Volume 88 — Missouri Appeal Reports

— Hon. James Gibson, Judge. (1) The plaintiffs have no personal claim against the defendants, Myers, but seek in this action (as is sought in the Dwyer case for plaintiffs personal debt) to charge the property of these defendants with the personal debt of Matt. O’Connell, the defaulting contractor. The plaintiffs themselves are in default as to the Dwyer claim, just as Matt. O’Connell seems to be in default upon the plaintiffs’ claim in this case.

— Hon. James Gibson, Judge. (1) Parties furnishing material for improvements upon land had no lien at common law. The lien of a mechanic and materialman is of statutory creation and the right thereto is strictly construed. The lien claimant must be within the very terms of the statute or he is not to be deemed included therein. Phillip Mechs. Liens, secs. 48 to 52.

Louis City Circuit Court. — Ron■ Franklin Ferris, Judge. The court erred in overruling defendant’s objections to the admission of any evidence under the petition, being in the nature of a demurrer to the petition, because the petition failed to describe the nature, size or character of the structure in which it was claimed the brick sued for were used, and did not describe any structure or improvement whatever, but only described the ground, hence did not state facts…

<p>1. Practice, Appellate: MANDAMUS ALTERNATIVE WRIT. No appeal lies in this State from a judgment denying an alternative writ.</p> <p>2. -: -: PEREMPTORY WRIT. An appeal lies from a judgment awarding or refusing a peremptory mandamus.</p>

<p>Appeal from Scotland Circuit Court. — Hon. Edwin B. McKee, Judge.</p> <p>(1) The court instructs the jury that the city of South Gorin had the right, under the law, in order to secure to its inhabitants thereof the general health of the city, to prevent and remove nuisances, therefore, if you shall believe from the evidence that the basement of the building in controversy, had become in such condition by reason of water, horse manure and other filth having accumulated therein and by reason of which it stunk and was dangerous or detrimental to the public health of the inhabitants thereof; then the city had a right to prevent and abate the same. This instruction should have been given, as our statutes expressly provide that cities of the fourth class in this State have authority to abate and remove nuisances. Sec. 5964, R. S. 1899.. '(2) The instructions given at the instance of the respondent were erroneous and misleading. They in effect told the jury that the city of South Gorin had no right to fill in the basement of the barn. This we claim was gross error. Kirchgrober v. Lloyd, 59 Mo. App. 59; Whipple v. McIntyre, 69 Mo. App. 397. (3) The law makes it the absolute duty of this city (and this law applies to cities of the fourth class) to remove a nuisance created within its limits, and holds it liable for damages resulting from a neglect of that duty. Sallee v. St. Louis, 152 Mo. 615.</p> <p>(1) When the defendants undertook to abate the nuisance in question, it did so at its peril. Beach on Municipal Corporations, sec. 1020. They occupy the same position as private individuals. (2) The virtual effect of such an abatement is to deprive the owner of his property without due process of law, and besides, it confers judicial power upon the board of trustees, or aldermen. (3) The right to abate a nuisance is more upon the theory of self-defense. Raymond v. Eish, 51 Conn. 99. This was the abatement of a nuisance by the virtual destruction of the property, and was tbe taking of property for public use, which could only be done by compensation. Beach on Municipal Corporations, sec. 1022.</p>

<p>Appeal from Newton Circuit Court. — Hon. H. O. Pepper, Judge.</p> <p>(1) The temporary injunction issued in vacation was void, the plaintiffs not having filed in the office of the clerk of the circuit court having jurisdiction of the suit, their petition setting forth their cause of action. R. S. 1899, sec. 3629 ; Powers v. Wright, 39 Mo. App. 205; 12 Ency. Plead, and Prac., p. 120, sec. 2. It was evidently the purpose and object of the amendment to section 2702, Revised Statutes 1879 (now section 3629, Revised Statutes 1899), to make the filing of the petition setting forth plaintiff’s cause of action a condition precedent to the issuing of the writ, the remedy of injunction being ancillary and in aid of a pending suit.</p> <p>(1) It is doubtful if this question is before the court ujoon the record proper. The file mark of the clerk upon the petition is prima facie evidence only of the true date of the filing. The file mark of the clerk may be wrong; it may be an impossible date or it may be omitted. In all cases parol evidence is admissible to show the true date of the filing of the petition — that is, the date of its actual delivery to the clerk. Grubbs v. Oones, 57 Mo. 83; Bensley v. Haeberle, 20 Mo. App. 648. (2) In the absence of a bill of exceptions and of any evidence, this court is bound to presume that the lower court acted within its jurisdiction and at the time of granting the temporary injunction, as well as at the trial of the cause assessing damages upon the bond, the court had before it evidence, and found as a fact, that the petition was actually filed before the restraining order was issued. Vaughn v. Railroad, 34 Mo. App. 140; Guinn v. Boas, 31 Mo. App. 131. (3) Sureties, as well as principals in an injunction bond, are estopped to deny the jurisdiction of the court granting the injunction, or that such a suit was pending as is described in the bond. 2 High on Injunctions, secs. 1637-1652; 16 Ency. of Law (2 Ed.), 452 and 458; 10 Ency. of Pleading and Practice, p. 1120; Stevenson v. Miller, 13 Am. Dec- 271.</p>

— Hon. Elliot M. Hughes, J udge. Instruction No. I is misleading. It ignores the ownership of the note and leaves out of consideration entirely the question of plaintiffs knowledge of the ownership of the note.

— Mon. W. N. Evans. Judge. STATEMENT OE THE CASE BY THE COURT. This is a replevin for sixty head of cattle branded with a circle “0” on the right hip.

<p>Appeal from Cape Girardeau Court of Common Pleas. — Hon. F. F. Burroughs, Judge.</p> <p>The appellate court will reverse a case where the trial court has exercised unsound judicial discretion in overruling an application for continuance. Barnum v. Adams, 31 Mo. 532; McLane v. Harris, 1 Mo. 700; Tunstall v. Hamilton, 8 Mo. 501. In an application for a continuance, if the affidavit shows materiality of the evidence on the trial of the cause and proper diligence has been used, then to refuse a continuance would be an exercise of unsound discretion. The Supreme Court has said, “If there were any circumstances that induced the court to refuse a continuance, they were perhaps to be found in the fact, that two continuances had been .previously made in the same case, and one of them at the instance of the same party. But I can not think that even this indulgence</p> <p>should deprive a party of his legal rights, when his affidavit shows the materiality of the evidence, and'degree of diligence that could be expected. The court should have given the party an opportunity of getting his testimony,” and for overruling the application the case was reversed. Moore et al. v. McCullough, 6 Mo. 444.</p> <p>A motion for a continuance is addressed to the sound dis cretion to the court where the trial is had. And a refusal of the court to grant a continuance is entitled to every intendment in its favor. King v. Pierce, 49 Mo. 222; Loebe v. Goode, 67 Mo. 136; State v. Maddox, 117 Mo. 667; State v. Parker, 106 Mo. 217; State v. Banks, 118 Mo. 117. The unavoidable absence of a party furnishes no ground for*a continuance when it does not appear that he was a material witness for himself and that it was impossible to take his deposition before the trial. Hurck v. St. Louis Exposition, 28 Mo. App. 629.</p>

<p>Appeal from Lincoln Circuit Ooui't. — lion. Elliott iff. Hughes, J udge.</p> <p>(1) It being shown by the deed of trust and the defendant’s deed to Charles Berkley that he received $6,337.57 more than was due on the secured debt, and that he had not paid this to defendants in the execution before the garnishment, and the amount of that difference being so much in excess of reasonable and ordinary costs in such sales, the burden of proof was thrown upon defendant. Young v. Powell, 87 Mo. 128; Read v. Railroad, 60 Mo. 206; Waples on Attach, and Gar. 377; Moore v. Ryan, 31 Mo. App. 481; Hoffman v. Hoffman, 126 Mo. 495. .(2) Had the Berkleys sued defendant for the difference between the amount of sale and amount due on the debt and had shown the same facts, there would be no question but they would have been entitled to judgment. The plaintiff in this case acquired the same rights by his garnishment as the Berkleys had.' Karnes v. Pritchard, 36 Mo. 135; Johnson v. Geneva Pub. Go., 122 Mo. 102; Eenton v. Block, 10 Mo. App. 539. (3) There is no question about defendant’s liability to plaintiff for the difference between the debt and amount of the sale. Price v. Blankenship, 144 Mo. 203.</p> <p>(1) The answer of garnishee must stand until evidence is produced to overthrow it. Holton v. Railroad, 50 Mo. 151. (2) It is the well-settled law of this State that a garnishee’s answer is prima facie evidence of the facts therein stated, whether it contains a simple denial or affirmative matter, and must be taken as true until disproved. Hopkins v. Huff, 67 Mo. App! 394-397; Bunker v. Hibler, 49 Mo- App. 536. (3) After garnishee in his answer under oath denies any liability whatever, and plaintiff alleges a liability on part of garnishee, the burden of proving the latter allegation is upon the plaintiff, even though it appear in evidence that garnishee had, prior to garnishment, received money or property of execution defendants. Bunker v. Hibler, 49 Mo. App. 536.</p>

<p>Appeal from Butler Circuit Court. — Eon. J. L. Fori, Judge.</p> <p>No briefs furnished Reporter.</p>

<p>Appeal from St. Louis City Circuit Court. — lion. Pembroolc R. Filter aft, Judge.</p> <p>“A contract signed by tbe president and secretary of a private corporation will be presumed to be within the powers of these officers in the absence of evidence to the contrary.” The notes and assignments offered in evidence were prima facie the valid and authorized acts of the corporation. Winseott v. Investment Co., 63 Mo. App. 367; Mo. Eire Clay Wks. v. Ellison, 30 Mo. App. 67, loe. eit. 71; Bambrick v. Campbell, 37 Mo. App. 460.</p> <p>Hid the president and secretary of the Walsh Eubber Company have authority to make the assignments to appellant? E. S. 1899, sees. 973 and 1322; McKeag v. Collins, 87 Mo. 164; Hyde v. Larkin, 35 Mo. App. 365; Hutchinson v. Green, 91 Mo., loe. eit. 375; Webb v. Lumber Co., 68 Mo. App. 546; Calumet v. Haskell, 144 Mo. 331; Kane v. School District, 48 Mo. App. 414.</p>

