Volume 79 — Missouri Appeal Reports

— Hon. J. D. Perkins, Judge. (1) Plaintiff paid defendant for insurance;, and defendant made tbe contract of insurance, and tbe loss of tbe property occurred.

— Hon. James H. Lay, Judge. (1) Tlie defendant may show facts and circumstances ■and tbe information on wbicb lie based bis opinion, tO' disprove malice and mitigate the punitive damages. Lewis v. Humphries, 64 Mo. App. 466. -General rumors, or a general suspicion, that plaintiff is guilty of the act imputed, may be given in evidence in mitigation of damages. 13 Am. and Eng. Ency. of Law, p. 440.

— Hon. James H, Lay, Judge. (1) The bond sued on is an official bond and not an administrator’s bo\id, and is governed by the law governing official bonds. R. S. 1889, secs. 18, 296. (2) The suit being on an official bond is barred by the statute of limitation in three years. R. S. 1889, sec. 6776; State to use v. Dailey, 4 Mo. App. 172; Mitchel v. Fulbright, 32 Mo. 551; State ex rel. v. Spencer, 79 Mo. 316.

— Hon. Gr. E. Longan, Judge. (1) The working of mechanics in the building without the consent of the company avoided- the policy. 7 Am. and Eng. Ency. of Law, p.1039; Richards on Ins., p. 152; Kern v. Ins. Co., 40 Mo. 19; Ins. Co. v. Coos Co., 151 IT. S. 452; Gardner v. Ins. Co., 38 Me. 439; Erost D. L. & W. Works v. Ins. Co., 17 Ins. Law J. 50; Curry v. Ins. Co., 10 Pick. 535. (2) The building being vacant and unoccupied, the policy was avoided. Cook v. Ins.

— Hon. E. P. Gates, Judge. (1) The policy having been made to cover “grain and seeds,” and having been amended to cover “the same property” in another location, action can not be maintained for the loss of a different commodity, that is oil cake, without a reformation of the contract sued on. This is the logic of a very old case by our supreme court which has never been overruled. Wise v. Ins. Oo., 23 Mo. 80.

— Hon. J. H. Slover, Judge. (1) Prior to tbe passage of ordinance number 1801, authorizing the construction of the sewer, no ordinance had been passed prescribing the manner of publishing the mayor’s proclamation calling special sessions of the council; for this reason the special meetings held in June and July, 1890, at which ordinance number 1801 was passed, were illegally called, and no ordinance could be enacted at such meetings.

— Hon. E. P. Gates, Judge. (1) The tax bills sued on are all void for uncertainty of description, and, being so, plaintiff has no cause of action.

— Hon. J. H. Slover, Judge. (1). There is no evidence that the partnership was of such a nature that the issuance of negotiable paper was necessary to its existence, or was customary with partnerships engaged in similar occupations; or that this firm was accustomed to issue negotiable paper. Under these circumstances the act of Gleeson was a fraud upon Kenefick, was wholly unauthorized, and Kenefick is not liable therefor.

— Hon. J. W. Henry, Judge. Where a wife receives a gift of a corporate name and the insolvent but experienced husband proceeds under that name to increase its value $10,000 and more, by the accumulation of property due to his skill, etc., and in excess of reasonable support for family in the interval, the corporate shares may be levied on by his creditors.

— Hon. O. H. Dean, Special Judge. (1) There was no sufficient tender made by plaintiff. To rescind the contract of settlement, plaintiff must return, or offer to return, all the consideration for the settlement. The contract of settlement was an entire contract covering both policies, and to have any standing in a court of equity, plaintiff must tender back the $1,013.60 received by her.

— Hon. E. P. ■ Hates, Judge. (1) The. sale was completed and actual delivery made at Leavenworth, Kansas, in law as well as according to the expressed intention of the parties, as shown by the undisputed evidence. Wolfe v. Railway, 97 Mo. 473, 479, 481; Bergeman v. Railway, 104 Mo. 77; Scharff v. Meyer, 133 Mo. 428, 449, 450; Berger v. State, 50 Ark. 20; Benj. on Sales, secs. 393, 504; 2 Schonler on Per.

— Hon. E. L. Scabbitt, Judge. (1) There can be no question that by section 4942, Revised Statutes 1879, which was thelawatthetimethecontract with plaintiffs was made by the defendant, the city of Independence had the power to enter into a contract to grade its streets. Morse v. Westport, 110 Mo. 502; Warren v. Paving Go., 115 Mo. 572-579; Rose v. Trestrail, 62 Mo. App. 352; Westport ex reí. v. Mastín, 62 Mo. App. 647.

— Hon. E. P. Cates, Judge. (1) The rule of law, sustained by authority and reason, is that a notice of stoppage-m t/ra/nsvt/u to be effectual, must be given to the party in the immediate custody or control of the property. Wood on Railways, p. 350; Hutchinson on Carriers, p. 337; Poole v. Railway , 9 A. & E. Case, p. 197. (2) Instruction number 2, asked by defendant, should have been given. See authorities supra.

— Hon. Gh F. Longan, Judge. (1) The statute of Missouri requires the school district to keep a record of the proceedings of its board of directors. E. S. 1889, secs. 7990, 8012. And in school districts organized in towns and cities, as in the present case, the board of directors is commanded to keep “a common seal with which to attest its official acts.” E. S. 1889, sec. 8090.

<p>Contract: performance. In the ease at bar the defendant had a right to assume, and did assume on the receipt of plaintiff’s letter inclosing the draft and quitclaim deed, that plaintiff accepted his offer for the land; when he discovered that the- deed prepared by plaintiff misdescribed the land, about which they had carried on the correspondence, he had the right to assume that the error was a mistake, and it was his duty to make and execute a deed correctly describing the land and to transmit' it to plaintiff in performance of his part of the contract. Held, that the proceeds of the draft was the money of the defendant.</p>

— Hon. Henry 0; Riley, Judge. Appellant complains that there was a substitution of parties to tbis suit after its institution before the justice, in that by an amendment Jamilla Goza was substituted as tbe real 2>arty in interest, having taken by assignment tbe title to tbe causes of action. That tbis was not a substitution’ but was a legitimate amendment, we think is too well settled to require citation of authorities; however, see Revised Statutes 1889, section 2108.

— Hon. Henry C. Riley, Judge. No repugnancy existing, the offenses being kindred in nature, and violating the same section of the statute, the motion to quash was properly overruled, whether the information be regarded as containing one or two counts. State v. Eletcher, 18 Mo. 426; State v. Meyers, 20 Mo. 410.

<p>Condemnation Proceedings: board or directors: school district: mandamus. A condemnation, proceeding toeing a special statutory grant of power to the board of directors of the school district, must toe strictly pursued in order to bind the body represented. In the case at bar, the writ fails to show any authority toy vote of the district for the action of the directors in instituting the proceedings to condemn; it further shows affirmatively that the relator was not the owner at the time such proceedings began, tout had a bare possibility of a reverter dependent upon the future conduct of the beneficial owners of the land, over whose action he had no control whatever. Held, that the prerequisites of an estoppel are totally absent in this record.</p>

<p>Appeal from the Newton Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>There are no errors pointed out by motion for new trial, and no bill of exceptions; there were no such objections made in the trial court; and it is incompetent to raise them for the first time in this court. “No errors will be reviewed on appeal unless the attention of the trial court is called to such erroi’S by a motion for a new trial.” Railroad v. Carlisle, 94 Mo. 166; Hofheimer v. Lasen, 24 Mo. App. 652. The defenses were not made below, hence can not be urged here. “In order to perfect an appeal from a justice court, it is sufficient that appellant and his sureties sign the bond and lodge it with the justice within the statutory time.” Crist v. Smith, 66'Mo. App. 398. The presumption, nothing to the contrary appearing, is that the facts warranting the judgment rendered were before the court. In re Webster, 36 Mo. 355. “It is the well settled law in this state that a statutory bond must be in substantial conformity with the statute, although it need not be in literal compliance- with it. Hoshaw v. Gullett, 5 Mo. 208; Newton v. Cox, 76 Mo. 352. If such a bond contáin more than the requirements of the statute, but contains all the statutory requirements, it is to the extent of such requirements a statutory bond.” Hastings v. Hennessey, 58 Mo. App. 205. “A bond is not invalid as a statutory bond merely because it does not follow the exact words of the statute.” Newton v. Cox, 76 Mo. 352.</p> <p>The errors assigned are: First, that said appeal bond is absolutely void, having been approved eleven days after judgment rendered. Second, that said circuit court of Newton county had no jurisdiction whatever to render said judgment against this appellant, H. H. Westbay. Third, that said bond does not mention the respondent herein as obligee. This appeal bond does not comply with nor conform to sections 6328 and 6329, Revised Statutes 1889, and there is such a lack of requirement that it could not be considered at best any more than a common law bond. This bond recites that “E. O. Eermis has appealed from, the judgment of Walt Williams, J. P., to the circuit court of Barry county; now if on such appeal or on-trial anew in the said court judgment be given against the appellant and he shall satisfy such judgment, etc.” This would only authorize the circuit court of Barry county to render judgment against this appellant. The statute provides that the bond shall read among other provisions, as follows: “Or if on trial anew in the appellate court judgment be given against him (the appellant) and he shall pay the same, etc.” There was a trial anew in the circuit court of Newton county and as this bond only provided “that if on trial anew in said court” meaning the said circuit court of Barry county this appellant was surely released. Am. Brew. Oo. v. Talbot, 125 Mo. 389; Overbeck v. Mayer, 59 Mo. App. 290; Ñofsinger v. Hartnett, 84 Mo. 549.</p>

<p>Appeal from the Butler Circuit Court. — Hon. John Q-. Wear, Judge.</p>

James E. G-been, Judge. The contract sued upon being a -writing unsealed for the payment of money, the amount being ascertainable from the face thereof, is not affected nor barred by the five year statute of limitation. Reyburn v. Casey, 29 Mo. 129; Morrman v. Sharp, 35 Mo. 283; Shelton v. Wyman, 1 Mo.

