Volume 83 — Missouri Appeal Reports

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

<p>Attachment: INDEMNIFYING BOND: OWNERSHIP. In a suit upon an indemnifying bond when it is undisputed that the relators were in actual possession of a stock of goods at the time an attachment w-rit was served, a prima facie case of ownership by the relators, is made for the relators.</p>

Lonis City Circuit Court. — Hon. Horatio H. Wood, Judge. The question raised by appellant’s assignment of error is whether or not that portion of the contract contained in the sixth clause thereof is valid as being a reasonable restraint of trade, or invalid because an unreasonable restraint of trade as creating a monopoly and void.

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) The yearly allowance to the widow should be one-third of the present yearly value of the premises in the present condition- and use of the premises. Griffin v. Regan, 79 Mo. 73; Riley v. Glamorgan, 15 Mo. 335; Young v. Thrasher, 115 Mo. 234. (2) The dowress has no right to make the owner improve the land by the erection of buildings, for her benefit.

<p>Chattel Mortgage: FRAUDULENT ON ITS FACE: GARNISHMENT: CASES DISTINGUISHED. This case and the ease of the Calumet Paper Company v. Haskell Show Ptg. Co., 144 Mo. 331, distinguished, and shown to be dissimilar in principle. Held, that in the ease at bar appellant sought to hinder and delay creditors by a fraudulent chattel mortgage; that in the Calumet case, two of five directors undertook to assign all the company’s property for the benefit of all its creditors; one was tainted by fraud, the other noneffective for want of power. The property in the first instance was declared a trust fund for all creditors, in the second, a subject of garnishment by the diligent creditor, as the mortgage had been made in fr-aud of Ms rights.</p>

— Hon. Reuben F. Roy, Judge. (1) A demurrer to the evidence admits everything that the testimony conduces to prove. Eisher v. Railroad, 23 Mo. App. 201; Noinger v. Eogt, 88 Mo. 589. A demurrer admits every fact which the jurors might infer if the evidence were before them, and should be sustained only when the evidence thus considered fails to make proof of some essential fact in the case. Jackson v. Ins. Co., 27 Mo. App. 62; Herboth v. Gaal, 47 Mo. App. 255.

— Hon. Andrew Ellison, Judge. (1) The court erred in admitting evidence over objection of appellant. Birdie Horn, Olga Horn and Minnie Copenhaver being daughters of appellant, Della Y. Horn, had a lawful right to be at the home of their mother, and the question of whether their reputation was good or bad as to virtue and chastity would be immaterial in this case. State v. Dudley, 56 Mo. App. 540; State v. Barnoid, 64 Mo. 260.

— Hon. 'Edwin R. •McKee, Judge. (1) It is well settled in this state, that the filing of the petition is the commencement of the suit. Hornsby v. Stevens, 65 Mo. App. 185; Lumber Co. v. Wright, 114 Mo. 326; State ex rel. v. Ross, 122 Mo. 456; McGrath v. Railroad, 128 Mo. 1. (2) The foregoing decisions relate solely to the bar of limitation.

— lion. Edwin B. McKee, Judge. (1) The courts have, when these local option laws have been called- in question, almost universally held the provisions made for putting the law in force mandatory, and have required a strict compliance therewith, therefore the law can be held valid and effective. State ex rel. v. Ruarle, 34' Mo. App. 325 f Ex parte Sublett, 4 S. W. Rep. (Tex.) 894; Ex parte Smith, 30 S. W. Rep. (Tex.) 223.

— lion. Edwin B. McKee, Judge. (1) It was error to sustain defendants’ objections. They were not on the ground the petition states no cause of action in equity, or that ought to be addressed to the equity side of the court; or there was a defect of parties. On its face the petition states a cause of action' at law. If it has defects they do not appear on its face, and all others as to parties if not taken by answer are waived.

— Son. Edwin B. McKee, Judge. Defendant’s demurrer to the evidence should have been sustained. It was conceded by all witnesses who professed any knowledge upon the subject that plaintiff’s premises were low, flat, bottom lands, and subject to overflow, and that the overflow would have happened just the same whether defendant’s bridge was .there or not, and that there was an extraordinary and unusual flood on the night of July 4, 1897.

— Son. Edwin B. 'McKee, Judge. (1) The record shows, if the court will examine it carefully, that is, the record proper shows, that the bill of exceptions was filed within the time allowed by the court, and is a proper matter of record. (1) There is nothing before this court for review. Appellant’s abstract of the record fails to show that appellant excepted to the action of the trial court in overruling the motion for a new trial.

<p>Payment to Agent: CONTRACT. Where defendant in each shipment of goods to plaintiff sent an invoice stating “pay no money to salesman unless they present written authority from us to collect,” and the salesman did collect for a certain bill of goods shipped by defendant, the written direction on the invoice did not prevent the parties making such an agreement from substituting a new one. The power to make a contract involves the power to unmake it, and when the jury have by their verdict in favor of plaintiff inferred that the written order has been abrogated, it will not be disturbed.</p>

<p>Appeal .from the Pike Circuit Court. — Hon. David H. Hby Judge.</p> <p>(1) The petition does not state facts sufficient to constitute a 'cause of action for anything other than for trespass, and if respondent’s proof tends to show a cause of action it was for the conversion of. the machine, ^and a conversion was not alleged in the petition. McQiiillin’s Plead. & Prac., secs. 314 and 315; Perry v. Musser, 68 Mo. 477; Bhea v. Mfg. Co., 81 Mo. App. 406. Judge Bland, in last named case, says: “A plaintiff can not sue on one cause of action and recover on a different one, though the latter is supported by the evidence.” (2) The respondents abandoned their cause of action for trespass, and plaintiffs sought to recover as for conversion. (3) There is no evidence to sustain the verdict, and such verdict can not be cured by remittitur. Koelitz v. Bleckman, 46 Mo. 320; Doty v. Steinberg, 25 Mo. App. 328; Alexander v. Harrison, 38 Mo. 258; 1 Sutherland on Damages, p. 1173; Horine v. Bone, 69 Mo. App. 481.</p> <p>(1) Bespondent’s petition, found at page 3 of appellant’s abstract, is a complete statement of her case. There was no objections to the introduction of any testimony offered by the plaintiff, neither was there an objection to any testimony offered by defendant. No instructions were asked or refused on the part of defendant. The only questions involved, or tried in this cause, were questions of fact, and the jury found those in favor of plaintiff. As we view it, the record before this court, presents no questions for it to review.</p>

— Hon. Elliott M. Hughes, Judge. (1) The action of the court on demurrer is a matter of record and there is no necessity of saving exceptions to the ruling thereon. State v. Eim, 19 Mo. App. 560; Babston v. Clark, 31 Mo. 34; Spears v. Bond, 79 Mo. 467. (2) The reply of plaintiffs shows that the administration and partition' of said estate was against their will and consent, always made known to defendants, and under such state of facts there can be no estoppel.

— Hon. David H. Hby, Judge. (1) The execution in the hands of the sheriff was not a lien on the property here in controversy prior to a valid levy thereof. E. S. 188'9, sec. 4922. It can not be claimed that the statement of the sheriff to the constable that he had levied on his property infused life and l-egality.into his otherwise void and illegal act.

<p>Practice, Appellate: PROMISSORY NOTE: PAYMENT. The issue, in the ease at bar, was submitted to the jury without instructions and the finding was for the defendant and as the testimony tended to prove the alleged payment on the note by defendant, the judgment will not be disturbed.</p>

<p>Practice, Trial: PRACTICE, APPELLATE. In the case at bar no instructions were asked or given; no exceptions were saved to any rulings of the court on the admission or rejections of testimony, nor was there any findings of the facts by the court. There are, therefore, no errors here for review, and the judgment must be affirmed.</p>

— Hon. s David H. Dby, Judge. (1) “In a law case the circuit judge may set aside the report of a referee altogether, but he has no power to amend it.” Clark v. Phillips, 99 Mo. 550; Caruth-Byrnes Hardware Co. v. Wolter, 91 Mo. 484; Turley v. Barnes, 67 Mo. App. 237; Martin v. Hall, 26 Mo. 386.

— Hon. Reuben F. Roy, Judge. Cl) The court should have permitted the plaintiff, Sallie A. Wood, to testify, that it was represented to her that the defendant Motley only wanted the plaintiffs’ note as security, and that they were induced to execute it by that representation. John TL Wood testified that he went to- see them at the solicitation of Motley, to get them to give their note as security for the $390.

— Son. David S. Eby, Judge. (1) It is a well-grounded principle of law that the party to a suit at whose' instance a service is rendered for which a fee is allowed is liable to the officer for the fee, and the fact of his being permitted, in the event of a judgment in his favor, to recover back the fees expended, does not affect his liability; he is liable to the officer for them though they may never be recovered from the unsirccessful party. Carr v. City, 9 Mo. 192.

— Hon. Elliot M. Hughes, Judge. (1) The defendant’s motion to dismiss should have been sustained. Mclloney v. Ins. Co., 37 Mo.'App. 218; Railroad v. Jenudson, 62 Mo. 569; Rothwell v. Morgan, 37 Mo. 107; Dyer v. Murdock, 38 Mo. 224; Peake v. Bell, 65 Mo. 224. (2) The suit was not commenced within thirty days after the notice had1 been served which was done on August 22, 1898.

— Hon. Argus Cox, Judge. (1) Appellant contends that the defendants in error can not plead, nor show fraud upon the part of T. B. Horn in order to defeat the assumption clauses in the deeds, but in this he is mistaken, as it is a doctrine well recognized that where a party attempts either in a court of law or equity to enforce a fraudulent or immoral contract, the true nature of it can be shown to defeat such action.

— Hon. ' Henry G. Pepper, Judge. The defendant was not arraigned and no issue was submitted to the jury. Where there is no arraignment of the defendant, there must -be a reversal of the judgment of conviction. State v. Hull, 73 Mo. App. 300; State v. Walker, 119 Mo. 467; State v. Williams, 117 Mo. 379; State v. Hoffman, 70 Mo. App. 271; State v. ILaycroft, 49 Mo. App. 488; State v. Hubbell, 55 Mo. App. 262; State v. Geiger, 45 Mo. App. 111.