<p>Appeal from Clark Circuit Court. — Hon. Hdwm B. McKee, Judge.</p> <p>(1) Tbe seventh instruction was predicated on the fact and on the count that the defendant, before the day set for the consummation of the marriage, absolutely refused to marry the plaintiff. One who contracts to marry at a future day, and before that day arrives refuses to perform the contract, at any time is instantly liable to an action for breach of the contract. Holoway v. Griffeth, 32 Iowa 409; Crabtree v. Messersmith, 19 Iowa 179; Bnrtis v. Thompson, 42 N. Y. 246. This instruction was not given to cover the whole case, but only one issue, which can be done and is not error. Daugherty v. Railroad, 97 Mo- 64-7; Muchlhausen v. Railroad, 91 Mo. 332; Eletcher v. Milburn Manf. Oo. 35-Mo. App. 321. Instructions which are in themselves correct will not afford ground for reversal because they authorize a verdict for plaintiff on his theory of the case without embracing in the same instruction, facts constituting the defendant’s theory. (2) The court erred in overruling the motion of the plaintiff to strike out all of the affidavits filed by the defendant in support of motion for a new trial, for the reason there was no grounds or reasons alleged or contained in said motion for a new trial based on the grounds of newly-discovered evidence, ard all of said affidavits were filed more than four days from the rendition of said verdict (in fact nearly one month thereafter). Motions for a new trial addressed to the trial court, should be specific, and no reason not specified shall be urged in support of said motion). Yanstine v. Goodwin, 42 Mo. App. 39; Alexander v. Railroad, 64 Mo. App. 66; Huppert v. Weisgerber, 25 Mo- App. 95; Stone v. Wolfskill, 59 Mo. App..441. (3) The court of its own motion could not set aside a verdict for causes authorized by the statute prior to the enactment of the statute of 1891 (Laws of 1891, page 70), which first conferred the right of appeal from an order granting a new trial, the discretion of the trial court in vacating its own judgments during the term was only subject to review when such discretion was arbitrarily or oppressively exercised. But since the enactment of the statute, that discretion is subject to review as any other order. Morris v. Morris, 60 Mo. App. 86; Murphey v. Derrance, 23 Mo. App. 337.</p> <p>(1) Instruction No. I, as asked by the plaintiff, directed the jury that if they should believe from the evidence that the contract of marriage was to be consummated during the month of December, 1899, and that defendant, before said date, failed and refused to marry the plaintiff, they should find for the plaintiff. The instruction was based solely on the allegation in the petition supported by the plaintiff’s evidence alone, and denied by the defendant, and excluded from the consideration of the jury the defendant’s defense. The instruction entirely ignored the issues made by the pleadings. The giving of the same constituted error, which justified the court in granting a new trial. Laughlin v. Gerardi, 67 Mo. App. .372; Jacquin v. Grand Ave. Gable Co., 57 Mo. App. 335; Welsh v. Edmisson, 46 Mo. App. 287; McDonald v. Railway, 32 Mo. App. 75, and cases cited. (2) The court had a right to grant a new trial on its own motion, in furtherance of justice, if for any reason he believed an injustice and wrong had been done. Head v. Randolph, 83 Mo. App. 287; Scott v. Smith, 133 Mo. 618-22; Wight v. Railroad, 20 Mo. App. 481.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>STATEMENT OF THE CASE.</p> <p>Tbe appellant-, Leo Moser, is, and for many years bas been, tbe owner and proprietor of tbe Moser Hotel, situated on Pine street in tbe city of St. Louis. Tbe hotel is conducted on tbe European plan and is divided into two apartments, a sleeping or rooming apartment and a restaurant, both in tbe same building and under tbe same roof. Both are entered from Pine street (tbe Main entrance) through the same door. Tbe first floor is taken up by a rotunda, hotel office, restaurant, an elevator,- stairway and kitchen. The rooming apartment is on tbe second floor and is reached either by tbe elevator or by a stairway running up from tbe first floor. Persons who wish to avail themselves of tbe use of a room in tbe hotel, register at tbe hotel office on tbe first floor and pay their rooming bills there. Those who take meals at tbe restaurant, whether rooming in tbe hotel or coming in off tbe street, receive meal checks from tbe waiters and deliver these checks and make payment for their meals to the cashier of the restaurant, who is stationed to the right of the entrance way to the restaurant. It is optional with a roomer in the hotel to take his meals at the restaurant or go elsewhere. The hotel and restaurant are conducted as separate and distinct apartments, but both under the supervision of appellant to whom they belong. Parties patronizing the restaurant only, are permitted to deposit bundles and packages with the hotel clerk, to be taken care of while they take their meals. The rotunda is provided with writing desks and materials, with benches and chairs, and is used. by persons wbo tale rooms in the hotel and by such of these who take meals at the restaurant as may desire to do so by the permission of Moser.</p> <p>Moser had in his employ one Tony Schmidt as a watchman, whose duties were to stand on the stairway leading to the second floor and overlooking the restaurant, and see that none left the restaurant without paying their meal checks and to see that everything was going on right, and if any one came in that had no business there to put him out. The evidence is that this servant was a burly, strong man with a violent temper and that this fact was known to Moser. On November 10, 1895, the respondent and Thomas Stern, both shippers and dealers in live stock, met in St. Louis and agreed to go to Jefferson City that night over the Missouri Pacific Railroad. The train they agreed to take left Union Station at 8:30 o’clock p. m. About four o’clock in the afternoon they went together to the Moser Hotel. Stern registered and went to bed, first requesting respondent to awake him in time to eat his supper and get to the station for their train. Respondent had a bundle (a cloak for his daughter) and this with his hat and overcoat he handed to the clerk, stating that he would not take a bed as he could not sleep in the daytime, that he would eat his supper and sit around until time for his train. To this the clerk assented, took the bundle, hat and overcoat and put the bundle under the counter. Respondent sat around and read until about six o’clock, then ate his supper. ' After eating his supper he asked the hotel clerk to have Stern called; the clerk told him he certainly would do so and had him called. Stern came down unobserved by respondent and went into the restaurant for his supper. Respondent, fearing that Stern had not been wakened, went to a bell boy and expressed his fears and also asked him for the number of Stern’s room. On being informed that it was No. 31, he went up the steps and into the hall looking for Stern’s room. Schmidt followed him and when he had reached the top of the steps ordered respondent down. Respondent asked him if he thought he was-a thief; Schmidt again ordered him down, when respondent said “AH right Colonel,” and started down the steps. After he had descended two or three steps, his evidence is that Schmidt took him by the arm and that he told him to let go. Schmidt did not let him go and he attempted to pull loose when Schmidt took hold of him threw him down the steps with such violence that one of his shins was badly lacerated and torn and one of his shoulders was dislocated; that Schmidt followed him down to the bottom of the steps where he had landed and again grabbed hold of him and tried to put him out of the hotel, when bystanders interfered and Schmidt ran up stairs and disappeared.</p> <p>To recover damages for the assault and injuries, this suit was brought.</p> <p>The answer denied that respondent was a guest of the hotel, alleged that respondent wrongfully tried to enter a room of a guest of the hotel and that while Schmidt was peaceably trying to protect the guest from intrusion, respondent cursed and abused him and disturbed the occupants of the hotel and that he first assaulted Schmidt and that the injuries, if any were inflicted, were wholly the result of Schmidt defending himself against the assault made upon him by the respondent. On the part of the appellant the evidence tended to prove that, in his effort to get loose from Schmidt when he (Schmidt) first took him by the arm to lead him down the stairs, the respondent slipped and fell and rolled down the stairs, and that he was not pushed or shoved down by Schmidt. On the evidence and under the instructions of the court, the jury awarded respondent $500 damages.</p> <p>(1) Whether he entered the hotel as a guest or not, appellant is not liable for the willful acts of his servant, or for any altercation brought on by the respondent with the servant. And it is difficult to gather from the evidence anything short of an altercation brought on by respondent with the servant, or of a design on the part of Tony Schmidt to resent Over-street’s command, “Let me tell you a thing, don’t you put your hand on me another time,” by throwing him down the steps, and for these appellant would not be liable. Williams v. Palace Car Co., 33 Am. and Eng. R. Cas. 40V; Wright v. Wilcox, 19 Wend. 343; Wood v. Railroad, 52 Mich. 402; Curtis v. Denneen, 4 Dak. 245 ; Douglas v. Stephens, 18 Mo. 363; Garretzen v. Duenckel, 50 Mo. 104. (2) The evidence of the discharge of a negligent servant for injury he has committed, is inadmissible and can not be even used as an admission of such servant’s negligence. 1 Wharton on Evidence, sees. 40 and 1139; Couch v. Coal Co., 46 Iowa 17; Campbell v. Ryan, 45 Iowa 16; Lee v. Nelms, 57 Ga. 253.</p> <p>(1) “To establish the relation of landlord and tenant the traveller must visit the hotel for the purpose of availing himself of the entertainment offered, that is to obtain refreshments or lodging.” Bunn v. Johnson, 11 Mo. App. 599. The uneontradicted evidence shows that Overstreet was a “traveller,” and that he visited the hotel “for the purpose of availing himself of the entertainment offered,” that is, to obtain his supper, and to put up at said hotel, and, if possible, take the train that night for Jefferson City. (2) The case of Norcross v. Norcross, 53 Maine 169, directly holds “ a license does not change the character of the business of those who entertain travellers. The possession of it does not make, nor tbe want of it prevent a person from being an innholder at common law; it is bis business alone that fixes tbe status of a party in this respect. A license saves an innholder from tbe penalty of being an innholder without license, bnt the want of it does not save him from the liability to his guests.” Norcross v. Norcross, 53 Maine 169. The test question is, was Overstreet a “traveller or wayfarer,” and was he “received and entertained as such.” Norcross v. Norcross, 53 Maine 169. (3) The act of Schmidt in this case</p> <p>was within the line of his duties, employment and agency, and what he did he did under the authority given him by Moser, and Moser does not contradict this, that Schmidt was to use his judgment as to when, and what force was necessary to put people out. Then, again, the testimony of Tony Schmidt, offered in evidence by appellant, showed that Schmidt was re-employed by appellant, Moser, after his discharge for the assault on respondent, Overstreet, at an advance in salary over what Moser was paying him at the time of the assault. The jury had a right to infer from this evidence that Moser had ratified and approved Schmidt’s conduct in the latter’s assault on Over-street. Goddard v. Railroad, 57 Maine 205.</p>

— Hon. James T. Neville, Judge. (1) Where a creditor bas knowledge that bis debtor is insolvent witbin tbe meaning of tbe bankrupt act, or bas sucb knowledge as would put a prudent man on inquiry, and receives a payment, it follows as a necessary inference tbat be bas reasonable cause to believe it was a preference, but be can avoid this inference by showing that a proportionate amount was paid or secured to other creditors. Pepperdine, trustee, v. Bank, 84 Mo. App. 234.

