Volume 74 — Missouri Appeal Reports

— Hon. J. O. Lamson, Judge. Under the general issue raised on the replication the plaintiff may prove any fact which goes to show that defendant never had a cause of action against him. Hoffman v. Parry, 23 Mo. 20; Young v. Glasscock, 79 Mo. 574. What may appear to be new matter may be admissible under a general denial, where the facts constituting the new matter do not confess and avoid but tend to disprove the allegations of plaintiff’s petition. Turner v. Thomas, 10 Mo.

J. O. Lamson, Judge. The statement as to the information and motion to quash an action of the trial court, as set out in appellants’ brief, is substantially correct. The court did not err in overruling defendant’s motion to quash the information in this case. The information is substantially good under section 3785, Revised Statutes 1889. It fairly and fully informs the defendants of the charge which they are called upon to meet. State v. Buck, 43 Mo.

<p>Appeal from the Greene Circuit Court. — Hon. James T. Neville, Judge.</p> <p>No briefs filed.</p>

— Non. James T. Neville, Judge. The only contract made by the Dry Goods Company in relation to this land was its warranty deed. The supreme court lays down this rule, that “where a conveyance of real estate becomes complete the parties make and accept the covenants therein as measuring the liability on the part of the grantor and the compensation afforded the grantee in case of breaches.

— Hon. Reuben F. Roy, Judge. The first point that the respondent makes and calls the attention of the court to is that the appellants did not save any exceptions to the action of the trial court in sustaining in part the exceptions of plaintiff to the report of the referee, page ninety-six of the transcript in the case; and page ten of the appellants’ brief and abstract fails to show any exceptions saved by the appellant to the action of the trial court, of which he…

<p>Appeal from, the Lawrence Circuit Cou/rt. — Hon. J. 0, Lamson, Judge.</p> <p>When plaintiff has shown facts constituting a delay of creditors nothing further is required of him. The result of such facts is the sustaining of the attachment. Noyes v. Cunningham, 51 Mo. App. 194. Where money is secreted for purpose of maintaining defense on attachment it is a fraud as matter of law. If so, then is not the secreting or concealing of defendants’ property in name of mother for purpose of keeping off creditors until statute of limitations should run against their claims fraudulent as matter of law? Mathews v. Loth, 45 Mo. App. 455. When the record owner of property remains the apparent owner, the real owner not being known; that is, the property in reality belonging to one party, while the apparent ownership is in another, it is a fraud. Bank v. Doran, 109 Mo, 40. Where the facts are undisputed the law pronounces the conclusion of fraud and it is the duty of the court to so declare. Mathews v. Loth, 45 Mo. App. 455; Oliver-Einnie Grocery Co. v. Miller, 53 Mo. App. 107. Appellate courts will reverse the judgment where the verdict is against the conceded facts; where there is no evidence to support it; or where so opposed to the evidence and all probabilities as to be the manifest result of prejudice or mistake. Newland College v. Boreh, 44 Mo. App. 19; Wilburn v. R. R., 48Mo. App. 224; Manerman v. R. R., 41 Mo. App. 348. If the verdict is not supported by substantial evidence it will be reversed. Kehoe v. Phillipi, 42 Mo. App. 292; Polhaus v. R. R., 45 Mo. App. 153; Watson v. Race, 46 Mo. App. 546. Where the verdict is inconsistent with the admissions of the successful party and the uncontradicted testimony, the appellate court will reverse' the cause. Holt v. Morton, 53 Mo. App. 187. Where there is no evidence to support the verdict the judgment will be reversed; especially if apparent injustice is shown by the record. Lewis v. Pallin, 48 Mo. App. 657; Leland V. Wilson, 50 Mo. App. 37.</p> <p>The question as to whether or not the $3,000 capital had been furnished by Mrs. Holberg, whether it was her money, or whether it was funds really belonging to respondents, as appellants alleged, were material issues in this case, and the mortgage executed by Mrs. Holberg by means of which she borrowed the money, the letter from the parties from whom she thus borrowed it, transmitting it to respondents, at her request was all competent evidence, as constituting a part of the res gestae of the principal fact which was being made the subject of the inquiry. 1 Grreenl. on Ev. [13 Ed.], paragraphs 108 and 116; Mann v. Best, 62 Mo. 491; Corbett v. R. R., 26 Mo. App. 621; State ex rel. G-riggs v. Edwards, 78 Mo. 473. But even if this evidence is not competent, upon the theory above advanced, its admission does not constitute reversible error for obvious reasons. If it is held that it was neither material nor necessary for respondents to show where Mrs. Holberg got this money, or that it was her own, then the admission of incompetent evidence to establish such fact is no-reason for interfering with the judgment. Witthouse v. R. R., 64 Mo. 524. If it was material for respondents to show this fact, but this evidence was incompetent, its admission is not reversible error, because the fact was already satisfactorily established by competent-evidence, to wit, the evidence of respondent, H. C. Holberg, pages 73 and 74, printed record. Lane v. Lane, 113 Mo. 504. This evidence complained of was but cumulative on a point already testified to by other witnesses and its admission for that reason is not reversible error. Mayer v. Old, 57 Mo. App. 639. Appellant offered no evidence in support of their contention, or contradictory of the fact the evidence complained of tended to prove, and its admission for that reason is not reversible error. State to use v. Teichman, 13 Mo. App. 579, 580; Wilkinson v. Ins. Co., 54 Mo. App. 661. Appellant also read as an admission the deposition of respondent L. N. Holberg, in which he testified to the same fact which this evidence complained of tended to establish and for this reason its admission can not constitute reversible error. Blackwell v. Bailey, 1 Mo. App. 328. “Under the mandatory prohibition contained in section 2303 of the Revised Statutes of 1889, appellate courts can not reverse a judgment unless it is believed, not only that * error was committed, but that such error materially affected the merits of the action. Unless these two essential conditions are believed to co-exist there can be no reversal.” Bindbeutal v. E’y, 43 Mo. App. 463. In their assignment of errors, counsel allege that error was committed by the trial court in refusing the three instructions numbered 11, 12 and 13, asked by appellants. This point is probably waived, as no reference is made to it in their “points and authorities” or argument, but we desire to say in reference to this branch of the case that an inspection of these three instructions will show that they were properly refused by the trial court. First. Because, in the seven instructions already given at the request of the appellant, every phase of appellant’s case had been properly covered and submitted tp the jury. Second. Because the thirteenth instruction was without any evidence whatever to support it, and the twelfth and eleventh are predicated upon a conclusion to be-drawn from but a partial statement of the evidence bearing on a question of fact in the case. Third. Because all three instructions were improper, as being comments on the evidence and as singling out a fact that the evidence might conduce to establish and ■ giving it undue prominence. Forrester v. Moore, 77 Mo. 651; Eothschild v. Ins. Co., 62 Mo. 356; Noyes v. Cunningham, 51 Mo. App. 144.</p>

<p>Appeal from the Barry Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>Appellant assigns as first error: The court erred in permitting irrelevant and incompetent testimony on behalf of plaintiff. This was an action at law, in no way connected with partnership transactions. No part of plaintiff’s cause of action accrued during the partnership between plaintiff and defendant. Defendant admitted that he purchased the wheat before the formation of the partnership, and that he borrowed the money after its dissolution. These two items covered plaintiff’s cause of action. The only testimony relative to partnership matters, admitted by the trial court concerned items set up in defendant’s counterclaim and the claimed payment for the wheat, and the defendant first adduced testimony to support them, hence it does not lie in his mouth to complain of an error that he himself caused the court to commit, if it be error; and if it was error, then it was harmless, because in the specific findings of fact the judgment clearly shows that the court did not into consideration any of the partnership matters. It is true defendant objected to plaintiff testifying that certain items contained in defendant’s counterclaim pertained to partnership transactions; but this was competent evidence and properly admitted. An unsettled partnership account between plaintiff and defendant can not be pleaded as a counterclaim to an action at law. Berthold v. O’Hara, 121 Mo. 88. One partner may maintain an action at law against the other partners or any of them, for moneys advanced, or paid, or contributed at their request, for their separate and distinct account and benefit. Story on Partnership [4 Ed.], p. 352, sec. 219. See, also, Berthold v. O’Hara, 121 Mo. 88. Appellant assigns as second error: The finding of the court was against the undisputed evidence. Defendant admits purchasing the wheat prior to the partnership between plaintiff and defendant, and that he borrowed the money after its dissolution, but insists that he paid for the wheat by transferring stock in the mill and an account against Gladden to the use and benefit of the firm of which he was a member, the testimony of defendant is conflicting as to his asserted payment, and the payment is positively denied by the plaintiff. It is shown by the evidence of plaintiff that in an effort to arrive at a partnership settlement, the amount of the mill stock was claimed as a credit due defendant on the partnership account, and this fact is not controverted by defendant. Where there is a substantial conflict in the evidence as to the only issue presented, the appellate court is precluded from interfering with the judgment. Thompson v. Oth, 67 Mo. App. 643. The court found for the plaintiff the amount of his claim, $199, less $98.20 found due defendant on his counterclaim. The testimony of defendant amply supports the judgment. A jury being waived, the court was the sole judge of the credibilty of witnesses. No declarations of law were asked, no error was committed, and the judgment ought to be affirmed.</p> <p>Under the first error complained of it is maintained by appellant that the court erred in permitting the plaintiff over objections of defendant to enter into the partnership matters which it was conceded had never been settled between plaintiff and defendant. See evidence of plaintiff Jed Carlin, page —. A justice of the peace has no jurisdiction of an action of one partner against another in respect to partnership matters, prior to a settlement between them. Newberger v. Freede, 23 Mo. App. 631. It is settled law that an action of one partner against another, or an unsettled account is purely an equitable action and a justice of the peace has no jurisdiction. Rankin v. Fairly, 29 Mo. App. 587. It is not pretended that there had ever been any settlement of the partnership matters between plaintiff and defendant, and the court erred in permitting plaintiff to introduce evidence of the partnership matters. ■ Since the circuit court tried the case and had no right to admit testimony other than would have been admissible before the justice It is clearly apparent that the invoice of stocks in the mill taken at the time of the formation of the partnership went to pay for the wheat or any prior indebtedness that Haynes might owe- Carlin. This fact is still more clearly demonstrated and proven by the statement or balance sheet furnished by Carlin’s attorney to Haynes before commencement of this suit. See statement on page — abstract. No mention is made of this wheat indebtedness. Under the second error complained of the court evidently committed error in his finding, the same being against, the clear evidence in the case. And we are at a loss to know upon what theory, or course of reasoning the court rendered judgment against the defendant in this case. When we follow the evidence of both the plaintiff and the defendant, no such verdict can be arrived at, and all the evidence being preserved the appellate court will interfere to correct such errors. There is no evidence to support the finding of the court. The judgment is for the wrong party and should be reversed.</p>