— Hon. Ed/win B. McKee, Judge. (1) The instrument sued on provided for arbitration and submission to referees. This was a condition precedent to respondent’s right to recover. No reference is made in the petition to the arbitration clauses contained in the policy. No waiver or excuse is pleaded in petition or reply. Nor was waiver or excuse shown by the testimony. These omissions in the pleadings and evidence are fatal to respondent’s case. McNees v. Ins. Co., 69 Mo.

<p>Bailroads: NEGLIGENCE. The engineer had no reason to anticipate that stock would be on the right of way where the railroad passed . through an enclosed field and which was properly fenced, and therefore he was under no obligation to keep a vigilant watch.</p>

— Hon. David H. Eby. Judge. (1) The plaintiff under the recent statutes as to the property rights of married women, was a feme sole, as to all of her property, and had full control and disposition of it. These statutes give the wife a separate legal existence. Gabriel v. Mullen, 30 Mo. App. 464; Claw v. Chapman, 125 Mo. 101; Bedsworth v. Bowman, 104 Mo. 44; Brown v. Bowen, 90 Mo. 184. And she can have an agent for the management and disposition of all her property.

Circuit Court. — Hon. Elliott M. Hughes, Judge. (1) “A proceeding by scire facias to revive a judgment is an action and the judgment therein is a new judgment.” Walsh v. Bosse, 16 Mo. App. 231; Kratz v. Preston, 52 Mo. App. 253. We submit that Walsh v. Bosse, supra, is conclusive as to the correctness of appellant’s contention.

<p>Appeal from the .Ralls .Circuit Court. — lion. David Henry My, Judge.</p> <p>(1) Tbe court erred in giving instruction number 1 for the relator. This instruction was in effect a peremptory instruction to the jury to find for the relator, if they believed her mother gave 'her a horse and cow at or about the time of her marriage, and that the horse and cow sold by the sheriff was the same, or was the income, increase or the profits thereof. As to all other matters it directed a verdict. It did not require the jury to find when the relator was married and when her mother gave her the horse and cow. It assumes that the marriage took place since the passage of the Married "Woman’s Act of 1875, and that the date the relator’s mother gave her a horse and cow, was since the passage of that law. There was no evidence showing the date of the marriage and when the horse and cow were given to the relator. The theory of the relator’s case is based upon the Married Woman’s law of 1875, but she fails by the evidence to bring her case within its provisions, and ’this instruction is altogether wrong and should not have been given at all. If this property came to the wife prior to the Married Woman’s act, it vested absolutely in her husband and his right therein became a vested right, and .all income and proceeds thereof would be his. Woodford v. Stephens, 51 Mo. 443; Benne v. Schnecko, 100 Mo. 250; Leete v. State Bank, 115 Mo. 184. (2) Instruction number 2, given for the relator, is subject to the same objections as that of number 1, above named. And in the use of the word “represented” is ambiguous and technical; and has in 'the connection in which it is used, a technical legal meaning that should have been explained to the jury by the court. And the use of this word submitted to the jury a legal proposition. Grand Lodge of Masons v. Knox, 27 Mo. 315; Belt v. Goode, 31 Mo. 128; Dyer v. Brannock, 2 Mo. App. 432; Dry Goods Go. v. Schooley, 66 Mo. App. 414; Hester v. Fidelity and Casualty Co., 69 Mo. App. 186; Elint-Walling Mfg. Co. v. Ball, 43 Mo. App. 504. (3) Where the plaintiff - produces parol evidence to support his action, the issues of 'fact must be submitted to the jury, even though the evidence be all one way. It is for the jury to say whether they will believe the witnesses or not; and 'the court has no right to tell the jury they must believe the witnesses. Mineral Land Co. v. Eoss, 135 ML. 101. (4) The judgment is clearly excessive and not supported by the evidence. There was no evidence to support the verdict, and the evidence as to the value of the horse and cow, so preponderates against the verdict as to clearly show that it was the result of partiality, prejudice or passion, and should not be permitted to stand. All the evidence except one witness, who is a brother of the relator, shows the value of the horse to be not over $35, and the valtre of the cow, to be from $30 to $35. Her brother thought the horse and cow were worth about $85 or $90. There was no evidence that the horse and cow were together worth $100. Oglebay v. Corby, 96 Mo. 285.</p> <p>(1) The jury were the judges of the value of the animals and had a right to consider the opinion evidence,. also the cost of the animals (the evidence showing that the horse alone cost $75), the amount they sold for at sheriff’s sale in connection with the description and qualities of the same as they were detailed in evidence by the oral testimony and by the sheriff’s return and notice of sale, etc., and from all these facts arrive at a conclusion as to the value. No case can be found where the jury are required to adopt the estimate of witnesses as to value. This requirement would in effect amount to a substitution of the opinion of witnesses for the judgment of the jury. If only one witness gave his opinion, then the jury might as well be discharged and the opinion of that witness taken as the verdict without any deliberation on the part of the jury. Cosgrove v. Leonard, 134 Mo. 419; McEeynolds v. Eailroad, 105 H. S. 45; Murdock v. Summers, 22 Pick 156; Powell v. Kailway, 59 Mo. App. 335. So a jury may be left to determine the value without any evidence, as to illustrate, services rendered by nurses. Murray v. Eailway, 101 Mo. 236. So a trial judge may fix 'amount of 'attorney fees without any evidence of value. McCloskey v. McCloskey, 68 Mo. App. 199. The cost of the animals and the price for which they were sold constitutes evidence of its value. Stevens v. Springer, 23 Mo. App. 315; Markowitz v. Kansas City, 125 Mo. 485.</p>

<p>1. Appeal Bond, Suit On: BOND INVALID: CONSTRUED AS MADE. The petition states that the appeal was granted to supreme court, but the bond states that the appeal was this day taken to the court of appeals at St. Louis, Missouri. The bond as made was unauthorized and is a nullity, and must be construed according to its plain provisions.</p> <p>2. -: -: VALID BOND ONCE OBTAINABLE: NOT NOW. Plaintiff Keaton, in whose favor judgment was rendered, could have objected to the bond when offered, or at any time subsequent during the pendency of the appeal; this he failed to do, but now asks the court to give him a valid bond, which it has no power to do.</p> <p>3.--: -: -: NO LIABILITY ON BOND. No liability has attached or ever can attach to the defendants on the bond according to its terms, and only by the terms of the bond can they be made liable; the judgment of the lower court was for the right party.</p>

— Hon. Elliott M. Hughes, Judge. The court gave the jury the following instruction: “The court instructs the jury that the contract read in evidence was sufficient to give defendant possession of the farm' of plaintiff under the tenants of Larmer & Laswell, and if the jury believe that plaintiff was not in possession of said farm, but defendant was under said contract on October 4, 1898, and that he remained in possession under said contract, then your verdict should be for…

Reuben F. Roy, Judge. (1) This was a proceeding by attachment; had the court the right to tax all costs against the plaintiff accrued after the date the tender was made ? (2) In no event is the plaintiff liable for any costs except the defendant’s accrued after the tender was made, namely the costs of his subpoenas and the service of the same together with the defendant’s witnesses fees and no other.

<p>1. Personal Injuries: SUIT OF NEW HAVEN: NOTICE OF DEFECT IN SIDEWALK. Although the officers of the city had no actual knowledge that the particular plank that caused the injury was loose, yet it was competent for plaintiff to prove the general bad condition of the walk, and that there were loose planks in different portions of it.</p> <p>2.--:--: NOTICE PRESUMABLE: INSPECTION, NECESSARY. Proof that planks in different portions thereof were loose, and that its general condition was bad, and had been for months, was competent to show that the entire walk ought to have been inspected and repaired, and that its bad condition was, or by ordinary care could have been known to the officers of the city, and that proper inspection would have revealed the particular defect that , caused plaintiff’s injuries.</p> <p>3. -:---:--: -: INSTRUCTION. Plaintiff’s first instruction sufficiently confined the jury’s attention to the condition of the sidewalk at the particular place of the accident; and further, that it was proper in the case at bar, for the jury to consider whether the walk had been properly constructed out of reasonably safe material.</p>

— Hon. J. L. Fort, Judge. (1) That, a judgment of dismissal annuls all that bas been done in a cause, takes the parties out of' court, and leaves them as they were at the beginning of the suit, is also a plain elementary principle of law which we believe this court has never departed from, and which it will continue to adhere- to.

— Hon. Elliott M. Hughes, Judge. The preparatory instruction at the close of the case was error. As stated above, defendant acquired possession of the property with knowledge of the terms of the contract between plain tiff and Walker.

— Hon. Elliott M. Hughes, J udge. (1) We understand the court sustained the motion on the grounds that the last revival in circuit court was not based on a scire facias, but on an ordinary summons. This ruling is in direct conflict with rulings of our appellate courts. “A scire facias, though informal, will be good if it contains enough to show what judgment is intended to be revived.” Andrews v. Buckbee, II Mo. 428; Ins. Oo. v. Ilill, II Mo. App. 590.