Louis City Circuit Court. — Mon. James E. Withrow, Judge. STATEMENT OK THE CASE. This is a petition for equitable relief.

Louis City Circuit Court. — Eon. Rudolph Eirzel, Judge. STATEMENT OE THE CASE. Held: as in this case, that though a person, through want of care, places himself in a situation of peril from another, yet if that other, by obeying its legal duty, discovers the peril of the erring unfortunate one in time to avert inflicting injury upon him by the exercise of the degree of care exacted by the law, and neglects to do so,…

— Hon. Rudolph Hirzel, Judge. STATEMENT OE THE CASE. Tbis is a suit in equity by Charles Jaeobsmeyer, Sr., and Charles Jaeobsmeyer, Jr., against Eritz Jaeobsmeyer and Henry Brehe.

Louis City Circuit Court. — Eon. Franklin Ferris, Judge. STATEMENT OE THE CASE.

Louis City Circuit Court. — Hon. John A. Tatty, Judge. STATEMENT OE THE CASE.

Louis City Circuit Court. — Hon. William Zachritz, Judge. STATEMENT OF THE CASE. This suit is for injuries sustained by plaintiff, after-alighting from a car of defendant at the intersection of Knox and Manchester avenues, and proceeding to cross the tracks of defendant, when she was struck by a ear going in the opposite direction from the one upon which she had been carried. The defense was contributory negligence.

Louis County Circuit Court; — Ron. Rudolph Rirzel, Judge. STATEMENT OF THE CASE. Plaintiff seeks to enforce a mechanics’ lien for $150, the balance claimed to be due for building a dwelling house for defendants. The suit was begun before a justice; taken by appeal to the circuit court, where it was submitted to the judge for decision, with a request to state his findings of fact and law separately and in writing. This was done.

Louis City Circuit Court — Hon. Franklin Ferris, Judge. STATEMENT OK THE CASE. This is an action for $83.70, being discounts allowed defendants on monthly bills for electricity supplied to them from the first day of February, 1898, to about the first day of May, 1899, when they ceased to further use this illuminant, having removed from the building in which it had been served by the plaintiff under a contract by them embracing the following provisions: “Second.

<p>1. Notes, Promissory: MAKER: ASSIGNMENT OP NOTE BY PAYEE: CONTRACT OP ASSIGNMENT, CHAMPERTOUS. The maker of a promissory note, not being a party to the contract between the payee and assignee, is in' no position to take advantage of the illegality of the contract, although it be conceded ehampertous.</p> <p>2. -: -: PAYMENT TO ASSIGNEE: PROTECT MAKER. Payment to the assignee of the ehampertous assignor, would protect the maker against the claim of payment by another claimant of the notes.</p> <p>3. -: -: CHAMPERTOUS CONTRACT. A party will not be deprived of relief because the contract on which he is prosecuting his suit is infected with champerty, when not seeking to enforce such ehampertous contract. It will be time to defend against it when sought to be enforced.</p>

— Hon. Henry Olay Pepper, Judge. Thornton on Gifts and Advancements, section 556, says: “The statute itself (English statute of distribution, now common law) would raise a presumption without the aid of what is known to be the common understanding that, when a father makes a deed of gift to a child, he intends the gift to be an advancement and such is the doctrine of the decisions.” And again in section 602 the same author says: “And where the deed from a parent to a child…

Louis City Circuit Court. — Hon. James B. Withrow, Judge. STATEMENT OE THE CASE. Tie Jefferson Club Association was organized under chapter 42, article 10, Revised Statutes 1889 (chapter 12, article 11, Revised Statutes 1899).

— Hon. Edwin B. McKee, Judge. (1) It is a well-settled principle of law that the plaintiff, in garnishment proceedings, simply steps into defendant’s shoes, and acquires his rights, no more, no less. He stands upon defendant’s rights, and is in no better condition than the latter would be if he were prosecuting the suit. Any defense that would be good against the latter is available against the plaintiff. Eood on Garnishment, sec. 46; Johnson v. Geneva Pub.

Louis Court of Criminal Correction. — Hon. IWillis Clark, Judge. (1) The Nelson Distilling Company, in whose employment defendant was engaged when he made the sale complained of, was a manufacturer under the laws of this State.

<p>Appeal from St. Louis City Circuit Court. — Hon• William Zachritz, Judge.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) Appellate courts will reverse judgment in cases where the verdict is against the conceded facts; or, where it is contrary to documentary evidence; or, where plaintiff’s testimony supports the allegations of his petition and is unimpeaehed, and there is no substantial countervailing evidence. Garrett v. Greenwell, 92 Mo. 120; Ackley v. Staehlen, 56 Mo. 558; Lionberger v. Pohlman, 16 Mo.

Louis City Circuit Court. — Ron. James E. Withrow, Judge. The court erred in giving the instruction that plaintiff could not recover. Haynes v. Railroad, 54 Mo. App. 585; Hance v. Express Co., 48 Mo. App. 183; Witting v. Railroad, 101 Mo. 631. (1) Where the shipper takes a receipt for goods limiting the liability of the carrier, knowing its terms and intending to assent to its restrictions, he is bound by it.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) In order to have the action of the court overruling the dismissal set aside, it was necessary for the defendant to do one of two things: Eirst, to file a motion to set it aside, or, second, to get a stipulation from plaintiff to that effect. If the defendant had filed a motion to set it aside without reserving a special appearance for that purpose only, this would certainly have been a general appearance.

<p>Appeal from St. Louis Court of Criminal Correction. — Hon. Willis Henry Clark, Judge.</p> <p>(1) When there are several counts in an information or indictment, a general verdict is only permitted when all of the counts charge one and the same offense. The verdict in this case is a general verdict and as such is insufficient to sustain judgment for the reasons hereinafter assigned. (2) Larceny and embezzlement are separate and distinct crimes. One is common law and the other a statutory offense. R. S. 1899, sec. 2367; State v. Harmon, 106 Mo. 635; State v. Baker, 144 Mo. 314. (3) The very language of section 2347 is, that under one charge a conviction for “another offense” shall be lawful. (4) To convict of larceny, different evidence is necessary than to convict of embezzlement and vice versa. When the evidence shows larceny and the! verdict is for embezzlement, or when the evidence makes a case embezzlement and verdict is for larceny, the verdict will be set aside and a new trial ordered. State v. Harmon, 106 Mo- 635.</p> <p>No brief filed for respondent.</p>

Louis City Circuit Court. — Hon. William Zachriiz, Judge. STATEMENT OE. THE CASE. The plaintiff is an employee of the St. Louis Oar Wheel Company, whose place of business is in the city of St. Louis. He was injured while engaged in unloading a car containing goods consigned to the car wheel company.

— 1Ion. Nat M. Shelton, Judge. (1) The language of the stipulation is equivalent to % statement that the member killed himself while sane as the act would not be of “his own hand” if he were insane when he fired the shot. This, however, is probably immaterial, as the certificate has the “sane or insane” clause,- making it void even though the act should be done if he were a.t the time in an insane condition. Riley v. Ins. Co., 25 Fed. Rep. 315; Brower v. Ass’n, 74 Mo.

— Hon. Nat M. Shelton, Judge. (1) The petition discloses that the payment of the money was voluntary, there being no present and urgent necessity on Wells’ part to pay it. Appellants’ objection to the introduction of any testimony should, therefore, have been sustained. Buchanan v. Sahlein, 9 Mo. App. 552; Schell City v. Mfg. Co., 39 Mo. App. 264; Ass’n v. Hehlor, 7 Mo. App. 158; Wolfe v. Marshal, 52 Mo. 161; Dustin v. Earrelly, 81 Mo. App. 380; De La Cuesta v. Ins.

— Hon. John A. Hoclcaday, Judge. (1) The transcript of the record of a justice of the peace should show on its face affirmatively every fact essential to confer jurisdiction. Nothing can be presumed, implied or inferred dehors the record. Warden v. Railroad, 78 Mo. App. 664; Barhydt v. Alexander, 59 Mo. App. 189; Klein v. Wielaridy, 15 Mo. App. 581; McQuoid v. Lamb, 19 Mo. App. 153; Haggard v. Railroad, 63 Mo. 302; Fulkerson v. Davenport, 70 Mo. 541, 545.

— Hon. J. W. Wofford, Judge. (1) If the defendant is held to be an ice dealer; then the ordinance is unconstitutional and void. Kansas City v. Grush, 151 Mo. 128; St. Louis v. Speigel, 75 Mo. 145; St. Louis v. Speigel, 90 Mo. 587. (2) We contend, however, that the defendant was a manufacturer of ice and not an ice dealer, and that no power exists in the municipality to exact a license of a manufacturer. Kansas Oity v. Grush, 151 Mo. 134; Kansas Oity v. Lorber, 64 Mo.

