. 503; Jennings v. Todd, 118 Mo. 296; Bacon on Ben.

— Hon. D. P. Stratton, Judge. (1) In attachment proceedings an interplea is in the nature of an action of replevin, engrafted thereon by the statute. Heilman v. Pollock, 47 Mo. App. 205; Huiser v. Beck, 55 Mo. App. 668. And under the law, as declared by the decisions of the appellate courts in this state, it is proper to settle the equities of the parties in this form of action. Boutell v. Warne, 62 Mo. 350; Hickman v. Dill, 32 Mo.

— Hon. D. P. Stratton, Judge. (1) Public administrators are elective officers (R. S. 1889, sec. 296) and may resign at will. 'State ex rd. v. Bus, 135 Mo. 325. (2) The governor of the state has the power and it is his duty to fill by appointment vacancies in elective offices. R. S. 1889, see. 4705.

— Hon. Jno. W. Henry, Judge. (1) The defendants assumed to act as a corporation before obtaining a franchise for that purpose, and in so acting they incurred the liability of partners. Rurtv. Salisbury, 55 Mo. 310; Richardson v. Pitts, 71 Mo. 128; Martin v. Feioell, 79 Mo. 401; Smith v. Warden, 86 Mo. 399; Queen City F. & C. Co. v. Crawford, 127 Mo. 356; Glenn v. Bergmann, 20 Mo. App. 343.

— Hon. John W. Wofford, Judge. (1) The court erred in overruling the motion of the defendant to quash the information. Bill of Rights, sec. 22. (2) The court erred in overruling the demurrer of the defendant to the evidence of the plaintiff. State v. Williams, 44 Mo. App. 302. (3) The ordinance is inconsistent with the state law on the same question.

— Hon. Henry Lamm, Special Judge. (1) The court erred in finding for plaintiffs, as under the pleadings and evidence the decree should have been for the defendants. (2) The proceeds of the sale of the land in question, under the Rissler deed of trust, in the hands of the trustee, after the discharge of the mortgage debt, was real estate, and one half of such surplus proceeds was subject to the lien of defendants’ judgment against said James S. Hopkins.

— Hon. W. M. Holland, Special Judge. (1) The object of the statute providing for exon-erations of securities on bonds, bills and notes, upon notice to persons having a right of action thereon, etc., “is to secure the party giving the notice against liability to pay the money when it might be collected from the principal, or more than his proportionate part when it is to be collected from several co-securities.” The statute has no application where the insolvency of the…

<p>Appeal from the Cedar Circuit Court. — Hois. D. P. Stratton, Judge.</p> <p>(1) The circuit court as a court of equity had jurisdiction of this case. Hammons v. Renfro, 84 Mo. 332; Hoffman v. Trust Co., 68 Mo. App. 180, 181; McClanahan v. West, 100 Mo. 309; Butler v. Dawson, 72 Mo. 227; Paris v. Haley, 61 Mo. 453; Harrington v. TJtterbach, 57 Mo. 519; Hammer v. Cook, 118 Mo. 479; HgenfriU v. Rgenfritz, 49 Mo. App. 127; Dingle v. Polliek, 49 Mo. App. 479. (2) The contention that the plaintiff has an adequate remedy at law against parties to whom the husband sold his wife’s property is no defense to this action. Roll v. St. L. & Col., S. & M. Co., 52 Mo. App. 60. (3) The personal property of the wife remained her separate property after marriage, and the husband if he takes charge of such property of the wife without her assent in writing, does it as the trustee of the wife. And he must account for the same and interest thereon. R. S. 1879, sec. 3296, p. 560; 2 R. S. 1889, see. 6869, pp. 1610,1611; 90 Mo. 185;.89 Mo. 383; 88 Mo. 301; 87 Mo. 284; Leete v. Bank, 115 Mo. 204. (4) Where the husband takes charge of his wife’s personal property and sells it, he holds the proceeds as trustee for her. 94 Mo. 169. Leete v. Bank, 115 Mo. 204; Henry v. Sneed, 99 loo. cit. 425.</p> <p>(1) Upon the whole record plaintiff did not show any equities. Neither did the petition state any for the reason that she had an adequate remedy at law. It' should have been dismissed for want of jurisdiction. An action at law in probate court gives them an adequate legal remedy. Todd v. Terry, Ex’r, 26 Mo. App. 598; Hammons v. Benfrow, 84 Mo. 332; Hoffman v. Hoffman, Ex’r, 126 Mo. 486. (2) The burden of proof rests upon plaintiff to show that deceased converted this property to his own use. This rule is so well settled that citation of authorities are unnecessary. And to show that such property was brought to his farm where plaintiff resided is insufficient to show a conversion. Ward v. Maffit, 38 Mo. App. 395. W. C. Church could not have been deemed to have reduced his wife’s property to his possession by the care and custody of it. R. S. 1889, sec. 6869. (3) The evidence in this case on part of plaintiff is wholly insufficient to support the claim, granting that plaintiff stated a cause of action. The court, being tiler of the fact and the judge of the credibility of the witnesses, the judgment was for the right party.</p>