<p>Appeal from the Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>(1) Respondent relies on chapter J3 Revised Statutes 1889, to support the action of the court in entering judgment upon his motion. This statute is a special one and for a party to avail himself of it he must bring himself within the provisions thereof by commencing an action or filing his counterclaim for his lost “money or property” within three months from the time his right of action accrued. R. S. 1889, sec. 5211; R. S. 1889, sec. 5211; Conner v. Black, 132 Mo. 150; Williams y. Wall, 60 Mo. 320; Weaver v. Harlan, 48 Mo. App. 325. Section 5211 says, “all judgments by confession, bills, notes, etc., shall be void and may be set aside and vacated by any court of competent jurisdiction upon suit brought for that purpose by the persons so confessing, giving, entering into and executing the same.” (2) It is admitted by the pleadings that appellant is an innocent purchaser for value and before maturity. To overcome this, however, respondent relies on section 5212. This chapter the “Gambling Act” must be construed as a whole. Each section is directly connected with and relates to the other sections. They can not be dissected and each considered separately and without reference to the others or to- the intent of the act. Weaver v. Harlow, supra; Williams v. Wall, supra. (3) The act is in derogation of common law and “an act passed by the legislature in opposition of what would be the common law must be confined strictly within its limits,” and this is all the more true in cases of this kind wherein everyday business transactions are effected. Sheobald v. Supreme Lodge, 59 Mo. App. 91.</p> <p>(1) The defense to this suit is based upon the provisions of chapter 73, Eevised Statutes 1889. The sections of said chapter especially relied upon by respondent are 5211 and 5212, and are as follows: Section 5211: “All judgments by confession, conveyances, bonds, bills, notes and securities, where the consideration is money or property won at any game or gambling device, shall be void, and may be set aside and vacated by any court of competent jurisdiction, upon suit brought for that purpose by the person so confessing, giving, entering into or executing the same, or by his executors or administrators, or by any creditors, heir, devisee, purchaser, or other person interested therein.” Section 5212: “The assignment of any bond, bill, note, judgment, conveyance or other security shall not affect the defense of the person executing or confessing the same.” (2) Said chapter 73, upon which the defense in this case is based, provides a defense for a party who has executed his note for a gambling debt, and, in addition to providing a defense, it goes further and establishes a cause of action for the party who has lost and parted with his money or" property at gambling. These two remedies, one defensive, the other offensive, are wholly separate and distinct from each other. To sustain the foregoing proposition we deem it unnecessary to call the attention of the court to authority other than "Williams v. Wall, 60 Mo. 318, cited by appellant. The court there says: The third section declares void all * * * notes * * * where the consideration is money or property won at any game or gambling device. Provision is also made by that section to vacate such judgments, and to cancel such notes, etc., by proper procedure on the part of the person directly interested, his heirs, legal representatives, creditors, etc. The fourth section prevents the assignment of any bond, bill, judgment, etc., from affecting the defense of any person executing the same.</p>

— Hon. George F. Long-an, Special Judge. (1) The indictment does not charge defendant with using any device named in section 3810, Revised Statutes 1889 (the section under which the indictment is drawn). (2) The court should be able by an inspection of the indictment to determine whether a crime is charged.

— Hon. Elliott M'. ■Hughes, Judge. Said instruction is as follows: “The jury are instructed that although they may believe from a preponderance of the evidence in the cause that defendant, Colvin, without just cause or excuse, abandoned the contract entered into between him and plaintiff, before the completion thereof, still unless it further appears from the evidence in the cause that plaintiff has sustained a damage by reason of such abandonment their verdict shall be for…

— Hon. Argus Cox, Judge. (1) The defendants at the time of the execution of the note sued on were a trading partnership engaged in buying timber, manufacturing and selling lumber, buying grain, manufacturing and selling meal and flour. A trading partnership is one engaged in a business that according to the usual mode of conducting it, imports in its nature the necessity of buying and selling. Holt v. Simmons, 16 Mo. App. 97; Kiinbro v. Bullett, 22 How.

<p>Appeal from the Hannibal Court, of Common Pleas. — Hon. David H. Ely, Judge.</p> <p>(1) This being a naked action at law to recover tibe money, plaintiff must show exact compliance with the terms of the contract. Pomeroy on Contracts, secs. 371-378; 2 Parsons on Contracts, 66; Eyreman v. Mt. S. C. Ass’n, 6 Mo. 198; Helm v. Wilson, 4 Mo. 41; Railway v. Levy, 17 Mo. App. 507. (2) Under the application for insurance which was the basis of the contract, it was plaintiff’s duty to submit to a full, free and complete medical examination, and to allow the physician to make such examination as he deemed best. Bishop on Contracts [Enlarged Ed.], sec. 241; Union Depot Oo. v. Railroad, 113 Mo. 225. (3) Plaintiff having refused to submit to an examination for stricture, directly violated his part of the contract and has no cause of action against defendant. Tuft v. Sams & Son, 47 Mo. App. 488; Billup v. Daggs, 38 Mo. App. 369; Turner v. Meltier, 59 Mo. 535; Doyle v. Turpin, 57 Mo. App. 84. (4) Stillwell not only failed and refused to comply with the contract for insurance, but he violated the receipt or promise obligatory No. 7584 on which he brought suit. He agreed therein that “if a policy is not issued and delivered in thirty days, a statement of the facts must be mailed to the home office of the company at St. Louis, Missouri;” he prevented the delivery of the policy in thirty days but did not mail the facts to the home office of the company. This is a condition precedent, and plaintiff can not recover. Nicholas, Shephard & Oo. v. Larkin, 79 Mo. 271; Osborne v. Henry, 70 Mo. App. 26; Kingman & Oo. v. Schulenberger, 64 Mo. App. 548; Roy v. Boteler, 40 Mo. App. 222. (5) Under such conditions it became the absolute duty of defendant to delay and obtain from whatever source possible, all the information it could in reference to Stillwell’s health, and in doing so it simply acted the part of a well conducted business institution, worthy of public confidence. The delay was caused by the plaintiff; he can not take advantage of his own wrong. Stillwell has no cause of action against defendant. Eldridge v. Fuller, 59 Mo. App. 44; Murphy v. Stickley-Simonds Co., 82 Hun. 158; Dunn v. Sleabing, 55 N. Y. Sup. Ot. 533; Ketchum v. Zerlsdorff, 26 Wis. 514; Weeks v. Little, 89 N. Y. 566.</p> <p>(1) By the terms of the contract the defendant was bound within forty days either to issue its policy or explain to plaintiff the cause of the delay in S0‘ doing. It did not issue the policy, and the evidence leaves it in dispute both whether there was any cause of the delay and whether such cause was explained to plaintiff. Even if we assume that plaintiff’s refusal to submit to the introduction of the sound, (he refused nothing else), caused the delay, he was led to believe that mode of examination was not necessary. Neither of the examining physicians insisted upon and both recommended the risk without it. If the medical director regarded this as so essential as to require further time to investigate, Stillwell was entitled to know it. The company had contracted that it would so explain to him. He testified it did not do so. It was for the jury to determine whether it had done so or not. The instruction as offered would have authorized a verdict for defendant even if the jury had found this issue for plaintiff. (2) The only thing that Stillwell refused to submit to, even on the evidence of defendant, was the introduction of the sound. The assumption contained in this instruction that had plaintiff submitted to the test the policy would have been promptly issued without delay is wholly unwarranted by any evidence in the case. There was no evidence upon which the jury might have so found. No evidence that the delay would have been any less even if plaintiff had submitted to the introduction of the sound. (3) But even if the admitted knowledge of the facts by the home office would not have excused plaintiff from mailing the statement of the facts, still the instruction was properly refused because it required such written statement to be mailed within forty days from the date of the application. There is no such provision in the contract. On the contrary on the face of the contract, defendant’s liability to return the premium paid, becomes absolute if the applicant should notify the company “within sixty days from the date hereof, at its home office in St. Louis, Missouri, that said policy has not been delivered, nor payment returned.”</p>

— lion. Rudolph • Uirzel, Judge. (1) Tbe error, complained of on tbis appeal is tbe action of tbe trial court in sustaining defendant… Held: “that a scipe facias under the code to revive a justice’s judgment may issue after the lapse of ten years, and that the statute of limitations applies only to judgments of a court of record.” Where (as here) the judgment sought to be revived is a judgment against two, the writ of scire facias' roast go against both, and if abated as…

Louis County Circuit Court. — Hon. Rudolph Hind, Judge. (1) The court should have given the instruction asked for by the defendant, both at the close of the plaintiff’s and of the whole evidence in the case, in the nature of a demurrer.

- — lion. Argus Gox, Judge. (1) The errors complained of by appellant are, that respondent was permitted to offer evidence of the explanation made to him by appellant, and of thS understanding he obtained from such explanation of the meaning of the terms “tontine policy,” and “tontine installment policy,” as used in the application, and instruction number 4 given by the court to the effect that if appellant -explained these terms as entitling respondent to receive a…

<p>1. Damages: LOSS BY FIRE: PETITION: R. S. 1889, SECTION 2615. Although the petition charges negligence in running the train, which might be done, provided its allegations were sufficient to bring the case within the statute, nor would such allegations of negligence prevent a recovery under the statute without proof of negligence.</p> <p>2. -: -: ONLY ONE CAUSE OF ACTION. The damages suffered by plaintiff constituted but a single cause of action, and should have been sued for in one count, instead of two.</p> <p>3. -: -: NOT PREJUDICIAL ERROR. The error of stating one cause of action as two, and in two counts, to warrant a reversal must have been prejudicial to appellant, which the court finds was not so, but rules that the defendant was profited thereby, and therefore the error complained of is not reversible error.</p>

<p>Appeal from the Greene Criminal Court. — Ron. Chas. B. McAfee, Judge.</p>

— Hon. Elliott M. Hughes, Judge. Real estate and the proceeds thereof are assets in the hands of an administrator for the payment of debts. McPike v. McPike, 111 Mo. 216-227. In Governor v. Ohouteau, 1 Mo. 731, the land of deceased was sold under execution after his death.

— Hon. JElliott M. Hughes, Judge. (1) It is unnecessary, we think, to make any extended brief or argument in this case, as it is one of a series of cases brought against garnishee, T. G. Sydnor, all of which are on the same footing. One of these cases, that of Jane Kemper v. T. G. Sydnor, garnishee, was passed on by this court at the March term, 1899, and this court reversed the action of the circuit court, giving its reasons therefor in the opinion to which we refer.

