Volume 84 — Missouri Reports

— Hon. S. H. Woodson, Judge. If defendant, Mrs. Cheatham, executed the deed of trust charged in the petition, to secure the note therein described, she could not afterwards buy in a title outstanding at the time the deed of trust was given, and hold the land by such title against a purchaser under the deed of trust. This is upon the plainest principle of equity.

— Hon. H. S. Kellev, Judge. The evidence is preserved in the bill of exceptions only on one point, viz. : the authority of the insurance company to do business in this state, and the presumption is that the evidence upon all other points was sufficient and the venue was proved. Foster *. Fewlin, 4 Mo. 1'8; Barge Resort «. Brook, 10 Mo. 531; Douglass v. Stephens, 18 Mo. 362 ; State v. Dunn, 73 Mo. 586 ; State v. Brown, 75 Mo. 317.

— Hon. John T. Redd, Judge. (1) No appeal having been taken from the order of sale of real estate, the circuit court had no jurisdiction to dismiss that proceeding.

<p>1. Counter-Claim. The cause of action accruing to a bank against its cashier for wrongfully permitting an overdraft arises on contract, within the meaning of the statute relating to counter-claims.</p> <p>3. Bank Cashier. The pendency of a suit by the bank against the cashier for this breach of his bond, does not affect the bank’s right to set up the overdraft as a counter-claim to a demand by the cashier’s assignee.</p> <p>8. Counter-Claim. A counter-claim may be made to a claim by the debtor’s assignee in the circuit court, though it has not been pleaded before the assignee.</p> <p>4 -:-assignee. An assignee’s statutory power to adjust and allow claims confers no larger power in relation to counterclaims than that given to the courts.*</p>

<p>Constitution: justice of peace: jurisdiction. The provision of Revised Statutes, 1879, section 3835, conferring jurisdiction upon justices of the peace in actions against railroads for the killing of stock without regard to the value of the animal killed, or the amount claimed, is constitutional.</p>

— Hon. John H. Nicholson, Judge. The statement in this action was as follows: Plaintiff states that it, being a municipal corporation, organized, created, and existing under and by virtue of the General Statutes of Missouri for many years continuously last past, under the corporate name arid style of “The Inhabitants of the Town of Fredericktown,” in the county of Madison, and state of Missouri, did, on or about the 29th day of November, 1879, through its duly constituted,…

— Hon. Andrew Ellison, Judge. The court erred in computing the interest at ten per cent, per annum. The note, after it became due, February 12, 1878, only bore six per cent, interest; the contract for ten per cent, ended. Holden v. Trust Co., 100 U. S. 72; Brewster v. Walcejield, 22 How. 127; Bv/rnhisel ».

<p> Appeal from SI. Louis Gotort of Appeals. </p> <p>The demurrer to the petition was improperly sustained. Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 389 ; Tucker v. Tucker, 29 Mo. 350 ; Gf. S. 1865, p. 528, sec. 1, and p. 520, sec. 4; Turner v. Jennings, 2 Yern. Ch. 611 and 684; Smith v. Fellows, 2 Atkyns 620 ; Goddard v. Snow, 1 Russell’s Ch. 485 ; Fonblanques’ Eq. 269; 5 John. ch. 482; Littleton v. Littleton, 1 Dev. and Bat. (N. 0.) 327; Gransonv. Granson, 4 Mich. 230;, Eillinger v. Reidenhaioer, 6 S. & R. 531.</p> <p>(1) The demurrer was properly sustained. When a husband, in view of approaching death, has given away a portion of personal estate with the fraudulent intent of depriving Ms widow of her dower or child’s share therein, she is not entitled to have paid to her, out of the general estate in the hands of the administrator, the sum of which she has been deprived through the fraudulent donations of her husband. She may follow the property so disposed of and may obtain her dower out of it. Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 389; Tucker v. Tucker, 29 Mo. 350; Grecelius v. Horst, 4 Mo. App. 419; same case, 11 Mo. App. But she cannot claim out of the general estate her dower or a child’s share of property which never came to the hands of the executor or administrator of the estate. (2) Appellant’s claim is barred by the statute of limitation. This is not a suit for admeasurement of dower, because the property out of which the widow claims dower is gone. If this is ££ an action for relief on the ground of fraud” it should have been brought within five years after the cause of action arose. R. S., sec. 3230, p. 547; Rogers v. Brown, 61 Mo. 181. If this is an action to recover, out of the general assets of the estate, ..damages sustained by Jane Doyle through the fraud of her husband, it is clearly barred. (3) There is a fatal defect of parties defendant. The trustees for the residuary legatees and the residuary legatees should have been made parties. Their estate is sought to be diminished. The debts being all paid, the administrator or executor stands in the attitude of a trustee of an express trust for the residuary legatees, who in such case should be made parties. Oreen, Ad/mir, r>. Bell, '3 Mo. App. 293; Dillon, Adm’r, v. Bates, 39 Mo. 289, '301. The will in terms makes the executor or administrator a trustee of an express trust, and, therefore, the beneficiaries were necessary parties. Joseph O’Neil was not a proper party defendant. The petition shows that he was not then executor of the estate. (4) The circuit court has no jurisdiction. If the plaintiffs were entitled to have dower admeasured in the funds remaining in the hands of the administrator, the probate court was the proper tribunal and not the circuit court.</p>

— Hon. P. M. Black, Judge. (1) R. S., 1879, sec. 5526, et seg., amended the act of 1874 and constitute a revision of the latter act. Falconer n. Robinson, 46 Ala. 340. Such parts of the old statute as were not incorporated into the revision are annulled. Buck r>. Spofford, 31 Me. 34; Hughes v. Farrow, 45 Me. 72.

— Hon. Elijah Robinson, Judge. (1) There is a clear fee-simple devised in the first ■clause as to all the estate after the debts are paid. R. S., sec. 4004; Creen v. Sutton, 50 Mo. 192; 3 Cranch 134 ; Jaclcson v. Robbins, 16 Johns. 537; Jaclcson v. Bull, 10 Johns. 18 ; Attorney General r. Hall, Fitzgibbons 314. (2) No subsequent limitation could be engrafted upon the fee given in the first clause. King v. King, 12 Ohio 390 ; Berlceel r. Jacoby, 36 Iowa 273 ; Ruby r>.