Louis City Circuit Court. — Hon. Hoeatio D. Wood, Judge. Under the undisputed evidence in tbe ease, tbe judgment of the court should have been for plaintiff. The judgment of the court is against the law as laid down by the court. John J. Stevens, the interpleader, did use his pretended claim for the purpose of hindering and delaying plaintiff in the collection of its debt. He participated in the wrongful acts, of his sons.

<p>Attachment: evidence: official acts of recorder. The official acts of a re'corder can not be known by his official signature alone. The law requires that his official act shall be attested by his seal of office before it will take cognizance of the act.</p>

— Hon. J. H. Sloyer, Judge. (1) The local agent of a common carrier has no authority to bind the carrier by the issue of the bill of lading when the property is not in the possession of the carrier. Bank v. Laveille, 52 Mo. 380; Schooner Freeman, 18 How. 182; Grant v. Norway, 2 Eng. Law and Eq. 337; Hubbersty v. Ward, 8 Exch. 330; 1 Parsons, Mart.

<p>Equity: interpleader: belief of assignee. Where an assignee for creditors under a bill of interpleader with the consent of the creditors pays money into court, he is relieved from all responsibility for the disposition of the money and the court directs its payment. Suggestions as to allowance of cost.</p>

— Hon Richard Field, Judge. (1) While an assignor under the statutes has a right to select an assignee, such selection must be made with reference to the interests of creditors rather than the debtor. Matter of Kaughn, 13 Daly; Angelí v. Rosenbury, 12 Mich. 253; G-uerin v. Hunt, 6 Minn. 395. The law contemplates that such assignee shall be an entirely disinterested party. Roan v. Winn, 93 Mo. 512; Kehoe v. Taylor, 31 Mo. App. 588.

— Hon. Riohaed Field, Judge. (1) The court should have sustained plaintiff’s motion in arrest of judgment, and erred in sustaining defendant’s motion to correct judgment. The judgment as corrected is not in accordance with the verdict and the verdict was not warranted by the pleadings. Paddock v. Lance, 93 Mo. 283; Hamilton v. Clark, 25 Mo. App. 428. (2) The evidence in this case is not sufficient to show fraud of any kind.

— Hon. G-. F. Longan, Judge. (1) On this record we say the court erred in refusing the fourth instruction asked by defendant declaring plaintiff could not in any event recover on account of the trees that grew in the street and in giving the third one for plaintiff allowing recovery for said trees. Elliott on Roads and Streets, p. 519-525, and cases cited; Bishop, Non-Contract Law, sec. 873; Gamble v. Pettijohn, 116 Mo. 375; 1 Dillon, Mun.

— Hon. Jos. D. Perkins, Judge. (1) All the evidence in the case proves the contract on part of respondent to transport appellants’ corn to Little Rock, and that the agent of respondent’s road at Joplin, Missouri, had authority to 'make such a contract. And having made such a contract, respondent, in same contract, can not limit its liability to the terminus of its own line. R. S. 1889, sec. 944; McCann v. Eddy, 133 Mo. 59.

— Hon. D. P. Stratton, Judge. There was no valid sale of the land which entitled plaintiff to recover even if he had authority to sell the same. The agreement between the plaintiff and the supposed purchaser, one John Yeomans, of Iowa, was_ not in writing and therefore void. R. S. 1889, section 5182. The statements of Yeomans were not admissible in evidence. O’Niel v. Crain, 67 Mo. 250; Eougue v. Burgess, 71 Mo. 389.

— Hon. C. L. Dobson, Judge. (1) The contract between the defendant and John M. Woodson, which was assigned to Bridges, offered in evidence by defendant, is against public policy and void. It is an attempt of the defendant, by the contract, to exempt itself from liability, for loss caused by fire even though the negligence of defendant caused the fire. It can not so exempt itself. Leonard v. R. R., 54 Mo. App. 293; Ueorgev. R’y, 57 Mo. App. 358; Walker Bros. v. R’y, 68 Mo.

— Hon. Jno. W. Henry, Judge. (1) The insurance company, upon payment of the amount due from it to Burruss, at once became subrogated to all the rights of Burruss, against the railroad company to the extent of such payment. Steamship Co. v. Ins. Co., 129 U. S. 397-464; Hall v. R. R., 13 Wall. 367; Steamboat Potomac v. Cannon, 15 Otto, 630; R’y v. Rogers, 76 Va. 443; 11 Ins. L. J., 899; Hart v. R. R., 13 Met. 99.

— Hon. C. L. Dobson, Judge.. (1) The first point we urge is that the petition does not state facts which entitle respondent to equitable relief, but shows upon its face that respondent is not entitled to the relief prayed. It is a fundamental principle that before equity will lend its aid, the party invoking it must show himself without adequate legal remedy. 3 Pom. Eq., secs. 1360-1365; Spitz v. Kerr-foot, 42 Mo. App. 77; Thias v. Senier, 103 Mo. 314.

— Hon. C. L. Dobson, Judge. (1) The special tax bills introduced in evidence are by positive law prima facie evidence of the liability they purport to declare. Amended Charter- of Kansas City, sec. 18, art. 9, p. 25; Wolfort v. St. Louis,. 115 Mo. 139-144. (2) It seems clear that the charter requires that the cost of the sidewalk should be assessed upon the land to which it adjoins.

— Hon. J. H. Sloven, Judge. (1) With regard to personal property there is a long line of decisions in this state that in actions of trespass for the conversion or seizure of personal property, interest should be allowed on its value from the date of the conversion up to the time of trial and mandatory instructions to the jury of this kind have been approved.

— Hon. Jno. W. Henry, Judge. (1) The operative words of conveyance in the mortgage, as shown by the copy of it in the record, are to “Luther A. Carpenter,’’ “his heirs and assigns,” and the note secured by it is described as payable to “Luther A. Carpenter, agent.” James C. Carpenter’s name nowhere appears in the mortgage. The legal title, therefore, to the property was vested in Luther A. Carpenter, and the cause of action, if any, also vested in him.

— Hon. J. H. Sloven, Judge. (1) A codefendant with the city can not be dismissed by the plaintiff without the consent of the city. If the codefendant is dismissed by plaintiff, all further proceedings in the case will be stayed.

— Hon. J. H. Slover, Judge. (1) As the sale under a chattel mortgage is for the benefit of the mortgagee, if he sees fit to give credit to a purchaser, it is not ground for avoiding the sale. The mortgagee who sells for credit must account for the amount of the sale as cash. Williams v. Hatch, 38 Ala. 338; Warren v. His Creditors, 3 Wash. St. 48. (2) Harkness & Eussell had an undoubted right to purchase at the sale, as the mortgage gives them that right.

— Hon. E. L. Scarritt, Judge. The first error is that plaintiff’s petition filed in the court below doesi not state facts sufficient to constitute a cause of action in favor of the plaintiff and against - the defendant, National Pump Company. 1 Wait’s Act. and Def., p. 155; Warner v. Bennett, 31 Conn. 468; Smith v. Jewett, 40 N. H. 530; Adams’ Eq., 350 note; Carlson v. Segog, 62 N. W. Rep. 1132; Adams’ Eq. [5 Am.

