Volume 92 — Missouri Appeal Reports

— Hon. David H. Eby, Judge. The law is well settled, that sureties on an official bond are liable for damages done by their principal, in color of office. State ex rel. v. Edmunson, II Mo. App. 112; State ex rel. v. Ryland, 63 S. W. 819. (1) Sustaining a motion for a new trial because the verdict is against the evidence, is a matter resting in the sound discretion of the trial court, and not subject to review by the appellate court. McCullough v. Ins.

— lion. Elliott M. Hughes, Judge. The contract was complete in terms, and “the monument was fully warranted in every respect, just as represented in plaintiff’s circulars,” and so far as appears from.the evidence the monument was identical with the one contracted for. Brown v. Weldon and Sankford, 21 Mo. App. 251.

1. Negligence: FACTS SUFFICIENT FOR CASE TO GO TO JURY. Held: these facts made a ease to be submitted to the jury. Appeal from Washington Circuit Court. — Hon. Frank R. Dearing, Judge. (1) Plaintiff’s instruction No. 2 is erroneous: (a) Because it is a mere abstract declaration of law, and not applicable to tbe facts of this case. Bradley v. Railroad, 138 Mo. 293.

— Hon. J. L. Fort, Judge. (1) The city had the right to enact section 682 of its Revised Ordinances. Sec. 5872, R. S. 1899. State v. Muir, 86 Mo. App. 642.

<p>1. Vendor’s Lien: DEED OP TRUST: WAIVER OP LIEN. The taking of a deed of trust on land to secure the payment of the purchase price constitutes a waiver of vendor’s lien.</p> <p>2. -:-: -: QUALIFICATIONS' OP RULE. There is this qualification, however, of the rule: If the mortgage or deed of trust given to secure the purchase money of land expressly reserves a vendor’s lien, the latter survives the taking of the documentary security.</p> <p>3. -: -: -. In the case at bar, the deed of trust given to secure the notes held by the plaintiff, instead of reserving a vendor’s lien, expressly recited that it was given to secure the purchase price of the land and must be held to have been made in lieu of the equitable lien or to have supplanted it.</p>

— Hon. Elliott M. 1 Hughes, Judge. (1) Tbe time when a cause of action accrues does not depend on tbe fact as to whether or not the person whose rights have been invaded or withheld, is sui juris, but it does accrue the instant the wrong or injury is committed against the person who does the injury. If this was not so the most helpless and deserving of the community would often be without remedy and become a prey to the crafty and more powerful.

— Hon. Elliott M. Hughes, Judge. (1) The demurrer to the evidence should have been sustained. Yarnall v. Railroad, 113 Mo. 570; Henry v. Railroad, 113 Mo. 525; Harvey v. Railroad, 6 Mo. App. 585; Moore v. Railroad, 28 Mo. App. 628. (2) The trial court should have directed a verdict in the defendant’s favor at the close of the whole case. Authorities cited under point 1, supra. (3) The court gave erroneous instructions at the plaintiff’s request and of its own motion.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Where assignees for the benefit of creditors enter upon a leasehold estate of the assignor, occupy the premises for the purpose of discharging the duties of their trust and collect rents from a sublessee of the assignor, then they elect to accept the lease to the assignor and are bound to pay, either personally or out of the rents so collected by them, rent to the landlord of the assignor during the time they so…

— Hon. J. L. Fori, Judge. (1) Tbe judgment entered by tbe clerk after tbe adjournment of tbe court is absolutely void, and would bave been so if it bad been ordered by, tbe court itself, after the lapse of tbe term, there was neither judge’s minutes, clez*k’s entry nor any paper or record in tbe cause authorizing such judgment. “No such entries can be made from tbe memory of tbe judge, nor on parol proof derived from any other sources.” “Some minute made at tbe time” must be…

— Hon. W. N. Evans, Judge. (1)' The fencing statute imposes the duty on the owning •company to build the fence, and the suit is for violation of that statute. It is a penal statute and unless defendant comes within its terms, it is not liable. (2) The contract between the two companies recognized this status and the liability for stock damage was protected as between the two companies and can give the public no rights. In the case of Moiling v. Barnard, 65 Mo.