<p>1. Appeal: VERDICT: RECORD FAILS TO SHOW THE ENTRY OF JUDGMENT. The record shows that the jury returned a verdict for plaintiff, but does not show any entry of judgment thereon; there being no entry of judgment, no appeal could be taken.</p> <p>2. -: -: -: BILL OF EXCEPTIONS SHOWING JUDGMENT, NOT SUFFICIENT. It is not sufficient that the bill of exceptions recites that a judgment was rendered, the judgment is a part of the record, and must appear therein.</p>

— Hon. Leigh B. Woodside, Judge. (1) We suppose that it is elementary law that the owner of a note, whether resident or nonresident, may assign it to a resident or nonresident, as was done in this case. Even an alien might do as much and the assignability of the note in law will not be determined by the fact of the residence or nonresidence of the parties.

— Hon. W. N. Evans, Judge. The next contention of respondent’s counsel is, that' although the county court had vacated a part of the Mountain Home road, that said judgment will not protect the defendants in closing up said road, and that plaintiffs had the right to sue by injunction.

Francois Circuit Court. — Hon. James D. Fox, Judge. (1) The finding of the jury was against the weight of evidence, the theory of the ease by plaintiff, and against the law of the case as declared by the court; the court, therefore, erred in refusing to set aside the verdict of the jury. Iron Mountain Bank v. Armstrong, 92 Mo-. 279; Bank v. Wood, 124 Mo. 76; ICreis v. Railroad, 131 Mo. 544; Lawson v. Mills, 130 Mo. 172; Wight v. Railroad, 20 Mo.

<p>Appeal from the Iron Circuit Court. Hon. James F. Green, Judge.</p> <p>(1) “If there was any substantial evidence tending to establish the allegations of the petition, the court had no authority to withdraw the case from the jury.” Cook v. Eailroad, 63 Mo. 397; Eichey v. Barnes, 83 Mo. 362; Kelly v. Eailroad, 70 Mo. 604; Stewart v. Sparkman, 69 Mo. App. 456; Hite v. Eailroad, 130 Mo.T40(on rehearing); Bender v. Eailroad, 137 Mo. 240. (2) “The beneficiary in a deed of trust may, after entry or foreclosure, maintain an action against the mortgagor or third persons for permanent injuries to the mortgaged premises, which were committed while the premises were in the possession of the mortgagor.” And this though the trespass was committed prior to the maturity of the mortgage debt. Hietkamp v. Granite Co., 59 Mo. App. 244; Chouteau v. Bougkton, 100 Mo. 406.</p> <p>(1) The sole question presented by this record is: Can the beneficiary in a deed of trust maintain trespass against a party who purchased stave bolts from parties who had, prior to the execution of the deed of trust, cut the timber out of which the stave bolts were made, and severed it from the land described in the deed of trust? We answer no, and we do not believe that an affirmative answer to this question can be found in print. (2) To maintain trespass in this state, whether under the statute or at common law, one of two things must exist, to wit: At the date of the wrong complained of the plaintiff must be in actual possession of the premises, or in constructive possession thereof. Constructive possession in the language of Judge Black, speaking for the supreme court, is: “* * * when the property is in the custody and occupancy of no one, but rightfully belongs to the plaintiff. In that case the title draws to it the possession.” Brown v. Hartzell, 81 Mo. 568 loe. cit. (3) The case of Chouteau v. Boughton, 100 Mo. 406, is not authority that trespass can be maintained, in this state, when the plaintiff is not in constructive or actual possession of the premises, for Judge Black, who delivered the opinion in said cause, on page 489 of said report, says: “The deed of trust contains a provision to the effect that the lands shall be deemed in the legal possession of the trustees.” (4) Section 695a, 1 Jones on Mortgages (5 Ed.), under the head of “Waste by Mortgagor” declares: “The mortgagee is entitled to recover damages for a permanent injury to the mortgaged land by a third person whereby the value of the security is impaired.” (5) The ease of Heitkamp v. The La Motte Gi’anite Co., 59 Mo. App. 244, was an action for waste, and the plaintiff in that case was in actual possession, but the injury done to the land in both the Heitkamp case and the Chouteau-Boughton case, supra, was done after forfeiture' — after the amount secured by tbe deed of trust had become due. (6) Can tbe beneficiary in a deed of trust, prior to tbe maturity of tbe note secured thereby, maintain trespass against a stranger wbo enters upon tbe premises and cuts down and removes timber therefrom? If this question -were in this case we would answer no. “Tbe modern doctrine is well established that a mortgage, or deed of trust in tbe nature of a mortgage, is but a security for tbe payment of tbe debt or tbe discharge of the engagement for which it was originally given, and until tbe mortgagee enters for breach of tbe conditions, and in many respects until final foreclosure of tbe mortgage, tbe mortgagor continues tbe owner of tbe estate, and has a right to lease, sell, and in every respect to deal with tbe wrongful or fraudulent injury to tbe premises whereby bis security is impaired; be may have an action on tbe case against tbe mortgagor, or other person wbo has committed tbe wrongful act.” Tbe action referred to in section 695a, supra,,is one on the case. Lane v. Hitchcock, 14 Johns. 213; Allison v. McCune, 15 Ohio, 726; Carpenter v. Canal Co., 35 Ohio St. 307; Jones on Mortgages (5 Ed.), sec. 455.</p>

— Hon. Edwin B. McKee, Judge. (1) It must be remembered that there was no motion for review, nor in arrest, filed in this case. The integrity of the judgment was not questioned by the so-called motion for a new trial. Nothing is better settled than that, after the term at which a final judgment is rendered, the court can not interfere with it, except for an irregularity in the judgment. It would hardly seem necessary to cite authorities in support of this proposition.

— Hon. Rudolph Hirzel, Judge. (1) It is essential to the existence of a watercourse that there should be a well-defined bed or 'channel with banks. If these characteristics are absent, there is no watercourse within the meaning of the term; hence, natural depressions in the land through which surface water from adjoining lands nautrally flows, are not watercourses. 24 Am. & Eng. Ency. of Law [1 Ed.], 898; Jones v. Railroad, 18 Mo. App. 256; Benson v. Railroad, 79 Mo. 514.

— Hon. W. N. JEvans, Judge. (1) A corporation, although chartered in another state, which has complied with the laws of this state relating to foreign corporations, and which has and maintains in this state an office and agent for the transaction of its usual and customary business, has a legal residence in this state in the county or city of such office for the purposes of suing and being sued.

<p>Appeal from tbe Cape Girardeau Court of Common Pleas. — Hon. Frank E. Burroughs, Judge.</p> <p>(1) We insist that the court erred in not giving the instruction prayed for by appellants, instructing the jury under the pleading, and evidence to find a verdict for defendants. For the reason that no verdict for damages can be recovered, unless pecuniary loss or physical injury has been sustained. However great the mental anguish may be, that alone will not be a basis for damages. The petition does not charge any physical injury or pecuniary loss or loss of occupation. Nor did the testimony show any. Connell v. Tel. Co., 116 Mo. 34; Spohn v. Railroad, 116 Mo. 617. (2) There were no exemplary damages claimed in the petition, only compensatory damages; then the recovery must be confined to actual damages sustained. Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582. (3) Where the evidence furnishes no elements for the admeasurement of damages it is error to tell the jury that they may give such damages to the plaintiff as they may find he suffered. Morrison v. Yancy, 23 Mo. App. 670.</p> <p>(1) False imprisonment is the wrongful interference with the personal liberty of the individual. It is not necessary that there should be' any injury done to the individual’s person, or to his character or reputation. Nor is it necessary that the wrongful act be committed with malice, or ill will, or with slightest wrongful intention. Nor is it necessary that the-act be under color of any legal or judicial proceedings. “All that is necessary is, that the individual be restrained of his liberty without any sufficient legal cause therefor.” Come v. Knowles, 17 Kan. 440. To the same effect are these eases: 'State v. Lunsford, 81 N. C. 230; Floyd v. State, 7 Eng. (Ark.) 44; Brushaber v. Stegeman, 22 Mich. 269; Soreson v. Dundas, 50 Wis. 325; McNay v. Stratton, 9 111. App. 215.</p>

— Son. John Colb Lamson, Judge. (1) It is difficult to understand upon what theory the trial court, decided this case adversely to plaintiff. The proof was abundant, clear , and positive that the balance of the purchase price of plaintiff’s estate in this land had never been paid and that defendant, Jacob Estes, had full and complete knowledge of its nonpayment.

- — Hon. J. L. Fori, Judge. (1) Tbis case should have gone to the jury on a peremptory instruction to return a verdict for the plaintiff. Interpleader knew of the fraud in the sale of the goods, had not paid the purchase price and was not an owner in good faith nor an innocent purchaser and could have no standing in court. Arnholt v. Hartwig, 78 Mo. 485; Dougherty v. Cooper, 77 Mo. 532; Toung v. Kellar, 94 Mo. 581; Cheek v. Waldron, 39 Mo. App. 25.

<p>Appeal: CONVICTION ON INFORMATION: APPEAL DISMISSED. Defendant was convicted on information filed before a justice of the peace, and also convicted in the circuit court. His attempted appeal here must, under the ease of State v. Brown, 153 Mo. 578, be dismissed, for the reason that section 4277, R. S. 1899 only provides for an appeal from the circuit court where a conviction is had upon an indictment.</p>

— lion. James Tilford Neville, Judge. (1) Under the law the defendant city, had no authority to pay for a horse that was dead at the time the contract was made between the parties. Sec. 48, art. 4, Const, of Mo. Dillon Municipal Corp., secs. 457, 935, 936. (2) The plea of ultra vires was available as a defense to such contract. Dillon Municipal Corp., sec. 504; City of St. Louis v. Davidson, 102 Mo. 149; Oheeney v. Brookfield, 60 Mo. 53.