— IIon. E. L. Edwaeds,, Judge. (1) It is admitted that the usual function of a writ of mandamus is to compel an inferior court or officer to act when he has refused to discharge his duty. State ex rel. Adamson n. Lafayette county, 41 Mo. 221. This is not the only function of the writ. In the language of Mr. High, it lies to determine the jurisdiction of an inferior court or officer, and to correct any error growing out of a mistake as to jurisdiction. High on Extra.

— Hon. W. F. Geiger, Judge. (1) Miluer was the agent of Murdoch to sell this land; was his agent to pay taxes on same ; his agent to protect the interest of his principal of the tax sale on the 29th of May, 1880, and while acting as such agent he-bought this land at that tax sale, and being thus the agent of Murdoch, it was a fraud on his part, pure and simple, to take title in his own name and for his own use. The act at once turned him into a trustee ex malificio.

<p>Appeal from Pettis Circuit Court. — Hon. John P. Strother, Judge.</p>

Louis Court of Appeals. (1) Neither the indorsement on the bonds nor the alleged verbal statements of the agent are such misrepresentations as will support the action for deceit. The bond proper contained no statement in regard to whether the deed of trust executed to secure its payment was a first mortgage. It was silent on the subject.

— -Hon. T. M. Gill, Judge. (1) There was no privity whatever between the city and the servants of the contractor, and hence it is not liable for their acts. Kelly r>. Mayor, 11 N. Y. 433; McCafferty v. It. R., 61 N. Y. 178 ; Joliet v. Seward, _§6 111. 402. (2) The city was not liable for the failure of the city engineer to suspend the doing of the work, though he might have done so if he saw fit to under the contract, because that was discretionary with the engineer.

— IIon. John. C. Howell, Judge. (1) Where a city ordinance requires railroad trains while running through the city limits to observe certain rates of speed, a failure to comply with such ordinance is negligence per se. Karle v. E. C., Sí. Jo. & C. B. It. Co., 55 Mo. 476. (2) The running of a heavy freight train at the rate of fifteen or twenty miles an hour over public crossings in a town where people are continually passing, is negligence. McPheeters v. H. <&. St. Jo.

<p>Error to Be Kalb Circuit Court.— Hon. Jos. P. Grubb, Judge.</p> <p>(1) The only question in this case is whether or not there is anything in the record showing that Harmon is estopped from disputing the title of Loring to the land sued for. At the time Loring made his claim to the land Harmon was tenant of Simons. Loring was a stranger, not having taken any title by his sheriff ’ s deed The attempt of Harmon to attorn to him was, therefore, void. R. S. 1879, sec. 3080. (2) Harmon’s possession was the possession of Simons, and he was bound to keep possession for his landlord, and he could not at the same time be subject to two separate landlords. Gunn v. Sinclair, 52 Mo. 327, 332. If he was still the tenant of Simons, and holding possession for Simons, he could not at the same time be the tenant of Loring and hold the possession for him. If, instead of attorning to Loring, Harmón had turned over to him the manual possession, both the act of Harmon and the entry of Loring would have been unlawful. McCartney •». Auer, 52 Mo. 305, 398. And it is evident that the court will not in this action put the parties in a position in which they would not be permitted to put themselves. (3) The pretended attornment was not only void because it was made so by the express provisions of the statute, but because it was procured by misrepresentation. Higgins v. Turner, 61 Me. 249 ; Schultz v. Arnot, 33 Mo. 172.</p> <p>(1) It is a well settled rule of this court that it will not interfere with the verdict of a jury on the ground that the finding is against the weight of the evidence, if there is any evidence before them tending to support their finding. Bussell v. Burlcstresser, 77 Mo. 427; Hamilton r>. Berry, 74 Mo. 178; Bea v. Ferguson, 72 Mo. 225. The same rule applies to trial courts sitting as a jury. Beck r>. Pollard, 55 Mo. 27. The proposition is: Was there, as a question of law, any evidence before the court' tending to support the finding of the court % There was no question but what the defendant was in possession at the commencement of this suit, and the only question in this case is whether Harmon is in a position to contest the plaintiff’s title. (2) There is no dispute but that the sheriff of DeKalb county had executed to plaintiff a deed purporting to convey all the title of Simons in the land in suit, and he claimed to be the owner before Harmon attorned to him. The plaintiff was not a stranger as to preclude the attornment. (3) There is no pretense that the attornment by Harmon to plaintiff was obtained by any false representation. (4) Harmon having recognized plaintiff as his landlord is precluded from showing that plaintiff had no title to the land at the time of the attornment. Taylor on Landlord and Tenant (7th Ed.) secs. 705-6. (5) The deeds from Simons to Klein and from Klein to defendant were not properly in evidence. Higgins r>. Turner, 61 Mo. 250.</p>

— Hon. R. E. Cowan, Judge. (1) The O’Sheas should not be permitted in equity to obtain payment of their debts as they have done in this ease, and then exclude the same from consideration; in computing the amount, if any, which may be due them from Payne on final settlement.

— Hon. James M. Davis, Judge. (1) Section 2956, Revised' Statutes, 1879, does not authorize the justice to render judgment against a party taking a change of venue ; it only gives him the right to “tax” the costs against such party (i. e.) to fix the amount. Vide 2 Bouvier’s Law Die., (14th Ed.) p. 579; sec. 2985 1 R. S. 1879, et seq., are the only cases in which the justice can legally render judgment for costs.

<p>1. County Collector: bond, sufficiency of. The condition of a county collector’s bond as executed by him was that he should pay over all state, county and other revenue for the two years next ensuing the first day of January, 1875, while by the statute (W. S., p. 1178, sec. 92) under which the bond was made, its condition should have been that he pay over said revenue within two years next ensuing tlie first day of February thereafter (1875); held, the variance was immaterial and did not, therefore, affect the bond as a lien on the collector’s land.</p> <p>¡8.--: bond, summary proceedings on. A proceeding by motion in the circuit court against a county collector, under Wagner’s Statutes, p. 1210, § 231, for failure to pay into the proper treasuries moneys collected by him, as required by law, is not ex parte and may be resorted to after the expiration of the collector’s term of office, as well as during his term.</p> <p>8. ETotice: lien: bond oe county collector. The filing of the collector’s bond for record imparts notice like the filing of a deed of record, and from that time it becomes a lien on his lands. Such lien extends as well to lands subsequently acquired by him as to those he owned when the bond was filed of record. W. S.,p. 1178, sec. 96.</p>

— Hon. R. P. Owen, Judge. (1) The trial court committed error in refusing the demurrer to the evidence as asked by defendant. Clark’s adm'r v. R. R., 36 Mo. 202; Brainard v. Clapp, 10 Cush. 6. (2) The instruction given for plaintiff was erroneous. Clark's adm’r v. R. R., supra. The instruction was also erroneous in its declaration as to the measure of damages in the event of recovery. Interest is not recoverable in a case of this kind.