— Eon. David E. Eby, Judge. (1) Tbe cost of repairs in the future was entirely foreign to any issue in the case. It could not affect one way or the other the damages for the detention of' the dower in the past, and manifestly could not be considered in arriving at the present yearly value of the dower, as the condition and use of the property at the 'time of the trial only could be inquired into for that purpose. Young v. Thrasher, 115 Mo. 235.

— Son. J. L. Fort, Judge. (1) All persons wbo aid or abet others in committing a trespass, or assent to it after same is committed, or countenance or approve the same or receive the fruits or… Held: on that evidence alone, to have assented to the wrongful act by which the possession was obtained. Anderson v. Kincheloe, 30 Mo. 527; McNichols v. Nelson, 45 Mo. App. 453.

— Hon. Leigh B. Woodside, Judge. (1) Tbe deed of trust bad no provision “that the whole amount shall become due and payable” on the failure to pay the first note. The clause “the whole shall become due and payable and” was stricken out by the mortgagor, clearly showing that he did not intend to contract and did not contract that the deed of trust might be foreclosed on the failure to pay any one of the notes when the same became due, before the whole debt matured.

— Hon. J ames T. Neville, Judge. (1) It is not necessary that a division fence in fact must exist to take tbe case'out of the operation of the stock law, but all that is necessary is for the parties… Held: or when they desired to vote, and the county court had no jurisdiction to order the election, and all of the subsequent proceedings were coram non judice and void. Section 4788, R. S. 1899; Jefferson County v. Cowan, 54 S. 0. 234.

<p>Appeal from Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge.</p>

<p>Writ of Error from Audrain Circuit Court. — Hon. 'Elliott M. Hughes, Judge.</p>

— Hon. Elliott M. Hughes, Judge. (1) A verdict should not be permitted to stand, where,' to reach the same, the jury must have disregarded the clear, consistent evidence of competent and unimpeached witnesses, uncontradicted by any evidence in tbe case. Lionberger v. Poblman, 16 Mo. App. 392; Bergraefe v. Knights of Honor, 22 Mo. App. 427; Long v. Moon, 107 Mo. 334.

— Hon. Nat M. Shelton, Judge. (1) For the recovery of a death loss under the mining act and the damage act there is a different provision, both as to the amount of damage and the parties entitled to sue. Sec. 8820, R. S. 1899; Sec. 2864, R. S. 1899; Sutherland on Statutory Construction, section 217; State v. Cornwall, 58 Neb. 556; Coal Oo. v. Taylor, 81 Ill. 590; Boyd v. Goal Oo., 25 Ind. App. 157.

— lion. N. M. Shelton, Judge. Defendant, tbe Knigbts of the Maccabees, are not within section 7896, Revised Statutes 1899, of Missouri. That section only relates to policies of insurance on life and to nothing else. The Knights of the Maccabees are not an insurance company. They are a fraternal beneficiary association, and the insurance laws have no application to them.

— Hon. Jno. P. Butler, Judge. (1) Tbe negligence charged in the petition was not proven, and no negligence of the defendant was shown; therefore, the demurrers to the evidence as to each count of the petition should have been sustained, and the peremptory instructions offered by the defendant, at the close of all of the evidence, should have been given. (2) This court has recently stated the rule as to when the trial court should sustain a demurrer to tbe evidence.

— Eon. James Gibson, Judge. (1) Tbe action of assumpsit for money bad and received is plaintiff’s remedy to recover of defendants money which in all justice belongs to plaintiff. Koopman v. Cahoon, 47 Mo. App. 362; Davis v. Krum, 12 Mo. App. 286; 1 Parsons on Contracts (8 Ed.), p. 485. (2) The agent who is the procuring cause of sale is entitled to his commission. Wright & Orrison v. Brown, 68 Mo. App. 583; Brennan v. Roach, 47 Mo. App. 296.

— Hon. A. D. Bumes, Judge. (1) Conceding, for tbe purpose of tbe argument, that tbis order, wbicb was made on tbe eighteenth day of November, 1898, was of any validity, it was not a final order from wbicb an appeal would lie. There was no approval of tbe so-called compromise by tbe probate court until tbe order approving tbe final settlement was made. R. S. 1899, secs. 283 and 285; Berry v. Shackelford’s Adm’r, 38 Mo. 392; Branson v. Branson, 102 Mo. 613.