— Hon. W. N. Evans, Judge. Where the agent’s acts in the scope of his authority converts property of a third person to his own use, the principal is liable, though he never authorized or ratified the wrong. Veitinger Res. v. Winkler, 8 Mo. App. 562; Garretzen v. Duenckel, 50 Mo. 104; Fahy v.. Springfield Grocer Co., 57 Mo. App. 73.

<p>.Appeal from the Greene Circuit Court. — Hon. James T. Neville, Judge.</p> <p>The rule that “where two parties have made a contract which one of them has broken, the damages which the other ought to recover in respect of such breach of contract should be either such as may fairly and substantially be considered as arising naturally, that is, according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it,” applies as well in the case of the failure of a telegraph company to perform its contract at least in respect of a cipher message. Abeles v. Telegraph Co., 37 Mo. App. (1889) 554, 558, 559; Telegraph Co. v. Wilson, 32 Ela. (1893) 527; Telegraph Co. v. Martin, 9 111. App. (1881) 587, 591; Mackey v. Telegraph Co., 16-Nev. (1881) 222; Eergusson v. Telegraph Co., 178 Pa. St. (1896) 377. Section 2729, Revised Statutes of 1889, does not change this rule. Telegraph Co. v. Mellan, 45 S. W. Rep. (Tenn. 1898) 443; Markel v. Telegraph Co., 19 Mo. App. (1885) 80, 86; Newman v. Telegraph Co., 54 Mo. App. (1893) 434, 445, 446; Stafford v. Telegraph Co., 73 Eed. Rep. (Cal. 1896) 273; 1 Sutherland Damages, p. 21;. Sira v. Railway, 115 Mo. (1892) 127, 136.</p> <p>It was manifest error to strike out the pleadings and exclude the proof of special damages sustained by the plaintiffs on account of the negligence of the defendant’s operator in receiving and transmitting the dispatch. The statute on this proposition is plain and makes no distinction between, open and cipher dispatches. It charges the defendant with liability for all special damages occasioned by the blunder. R. S. 1889, sec. 2729. Where the subject is uncontrolled by statute the best considered cases hold that the company must respond in substantial damages for failure to properly transmit a message, whether it be open or cipher. Tel. Co. v. Blanchard, 68 Ga. 309; Tel. Co. v. Ilyer Bros., 22 Fla. 637; Tel. Co. v. Eatman, 73 Ga. 285; Tel. Co. v. Reynolds, 77 Ya. 173; Daugherty v. Tel. Co., 75 Ala. 168. “To follow copy is an imperative law of the telegraph office.” Tel. Co. v. Drybnrgh, 35 Pa. St. 298. The telegraph company is responsible for any loss or injury which results from its failure to properly transmit a message. Parks v. Tel. Co., 73 Am. Dec. 589; Berney v. Tel. Co., 81 Am. Dec. 607; Tyler v. Tel. Co., 60 Ills. 421; Reed v. Tel. Co., 135 Mo. 673.</p>

<p>Appeal from the Lawrence Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>It can scarcely be seriously contended that plaintiff has shown such “indignities as to render her condition intolerable” to the extent to entitle her to a divorce. “Indignities must be frequent and not isolated, and they must be of such a nature as to tend to the subversion of the family relation.” Webb v. Webb, 44 Mo. App. 229. ' By this standard (if, perchance, she has shown any “indignities” whatever) the plaintiff has not made a case. “The wife is bound to follow the fortunes of the husband, and to live where he chooses to live, and in the style and manner which he may adopt.” Deschodt v. Deschodt, 59 Mo. App. 102; Messenger v. Messenger, 56 Mo. 329. Having shown that plaintiff had deserted .him without reasonable cause, defendant is entitled as of legal right to a decree. “Divorce is a legal right, and, where the facts entitling either party to it exist, the courts have no discretion to deny it.” Morris v. Morris, 60 Mo. App. 86; Deschodt v. Deschodt, 59 Mo. App. loe. cit. 105.</p> <p>“A person can not be injured in a legal sense by a state ■of things which he has voluntarily produced and continued, and to wbicb be freely consents.” Dwyer v. Dwyer, 16 Mo. App. 427. Alimony: — Tbe court may bear and determine a motion for alimony pendente lite, at tbe same time, and with tbe bearing on tbe merits of tbe divorce proper. Adams v. Adams, 49 Mo. App. 598. “Where an application for alimony in tbe nature of suit money is made by a wife, suing for a divorce, it will be granted as a matter of course, unless certain things wbicb preclude that right on settled law, are made to appear. One of these is that tbe husband and wife are still living together in tbe same residence.” Adams v. Adams, 49 Mo. App. 599. In tbe case at bar, plaintiff’s motion for alimony was filed pending tbe suit, and nine days before tbe trial of tbe case, and tbe husband and wife were living apart, and reasonable alimony must “be granted as a matter of course.” Adams v. Adams, supra. Tbe court below decided that nothing appeared to preclude plaintiff from her alimony in this case, but “be allowed her only $25 for her attorneys’ fees, and only $50 for tbe maintenance-of herself and child. Plaintiff proved that tbe defendant paid bis attorneys $200 for their services for him in this case, and proved that their services were worth that sum. To allow plaintiff’s attorneys only $25 is grossly insufficient.</p>

— Hon. J. C. Lamson, Judge. The amendment to plaintiff’s statement was permissible; it did not change the cause of action. R. S. 1889, sec. 6347, p. 1497; Shaffner v.Leahy, 21 Mío. App. 110; Rathbum, Sard & Go. v. Teeter, 25 Mo. App. 283. In this case, on appeal, and after the evidence was in, another item of $31.75 was added. The amendment was in the discretion of the court, and will not be disturbed unless it clearly appears that the discretion has been abused.

<p>Garnishment: garnishee: allowance: action. Section 5238 of the garnishment act, provides that the court shall make the garnishee a reasonable allowance for his trouble and expense in answering; but, this proceeding is not an action within the meaning of section 2131 nor within the judicial meaning of the word. Held, that plaintiff was not entitled to a jury to assess or allow the reasonable charges of the garnishee.</p>

— Hon. Elliott M. Hughes, Judge. A purchase of goods by one who at the time intends not to pay for them, is such a fraud as will entitle the seller to avoid the sale, although there were no fraudulent misrepresentations or false pretenses. Herboth v. Gaal, 47 Mo. App. 255; Blackwell v. Ery, 49 Mo. App. 638; Thomas v. Ereligh, 9 Mo. App. 151; Eox v. Webster, 46 Mo. 181; Dow v. Sanborn, 3 Allen 181; Benj. on Sales [6 Ed., Bennett’s Am.

— Hon. Elliott M. Hughes, Judge. Whether this case is found to be an effort on part of defendants “of forming a separate district” under section 7972, Revised Statutes 1889, as amended by acts 1895, page 267 and section 7976, or as a uniting of two districts under an agreement and contract as one district, and the defendants undertook to dissolve the agreement and reinstate the Au-drain territory as one distinct separate district plaintiff must prevail.

— Hon. R. L. GtOode, Special Judge. Upon this statement it must be held that the. conveyance and transfer of all her property by Mrs. Epperson-to the defendant for the consideration that defendant should care for, support and maintain her for the remainder of her life, was a “deed of gift and conveyance” to the use of the grantor, Mrs. Epperson, and is void as against creditors, existing and subsequent, and purchasers.

<p>Appeal from the Stoddard Circuit Court. — Hon. John G-. Wear, Judge.</p> <p>The deposition of Harrison should have been 'admitted. The error on which it was ruled out was merely a clerical one, which in no way injured defendants or led them astray. Moreover, the objection to the deposition came too late at the trial. An irregularity or formal defect of this nature will be deemed waived unless made before the trial begins, and the proper method is by motion to suppress made before the trial. Bell v. Jamison, 102 Mo. 71, is a case similar to this. Here the party served with notice, and his attorney, failed to attend the taking of the deposition, believing the notice was defective, bnt the court held that an objection thereto,came too late at the trial. Other decisions are to the same effect. Delventhal v. Jones, 53 Mo. 160; Delisle v. McGillivary, 21 Mo. App. 680; Holman v. Bacchus, 73 Mo. 19. But aside from this, the letters were admissible under a special exception in the rules of evidence regarding the identification of written documents. It is held, that where letters are received in reply to others proved to have been sent to a party, they are admissible in evideuce without proof of the party’s handwriting, and letters of an earlier date in the same handwriting may be read without further proof. 3 Greenl. on Ev. [Lewis’ Ed.], sec. 573a; EJoes v. Wurmser & Louis, 31 Mo. App. 153, 156.</p> <p>We take it there is a material difference between a merely formal defect or irregularity in a notice to take depositions and no notice at all. The case of Bell v. Jamison (102 Mo. 71), which is the leading authority cited by appellant is one in which the eoiu*t say: “Attached to the deposition was a proper and formal notice to take the deposition certified to have been served in the proper manner and in time.”. The deposition was taken by the proper officer at the time and place stated in the notice, and was duly authenticated. Ibid, bottom page 75. Appellant’s second assignment is equally without merit. The Leet letters were not identified. State v. Grant, 71 Mo. 33. These letters do not come within the exception announced by Greenleaf. They were not shown to have been received in reply to letters sent to appellant by Albert Leet & Company. The exception will not be enlarged so as to render inoperative the general rule. “The right of a materialman to a lien depends upon whether he gave the credit on the faith of the structure into which the material entered.” Eand v. Grubs, 26 Mo. App. 591.</p>

— Hon. W. N. Evans, Judge. The petition is sufficient in all particulars to support the judgment. It might be ever so defective or informal; yet such defects and objections must be raised before verdict.