Louis Court of Appeals. (1) The barge was not owned, or under charge or management of defendant, in fact was not in existence on August 1st, 1880, it having been built or brought to St. Louis about May, 1881, and hence defendant could not have made the sworn return and have had it assessed as required by the city ordinance.

<p> Appeal from St. Louis Coiort of Appeals. </p>

<p>Guardian.: bond : sureties. H., having been appointed, guardian and curator of a minor executed his official bond with one W. as his sole surety thereon ; subsequently, and before any funds of the ward came into his hands H., at the request of W., called at the office of the probate court and obtained the bond from the judge, stating at the time that W., wished him to procure other signers as sureties on the bond, which he did and returned it with the names of the co-defendants of W. subscribed thereto. Meld, that the bond was valid as to the subsequent signers and that they were liable thereon for money due the ward from the estate of H.</p>

— Hon. Jas. B. • Gantt, Judge. (1) The court erred in permitting the witness, T. J. Wilson, to testify: “I had been called to Mr. Leabo s the Sunday previous. I heard that he was having trouble with his wife. Defendant wanted to know if he could get rid of his wife and keep the baby.” Part of it was heresay and clearly incompetent, and the error was not cured by withdrawing it after it had once poisoned the minds of the jury.

— Hon. M. Q-. McGtBEgob, Judge. (1) The court below committed error in refusing to grant a change of venue in this case for which this cause should be reversed. People r>. Yoahum, 53 Cal. 566; State v. Ware, 69 Mo. 332; State v. Guy, 69 Mo. 430; State v. Bohannon, 76 Mo. 562.

— Hon. Noah M. Gtvan, Judge. (1) The assignment of the notes in controversy to H. H. Curtis by Gf. Buckingham was voluntary, upon no consideration, and being upon a secret trust or use for bim as is clearly shown by his subsequent control of them in placing á credit of $489.49 on one of the notes, was fraudulent as to plaintiffs, who were existing creditors. State v. Benoist, 37 Mo. 500; State v. Traslcer, 31 Mo. 445; Story’s Eq.

— Hon. W. F. Geiger, Judge. (1) A private relator was not necessary, nor could one have properly been named. This is not a contest between two persons claiming title to an office, but a proceeding against defendants for pretending to exercise the duties of an office not in esse. An information ex officio and not ex relatione, is the proper procedure, and the circuit court had jurisdiction. State ex. rel.

<p>1. Pleading: answer. An answer which neither denies nor confesses and avoids the statements of the petition is bad on demurrer.</p> <p>¡Ü. -: demurrer. A pleading - which sets up a claim which shows on its face that it is barred by the statute of limitations is bad on demurrer.</p> <p>8.Estoppel. A party to a contract with another therein described as a corporation is, in an action on the contract, estopped to deny the other’s incorporation.</p> <p>4. St. Louis-Gas Light Company, Authority of. The St. Louis Gas Light Company was authorized to charge against the city of St. Louis the tax imposed by the United States upon illuminating gas.</p> <p>5. -: settlement. A settlement made by the city auditor with the gas company is, in the absence of fraud or mistake, conclusive as to the amount due by the city at the date of the settlement.</p> <p>6.--: presumption. That the city auditor entered as charges against the city upon his books the' bills of the gas company is presumptive evidence that each bill was properly audited at'the date of its entry.</p> <p>7. Municipal Corporation, Books of: evidence. The books of account of a municipal corporation kept by the proper officer are prima facie evidence of the facts therein stated and are competent to charge the city. <</p> <p>8. Contract, Construction of: interest. Under the tripartite agreement of February 28, 1873, interest on the bills of the gas company against the city ran from the date when each bill became due.</p> <p>9. Compound Interest: contract. To warrant a charge of compound interest a contract to that effect, either express or implied, must be shown.</p> <p>10. -:--. An accounting 'between the two parties and the striking of a balance are not evidence in this case of a contract for compound interest on the interest included in the balance.</p> <p>11. Charter of Corporation, Expiration of by Limitation. The question as to whether the charter of a corporation has expired by limitation of time can be adjudicated only in a direct proceeding by the state.* " ’’</p>

Louis Court of Appeals. (1) A prosecution under a city ordinance is an action of debt for the recovery of a penalty. The original complaint fails to mention the amount sought to be recovered, and the court could take no jurisdiction under this complaint. City of St. Louis v. Smith, 10 Mo. 439; Memphis v. O’ Connor, 53 Mo. 468 ; Ex parte HollwedeTt, 74 Mo. 395; City of St. Louis v. Knox, 74 Mo. 79 ; Billon on Mun.

— Hon. Gf. Porter, Judge. The court clearly erred in allowing respondent’s claim for exemption, first, because the law does not allow such claim, to be set up, except in the case of an execution in the hands of a constable or sheriff, or on an attachment. ¡Section 2343, Revised Statutes, says: “The following property when owned by the head of a family shall be •exempt from attachment and execution.” And section 2346 declares “that each head of a family at his election, in…

<p>Trustee’s Compensation. A trustee can receive pay out of the trust fund for such services and expenditures only as are within the line of duties imposed upon him by the instrument creating the trust.*</p>

Genevieve Circuit Court. — Hon. James-11. Pox, Judge. (1) Equity, will not interfere by injunction to restrain the enforcement of tax proceedings, even where no notice of it has been, given, on the grounds of informalities, irregularities or errors in the assessment of the tax, not affecting the substantial justice of the tax itself, inasmuch as such things do not as a matter of law in any manner vitiate the tax or assessment.

Louis Court of Appeals. Grand juries are at liberty to find bills upon their own knowledge merely, and were anciently in the habit of so doing'. Leg. v. Lies sell, Car. and M. 247 ; Whar. Cr. PI. and Pr., sec. 388 (8 Ed.) ; State v. Terry, 30 Mo. 368. In this state it is made the duty of a grand juror to disclose his knowledge of indictable offences and be sworn as a witness. Sec. 1779, R. S., 1879.