— Hon. A. M. Woodson, ’ Judge. (1) Tbe street was in a reasonably safe condition. Tbe plaintiff’s wife was not in tbe exercise of reasonable care. Tbe demurrer to tbe evidence should bave been given. Heckler v. Oity of St. Louis, 13 Mo. App. 277; Calboun v. Oity of Milan, 64 Mo. App. 398; Hunter v. Weston, 111 Mo. 184. (2) The city bad done nothing toward inviting tbe plaintiff’s wife to pursue tbe course of travel she did pursue. Heckler v. St. Louis, supra.

— lion. J. D. Perkins, Judge. (1) No lien attached to the lot and the house erected thereon for the reason that the materials were furnished to one who was not the owner, and who had no legal or equitable interest in the lot. R. S. 1899, sec. 4203; Eischer v. Ansyln, 30 Mo. App. 316; Planing Mill Co. v. Ohristophel, 60 Mo. App. 106; Squires v. Eithian’s Adm’r, 21 Mo. 134.

— lion. J. D. Perkins, Judge. (1) Possession of real estate is a prerequisite to an action for trespass tbereon, and one wbo is not in possession can not maintain the action, tbe gist of the action being injury to the possession. Masterson v. Bailroad, 5 Mo. App. 64; Lindenbower y. Bentley, 86 Mo. 515; Zeitinger v. Hackworth, 117 Mo. 505.

— Mon. J. D. Perkins, Judge. (1) We insist there was a change of the cause of action. We do not think the statute allows the plaintiff to change his cause of action by adding new parties, and suing as partners under the firm name of Gunther Brothers & Company. See Wolff v. Vette, 17 Mo. App. 36. (2) The plaintiff must perform his part of the contract before he can demand any compensation from the defendant. In this case there was an entire failure to perform.

— Hon. J. D. Perkins, Judge. (1) Section 660, Revised Statutes 1889, expressly provides that the court may, in .furtherance of justice, amend any record, pleading or other proceeding by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect. Under this section the court should have permitted the amendment.

— Hon. J. D. Perkins, Judge. (1) The contract sued on is a legal one and should be enforced. Powell v. Moeller, 107 Mo. 471. (2) The contract was to pay the plaintiff for the support of the child of Bertha Sponable so much a year, but was not to be paid so long as Arthur Owens lived with Bertha Sponable or supported the child. If he did not do so, then these payments were to be made.

— Hon. Geo. F. Longan, Judge. Piled brief and argument on merits. (1) Tbe appeal should be dismissed because no such affidavit for appeal, as tbe law requires, was filed in this cause. And tbis court bas no jurisdiction to bear tbe cause. Tbomas v. Eire Ins. Co., 89 Mo. App. 12; Clelland & Co. v. Sbaw, 51 Mo. 440; Sec. 808, R. S. 1899.

— Hon. Qeo. F. Longan, Judge. (1) The plaintiff is not a shareholder. The averments of the petition do not show that he was a subscriber to the stock of the association, or that he acquired any stock by assignment or otherwise. He simply bought the real estate subject to the deed of trust. (2) Not being a member of the association, the reasoning that declares the making of eighty-four monthly payments does not mature the stock, does not apply to him.

— Hon. J. H. Shver, Judge. (1) Tbe court erred in admitting in evidence the memorandum receipt dated September 29, 1897, signed by Wurde-man, vice-president. Hyde v. Larldn, 35 Mo. App. 365; Bar-kus v. Plank Road Company, 26 Mo. 102; Hill v. Mining Company, 119 Mo. 9; State ex rel. v. Lockett, 54 Mo. App. 202.

— Hon. James Gibson, Judge. (1) An oral agreement for sale, followed by delivery of tbe goods, constitutes a complete and valid contract of sale, and tbe property passes, tbougb tbe money is not to be paid and is not paid at tbe time of delivery. Cunningham v. Asbbrook, 20 Mo. 553; Ober. v. Carson’s Ex’r, 62 Mo. 209. (2) An agent failing to disclose tbe fact of bis agency at tbe time of making tbe contract, is liable as principal. 1 Am. and Eng. Encyc.