— Son. John A. Soclcaday, Judge. (1) The point is pressed by respondent that the bill of exceptions could not be filed after the death of Hombs. Respondents cite the case of Murphy v. Redmond, 46 Mo. 317. It was there held that a motion for a new trial could not be passed upon after the death of one of the parties to the suit. This was expressly overruled in State ex rel.

— Hon. P. G. Stepp, Judge. (1) A city of the fourth class can act only by an ordinance duly and legally passed. And ordinances, like private statutes, must be specially pleaded. There being no ordinance pleaded in this case, the bond and contract are ultra vires and absolutely void and no evidence should have been admitted under the pleadings. R. S. 1889, sec. 1652; R. S. 1889, sec. 1589; Mfg. Co. v. Schell City, 21 Mo. App. 175; Thrush v. City of Cameron, 21 Mo.

— Hon. Benjamin J. Oasteel, Judge. (1) The statute requires that the information shall be signed by the prosecuting attorney. R. S. 1899, sec. 2477. (2) If we concede for the sake of argument that Mr. Shultz as assistant prosecuting attorney possessed the power to make and file an information, still that power could be exercised only in the name of his principal.

Jackson Circuit Court. — Hon. John W. Henry,. Judge. (1) The suit was prematurely brought. Charter of Kansas City, sec. 20, art. 9. (2) The issue submitted by the court to the jury was only as to the indebtedness from defendant Walsh to relator, and upon the determination of this issue the court had no right to enter judgment against the other defendants.

— Son. Nat. M. Shelton, Judge. (1) The city is not liable for any acts where it has no jurisdiction of the subject-matter, or that are not within the scope of its powers. Dillon on Mun. Corp. (3 Ed.), sec. 968; Beach on Public Corp. secs. 762, 763, and notes, and cases cited in notes- Worley v. Inhabitants of Columbia, 88 Mo. 106.

— Hon. Paris G. Stepp, Judge. (1) This action can not be maintained and the finding and judgment should have been for defendant. The evidence is undisputed and the court found that the note in question was dated February 9, 1898, due one year after date, and that about the time it became due it was extended for another year or until February 9, 1900, while this suit was commenced December 5, 1899, more than two months before the note became due.

— Ron. Gallatin Oraig, Judge. (1) The loan to plaintiff was not usurious because made to him in strict compliance with the statute of Missouri. R. S. 1889, secs 2812; Laws 1895, p. 108, secs. I and 9; Brown v. Archer, 62 Mo. App. 290; Hughes v. Ass’n. (Tenn.), 46 S. W. Rep. 362; Eng. & Tr. Co. v. Donovan, 147 Mo. 622.

— Hon. Alonzo D• Bumes, Judge. (1) Tbe first instruction given by tbe court for tbe plaintiffs and excepted to by defendant, is erroneous because it assumes that the mortgage to plaintiffs sufficiently describes the hogs therein, and wholly ignores the evidence and the issue concerning the identity of the mortgaged property; and it, in effect, told the jury to disregard it. Bank v. Metcalf, 29 Mo. App. 384; Hoffman v. Parry, 23 Mo.

— Hon. Alonzo D. Burnes, Judge. (1) Plaintiff’s petition is not sufficient to constitute a cause of action for divorce, and does not give the court jurisdiction to try the cause. R. S. 1899, sec. 2921. In every case where a divorce is sought, it should appear plainly on the face of the petition that the facts giving jurisdiction to the court exists; and if they do not appear on the face of the petition, the court can take no valid step. Werz v. Werz, 11 Mo. App. 26.

— Hon. Alonzo D. Burnes, Judge. (1) It was within the power of the plaintiff city to contract for the payment of the premium sued for. • State ex rel. v. St. Louis, 145 Mo. 551; St. Louis v. Tel. Co., 148 U. S. 102; City of St. Louis to use v. Yon Phul, 133 Mo. 561; Dillon on Mun. Oorp. (4 Ed.), sec. 706. (2) The defendants can not raise the question of ultra vires because the contract in controversy is executed. Dairy Co. v. Mooney, 41 Mo. App. 665.

— Hon. Alonzo D. Burnes, Judge. In order that the plaintiff be entitled to recover, she had a general or special property in the chattels taken, and the right of immediate and exclusive possession. Turner v. Langdon, 85 Mo. 1. c. Ml; Scott v. Riley, 49 Mo. App. 251; Rosentreter v. Brady, 63 Mo. App. 398; Deyerle v. Hunt, 50 Mo. App. 541; Dillard v. McClure, 64 Mo. App. 488; Talbott v. Magee, 59 Mo.

— Hon. Alonzo D. Bumes, Judge. STATEMENT BY BROADDUS, J. The defendants have appealed from an order of the circuit court overruling their motion for a “writ of assistance.” The defendants and appellants on the twenty-second day of September, 1896, began an action of forcible entry and detainer against the plaintiff (and two other persons who went out and were not served) for a certain tract of land in Platte county, near the Missouri river, alleging that they were…

— Hon. W. K. James, Judge. (1) Appellant had obtained judgment against Robert S. Meyer, administrator, in the probate court of Holt county and the administrator was not subject to garnishment, for that reason. Garnishment is not the remedy where the indebtedness has been reduced to judgment. Tourville v. Railroad, 148 Mo. 623; 14 Ency of Law, p. 778, notes 1, 2, cases cited; State ex rel. v. Netherton, 26 Mo. App. 414, 1. c. 426.

— Hon. E. J. Broaddus, Judge. The judgment below, rendered as it was without either service upon or notice to the plaintiff in error, is utterly void. Bascom v. Young, 7 Mo. 1; Smith v. Eoss, 7 Mo. 464; Anderson v. Brown, 9 Mo. 646; Boaeh v. Burnes, 33 Mo. 319; Sevier v. Eoddie, 51 Mo. 585; Napton v. Leaton, 71 Mo. 367; Meyer v. Hartman, 14 Mo. App. 130. The judgment below is valid. The record shows service upon the plaintiff in error by publication. E. S. 1899, sec. 575.

— Son. E. J. Broaddus, Judge. (1) The court committed error in rejecting evidence offered by defendant to the effect that he attached the $75 in the hands of Railsback, and that he did not recover or receive anything as the result of said attachment, and, therefore, that part of the consideration of the duebill sued on had failed. Brown v. Weldon, 99 Mo. 564; Barry.

<p>1. Gifts: CONTRACT: CONSTRUCTION. A contract whereby, for sufficient consideration, a party agrees to give all his personal property to another at his death, constitutes neither a gift inter vivos nor eausa mortis.</p> <p>2. Administration: ASSETS: TITLE. The decedent’s title at his death is the criterion of the title which devolves upon the administrator, and an agreenient to give at one’s death leaves the title at that time in the donor; and the title passes to the administrator.</p> <p>3. -: INDORSED NOTES: JURISDICTION OE PROBATE COURT. A note regularly indorsed and delivered .with the intention of passing the title does not vest in the administrator, but if not so indorsed and delivered the jurisdicton to determine whether it is an asset of the estate belongs to the probate court and it should go to the administrator.</p>

— Hon. 8. P. Huston> Special Judge. (1) The mortgage nor contract were fraudulent even as to a creditor of the bankrupt, in a direct suit by said creditor, consequently they were not fraudulent as to the trustee of the debtor. (2) Trustee in bankruptcy can not avail himself of an equitable estoppel which may exist in favor of a particular creditor. (3) The mortgage and contract were not preferences under the bankruptcy act.

— Hon. Edwin B. McKee, Judge. (1) This machine was sold upon an express written, conditional warranty which was given after the respondent had used the machine for the season of 1895. Therefore, he is confined to the conditions attached to the said written contract. Wood Machine Oo. v. Babbst, 56 Mo. App. 427. The contract in that case is similar to the one under consideration. The contract as set out in the case of Kingman & Oo. v. Schulenberger, 64 Mo.

<p>1. Teacher and Pupil: RIGHT OR TEACHER TO PUNISH PUPIL BY WHIPPING: REASONABLE PUNISHMENT. A teacher has a right to inflict reasonable punishment, for misconduct, by whipping.</p> <p>2. -: -: -: MALICE. But such punishment in any degree can not be inflicted maliciously, namely, without provocation. There is no such thing as reasonable punishment from a malicious motive.</p> <p>3. -: -. It must be administered for a salutary purpose to maintain the discipline and efficiency of the school.</p> <p>4. -:-:-: AIDER AND ABETTOR. If excessive flogging or other punishment is inflicted, the teacher, and all who encourage, aid or abet him, are answerable, regardless of whether the motive which prompted him or them was malicious or not. .</p> <p>5. -: -: -: DIRECTORS AS TORTFEASORS. If the school directors advise or encourage an immoderate whipping or assist in it, they are liable, whether their motive was malicious or not.</p> <p>C. Instruction: DISPUTABLE PRESUMPTION: EVIDENCE: JURY. A disputable presumption should not be mentioned in instructions to the jury when there is evidence tending to disprove it.</p>

— Hon. Andrew Ellison, Judge. STATEMENT OE THE CASE. Omitting caption, the petition is as follows: “Plaintiffs, for amended petition, leave of court for that purpose being had, state that they are husband and wife, and that defendant, Arthur Lee Sparks, is a minor under the age of twenty-one years. “That plaintiffs sold and conveyed to the defendant, Elizabeth Mossin, on the-day of July, 1897, the following real estate in Shelby county, Missouri, to-wit: Lot number five and…

- — Hon. William N. Evans, Judge. STATEMENT OE THE CASE. Suit is to recover damages from the defendants for cutting ápd removing pine timber from the northwest quarter and southwest quarter, section 19, township 25, range 5 in Oregon county, Missouri, and to restrain defendants from committing waste thereon. The answer was a general denial.