<p>3. Appeal: DIVORCE: COMPLETE TRANSCRIPT: CAUSE „ AFFIRMED. Without a full transcript of the testimony an appellate court will not undertake to review the evidence in an equity or divorce suit, and make a finding of the facts that will affect the judgment of the lower court.</p>

— Hon. Frarilc B. Hearing, Judge. The mere oral declaration of George Bates that the title to the Pennington farm was all right, and if not right he would make it right, can not bind this appellant as there was no evidence that she ever authorized such a promise to be made to bind her, and the plaintiff so understood or he would not have sued George Bates in the first instance, and if there had been such evidence it could not bind the appellant as she was at the time a…

— Hon. James D. Fox, Judge. (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action.

Louis City Circuit Court. — Hon. William Zachrilz, Judge. But if such judgment had been pleaded, the court was entirely without jurisdiction in the case.. And therefore the motion made and filed by interpleader on April 26, 1899, to dismiss the case for want of jurisdiction of the subject-matter, should have been sustained.

— Hon. J. L. Fort, J udge. (1) The demurrer to plaintiffs’ petition admits all the material facts alleged therein, and should have been overruled. Yerden v. St. Louis, 131 Mo. 74; Childs v. Johnson County, 144 Mo. 80.

<p>Appeal from the Butler Circuit Court. — Hon. J. L. Fort, Judge.</p> <p>(1) -Circuit courts can hold sessions only at the time prescribed by statute, andman adjourn to a day certain only by order made of record during term time, or by proclamation at the court house door pursuant to the order of the judge. Stovall v. Emerson, 20 Mo. App. 322; Merriam v. Ross, 118 Mo. 47. (2) The judicial power in this state can only be exercised at the time and place prescribed bylaw. Accordingly the statutes have, with great partiality, specified the day on which each court -shall meet. Out of abundant caution it is provided that, if the judge shall be detained, the sheriff may adjourn the' court till the third day, whep, if the judge is still absent, he may adjourn to the next regular term, and it is provided that the courts may, upon notice, call special terms; but the whole scope of the legislature on this'subject, as well as- on the common law, is to the effect that only at stated times, and places specified, can a court lawfully meet. R. S. 1889, sections 3248, 3249, 3250; State e-x rel. v. Ross, 118 Mo. 46. The mere coming together of the judge and the other officers of the court, unless at a time fixed by law, or on a day to which court has been lawfully adjourned, does not constitute a court under our law. Ereeman on Judgments, sec. 121; Stoval v. Emerson, 20 Mo. App. 222.</p>

<p>1. Pleading: DAMAGES: STATUTORY CONSTRUCTIONS: TRESPASS. In the ease at bar the facts alleged are sufficient, either to authorize a recovery of treble damages for the malicious destruction of the growing trees (Section 4752, R. S. 1899) or a common-law action of trespass for the destruction of the drift, thereby causing a depreciation in the value of the land.</p> <p>2. Practice, Trial: NON-EXPERT WITNESS. The general rule is that non-expert witnesses must state facts, and not give their opinions. There are exceptions to this rule. When the testimony relates to physical facts which can not be accurately described to the jury as they really exist, and which men of ordinary understanding are capable of comprehending, witnesses, who have personal knowledge may express their opinions concerning such things.</p> <p>3. -: -. In tlie ease at bar the opinions o-f -witnesses as to the probable effect of overflow water on plaintiff’s land, were properly received.</p>

<p>Constitution: JURISDICTION: TITLE TO REAL ESTATE. Under the constitution of Missouri, this court has no appellate jurisdiction of issues involving the title to real estate. In the present action a muniment of title — the deed of trust — is alleged to he void and sought to be annulled and cancelled. The judgment which was rendered in the trial court decreeing the relief prayed directly affected “the title itself to the real estate sought to be conveyed in the deed of trust, and is strictly within the rule on the subject announced by the supreme court limiting its own jurisdiction.”</p>

<p>Appeal from Wright Circuit Court. — lion. Argus Cox, Judge.</p> <p>(1) There is no testimony in the record to support the finding of the referee and trial court. ■ (2) There is no testimony tending to prove that the intestate Spence appropriated any of the partnership property to his own use. (3) There is no competent testimony that there was any of partnership assets not in the bank at the time of the death of Spence, and if the assets had been short as claimed in the absence oi proof of appropriation by Spence, it would have been the loss of the partnership and not of Spence alone. (4) The report of the referee appears to be and is based alone upon exhibits shown by the abstract of the record, pages 29 to 40 which were never offered in evidence by plaintiff or defendant nor had they any knowledge of them until found forming a part of the referee’s report, nor is there anything in the report, or the exhibits to show from what or how such exhibits were made up. Such testimony is certainly not competent. (5) The defendant in the circuit court made the point in his exceptions to the report of the referee and in his motion for a new trial and in arrest of judgment that the referee nor the circuit court had jurisdiction of the subject-matter, that the probate court alone had original jurisdiction of partnership estates upon the death of one of the partners and insists upon the point in this court, that his exceptions to the report of the referee and his motions for a new trial and in arrest of judgment should have been sustained. Eevised Statutes 1889, section 3397; Ensworth v. Curd, 68 Mo. 282; Caldwell v. Hawkins, 73 Mo. 450. If there had been any questions of equitable rights between the partners, the probate court had power to adjudicate such rights. Ensworth v. Curd, 68 Mo. 282; In re Estate of Meeker, 45 Mo. App. 189.</p> <p>(1) It is certainly not reversible error that the bank books were introduced in evidence when the record fails to show that -any objection was made or any exception saved on this point. (2) .They were admissible even if objected to. Books of original entries shown to be kept by the party or his clerk in the usual course of business, are admissible even in the said party’s favor. Anchor Milling Co. v. Walsh, 108 Mo. 177; Eobinson v. Smith,'ll Mo. 205. Books of account of a deceased person, when offered by a claimant against his estate, are evidence both as to the debit and credit items, such accounts being evidence in its entirety. Todd v. Terry, 25 Mo. App. 598. (3) It was likewise competent, these books being very voluminous, as the evidence shows, to permit Nichols as an expert to testify as to the result of his examination of them. 1 Greenleaf on Evidence [14 Ed.], sec. 93; 0Railroad v. Dana, 1 Gray 33; Holbrook v. Jackson, 7 Gush. (Mass.) 136. In view of the competency of the foregoing testimony of which the appellant complains groundlessly, it was certainly proper for the referee to make findings on it, which his report shows he did. Indeed he was bound to find from the books and other evidence because he was bound to try the case on the evidence.- Moreover the exceptions to his rulings on admitting and excluding evidence are general and not specific, which is not allowable. Smith v. Haley, 41 Mo. App. 611. The thing most insisted on by appellant is that the circuit court was without jurisdiction. , The authorities cited to sustain this contention are inapplicable. This is a proceeding by the surviving partner against the individual estate of Spence, and he had a right, just as an individual had, to present it by an action in the circuit court. That is a statutory right. R. S. 1889, sec. 190; Robinson v. Palmer, 24 Mo. App. 480. This is an action for fraud which is one of the universally recognized heads of equity jurisdiction and is not ousted because a remedy exists at law also. Dingle v. Pollick, 49 Mo. App. 479. The jurisdiction of the circuit-court to hear cases of this class has never been taken away by statute and indeed could not be without express words to that effect. So, even conceding the probate court would have jurisdiction, this would not exclude the jurisdiction of the circuit court.</p>

<p>Appeal from the Pike Circuit Court. — Eon. David E. Eby, Judge.</p> <p>(1) A contract if valid and binding where made or entered into, is valid and binding everywhere. 3 Am. & Eng. Ency. of Law [1 Ed.], 552; Wharton on Conflict of Laws [1 Ed.], sec. 401g, p. 339; Kent’s Commentaries [9 Ed.], 598, orig. paging 454; Stis v. Matthews, 15 Mo. 96; Tolman Oo. v. Reed, 115 Mich. 11. (2) Where a contract would be valid by the law of domicile, but invalid by the. place of contract, it is to be presumed that the parties intended to be bound by the law of domicile. It is always to be presumed that persons agree effectually to do that which they contract; and, if so, this agreement becomes part of the contract, overriding such local law as does not rest on a ground distinctly moral or political. And when there is a conflict of possible applicatory laws, the parties are presumed to have made part of their agreement, that law which is most favorable to its performance. Wharton on Conflict of Laws [1 Ed.], sec. 429, p. 360; id., sec. 102, p. 92. Persons who in their own domicile, are entitled to draw bills, may be sued on such bills in the country where they are restrained from doing this for, in such oases, the law of the domicile obtains. It would be intolerable, if a person residing in a land where no such restrictions are known were permitted to escape liability on bills drawn by him, by appealing to such restrictions. Wharton on Conflict of Laws [1 Ed.], sec. 3. (3) On this subject of conflicting laws, it may be generally observed that there is a stubborn principle of jurisprudence that will often intervene and act with controlling efficacy. This principle is, that when the loci contractus and the lex fori as to conflicting rights acquired in each come in direct collision, the comity of nations’must yield to the positive law of the land. 2 Kent’s Com. [9 Ed.],-,610, orig. paging 461. (4) The defendanthavingsigna^the note sued on for the accommodation of her son, the payee, and by him negotiated in St. Louis, Mo., became 'a binding contract on her, and the lex loci contractus is the law of Missouri, since the lex loci contractus of accommodation paper is the place where it is first negotiated. 1 Am. and Eng. Ency. of Law [2 Ed.], 342; Macy v. Kendall, 33 Mo. 164. (5) The act of the defendant in signing the note sued on for the accommodation of W. W. Sharpe, conferred upon him the power and authority to bind her in favor of third persons, by the issue of the paper, and when the note was indorsed by the payee, and delivered to plaintiff in St. Louis, Mo., for value she became bound to plaintiff in accordance with the rules of commercial law and the position of her name upon the instrument, from the date of the instrument.1 1 Am. and Eng. Ency. of Law [2 Ed.], 350; Smith v.. Wycoff, 3 Sandf. Oh. (N. Y.), 77; Michigan Ins. Oo. v. Leavenworth, 30 Vt. 11; Williams v. Banks, 11 Md. 198. (6) Plaintiff is a bona fide holder for value of the note, having accepted it in the regular course of business for a valuable consideration, and before maturity, and is therefore entitled to enforce it against the maker, Sophia E. Sharpe. Macy v. Kendall, 33 Mo. 164; Miller v. Mellier, 59 Mo. 388; Eaulkner v. Faulkner, 73 Mo. 338; Beveridge v. Richmond, 14 Mo. App. 405.</p> <p>(1) The instrument sued on contains a clause for the payment of attorney’s fees and therefore is not a negotiable promissory note. Olark v. Barnes, 58 Mo. App. 667; Bank v. Jacobs, 73 Mo. 35; Bank v. Marlow, 71 Mo. 618; Bank v. Gay, 63 Mo. 33; MoOoy v. Green, 83 Mo: 626. (2) Therefore the note being non-negotiable is subject to any and all defenses, in this suit by plaintiff, which might have been urged against it, “in the hands of W. W. Sharpe, the payee. Olark v. Barnes, 58 Mo. App. 667; McOoy v. Green, 83 Mo. 626. (3) This is an Indiana contract and the validity of the contract, and the capacity of the parties to contract, must be governed by the laws of Indiana. The Kansas City Court of Appeals has passed squarely on this identical question. Ins. Go. v. Simons, 52 Mo. App. 357; Bell v. Packard, 69 Maine 105; 3 Am. and Eng. Ency. of Law [1 Ed.], 547, note 3; Ames v. Benjamin, 77 N. W. (Minn.), 230. (4) The above cited cases are authority for the proposition that the lex loci contractus, is not where the instrument may be signed, but where it is delivered and made payable. (5) In the case at bar the making of the note payable in Indiana and delivery of the same'to W. W. Sharpe, the payee, in Indiana, made it an Indiana contract. The mere fact that W. W. Sharpe after-wards transferred the note to a resident of Missouri did not change it to a Missouri contract. It was still by its terms payable at the First National Bank, at Logansport, Indiana. (6) The cases above cited are also authority for the proposition that the lex fori'governs the remedy, while the lex loci determines the validity of the contract, and the capacity to contract, including questions arising from coverture, minority, etc. __ .</p>