— Hon. E. L. Scarritt, Judge. (1) “An interplea is in the nature of a replevin, ingrafted by statute on the proceeding in attachment; certainly then it will not lie where the action of replevin will not. The very object ,of the action in replevin is the recovery of specific personal property in hind. It partakes in this respect of the nature of a proceeding in rem.” Spooner v. Boss, 24 Mo.

— Hon. E. P. Gates, Judge. (1) By the provisions of the statute it is imperatively required that an affidavit from the justice of the peace shall state, among other things, whether “such appeal is from the merits or from an order or judgment taxing costs.” R. S. 1889, sec. 6330; Greischar v. Alexander, 56 Mo. App. 56.

Jackson Circuit Court. — Hon. J. H. Sloven, Judge. (1) In the absence of and apart from each and all of those facts proving as a matter of fact a contract for a continuing employment on the part of defendants, the law presumes that all general employments are at will merely, and the burden of proving an employment for a definite period rests upon him who alleges it. Mechem on Agency, sec. 210.

— Hon. C. L. Dobson, Judge. The evidence shows that the work was accepted by the city more than three months prior to the commencement of this action, hence it can not be maintained. Charter, art. 4, sec. 20; Maxwell on Code PL, p. 86; Chitty on PI. [16 Ed.] 386. It is evident that the common council could, by ordinance, confer on* the board of public works the duty of accepting this work, and it could also confer that duty on the city engineer, as was done in this case.

— Hon. J. H. Sloven, Judge. (1) Long Brothers were clearly negligent in time and manner of presenting check and thereby made Eckert’s check their own because the drawee failed. Morrison v. McCarty, 30 Mo. 183; Chotean v. Bowse, 56 Mo. 65; Marburg v. Brinkman, 23 Mo. App. 513; Wear v. Lee, 26 Mo. App. 105; Dyas v. Hanson, 14 Mo. App. 363; Shoe Co. v. Crosswhite, 51 Mo. App. 60; Corkv.

Charles Circuit Gomt. — Hon. E. M. Hughes, Judge. This is a creditor’s bill, and the proper proceeding to subject equitable assets of defendant to the payment of his debts. Brigham onEq., sec. 525; Pickens v. Dorris, 20 Mo. App. 1; Humphreys v. Milling Co., 98 Mo. 545. See, also, Merry v. Keenan, 44 Mo. 518; Turner v. A.dams, 46 Id.'95; Iron Co. v. McDonald, 61 Mo. App. 559.

— Hon. Edwin R. McKee, Judge. The instrument sued on could not be received in evidence without first proving its execution, and that its execution was duly authorized. R. S. 1889, sec. 2187. It is only by virtue of express statutory provisions that county warrants can be sued on. Bank v. Franklin Co., '65 Mo. 105. Section 2186, Revised Statutes 3889, governs this case, as construed by this court in Handley v. Wy, 55 Mo. App. 505.

<p>Appeal from the Webster Circuit Court. — Hon. Argus Cox, Judge.</p> <p>Defendant was indicted and tried as a dramshop keeper when he should have been indicted as the proprietor of a drug store under the druggists’ laws of 1886. R. S. 1889, secs. 4611-4621, 6422; State v. Gibson, 61 Mo. App. 368; State v. Williams, 69 Id. 285, 286.</p> <p>At the time the sales were made, defendant had a merchant’s license, and, in addition to a stock of drugs and medicines, a stock of Cigars, notions, etc.; and if he does not come within the druggist act, should have been indicted under the merchants’ act. State v. Gibson, and State v. Wilson, supra.</p>

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

— HoN.. E. M. Hughes, Judge. The most extravagant construction of the grant of power to cities of the fourth class to regulate license and restrain runners for public houses, etc., would not give the city authority to pass an ordinance restraining hotel proprietors from soliciting trade for their hotels. Trenton v. Clayton, 50 Mo. App. 535; Knapp v. Kansas City, 48 Id. 485.

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

Hon. Reuben E. Roy, Judge. The only question presented in this ease is whether or not, under the testimony, the cause should have been submitted to the jury. Dunn v. JR’y, 21 Mo. App. 188; 81 Mo. 434, and citations. When there is no substantial evidence in support of a defense, it is proper to instruct for a verdict,in favor of plaintiff. Brewery Co. v. Schoenlau, 32 Mo. App. 357.