Common Pleas. — ITon. Gf. H. Buboktiaett, Judge. The proof shows clearly that if there does not appear to be fraud on the. part of the attorney for appellant, there was a clear mistake and misunderstanding between attorney and client as to what would be done with the original case at the April term, when tried, which deprived appellant of his evidence and a fair trial, which is equal to an inevitable accident and of which respondent took the benefit, and obtained an…

Louis Court of Appeals. This proceeding, first in the county court, and then by certiorari in the circuit court, was the proper remedy in such case. State ex rél. Leé s Administrator v. St. Louis County Court, 47 Mo.. 599. (2) These cars were part of the rolling stock of the railroads in question, and were assessable only under the provisions of the act of March 10, 1871 (Laws, p. 56).

— Hon. E. M. Black, Judge. (1) The notice was incompetent to sustain the lien claimed in the petition. Phillips on Mechanic’s Liens, secs. 341, 349 ; R. S., 1879, sec. 3190; Lutz v. My., 3 Abb. p. 475; Schulenburg v. Bascom, 38 Mo. 188; Gogin v. Walsh, 124 Mass. 516. (2) The lien filed in the circuit clerk’s office was improperly admitted in evidence, because it did not contain a just and true account of plaintiff’s demand as required by the statute.

Louis Court of Appeals. (1) Mrs. Moses, then Mary Atchison, and Henry Papin through whom, plaintiff, Harriet Papin, claims, having executed and acknowledged the instrument of 1851, there was no necessity for the city of St. Louis to attempt to agree with the parties before condemnation as required by the rule laid down in Anderson v. St. Louis, 47 Mo. 479. (2) The eastern two-thirds of the property sued for was conveyed to the city for wharf purposes by the grant of 1851.

Prohibition. (1) The judgments against Huling and Swope were several and separate and this court so held and reversed said several and separate judgments. As to all the other, parties the judgments of the circuit court were unappealed from and remain unreversed. MeKee v. Jones, 17 Mo. ■ 184; Coles v. Trustees, etc., 10 Wend. 659.

<p>Set-Off: special tax-bill. In an action on a special tax-bill, the defendant can set-off a debt due himself from the owner of the tax-bill.</p>

— How. Jas. B. Gantt, Judge. (1) The .notes were a bonus or donation to the railroad on certain conditions, and the road did not comply therewith, and there can be no recovery. In a case of conditional subscription (which must be distinguished from a donation) it was held by the Iowa Supreme Court that a depot at a town should be inside and not outside of it. JR,. JR. v. O’ Connor, 40 la. 477.

— Hon. John P. Strother, Judge. (1) The additional testimony offered by plaintiff should have been received. Tierny v. Spiva, 76 Mo. 279. (2) The demurrer to the plaintiff5 s evidence should have been overruled, and the trial court erred in taking the «ase from the jury. Brown v. R. R., 50 Mo. 461; Norton v. Iftner, 56 Mo. 351; Kelly v. R. R., 70 Mo. .604 ; Coolc v. R. R., 12 Reporter 351; Tanner v. R. R., 60 Ala. 631.

<p> Appeal from, St. Louis Court of Appeals. </p>

'Appeal from Henry Circuit Court. — Hon. Jas. B. Gantt, Judge. (1) The plea in abatement should have been sustained. R. S. secs. 1732, 1736, 1738, and 1742; Stale v. Bailey, decided by supreme court of Kansas, May, 1884. (2) The court erred in overruling defendant’s application for change of venue. Heed n. State, 11 Mo. 379; Corpenny n. Sedalia, 57 Mo. 88. (3) The court erred in permitting the panel of forty to separate and go to their homes pending the challenges.

Louis Court of Appeals. (1) This action was not prematurely brought. R. S. Mo. 1879, secs. 3972, 3974, 3930'; Potter v. Adams, 24 Mo. 159; Jourden v. Meier, 31 Mo. 42. (2) This action, under the statute, is a proceeding at law, and the appellate court will not look into the weight of evidence. Young v. Bidenbaugh, 67 Mo. 574. (3) There was no-error in the rulings of the trial court in admitting or excluding evidence. Lamb’s adm’r v. Helm, 56 Mo. 432 ;.

— Hon. B. E. Turner, Judge. (1) The contract on which, defendants rely is, as to Ann W. Crow, who was at the time a married woman, simply a contract of indemnity against damages sustained by a suit which might in future be brought against her grantor, and while it might bind her in Iowa under the code of that state, yet as plaintiff sought to enforce it in this state, the law of the forum will govern. 2 Parsons on Contracts, pp. 88-84.

— Hon. F. M. Black, Judge. (1) Tbe court committed error in overruling appellant’s application for a change of venne. R. S. 1879, sec. 3729. (2) The bank ought to be held liable. The bank, under the circumstances, ought to be estopped to deny the certificate of its cashier. Bigelow on Estoppel, p. 451, et seq. ; Western, etc., JR. JR. v. Franklin Bk., 1 Am. and Eng. Corp. cases, p. 46.

Louis Court of Appeals. (1) All the parties in interest are not before the court; Patier, the plaintiff in the original suit, who is the party most directly interested, not having been made a party to the mandamus proceeding. People p. Farquer, Breese 73; State x. Mills, 27 Wis. 403; High on Extr. Leg. Bern., sec. 9, and notes.

— Hon. Jos. P. G-rubb, Judge. This was an action of ejectment by Christian Mueller and Prederika Mueller, Ms wife, for lot 6 in block 26 in the city of St. Joseph. Defendant, Kaessmann, the tenant, answered, stating that he held under the trustees of the “Evangelical Lutheran St. Peter’s Congregation,” a church of which he is pastor.

jError to Moniteau Circuit Court. — Hon. E. L. Edwards, Judge. (1) The circuit court tried the cause and rendered its-judgment on the theory that the proceeding was an equitable one. The probate court had no equitable jurisdiction. Walker v. Walker, 25 Mo. 367; Butler r. Laioson, 72 Mo. 244 ; First Baptist Qhurch r>. Robertson, 71 Mo. 326. (2) Plaintiff had no valid claim against the estate.