<p>Appeal from the Phelps Circuit Court. — Hon. L. B. Woodside, Judge.</p> <p>It must be accepted as tbe settled doctrine under our attachment act that there must be filed with the clerk a “Petition or other lawful statement or exhibit of his cause of action,” and an affidavit and bond. R. S. 1889, ch. 10, secs. 525, 528. Otherwise the court acquires no jurisdiction to try the cause. Massey v. Scott, 49 Mo. 278; Drake on Attach., secs. 84-88; Talbot v. Woodlee, 19 Wis. 174; Staples v. Fairchild,, 3 Comst. 41; Miller v. Brinkerhoff, 4 Denio, 118. If there be a failure in the affidavit every subsequent step will be coram non judice. . Conrad v. McGee, 9 Yerg. 428; Page v. Ford, 2 Sm. & M. 266; Smart v. Howe, 3 Gibbs (Mich.), 590; Burnett v. McOluey, 78 Mo. 676. The memorandum or copy is not evidence. It can be used only for the purpose of refreshing the memory of the witness, who must speak from his recollection, thus refreshed, independent of the copy. Anchor Mills v. Walsh, 37 Mo. 567; Robertson v. Roed, 38 Mo. App. 32. Where, in an attachment proceeding there is' no personal service, jurisdiction can be obtained only by statutory publication. Massey v. Scott, 49 Mo. 278; Anderson v. Scott, 2 Mo. 15; Brown v. Woody, 64 Mo. 547.</p> <p>Ordinarily, if a record be lost, its contents may be proved like any other document, by secondary evidence, when the case does not, from its nature, disclose the existence of other and better evidence. Foulk v. Couborn, 48 Mo. 225; Parry v. Walser, 57 Mo. 169; Addis v. Graham, 88 Mo. 197; Smith v. Lindsey, 86 Mo. 76. When judgment is rendered in favor of the attached defendant on the merits, he may sue on the attachment bond, although he did not plead in abatement of the attachment. State, etc., v. Bledsmeier, 56 Mo. 226.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Seldon P. Spencer, Judge.</p> <p>The court took up appellant’s exceptions and appeal ; she offered the association’s books of accounts to show that the demands allowed lenders to the association after June 21, 1895 (when the law permitting it to borrow to a limited extent went into effect), to date of dissolution, were far in excess of that limitation, and also of the limitation prescribed by its own by-laws, and that therefore the demands allowed were contracted in the face of the statutory and by-law prohibition. There was no objection to this evidence. The court took tlfe case under advisement, and later, summarily and of its own motion, set aside the hearing and overruled her exceptions and appeal, on the ground that appellant had not shown any cause why her exceptions should be reheard by him. Appellant could not know, until the report was filed, what the commissioner would find and report; whether he would allow claims for loans at all, or if he did, that he would give the lenders preference over the stockholders in order of payment, or vice versa. Therefore, when the report was filed.and she learned, for the first time, that the lenders were to have priority over herself and fellow stockholders, she properly filed her exceptions and appeal in the manner provided in the circuit court. Having excepted and appealed, it was the duty of the court to hear and consider all the testimony she desired to offer to show that the demands of the lenders so allowed were illegal, null and void.</p> <p>Counsel for appellant have termed her exceptions to the commissioner’s report an “appeal.” This misnomer probably arises from the record entry providing for the appointment of a commissioner and the hearing of claims against the association, which recites that “any person feeling himself or herself aggrieved by the decision of the commissioner upon any claim, may appeal therefrom.” The use of the word “appeal,” instead of the word “exceptions,” as is the proper term-in such a proceeding, can not give to the appellant any right greater than that which attends a proceeding before a commissioner or referee, and the action of the court upon his report. It may be correctly asserted that the record shows an indulgence to the appellant in the circuit court upon the hearing of her exceptions to the commissioner’s report greater than that to which she was entitled, and that she was permitted to exercise the very right for which she now contends; because the court not only considered the commissioner’s report, but actually heard new and additional evidence offered by the appellant; and, in fact, there was a trial de novo of her exceptions before the circuit court. On this hearing the court found that the new evidence was not sufficient to overcome the report of the commissioner, which was confirmed. But the appellant was not entitled to a trial ele novo, as on an appeal from a judgment of a justice of the peace or from a finding of a statutory assignee, both of which proceedings are governed by statute. The matters attending a proceeding before a commissioner, or, to use the statutory term, referee, and the consideration of his report by the court which appointed him, are governed by the common law and usage and practice, to which the memory of man runneth not to the contrary; and the rule was not changed in this particular case by the record entry in which the word “appeal” was used, when it was intended to designate “exceptions” to the commissioner’s report. The findings of a referee or commissioner have always been and are how regarded as a special verdict. It is the duty of the commissioner, or referee, to report all the evidence to the court, together with his findings thereupon, and, nothing to the contrary being shown, it is to be presumed that such is done, and was done in the pending proceedings. The very purpose of the reference of matters pending before a court, or the appointment of a commissioner to pass upon claims and other matters incident to a chancery suit, such as in receivership proceedings, is to relieve the court of all labor or inquiry into certain details which can better be done by a person specially appointed for the purpose. If on the report of the referee or commissioner the whole matter is to be tried de novo, regardless of his findings and his report of the evidence submitted, the very purpose of the appointment is defeated. The old rules governing proceedings before masters in chancery have been followed in reference proceedings under the statutes of Missouri. The supreme court of Missouri has declared that the statutory reference is the same as the proceeding before a commissioner or master appointed to report facts for the information of the chancellor before the adoption of the code of civil procedure. Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578; Darling v. Potts, 118 Mo. 506; Lee v. Dunn, 29 Mo. App. 467; Bender v. Markle, 37 Mo. App. 234; Smith v. Paris, 70 Mo. 615.</p>

— Hon. Alex. Ross, Judge. It is not enough that the party should be the innocent and injured party and goes into court with clean hands. “But if it should appear to the court that the injury or offense complained of, shall have been occasioned by collusion of the parties, or done with an intention to procure a divorce or that the complainant was consenting thereto then no divorce shall be granted.” R. S. 1889, sec. 4507.

— Hon. Jno. C. Lamson, Judge. The defendants had not pleaded and were not relying on the mortgage put in evidence, nor had any testimony been offered identifying the goods in controversy as being the goods covered by the mortgage and showed upon its face that the goods had been sold in the usual course of business. Therefore the mortgage should have been excluded.

— Hon. E. M. Hughes, Judge. No action accrued on the bond until final settlement was made. Ridgway v. Kerfoot, 22 Mo. App. 661; Woerner Admst. Law, sec. 312, p. 654. When this suit was instituted no cause of action had accrued. The conditions of the bond had not been broken. The condition is that he “should faithfully administer said estate.” This could not be determined until final settlement was made. Defendant’s instructions 3, 8 and 9 should have been given.

— Hon. Henry O. Riley, Judge. The estate of John Albert was hopelessly bankrupt, with over $7,000 of judgments of the fourth clasp allowed and over $5,000 of allowed claims in the fifth class, and Mrs. Teresa Albert was the owner by purchase of over $3,000 of these fifth class claims. She was also the sole legatee under the will.

Hon. Frank E. Burrough, Judge. On the trial the curator made no effort to show why he had not loaned his ward’s money. That was a matter entirely within his knowledge, and it devolved upon him to explain his failure to discharge the duties of his trust.

Petition for writ of Certiorari. — County Court of Scott County. The law provides that in cities having less than twenty-five hundred inhabitants that the dramshop keeper must present to the county court a petition containing a majority of the assessed taxpaying citizens and guardians of minors owning property in the city, and in the block or square. Acts 1891, secs. 4 and 8, p. 128.

<p>Appeal from the Barry Circuit Court. — Hon. Jno. C. ■Lamson, Judge.</p> <p>The only consideration for issuing the certificates of deposit by the cashier, was the unauthorized and unlawful action of the board of directors, for which defendant bank was not liable. R. S. 1889, see, 2756. The causes upon which the plaintiff recovered were actionable at law and had no connection with the matters upon which he asked equitable relief. Hence the demurrer should have been sustained for this reason. The other stockholders had no interest in plaintiff’s recovering judgment against defendant bank.</p> <p>While the acts of the directors in cutting down the capital stock from $25,000 without giving proper notice or without complying with the provisions of the statutes in such cases was an irregularity that would justify and warrant the court in appointing a receiver, yet it would not be a reason why the bank would not be responsible for the amount of the certificates of deposit that it issued; and if it did not issue its certificates regularly it would not be permitted to take advantage of its own wrong. 2 Beach on Modern Law Contracts, see. 925.</p>

<p>1. Construction of Statute: rule of construction on statute ADOPTED FROM ANOTHER STATE OR FOREIGN COUNTRY. In adopting tile statute of another state or foreign country which has received a known and settled construction by the courts where it originated, the meaning thus given the act, if not opposed to our constitution or laws, will be presumed to be the meaning intended by our legislature.</p> <p>2. Evidence. In the ease at bar plaintiff alleged that defendant forged the name of her deceased husband to the check which it paid her. Held, that plaintiff had á right to offer in evidence other writings admitted or proven to be in defendant’s handwriting as standards of comparison with the disputed writing.</p> <p>3. Evidence: statutory construction: handwriting. According to the act approved April 8, 1895, page 284 of the Session Aets 1895, “any writing’’ without regard to its relevancy, if proven or conceded to be genuine, may be submitted to witnesses to be compared with the disputed writing, and the writing itself, as well as the evidence of the witnesses, shall go to the court and jury as evidence of the “genuineness or otherwise’’ of the writing in issue.</p>

— Hon. John C. Lamson, Judge. But statutes concerning attachments expressly provide that any person claiming property, money, effects or credits attached, may interplead in the cause. R. S. 1889, sec. 572. And the right is the same whether the attachment is one sued out in a court of record or before a justice of the peace. R. S. 1889, sec. 604.

— Hon. E. M. Hughes, Judge. Respondent’s motion for judgment, notwithstanding appellant’s return, to the alternative writ of mandamus, issued by the court against him admits the allegations in said return set forth. State ex rel. v. Neville, 110 Mo. 345. And the cause will be heard in this court, upon the record proper, notwithstanding the fact that there was no motion for new trial or in arrest of judgment filed in the trial court and reverse judgment if erroneous.