A.ppeal from the Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge. (1) In a suit on a promissory note, or contract, damages arising out of tort can' not be set np as a counterclaim. Gant v. Duffy, 71 Mo. App. 91; R. S. 1899, sec. 2050. (2) The answer is not in equity and does not ask for a rescission of the contract. It alleges the contract void because of fraudulent representations.

— Hon. E. P. Gates,Judge. (1) The court erred in overruling the demurrer to the petition and the objection to the introduction of any evidence under it. (2) In order that one promise may be the consideration for another, both promises must be concurrent in point of time and both parties must be bound.

Circuit Court. — Hon. John W. Henry, Judge. (1) A contract not in writing, no memorandum thereof, made by the party to be charged and not to be performed within one year from its date is involved. No- principle is better settled than such a contract is void under the statute of frauds and under the ban of the law. Authorities in support of the foregoing propositions are: R. S. 1889, secs. 5182, 5186, 6371; 'Withnell v. Petzold, 104 Mo. 509; Combs v. Transfer Co., 58 Mo.

— Hon. J. D. Perkins, Judge. (1) Under tbe terms of tbe chattel mortgage, tbe mortgagee was entitled to tbe possession of tbe property in case any part of tbe debt secured was not paid when due. It was •admitted that a part of tbe notes described in tbe mortgage, was due, and tbe interest on all of them, before any effort was made to sell tbe real estate. This fact alone entitled tbe mortgagee to tbe possession of tbe property.

— Mon. W. W. Wood, Judge. (1) The probate court had jurisdiction to do what it did, its judgment was conclusive, and not appealed from. Section 5329, E. S. 1889; 9 Am. and Eng. Ency. of Pldg. & Prac., 958, 959, note 3; Woemer’s Guardianship, pp. 328, 361; Ooleman v. Parrar, 112 Mo. 11, 72; Judge v. Irish, 31 Me. 254; Eobert v. Shultz, 45 Texas 184. Observe the present statutes is quite different from that of 1865, under which Mead v. Bakewell, 8 Mo.

<p>Appeal from the Cass Circuit Court. — Hon. J. H. Lay. Special Judge.</p> <p>(1) Interpleader is the plaintiff. Burgert v. Borchert, 59 Mo. 80; Mansur v. Hill, 22 Mo. App. 372; Kirschenschlager v. Armitage Herschel Co., 58 Mo. App. 165; Cunningham y. Prusansky, 59 Mo. App. 498; Oil Co. v. Bell, 71 Mo. App. 653. (2) Burden of proof rests with interpleader. Com. Co. v. Bank, 27 Mo. App. 676; Boiler v. Cohen, 42 Mo. App. 97; Toney v. Goodley, 57 Mo. App. 235; Scharff v. Meyer, 133 Mo. 428. (3) One partner can not transfer the partnership property for the satisfaction of his individual debt without the consent or acquiescence of the other partners. -Wiles v. Maddox, 26 Mo. 77; Elanagan v. Alexander,, 50 Mo. 50; Ackley v. Staehlin, 56 Mo. 558; Price v. Hunt, 59 Mo. 258; Hilliker v. Francisco, 65 Mo. 598; Shackelford’s Admr. v. Clark, 78 Mo. 491; Hundley v. Farris, 103 Mo. 78; Reyburn v. Mitchell, 106 Mo. 365; Young v. Thrasher, 115 Mo. 222; Grocery Co. v. McOune, 122 Mo. 426; Ewart v. Mercantile Go., 130 Mo. 112; Banking House v. Harvey, 12 M-o. App. 588; Noble v. Metcalf, 20 Mo. App. 360; McDonald v. Cash; 45 Mo. App. 66; In re Est. of Edwards & Wiggington, 47 Mo. App. 307; Creath v. Distilling Co., 70 Mo. App. 296; Bindley on Partnership, star page 358; McRae v. Campbell, 28 S. E. Rep. 920 (Mass.) 1898.</p> <p>(1) We answer plaintiff’s first and second propositions by conceding them. (2) To appellant’s third proposition, would respectfully reply that there is no evidence whatever, as plaintiff contends, that “This money was for the personal use of Mr. Sloan and was not borrowed or used for the firm of Sloan & Corbin.”</p>

— Hon. W. D. Bhacldeford, Judge. (1) The agreement in the application of the deceased, that if his death should 'be caused or superinduced by the use of narcotics or opiates, it should render void his policy, is valid and binding. Ins. Co. v. Stibbe, 46 Md. 302; Ins. Co. v. Davey, 123 U. S. 739; Ins. Co. v. Davey, 38 Eed. Rep. 650; s. e., 40 Eed. Rep. 911; McGlother v¡ Ins. Co., 89 Eed. Rep. 685; Adkins v. Ins.

— Hon. JEJ. P. Gates, Judge. (1) The petition shows on its face that at the time it was filed the partnership relatioH between plaintiff and defendant .had long since been terminated, and that no business relations existed between them other than what was covered by the written contract. It necessarily follows that the plaintiff’s cause of action, if any, as shown by the petition, is at law for recovery on the contract set out in the petition, and not in equity.

— Hon. J. D. Perkins, Judge. (1) Whatever is essential to be proved must be alleged in the pleadings. McConey v. Wallace, 22 Mo. App. 3¶¶. (2) And every fact which the plaintiff must prove to maintain his suit is constitutive in the sense of-the code, and must be alleged. Pier v. Heinrichoffen, 52 Mo. 333.

<p>Appeal from the Lafayette Criminal Court. — Hon. J. A. Rich, Judge.</p>

— Eon. Argus Oox, Judge. (1) The plaintiff’s evidence did not show that the cows belonged to him. It did not show that the eows got in onto the right of way at a point where defendant was bound to fence, or at a point where it was allowed to fence. This was essential. Ehret v. Railway, 20 Mo. App. 251. (2) The evidence does not show that the cows were killed in Morgan county nor, for that matter, in the state of Missouri. This was essential.

<p>1. Appellate Practice: BILL OP EXCEPTION'S: ATTACHED PAPER: MUTILATION. At the time of signing a bill'of exceptions there was attached to the same and following the signature of the judge certain sheets containing instructions but no where referred to or identified in the bill itself; subsequently, without intended wrong, the sheets of the bill were opened and said instructions inserted before the judge’s signature. Held, that the matter so inserted must be ignored but their insertion was not such mutilation as will destroy the bill.</p> <p>2. Mortgages: SATISEACTION OP RECORD: PENALTY: DEMAND. To warrant the recovery of the penalty for failure to enter satisfaction of a mortgage it must appear that the mortgagor has paid the debt and has demanded of the mortgagee not less than, thirty days before suit brought that he satisfy the record and accompanied such demand by the payment or tender of the cost thereof, and a failure in either of these will defeat the recovery of the penalty.</p>

— Hon: J. D. Perhins, Judge. (1) Under the statutes of this state governing building and loan associations which permit associations formed thereunder to sell their loans in open meeting of its board oí directors to the stockholder bidding the highest premium, the written bid for preference of loan contained in the prospective borrower’s application, when submitted, as in this case, to the association’s board of directors in open meeting, amply meets the requirements of the…

— Son. O. P. Soss, Special Judge. (1) Tbe admission signed by attorneys for respondent, and J. F. Wise, president of appellant corporation, and introduced by respondent, is not competent testimony to prove that dividends were lawfully declared by tbe corporation. Admissions of officers of a corporation can not be admitted to prove matters that are required to be made a matter of record, and that can be proved by tbe record.

- — Hpn. Edward L. Scarriit, Judge. (1) If Hutchings acted for Mrs. Murphy in the matter, delivery of the policy to him was delivery to Mrs. Murphy, and there can be no question of waiver of premium payment in the ease. (2) The question of whose agent Hutchings was in this case was an issuable one and should have been left to the jury under proper instructions.