— Hon. M. G. McGregor, Judge. It has been uniformly held by this court, that railroad companies are under no obligation to fence their track where it crosses the plat of a town, or city, and. consequently they cannot be held liable under the provisions of section 809 of the Revised Statutes of 1879. Lloyd v. Pacific P. R., 49 Mo. 199 ; Cousins v. Railroad, 66 Mo. 572. “It is inaccurate to say that there is any obligation to fence imposed by section five of the damage act.

— Host. John L. Ti-iomas, Judge. (1) Purchase money entered into the note sued on. The Creath farm was not acquired by the defendant as the £ £ direct proceeds ’ ’ of his Piedmont homestead, if any such he ever had; but it was acquired by means of the value of that property being mingled with fifteen hundred dollars worth of another man’s credit.

Louis Court of Appeals. (1) The St. Louis copy of the patent of the United States was properly admitted in evidence. Geary v. Kansas City, 61 Mo. 378; ParJcinson v. Caplinger, 65 Mo. 290 ; Briggs v. Holmsirong, 72 Mo.. 337. (2) The ■certified copies of the record of the deeds from E. C. Payne and others to Thomas J. Payne, made in 1831, should have been excluded. They were void as to strangers, being mere nullities up to the time of the passage of the act of 1874.

Louis Court of Appeals. (1) The capital stock being a trust fund (72 Mo. 424 and 434 ; 78 Mo. 482) the statutory requirements as to amount, time, and manner of payment must be strictly obeyed and are conditions precedent. King n. Elliott, 5 S. & M. 428, 442; Tu/rnpike Co. ». McKean, 11 Johns. 98. These requirements are dictated by sound policy and cannot be evaded. Schütz v. R. R., 9 Mich. 269 ; Turnpike Co. v. Mender son, 8 Serg. & E. 217; Wood v. R. R., 32 Ga. 273.

I. The patent from the United States, dated December 15,1871, vested in the plaintiff the legal title to the land sued for. Griffith «. Eeerfelt, 17 Mo. 31. (1) Some pffort, it seems from the record, was made in the court below to impeach this patent on the ground that the rules of the department required lands improperly withheld from private entry, when restored to market, to be advertised for thirty days and the entry thereof opened to competitive bidding.

— Hon. N. M. GtvaN, Judge. (1) The court erred in admitting in evidence the deed of separation. It constituted no bar to plaintiff’s action after an offer to return. 1 Bish. Mar. & Div. § 806 (Ed. 1864); Stokes v. Stokes, 1 Mo. 320. (2) Plaintiff’s offers to return and defendant’s refusal to permit her were clearly established by the testimony.

<p>1. Referee. The report of a referee will not be disturbed as being against the weight of evidence where there is substantial evidence to support it,</p> <p>2. Estoppel. The obligors in a bond are estopped to deny the corporate existence of the body to whom it was given.</p> <p>8. Reference. A reference properly made does not become erroneous ex post facto, by reason of admissions against interest made by the party objecting to the reference, which render an examination of accounts unnecessary.</p> <p>4. Sureties. Sureties on the bond of the treasurer of a society are liable for a default in payment of moneys coming into the hands of the treasurer, as such.</p> <p>5.--: evidence. The treasurer’s statement made in accordance with his duty and during the period covered by the bond, but after his removal for misconduct, is competent against his sureties and is prima facie evidence of the facts therein stated.</p> <p>6. Practice in Appellate Court. If it does not appear that the appellant could have been prejudiced thereby, the admission of incompetent testimony is not sufficient ground for a reversal of the judgment.*</p>

<p>1. Officers: notice: presumptions. The fact that money is deposited in bank by a county treasurer raises no presumption that it belongs to the county.</p> <p>2. -: descriptio personas. That the words “county treasurer,” are added to a depositor’s name on his checks and pass book does not give notice that the depositor holds the fund as such treasurer.</p> <p>3. ISTotiee. One who has notice of such facts as put him upon inquiry is bound by every fact which an inquiry would have disclosed.</p> <p>4. -: practice. The question of notice is one for the jury.*</p>

<p>1. Condemnation Proceedings: verdict of jury. Wherein a proceeding by a city to condemn land 'for street purposes, the instructions are proper, the Supreme Court will not interfere with the measure of damages assessed by the jury, if it is not so flagrantly unjust as to justify the conclusion that improper considerations influenced the verdict.</p> <p>2.--: practice in supreme court. In such proceedings an appellant cannot be heard to complain in the Supreme Court of the assessment of damages when the record does not disclose the extent of his interest in the condemned property.</p>

— Hon. Gr. W. Dunn, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, in that it does not allege any facts which show that the animal was killed because of the want of a fence. Lueltie v. Ry. Go., 67 Mo. 245; Cunningham v. Ry. Go., 70 Mo. 202; Rowland v. Ry. Co., 73 Mo. 619 ; Sloan v. Ry. Go., 74 Mo. 47; Morrow v. Ry. Co., 74 Mo. 82.

(1) Plaintiff was entitled to recover on the ground that the city was negligent in the preparation and passage of what was supposed to be ordinance number 8449, by which the grade of Bell street was attempted to be re-established and in accordance with which grade the engineer prepared plans and specifications and directed the actual doing of the work. Dillon on Mun. Corp. (3d Ed.) p. 475; Kearney v. Covington, 1 Mete.

— Hem. B. E. Turner, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Allen's AdrFr r>. College,. 41 Mo. 302; Turk r. Stahl, 53 Mo. 437; McCoy v. Farmer, 65 Mo. 244; Winemck «. Bender, 33 Mo. 81; McDonald v. Morgan, 33 Mo. 555. (2) The court erred in refusing to set aside the default against Pinckney Tarr, and in not dismissing plaintiff’s petition at the-close of his evidence. (3) The plaintiff has no standing in a court of equity.