— Hon. Eclwin B. McKee, Judge. STATEMENT OF THE CASE. Upon a settlement of tbe accounts of Charles E. Blair, a resigned administrator of the estate of William E. Wiley, with George R. Davis administrator de bonis non of said estate, the probate court of Clark county found a balance of $820.52 in the hands of said C. E. Blair, together with a title paper to a town lot in the city of Oklahoma, which belonged to the estate of the decedent, and which the court thereupon ordered…

<p>1. negligence: CONTRIBUTORY NEGLIGENCE. The doctrine, known as the humane doctrine, prevails in this State and is to the effect that the plaintiff may recover in an action for negligence, notwithstanding his negligence directly contributed to his hurt, if the defendant by ordinary care could have prevented the accident.</p> <p>2. -:--: -: INSTRUCTION. And in the case at bar, the only ground of recovery submitted to the jury was the alleged negligence of defendant's motorman in not using ordinary care to avoid injuring plaintiff after he knew, or by proper care might have known, the latter was in a dangerous position, and an instruction presenting this view of the ease to the jury was properly given.</p>

— Hon. Elliot M. Hughes, Judge. (1) Tbe term “bailment” implies that tbe owner of tbe property bas placed it in tbe bands of another, wbo is, at some time, to redeliver it to tbe owner in its integrity, or in an altered form agreed upon. O’Neal v. Stone, 79 Mo. App. 279; Story on Bailments, sec. 2; 2 Kent’s Com., 558; 2 Stepb. Com., 129; Burril’s Law Die., p. 126.

Louis City Circuit Court. — Son. William Zachribz, Judge. (1) The plaintiff failed to establish his case by his evidence in chief, by failing to show that the admitted fault in the articles manufactured by him was due to the orders of the defendant; by failing to show that he had followed the sample, and by failing to show an account stated.

— Eon. L. B. Wood-side, Judge. STATEMENT OE THE CASE. The suit is on a policy of insurance issued by tbe defendant to plaintiff, insuring plaintiff’s storehouse and general stock of merchandise against loss or damage by fire. The petition is in the ordinary form. The policy, however, was not filed with the petition.

— Hon. Elliott M. Hughes, ' Judge. STATEMENT OE THE CASE. The suit was commenced in a justice’s court for the recovery of the possession of appellant’s farm, for non-payment of rent by respondents, sublessees of the original lessee. Appellant recovered judgment by default before, the justice. The cause was carried to the circuit court by appeal.

— Hon. David Henry Hby, Judge. STATEMENT OE THE CASE. On May 1,1900, Nancy Grimes, the wife of John Grimes, died childless and intestate. At the time of her death, she was the sole owner of a farm and some town property valued at from eight to ten thousand dollars. In addition thereto she owned an undivided half interest in a house and lot and fourteen acres ■of land adjoining; her husband owning the other half. She also owned a personal estate of about two hundred dollars.

- Louis City Circuit Court. — Hon. John A. Talty Judge. STATEMENT OF THE CASE. This action was brought by the payee of a note for two thousand dollars, dated February 18, 1899, due ninety days thereafter with interest at the rate of eight per cent, signed by O. Voelker Commission Company, and indorsed by O. Voelker and H. H. Laumeier.

— Hon. Elliott M. Hughes, Judge. STATEMENT OE THE CASE. This litigation has engaged the attention of the court twice before. 78 Mo. App. 561; 83 Mo. App. 253. Reference is made to those opinions for most of the facts. The appeal in the present instance is from an order sustaining respondent’s motion for a new trial. The court assigned no reason for granting it.

<p>1. Administration: ABSOLUTE PROPERTY OE WIDOW: WILL: STATUTORY CONSTRUCTION. Under tie provisions of sections 107 and 108, Revised Statutes 1899, the widow is entitled, on her application for an order on the executor of her husband’s estate, to have turned over to her the sum of four hundred dollars or personal property in lieu thereof to the value of four hundred dollars, although the will of her husband contained the following clause: “I want all of my just debts paid, cmd it is my express mil and wish and decree that my said wife and my said two daughters shall share alihe in all my real and personal property after the paying of all my jus/t- debts.”</p> <p>2. -: -: ELECTION. And this is true whether or not the widow had previously made a formal election to renounce or accept the will.</p> <p>3. ——: -: -: DOWER IN PERSONALTY. And this bounty to the widow is in reality an altogether different thing from dower in personal property, which is likewise of statutory origin, and is designed to be pro tamto, an improved substitute for the latter.</p> <p>4. -: -: -. And they resemble, in both vesting absolutely in the widow at the death of her husband, and in being exempt from the effect of his testamentary dispositions.</p> <p>5. --: -: -: ADMINISTRATION: DEBTS, EXEMPTION EROM. And they differ, in that she may select articles she desires under the administration statutes, and in their exemption from liability for the debts of the deceased (section 108, Revised Statutes 1899) whereas, the right to a share in the personalty given by section 2937, Revised Statutes 1899, is subject to his debts.</p>

<p>1. Action for Deceit: FRAUDULENT MISREPRESENTATION: PLEADING-: EVIDENCE. In order to recover in an action at law for deceit or fraudulent misrepresentation, it is necessary to allege and prove, first, that the representations were false; second, that thev were known to be false when made, or, what is tantamount to such knowledge, that they were made as of his own .knowledge by the utterer when in fact he had neither any knowledge on the subject, nor any reasonable grounds to believe tbe representations so made to be true; third, that plaintiff had a right to and did rely upon the truth of such representations, and suffered damages and loss by reason of their falsity.</p> <p>2. -: -: BREACH OF WARRANTY: FRAUD: SALE OF PERSONAL PROPERTY. Breach of warranty or fraud in the sale of personal property is ground of rescission, but the vendee is not compelled to rescind for either of these causes, for both warranty and fraud will survive an acceptance of the goods.</p> <p>3. -: -: -. In the ease at bar, although the written terms of sale of the Lindell Hotel bond were accepted by plaintiff two days before-the delivery of the bond itself accompanied by a draft for its purchase price, still the plaintiff had the right, upon the receipt of the bond, to inspect it, and if it disclosed any material misrepresentation upon the part of defendant in effecting the sale, the plaintiff might have refused to pay for the bond and returned it, thus rescinding the sale.</p> <p>4. -: -: -. He was not bound, however, to take that course, for it was equally permissible for him to have accepted the bond, paying the price therefor, and if a subsequent inspection of the bond disclosed that he had been led into the contract by means of a false representation of a fact material to its formation, he would still be entitled to an action for any damages caused by such deceit.</p> <p>5. Perpetual Lease, Meaning of Terms: COVENANT FOR RENEWAL OF LEASE. The terms “perpetual lease” can only mean one for years wherein the lessee has the covenant of the lessor for perpetual renewals.</p> <p>6. - — : -: -: NINETY-NINE YEAR LEASE. And the terms “perpetual lease” are wholly inapplicable to a mere lease for ninety-nine years.</p> <p>7. Statute of Limitations: FRAUD, DISCOVERY OF. In the case at bar, it is sufficient to say as to the statute of limitations, that according to the testimony of the plaintiff, he only discovered the fraud and misrepresentations of the defendant about one year previous to the trial of the ease. ' " ,</p>

<p>Appeal from Pike Circuit Court. — Hon. David Henry Biy, , Judge.</p> <p>STATEMENT OF THE CASE.</p> <p>This is an application by tbe widow of W. H. Glenn, deceased, to tbe probate court for an appropriation from tbe assets of said deceased in tbe bands of bis executor to supply a deficiency in tbe grain, meat and other provisions allotted to her by section 105, Revised Statutes 1899, wbicb were not on band when the inventory was taken. She was opposed because of tbe following provisions of tbe decedent’s will, wbicb we suppose were accepted: “All of my personal property of whatever kind, I give and bequeath to my wife, Mollie A., and my two daughters, Jennie J. and Mary Nonie. Also all of my real estate, wherever situated in this or any other State, and out of tbe proceeds of my personal and real property, I want all my just debts all paid and it is my expressed will and decree that, my said wife and my said two daughters shall share and share alike in my real and personal property, after tbe paying all my just debts, and I will to my son Edward A. Glenn, for bis own use and benefit, the sum of one dollar, to be paid out of tbe proceeds of tbe sale of my personal property or collections made from same.” Roth tbe probate and circuit courts sustained tbe application and ordered that plaintiff be allowed three hundred and sixty dollars out of tbe assets.</p> <p>The widow, under tbe provision of tbe will herein, can not bold under both tbe will and tbe statute law of tbe State. She must let loose of tbe one or tbe other. Rrant’s Will, 40 Mo. 266. In construing the will in the above case Judge Wagoner, said, at foot of page 277, and top of page 278: “A widow may always refuse to take under a will as devisee or legatee, and fall back on her claim for statutory dower, but she can not claim under the will and the statute at the same time. She must make her election, and claim under one and reject the other.” Pemberton v. Pemberton, 29 Mo. 408. The court holds, in an opinion by Judge Scott, that a widow can not take under both the will, and statute. The above case is quoted approvingly in Schorr v. Etling, 124 Mo. 42.</p> <p>(1) Under the agreed statement of facts, the allowance in favor of the widow is correct. Hasenritter v. ILasenritter, 77 Mo. 162; In re Klostermann case, 6 App. 314; Schoeneich v. Reed et ah, 8 Mo. App. 356-362; Campbell v. Whitsett, 66 Mo. App. 444; 1 American Law of Administration (Woerner 1 Ed.), p. 160, sec. 77; id, p. 171, sec. 82. (2) The widow is entitled to the allowance, whether she stands by the will Or renounces it, and the questions of election does not arise in this cause. The allowance is for the immediate benefit of the widow and she has a year in which to renounce the will, if she so desires, and then, too, such renunciation does not apply to the personal property involved in this cause, or in cause numbered 8142 in this court, wherein this respondent is appellant. Hastings, v. Myerrs, Adm’r, 21 Mo. 519; Bryant Adm’r, v. McCune, 49 Mo- 546; Cummings v. Cummings, 51 Mo. 261.</p>