— Hon. Elliott M. Hughes, Judge. The appellant ignores his written agreement to transfer the ease from the probate court to the circuit court, and his consent to the jurisdiction of the circuit court in making his point on lack of jurisdiction. In making this point, he undertakes to repudiate his written agreement.

— Hon. L. B. Woodside, Judge. It is elementary law that where one asserts the right to personal property by virtue of a chattel mortgage he can not if his mortgage fail for any cause, assert another and different claim thereto. Jones on Chat. Mort. [4 Ed.], sec. 6; Janvein v. Eogg, 49 N. H. 340; Dry Goods Co. v. Brown, 73 Mo. App. 245. An interplea in an attachment is in the nature of a replevin suit engrafted thereon by statute. Helmer v. Pollock, 47 Mo.

Louis Circuit Court. — Hon. Budolph Hirzel, Judge. No costs can be taxed against a city of tbe fourth class in proceedings to collect back taxes, and appellant’s alleged fee bills were illegal. Laws of Mo. 1895. p. 74, secs. 49 and 50; 2 E. S., sec. 7688; Laws of Mo. 1895, p. 245, amending 2 E. S., sec. 7626.

— Hon., J. (L Lamson, Judge. Tbe circuit court of Greene county bad jurisdiction of tbe défendant. Tbe proper method of obtaining service upon a corporation was fully complied witb. Tbe following sections of tbe Revised Statutes of 1889 cover tbe case. Secs. 2527, 2528 and 2529. Every fact necessary to confer jurisdiction and show tbe validity of sucb service -is fully recited in tbe judgment.

— Hon. J. C. Lamson, Judge. Where the evidence in support of plaintiffs case isj if believed, sufficient to make out his case, and is clear, consistent with itself, delivered by unimpeached witnesses, and no circumstance is developed tending to cast suspicion upon it, and no substantial countervailing evidence by the other party, if the jury nevertheless disregard it and return a verdict against it, it will be the duty of the, appellate court to set it aside, as being the…

— Hon. James T. Neville, Judge. Homestead exists in equity of redemption. State ex rel. y. Mason, 88 Mo. 222. Debtor may mortgage or sell excess of homestead to creditor and still have homestead in what remains. Grimes v. Cortman, 99 Mo. 229. With the homestead or the proceedsarisingfromthesamecreditorshave nothing to do. They can reach it neither at law nor in equity. And the debtor can commit no fraud as to them by any disposition he may make of it.

<p>Appeal from the Lawrence Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>Defendant misconceives plaintiff’s pleading, and hence error in her argument. She says, page 3, “plaintiff asserted that his property was accidentally burned.” He does not say accidentally but only says that it was “destroyed and consumed by fire.” He contends that he does not need to have pleaded that it was by accident; but if he did, defendant should have demurred, and the petition is at least good after verdict, and is moreover cured by defendant’s affirmative plea that it was purposely and negligently burned. Bank v. Leyser, 116 Mo. loe. cit. 73. The evidence sustained the issues in favor of plaintiff. The instructions fairly submitted the issues, and the verdict is for the proper party. Defendant made the contract and admitted it; the property was burned, and defendant admitted it; plaintiff proved the amount of his damage, though it was not by defendant denied, and it was not really in issue; defendant pleaded (or rather attempted to) that the contract was fraudulently obtained, and offered no evidence on the point; defendant pleaded that the fire was intentional and plaintiff negligent, and offered evidence supposed to tend to sustain the plea, and plaintiff put in evidence showing that it was an accident, and the question was fairly submitted to the Jury. Such verdict will not be disturbed. Norton v. Paxton, 110 Mo. 456.</p> <p>The burden of proof means the burden of establishing the case. McCartney v. Ins. Co., 45 Mo. App. 373. The burden of proving a fact is on the party who asserts the affirmative of the issue. And in this case the plaintiff asserted that his property was accidentally burned, and that it was of the value named in application. Glover v. Henderson, 120 Mo. 367. In this case the knowledge of the origin of the fire, how it occurred, and the value of the property, was solely within the knowledge of the plaintiff. And tho rule is that where the facts are peculiarly within the knowledge of a party such party ought to be required to show them. Frame v. Sovereign Camp, 67 Mo. App. 127; 1 Greenleaf [13 Ed.], secs. 74-79. The burden of proof should be fixed by th© pleadings. In tbis case tbe plaintiff alleged that bis property bad been accidentally burned. (Tbis being tbe only burning insured against.) And tbe defendant denied such burning, and also denied tbe goods burned being of tbe value named in tbe application or in tbe policy. See Bunker v. Ilibler, 49 Mo. App. 536. No new matter was set up in tbe defense of tbis case, but simply a denial of tbe allegations of plaintiff’s petition. This action arose upon a contract between tbe plaintiff and tbe defendant, wherein tbe plaintiff, for certain consideration, was insured against fire and lightning by accident. And it was as much tbe business of plaintiff to show tbe manner of tbe fire, and that it was by accident, as it was to show that there was a fire at all. Siebert v. Chosen Friends, 23 Mo. App. 268.</p>

— Hon. John G. Weae, Judge. Tbis case sbould not have been submitted to tbe jury except upon a peremptory instruction to find'for the plaintiff; interpleader knew of the fraud in the sale of the goods, had paid nothing for them, and of course was not an owner in good faith, nor an innocent purchaser, and can have no standing in court. Arnholt v. Hartwig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 532; Young v. Kellar,. 94 Mo. 581.

Petition for Mandamus to the Judge of the Phelps Circuit Court and Prosecuting Attorney of said. County. Libel is an injury to a person in this, that it is defined to be a malicious defamation of a person either by printing, writing, sign or pictures in order to provoke him to wrath, expose him to public hatred, contempt and ridicule. 4 Blackstone Com. 150; Anderson’s Law Die., p. 617; Giles-v. State, ■6 Ga. 283; 1 Kent Com., pp. 620 and 621; R. S. 1889, sec. ■3869.

— Hon. J. O. Lamson, Judge. Respondents having alleged in their return that all the excuse they had for expelling relator’s son was that the professor of the schools Rad ordered him to take Edgar Bear home,and he refused to do so,and that the professor expelled him from school therefor, and the school board concurred therein, constituted their only defense.

— Hon. J. H. Slover, Judge. (1) A wife is not liable unless tbe tort is committed, first,, out of the presence of ber husband, and second, without bis order or consent. Shouler’s Dom. Rel. [2 Ed.], pp. 102, 103; Alexander v. Lydick, 80 Mo. 341; Flesh v. Lindsay, 115 Mo. 1, 13, 14.

— Hon. W. W. Wood, Judge. (1) The county school commissioner had no legal right to reexamine Coffman as to his qualifications to teach school and grant him a certificate after he had been-rejected by the board of examiners at the teachers’ institute. Sess. Acts, 1891, pp. 211, 212, 213; Sess. Acts, 1893, p. 251, secs. 2 and 2a. (2) The issuing of such certificate being a violation of law, no rights could be conferred thereby, and the certificate was void. Sess.

— Hon. J. W. Hallibubton, Special Judge. (1) The motion to quash the indictment should have been sustained. The indictment does not allege any overt act, but it stands upon the unlawfulness of the combination or conspiracy to do an unlawful act, to wit: Kill and murder Geo. A. Haggerty, by knives, pistols, etc. “This rule like all others in the law can not be extended beyond the reason whence it proceeds.