<p> Error to St. Louis Cotort of Appeals. </p> <p>(1) The deed of February 12, 1872, to Logan L. Lamerón without any consideration is void as to plaintiff, who was an existing creditor. Hurley v. Taylor, 78 Mo. 238 ; Payne v. Stanton, 59 Mo. 159; Potter v. McDowell, 31 Mo. 69; Patten v. Casey, 57 Mo. 118; Sloan v. Tor rey, 78 Mo. 633; City Hat ’ l Bk. v. Hamilton, 34 N. J. 160; Crawford v. Kirkséy, 55 Ala. 282 ; Wait on Fraudulent Conveyances, sec. 93; Barhydt w. Perry, 57 la. 416 ;' Lockhardt v. Bulkley, 10 W. Ya. 87. (2) If the deed is valid, Ewing C. Ketchum has an interest in the property subject to sale for the payment of this debt to the extent of all payments he has made since said deed of February 12, 1872, for taxes, insurance, improvements, and the reduction of the deed of trust. Eesley v. Bruns, 45 Mo. 234; Tillman v. Tillman, 50 Mo. 40; Woodward n. Stephens, 51 Mo. 443; Burgess v. Carr, 52 Mo. 43; White r. McPheeters, 75 Mo. 286-294; Workman v. PriceK 47 111. 22 ; Hackett v. Barley, 86 111. 74. (3) The case involves title to real estate. Baier v. Berberich, 77 Mo. 413.</p> <p>(1) An appeal does not lie to this court because the amount involved is less ■ than $2500. (2) This is not a case involving title to real estate. State ex rel. v. Court of .Appeals, 67 Mo. 199 ; Umbarger v. Watts, 25 Gratt. 167; Smith v. Bryan, 34 Ga. 53. (3) The deed to Mrs. Ketchum’s trustee was not in fraud of creditors ; the donation, if such it were, was very small in proportion to the aggregate of Mr. Ketchum’s property. Chambers v. Sallee, 29 Ark. 407; Brown v. Spivey, 53 Ga. 155 ; Salmon v. Burnett, 1 Conn. 525; Bird v. Boldue, 1 Mo. 701. Patton v. Casey, 57 Mo. 118. (4) A voluntary conveyance is not per se fraudulent as against creditors prior or subsequent, but the bona fides is a question of fact under all the circumstances attending its execution. Hindes’’ Lessee v. Longworth, 11 Wheat. 213; Lane v. Kingsbury, 11 Mo. 402; Howard v. Williams, 1 Bailey 575; Lloyd v. Pulton, 91 U. S. (1 Otto) 485 ; Priguet v. Swan, 4 Mason C. C. R. 443; Lusk v. Wilkinson, 5 Yesey 384. And that existing indebtedness does not render a gift, or voluntary conveyance, absolutely void as to creditors, if there is no intention on the part of the donor to hinder, delay or defraud creditors. Smith v. Yell, 8 Ark. 470; Cridley v. Watson, 53 111. 186; Hackett v. Bailey, 86 Id. 74.' (5) It was not a donation, for (a) every cent that it cost was borrowed. And the effect of this is not altered by the fact that a part of the money was put into Ketchum’s business, and then drawn out in instalments for the purpose of paying off the debt. (5) Ketchum received from his wife more money than he ever paid oh this property. (6) If this conveyance should be set aside, respondent would be entitled to a homestead of much greater value than the equity of redemption now existing. R. S., sec. 2691; Vogler v. Montgomery, 54 Mo. 577; State ex O'el. 0). D reeling, 66 Id. 475. (7) Plaintiff has not exhausted his legal remedies. There is no evidence even, that an execution has been returned nulla bona.</p>

Louis Gourt of Appeals. In the absence of proof, the presumption is that the money which Thornton paid to his successor, was money held by him as clerk of the court, and not his private funds. To hold otherwise, is to presume that Thornton had embezzled the trust funds committed to his charge.

— Hon. J. P. Steothee, Judge. (1) There is no liability on defendant here, because hie was simply the agent of Liebke & Schrage, and did not conceal that fact. Indeed made it known at the first proper opportunity. The action should be against the principals. Morgan v. Bowman, 22 Mo. 538 ; Harriman v. Stowe, 57 Mo. 93; Buis v. Coo7c, 60 Mo. 391. It is seen there is no charge or evidence of misfeasance on part of defendant here. He is only charged with nonfeasance.

—Hon. Henry P. White, Judge. (1) The provisions of the statute (R. S., sec. 1541), under which defendants were convicted was not directed against secret acts of illicit intercourse, no matter how much they may be in violation of good morals. The question has not been directly passed upon in this state, but has been indirectly. State v. Hinson, 7 Mo. 244; State v. Barrieron, 8 “Mo. 494; State v. Byron, 20 Mo. 210 ; State v. Or owner, 56 Mo. 147.

— Hon. Gr. H. Burckhartt, Judge. (1) The suit was on an account for mules sold by defendant. If it be for selling as agent for plaintiff, a contract with defendant would have to be shown. Plaintiff’s wife was his agent to have the mules sold, and says she made McCord the agent, and that he sold them and settled, and informed her that he had taken a note, and also that she gave defendant no authority to sell them.

Glair Circuit Court. — Hon. Chas. O» Burton, Judge. (1) Before the relator could recover lie should have shown that the defendants were the owners of the property against which the action was instituted.

— Hon. J. D. Foster, Judge. Kate Lee having executed the alleged will, and died in 1878, and the descent being cast under Wagner’s Statutes (Edition of 1870), that statute must govern in the determination of the issues in this cause. In the determination of this cause, the jury manifestly disregarded the testimony and instructions of the court. Such being the case, the Supreme Court will interfere and reverse the judgment. Ackley v. Staehlin, 56 Mo. 558; State ex rel.

Louis Court of Appeals. (1) No interest in the land is affected save that of the persons who were parties to the record. Stafford r>. Fizer, 82 Mo. 393 ; Corrigan v. Bell, 73 Mo. 53 ; Valentine v. Havenor, 20 Mo. 133. (2) The tax proceeding is not a proceeding in rem. Conkling’s Treatise, pp. 306, 379; Mankin v. Chandler, 2 Brock. 125; Blackwell on Tax Titles (4 Ed.) 631; Hopper v. Malleson, 16 N. J. Eq. 382; Boyle v. B7c., 14 Ala. 622.

<p> Appeal from St. Louis Court of Appeals. </p>

<p>Xand Title: sale for taxes. A sale under a judgment for taxes carries the legal title and if the beneficiary and trustee are not made parties to the suit, the purchaser acquires such legal title subject to the right of the beneficiary in the deed of trust to redeem.</p>

— B. R. Vineyard, Esq., Special Judge. (1) The court erred in refusing to instruct the jury that plaintiff was not entitled to recover. Yanderbeck v. Hendry, 34 N. J. (Law) 472 ; Sweeney v. Old Colony, etc., 10 Allen 372; Hardcastle v. South Yorkshire, etc., By., 4 H, & N. 67; Pierce v. Whitcomb, 48 Vt. 127; McAlpin v. Powell, 70 N. Y. 126 ; Beulston v. Clark, 3 E. I). Smith 366; Parker v. Portland Pub.