<p>1. Injunction: PRACTICE, trial: bar. We do not think the adverse ruling of the court on the motion made by plaintiff after judgment in the suit on the note was a bar to this proceeding.</p> <p>2. Judgment by Default. Sueh motion, the judgment being a mere default, was not properly a motion for a new trial. It was an attempt to vacate a judgment in a cause wherein no trial had taken place, and to be permitted thereafter to raise certain issues in defense.</p> <p>3. Res Adjudicata. It was not in any sense a judgment on such issues in an action between him and the defendant and hence lacked the essential elements of a former adjudication.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. Held: that where the error is prejudicial the case will be reversed notwithstanding it is for the right party.

Francois Circuit Court. — Hon. James D. Fox, Judge. The trial court erred in overruling defendant’s demurrer, and in entering final judgment upon said demurrer, making the temporary injunction theretofore granted in said cause final and perpetual, after defendants had elected to stand upon said demurrer, and had declined to plead further in said cause.

Louis City Circuit Court. — Hon. Pembroke R. Flitcraft, J udge. The motion to modify the judgment having been filed at the term at which the judgment was rendered, was sufficient to save exceptions to the action of the court in rendering the judgment, although the motion was not filed within four days after the judgment was rendered; and this court will review the action of the trial court with respect to that portion of the judgment sought to be modified.

— 'Hon. John C. Lamson, Judge. There were no equities in this ease to adjust. Plaintiff was entitled to judgment for the whole of the property replevied. Property which has been attached and released to the defendant, upon his executing a delivery bond therefor, with sureties, can not again be attached while liable to be required to be delivered under the bond.

<p>1. Agistment: burden of proof: negligence. In the ease at bar the right of recovery is based on the negligence of the defendants in permitting the heifer to escape, which had been placed by plaintiff with defendants for pasturage. In such a case the burden of proof never shifts but remains with 'the plaintiff throughout the case.</p> <p>2. -: -: -. The plaintiff made out a prima facie easeof negligence by proving a delivery o£ the property to the defendant for pasturage, and the failure to return it after the reception of tho defendant’s evidence, it was for the jury to say from the evidence taken as a whole whether the plaintiff had shown that the damage or loss was occasioned by the negligence of the defendants.</p>

— Hon. James D. Eox, Judge. The issue, as stated in the trial court’s findings of conclusions of fact and law, viz., “whether or not the note in suit was accommodation paper, or was executed for a valuable consideration,” was error. First. The issue was, by the answer, “a want of the consideration in whole.” R. S. 1889, sec. 2090; Williams v. Melton, 56 Mo. 262. Second.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. The most prominent issue developed by the record and briefs is that arising out of the attempt of respondent, as plaintiff in attachment, to defeat an inter-pleader, not by maintaining a superior claim to defendant’s title in the property by virtue of the attachment proceedings, but by repudiating all title in the attachment defendant, asserting title in himself independent of his position as attachment plaintiff, and in…

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>The court erred in its instruction given of its own motion, because it misrecited the facts therein and because it conflicted with the other instructions given. It was reversible error for the court to admit in evidence any portion of the order for goods except that covering the goods in controversy, and it was likewise error in admitting in evidence the various letters between the parties concerning other goods than those in controversy for the reason that such evidence tended to prejudice the minds of the jury against the defendant, and the same was likewise irrelevant and immaterial. The law is well settled in this state that before one purchasing goods is bound to accept them, the vendor must show that the goods delivered were exactly like the goods sold, and unless he does make that proof, he can not recover. As was stated by this court in Calhoun v. Paule, 26 Mo. App. 274: “There is no doubt whatever that, where a contract of sale has been so far executed that the property has been delivered by the vendor and unconditionally accepted by the vendee in a subsequent action by the vendee for the purchase money, if the vendee pleads, as he may, a breach of an express warranty as a partial or total failure of consideration, the burden is on him to show that the warranty was broken.” As to the other question, viz.: Did the defendant within a reasonable time notify plaintiff of its refusal to accept the goods? Certainly whatever was done after it did give the notice can not in any way throw any light on the question whether the notice was given in time. The counsel of plaintiff said and urged as a reason for introducing the subsequent letters that he desired to show that the defendant’s reason for not accepting the coats was other than the one alleged. But that was not an issue; and the testimony bearing on that point had no tendency to prove the issue as to whether the goods were rejected in time. Therefore, I say that the testimony was derogatory and hurtful to the defendant. It may be argued that if the defendant did not within a reasonable time notify the plaintiff that it rejected the coats it makes no difference whether it had a right to reject them or not. Admitting for the time that this is a correct proposition, still, the error is none the less which permitted the plaintiff to show to the jury by irrelevant testimony that the defendant rejected the coats for other grounds than those alleged by it. Especially is this so, since the evidence could but prejudice the minds of the jury against the defendant. For all of which reasons the judgment should be reversed.</p> <p>Under the proceedings there were only two questions before the jury. First. Was defendant indebted to plaintiff for goods, wares and merchandise sold and delivered by plaintiff to defendant? Second. Had defendant been damaged, as claimed by it in its answer, by reason of any failure on the part of plaintiff to deliver goods purchased by defendant from plaintiff ? Any evidence which tended to prove or disapprove both or either of said propositions, was admissible. It is manifest that all of the evidence objected to by defendant bore directly on those issues. If the goods corresponded with the order, viz.: if they were a “job lot,” within the meaning of the term as used by the parties in making the contract, then plaintiff was entitled to recover, notwithstanding the fact that the goods had been reshipped to plaintiff and stored by plaintiff subject to defendant’s order. Lumber Co. v. Lumber Co., 51 Mo. App. 555; Crown Vinegar Co. v. Wehr, 59 Mo. App. 493. If defendant failed to reject the goods and notify plaintiff within a reasonable time after they arrived at defendant’s store, then defendant was liable on plaintiff’s cause of action, even though the goods did not comply with any warranties made by plaintiff. The only objection to the instruction given by the court, of its own motion, is the fact thr.t in this case it left it for the jury to say whether the goods, if they did not comply with the order, were rejected within a reasonable time. While it is usually a question of fact for the jury, still, under certain facts and circumstances, it becomes the duty of the court to declare that, as a matter of law, the goods were accepted and not rejected. The court should have instructed the jury that, as a matter of law, from July 6, 1896, to August 13, 1896, was an unreasonable time in which to determine whether the coats complied with plaintiff’s alleged- representations. It does not take long to determine whether a coat has a light or a dark lining. Defendant, therefore, is in no position to complain that the court gave it an additional loophole to escape liability by submitting the question to the jury. Glaus & Sons Mfg. Co. v. Mfg. Co., 42 Mo. App. 307; Tower v. Pauly, 51 Mo. App. 75.</p>

<p>1. Mandamus: demurrer: pleading. The only question presented for review in this ease is as to the ruling of the court in sustaining the demurrer to the return made hy respondent to the alternative writ. The return denied the contract, which is the basis of the relief sought. This denial was a specific traverse of the contract as alleged in the alternative writ, and was therefore sufficient to put its existence in issue under the rules of pleading applicable to proceedings in mandamus.</p> <p>2. -: -: -: statute of frauds. The denial of the contract also sufficed to raise the issue as to the statute of frauds.</p>

<p>1. Promissory Note: married women: consideration. The finding of facts by the trial court shows that only $4 of the consideration of the note arose after the statutes of this state were adopted making married women liable in actions at law upon notes and other contracts. Held, that the judgment will be affirmed as to the wife, and modified as to the husband, so as to conform to the stipulation filed by him in court.</p> <p>2. Practice, Trial: practice, appellate. The cause was submitted to the court without a jury. No declarations of law were asked or given at the trial. In such cases the finding and judgment must be affirmed, if they can he sustained on any theory of law applicable to the facts adduced on the trial.</p>

Louis City Circuit Court. — Hon. Pembroke R. Flitcraft, Judge. The relation between a bank and a depositor therein is that of debtor and creditor. 1 Morse on Banks and Banking [3' Ed.], sec. 289; Newark on Bank Deposits, sec. 103; Bank v. Risley, 111 U. S. 125-127; Bank-v. Morgan, 117 U. S. 104-106; State v. Reid, 125 Mo. 51; Knecht v. U. S. Sav. Inst., 2 /Mo. App. 564.

— Hon. Jno. C. Lamson, Judge. An officer may be sued by the attaching creditor for not exercising due diligence in keeping the attached property. Waples on Attachment, sec. 971; Drake on Attachment [3 Ed.], sec. 411; Wade on Xtthchment, sec. 2207; 1 Am. and Eng. Ency. of Law [1 Ed.], p. 929. An appeal perfected in time will prevent a dissolution of the attachment. 3 Am. and Eng. Ency. of Law [2 Ed.], p. 242.

Appealfrom the Newton Circuit Court. — Hon. Jno. C. Lamson, Judge. There is only one theory upon which the plaintiff would be entitled to recover in this action, and that is that in building the embankments across the slough, the railroad company was negligent, its act, was in no sense unlawful; there is a marked distinction between an unlawful act, and a negligent act.