<p>Appeal from the Greene Circuit Court. — Hon. G-. A. Watson, Special Judge.</p> <p>Tbe statutory, covenants implied by tbe words “grant, bargain and sell” are tbe same in a deed of trust as in a warranty deed. Oockrill v. Bane, 94 Mo. 444; Boyd v. Haseltine, 110 Mo. 203-207. Covenants of seizin and against incumbrances run witb tbe land in tbis state, and plaintiff bad a right to sue, and should have recovered on tbe covenants of seizin as well as against incumbrances. Tbe right of action is assignable. Allen v. Kennedy, 91 Mo. 324; Dicksen v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174; Maguire v. Riggin, 44 Mo. 512. Measure of damages is the purchase price with interest at six per cent from the date the money was paid in this case pro rata on the twenty acres where the title failed. Pence v. Gabberts, 70 Mo. App. 201. The outstanding paramount title in Nora O. McDaniel constituted an eviction. Blondeau v. Sheridan, 81 Mo. 552. Whatever may be the doctrine in some of the states, that the covenants of seizin and against incumbrances are in presentí,, and broken as soon as made, and do not run with the land to a subsequent grantee, the doctrine in this state is that such covenants are in futuro, and run with the land till there is a substantial breach, and then they go to subsequent grantees by assignment. 19 Am. and Eng. Ency. of Law [1 Ed.], p. 1006, title, Real Covenants; Allen v. Kennedy, 91 Mo. 324; Winningham v. Pennock’s Ex’r, 36 Mo. App. 693.</p> <p>■ Defendants refused to select another attorney, and refused to request an election of a special judge. The clerk, without authority of law, and against the protest of defendants, ordered an election of a special judge, and the judge so elected proceeded with the final hearing. Said action of the clerk was ultra vires, and conferred no jurisdiction upon the attorney so elected. Session Acts 1895, page 93, amending section 2262, of the statutes of 1889. The modern doctrine is that a mortgage is merely a security for a debt, and as soon as the debt is paid all of the mortgages, right and title is determined by operation of law. Logan v. Railway, 43 Mo. App. 74, 75; Smith Imp. Co. v. Thurman, 29 Mo. App. 190, 191; Murphy v. Simpson, 42 Mo. App. 654. The payment of the note extinguishes the deed of trust, 42 Mo. App. mpra; ITagerman v. Suttin, 91 Mo. 531, of opinion. It is noc necessary to quote further authorities upon this point. The mortgagee can only sell enough of the mortgaged property to pay the debt and costs of sale; when this is done the trustee’s power is at an end. Plaintiff as assignee of the note secured by deed of trust, had full notice of the title and Brewer deed of trust upon twenty acres of land, and its foreclosure, and she is deemed in law and equity to have purchased at said sale with full notice, and having bought the title at law, trustee’s sale at a sum sufficient to satisfy the deed of trust under which it was sold, the rule of emeat emptor applies. She must take notice of the title and defects as they appear or. record. Mo. Statutes 1889, sec. 2419; Barnard v. Duncan, 38 Mo. 170-185.</p>

— Hon. Elliott M. Hughes, Judge. The letter from Carr to Eosenberger in response to the letter from Sharp to Carr was admissible as evidence for the purpose of showing that Carr did not consider himself released when he wrote it in 1891.

— Hon. Henry C. Riley, Judge. Every substantial fact which plaintiff must prove to maintain his action must be alleged so that an issue can be made thereon. This is elementary law. Lanitz v. King, 93 Mo. 513; Wetmore v. Crouch, 55 Mo. App. 441; Banks v. Eisher, 55 Mo.

— Hon. J. C. Lamson, Judge. This was a proceeding brought under and by virtue of sections. 6291 and subsequent sections to revive a judgment before a justice of the peace. Defendant did not appear after citation served upon it to “show cause, if any it had, why the judgment should not be revived. The justice made an entry on his docket reviving said judgment. Defendant filed affidavit and bond for an appeal to circuit court which was by the justice granted.

— Hon. Henby C. Riley, Judge. This is a suit for money had and received, and the petition is good. Johnson v. Bank, 116 Mo. 558. The respondents had stored in the elevator two thousand and sixty-six bushels of wheat, and not having authorized any disposition of it were entitled to that amount, and even mixed it with other wheat could not affect their rights. Huff v. Henry, 57 Mo. App. 341; Kaufmann v. Schilling, 58 Mo. 218.

— Hon. Heney C. Riley, Judge. An interplea can not be resorted to in attachment suits only where tbe property attached is personal property. Gordon v. McCurdy, 26 Mo. 30'4.

— Hon. J. O. Lamson, Judge. Section 5283, Revised Statutes 1889, authorizes a parent to appoint a guardian for minor children by will, and when made and probated, the appointment takes effect at once without an order of court and is more effective than when appointed by the court, and neither the minor nor the court Jias a choice in the matter, nor power to interfere. 2 Kent, Com. [8 Ed.], side p. 224; Woerner, Guardianship, pp. 56, 57, 58; 3 Wait’s Actions and Defenses, p.…

— Hon. James T„. Neville, Judge. The transactions were sales or exchanges of goods and not bailments. When a miller receives wheat from a farmer, for which he agrees to deliver flour and bran on demand it is an exchange or sale, and the title of the wheat passes to the miller at the time of its delivery. The farmer has neither wheat nor flour and bran in the mill until he demands it, but simply a right to demand and receive flour and bran.

<p>Street Improvements: suit on special tax bill: pleadings: demurrer. In a suit upon a special tax bill, for street improvements, held, on demurrer, that since no facts showing its invalidity were stated in the petition, it was not necessary for plaintiff to anticipate and avoid in the petition any defenses the answer might set up.</p> <p>[Note, — In cases numbers 7228, 7229, 7230, 7231, 7232 and 7233, in St. Louis Court of Appeals at October term, 1898, on March 7, 1899, where in same parties were plaintiffs in error and other parties were defendants in error, the same judgment was rendered as in the cause herein. — Reporter,]</p> <p>(See Yol. 76, page 355. Reporter).</p>

— Hon. Elliott M. Hughes, Judge. Tbe disobedience of any rule or order, by a paity to a suit or proceeding before tbe court, is a contempt and is punishable as sucb. R. S. 1889, sees. 3261, 3262, 3263 and 3264; 4 Cbitty’s Blackstone, side p. 285; Rapalje on Contempt, secs. 33, 38 and 45. A party can not refuse to answer interrogatories or perform tbe judgments of tbe court, but he must either obey or procure tbe same to be set aside.

Louis City Circuit Court. — Hon. . Selden P. Spencer, Judge.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. This was a contract of conditional sale and the vendor (the power company), as to the vendee, or its general assignee, had the option on default of retaking the motors into its possession or bringing suit for the contract price. Reach on Contracts, sec. 138; Mfg. Oo. v. Culp, 85 Mo. 548; Farmer v. Moore, 73 Mo. App. 527; Columbus Buggy Co. v. Hord, 65 Mo. App. 41; In re Wilcox & Howe Co., 39 Atl.

— Hon. Eeuben P. Eoy, Judge. There are no disputed facts in the case. The payment of $250 by plaintiff to defendant on defendant’s contract to convey to him by warranty deed one hundred and five and fifty-three one-hundredths acres of land. The refusal of defendant to allow plaintiff to have the land surveyed in order to ascertain the quantity. The incumbrances against the land when the contract was made and when the suit was tried.

<p>1. City Ordinances: violation: proceedings. Proceedings for violation of city ordinances are civil and not criminal in their nature.</p> <p>2. --•: -: STATUTORY CONSTRUCTION OP REVISED STATUTES 1889, SECTION 3492; acts 1895, page 65. The ordinance in question in the case at bar was passed prior to the enactment of the law of 1895, and as it has not been made to conform to the general statute as to the punishment, the defendant claims that it is no longer operative, and hence, a conviction thereunder for a common assault can not be upheld. Held, that the legislature did not intend to repeal, by impli- • cation, all existing ordinances wherein the punishment for an offense did not exactly conform to that prescribed by the general law for the same offense; but that it was the intention to prevent a city from imposing heavier penalties than that provided by the general law for the same offense.</p>

— Hon. J. C. Lamson, Judge. It is plain that the counterclaim constituted no defense in law nor stated any cause of action against the plaintiff bank. Banks are not transmitters of money, but buy and sell exchange, receive deposits, make collections, loan money and discount paper. E. S. 1889, sec. 2745. If the cashier of plaintiff bank promised defendant Howell to transmit this money for him, it was binding on the cashier only and not on the bank.

— Hón. W. W. ♦ Evans, Judge. There is no evidence that appellants knew of any fraud upon the part of Owens, and the verdict of the jury can be attributed to no reason other than the giving of the first instruction on part of defendants. Clearly this instruction is not the law. Hearn '& Company must have known of the fraud; and it is not sufficient, that there were facts sufficient to put them on inquiry.

Louis City Circuit Court. — Hon. Pembeook R. Flitcraft, Judge. A real estate broker is entitled to his commissions if be is tbe procuring cause of the negotiations wbicb resulted in tbe sale, even though tbe negotiations are conducted and concluded by the principal in person. Bell v. Kaiser, 50 Mo. 15; Tyler v. Parr, 52 Mo. 249; Timberman v. Craddock, 70 Mo. 638; Gelatt v. Ridge, 117 Mo. 553; Blackwell v. Adams, 28 Mo. App. 61; Jones v. Berry, 37 Mo.

<p>1. Trustee of Life Estate: application or proceeds. The law requires a tenant for life, out of the proceeds of the estate, to pay interest on incumbrances, repairs and ordinary taxes. It is only when the tax assessment is for permanent improvement or betterment of the whole estate that it can be equally apportioned between the life tenant and the remainderman.</p> <p>2. In the ease at bar it is not denied that defendant collected enough rent to pay taxes, but that after deducting repairs, he paid over the rents to the beneficiary while alive and for expenses incurred in her last sickness, held, that he had no right under the deed of conveyance to him, to divert the income of the life estate from its primary obligation for ordinary taxes.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge; This being an equitable proceeding the court will examine the evidence taken before the referee. Lewis v. Donovan, 8 Mo. 603; Knapp v. Publishers Geo. Knapp & Go., 127 Mo. 53; Holt v. Simmons, 16 Mo. App. 97. The wife may be held responsible in equity for money of the husband appropriated by her. Davidson v. Smith, 20 Iowa, 466-468.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The trial court erred in refusing to permit the appellant to prove that the work, as done by the respondent, did not conform to the grade of the Manchesterroad,asestablishedby ordinance 15,431. The privilege to build the road was based upon compliance with the established grade, as a condition precedent to the exercise of the privilege.