<p>1. Unlawful Detainer: POSSESSION: DEMAND: NOTICE TO QUIT: DISSEIZIN. Unlawful detainers are of two kinds; first a willful holding over without force, after the expiration of a term; second, a wrongful disseizin without force of a prior possessor. In eases of the first class, no demand in writing for the delivery of possession is required before the institution of the suit.</p> <p>2. -: -: -: STATUTORY CONSTRUCTION. But in cases of the second class, such a demand is indispensable.</p> <p>3. -: -: -: JUDGMENT EOR RESTITUTION: DOUBLE DAMAGES. The statute (Revised Statutes 1899, sections 3335-3340) makes it the imperative duty of the court in the case of a finding for the complainant, in an action for unlawful detainer, to give judgment for restitution of the premises, and doubling the sum assessed as damages..</p>

<p>Appeal from Franklin Circuit Court. — Hon. J. W. Booth, Judge. f</p> <p>STATEMENT OR THE CASE.</p> <p>Plaintiff owns and occupies one hundred acres of agricultural land in sections fifteen and sixteen, township forty-four, range three, west, in Franklin county. Defendant owns and occupies a like quantity of agricultural land north of and adjoining the lands of plaintiff. Plaintiff’s is bottom land, the southern portion of defendant’s is also bottom land — plaintiff’s bottom being higher than defendant’s. The general slope being northwest to the hills or bluff on defendant’s lands, where there is a depression or wet-weather branch, called a spring branch, through which the surface water, when unobstructed from the plaintiff’s and defendant’s bottom lands drain off into Boeuf Creek, a permanent stream. The spring branch runs in a southwesterly direction over defendant’s land crossing the dividing line between plaintiff and defendant and flows on a portion of plaintiff’s before emptying into Boeuf Creek. Beginning on plaintiff’s land and continuing over defendant’s to the spring branch, is a swale from twenty-five to fifty feet wide, and about two and one-half feet deep through which surface water was conveyed from plaintiff’s on to defendant’s land and over the latter to the spring branch, thence into Boeuf Creek. Defendant, to prevent the flow of surface water from plaintiff’s land through this swale on to his own, threw up and maintains a dam of earth across the swale on his own land, but near the dividing line, and constructed a ditch along the southern boundary of his own and twelve hundred and twenty-three feet long, connecting with the swale at each end of the dam. The bottom of the ditch, however, being higher than the bottom of the swale. At the west end of the ditch, he cut another ditch about seventy-four feet long, connecting with the spring branch. The effect of the dam is to dam up and throw back the surface water that collects in the swale on plaintiff’s land, by reason of which he lost, in the years 1899 and 1900, about two acres of growing wheat, and about one-eighth of an acre of his cultivated land in the swale has grown up in willows and weeds.</p> <p>(1) Plaintiff introduced substantial evidence proving all the allegations of his petition, therefore, the trial court committed error in giving defendant’s instructions in the nature of a demurrer to plaintiff’s evidence. The petition, stating the first cause of action, alleges and the evidence shows that the drainage of the surface water from plaintiff’s land, described in section 16, is into a natural water-course, Boeuf Creek, by and through a natural depression extending from plaintiff’s land; and that defendant wrongfully constructed and maintained a dam across said depression, on his land, at the dividing line, thereby obstructing and turning back on plaintiff’? land said surface water which resulted in damage to plaintiff’s crops and land. Therefore, the facts thus pleaded and the evidence tending to prove same, call for the application of the provisions of the statutes of Missouri of 1899, regulating the drainage of land for agricultural purposes, to-wit: “Sec. 6962. Land may be drained for agricultural purposes. — The owner of land in this State shall be permitted to construct drains, for agricultural purposes only, into any natural watercourse or any natural depression whereby the water will be carried into any natural watercourse, for the purpose of securing proper drainage to such land, without being liable in damages therefor to any other person or persons or corporation.” (2) The allegations of the petition containing the first cause of action are broad enough to make defendant liable for damages, not only for the violation of plaintiff’s statutory right to the discharge of the water from his land in said natural depression, but defendant is also liable for damages at common law in this, that he constructed and maintained a ditch for the length of one-eighth of a mile on his land at the dividing line due west from his dam across said depression, and through this ditch he collected the water from his land and precipitated i1 in a body upon plaintiff’s land in the said natural depression next above said dam, and there was substantial evidence in support of it. In this State it is settled, that at common law a landowner has no right to collect surface water and precipitate it in a body upon a neighboring proprietor. Paddock y. Somes, 102 Mo. 226, 238.</p> <p>Surface water is a common, enemy. The proprietor of the lower ground has a right to repel that enemy coming on to his land from higher ground, and, in repelling it, has a right to erect a solid embankment and back the water on to the higher ground. Jones v. Railroad, 18 Mo. App. 251, 257; Benson v. Railroad, 78 Mo. 514; Abbott v. Railroad, 83 Mo. 271; Jones v. Railroad, 84 Mo. 151; Field v. Railroad, 21 Mo. App. 600, 605.</p>

<p>Appeal from Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge.</p> <p>STATEMENT OF THE CASE.</p> <p>The suit is on the following promissory note:</p> <p>“Centralia, Mo., August 13, 1897.</p> <p>“On or before the first day of January, 1899, for value received I promise to pay to the McCormick Harvesting Ma-obi tip Company (a corporation organized and existing under the laws of the State of Illinois, and having its chief office, and place of business in the city of Chicago, county of Cook, State of Illinois), or order, at Centralia, Missouri, one hundred and twenty dollars, with interest at six per cent per annum from November 1, 1897, until due; eight per cent per annum thereafter until paid. If the collection of this note is enforced by law I promise to pay ten per cent on the amount of the principal due thereon in addition thereto, as ascertained and liquidated damages for attorney’s fees in collecting the same.</p> <p>“Postoffice, Centralia.</p> <p>County - - Boone.</p> <p>State — Missouri.</p> <p>1-2 mile north.</p> <p>— mile south.</p> <p>1 1-2 miles east; — mile west.</p> <p>“Section, —; Township —; Eange —.</p> <p>(Signed) “Sam Gray.</p> <p>“Indorsement.</p> <p>“Without recourse.</p> <p>“McCormick Harvesting Machine Company.</p> <p>“By W. H. Town, Gen. Agt.”</p> <p>The defense was failure of consideration.</p> <p>Appellant read the note and the assignment thereon, proved that he took it for value before maturity and without notice of any infirmities, and rested.</p> <p>Defendant offered evidence tending to prove that he bought of the McCormick Harvesting Machine Company a corn binder and bundle carrier for one hundred and twenty dollars; That the binder was delivered to him in 1897; that the bundle carrier was not delivered with the binder, and that he kept the binder and executed the note in suit on the express promise of the agents of the McCormick company, that they would furnish •him the bundle carrier in a short time; that he used the binder to harvest his crop in the fall of 1897; that in the fall of 1898 the bundle carrier was furnished him by an agent of the McCormick company; that he attached it to the binder, but it would not work and that the agent of the McCormick company could not make it work, and that it was a complete failure, and that after the trial he then told the agent of the company that he would not have the machine without the bundle carrier, and hauled the machines up against the fence and left them standing there, and that they were there at the time of the trial; that the McCormick company never agreed to take the machine back; that with a successful bundle carrier the machine was • worth all he agreed to give for it, but worthless to him without the carrier.</p> <p>In rebuttal, plaintiff offered evidence tending to prove that defendant bought the binder without the carrier for one hundred and twenty dollars, and after trying the machine, gave his note for the purchase price, and that he gave a written order for the machine without the carrier, which order was lost; that the order contained a written guarantee of the binder, and that defendant was informed when he bought the binder that if he wanted a bundle carrier, he would have to pay five dollars extra for it; that the carrier did hot form any part of the binder but was a separate machine to be attached to the binder when wanted.</p> <p>The note is negotiable. The condition for an attorney’s fee of ten per cent of the principal amount, in the event col? lection “is enforced by law,” as ascertained and liquidated damages for attorney’s fee is a provision of the contract providing that the holder of the note shall collect his attorney’s fee off of the maker, and is thereby void. Paddock v. Railroad, 155 Mo. 587; Railroad v. Ellis, 165 H. S. 150. While it has been held in this State (Samstag v. Conley, 64 Mo. 476, and other cases) that the provision for attorney’s fees in a note destroys its negotiability, we are unable to find any Missouri cases where the point is directly decided that such a provision in a note is valid. The stipulation for attorney’s fees is invalid as contrary to public policy. Bullock v. Taylor, 39 Mich. 140; State v. Taylor, 10 Ohio 378; Dow v. Hpdyke, 11 Neb. 97; Witherspoon v. Musselman, 14 Bush, 214; Tinsley v. Hoskins, 111 N. C. 340.</p> <p>Where a note contains an agreement, that, in case it is not paid at maturity an additional sum shall be paid as an attorney’s fee, its negotiability is destroyed. Bank v, Gray, 63 Mo. 33; Bank v. Marlow, 71 Mo. 618; Bank v. Goy, 71 Mo. 627; Bank v. Jacobs, 73 Mo. 35; Clark v. Barnes, 50 Mo. App. 637; Samstag v. Conley, 64 Mo. 476; McCoy v. Green, 83 Mo. 626; Tiedeman on Commercial Paper (lEd.), 28b.</p>