— Hon. Reuben E. Roy, Judge. ■ The plaintiff is both a married woman and the head of a family, and was entitled to her exemptions under Revised Statutes 1889, section 6864, and Id. sections 4903-4906. The failure of the constable ■ to apprise plaintiff of her exemptions and to respect such exemptions when demanded of him, constitutes a breach of the conditions of his bond, and he is liable thereunder.

— Hon. E. M. Hughes, Judge. The petition does not state that plaintiff was the owner of the property insured, either at the time of the issuance of the policy or at the time • of the loss, and is not sufficient to support the judgment. Scott v. Ins. Co., 65 Mo. App. 75; Story v. Ins. Co., 61 Id. 534; Harness v. Ins. Co., 62 Id. 245; Western Union Co. v. Dunbar, 26 S. W. Rep. (Tex.) 628; Fowler v. Ins. Co., 26 N. Y. 422; 2 May on Ins. [3 Ed.], sec. 590.

— Hon. E. M. Hughes, Judge. The advertisement of the sale of the insured property under the deed of trust avoided the. poliey. Titus v. Ins. Co., 81 N. Y. 410; Meadows v. Ins. Co., 17 N. W. Rep. (Iowa) 600; Mclntirev. Ins. Co., 102 Mass. 230; Quinlan v. Ins. Co., 133 N. Y. 356; Stvpple v. Ins. Co., 58 Iowa, 29; 1 Wood on Ins. 402.

— Hon. Reuben E. Roy, Judge. Having a legal right to construct and maintain a pond on his own premises, defendant is only answerable in damages in case he negligently constructs and maintains it. Kosher v. B. B., 60 Mo. 329; Muri Jeers v. R. B., Id. 334; 24 Am. and Eng. Ency. Law, 904, 911; Gray v. McWilliams, 32 Pac. Rep. (Oal. 1893) 976.

— Hon. Reuben F. Roy, Judge. The court erred in failing to make a finding as requested, or else its finding on every other issue in the case was in -favor of plaintiff, leaving only its finding that the note was paid to be reviewed by this court.

— Hon. E. M. Hughes, Judge. Contracts of guaranty, like all contracts, must be mutual to be binding. Taylor v. Sho%ise, 73 Mo. 363. Bickley’s offer of guaranty never became binding upon him, because respondent never notified him of .acceptance. Sewing Machine Co. v. Richard, 115 U. 8. 524; Davis v. Wells, 104 IT. S. 159; Newman v. Coal Co., 19 Ill. App. 594; Schuster v. Weis, 114 Mo. 166; Taylor v. Shouse, supra; Beers v'.

<p>Evidence: findihg. When there is substantial evidence supporting the finding and judgment of the court in a cause, the judgment will he affirmed, unless it affirmatively appears from the record that legal error intervened on the trial of the cause.</p> <p>evidence: findIng-</p>

— Hon. E. M. Hughes, Judge. The keeping of the billiard and pool tables at the same time and place by defendant constituted but one offense, and the same could not be legally split and made the basis of two prosecutions. R. S. 1889, secs. 708, 709, 714. One can not lawfully conduct a pool table under a billiard table license, nor vice versa. The cost of the license is fixed by the statute — for a pool table $10, and for a billiard table $20, for twelve months.

<p>Appeal from the St. Louis■ City Circuit Court. — Hon. Pembrook E. Flitcrapt, Judge.</p>

<p>Appeal from the Audrain Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>A bill of exceptions filed after the expiration of the time allowed for filing can not be considered on appeal, although filed with the consent of the parties and approved by the court. Dorman v. Coon, 119 Mo. 68; Danforth v. B’y, 123 Id. 196; Fulkerson v. Murdock, Id. 292; State v. Simmons, 124 Id. 443; Beal Estate & Bldg. Ass’n v. Transit Co., 127 Id. 499; State v. Sclmchmann, 133 Id. Ill; State v. Dillon, 132 Id. 183; Lowen v. Hicks, 63 Mo. App. 84; State v. Harrison, 62 Id. 113; Wyllie v. Hefferman, 58 Id. 657; 'State v. Stveeney, 54 Id. 581; State v. Woolwine, 128 Mo. 347; 2 Thorap. on Trials, sec. 2815, p. 2137.</p>

<p>1. Pleading: statute op prauds. Under a general denial it is unnecessary to plead the statute of frauds to entitle the plaintiff to its benefits.</p> <p>2. Statute of Frauds: verbal contract por purchase op land: evidence. Nor is plaintiff preeludedfromthat defense on the ground of having taken possession of the premises in question under an oral agreement, where he abandons the premises because the vendor'was unable to make a deed in pursuance of such agreement.</p> <p>3. -: -: partial payment: mistake. A party paying part of the purchase money of land is not precluded from recovering it back, where there is a misunderstanding between the parties as to the kind of title to be conveyed, and the money is paid under a mistaken belief of one party that the other understood the contract as he did.</p> <p>P,tTe ofIfraudtat”</p> <p>s vCTba“confSictS! landTevicienc<f.</p> <p>P'm™Lmistike.</p>