— Hon. N. M. Gtvan, Judge. The following is the contract of August 12, 1870, mentioned in the opinion: “Now, at this day, comes A. W. Ridings, and presents to the court here a modified contract between the county of Johnson and the said A. W. Ridings, whereupon it is ordered by the court that the presiding justice of this court sign said contract, and that the clerk of this court attest and affix seal of this court thereto. “ Which said contract is in words and figures…

— How. N. M. Gtivan, Judge. (1) The declaration of law given by the court at the instance of plaintiff was erroneous for the reason: It allowed the plaintiff to recover the possession for all time to come, notwithstanding he was only entitled at most during his minority, and the judgment should have been so limited. Ganóle v. Hurt, 78 Mo. 649 ; 1 Wag. Stat., § 5, p. 698.

Qlair Circuit Court. — Hon. Chas. Gr. Burton, Judge. The statute provides that an appeal may be had from a conviction before a justice if the defendant, “immediately after judgment is rendered, file an affidavit, stating that he is aggrieved by the verdict and judgment in the case, and that he does not make his appeal for vexation or delay, and shall also enter into a recognizance,” etc. Sec. 2058, R. S. 1879.

<p>1. Practice in Supreme Court: evidence. Questions arising on the admission and exclusion of evidence will not be reviewed in the Supreme Court, in the absence of proper objections and exceptions made on the trial.</p> <p>2. Express Messenger: degree of care. An express messenger is bound to use the utmost care and diligence in protecting goods entrusted to Mm, but is not an insurer of their safety.</p>

Louis Oourt of Appeals. The following is the plat referred to in the opinion of the court: (1) The acts of Peter Lindell with reference to the-strip of ground, did not amount to a dedication thereof as an alley to public use. Landis v. Hamilton, 77 Mo.. 554, p. 561; Brinde v. Collier, 56 Mo. 160, pp. 164r-165 ; Irwin v. Dixion, 9 How. 10, pp. 30-31.

— Hon. J. L. Thomas, Judge. It is competent for a party wbo is the grantor of an estate to create an easement in Ms own favor, either in gross or annexed to Ms own land, by a reservation thereof inserted in his deed of the estate; or it may be done, though in terms it be an exception. Bowen v. Conner, 6 Cush. 132.

— Hon. J. R. Wood-side, Judge. The record introduced by plaintiff shows that no affidavit was ever made as required by statute, giving the court or clerk authority to issue the attachment. Without the affidavit required by statute (1 W. S., sec. 6, p. 182; sec. 403, R. S.) the court or clerk had no jurisdiction to issue the attachment. The recitals in the deed fail to state that an affidavit was filed, and the record introduced to vary those recitals is equally silent.

Louis Oourt of Appeals. The judgment of an appellate oourt, by operation of law, becomes the judgment of the court below, and, in its force and effect, is as binding and conclusive upon that court as though it had been rendered of its own motion. Archer v. Hart et al., 5 Fla. 234; Gardner v. Barney, 24 Howard Pr. 467; Robinson v. Plimpton, 25 N. Y. 487 ; Hinckley v. Kreitz, 58 N. Y. 583, 587; Smith v. Grouse, 24 Barb. 433 ; Babbittv.

— Hon. B. E. Turner, Judge. (1) An executor, administrator, or trustee, cannot purchase real estate belonging to the estate of his cestui que trust, either at public or private sale. B. 8., p. 25, sec. 166; Orumley ».

— Hon. Elijah Robinson, Judge. (1) There is no law or evidence to support the judgment. No valid sale of the land was shown. Revenue Law 1873, secs. 193-5, 217, 219 ; Abbott v. Linden-bower, 42 Mo. 163; Ewart v. Davis, 76 Mo. 129 ; Cooley on Taxation, 322, 323, 324. (2) The certificate of purchase was not competent by itself to prove a sale.

— Hon. N. M. G-ivan, Judge. (1) The constable had no power out of the county in Which he was elected and resided to serve notice on the executors. And, further, to render such service good, when made by an officer Qualified to make it, each of the executors should have been served with a copy. There was no affidavit of the service. R. S., sections 199, 654, and 2843.

Louis Court of Appeals. (1) Jones, the defendant’s intestate, had no right under the law, to carry on the business of his ward, or to make the estate of… Held: and it is immaterial that both parties are in a position to judge as to extent of authority. 2 Smith’s Lead. Cas., p. 366-7; Thatcher v. Dinsmore, 5 Mass. 299. Jones was not a mere agent but a trustee, and as such personally liable. TUIl on Trustees (3 Am. Ed.) 535-6; Perry on Trusts (3 Ed.) §454; Schouler on Lorn.

<p>Appeal from Montgomery Circuit Court. — Hon. Elijah Robinson, Judge.</p> <p>(1) As a statement of a statutory cause of action, the complaint is insufficient. Swearingen v. R. R., 64 Mo. 73; Edwards v. E. E., 66 Mo. 567; Wallace v. E. E., 74 Mo. 594; Wymore v. E. E., 79 Mo. 247; Johnson v. E. E.,76 Mo. 554; Nance v. E. E., 79 Mo. 196. (2) The court erred in overruling defendant’s demurrer to the evidence. (3) The court also erred in giving erroneous instructions and in refusing instructions which properly declared the law. Buel v. Transfer Co., 45 Mo. 562; Otto v. Bent, 48 Mo. 23; Price v. E. E., 77 Mo. 508.</p> <p>The complaint is a good statement of a cause of action under the fifth section of the damage act. Scott v. E. E., 75 Mo. 136 ; Iba v. E. E., 45 Mo. 470 ; Calvert v. E. E., 38 Mo. 467; Powell v. E. E., 35 Mo. 457; Brown v. E. E., 33 Mo. 309.</p>

— Hon. A. J. Seay, Judge. (1) The declarations made by the testator to the witness Maupin, before and after the execution of the paper propounded as his will, were not competent evidence. Gibson v. Gibson, 24 Mo. 227; Qawthorn ». Haynes, 24 Mo. 237; Spoonmore v. Cables, 66 Mo. 579 ; Trustees v. Peaslee, 15 N. H. 330 ; Greenleaf on Ev., sec. 290. It is impossible to tell the impression the declarations made on the jury, and if it was incompetent it was error to admit them.