<p>Appeal from the Neivton Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>The contention of the appellant that the indictment is bad, is frivolous and without merit. The words “regular” and “regularly” have the same meaning as defined by the authorities, and as used in the practice in cases of this sort. State v. Coday, 69 Mo. App. 70. This is an exact copy of the indictment held good by the Kansas City court of appeals. State v. Carnahan, 63 Mo. App. 244. A misspelled word will not vitiate an indictment when it is evident what word was intended. State v. Colly, 69 Mo. App. 444. No indictment shall be deemed invalid which does not tend to prejudice the substantial rights of the defendant upon the merits. R. S. 1889, sec. 4115; State v. Estes, 70 Mo. 437; State v. Effinger,44 Mo. App. 83. Book 1, pharmacist record of Newton county, Missouri, was properly put in evidence as will be seen by reading the bill of exceptions on this point. This is the best evidence. Made so by law. Laws of Missouri, 1893, pp. 152, 153. Under section 4114, Revised Statutes, it was held that there was no variance between the name “A. R. Miller” and “Al R. Miller.” State v. Humble, 34 Mo. App. 343. There can be no doubt under the authorities but that the court did not commit error in confining defendant, on the issue as to his good character, to his general reputation. This is all the law allows him to put in issue; and he is strictly limited to his general character as to the trait in issue. G-reenl. on Ev., secs. 54, 55; State v. King, 78 Mo. 555. But it seems that the character of the party in regard to any particular trait, is not in issue, unless it be the trait which is involved in the matter charged against him. Greenl. on Ev. [14 Ed.], sec. 25; State v. Dalton, 27 Mo. 12. The court did not err in refusing instructions 9 and 10. Proof can be made of a sale on any day within one year prior to the finding of the indictment. Time is not the essence of the offense, and the statute prohibits the interference with the verdict for such a variance. The cases.below are decisive on this point. R. S. 1889, sec. 4115; State v. Carnahan, 63 Mo. App. 244; State v. Stephens, 70 Mo. App. 544. Under the ruling of the following cases the court did not err in permitting the cross-examination of the defendant. State v. Harvey, 131 Mo. 345; State v. Avery, 113 Mo. 498; State v. Kennade, 121 Mo._ 405.</p> <p>The court erred in overruling appellant’s motion to quash. The words, “regular registered and practicing physician,” are not equivalent to a “regularly registered and practicing physician,” as required by statute. The charge, regular physician indicates a physician who is regular, while the statute requires that the physician be regularly registered. State v. Baskett, 52 Mo. App. 389. The state introduced no evidence that tire Roy M. Bradford named in record, read by the county clerk, was the R. M. Bradford on trial. This was error. The state should have proven that the Roy M. Bradford named, and the R. M. Bradford on trial, were one and the same person. 1 G-reenl. on Ev. [14 Ed.], sec. 493; 1 Wharton on Ev. [9 Ed.], sec. 701. The record of the county clerk, introduced in evidence by the state (if the reading of the sam'e by the county clerk can be called introducing it in evidence) was done without any proof of loss of original certificate or notice to defendant to produce the original. This was error for which the judgment should be reversed. State v. Reppetto, 66 Mo. App. 251; State v. Kurtz, 64 Mo. App. 123. The court erred in refusing evidence of the g'ood character of the defendant. State v. Howell, 100 Mo. 628; State v. McNally, 87 Mo. 658. The court erred in limiting the number of defendant’s impeaching witnesses as to tire reputation of W.W. Chambers,when the same was a controverted question in the trial. Stewart v. Emerson, 70 Mo. App. 482; 60 Mo. 22. The court erred in permitting improper cross-examination of defendant. E. S. 1889, sec. 4218. The court erred in refusing to give instructions number 9 and 10, to the effect that the jury should disregard the evidence as to any other sale than the one to W. W. Chambers about October 6, which the state fixed upon as the one on which it would prosecute. The indictment under the druggist act must individuate the offense by fixing the time and person to whom the sale is made and the state can not introduce evidence of several distinct sales. The proof can not be broader than the indictment. State v. Huey, 36 Mo. 80; State v. Small, 31 Mo. 197; State v. Martin, 44 Mo. App. 45 and 108; State v. Quinn, 49 Mo. App. 602. It was error for the court to refuse to permit defendant to cross-examine witnesses introduced by the state to sustain the reputation of "W". W. Chambers, as to his knowledge of W. W. Chambers having been impeached in a previous trial. 1 Thompson on Trials, 568.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. John A. Talty, Judge.</p> <p>“The officers of a corporation can not, against the wishes of its stockholders, or any one of them, sell and transfer the entire property from which it derives its emoluments or which forms the basis of its business operations.” Field v. Roanoke Inv. Co., 123 Mo. 603. The pretended assignment of the debt in question was without authority and void. 2 Cook on Stock and Stockholders and Corporation Law, sec. 716; R. S. Mo. 1889, sec. 2772; Hyde v. Larkin, 35 Mo. App. 365; Chew v. Ellingwood, 86 Mo. 260; "Webb & Co. v. Lumber Co., 68 Mo. App. 546; Desconjbes v. Wood, 91 Mo. 196; Hutchinson v. Green, 91 Mo. 367; Calumet Paper Co. v. Haskell Show Printing Co., 45 S. W. Rep. 1115, decided by Div. No. 2, Missouri Supreme Court, June 22,1898. The court erred in giving a peremptory instruction to the jury to find a verdict for the St. Louis Trust Company. Bryan v. Wear, 4 Mo. 74; Vaulx v. Campbell, 8 Mo. 224; Gregory v. Chambers, 78 Mo. 294; Schroeder v. Railroad, 108 Mo. 322.</p> <p>Of these matters involved in the case, number 1, to wit, the existence of a debt, was admitted by the pleadings and did not have to be submitted to the jury. Number 2 was an instrument in writing, the legal effect of which was for the court to determine, excepting as to the execution of the paper by an authorized officer of the Madison Car Company. The authority of the officer (L. M. Rumsey, president) did not have to be submitted to the jury, as it can be assumed as a matter of law (see opinion of the court in .this cause). Musser v. Johnson, 42 Mo. 74; Fire Clay Works v. Ellison, 30 Mo. App. 67; Bambrick v. Campbell, 37 Mo. App. 460; State v. Heckert, 62 Mo. App. 428; Winscott v. Inv. Co., 63 Mo. App. 367. It 'would be very unfortunate for the business community if the courts insisted upon proof of authority in cases where ordinary corporate business has been conducted by the president of the company In the end commercial usage makes the law in these matters.</p>

Louis City Circuit Court. — Hon. William Zaohritz, Judge. Section 2241, Revised Statutes of Missouri, 1889, forbids the granting of more than one new trial, except where the triei’s of the facts shall have erred in a matter of law. Second, when the jury shall be guilty of misbehavior. This is the second appeal and the verdict is in' consonance with the law and the facts in the case. State ex rel.

Louis City Circuit Court. — Hon. William Zachritz, Judge. One who is otherwise qualified as a voter or an elector under section 20 of the Election Act of. 1895, approved May 31, 1895, governing* elections in cities having over one hundred thousand inhabitants (Session Acts 1895-1896, p. 20), does not become disfranchised, and does not become disqualified as an elector, by removing from the premises from which he registered, provided such removal is not beyond the lines of…

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>The appellant’s first point that the word “premises” used in plaintiff’s instruction was error is, we submit, without the slightest foundation. Premises mean “a building and its adjuncts,” “realty and buildings,” and we can’t see where counsel for appellant would or could draw the line, or what' other word he could use in view of all the circumstances and facts in the case. We submit that the place where the chickens are bought and the one where they are kept (chicken house or stable) are the same premises so far as this case is concerned. The plaintiff is entitled to recover if, first, the dog was vicious; second, the defendant knew its propensity; third, the defendant was negligent in suffering such a dog to run at large on his premises. State v. McDermott, é Cent. Eep. 559. Any person who keeps upon his premises a dog vicious and disposed by nature to bite human beings, does so absolutely at his peril if he knows of such disposition. 2 Am. and Eng. Ency. of Law, p. 366; MeKaskall v. Elliott, 53 Am. Dec. 706; Oakes v. Spaulding, 40 Yt. 347; Godeau v. Blood, 52 Yt. 254; Staetter v. McArthur, 33 Mo. App. 222. A ferocious dog is a nuisance, and keeping it after notice of such disposition is so wrongful that the owner is liable for any neglect to keep it with such care that it can not do injury to any person who is not essentially at fault. Maure v. Wecandid, 81 Pa. 243; Munn v. Eeed, 4 Allen, 432. After notice, of vicious disposition, owner is bound to keep the dog at his peril. Shaw v. Craft, 37 Eed. Eep. 317; Morsel v. Baumann, 62 la. 57. A person who keeps a vicious dog, knowing him to be vicious, is jprima, faoie liable to persons bitten. Woolf v. Chalker, 31 Conn. 121; Williams v. Moray, 74 Ind. 25; Lynch v. McNally, 73 N. Y. 347. In the latter case the court holds that neither ordinary care nor contributory negligence is a defense.</p> <p>The word premises has a meaning, but not of a certain, sole and definite character. In some instances it is synonymous with appurtenances, and sometimes includes both lands and tenements. Its use in the instruction at bar should have been accompanied by some qualifyingly or descriptive word, designating the exact part of the premises plaintiff had a right to. Bandalow v. People, 90 111. 219; State v. Wyl, 55 Mo. 67. Ordinarily appellate courts will not disturb the verdict of a jury, but when such verdict is at utter variance with both justice and law, as in the case at bar, it is the duty of an appellate court to set same aside. Empey v. Grand Ave. Cable Co., 45 Mo. App. 422; Hipslay v. Eailway, 88 Mo. 348-353. The mere reading of the evidence in this case is the best argument in support of the above proposition. Defendant’s motion for á new trial should have been sustained. Staetter v. McArthur, 33 Mo. App. 218, and authorities cited.</p>

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

— Hon. L. B. Woodside, Judge. In order to establish a forfeiture, defendant must, as alleged in their answer, establish the fact that assessment number 5 was levied and ordered collected by their board of directors. The first fact in issue under the pleadings was whether or not this assessment was levied, for May, 1897. Without proof of such levy, notice to deceased, and failure to pay, would not work a forfeiture.