<p>1. Criminal Law: indictment: statutory construction. Section 3732, Revised Statutes 1889, comprehends in its provisions every person holding an office of public trust under the laws of the state, high and low, executive, judicial and ministerial ones.</p> <p>2. -. The statute being penal the words “willful and malicious” as used in it must be construed to mean something more than their signification in common parlance. The word “malicious” in the statute has its accepted legal meaning when used in penal statutes, i. e. “a wrongful act intentionally done, without just cause or excuse.”</p> <p>3. -The word “willful” must be restricted to such acts as are done with an unlawful intent, and implies tort — wrong; it implies legal malice; that is, that the act was done with evil intent, or without reasonable grounds to believe that the act was lawful.</p> <p>4. Criminal Law: indictment: statutory construction. To constitute the offense as charged in this ease the act must have been done willfully, maliciously and with a wrongful intent, and where the indictment is brought against a judicial officer, as in this case, the act must be charged to have been knowingly and corruptly done.</p> <p>5. -: ARRAINGMENT: CRIMINAL procedure. The record discloses the fact that the defendant was put upon his trial without being first arraigned, and his plea to the indictment being noted. This error necessarily calls for a reversal of the judgment.</p>

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. A broker or agent having actual or apparent authority to make contracts with third parties, who makes one in writing which shows that the subject matter is certain and there is no doubt as to the import of the terms employed, evidence of usage is not admissible.

— Hon. E. M. Hughes, Judge. This is simply an examination of the final settlement of Frank Tucker as curator of Lena and Minnie Williams. It is not a final settlement in compliance with section 5329, Revised Statutes 1889, as no notice of the same was given to the successor, J. T. Williams, as is provided by that section, as in case of revocation of curatorship.

<p>Appeal from the St. Louis City Circuit Court. — Hon.' L. B. Valliant, Judge.</p> <p>A court of equity will not restrain the continua4tion of a trespass upon realty where an adequate remedy at law may be had, unless the trespass threatened or committed is of a nature to permanently injure or destroy the inheritance or otherwise inflict such irreparable mischief as is not susceptible of adequate compensation by way of pecuniary damages. Boeckler v. R. R., 10 Mo. App. 448 (opinion on motion for rehearing); R. R. v. Maddox, 92 Mo. 469; Thias v, Siener, 103 Mo. 314; Spitz v. Kerfoot, 42 Mo. App. 77. Where the injury complained of is susceptible of perfect pecuniary compensation and one for which satisfaction in damages can be had at law the injunction will be withheld. Oockey v. Carroll, 4 Md. Ch. 344; Amelung v. Johnson, 9 Grill & J. 468.</p> <p>The evidence proved that the defendants were guilty of a continuing trespass and equity will interfere by injunction to restrain such a trespass. High on Inj., sec. 709; 3 Pom. Eq., secs. 1356, 1357; Hughes v. Bums, 85 Mo. 660-668; Towne v. Bowen, 81 Mo. 491; Turner v. Stewart, 78 Mo. 480; Bank v. Kercheval, 65 Mo. 682; Lockwood v. Langsford, 56 Mo. 68-78; Weigel v. Walsh, 45 Mo. 560; Echelkamp v. Schrader, 45 Mo. 505; 22 Mo. App. 462; 34 Mo. App. 49.</p>

<p>Appeal from, the St. Louis Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>No briefs filed.</p>

— Hon. Jno. W. Henry, Judge. (1) Notice to produce an original paper is not required, when the form of the action is such as to give notice that its production will be necessary to contradict the secondary proof of the other side, if incorrect.

— Hon. Cyrus A. Anthony, Judge. (1) The statutes of the state of Missouri authorizing the incorporation of banks, by fair implication, authorize a banking corporation to invest its funds in the stock of other corporations. R. S. 1889, sec. 2751. (2) A corporation is estopped from pleading 'ultra vires as a defense to a contract from which it has received benefit. 5 Thompson’s Commentaries on Corporations, sec. 6016.

— Hon. W. S. Herndon, Judge. (1) A party can not, in an action at law, sue on one cause of action and, then, after the evidence has all been introduced, file an amended petition alleging another and a different cause of action, which other and different cause of action was not in existence at the time the action was originally commenced, and which other and different cause of action accrued subsequently to the commencement of the original action.

<p>Appeal from the BeKalb Circuit Court. — Hon. W. S. Herndon, Judge.</p>

— Hon. W. S. Herndon, Judge. (1) The holder of a negotiable note who bought for value before maturity and without actual notice, can recover upon it, although he took the same under circumstances that would have excited the suspicion of a prudent man. Nothing short of a mala fides in the holder can defeat his recovery. Even gross negligence will not defeat such a title. Hamilton v. Marks, 63 Mo. 167; Johnson v. McMurray, 72 Mo. loc. cit. 282; Mfg.

<p>Appeals: parties: unaffected defendant. An unnecessary party defendant who was wholly unaffected by the judgment can not appeal therefrom.</p>

— Hon. E. J. Broaddus, Judge. (1) It was not necessary in order to make said levy to take relator’s goods out of said store, nor did defendants have a right to take them out. And if such taking was willful, that is intentional, or said goods were injured or deteriorated in value, then the defendant in the trespass could not compel him to accept the goods back, even in mitigation of damages. Howell, Jewett & Co. v. Caryl & Co., 50 Mo. App. 440; Ward v. Moffett, 38 Mo.

— Hon. W. W. Rucker, Judge. Defendant’s demurrer offered at the close of plaintiff’s evidence should have been given. The discrepancy between the contract laid in the petition/, and the contract established by plaintiff’s evidence, amounted to a total failure of proof. Moore v. Mount-castle, 72 Mo. 605; Smith v. Shell, 82 Mo. 215; Warson v. McElroy, 33 Mo. App. 553; Budd v. Hoffheimer, 52 Mo. 297; Eyerman v. Cem. Ass’n, 61 Mo. 489; Mohney v. Reed, 40 Mo. App. loe. cit. 110.

— Hon. Geo. P. Longan, Judge. (1) This is a suit sounding in tort for a breach of defendant’s common law duty as a common carrier, and plaintiff made a prima facie case by proof of delivery for shipment, failure to redeliver at destination and the value of his stock. Clark v. R. R., 64 Mo. 446; Davis v. Jacksonville S. E. Line, 126 Mo. 69; George v. R. R., 57 Mo. App. 363.

— Hon. Geo. P. Longan, Judge. (1) The court erred in permitting defendant to testify as to the value of his stock of goods at the. time they were seized under the writ of attachment. (2) The expression “preponderance of the evidence” is not proper in an instruction, whether the case be a civil or criminal one, unless explained. State v. Heinze, 45 Mo. App. 413; Carson v. Porter, 22 Mo. App. 185; Clark v. Kitchen, 52 Mo. 316; Milling Co. v. Walsh, 37 Mo.

<p>Appeal from the Jackson Circuit Court. — Hon. Jno. W. Henry, Judge.</p> <p>The statement, whether it be held to be a statement of Account or a statement of a cause of action, is not sufficient to support a judgment. Pattison v. Lutz, 1 Mo. App. 133; Weese v. Brown, 28 Mo. App. 521; Nutter v. Houston, 32 Mo. App. 451; Rosenburg v. Boyd, 14 Mo. App. 429; Butts v. Phelps, 79 Mo. 302; Brashears v. Strock, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508; Hill v. Ore & Steel Co., 90 Mo. 103.</p> <p>We think that the meaning of this account would be fully intelligible to all business men, as well as to railway experts, and was certainly well known to Mr. Simon Grood, who had used such mileage extensively from ticket brokers, as he himself admits, and he was also fully familiar with the account sued on according to his own testimony. That, in making statements of accounts, even for suit in justices’ courts, figures and bookkeeping abbreviations are allowable, is a matter which scarcely requires argument. Even in mechanics’ lien cases, where the greatest particularity is required, such abbreviations and technical terms have been held to be sufficient. Henry v. Plitt, 84 Mo. 237, at page 241; Johnson v. Moffett, 19 Mo. App. 161; Strathmann v. Gloria, 14 Mo. App. 1; Force v. Squier, 133 Mo. 309; Burt v. Warne, 31 Mo. 296; Fitzgerald v. Murphy, 9 Mo. App. 572; Quinn v. Stout, 31 Mo. 160; Philip v. Fitzpatrick, 34 Mo. 276; Allen v. McMonagle, 77 Mo. 478; Lewis v. Baker, 24 Mo. App. 682.</p>

— Hon. P. C. Stepp, Judge. (1) The petition is wholly insufficient to support the judgment. It does not show when Mr. Shanklin became of unsound mind, whether before or after the alleged execution of notes in suit; by what court, whether of Iowa, Arkansas or Missouri, or at what time Mr. Berry was appointed his guardian.

— Hon. P. O. Stepp, Judge. The law attaches a civil liability to two classes of acts: First, those which are in themselves unlawful, and, second, those which are in themselves lawful but which are performed negligently, or without that degree of care which the law requires. Liability for the injurious consequences of an act of second class, that is, one which is in itself lawful, does not attach unless it can be shown that it was done in a negligent manner.

— Hon. O. A. Anthony, Judge. (1) The trial court had committed no error in permitting the introduction of the depositions of defendants Robertson and Ennis, as their written and signed statements against interest. They were parties defendant and this fact made their written statements admissible. Bogie v. Nolan, 96 Mo. 91; dissenting opinion of Mr. Justice Sherwood in Priest v. Way, 87 Mo. 16; Dry Goods Co. v. McMahan, 61 Mo. App. 499; Martin v. Cropp, 61 Mo. App. 607.

— Hon. Cyrus A. Anthony, Judge. (1) Lindley should have been permitted to state the intention with which he purchased the goods constituting his stock. It was competent evidence and its weight was a question for the jury. Grocery Co. v. Ash-ton, 69 Mo. App. 463; Reid, Murdock & Co. v. Lloyd, 67 Mo. App. 513; Mannheim v. Harrington, 20 Mo. App. 297; Elliott’s Appellate Procedure, sec. 670. (2) The first three instructions given on behalf of the plaintiff are erroneous.