— Hon. Edward L. Scarritt, Judge. (1) The denial to us of the right to have Hess’s answer as to his own honesty or dishonesty, is by concensus of authority reversible error. Muller v. St. Louis, 5 Mo.

— Hon. John W. Henry, Judge. (1) Judgment in favor of plaintiffs was error because there was no agreement between defendants and its traveling salesman whereby it authorized him to obtain any of his expenses upon credit or have the same charged to them or that they would be in any way responsible therefor. Nicholson v. Peas, 61 Yt. 534; Covington v. Newberger, 99 N. C. 523.

— lion. James Gibson, Judge. (1) The garnishee’s answer and its motion for judgment involve the construction of section 5220, Revised Statlites of Missouri. This involves further the statutory construction and meaning of the word “wages” as set out in the above section. In all of the exemption provisions of our statute, the word “wages” is universally used. R. S. 1899, secs. 539, 4906, 4911.

— Hon. J. H. Slover, Judge. (1) The court erred in permitting defendants, over plaintiff’^ objection, to offer evidence tending to prove that at or prior to the execution of the bond it was agreed tbat defendant Buchalter should not be held liable on the bond. The effect of'such evidence was to squarely contradict the express terms of the bond.

<p>County Courts: ADJOURNED TERMS: ORDER: MANDAMUS. A county court on the sixth of March adjourned to the twelfth of said month. It met on the seventh and ordered a registration of voters in the wards of certain cities. Held, said order was not coram non judice and that mandamus would lie to compel the county clerk to perform his duty under said order.</p>

— Hon. James Tilford Neville, Judge. (1) The Gontract in question and the rights of beneficiaries thereunder are controlled by the by-laws subsequently enacted. Supreme Lodge v. La Malta, 95 Tenn. 157; Supreme Commandery v. Ainsworth, 71 Ala. 436; Toomey v. Supreme Lodge, 74 Mo. App. 517; Supreme Lodge v. Stein, 75 Miss. 107; Domes v. Supreme Lodge, 75 Miss. 466; Supreme Lodge v. Kutscher, 179 111. 340; Supreme Lodge v. Trebbe, 179 111. 348.

— Hon. Edwin B. McKee, Judge. (1) Dangers are greater on freight than on passenger trains; when, therefore, a person chooses to ride on a freight train he must not only use a greater degree of care, but is also held to acquiesce in the usual incidents of travel by that mode; and the injuries resulting from jarring and jolting of a train of that kind do not of themselves furnish a cause of action, when unavoidable, even with careful management of the train.

— Ho». L. B. Woodside, Judge. (1) This is an action in which it is sought to foreclose a mechanic’s lien as appears by the amended statement filed in the circuit court. The lien, therefore, must be established by complying with every statutory requirement.

- — Son. James Tilford Neville, Judge. (1) Tbe corn was not planted at tbe time tbe. chattel mortgage in evidence was given, the mortgage bearing date of April 16, and the undisputed testimony that they commenced planting corn on April 20, following, and at law such a mortgage is void and the trial court should have so declared the law as requested by appellant.

<p>Appeal from the Oape Girardeau Circuit Court. — Hon. Henry O. Riley, Judge.</p> <p>(1) The petition fails to set up a cause of action. If the plaintiff below has a cause of action, it is an equity for special performance — ra chancery proceeding — and this court will consider the evidence and find upon the whole case. The burden of proof is on the plaintiff below to make out a case by clear and satisfactory proof. And having failed to make the proof, he is not entitled to a judgment. Yieth v. Gierth, 92 Mo. 97; Tedford v. Trible, 87 Mo. 226; Railway v. McCarthy, 97 Mo. 214. (2) Statements or casual remarks are not sufficient to sustain the testimony of the plaintiff below when flatly contradicted by the appellant, as to the contract, and the parties alone testify as to this. If respondent had a cause of action over eleven years ago, there has been such laches, in a failure to enforce the contract, in the face of the statute of frauds, that a court of equity will not now aid him.</p> <p>(1) It will be observed that this case was tried by the court without the intervention of a jury. No instructions were asked or given, and when such is the case the appellate court will defer to the findings of fact by the lower court and will not disturb such finding when there is any testimony, however slight, to support it. On this proposition, at the risk of offending, respondent cites the following authority. Dyer v. Baumeister, 87 Mo. 136.</p>

— Hon. Jamas Tilford Neville, Judge. (1) There was no abandonment of the condemnation proceedings by the city, such as would render it liable to plaintiff. Leisse v. Railroad, 2 Mo. App. 105; Leisse v. Railroad, 72 Mo. 561; Gray v. Railroad, 81 Mo. 126; Railroad v. De Lissa, 103 Mo. 125; Simpson v. Kansas City, 111 Mo. 237; Lohse v. Railroad, 44 Mo. App. 645.

— Hon. William N. Evans, Judge. (1) Instruction number 3 given by tbe court on tbe part of the plaintiff was correct and properly declared tbe law. We find by reference to tbe authorities that tbe courts have given similar instructions, that is to say, in tbe case of Deuchler v. Ins. Co., 51 Mo.

Writ of Error to tbe Scott Circuit Court. — Hon. Henry O. Riley, Judge. There is one point in the record that is fatal to ■ the judgment. Plaintiff sued in replevin for a Springfield separator and an engine. The answer prayed that the “Springfield separator be adjudged the property of plaintiff.” There was no issue to be tried with regard to the separator.

<p>Appeal from the Douglas Circuit Court. — Eon. William N. Evans, Judge.</p> <p>(1) That the court correctly declared the law for plaintiffs is supported by all the authorities. Destieger v. Hollington, 17 Mo. App. 382; Robinson v. Jarvis, 25 Mo. App. 421; Allen v. Eink, 75 Mo. 100; Nearer v. Bakewell, 110 Mo. 647; Anderson v. McPike, 86 Mo. 293. (2) But appellants insist that the finding of the court is wholly without evidence to support it. (3) All the evidence is set out in the abstract of the record, and it is insisted that not a word of evidence is there to be found sustaining the finding of fraudulent misrepresentations by plaintiffs. (4) Plaintiffs themselves made no representations whatever to defendant about the lines. They gave Newkirk no directions about making representations and made no approval of what he may have said.</p> <p>(1) Defendant was deceived by the representation of' plaintiff’s agent, Newkirk; be trusted to them and bought on the strength of them. Having been taken by Newkirk to the land and by Newkirk shown, the lines and the fence inclosing the spring and land, which turns out to be on government land, taken together caused defendant .to rely wholly on the statement of said Newkirk and to believe them to be true. ' Defendant knew nothing about the lines or that surrounding it, and had no way of ascertaining where the lines were except the statements of Newkirk. No opportunity was offered defendant to be informed as to where the lines run, had he doubted Newkirk’s statement. The spring and line in question were within the inclosure. Newkirk’s misrepresentation as to- where the lines were, were calculated to impose ’On any man of ordinary prudence. Sanders v. Mc-Olintoek, 46 Mo. App. 216. (2) The representation and assurance of Newkirk that the spring and land belonging to plaintiff, the same being within‘the in-closure, and the confidence defendant had in Newkirk, he being in a sense defendant’s agent to trade off his (defendant’s) place, induced defendant to act in the premises and purchase the land on faith of Newkirk’s statement. (3) If Newkirk did not know where the lines were, he made defendant believe that he did and thus produced a false impression, and did so for the purpose of taking an undue advantage of defendant which constituted actual fraud in the fullest sense. Pomeroy .v. Benton, 57 Mo. 531; Ridpath v. Lawrence, 42 Mo. App. 101; King v. Paint & Glass Co., 44 Mo. App. Ill; Hamlin v. Abell, 120 Mo. 188; Bfitcheock v. Boughan, 44 Mo. App. 42; Newman v. Able, 90 Mo. 666.</p>

— Hon. Hdwin B. McKee, Judge. (1) There was no consideration moving from the plaintiff Hume, to John B. Sawyer, to support the second mortgage given to secure the note assigned by the bank. The note was given payable in one day from date and was long past due. There was no extension of time given for the payment of the same. There is no evidence of any benefit or advantage moving from Hume to the mortgagor, Sawyer, or from any third person.

— Hon. Henry G. Riley, Judge. (1) Plaintiff admits tbat there was no change of possession of the lumber from Cawthon to him; that Cawth'on “just showed him the lumber and gave him the bill of sale.” Plaintiff exercised no acts of ■ dominion or ownership over the lumber, at any time, nor did he at any time, either before or after the levy of the execution, assume that open, notorious, continuous and unequivocal possession required by law.

— Hon. Argus Cox, Judge. (1) When property is sold upon a condition subsequent the performance or nonperformance of which forfeits the title, the condition can be made to attach only to the property sold: The forfeiture could not go to the half interest which Hughes already owned. Henry v. Mayer, 53 Pac. Rep. 590; 1 Bou. Law Diet. Title, Forfeiture; Newmark on Sales, sec. 193. (2) Replevin will not lie in favor of one joint owner against another.