— Hon. L. B. Woodside, Judge. There is nothing before this court for review on this record. This is a summary proceeding by motion under section 574, Revised Statutes of 1889, and hence the appellants should have excepted to the action of the court in sustaining this motion and rendering a judgment against them thereon. This they did not do.

— Hon. P. C. Stepp, Judge. ■ (1) As to weight of evidence, this is not a case of setting aside a verdict merely because it is against the weight of evidence, but a case where there is not sufficient evidence to support a verdict for plaintiff, if uncontradicted. Summer-ville v. Railroad, 29 Mo. App. 48; and that it is not contradicted by witnesses, who simply did not hear, see Henze v. Railroad, 71 Mo. 638.

— Hon. J. D. Perkins, Judge. The facts set forth in plaintiffs’ petition did not entitle plaintiffs to any equitable relief. Their rights (if any) should have been asserted in a garnishment proceeding against Clark, where the issues could have been submitted to a jury trial. Error was therefore committed in overruling defendant piark’s objection to the introduction of any evidence, as well as in overruling th© motion in arrest. Epstein v. Clo. Co., 67 Mo.

— Hon. C. A. Anthony, Judge. It appears that for two years Eobertson bad been borrowing money from Bacon, Dawson & Company for tbe bank, with wbicb to accommodate its customers, and bad been indorsing tbe notes given therefor in tbe same manner as be indorsed tbis one; tbat be bad borrowed tbe bulk of tbe money needed by tbe bank from Tootle, Lemon & Company, of St. Joseph, Missouri, and bad been securing them by indorsing and turning over tbe bank’s securities to them for…

— Hon. C. A. Anthony, Judge. (1) The defendant was indicted under section 7827, 2 R. S. 1889, p. 1822. The indictment does not even purport to be returned upon the oath of the grand jurors. The phrase, “upon their oath,” is not in the indictment. And while the statute provides that certain omissions will not vitiate the indictment, yet the leaving out the phrase, “upon their oath,” is not cured by the statute.

— Hon. W. S. Herndon, Judge. (1) The only agreement alleged in the petition to have ■existed by virtue of the contract on which plaintiff seeks to recover, is an agreement or promise to insure, there being no promise to pay plaintiff any sum of money at any time, under any circumstances, conditional or otherwise, and the language used, “such corporation contracted with and insured plaintiff” is not equivalent to a promise to pay, as it is not necessarily such a promise.

— Hon. J. A. Hookaday, Judge. (1) The note sued on is payable to the firm of Hays, Winterbower & Sims, of which these plaintiffs are the surviving partners. It was affirmatively shown that no steps had been taken to administer the partnership estate under the statute, hence plaintiffs were entitled to maintain the suit as such surviving partners, and the court could not properly deny their right to go to the jury on the ground that they failed to show title to the note.

— Hon. Dorsey W. Shackleford, Judge. (1) The law requiring that in every order granting a new trial, the ground upon which the new trial is granted shall be specified of record, and the trial court having specified only one it must be presumed' that no other ground was found in the motion for sustaining the application for a new trial. Bradley v. Reppell, 133 Mo. 545.

— Hon. W. W. Rucker, Judge. (1) ' The plaintiff was allowed to testify over the objection and exceptions of defendant and show what was the condition of her arm at the time of the trial. The ground of objection to this evidence was that she had failed to have the arm properly treated after the injury, in fact she says she never had the broken bones set. Jones on Neg. Mun. Oorp.. sec. 256, p. ,518.

— Hon. D. W. Shackleford, Judge. (1) The court committed manifest error in refusing the demurrer to the evidence asked by defendant. There was no substantial evidence tending to prove that plaintiff’s building was struck by lightning, as alleged in his petition.

— Hon. D. P. Stratton, Judge. (1) The motion for new trial must be be copied into the bill of exceptions, or there must be a direction to the clerk to copy it; otherwise matters of exception will not be reviewed by the appellate court. R. S. Mo. 1889, sec. 2304; Ryan v. Growney, 125 Mo. 474; Martin v. LaMaster, 63 Mo. App. 342.

— Hon. E. L. Soarrixi, Judge. (1) The instruction asked by the defendant at the close of the plaintiff’s case should have been given for the reason that it did not appear from- the evidence that the injury received by the boy was occasioned by a failure on the part of the defendant to properly discharge some legal duty he owed to him, and on this point the question of age cuts no figure. Schmitz v. Railway, 46 Mo. App. 387.

— Hon. J. H. Sloyek, Judge. (1) How can these simple sales memoranda be tortured into meaning that the appellant shall be bound and concluded by the action of Kansas City weighers and inspectors ? How can they be made to relieve respondent from its duty under the law to furnish sound .and merchantable pork ? Nothing less than a “general custom” could everperformsuch wonders.

— Hon. P. C. Stepp, Judge. (1) “Process shall be served on his guardian,” after appointment of a guardian for a person non compos mentis. R. S. 1889, sec. 5544. (2) “Unless the statute authorize a substituted or constructive service, the law will intend that personal service is required. Doyle v. Railroad, 113 Mo. 285; Wilson v. Railroad, 108 Mo. 596; St. Louis v. Goebel, 32 Mo. 295; 9 Ency. of Pldg. and Prac. 937; 22 Am. and Eng.

— Hon. P. C. Stepp, Judge. (l)Even if there may have been obstructions to the view, yet if after passing the obstructions, and before getting to the track, a view could have been had, plaintiff was guilty of contributory negligence in going upon the track. Jones v. Barnard, 63 Mo. App. 506-512; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362, 376; Lane v. Railroad, 132 Mo. 24-28; Huggart v. Railroad, 134 Mo. 679, 680.

— Hon. C. A. Anthony, Judge. (1) The court erred, in overruling defendant’s demurrer to the evidence at the close of the case. Mrs. John Ingerham, wife of plaintiff, testified that the claim sued for was owned by Ingerham & Company and that she was a member of the firm. R. S. 1889, see. 1990. .(2) The court erred in refusing defendant’s instruction number 2.

— Hon. C. A. Anthony, Judge. (1) The court erred in admitting evidence concerning the knowledge of Kelso as to incirmbrances upon the land, acquired as agent of Henly.

— Hon. C. A. Anthony, Judge. (1) Under the undisputed facts of the case the court erred in finding for plaintiff. There is no controversy but that appellants took the notes Iona fide to secure a note given. by Iler in settlement of an overdue account, and in which a year’s longer time was given. Negotiable paper taken before maturity in settlement of a pre-existing debt, or in extension of it, or for a new debt, is free from equities in the hands of the Iona fide holder.

— Hon. W. S. Heendon, Judge. (1) A purchaser at partition sale is entitled to possession of tbe land from the day of sale; or if it be subject to a valid lease, or a lease which he might but does not cboose to avoid, he will be entitled to the rents from that date; and if the owners have collected them in advance, and that was not known to him when be bongbt, be will be entitled to a rebate upon bis bid to an equal amount.

— Hoñ. A. M. Woodson, Judge. (1) There is not only no allegation whatever in the petition stating the amount named in the policy sued on, but further, it is not alleged that a money indemnity in any sum was promised.

— Hon. A. M. Woodson, Judge. (1) . Plaintiff’s instructions Q and S should have been given. The evidence all shows that George C. Crow-t-her was the general agent of interpleader. His agency reached far back of the execution of the note and mortgage and extended long afterwards. The knowledge of the dual agent is the knowledge of both principals where they both know him to be such an agent. DeSteiger v. Hollington, 17 Mo. App. 382; Robinson v. Jarvis, 25 Mo.

<p>1. Banks and Banking: receiving deposits: liability of officer: statute: penalty. Section 2760, Revised Statutes 1889, though providing a remedy for the creditor, and in that respect remedial, inflicts a punishment on the officer of a bank for his transgression by making him pay the debt of the corporation, which he did not owe, and is therefore penal and the depositor’s remedy is at law. Quaere:</p> <p>(1) Whether sueh construction affects the period prescribed by the statute of limitations as to penalties.</p> <p>(2) Whether the depositor can maintain the action against the officer though he could make his deposit out of the bank.</p> <p>(3) Whether the action would survive against the heirs and executors of the offending officer.</p> <p>(4) Whether the offending officer is entitled to subrogation to the rights of the creditors against the bank.</p> <p>2. -: -: election of remedies. The fact that the depositor has proved up his claim before the assignee of the insolvent bank will not preclude’ his pursuing the offending officer with an action under the statute. The two remedies not being inconsistent may be pursued at the same time.</p> <p>3. -: -: -: satisfaction. Though the depositor may pursue two remedies at the same time against one or more persons, he can have but one satisfaction.</p> <p>4. -: -: KNOWLEDGE OF FAILING CONDITION OF THE BANK. The evidence in this ease is held sufficient to charge two of the defendants with knowledge of the failing condition of the bank at the time the deposits in question were received, and this, though one of them was not participating in the active management of the institution.</p> <p>5. -: -: insolvency: instruction. Insolvency under the statute relating to the receiving of deposits, is an inability to meet the ordinary demands against the bank in the usual and ordinary course of business, and instructions to that effect are approved.</p> <p>6. -: -: duty of officers: presumption. It is the duty of officers of a banking institution receiving or assenting to the reception of deposits to know the financial condition of the bank, and the law presumes they do know it.</p>

— Hon. J. A. Hockaday, Judge. The court permitted incompetent testimony to be introduced. Barker v. Eailway, 126 Mo. 143. The sole cause of action here stated, the delay, was occasioned by a sudden and unusual storm, an act of God, which excused the carrier. Eor that reason the verdict should have been for-the defendant. Ballentine v. Eailway, 40 Mo. 491; Pruitt v. Eailway, 62 Mo. 527; Davis v. Eailway, 89 Mo. 340; Stanard v. Transit Go., 122 Mo. 276; Ooleman v. Eailway, 36.