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

— Hon. E. M. Hughes, Judge. A proceeding to revive a judgment is not a new action, but merely a continuation of the old cause. Coomes v. Moore, 57 Mo. 338; Krats v. Preston, 52 Mo. App. 251. The right to a change of venue is purely statutory, and can not be allowed in any case where not specially given by statute. State ex rel. v. Wofford, 119 Mo. 408. The statute gives no power or authority to a justice to grant a change of venue in a proceeding to revive a 'judgment.

— Hon. 0. 0. Bland, Judge. It was not admissible to convict the defendant under a different name than that under which he was charged. Fanny v. State, 6 Mo. 122; Wood v. Hicks, 36 Id. 326. It was error to admit incompetent testimony, though corroborative, which tended to draw the minds of the jury from the point in issue. State v. McGuire, 16 Mo. App. 558; Bitter v. Bank, 87 Mo. 574. The court erred in giving instruction 4 on the part of the state.

<p>Appeal from the Greene Circuit Court. — Hon James T. Neville, Judge.</p> <p>The testimony consisting of admissions and writings, the finding of the trial court has no binding force upon this court, and it will apply to the facts the legal results following therefrom, and if the judgment is not supported by the evidence this court will reverse. King v. Ins. Co., 36 Mo. App. 128; Gardner v. Ins. Co., 58 Id. 611.</p>

<p>Appeal from the Newton Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>Plaintiff must maintain his suit wholly on the strength of his claim. The descriptive clause of his mortgage is indefinite in that it does not specify the year in which the crops are “to be grown,” nor otherwise designate any particular crops which may be claimed under it. Pennington v. Jones, 57 Iowa, 37.</p> <p>The covenant by which Stockstill bound himself to cultivate the land for the defendant bank, for the considei’ation named in the lease, was reasonable and not repugnant to law or public policy. The crops grown upon the land so leased daring the term would be the property of the bank, and could not be mortgaged by Stockstill to another. KamericJe v. Castlemcm, 23 Mo. App. 481.</p> <p>The court erred in admitting, for the purpose of defeating the leasehold of the bank, the unrecorded deeds to the plaintiff, of which the defendant had no notice. R. S. 1889, sec. 7453.</p> <p>The lease is neither a chattel mortgage nor descriptive of a pledge, and the court erred in admitting testimony in regard to the payment of interest in excess of the legal rate; also in instructing the jury that if it was found that a rate of interest in excess of eight per cent was paid, the lease was void. Sess. Acts 1891, “Interest,”- see. 2, p. 171.</p> <p>The respondent’s rights were superior in every respect. A parol chattel mortgage is valid, and a mere oral agreement to give such mortgage will be enforced in equity. Jones on Chat. Mort., sec. 2, 3. See, also, Id., secs. 143, 174; JEdmonston v. Wilson, 49 Mo. App. 491; Jones on Chat. Mort. [4 Ed.], secs. 140, 141; Booker v. Jones, 55 Ala. 226.</p> <p>Appellants’ “lease” contract was at most only a chattel mortgage security for a debt tainted with usury and subject to all the rules applicable to such mortgages. Body. Law Lie..Per. Prop.; 1 Schoul. on Per. Prop. [1 Ed.], p. 28; 2 Black. Com. 386; 2 Kent Com. 341, 342; R. S. 1889, sec. 6368; Will, on Per. Prop. [4 Am. Ed.], p. 2; Schoul. on Per. Prop. [1 Ed.], p. 45; R. S. 1889, sec. 4954; Wash. Real Prop. [2 Ed.], hook 1, ch. 1, sec. 17; Will. Real Prop. [17 Ed.], p. 28; Cobb v. Bay, 106 Mo. 295; Cooper v. BrocJc, 41 Mich. 488; Hargadine v. Henderson, 97 Mo. 386; Am. and Eng. Ency. Law, Chat. Mort.-[2 Ed.] 950,954.</p> <p>The so-called “lease” does not on its face constitute or convey to the bank a leasehold interest. 12 Am. and Eng. Ency. Law, title “Lease,” p. 976; Boom v. Stover, 66 Mo. 434; Johnson v. Hoffman, 53 Id. 508.</p> <p>The usurious acts of the bank' officers rendered their chattel mortgage security void. Laws 1891, p. 170. See, also, VoorMs v. Stead, 63 Mo. App. 370; Johnson v. Simmons, 61 Id. 396; Rubber Co. v. Wilson, 55 Id. 656.</p>