— Hon. Cyrus A. Anthony, Judge. (1) There is no statute authorizing the circuit court to compel the granting of an appeal from the probate court by mere rule or order. R. S. 1889, art. 14, chap. 1. (2) If the probate court wrongfully refused to grant an appeal, the remedy of plaintiffs was to have applied for a writ of mandamus.

— -Hon. Cyrus A. Anthony, Judge. (1) Where there is any evidence tending to establish the allegations of the petition, the court can not withdi’aw the case from the jury and peremptorily instruct them to find for the defendant, as the trial court did in this case. Cook v. R’y, 63 Mo. 397; Kelley v. R’y, 70 Mo. 609; Okey v. Ins. Co., 29 Mo. App. Ill; Higgins v. R’y, 43 Mo. App. 552; Patterson v. R’y, 47 Mo.

— Hon. Cyrus A. Anthony, Judge. (1) Appellant contends that the court erred in refusing to give his demurrer to the evidence at the close of the case. (2) As the evidence taken altogether was insufficient to justify the defense of novation, this is another reason why the demurrer should have been given.

— Hon. W. 8. Herndon, Judge. (1) The circuit court committed error in refusing to permit plaintiff to prove that defendant association had a fixed minimum premium of forty cents per month on each $100 loaned in letting all of its money; and that its secretary, who usually did the bidding in making loans, uniformly bid only forty cents per month as premium on $100 after the adoption of the by-laws of July 1, 1893; for this proof would have disclosed the usual course of…

Appeal' from the Platte Circuit' Court. — Hon. W. S. Herndon, Judge. (1) The evidence show clearly that Jim Saunders was in possession of the goods from and before .the date of the mortgage under which Ben bought until and up to the date of the levy by the sheriff on appellants’ execution, and that he advertised the stock of goods in his own name. There was no such a change of possession as would notify the public or any person of a change of ownership.

— Hon. A. M. Woodson, Judge. (1) Under the alleged contract the making of the deed and payment of the price are interdependent acts. Neither party can sue on the alleged contract without offering to comply on his part, and the grantor must bring a properly executed deed into court and leave it at the disposal of the defendants. 2 Pars, on Cont. 810; O’Riley v. Diss, 41 Mo. App. 191; Butler v. Manny, 52 Mo. 497, at p. 506, and cases cited; Randolph v. Erick, 57 Mo.

— Hon. H. M. Ramey, Judge. (1) The act of 1895, page 180, was intended by its very words “hereafter made,” to have only a prospective operation, and had it been intended otherwise it would be void. Gamper v. Waterbury Traction Co., 36 A. (Conn.) 806; 68 Conn. 424; Walton v. Fudge, 63 Mo. App. 56; Teete v. Bank, 115 Mo. 184; State v. Grant, 79 Mo. 113.

— Hon. A. M. Woodson, Judge. (1) This action was not instituted within six months after death, and the court erred in overruling defendant’s demurrer to evidence of plaintiff, and in refusing defendant’s instruction number 1. R. S. 1889, sec. 2823; Glass v. Walker, 66 Mo. 32; Bradley v. Ins. Co., 28 Mo. App. 7; Grigsby v. Ins. Co., 40' Mo. App.'276; Niblack on Ben. Soc. [2 Ed.], sec. 30, p. 615.

— Hon. John A, Hockaday, Judge. STATEMENT. The fee bill referred to in the following opinion is as follows :■ Filing pet.— .05; Index ease,— .10; Dock Nov. 95 term,— .10..... $ .25- Two copies pet. 1,000 words each............................... 2.00 Issuing writ, 1.00; 1 copy and certificate,— .60................. 1.60 File and entering answer,— .20; continuance,— .25...............45 Dock Feb. 96 term,— .10; file and entering amd. pet.— .20.......30 Issuing 2 subps.,— .50;…

<p>Appellate Practice: abstract: transcript. The appellate court will not go to the transcript of the record for the purpose of acquainting itself with the nature of the pleadings or evidence but will look only to the abstract, as required by the rule; and where that is insufficient under the rule, the appeal will be dismissed.</p>

Louis Circuit Court. — Hon. Pembroke R. Flitcraet, Judge. There are three questions raised by the record in this case: First. Can the defendant, being a corporation of the District of Columbia, take advantage of the provisions of the laws of Missouri, exempting certain associations from the operations of the insurance laws of this state, unless the association has complied with article 10, chapter 42, of the Revised Statutes of Missouri. Second.

<p>Appeal from the Shelby Circuit Court. — Hon. Andrew Ellison, Judge.</p> <p>The statement contains a good cause of action. Thurston v. McClanahan, 5 Mo. 521; Myers v. Wool-folk, 3 Mo. 348; Casey v. Clark, 2 Mo. 11; McCartny v. Auer, 50 Mo. 395; Smith v. Manks, 55 Mo. 106. Under our law everything arising out of contract can be assigned except personal contracts not executed. E. S. 1889, sec. 1990; Melton v. Smith, 65 Mo. 315; Morgan v. Eouse, 53 Mo. 219; Adams v. Cowherd, 30 Mo. 458. The test of assignability is whether the cause of action would pass to the personal representative of a decedent. Dean v. Chandler, 44 Mo. App. 338; Eenfro v. Prior, 25 Mo. App. 402. It is only executory contracts founded on personal trust that can not be assigned. Boykin v. Campbell, 9 Mo. App. 495; Lansden v. McCarthy, 45 Mo. 106.</p> <p>The contract for the performance of personal service is not assignable. Lansden v. McCarty, 45 Mo. 106; Boykin v. Campbell, 9 Mo. App. 495; 2 Am., and Eng. Ency. Law [2 Ed.], 1036,1037. No one who has covenanted to do an act requiring skill and proficiency can put another in his place without the consent of the opposite party. Flanders v. Lamphear, 9 N. H. 201; Burger v. Eice, 3 Ind. 125.</p>

<p>1. Replevin : statutory construction. This suit was not brought against the person who received the property of plaintiff, but against another party from whom plaintiff had not received any instalment or sum of money on the purchase price of the property. The defendant was not a purchaser, lessee, renter or hirer of the property, nor had he in any other capacity received the property from plaintiff. Held, that defendant is not protected, under the facts in this ease' by section 5181, Revised Statutes 1889, and plaintiff was not required to refund or to offer to refund to him before'he could maintain his action.</p> <p>2. -: INTEREST OE PARTIES SHOULD BE ASCERTAINED. In Suits by replevin the special interests of the parties in the property involved in the suit should always be ascertained and settled whenever it is practical to do so.</p>

Louis City Circuit Court. — Hon.Horatio D. Wood, Judge. Instruction number 2, given by the court of its own motion, is erroneous because it is not based on the evidence. There was no evidence that the defendant had acquired any information that the patent had not been assigned to the company. This was a material issue in the case in view of the fact that he did attend a meeting held after the commencement of the suit. State v. Tice, 90 Mo. 112; Conway v. R. R., 24 Mo.

Louis City Circuit Court. — Host. Jacob Klein, Judge. Where the lease stipulates that no assignment thereof shall be made by the lessee without the written consent of the lessor and the lessee does nevertheless without such consent assign the lease and puts his assignee in possession, the lessor or his assignees can not maintain an action against the lessee’s assignee or those claiming under him for taxes due by the terms of the original lease. Hynes v. Ecker, 34 Mo.

<p>Appeal from the Christian Circuit Court. — Hon. James T.'Neville, Judge.</p> <p>The record in this case shows that the defendant was indicted under the dramshop law (Acts of 1891, s¿c. 2, p. 128), when in fact he should have been indicted under the druggist law as a druggist, for the reason that the undisputed evidence in this case shows that the defendant was the owner and proprietor of the drugstore, and had taken out a license as such; that Dr.- Smith was a regular registered pharmacist and was employed by the defendant as such for the purpose of compounding and dispensing drugs, medicines and chemicals for medical use and to compound and dispense physicians’ prescriptions, and was a qualified druggist within the meaning of the law. 1 R. S. 1889, secs. 4614 and 4621. The defendant should have been indicted under the druggist law, and not under the dramshop law, for it is the design of the druggist and pharmacist law to cover all the ground in reference to sales of liquor by druggists and pharmacists without regard or reference to -other statutes. State v. Piper, 41 Mo. App. 160; State v. Rafter, 62 Mo. App. 101; State v. McAnally, 66 Mo. App. 329. And even if it had not been shown that the defendant was a druggist within the meaning of the law, it stands admitted in this case that the defendant had a merchant’s license, and should have been indicted as a merchant, and this fact alone requires a reversal of this case. State v. Cody, 69 Mo. App. 70; State v. Williams, 69 Mo. App. 286; State v. Williams, 69 Mo. App. 284.</p>

— Hon. E. M. Hughes, Judge. Where the proposition submitted to the voter is not in accordance with the notice for the election; that is, where the proposition voted upon is different from the proposition submitted by the notice of an election then the election is void. People v. Hamilton Co., 3 Neb. 274; McMahon v. Supervisors, 45 Oal. 214.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>The plaintiffs are entitled to judgment as prayed in the petition. 2 E. S., p. 2133; Eev. Ord. of 1893, see. 1278; Bank v. Haywood, 62 Mo. App. 550; Springfield v. Weaver, 137 Mo. 650; -Farrar v. St. Louis, 80 Mo. 392. Payment of the special tax bill was duly demanded on January 2, 1897, and plaintiffs are entitled to interest thereon at fifteen per cent per annum from and after said day. 2 E. S., p. 2125; Eyermann v. Provenchere, 15 Mo. App. 271; Bambriek v. Campbell, 37 Mo. App. 460.</p> <p>The actions of the trial court in refusing to give appellant’s instruction number 1, giving respondent’s instruction and rendering its judgment for respondent, were correct. Ord. 18,462, Eev. Ords. of St. Louis 1893, sec. 1278; Moran v. Lindell, 52 Mo. 229; Construction Co. v. Loevy, 64 Mo. App. 437; Independence v. Grates, 110 Mo. 374. The action of the trial court in refusing to give appellant’s instruction number 2 was correct. Eyermann v. Provenchere, 15 Mo. App. 271; Bambrick v. Campbell, 37 Mo. App. 460; Berthold v. Reyburn, 37 Mo. 597; 5 Am. and Eng. Ency. of Law, pp. 527, 528e.</p>

Louis City Circuit Cowrt. — Hon. Seldon P. Spencer, Judge. It appears from the answer of the garnishee that the resort known as Forest Park Highlands was owned and conducted by A. Vállessario and John Marre; that a certain policy of insurance was issued about May 25, 1896, insuring the buildings thereon payable to James Marre, trustee, and that the policy was subsequently turned over to Neudorf for the benefit of James Marre.