<p>Appeal from St. Louis Oity Circuit Court. — lion. Jacob Klein, Judge.</p> <p>STATEMENT OR THE CASE.</p> <p>On August 1, 1896, one Henry Vollmer gave his note for eight hundred dollars, payable one year after date, to Henry Gieseker, with five per cent interest. On the third of November, 1897, the said Henry Vollmer died, and his wife, Dorothea, was appointed his administratrix. About two weeks after the death of her husband his widow signed her name below his as one of the makers of said note. She did this at the request of the wife of the payee.</p> <p>The testimony shows that the note was overdue and that she received nothing whatever as a consideration for her signature. There was evidence tending to prove that the note bore an indorsement of interest paid thereon up to January, 1898, and a further statement in writing by the administratrix waiving notice of the demand evidenced thereby and calling on the claimant to testify, and that the amount of said note was allowed by the probate court as a demand of the fifth class against the estate of Henry Vollmer. The signature of Dorothea Vollmer was put upon the note when the same was presented to her by the wife of the payee, who testifies that she (Dorothea Vollmer), said, “I will sign because I know we got the money.” The witness further testified, however, that no consideration was given to Mrs. Dorothea Vollmer for her signature.</p> <p>The case was submitted to the court without a jury; no instructions were asked or given and a judgment rendered for Dorothea Vollmer in the present suit on the note against her by the payee therein, from which plaintiff has appealed.</p> <p>(1) Where one becomes the indorser of a negotiable note after its maturity, and after the death of the maker with the knowledge of such death, he will be held liable as indorser, if the holder in due time procures the allowance of the note by the probate court against the estate of the maker. Pieklar v. Harlan, 75 Mo. 678; Davis v. Erancis, 11 Mo. 572; Dullard v. Hardy, 47 Mo. 403. (2) It is now quite well settled,where negotiable paper is received in payment and extinguishment of a pre-existing debt, the holder is entitled to protection. 1 Parsons on Bills and Notes, 221; Adams v. Higgins, 73 Mr. App. 14; Dullard v. Hardy, 47 Mo. 403. (3) We have already seen that a note, indorsed and given for an antecedent debt is under some circumstances at least good. 1 Parsons on Bills and Notes, p. 220; Davis v. Erancis, 11 Mo. 572.</p> <p>(1) A party who signs a note after its execution and delivery, and after the consideration therefor has passed between the original parties," incurs no liability unless some new consideration passes. Williams v. Williams, 67 Mo. 661; McMahon v. Geiger, 73 Mo. 145; Burrus v. Davis, 67 Mo. App. 210; Lowenstein v. Sorge, 75 Mo. App. 281; Ryan v. Krusor, 76 Mo. App. 496. (2) The rule is the same whether the party signs as joint maker, indorser or guarantor. Stagg v. Linnenfelser, 59 Mo. 336. (3) Even when an executor gives his own note for a debt of the deceased, and there are no assets in the estate, nor is there any forbearance contracted for by the creditor, the note is void as being nudum pactum. Rittenhouse v. Ammerman, 64 Mo. 197.</p>

<p>1. Benefit Certificate: MEANING OE CONDITION IN CLAUSE CONCERNING PARALYSIS: PARALYSIS, DEFINITION OE. Paralysis, in the medical nomenclature, is usually restricted to the loss or impairment of voluntary muscular power, and is regarded rather as a symptom than as a disease per se and generally connected with a marked lesion of some portion of the nervous system.</p> <p>2. -: -: -. And in the case at bar, the disease from which respondent was suffering was poliomyletis, or inflammation of the spinal cord. The paralysis of his limbs and side resulted from the diseased condition of the spinal cord.</p> <p>3. -: -: -. And the exemption clause in his benefit certificate to the effect that “this benefit does not cover disabilities resulting from paralysis,” absolves the benefit society from liability only when the disability is the direct result of paralysis.</p> <p>4. -: -: -. In the case at bar, the' paralytic condition was but a sequence or incident of an inflammation of the spinal cord developed after the disease had reached a certain stage in its progress and disappeared with the disappearance of the inflammatory disease.</p> <p>5. -: -: -. In the ease at bar, it is certain that the case is not one in which the disability is the result of paralysis.</p>

<p>1. Action, Damages: TWO SUITS AND TWO JUDGMENTS: PLEA OE RES AD JUDICATA; INSTRUCTION. The trial court instructed the jury as follows: “The court instructs the jury that under the evidence offered as to the former judgment rendered Eebruary 26, 1900, by justice of the peace against defendant, the justice in rendering such judgment did not acquire, nor have any jurisdiction over the defendant, and said judgment is void and constitutes no defense to this action.” Held, that the instruction properly declared the law.</p> <p>2. -: -: -: SERVICE OF PROCESS IN FIRST SUIT, WORTHLESS. The appellant, being a Missouri corporation with its business office at Bonne Terre in St. Francois county, Missouri, could only be brought in court legally by service of the summons on the president of the company, or some other chief officer, or by leaving a copy of such summons with some person having charge of its office at Bonne Terre, as required by section 995, Revised Statutes 1899.</p> <p>3. -: -: -: NO COLLATERAL ATTACK OF JUDGMENT: A JUDGMENT MAY BE IMPEACHED BY OTHER PARTS OF RECORD. The return of the constable, as indorsed on the summons, is primary evidence; the recitals in the justice’s docket as to what the return contains, secondary evidence, and may be contradicted by the return; such recitals in the judgments of courts of record may be overthrown by other parts of the record.</p> <p>4. -: -: A VOID JUDGMENT, NO DEFENSE. The judgment pleaded in bar being a nullity, furnished no defense whatever to the plaintiff’s cause of action.</p>

<p>1. Practice: PETITION OF FOUR CAUSES OF ACTION: STATED IN FOUR COUNTS: JUDGMENT ON TWO FIRST COUNTS. In a civil action, there can be only one final judgment, which must dispose of all the parties to the action, notwithstanding there maybe a separate trial on each cause of action at the same or subsequent terms.</p> <p>2. -: -: -: FINAL JUDGMENT ON TWO CAUSES OF ACTION. After the court rendered final judgment on the first two causes of action, defendant was relieved of further appearance to the suit, and any judgment that might have been rendered against him would have been invalid.</p> <p>3. -: -: -: SERVICE OF PROCESS WAIVED BY APPEARANCE. The continuance, for several terms, of the third and fourth counts, which embraced different causes of action from the two adjudicated by the court, constituted an appearance and in legal effect was the institution of a new suit.</p> <p>4. -: -: JOINT OWNERS MUST ALL BE PARTIES. While parties jointly interested may waive the tort and sue in assumpsit, one of such joint owners can not alone sue; his co-owner must be made either plaintiff or defendant.</p> <p>5. -: OBJECTION TO PETITION BY ANSWER OR DEMURRER, NOT WAIVED. The fourth count of plaintiff’s petition set forth for a cause of action, a sale and delivery of cattle to defendant and his failure to pay the price for them. It contains no fact showing plaintiff’s incapacity to sue, or of the cause of action offered to be proved: Held, that the non-joinder was not waived by defendant’s failure to raise same by answer or demurrer.</p> <p>8. -: EOURTH COUNT: DEMURRER TO EVIDENCE. The trial judge would have been warranted in sustaining the demurrer to the evidence adduced in support of the fourth count on the ground that such evidence failed to establish the conversion of plaintiff’s property or any sale of it by him to defendant.</p>

it Court. — Hon. Leigh B. Woodside, Judge. STATEMENT OF THE CASE. Plaintiff commenced her suit before a justice of the peace in. Miller township, Phelps county, by filing the following complaint : “State of Missouri, County of Phelps. “Before R. E. Hutcheson, justice of the peace, Miller township.

Louis Circuit Court. — Ron. John Wesley Booth, Judge. STATEMENT OF THE CASE. The plaintiff presented a demand to the probate court for allowance against the estate of her deceased husband in the sum of two hundred and thirty-four dollars, which she claims was due to her as one-half of ,the total amount of rents collected by her husband in his lifetime upon a lease of the tract of land of which she and he were tenants in common.

— Son. Leigh B. WoodsideJudge. STATEMENT OF THE CASE. According to the allegations of the petition, B. H. Loomis made a contract with the board of trustees of the State Federal Soldiers’ Home of St. James, Missouri, to build a boiler house on the premises of the home and by the terms of the contract bound himself to protect all persons who might perform any labor or furnish any material for the said structure and who would be entitled to liens thereon.

— Hon. Henry O. Riley, Judge. (1) Tbe judgment is erroneous upon tbe record. Tbe court erred by increasing, at a subsequent term, tbe comm issioner’s compensation. Such compensation was fixed by tbe decree, became part of tbe judgment and could not be disturbed unless tbe decree was vacated first. Costs wbicb are judicially taxed can not be retaxed at a subsequent term. Mann v. Warner, 22 Mo. App. 577; Bosley v. Parle, 35 Mo. App. 232, 236; Wilson v. Stark, 47 Mo.

— Ron. Elliott M. Hughes, Judge. STATEMENT OE THE CASE. This is an action of replevin brought against the city of Laddonia and H. L. Barker. The petition is in the usual form und alleges the unlawful caption by defendants of four horses, the property of plaintiff; asks for damages, actual, in the sum of two hundred and fifty dollars, and punitive, in the same amount.

— Hon. Edwin B. McKee, Judge. STATEMENT OR THE CASE. Defendant Collins on October 23, 1890, loaned plaintiffs one thousand dollars, secured by a deed of trust on one hundred acres of land situated in Knox county. On November 1, 1894, defendants also loaned plaintiffs twenty-seven hundred dollars, secured also by deed of trust on one hundred and seventy acres of other land situated in same county.

Louis City Circuit Court. — Mon. William Zachritz, Judge. (1) The court below erred in admitting evidence over the objection of defendants — the notice of intention to begin the suit offered by plaintiffs. In* said notice Charles H. But-ledge is described as the owner of the property, and plaintiffs announce their intention to institute a suit against Charles Tozer and said Charles H. Butledge.