<p>1. Municipal Corporations: injunction to stay collection on TAX UNDER ORDINANCE EXTENDING CORPORATE LIMITS. A proceeding by injunction to stay tbe collection of a tax, imposed under an ordinance extending the corporate limits of a city, is not an attack upon its corporate existence. In this state such an ordinance is subject to the same tests as other municipal legislation. Copeland v. St. Joseph, 126 Mo. 417.</p> <p>2. -: ORDINANCE EXTENDING CORPORATE LIMITS: CONSTRUCTION: validity. By section 4 of an ordinance of the city council of St. Charles extending the corporate limits, providing that the ordinance should not take effect until after receiving a majority of the votes of the legal voters of the city at an election held as therein provided, it was not the purpose of the council that the entire ordinance should not go into effect until after such election. In so far as it provided for holding the election, the ordinance went into effect when it received the approval of the mayor.</p> <p>3. -: -: reasonableness. An ordinance extending the .corporate limits of a city so as to take , in contiguous territory, suited for city purposes, densely populated, and already receiving many of the advantages of the city, is not unreasonable or inequitable.</p> <p>1'Say collection ' ordinance1^*tmenfntSrpo'</p> <p>°fend1ngCcorpx0-sfruct™n:svaud-lty'</p> <p>°tendingcorepo-reasonableness,</p>

<p>• Building and Loan Associations: loan on personal security: statutory CONSTRUCTION. Section 2811, Revised Statutes 1889, providing that no loans shall be made by building and loan associations to members, or others, on personal security, is merely a limitation on their corporate powers; it does not declare such loans void.</p> <p>Building and loan associations: loan on personal security : statutory construction.</p>

<p>Appeal from, the Christian Circuit Court. — Hon. James T. Neville, Judge.</p> <p>The note having been altered, without the knowledge or consent, of the defendant, by the erasure of the credit from the back thereof, became a forged instrument, and void in the hands of any person, even of an innocent purchaser before maturity. Trigg v. Taylor, 27 Mo. 247; Haskell v. Champion, 30 Id. 136; Evans v. Foreman, 60 Id. 449; Bank v. Armstrong, 62 Id. 59; Bank v. Dunn, Id. 79; Moore v. Hutchinson, 69 Id. 429; Bank v. Fricke, 75 Id. 178; Morrison v. Qrath, 78 Ac?. 434; Bobinson v. Berryman, 22 Mo. App. 509; Bank v. Clark, 52 Id. 593; Bank v. Bosserman, Id. 269; Bennett v. Nolte, 55 Id. 184; Brewing Co. v. Hasen, Id. 691; Ivory v. Michael, 33 Mo. 398; Middaughv. Elliott, 61 Mo. App. 601; Allen v. Dorman, 57 Id. 288; Bank v. Meyers, 50 Id. 157.</p> <p>A note, or any contract, may be written in pencil, and is as valid as if written in ink. And indorsements on notes may be written in pencil, and are also valid. Jeffrey v. Walton, 1 Stark, 267; Merritt v. Glason, 12 Johns. 102; 7 Am. Dec. 286; Glasson v. Stearns, 4 Vt. 11; 1 Rand, on Com. Pap., secs. 60, 702, 1888; Chitty on Bills, p. 146, sec. 147; 65 Am. Dec. 127; Reed v. Roark, 14 Tex. 329; 1 Par. on Notes and Bills, pp. 21, 22; Geary v. Physic, 5 B. and 0. 234 ; 2 Am. and Eng. Ency. Law [1 Ed.], 318; Meyers v. Vanderbilt, 84Pa. St. 513, 514; Ins. Go. v. Bucher, 91 Id. 490.</p> <p>If a note, bill or check is so negligently drawn, with blank spaces left for the addition of other words or figures, that alterations can be made so as not to excite suspicion, the loss will fall on the person in fault. Trigg v. Taylor, 27 Mo. 245; Bank v. Murdock, 62 Id. 70; Bank v. Armstrong, Id. 59; Brown v. Reed, 79 Pa. St. 370; Seibel v. Vaughn, 69 Id. 257; Harvey v. Smith, 55 Id. 224; Bank v. O’Gonnel, 23 Mo. App. 165.</p> <p>“He who, by his carelessness, has enabled another to obtain the money of an innocent person, is answerable for the loss.” Bank v. O’Connel, supra.</p>

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

<p>Practice, Trial: amended petition: motion to strike out: waiver. The failure of defendant to stand on its motion to strike out the amended petition, and its going to trial on the issues presented thereby, after the motion was overruled, was a waiver of the matter set up in the motion.</p> <p>Trial practice: amended petition: motion to waiverout:</p>

— Hon. Argus Cox, Judge. Certified to supreme court. The pension money was a trust fund in the hands of plaintiff for the use of his wards, and he had no power to part with the title to it without the sanction of the probate court. It was a trust fund in the hands of the bank receiving it, as it did, with notice of its trust character; and the fact that it was mingled with the funds of the bank does not change its character.