— lion. Jno. W. Wofford, Judge. (1) There is no proof (a) that appellant was a “physician,” nor (b) that she did “prescribe for or treat” the child, nor (c) that she had “knowledge” that the patient had diphtheria. Hence, her demurrer to the evidence should have been sustained. (2) The appellant was not a physician. R. S. 1899, sec. 8515; Bouv. Law Diet., tit. Physician; Wheeler v. Sawyer (Me.), 15 Atl.

— Hon. J. H: Slover, Judge. (1) Tbe statute began to run from tbe time Sanborn sustained substantial damages, that is from tbe time he paid tbe money out on tbe fee-bills, not from tbe date of tbe issuance of tbe bills. State ex rel. y. Tillman, 134 Mo. 162; Lesem v. Neal, 53 Mo. 412; 12 Am. and Eng. Ency. of Law (2 Ed.), p. 77; Clyma v. Kennedy, 4 Conn. 310; Place v. Taylor, 22 Ob. St. 317; Newton y. Locklin, 77 Ill. 203; Lines-dall y. Combs, 33 Ob.

— Hon. J. H. Slover, Judge. (1) Tbe court erred in permitting the so-called experts to testify as to whether the appliance in controversy was reasonably safe, and as to what, in their judgment, would be a safe way to construct the apparatus for attaching the bed to the wagon.

— Hon. John W. Henry, Judge. (1) A depositor makes out a prima facie case, wben be shows a deposit made and a demand and refusal of the thing deposited. Kincheloe v. Priest, 89 Mo. 248; Arnot v. Bran-conier, 14 Mo. App. 434; Huxley v. Hartzell, 44 Mo. 370; Wiser v. Chesley, 53 Mo. 547. (2) The onus is then placed upon the depositary to exonerate himself from liability, which attached when he assumed the custody of the article with which he was entrusted.

— Hon. Wm. B. Teasdale, Judge. (1) Defendant did not comply with section 4060, Revised Statutes 1899, and made no attempt to amend, as he might have done, under section 4012, Revised Statutes 1899. (2) The transcript of justice originally filed did not comply with section 4064, Revised Statutes 1899.

— lion. Edwin A. Krauthoff, Special Judge. (1) The court erred in instructing the jury that the measure of damages for the failure to deliver the one hundred and eighty-six machines not delivered was the reasonable market value of the said machines at the place of delivery, and in refusing to give defendant’s instruction No. 10, to the effect that plaintiffs were not entitled to recover for the said one hundred and eighty-six machines more than their actual value.