<p>1. Action on Indemnity Bond Given to Constable: damages: CLAIM FOR PERSONAL PROPERTY LEVIED ON BY CONSTABLE. Under the statutes applicable to a claim of personal property when levied on by a justice’s execution against another, the claimant, after presenting his claim as required by the statute, and after an indemnifying bond has been given to the officer against such claim, can not sue the constable for the property, but must pursue his remedy on said bond.</p> <p>2. -:--: -: statutory oonstruotion : actual and continual CHANGE OF POSSESSION: SALE OF GOODS. To accomplish the actual and continuous change of possession to render sales of goods and chattels operative against creditors under Revised Statutes 1889, section 5178, it is indispensable that the things done to evince the change of possession must be “open, notorious and unequivocal.”</p> <p>3. -: -: -. In the case at bar the only thing done at the time of the sale was to put the brother of vendee in charge of the store. Nothing further was done to arrest the attention of the public or to indicate that the store and its contents had a new owner. The name of the new proprietor was not placed upon the building, nor was the sign of the former proprietor removed. Held, that these acts did not constitute the change of possession contemplated by the statute.</p>

— Hon. Andrew Ellison, Judge. A debtor has a right to prefer creditors. Murray v. Carson, 15 Mo. 881; Alberger v. Bank, 123 Mo. 318. An absolute conveyance may be intended only as a security. Hargadine v. Henderson, 97 Mo. 375; Schradski v. Albright, 93 Mo. 42; Bank v. Powers, 134 Mo. 432. A debtor has a right to make such conveyance as he sees fit' for the benefit of part or all of his creditors.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. Where a contract, ultra vires a corporation, has been fully performed by either party, the other party will not be permitted to set up the illegality of the other without a return of the benefits received or the value thereof.

— Hon. E. R. McKee, Judge. The newly discovered evidence was not cumulative. It established the occurrence of circumstances and facts which should have changed the result of the trial.

<p>Appeal from the Lawrence Circuit Court. — Hon. J. 0; Lamson, Judge.</p> <p>Transferred to supreme court.</p>

<p>Appeal from the Lawrence Circuit Court. — Hon. J. O. Lamson, Judge.</p> <p>Teansfeeeed to supeeme oouet.</p>

<p>Appeal from the St. Louis Circuit Court. — Hon. Horatio D. Wood, Judge.</p> <p>No briefs furnished.</p>

— Hon. Andrew Ellison, Judge. “An erroneous instruction is not remedied by the giving of a correct instruction which is inconsistent and irreconcilable therewith.” State v. Cable, 117 Mo. 380; State v. Herrell, 97 Mo. 105; Bluedorn v. R. R., 108 Mo. 439; State v. Clevenger, 25 Mo. App. 653.

<p>1. Justice’s Court: justice’s docket. It is eompetent to take the testimony of the justice to prove a fact which he Was required to note in his docket, but of which the docket was silent.</p> <p>2. -: -: justice’s transcript. It is also a proper direction to the justice to amend his transcript- to conform to the facts as proven, i. e., that the note was filed for suit before him. R. S. 1889, sec. 6336.</p> <p>3. -: -: justice’s practice. The delivery of the note to the justice for suit for the amount (the interest) then due, was all the plaintiff was required or could do, and the failure of the justice to mark the note “filed” or to make an entry of it on his docket, was not the fault of the plaintiff, nor did these omissions on the part of the justice deprive him of jurisdiction to hear the cause.</p> <p>4. -: '-: -. The delivery of the instrument to the justice for suit, was in contemplation of law a filing of the instrument for suit.</p> <p>5. Promissory Note. interest, when due. Where the interest on a promissory note became due annually, the fact that it was to be compounded with the principal, if not paid, did not have the effect to postpone its payment until the maturity of the whole note, nor did the plaintiff by this stipulation waive his right to sue for and recover the annual instalments of interest as they matured.</p>

<p>Appeal from the St. Louis Circuit Court. — Hon. Seldon P. Spenoeb, Judge.</p> <p>The account sued on in the petition was proven up by the testimony of Roswell B. Swift. The defendants, E. A. McCornish and Frank Ebenrick, did not deny or contest their liability for the full amount claimed, to wit, $349.95. Their evidence and action throughout the case amounted to a confession of the account. Plaintiffs, therefore, were entitled to a personal judgment against defendants E. A. McCornish and Prank Ebenrick for the full amount of that account. Plaintiffs’ right to recover against ■ E. A. McCornish and Prank Ebenrick was not limited to the value of the materials which actually went into the houses of the Woerheide Realty & Improvement Company. McCornish and Ebenrick received the materials, used them, either in these houses or on their other jobs, and were certainly bound to pay for them. They did not deny or contest their liability for the full amount in any way whatsoever. Even though plaintiffs might fail to establish a lien against the realty, McCornish and Ebenrick were personally liable for the amount of the account. Patrick v. Abeles, 27 Mo. 184; Stebed v. Stock, 81 Mo. 456; Mulloy v. Lawrence, 31 Mo. 583; Matlack v. Lare, 32 Mo. 264; Cleveland v. Shaw, 51 Mo. 440. Even if the plaintiffs had failed to establish their 'lien, yet being entitled on the pleadings and evidence to a personal judgment against McCornish and Ebenrick for the full amount of their account, the court will remand the case to enable them to obtain such judgment. Matlack v. Lare, 32 Mo. 262, 264. There was no evidence tending to sustain the finding of the referee that McCornish and Ebenrick were not liable for the full amount of the account. Indeed the question of their liability does not seem even to have been raised or controverted by them, either by pleading, defense or by evidence. The evidence established the fact that all the materials set out in plaintiffs’ itemized account were used in the building. The notice was sufficient in itself. The proof of the service of the notice was sufficient. It was not essential that the proof of the service of the notice should be made by affidavit. The service may be shown by ‘ ‘inferential evidence” at the trial. Miller v. Hoffman, 26 Mo. App. 199; Construction Co. v. Jones, 60 Mo. App. 5; Meyer v. Christian, 64 Mo. 205</p> <p>The referee committed no error in his findings of fact or law. But even if he did, the trial court did not err in overruling plaintiffs’ exceptions to the report, because they failed to specify the grounds therefor. Exceptions which are so general as not to inform the court in what respect the findings of the referee are against the law or the evidence, are insufficient, and the action of the trial court in overruling the same, will not be reviewed in this court. R. S. 1889, sec. 2302; Hornblower v. Crandall, 7 Mo. App. 220; Singer Mfg. Co. v. Givens, 35 Mo. App. 602; Dallas v. Brown, .60 Mo. App. 493; Perry Co. v. R. R., 73 Mo. 419; Hornblower v. Crandall, 78 Mo. 582. The referee properly declared that plaintiffs were not entitled to a lien, in the absence of proof of the service of a notice on the owner of the property of their intention to file a lien. In the case of subcontractors, as a prerequisite to their right of action to enforce a mechanic’s lien against the property of the owner, the statute prescribes that they “shall give ten days’ notice before the filing of the lien * * * to the owner, owners or agent, or either of them, * * * setting forth the amount and from whom the same is due.” R. S. 1889, sec. 6723. If this court should be of the opinion that plaintiffs, on the uncontradicted evidence, were entitled to personal judgment against the defendants, Me-Cornish and Ebenrick, for a larger sum than that awarded, as contended by counsel for appellants, and plaintiffs’ exceptions to the referee’s report are sufficiently specific to raise the question of his finding on that issue, then this court would have the power to enter judgment for the proper amount without remanding the cause. It has been held by both the supreme coui’t and this court that where the referee has erred, either in his findings of fact or law, and the record contains all the evidence, as in the case at bar, and proper exceptions have been saved to such findings, appellate courts may modify his report as warranted by the evidence contained therein, without remanding the cause. Ely v. Ownsby, 59 Mo. 441; Hardware Co. v. Walton, 91 Mo. 484; Maloney v. R;y, 122 Mo. 106.</p>