— Before Hoe W. Gr. Robertson, Special Judge. The burden of proof is on the interpleader to show-good title in himself, and the defendant may show any facts under a general denial which go to disprove intei’-pleader’s title. Bank v. Lime Co., 43 Mo. App. 561; Bosse v. Thomas, 3 Id. 472; Commission Co. v. Mason, 16 Id. 473; Pugh v. Williamson, 61 Id. 165.

— Hon. J. C. Lamson, Judge. The instruction asked for by appellant should have been given as it was warranted by the testimony, and clearly stated the law. State v. Laramore, 19 Mo. 392; Same v. Same, 20 Id. 425; 'State v. Young, 36 Mo. App. 517. It was necessary to establish that the amount of liquor sold was less than four gallons, which the evidence failed to show. State v. Anderson, 81 Mo. 78. The court erred in failing to sustain defendant’s motion for new trial.

— Before Hon. Chakles J. Weight, Special Judge. To entitle plaintiff to a decree on the ground of indignities, the indignities must be frequent, and must be of such nature as to tend to the subversion of the family relations. Webb v. Webb, 44 Mo. App. 229. Failure to support up to the date of the alleged desertion is not established by the evidence.

— Hon. J. 0. Lamson, Judge. Plaintiff’s action is for constructive services. Such action will not lie in this state. Stone v. Vimont, 7 Mo. App. 277; Bennett v. Gar Roofing Co., 23 Id. 587; Evans v. R’y, 24 Id. 118; Ehrlich v. Ins. Co., 88 Mo. 257.

— Hon. W. N. Evans, Judge. The court erred in refusing to instruct the jury that defendant was only required to keep its streets in a reasonably safe condition, and if the accident occurred when they were in such condition, 'then defendant would not be liable. Bassett v. St. Joseph, 53 Mo. 290; Brown v. Glasgow, 57 Id. 156; Craig v. St. Louis, 92 Id. 482. The court also erred in refusing instruction number 3 offered by defendant.

— Hon. E. M.. Hughes, Judge. The contract sued on is based upon an illegal consideration, contrary to public policy, and void. Harrington v. Crawford, 61 Mo. 221; Samev. Same, 136 Id. 467; State to use v. Homer, 44 Id. 99; Bobards v. Samuel, 17 Id. 555; Carroll v. Pastridge, 12 Mo.

— Hon. L. B. Woodside, Judge. An action can not be maintained on a replevin bond until there is a final adjudication of the replevin suit proper. 2 Am. and Eng. Ency. Law, 466 R, 466 S, 466 T; 1 Ency. Plead, and Prac. 1013, 1014; 7 Lawson on Rights, Rem. and Prac. 5518, 5649-5651; Hansard v. Reed, 29 Mo. 472; EUiott v. Blackehal, 45 Id. 372; State ex rel. v. Williams, 48 Id. 214; Sauer v. Griffin, 67 Id. 654; State ex rel. v. McKeon, 25 Mo.

— Hon. James E. Green, Judge. The indictment is drawn with the evident intention of charging a violation of section 21 of the dram-shop law of 1891, and is fatally defective in failing to charge the alleged offense in the language of the statute. Sess. Acts 1891, p. 131. The defect in the indictment being fatal, a motion to quash, or in arrest, is not necessary, as this eo urt will notice the defect on appeal. State v. Meyers, 99 Mo. 112; State v. Fleming, 117 Id. 377.

— Hon. Argus Cox, Judge. Defendant bad a merchants’ license at the time the alleged sales were made; he also kept a stock of drugs, etc.; and if he does not come within the druggists’ act, he should have been indicted under the merchants’ act. State v. Gibson, 61 Mo. App. 368; State v. Williams, 69 Id. 284; Same v. Same, Id. 286.

— Hon. James F. Green, Judge. Under the uneontradieted evidence in this case the house was log and box, and not frame, and there should have been a finding for defendant on this issue alone. Moreover, it was not ceiled as warranted, and was worth much less than the warranted value. Loehner v. Ins. Go., 17 Mo. 247, 255; Lama v. Ins. Co., 51 Mo. App. 450; Maddox v. Ins. Go., 56 Id. 343; Brooks v. Ins. Co., 11 Id. 349;. School District v. Ins. Co., 61 Id. 597.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. The administrator has no authority under the law to change the purchase price of real estate of his decedent, sold at public sale by him of his own free will. Crowley v. McCrary, 45 Mo. App. 356. The probate court has no powers except those conferred by statutory enactments or by necessary implication. Bradley v. Woerner, 46 Mo. App. 371; Braw-ford v. Wolfe, 103 Mo. 391.