<p>1. Conversion: REPLEVIN: QUESTION FOR THE JURY. If the respondent failed to recover by judgment all the property replevied by him in a former suit against appellant, that question should have been submitted to the jury since respondent would be entitled to a verdict for the value thereof.</p> <p>2. -: -: NOT RES AD JUDICATA. The judgment in the former suit of replevin does not conclude him as to any property which the plaintiff in that action did not recover. The measure of the recovery of the plaintiff in that action was the specification contained in the verdict in his favor, rendered by the jury, from which no appeal was taken, and which became thereafter as to such specification of property, res adjudicada.</p> <p>3. -: -: -: PEREMPTORY INSTRUCTION; ERROR. For the error of the court in directing a verdict in this action in favor of respondent, its judgment is reversed and cause remanded.</p>

<p>Appeal from the Lawrence Oircnit Court.- — Hon. Henry Olay Pepper, Judge.</p> <p>(1) When Boothe paid the purchase price therefor and bonds 1, 2, 3, 4 and 5, of the Brinkerhoff Zinc Company, ■were executed and deposited for him, with the defendant bank, the sale thereof was complete and the title thereto vested in the plaintiff. Harding v. Maynard, 55 Mo. App. 364; Allgear v. Walsh, 24 Mo. App. 139; 2 Benj. on Sales, sec. 360, chaps. 4 and 5; Tiedeman on Sales, sec. 139, p. 191; Hamilton v. Clark, 25 Mo. App. 436. (2) At the time of the payment by Boothe for the bonds sold him, if then entered into at all, the arrangement between Brinkerhoff and the bank was but “an executory contract for a pledge, which could not prevail as against a purchaser,” who had paid for the bonds, when the purchase money passed through the hands of the prospective pledge. Jones on Liens, secs, 248, 249; Schouler on Bailments and Carriers [2 Ed.], secs. 181, 188, 194; Casey v. Caveroe, 96 U. S. 467; Lawson, Bail., sec. 54, p. 99; Story, Bail., sec. 274. (3) The pledge of the bonds, when executed, would have been such a misappropriation thereof, by the pledgor, with the pledgee’s knowledge, as to prevent the lien of the pledge as against the plaintiff’s title, as purchaser, who had paid the purchase price. Payne v. Bank, 43 Mo. App. 377; Express Company v. Bank, 66 Mo. App. 275; Colebrook, Col. [2 Ed.], sec. 75; State ex rel. v. Berning, 74 Mo. 87; Galloway v. Gleason, 61 Mo. App. 21. (4) “Law and equity cases are not confounded now any more than before the adoption of the Code, but under the Code the courts are regarded as having a law and an equity side.” Gr. & Meyer Mo. PI. & Pi*., secs. 63, 64, 66; Meyer v. Eield, 37 Mo. 435; Maguire v. Tyler, 47 Mo. 115. (5) The instruction given by the court of its own motion is not the law. This instruction precludes the plaintiff from recovering on the sole question of his notice of the agreement for a pledge to the bank. If this instruction had been given under the equity count of the petition there might have been some rule to base it on, but there is not under the law count. “In a conflict between legal rights the question of notice is entirely immaterial.” Bisp. Pr. Eq. [4 Ed.], chap, on Notice, sec. 261, p. 326.</p> <p>(1) The first error assigned is to the effect that the court should have found that the title to the bonds in controversy vested in Mr. Boothe on October 25, 1897, the day Mr. Brinkerhoff received Boothe’s money orders. Respondent states that this was one week prior to the contract for á pledge to the hank, in his assignment of error. All of appellant’s cases cited under this point pass on the legal proposition that when the purchase money has been paid in pursuance of a contract of sale, and the property is in shape to he delivered, the title passes as between the parties to the contract. No one disputes this proposition. In not a single one of the propositions discussed in the cases cited under this point was the rights of a third party an issue in the case, excepting in the case of Allgear v. Walsh, 24 Mo. App. 134, and that case is opposed to appellant’s position. Eor the court’s convenience we will give a few extracts from the opinion. At page 141 the court says: “It may further be conceded that the defendant had the right to hold the whiskey until the whole of the debt to the bank was discharged. It may also he conceded that Elaisig could not, while the defendant so held the property, transfer the property to a third party, discharged of the security, against defendant’s consent.” Yet because defendant’s contentions were not presented by instructions unmixed .with objectionable matter he could get no benefit from the defense he interposed as pledgee. (2) In the equity court he charges the respondent with having sold the bonds and realized the proceeds therefrom which he states went into the assets of the defendant bank and he seeks to recover the proceeds realized. This is a distinct cause of action. It affirms the sale and seeks to recover the amount realized on the implied obligation to repay the money thus received. Bliss on Code Plead., sec. 13, p. 16; Nanson v. Jacob, 93 Mo. 331. (3) The count in law is based on plaintiff’s property rights to the bonds in controversy, but it does not affirm the sale. In this count plaintiff seeks to recover the value of the bonds at the time of the conversion. So it will he seen that plaintiff did not base his cause of action on any rights he claimed to have with respect to the money by means of which he acquired the title to the bonds in controversy. Pie would not have been allowed to have assumed this inconsistent position in the same action. The Enterprise Soap Works v. Sayers, 51 Mo. App. 310. A party can only recover on the facts stated in his petition. Bird v. Railroad, 379; Traders Bank v. Payne, 51 Mo. App. 512; Ellsworth v. Barton, 60 Mo. 511;' Clemants v. Teates, 69 Mo. 623.</p>

— Hon. James Tilford Neville, Judge. Plaintiff not being tbe sole owner of tbe property for tbe conversion of wbicb be seeks to recover damages, be can not maintain this action. Mulrow v. Railroad, 62 Mo. App. 431; Deyerle v. Hunt, 50 Mo. App. 541. He could only be damaged to tbe extent of his interest in tbe property converted and a recovery by him would not bar another action by bis co-owner.

— Hon. F. B. Dearing, Judge. (1) The court clearly erred in not taking an account between appellant and respondent and stating tbe balance due one way or tbe other. The appellant had asked for an accounting, but the court, when it determined that the premiums paid could not be credited on the loan, dismissed the bill. Eor this error the judgment of the trial court must be reversed.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) An officer of the court can not have an execution for his fees. Hoover v. Railroad, 115 Mo. 77; 2 R. S. 1889, sec. 4980. (2) The commissioner is only entitled to the usual fees allowed justices of the peace. 2 R. S. 1889, sec. 4980; Ring v. Vogel, P. & Gr. Co., 46 Mo. App. 374; St. Louis v. Meintz, 107 Mr. 611. (3) His demand was illegal. State v. Vasel, 47 Mo. 416-417.

— Hon. James Tilford, Neville, Judge. (1) The indictment does not charge defendant with using any device named in section 3810, Revised Statutes 1889 (the section under which the indictment is drawn). The court should be able, by an inspection of the indictment, to determine whether a crime is charged.

Francois Circuit Court. — Son. James D. Fox, Judge. (1) The agreement in the application and in the certificate of membership, or policy sued on, that the same was subject to a full compliance on the part of the deceased with all the laws governing the endowment rank, then in force, or that might thereafter be enacted, is valid and binding. Daughty v. Knights of Pythias, 48 La.

— Hon. Henry O. Ril-ey, Judge. (1) The defendant is not liable in damages for reducing the surface of Kate street along the south end of plaintiff’s lot, because the work was not done by virtue of an ordinance. Maudlin v. City of Trenton, 67 Mo. App. 455; Gehling v. St. Joseph, 49 Mo. App. 432; Werth v. Springfield, 78 Mo. 109. This is true, even though the work was done under the supervision of a committee appointed by the board of aldermen of the city.

— Hon. Edwin B. •McKee, Judge. (1) Declarations of deceased persons against interest are admitted as direct evidence of the facts declared. They find their guaranty of reliability in the circumstances that they are against the interest of the person who made them and presumably would not have been made had they been false. McKelvey on Evidence, sec. 178, p. 254. These declarations more properly belong under the class of admissions. McKelvey on Evidence, sec. 64, p. 97.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The return of the appellants to the alternative writ evidenced a degree of effrontery in its makers, which is without parallel in the history of municipal proceedings. Quaeris Alcidae parem % Nemo est nisi ipse. The respondent had been duly elected and admitted to the house of delegates as a lawfully elected member.

<p>Appeal from the Lawrence Circuit Court.- — Hon. Henry Clay Pepper, -Judge.</p> <p>(1) Under the Revised Statutes of Missouri of 1889, governing building and loan associations, which permits associations formed thereunder to sell their loans in open meetings to the stockholder biding the highest premium, which premium is not to be considered as feed, within the general usury law, the written bid for preference contained in the borrower’s application for a loan when submitted, as in this case, to the board of directors in open meeting meets the requirements of the statute. Hughes v. Farmers 'Savings, Bldg. & Loan Ass’n (Tenn.), 46 S. W. Pep. 362; Bertche v. Equitable Loan & Investment Ass’n of Sedalia (Mo.), 48 S. W. Rep. 954; Springfield Engine & Thresher Co. v. Donovan et al. (Mo.), 49 S. W. Rep. 500. (2) While a bylaw of a building and loan association which fees a minimum premium below which bids will not be considered may render a transaction usurious as to one who was forced to bid a larger premium than he otherwise would have been required to pay, yet, when one voluntarily bids a premium for preference or priority of a loan in excess of that required by the bylaw he can not be heard to complain. U. S. Savings & Loan Co. v. Shain, 77 N. W. Rep. 1006; Thornton & Blaekledge on Law of Bldg. & Loan Ass’n, sec. 229; Albright v. LaEayette B. & L. Ass’n, 102 Pa. St. 411.</p> <p>(1) The record does not disclose any legal evidence of any competitive bidding for the loan to Bonnefon. The testimony of Hayward was based solely on book entries not made by ,bim and he had no personal knowledge of the matters narrated, having been in the state of Tennessee at the date of the occurrences in question. Traber v. Hicks, 131 Mo. 180. (2) Such evidence is but hearsay and when incorporated in a deposition is not within tbe rule that tbe relevancy of tbe evidence should be settled before tbe trial. (3) Tbe loan to Bonnefon was made under an agreement between tbe borrower and tbe appellant’s agent, at a fixed premium, determined upon before any application by tbe borrower and was not made under free and competitive bidding, as required by tbe statute. Post v. Mechanics B. & L. Ass’n (Tenn.), 37 S. "W. Rep. 216; Price v. Empire Ass’n, 75 Mo. App. 551; Moore v. B. & L. Ass’n, 74 Mo. App. 468; Brown v. Archer, 62 Mo. App. 277. .</p>

Louis City Circuit Court. — Hon Pembroole B. Flitcraft, Judge. (1) Tbe court erred in striking out that part of appellants’ answer alleging that respondent obtained judgment against Wilson Kaye for tbe same identical interest herein sued for in case of Duncker v. Kaye, No. 8,786, returnable to tbe December term, 1897, St. Louis Circuit Court.