<p>Appeal from Cape Girardeau Circuit Court. — Hon. Henry G. Riley, Judge.</p> <p>(1) .Divorce actions, like all others tried by the court without a jury, are reviewable on the weight of the evidence and triable de novo in the appellate court. Griesedieck v. Griesedieck, 56 Mo. App. 94. (2) The ground for divorce was desertion, to constitute which it was necessary for defendant to prove cessation from cohabitation; her intention not to resume cohabitation; that he did not consent to the separation; and to authorize divorce that such desertion began and continued at least a year prior to beginning his suit. State v. Weber, 48 Mo. App. 504. (3) He filed petition and begun his suit July 14,1900; according to his own testimony she left on the visit to Oregon the first Tuesday after July 4, 1899. Will it be said that the elements of desertion existed at the time of the separation at Station 16, when the admitted facts are that the separation was friendly, even with an affectionate kiss, and that she was merely starting to visit relatives in Oregon ? Was she deserting him when she wrote the letter from St. Louis ? Does the letter of August 4, 1899, read like the essential elements of desertion had yet entered into her Oregon visit ? Are not these letters just such as any true, faithful wife, with no thought of desertion, would write her husband when away ? Is it a crime for a wife and mother to visit her own son, even in Oregon ?</p> <p>(1) There was a permanent change of domicile of the wife and this is a desertion. Descholdt v. Descholdt, 59 Mo. App. 102; Hoffman v. Hoffman, 43 Mo. 541; Raster v. Easter, 43 Mo. App. 115; Owen v. Owen, 48 Mo. App. 208.</p>

— Hon. J. L. Fori, Judge. STATEMENT OF THE CASE. The probate court of Butler county, having in charge the estate of J. E. Adams, upon the second annual settlement of his executrix, Martha Adams, ordered her to sell the land of her testator for the payment of debts. After a sale in pursuance of said.order, one Loid Redman, made an affidavit that he was a creditor of said estate, and prayed an appeal from said order of sale of the circuit court, which was granted.

Louis City Circuit Court. — Hon. PembrooTe B. Filter wft, Judge. STATEMENT OE THE CASE. This is an action on a builder’s bond. The American Bonding and Trust Company, the surety on the bond, filed a separate demurrer to the petition, assigning as grounds of demurrer that the allegations showed affirmatively that the plaintiff had no cause of action against it.

— Hon. James Tilford Neville, Judge. (1) Change of possession must be open, notorious and unequivocal, so as not to mislead the public, and be made within reasonable time. R. S. 1899, sec. 3410; Claflin' v. Rosenberg, 42 Mo. 439; Burgert v. Borchert, 59 Mo. 80; Lesen v. Herriford, 44 Mo. 323; Stern v. Henley, 68 Mo. 263.

<p>Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.</p> <p>(1) The alleged bill of exceptions forms no part of tbe record of tbis cause, for tbe reason that tbe same was not filed witbin tbe time given by tbe court in wbicb tbe same should be filed. Eicketts v. Hart, 150 Mo. 681; Eimel v. Hayes, 83 Mo. 200; State v. Eolley, 135 Mo. 678; Finlay v. Gill, 80 Mo. App. 459. Tbe so-called bill of exceptions in tbis cause does not sbow affirmatively that plaintiff’s motion for a new trial was filed witbin four days (intervening Sunday excepted) after tbe rendition of tbe judgment in said cause. Bollinger v. Carrier, 79 Mo. 319. (2) Tbe Supreme Court, speaking on tbis subject says: “Tbe record must sbow affirmatively that tbis motion (for a new trial) vfas filed witbin tbe prescribed four days.” Welch v. St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523; State v. Marshall, 36 Mo. 400; State v. Brooks, 92 Mo. 542; State v. Arnold, 54 Mo. App. 660; Beckmann v. Ins. Co., 49 Mo. App. 604. (3) Tbe so-called bill of exceptions does not sbow that any exception was taken by appellant in overruling bis motion for a new trial. It has been uniformly held in tbis State that unless an exception be taken and preserved by bill of exceptions to tbe action of tbe trial court in overruling a motion for new trial, there is nothing for tbe appellate court to review except tbe record proper. E. S. 1899, sec. 864; State v. Gray, 149 Mo. 459; Eoss v. Eailroad, 141 Mo. 395; State v. Murray, 126 Mo. 526; Dunfortb v. Eailroad, 123 Mo. 198; Taylor v. Switzer, 110 Mo. 410.</p>

— Hon. William, N. Evans, Judge. STATEMENT OF THE CASE. This is a proceeding by motion, in the nature of a writ of coram nobis, to set aside a judgment by default rendered in the circuit court enforcing the lien of the State for back taxes upon real estate, and incidently to render nugatory _ a sheriffs deed made on a sale of the real estate on execution issued on the judgment.

— Hon. Henry O. Hiley, Judge. STATEMENT OE THE CASE. D- L. Russell, plaintiff, was tbe owner of tbe Russell Store Company in New Madrid county. Lemon, Gregory & Co. and M. Gavin & Co. recovered, each, a judgment against bim before a justice of tbe peace of Leseur township in New Madrid county. Executions were is'sued on each of tbe judgments and directed to A. PI.

— Hon. William N. Evans, Judge.- STATEMENT OF THE CASE. Plaintiff brought an action against defendant before a justice of the peace in Douglas county for unpaid rent and damages in the sum of thirty-four dollars.

— Hon. Leigh B. Woodside, Judge. STATEMENT OE THE CASE. This case was begun before a justice of the peace where the following statement was filed: State of Missouri 1 County of Pulaski.

— Hon. Elliott M. Hughes, Judge. STATEMENT OE THE CASE. Appeal from a verdict and' Judgment for fifty dollars damages in favor of the plaintiff for injuries received by himself, his horse, buggy and harness, by the team and wagon of the defendant running against plaintiff’s buggy and horse while he was driving along a street of Troy.

— Hon. James Tilford Neville, Judge. STATEMENT OF THE CASE. March 21, 1887, the respondent executed to Timothy Regan,- the father of the appellant, a promissory note for $4,000, due two years after date and bearing compound interest at the rate of eight per cent. The note was given for part of the purchase price of some land in Springfield, and to secure it a deed of trust was executed and delivered on the same day, by the defendant and wife, to Charles II.

— Hon. Elliott M. Hughes, Judge. STATEMENT OE THE CASE. In 1892, plaintiff leased, for a term of five years, a portion of its right of way near Wrigbt City, Missouri, to E. E. Ordelheide, for the purpose of erecting a grain elevator, with a privilege to the lessee to remove the building within a reasonable time after the expiration of the term of the lease.

— Hon. F. B. Hearing, Judge. Where, under the admitted facts, plaintiff is entitled to a judgment, even for nominal damages, a judgment for defendant should be reversed. Curtis v. Driggs, 25 Mo. App. 175; Greenwell v. Garrett, 92 Mo. 120; State ex rel. v. Reyburn, 22 Mo. App. 303. It can not be determined, from the instructions given and refused, upon what theory the case was decided, and the judgment should, therefore, not be permitted to stand. Mill Co. v. Spilken, 77 Mo.

Louis County Circuit Court. — Hon. Budolplv Hirzel, Judge. STATEMENT OF THE CASE.

— Hon. Elliott M. Hughes, Judge. STATEMENT OE THE CASE. The petition in this case alleges, in substance, that plaintiff, Gr.

Louis Circuit Court. — Hon. J. W. Booth, Judge. STATEMENT OE THE CASE. The defendant corporation owned and used the Carleton Building on the northeast corner of Olive and Sixth streets in the city of St. Louis when the accident to plaintiff happened. She fell down the elevator shaft therein from the seventh floor to the third or lower, and was marvelously saved by lighting astride of the loop of the rope, from whence she was rescued. Nevertheless she received injuries.

— Hon. Leigh B. Woodside, Judge. STATEMENT OF THE CASE. The record is meagre but we incline to concur with the trial court’s findings. . Earnest Broedlow owned some land which he executed a deed of trust on in favor of his brother, Andrew Broedlow, to secure a promissory note for one thousand dollars. This was done in 1894. D. E. Cowan was trustee.

Louis City Circuit Court. — Hon. Pembrooh B. Flit craft; Judge. STATEMENT OF THE CASE.

— Hon. Leigh B. Woodside, Judge. STATEMENT OE THE CASE. This is a suit upon a bond for title to land, executed by the defendant on the thirteenth day of November, 1897, whereby he undertook to convey an undivided three-fourths interest in 262.65 acres of land by warranty deed, upon the payment to him by the obligees, John R. and William E. Coleman, of the sum of $1,300 within five years thereafter and the annual payment of $126 as rent of the land and interest.

Louis City Circuit Court. — Hon. Jacob Klem, Judge. STATEMENT OF THE CASE.

Louis Court of Criminal Correction. — Mon. J. W. Booth, Special Judge.

- — Hon. Henry G. Riley, Judge. The debt sued for was for the rent of a residence for the exclusive use of one of the members of the firm. It will certainly not be contefided that he was liable for this rent unless he made himself so by contract.

<p>Appeal from Greene Circuit Court. — Hon. O. B. McAfee, Judge.</p>

— Hon. W. L. Jarrott, Judge. (1) The court erred in refusing defendant’s instructions one and two. That plaintiff took insurance in the sum of $1,600, which was not mentioned in the application, and of which defendant had no notice, stands conceded. Other insurance without notice is material, and should have been so declared by the court. Wright v. Ins. Co., 73 Mo. App. 365; March v. Metropolitan Life, 28 Ins. Law Journal, p. 30 (Pennsylvania Sup.

— Hon. James G-ibson> Judge. (1) To tbe ruling of the court in refusing to admit this record in evidence, the defendant at the time duly excepted. Section 5450, R. S. 1899; Childress v. Cutter, 16 Mo. 24; St. Louis v. Conell, 94 Mo. 275; State v. Austin, 113 Mo. 538; Tucker v. People, 117 111. 91; Greenl. on Evid. (15 Ed.), sec. 483; Morrissey ,v. Eerry Co., 47 Mo. 521; Van Riper v. Morton, 61 Mo. App. 440; Gurno v. Jarnis, 6 Mo. 330; Sheetsbury v. Hartley, 133 Mass. 242.