— Hon. J. A. Hogkaday, Judge. (1) That a vendor who is induced to part with his property by fraud may rescind the contract of sale and reclaim the property, is an elementary proposition of law and is well settled by a host of decisions in this state. Cobbey on Replevin,-secs. 262,263; Benjamin on Sales, sec. 440; Dry Goods Co. v. Jacobs, 66 Mo. App. 362; Blackwell v. Ery, 49 Mo. App. 641, and authorities there cited. Thomas v. Ereligh, 9 Mo. App. 151.

— Hon. D. W. Shackleford, Judge. (1) The coroner, under the statute, the sheriff being disqualified, was tbe proper officer to summon the jury. 2 R. S. 1889, sec. 8188; State v. Smith, 90 Mo. 37. It is true that the party appointed elisor was also coroner, but he was not required or authorized to act in his official capacity as an officer of the county. Thompson and Merriam on Juries, sec- 82.

— Hon. James F. Green, Judge. The amended petition sufficiently states a cause of action under the treble damage act. The general rule in regard to trespass is that all who direct the commission of a trespass, or wrongfully contribute to its commission, or procure the commission thereof, or aid or abet others in doing so, or assent to it after it is committed, are equally liable to the injured person.

James T. Neville, Judge. At 8 o’clock a. m. on August -1, when Yates notified Levy that defendant refused to be bound by the appraisal, the company made its election about taking the goods at their appraised value and' refused them. That exhausted the option. An election is the right of choice between two or more steps by a person not entitled to all and when once made is final. Bishop on Contracts, 781, 784; 6 Am. and Eng. Ency.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The evidence is not sufficient to support a verdict finding the transfer from Noltkamper to the Esselbruegge Mercantile Company to have been fraudulent. Noltkamper had a perfect right to transfer his property in payment of an honest debt owed by him. Shoe Co. v. Casebeer, 53 Mo. App. 640; Pierson v. Slifer, 52 Mo. App. 273; Lumber Co. v. Planing Mill Co., 59 Mo. App. 383; Bank v. Shoemaker, 68 Mo. App. 594.

— Hon. Reuben F. Roy, Judge. The trial court misinterpreted the meaning of the opinion of this court on the former appeal 73 Mo. App. 487. That opinion certainly announces the doctrine that defendant can only be held liable for the effects of seepage in the event that the pond was negligently constructed or maintained, quoting from Cooley on Torts, pages 676, 677, and citing a number of authorities in support of the next therein.

— Hon. Reuben F. Roy, Judge. The allegation of place of residence of the parent and children is sufficient. The domicile of the parent is the domicile of the orphan minor children, equally. DeJarnett v. Harper, 45 Mo. App. 415, 421; Schouler’s Dom. Rel. 312. So as the allegation of the making of the note includes the consideration.

— Hon. Elliott M. Hughes, Judge. There was evidence of a valid sale and the court erred in taking the case from the jury and directing a verdict for the defendant. Charles v. Patch, 87 Mo. 450, 463; Wilson v. Board of Education, 63 Mo. 137; Berry v. Mo'. Pac. E’y Co., 124 Mo. 223, 244; Yorgeli v. Marble & Granite Co., 56 Mo. App. 678; Twohey v. Eruin, 96 Mo. 104. . Delivery under a verbal contract of sale passes the title to personal property.

Louis City Circuit Court. — Hon. Reuben F. Roy, Judge. The court erred in sustaining demurrer to the evidence. The proof showed clearly that the notes and deed of trust were obtained from Mrs. Kuch by fraud, and that threw the burden upon defendants of showing that they bought for value and without notice. Hamilton v. Marks, 63 Mo. 178; Johnson v. McMurry, 72 Mo. 278; Henry v. Sneed, 99 Mo. 407. The proof shows that defendants have parted with no value.

Elliott M. Hughes, Judge. The law imposes upon tbe officer levying tbe writ tbe duty of protecting tbe execution of defendant. Tbe court can not do tbis duty nor determine tbe matter for bim. State ex reí. v. Barrada, 57 Mo. 562; State ex rel. v. Barnett, 96 Mo. 133; State to use Snider v. Bierwirtb, -47 Mo. App. 551. Besides tbis, tbe motion is not properly in tbis case.

— Hon. Elliott M. Hughes, Judge. There was no error in trying the first count separately and it was proper for the judgment on the findings on the second and third counts to await the trial on the first count. R. S. 1889, sec. 2134; Oberbeckv. Mayer, 59 Mo. App. 289; Needless v. Burke, 98 Mo. 474; Mooney v. Kennett, 19 Mo. 551. The entering of the judgment prematurely by the clerk was an irregularity apparent on the face of the -record and could be set aside after the term.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>Death, like any other fact, may be proved by circumstantial evidence. It is not necessary in case of an alleged disappearance and death either to show that seven years has elapsed since the person was last seen or heard from, or that when last seen he was in contact with a specific peril. It is enough if the evidence reasonably shows that, according to -human experience, it is more probable that the person is dead than that he is alive. Hancock v. Ins. Co., 62 Mo. 26-32; Lancaster v. Life Ins. Co., 62* Mo. 121-129; Tisdale v. Ins. Co., 26 la. 170-176. Where a person who has suddenly disappeared is alleged to be dead, any evidence which tends to throw light on the cause or motive of disappearance is relevant. Such as character, disposition, habits, domestic relations, circumstances, of life, declarations and the immediate facts and circumstances surrounding such disappearance. Tisdale v. Ins. Co., suypra; Hancock v. Ins. Co., 62 Mo. 26; Cox v. Ellsworth, 18 Neb. 554; 26 N. W. Rep. 460; Sheldon v. Earris, 45 Barb. 124-128; Supreme Council v. Boyle, 37 N. E. Rep. (Ind. App. Ct.) 1105. In this case the circumstances attending and preceding the disappearance all tended to show suicide by drowning on the evening of January 30, 1897. The age of Carpenter, his lack of physical strength, inability to find work, despondency, threats of suicide, want of fundsat time of disappearance, proximity to the river when last seen, manner of leaving last messages, all tend, when taken in connection with the disappearance, to show suicide by drowning. The conversation with Whitlege and his proximity to the river at dusk of the day he was last seen, show contact with what may reasonably be said to be a specific peril. Previous conversations and threats of suicide were relevant and competent because tending to show intent, habits of mind, and also tending to explain the disappearance. Consequently, it was competent to show previous threats of suicide as well as to show the letters left just before his disappearance. State v. Mertz, 14 Mo. App. 59; Pratt v. Coleman, 33 Mo. 71-76; Ins. Co. v. Yandecar, 86 Eed. Eep. 282-289; Ins. Co. v. Hillmon, 145 U. S. 285-295.</p> <p>The evidence as to the alleged attempt to commit suicide four or five years previous, was improper. State v. Harrold, 38 Mo. 496; Bank v. Murdock, 62 Mo. 74; Hays v. Eailroad, 15 Mo. App. 584. The evidence as to the river being full of ice on January 30, 1897, should not have been admitted. Martin v. Union M. S. Co., 13 Wash. 275. The statements of Mr. Carpenter that he would commit suicide, should not have been admitted. Brownell v. Eailroad, 47'Mo. 239; State v. Ware, 62 Mo. App. 592; Corbett v. Eailway, 26 Mo. App. 621; Green v. State, 13 Mo. 382; State v. Evans, 65 Mo. 574. Defendant’s instruction in the nature of a demurrer to the evidence should have been given as there was no evidence tending to prove the death of John E. Carpenter. State v. Banerle, 46 S. W. Eep. 609; Lancaster v. Ins. Co., 62 Mo. 121; Donaldson v. Lewis, 7 Mo. App. 403; Martin v. Ins. Co., 13 Wash. 275. ' ,</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. Tbe question as to tbe sufficiency of tbe statement of account filed before a justice and upon wbicb tbe action is based, is now raised on tins appeal for tbe first time. Appellant not having either presented or urged this question in tbe lower court, bis objection now comes too' late.

Louis City Circuit Court. — Hon. Leoby B. Yalliant, Judge. The court erred in taking the consideration of the case from the jury by its peremptory instruction to find for the defendant. Woods v. Ins. Oo., 50 Mo. 116; Sims v. Ins. Oo., 4-7 Mo. 54; Tutt v. Ins. Oo., *19 Mo. App. 677; Hanley v. Ins. Oo., 69 Mo. 380; Chadwick v. Order of T. A., 56 Mo. App. 463; Goedecke v. Ins. Go., 30 Mo. App. 601.