<p>Appeal from the Phelps Circuit Court. — Hon,, L. B. Woodside, Judge.</p>

Charles Circuit Court. — Hon. E. M. Hughes, Judge. Criminal statutes should be strictly construed, and, unless an act alleged to have been committed by the defendant comes within both, the spirit and the letter of the statute, he should be acquitted. Black on Inter, of Laws, secs. 113, 114; St. Louis v. Goebel, 32 Mo. 295; State v. Schuchncmn, 133 Id. Ill; State v. Qritz-ner, 134 Id. 512.

— Hon. James T. Neville, Judge. There is no proof in this case showing or tending to show that Sheppard had any authority to release or discharge defendants, the O’Donalds, from personal liability on the note sued on. Alexander v. Rollins, 14 Mo. App. 109; Hoppe v. Saylor, 53 Id. 4. See, also, Mech. on Ag’cy, sec. 273; White v. R. R., 19 Mo. App. 400; Brooks v. Jameson, 55 Mo. 505; Guppies v. Whalen, 61 Id. 583.

— Hon. James T. Neville, Judge. The only evidence in this case even tending to show a release and acceptance is parol, and inadmissible. 1 G-reenlf. Ev. [12 Ed.], p. 312, sec. 275; Lawson on Con., p. 394, sec. 372; Burner Bros. v. Strong, 61 Tex. 555: Sirk v. Ma, 163 Mass. 394; Johnson v. B’y, 141 U. S. 602; Newman v. Bank, 70 Mo. App. 135. No proof as to the words and acts of an agent are admissible until his agency is established by proof. White v. B. B., 19 Mo.

<p>• Practice, Appellate: bill op exceptions: failure to preserve exception. An assignment of error as to the giving of instructions is not reviewable, where the bill of exceptions fails to show that any exception was made to the instructions at the time they were given.</p> <p>bill of excep-preserve^ exifep-* tlon‘</p>

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. There can be no partial assignment of an account or negotiable instrument without the consent of the debtor. Love v. Fairfield, 13 Mo. 300; Bwnett v. Cran-dall, 63 Id. 410; Beardslee v. Morner, 73 Id. 22; Loomis v. Bdbinson, 76 Id. 488; Bank v. Noonan, 88 Id. 372; Leonard v. B?y, 68 Mo. App. 48; Mandeville v. Welch, 5 Wheat. 286. See, also, Edwards on Bills and Notes [3 Ed.], secs. 280, 396; 1 Dan’l Neg.

— Hon. James T. Neville, Judge. The city council is a miniature general assembly, and its enactments and ordinances, within the limits of its charter, have the force and effect of laws. Dill, on Mun. Oorp. [4 Ed.], sec. 308, and notes; Taylor v. Carondelet, 22 Mo. 105; St. Louis v. Foster, 52 Id. 513. They are also authorized in their corporate capacity to make assessments on property for paving, macadamizing and otherwise improving streets. R. S. 1889, sec. 1495.

— Hon. Henry C. Riley, Judge. The only negligence charged is a failure to ring the bell or sound the whistle on approaching the Edwards crossing; recovery must be had upon this, ground, if at all. .Gurley v. B. B., 93 Mo. 445; Capital Bank v. Armstrong, 62 Mo. 59; Buffington v. B. B., 72 Mo. 34; R. S. 1889, sec. 2608. This suitisbrought for single damages for killing stock on a public crossing.

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

<p>1. Pleadings: practice. It is a well settled principle of pleading that performance of a condition precedent must be alleged or an excuse given for its nonperformance to make the pleading a good one.</p> <p>2. Bill of Exceptions: abstract must contain what. The abstract under second alternative of section 2253 muy be in the narrative form, and it need not contain more of the record and bill of exceptions than is pertinent and relative to the questions presented to the appellate court for review. When in narrative form and the narrative is not correct, it is the duty of the other side to point out the error misstatement.</p> <p>3. -: counter showing not made: effect .on. When there is no counter showing made, the court is bound by the recital of the facts in appellant’s abstract.</p> <p>dissenting opinion by judge biggs.</p> <p>4. Bill of Exceptions: recitals in abstract. These recitals appear only in the paper referred to, the contents of which can not be accepted as evidence of any thing’, unless it is shown by the certificate of the clerk indorsed thereon or by a record entry, that the paper was' filed within the leave of the court. There is no bill of exceptions.</p> <p>MtheTe?ro?‘out</p> <p>c?edtTaiboundby</p> <p>Cdem™rfMm-e' tncegSustbe</p>

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

— Hon. Henry C. Riley, Judge. In a garnishment proceeding the answer of a garnishee to the interrogatories propounded, the denial of that answer and the reply make up the issues. R. S. 1889, sec. 3534; Brown etal. v. Gmnmersel, 30 Mo. App. 341; McQuarry v. Geyer, 57 Mo. App. 213.