— D. Q. Gale, , Esq_., Special ■ Judge. (1) The respondent was not entitled to recover on his counter-claim or set-off. The action was commenced on October 4, 1877; the set-off pleaded was a note, dated January 25, 1876, payable two years after date. The whole record, including the judgment itself, shows that this note was not due at the time of the commencement of the action.

Mandamus. Peremptory Writ Awarded. (1) The court had no power, without an application, from one of the parties, to refuse to give judgment in a cause submitted to it for judgment. Constitution of Missouri, sec. 10, Art. II; R. S., secs. 3591, 3592, 3593, and 3598; Hill r>. Harding, 107 U. S. 633 ; Hinsdale v. Hawley (N. C.); s. o. The Reporter, Sept. 3d, 1884, p. 313; Maguire v. Tyler, 25 Mo. 499-505; Rodgers v. Bank, 69 Mo. 564; Bradslee v. Morgner, 73 Mo. 22.

Appealfrom Clinton Circuit Court. — Hon. Gf. W. Dunn, Judge. (1) The depot buildings were erected by the St. Louis & St. Joseph Railroad Company on the land of said company as part of its line of railroad, and were completed by said company with its road, were intended t© be and are as permanent a fixture to the land as the road-bed and rails on its track, and hence, cannot be and are not personal property, and this action cannot be sustained.

— Hon. N. M. Gtvan, Judge. (1) Issues of fact in an action at law must be tried by a jury, unless a jury be waived, and there can be no waiver only by a failure to appear by written consent, in person, or by attorney, filed with the clerk or by oral consent in court entered on the minutes. R. S. of Mo., 1879, p. 616, secs. 3600 and 3602.

— Hon. John P. Strother, Judge. (1) Before and at the time of his acceptance of th@ appointment as defendant’s local attorney, plaintiff knew ©f defendant’s rules governing the same, and the evidence shows no exception was made in plaintiff ’ s case. (2) There is no evidence that plaintiff’s objections to a conditional appointment were ever communicated to the defendant.

— Hon. J. D. Postee, Judge. (1) Defendant having purchased at a sale absolutely void took nothing, especially as he bought at his own peril in inmtum. Story’s Eg. Juris. (12 Ed.) secs. 1502, 1505 ; Haley v. Bagley, 37 Mo. 364. (2) The proof shows that Henry C. Norduft was the owner of the notes, and the statutes gave him the legal right to enter satisfaction of the mortgage, which he did. R. S., sec. 3311 ; Ewing v. Shelton, 34 Mo. 521; Verges v. GiboneygWl Mo. 173.

— Hon. N. M. Hivan, Judge. One of the questions presented by this record is, is the defendant liable under the double damage act for injuring and killing swine entering upon its track in counties where the act to prevent swine from running at large has been adopted pursuant to the provisions of the act ?

— Hon. T. A. Q-ill, Judge. (1) The court erred in rejecting the testimony offered by defendant tending to show that the city engineer had not been guilty of negligence. See charter of Kansas City ; Dewey x. Detroit, 15 Mich. 307; Dillon onMun. Corp. (3 Ed.) secs. 308, 328, 948 et. seq. Taylor v. Qarondelet, 22 Mo. 105; Miller x. Sedalia, 53 Mo. 159.

<p>1. Pleading: user oe land. In an action to recover the value of the use of plaintiff’s land, the petition is sufficient, although it alleges -that the use was permitted, but does not aver that the right to compensation for such use was reserved nor when the occupation and user began.</p> <p>2. Land, Appropriation of by Railroad: mandamus. One can recover in an action at law for the use and appropriation by a railroad of his land. He is not bound to resort to mandamus to compel the railroad to have the land condemned for its right of way.</p> <p>8. Deed Construed. A deed construed and held to be a grant of an easement and not a conveyance of land.</p>

— Hon. G. W. Dunn, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action. It nowhere alleges that the plaintiff was in possession or entitled to the possession of the lands, and especially of the coal bed, but admits that he was not in possession of the road bed.

Louis Court of Appeals. (1) The act is unconstitutional. It is an interference with the judicial department of the government of the state. Lincoln v. Alexander, 52 Cal. 482. (2) It was not a law. It spent its force on a single object, was not permanent, uniform and universal. State v. Fry, 4 Mo. 120; Cocke on Civil Government, sec. 142; Cooley on Cons. Lim. (3 Ed.) pp. 79 and 391; Ervinés Appeal, 16 Pa-. St. 266.

Louis Circuit Court. — Hon. Sherarb Barclay, Judge. The whole spirit of the different provisions in re-r lation to the office of justice of the peace, as they now exist upon the statute book, is to the express end and purpose that justices shall be elected or appointed for four years, and that where a vacancy occurs, it must be filled for the unexpired term of the former incumbent or “ until the next general election of county officers at which justices of the peace can be…

— Hon. N. M. G-ivan, Judge. (1) The action was not for a debt contracted upon part of defendant, but grew out of a tort and the attachment could not be sustained upon the ground alleged— that “ the debt sued for was fraudulently contracted upon part of defendant.” And a waiver of the tort did not change the facts in the case, or cause the thing in action to arise out of contract.

Louis Court of Appeals. (1) The several objections urged by defendant against the tax deed offered in evidence by plaintiff, were well taken, and he was not entitled to recover the possession of the land thereunder. This is conceded. The tax deed, therefore, did not convey the title of the land to plaintiff’s grantor, but only operated to vest in him the tax lien formerly held by the state. State to ios& Rosenblatt v. Herman, 7 Mo. App. Rep., p. 420.

— Hon. E. L. Edwards, Judge. (1) The plaintiff, as the administrator of Frank S. Bradley, had the right to dispose of the interest of the deceased in the partnership. 2 Williams on Executors, p. 1006.

— Hon. Gr. H. Burckhartt, Judge. (1) The objection of appellant to the introduction of any evidence under the petition should have been… Held: that it must be such as contributes directly to the accident — must be the proximate cause. Wharton on Negligence, secs. 323, 4, 5, 6, 335, and 343 ; BuescMng v. The St. Louis Gas Light Co., 73 Mo. 219 ; Whalen b. Sf. L., K. C. & N. By. Co., 60 Mo. 323; Meyers v. Chicago, B. I. & Pac. By. Co., 59 Mo. 223; Burham n. St. L. & I. M. By.