Louis City Circuit Court. — Hon. John M. Wood,- Judge. It is a general rule that an injunction against several defendants jointly implicated in the same transaction willnotbe dissolved until all of the defendants have answered denying the equities of the bill. 1 Beach Injunctions, sec. 323; 2 Spelling Ex. Rem., sec. 1065; 2 High Injunc., sec. 1528; 10 Am. and Eng. Ency. PL and Pr., p. 1078; 10 Am. and Eng. Ency. of Law, 1017.

— Hon.'John Gr. Wear, Judge. The omission of the name of a grantee in the deed executed and delivered by Lawson to Chapman does not render the deed void. Lawson authorized Chapman in the letter inclosing the deed to insert the name of a grantee in case he succeeded in selling, and he was thereby fully warranted in putting in the name of A. J. Yesey, the purchaser, as grantee. Field v. Stagg, 52 Mo. 534; Otis v. Browning, 59 Mo. App. 326; Brim v. Fleming, 135 Mo. 597.

— Hon. Elliott M. Hughes, Judge. This court has no jurisdiction. The case was brought here by writ of error and no notice. Revised Statutes 1889, section 2290, provides that every person suing out a writ of error shall cause notice thereof in writing to be served on the adverse party or his attorney twenty days before the return day of such writ.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. A chattel mortgage is a creature of contract, and not of law, and must be enforced in strict accordance with its terms. A mortgagee must give credits for all amounts the mortgagor is justly entitled to, and if the court find's that he has not done so, then the cost of this proceeding should fall upon him.

<p> Appeal from the Hannibal Common Pleas Court. </p> <p>Her coolness while the vi/nmlo mai/rimomi, that should he the offspring of love are being forged by gunpowder and bullet; her tacit consent to the departure of her victim immediately foEowing the mock ceremony aE go to show that she was the author of her own misfortune, and in no condition to murmur at the policy of the law, which in its majesty, declares such a proceeding void ab mido. Her motto should have been virtud, non a/rrms,fido. Marriage is considered in law as a civil contract, to which the consent of the parties capable in law of contracting is essential. R. S., sec. 6840. A'marriage procured by force or fraud is void, ab initio and may be treated as null by every court in which its validity may be incidentally drawn in question. The basis of the marriage contract is consent, and the ingredient of fraud or duress is as fatal in this as in any other contract, for the free assent of the mind is wanting. Kent’s Com., pp. 40, 41. Consensus, non eonoubitas, faoit nupdas. 1 Blackstone’s Com., sec. 434. When a consent, in form, is brought by force, menace or duress, a yielding of the Hps but not of the mind, it is of no legal effect. This rule which is applicable to all contracts finds no exception in marriage. There may be the form of a matrimonial consent, when there is no consent, when there is no consent in reality. It is so where the solemnization is obtained by fraud, conspiracy or duress, or where it is the result of error. Bishop on Marriage and Divorce [Ed. 1856], secs. 63, 99, 119, 120. In the case of Davis v. Luster, 64 Mo. 43, referred to in appellant’s brief, it is held that where contracts are made in consequence of fraudulent advantage taken of the affections or sensibilities of a party, or under the influence of threats or apprehensions, althoughnot amounting to legal duress, equity will grant relief. Judge Storysays that circumstances of extreme necessity and distress of a party, though not accompanied by any direct restraint or duress, may so entirely oveicome his free agency as to justify the court’in setting aside a contract made by him on account of some oppression or fraudulent advantage or imposition attendant upon it. In such case he has no free will, but stands inmnoulis.- 2 Story Eq., sec. 239.</p> <p>Although estoppel was not pleaded, this was a case in equity and a plea at law would have been out of place. Selah v. Selah, 8 O. E. Greene N. T. 185. The case made by plaintiff shows on its face, as upon demurrer to evidence in a case at law that the plaintiff was estopped from claiming or pleading that he did not consent to marriage. The doctrine of “clean hands” should be applied to this case. “He who seeks equity, must do equity.” The plaintiff wickedly and falsely, himself brought about the occasion of the alleged wrong of which he complains. The plaintiff comes into court with his hands reeking with corruption and asks the court to give him, equitable relief. Cassidy v. Metcalf, 1 Mo. App. 593, 601; Wilson v. St Louis, 120 Mo. 45, 58; Southworth v. Hopkins, 11 Mo. 331. The father found the honor of his family in abasement. There was m> court for him, neither should there be in this suit any for the betrayer. Is equitable relief stored up to rescue malefactors from the results of their misdeeds? There is a recent decision of the supreme court on a Macon court case where a father slew his daughtei*’s ravisher, and the opinion by Judge Sherwood made advanced allowances having an argumentative bearing on this case. The evidence in this case indicates that it was but the night before that the father was made aware of the circumstances. Besides the personal and family ignominy, the plaintiff in the case at bar had put on the def endent the support of his confessed offspring. Can equity aid him in escape from this responsibility. The case of Davis v. Luster, 64 Mo. 43, bears ■ strongly against relief from alleged duress under such circumstances. The maxim “ex turpi causa actio non oritm-” is also applicable. So also “ex dolo malo non oritm actio.” Hatch v. Hanson, 46 Mo. App. 323, 330; Turley v. Edward, 18 Mo. App. 676, 682. So the maxim “in pa/ri delicto.” Davis v. Luster, 64 Mó. 43, 46. The evidence shows that plaintiff was induced to-marry through appeals made to him by others than the plaintiff’s father, and that he did so marry without being prevailed on by -threats or coercion, and that plaintiff admitted this the day after the marriage.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.</p> <p>Appellant purchased a horse from respondent for $3,000, $2,750 of which was cash, and the balance of the purchase money ($250) was to be paid one day after the horse purchased developed speed enough to win a race. The purchase of the horse was certainly not illegal. The question raised by appellant’s counsel, as to whether or not horse racing may, or may not be illegal or immoral, is not concerned in this case at all, and the fact that other parties may wager on horse racing, can not affect the validity of the contract under consideration in this case. The payment of the due bill was conditioned upon the horse proving himself capable of winning a race. That condition being fulfilled, respondent must recover. Similar due bills to this have been before the courts, and have always been sustained. In the case of Williams v. Stifel, 60 Mo. App. 138, the following contract was sustained: “July 18th, 1893. Agreement between J. S. Williams of Paris, Texas, and Otto J. Stifel, of St. Louis, Missouri, a part •contract of sale of Pop Gray to Otto F. Stifel. Said Otto F. Stifel hereby agrees to pay, aside of his two promissory notes of $2,500 each, the sum of $1,000 to said J. S. Williams immediately after Pop Gray’s first victory in a race. (Signed) Otto F. Stifel.”</p> <p>The note or contract sued on in this case was only to become due when the horse therein mentioned should “win a race.” Horse racing is illegal and against public policy, and the courts will not lend their assistance to the enforcement of a contract based, thereon. Pelz v. Long, 40 Mo. 532. It is not material whether the illegality is disclosed by the contract or is established by evidence aUunde. Sumener v. Summers, 54 Mo., page 340; Bick v. Seal, 45 Mo. App. 475. In this state distinction made by the English authorities between contracts which are illegal and those which are immoral is not recognized. Buckingham v. Pitch, 18 Mo. App. 91. Whenever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void as being against public policy.” 1 Story on Const., sec. 695; Turley v. Edwards, 18 Mo. App. 682, and cases cited.</p>

— Hon. James T. Neville, Judge. A conveyance intended as a security for the payment of a debt, however absolute in form, will be treated as 'a mortgage. ' Sharkey, Trustee, v. Sharkey, 47 Mo. 543; 62 Mo. 202; Copeland v. Yoakum, 38 Mo. 349; Cobb v. Day, 106 Mo. 278. When the facts of the transaction leave it questionable whether a mortgage or a conditional sale was intended, the doubt is to be resolved in favor of the mortgage.

— Hon. Henry C. Riley, Judge.' It is very questionable whether the ordinance is valid or not. Johnson v. Daw, 53 Mo. App. 372. This law does not, and was never intended to, apply to the milk cows of a farmer residing three miles out in the country. Vail v. Railway, 28 Mo. App. 378. When the escape is accidental or unavoidable, as in this case, the law does not apply, even to cattle kept in the city. And certainly not to those three miles from the city.

<p>City Ordinance: impounding stray hogs: penal replevin. The ordinance, in the ease at bar, is penal in its nature; its plain language hinges the right of the officer to demand the prescribed fees for the apprehension of straying swine belonging to a nonresident, upon proof either of written notice to the owner, or that the animals in question have been impounded before. Held, that in the absence of any evidence of compliance with either of these requirements of the ordinance the trial court should have directed a verdict for plaintiff.</p>

Louis City Circuit Court. — Hon. Rudolph Hirzel, Judge. The court should have given declaration of law number 1 in view of the evidence. The evidence offered on part of the plaintiff was competent and sufficient to prove the contract between tbe school district and Wilson & Billings, contractors.

— Hon. Reuben F. Roy, Judge. There can be no question as to the right of plaintiffs to maintain this action. In Oummings v. St. Louis, 90 Mo. 259, • which was a suit to enjoin the city from opening a street, the court held that plaintiff could maintain the action although his property was three blocks from the proposed street.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. Proposition I in brief of appellant is predicated upon a misconception of the theory upon which the court tried and submitted this case to the jury, and, as well, mistakes the theory of the plaintiff. Plaintiff did not rely upon a ratification of the act of Mr. Taussig or Mr. Houseman in employing him, by the directory of defendant.