<p>Appeal from the Newton County Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>A power of attorney authorizing one to collect money on a fire insurance policy, and with it to pay a certain debt, is not such an assignment of the policy as to prevent the money due thereon and still in the company’s hands, from being secured by garnishment sued out by another creditor of the assured. Greenwood v. Boyd & Baxter Furniture Factory (13 S. E. Rep. 128), 86 Q-a. 582; Turk v. Cook, 63 Gra. 681. The alleged assignment was unliquidated — no fixed amount, nor time, nor mode of payment. The alleged assignment in this case is at most for only a part of the claim, and a part can not be assigned without consent of the debtor, and if it amount to an equitable assignment, it is invalid since the claim is an unliquidated one. Kendall v. U. S., 7 Wall. 113; Madeville v. Welsh, 3 Wheat. 277; Burnett v. Crandall, 63 Mo. 410. The alleged assignment, being for only a part of the claim, and the debtor not consenting thereto, is invalid in law or equity. Burnett v. Cran-dall, 63 Mo. 410; Beardslee v. Mortgner, 73 Mo. 22. It has been held that an unaccepted order or check for a part of a fund does not operate as a legal or equitable transfer of so much of the fund as is therein called for, and such order is wholly unavailing against a subsequent garnishment sued by a creditor of the drawer. E’y v. Wright & Co., 38 Mo. App. 141; Dowell v. Banking Ass’n, 62 Mo. App. 482.</p> <p>A conflict in the instructions will not necessitate a reversal, if upon the substantial merits of the case, appellant was not prejudiced. Sawyer v. Drake, 34 Mo. App. 472. Inconsistency in instructions is not ground for reversal if it appears the jury could not have been misled thereby. Kelley v. Clancy, 16 Mo. App. 549; Alexander v. B’y, 19 Mo. App. 312; Creio v. B’y, 19 Mo. App. 302. The assumption of a fact not disputed and which must have been found by the jury if submitted to them is harmless error. Sheehan v. Sims, 36 Mo. App. 224. Instructions should not assume facts, but if the matters covered by the instructions are conceded facts, such instructions are not prejudicial and do not warrant a reversal. Hanlon v. O’Keefe, 38 Mo. App. 273. And an appellant can not complain of an error in instructions given at the instance of the respondent, if those given at his instance contain the same error. McGonigle v. Daughtery, 71 Mo. 259; Holmes v. Braicl-woocl, 82 Mo. 610; Thorpe v. B’y, 89 Mo. 650. Nor can he complain of an instruction given at his own request. Musser v. Adler, 86 Mo. 445. The motion for new trial must call the attention of the trial court to the giving and refusing of instructions. No objection was raised in the motion for new trial to the giving of appellants’ instructions. Linneus v. Dusky, 19 Mo. App. 20; Schlicher v. Gordon, 19 Mo. App. 179, Claimant may interplead for part of the money. Shinn on Attachment, sec. 677 and cases cited; Distilling Co. v. Hubbard, 53 Mo. App. 23 and 31; Breiving Ass’n v. Draulinger, 62 Mo. App. 486; Williams v. Braden, 63 Mo. App. 513. The company consented to the assignment of part of the claim and it was therefore valid. Alexander v. B’y, 54 Mo. App. 74. Although Withrow & Smith may not have had authority to accept partial assignment, yet company have ratified their action in filing answer as garnishees and have waived all objections as to partial assignment of claim. White v. Nelson Mfg. Co., 53 Mo. App. 337. An appellant is estopped from complaining of errors into which he himself led the trial court. White v. Nelson Mfg. Co., 53 Mo. App. 337. We submit that the judgment of the trial court should be affirmed.</p>

<p>Pleadings: practice, amendment op. Amendment of description in plaintiff’s petition being made beyond the time within which he was permitted to file alien, merely conformed the statements of the petition to the statements contained in plaintiff’s notice of an intention to file a lien. It has been espressly held that such statements are allowable, and for the purpose of effectuating a lien relate back to the institution of the suit.</p> <p>of description in petition.</p> <p>STnótfcTreíaSt¿n</p>

— Hon. James T. Neyille, Judge. The rule is that all the instructions must be read together; and when thus read and considered together, the law of the case is properly declared, and there is no error. Korlev. R. R., 55 Mo. 476; Sivanv. Lull-man, 12 Mo. App. 583; McKeon v. JR. R., 43 Mo. 405; Benham v. Taylor, 66 Mo. App. 308.