— Hon. Ed. R. McKee, Judge. The instructions given for defendant are radically erroneous. Number 1 requires the jury to find, first, a sale, and, second', a delivery, before they can find defendant guilty. This is erroneous, first, in requiring a sale, because the charge is that defendant “did sell and give away” etG. This charge is based upon an ordinance making it an offense to sell or give away such liquors. Sec. 2, chap. 14, Ordinances of Hurdland.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. “The interest of each partner is a right to a share of the surplus after dll debts of the firm have been paid, including the adjustment of balances due to the partners who have advanced more than the others, and it is his interest only which is to be taken.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Seldon P. Spencer, Judge.</p> <p>Under the law and the facts as conceded by claimant’s own testimony, there was no consideration for the bill of sale read in evidence, and the same is presumptively void as against the then creditors of the Ryan Commission Company, including plaintiff. The mere giving of a negotiable promissory note even by a hona fide grantee to a grantor does not prima facie entitle the grantee to protection as against the existing creditors of the grantor. To entitle the grantee to protection it must be shown that the consideration was paid before notice of any fraud of the grantor reached him, or if he gave a promissory note, that said note had been negotiated and was in the hands of an innocent purchaser when he became aware of the fraud of the grantor. R. S. 1889, sec. 5169; Greenlee v. Marquis, 49 Mo. App. 290; Wetmore v. Woods, 62 Mo. App. 265. While on an appeal from an order sustaining a motion for a new trial the appellate court is not confined to the examination of the grounds on which the trial court. based its action in sustaining the motion, yet in this case if the trial court erred in sustaining the motion, for a new trial on the second and and third grounds, and if under the law and the facts, judgment must be for plaintiff, it will be unnecessary for this court to examine the propriety of the trial court’s action on other grounds of the motion. In other words if under the law and the facts as conceded by claimant’s own testimony, judgment must be for plaintiff, it is wholly immaterial as to whether errors were committed at the trial covered by other grounds of the motion for a new trial, and the trial court’s order setting aside the judgment and ordering a new trial must be reversed. The action of the trial court in sustaining claimant’s motion for a new trial on the second and third grounds thereof means that under the law and the facts of this case the property levied on belonged to claimant at the dates of the levies. Such a holding, under the facts and circumstances of this case, seems to us violative of every principle of law and justice. A jury under that ruling is not even permitted, under the facts and circumstances of this case, to pass on the question as to whether a note was in fact given by claimant, or if given whether given in good faith. Nor is it to be permitted under the faets and circumstances of this case to pass on the question whether or not (if claimant did give a note in good faith, and if the same constitutes a consideration) she in any manner participated in or knew of any fraud of the grantor in making said transfer.</p> <p>It was not error for the trial court to overrule appellant’s motion to vacate its order granting claimant a new trial. The law does not require or provide for the filing of such a motion or grant an appeal from any action respecting it. R. S. 1889, sec. 2246, as amended by laws of 1895, p. 91. Where, as in this case, the bill of exceptions is in part a skeleton bill and contains mere directions to insert parts of the evidence admitted at the trial, and appellant has not in any way fulfilled said directions and has not copied it into the record brought up by it to the appellate court, said court will not review the action of the trial court- in awarding a new trial on the ground that the verdict is against the evidence and the weight of the evidence. R. S. 1889, sec. 2304; Jefferson City v. Opel, 67 Mo. 394; Epstein v. Clothing Co., 67' Mo. App. 231; Robinson v. Rice, 20 Mo. 229, 236; Helm v. Gore, 65 Mo. 430; State v. Steen,115 Mo. 477. It is the duty of the appellant to see that a complete record is transmitted to the appellate court; and where the record is evidently incomplete the presumption is in favor of the correctness of the rulings of the trial court. Vaughn v. R. R., 34 Mo. App. 141, 144; Routsong v. R. R.r 45 Mo. 236; Perth v. Gilbert, 35 Mo. 135; Christ v. R. R., 36 Mo. App. 663. The trial courts have large discretion in the matter of granting new trials upon the weight of the evidence and appellate courts will not. interfere with such discretion unless it be made to appear plainly that it was improvidently exercised. Baughman v. Pulton, 139 Mo. 557, 559; Bank v. Wood,' 124 Mo. 72, 77; Shaughnessy v. R. R., 68 Mo. App. 152, 155; Thompson v. R. R., 41 S. W. Rep. 459; Garneau v. Herthel, 15 Mo. 191; Parker v. Cassingham, 139 Mo. 340; Hewitt v. Steel, 118 Mo. 463, 472, 474. It is well settled in this state that appellate courts will not, where there- is a substantial conflict in the evidence as to some material issue of fact, review the action of the trial court granting a new trial, because the verdict is against the weight of the evidence, it being the exclusive province of the trial court to weigh the evidence. Shaughnessy v. R. R., 68 Mo. App. 155; Baughman v. Pulton, 139 Mo. 559; Bank v. Wood, 124 Mo. 77. The trial court was right in setting aside the verdict; the case should not have been submitted to the jury, and judgment for claimant should be rendered by this court. R. S., sec. 2304; Baker v. Harvey, 133 Mo. 653; Grocery Co. v. Ashton, 69 Mo. App. 463, 469; Williams v. Tye, 42 S. W. Rep. (Ky.) 90; Nelson v. Tendon, 42 S. W. Rep. (Tenn.) 8; Ligón v. Tillman, 43 S. W. Rep. (Tex. Civ. App.) 1069; Jacobs v. Totty, 76 Tex. 343; s. c., 13 S. W. Rep. 372; Cummings v. Hurlbutt, 92 Pa. St. 165.</p>

<p>1. Burden of Proof: confession and avoidance: pleading. That the burden is on the defendant to prove new matter pleaded as a special defense, such as a plea in confession and avoidance, is too obvious to require argument or the citation of authorities.</p> <p>2. Custom: practice, appellate. Whether a custom is a valid or invalid one is not raised, the appellate court will not consider the matter; but where the trial court considered a custom a valid one and gave the defendant the full benefit of it, by admitting its evidence of the custom, and by its instructions to the jury, the judgment of the trial court will not be reversed.</p> <p>3. -:---: ACTION: NEGLIGENCE: INTEREST ON DRAFT: MEASURE of damages. Where an action is based on negligence, and where no pecuniary benefit has or could have accrued to the defendant, interest is not allowed.</p> <p>4. -: -: -. Where suit is brought for failure to present a draft for payment, and said draft isJ not presented within a reasonable time, the face value of the draft is the measure of damages.</p>

— Hon. E. M. Hughes, Judge. The evidence in this case tended to show that the note was given in consideration that a felony be compounded. The testimony is direct, clear and positive that such was the case, and the testimony of the cashier of plaintiff is sufficient to raise such an implication. That there was evidence tending to sustain this defense is so clear that it does not admit of doubt. This being true, the case should have gone to the jury.

— Hon. Reuben F. Roy, Judge. Cause stricken from the docket. The motion to set aside the judgment entered on plaintiffs’ nonsuit is not preserved in the bill of exceptions. There is therefore nothing for this court to review. R. S. 1889, see. 2804.

<p>Motion to Compel Sheriff to Pay Over Amount of Money Arising From Sale of Lands in Partition; parties to suit: jurisdiction. The vice of the motion in the case at bar is that a party to be vitally affected by any order that could be made on it was-not before the court, was not under its jurisdiction, and there was no-course open to the court but to overrule the motion.</p>

<p>1. Attachment: fraudulent conveyance. A conveyance made by a debtor in failing circumstances to secure an honest debt, to one or more of his creditors, to the exclusion of other creditors, is not fraudulent because its effect may be to delay other creditors.</p> <p>2. -■: -. Nor is it fraudulent if the debtor intended, when he made the conveyance, that it should have that effect, provided the preferred creditors did not participate in the fraud.</p> <p>3. -: -. But quite another proposition is presented in the - attachment suit, based on the ground of a fraudulent conveyance: the charge of fraud is levied against the debtor, and not against both debtor and preferred creditor; it is the intent of the debtor in making the conveyance at issue, and if that is found to be fraudulent the attachment should be sustained.</p> <p>4. --•: -: instruction. An instruction is erroneous which is not applicable to the theory on which a case is tried.</p> <p>5. -: -: -: fraudulent conveyance. Where it is alleged that a fraudulent conveyance has been made it is wholly im. material what amount of property the grantor may have retained; the fact that he has made one conveyance with the fraudulent intent to hinder or delay his creditors is sufficient to sustain the attachment.</p>

— Hon. Jno. G. Wear, Judge. Instruction numbered 1 is not a correct statement of the law as to the proof required to establish the fact that a conveyance is fraudulent. First. By requiring the fraud to be “clearly proven” it requires from the plaintiff a higher degree of proof than is the rule in civil cases, to which cases of fraudulent conveyance are not an exception. Second.

Writ of Error from the St. Louis City Circuit Court. Hon. L. B. Yalliant, Judge. It will be seen from the transcript and foregoing statement that the only question arising in the case is that presented by the opinion and decision of the circuit judge. Supposing the testimony offered by the plaintiff be true (and for the purposes of this ease the defendant must concede its truth), does the case fall within the statute of frauds? We think that it does not.

— Hon. Jno. C. Lamson, Judge. The .court committed error in dismissing this action, and in overruling plaintiff’s motion to set aside such judgment. Respondent was not legally summoned as garnishee in Jones against Mining Company.

— Hon. E. M. Hughes, Judge. The pleading of defendants as to waiver and their evidence are fiction and unsupported. The waiver then being out of the way the defendants must fail in their defense. They have not performed the condition precedent. Nichols, Sheperd A general denial in an action of replevin is sufficient to raise the question of waiver.