<p>Appeal from Howard Circuit Court. — Hon. Jno. A. Hooka-day, Judge.</p>

<p>Appeal from Jackson Circuit Oourt. — Hon. James Gibson, Judge.</p> <p>(1) Defendants were guarantors. Parker v. Straat, 39 Mo. App. 623; Stagg v. Iinnenfelser, 59 Mo. 336; Burnham v. Gosnell, 47 Mo. App. 637; Adams v. Huggins, 78 Mo. App. 219. (2) Must the maker be proceeded against first or shown to be insolvent ? Osborn & Co. v. Lawson, 26 Mo. App. 554; Perry v. Barret, 18 Mo. 145. (3) A guaranty of payment is not even conditioned on demand, in this State-. Wright v. Dyer, 48 Mo. 527; Singer Mfg. Co. v. Hester, 71 Mo. 91; 2 Randolph on Com. Paper, see. 580; Baylis on Sureties and Guarantors, p. 189; Daniel on Negotiable Instruments (4 Ed.), sec. 1769. (4) Hill could not be prejudiced by any verbal agreement between payee and Ooombs or White, at the time of getting their names on the note. Chaffee v. Railroad, 64 Mo. 195; Cayuga National Bank v. Dunklin, 28 Mo. App. 444. (5) Was there a misjoinder? 1 Parsons on Contracts (6 Ed.), p. 11; Bliss on Code Pleading, sec. 92; Chitty and Bliss on Code Pleading, sec. 83; Pomeroy on Remedies and Remedial Rights, pp. 329, 451; R. S. 1889, sec. 1995; Bliss on Code Pleading, sec. 94; Railroad v. Trauble, 59 Mo. 362; Adams v. Huggins, 73 Mo. App. 143; Burnham v. Gosnell, 47 Mo. App. 638; Central Savings Bank v. Shine, 48 Mo. 464; Swan’s Pleadings and Precedents, p. 32.</p> <p>(1) The abstract of the record is insufficient to entitle plaintiff to a review. Jackson v. Ferguson, 76 Mo. App. 270; Danforth v. Railroad, 123 Mo. 198. This document contains a recital that a motion for new trial was filed and passed upon, but recitals in tbe bill of exceptions to that effect can not take tbe place of or supply tbe record proper. "Western Storage & Warehouse Co. v. Glasner, 150 Mo. 426; Sperling v. Stubble-field, 3 Mo. App. Eep. 248. (2) Tbis court will not disturb tbe special finding of facts. Ereeman v. Moffitt,' 119 Mo. 280. (3) Tbe only error of tbe court below was in favor of appellant. (4) Tbe two several guarantors could not be sued jointly. Maddox v. Duncan, 143 Mo. 613; 17 Am. and Eng. Ency. of Law, 571; Givens v. Bank, 2 Ala. 397; Allen v. Eosgate, 11 How. (N. Y.) 218; Eawcett v. Fell 77 Pa. St. 308; Register v. Oasperson, 3 Harr. (Del.) 289. Tbe note and guaranty are different instruments, and imply distinct and different obligations. Tbe guarantor’s liabilty is not on tbe note. Burnham v. Gosnell, 47 Mo. App. 637; Allen v. Eos-gate, 11 How. 218; Barton v. Speis, 5 Hun. 60; Mooney v. Mast, 9 Neb. 445; Tyler v. Trustees, etc., 14 Ore. 485; Graham v. Ringo, 67 Mo. 324; Parmerlee v. Williams, 71 Mo. 410; Bank v. Shine, 48 Mo. 462; Miller v. Gaston, 2 Hill (N. Y.) 188. (5) Tbe plaintiff having elected to sue defendants as makers of tbe notes, and a judgment having been entered against him, be can not now sue them again in a different capacity. Tbe judgment in tbe first case is a bar to tbis action. 1 Herman on Estoppel and Res. Adj.,- p. 535, sec. 449; Barnett v. Nolte, 55 Mo. App. 184; Ins. Go. v Young, 1 Crancb 340; Cranston v. Smith, 47 Mich. 647; Railroad v. Traube, 59 Mo. 355; Thomas v. Joselyn, 1 Am. St. Rep. 624, and note; Donnell v. "Wright, 147 Mo. 639; Hubbell v. Hnited States, 171 H. S. 203; Columbia v. "Webster Mfg. Co., 84 Fed. 592, 595; Railroad v. Hnited States, 168 H. S. 48; Jones v. Bank, 33 H. S. App. 713; Kellogg v. Thompson, 73 N. W. (Mich.) 893; Cincinnati v. Emerson, 57 O. St. 132; Beloit v. Morgan, 7 Wall. 619; Sessions v. Block, 40 Mo. App. 572.</p>

2. -: CONSTRUCTION OP WILL: PAYMENT OP SECURED DEBT: GENERAL ESTATE: STATUTE. N bought a piece of land, assuming certain mortgaged debts thereon. Held: he was entitled to payment out of the general estate since it was the intention of the will that the land should go to the grandchildren for their maintenance and section 191 applies to creditors alone and not to heirs. Appeal from Linn. Circuit Court. — Hon. Jno. P. Butter, Judge.

— Hofb. J. H. Slomr, , Judge. (1) If tbis was a suit for commission by appellant wbo bad been tbe cause of completing a sale, tben tbe demurrer in the evidence should have been sustained, but it is not such a suit. The suit was not instituted upon any such theory. All that the plaintiff was required to do was to furnish a purchaser who was able and willing to enter into the contract agreed upon.

— Hon. A. M. Wood-son, Judge. The court therefore erred in refusing appellant’s instruction “A” because there is no evidence in the case — not a syllable — showing that the plaintiff was a creditor of the Times Printing & Publishing Company. There is a total ■failure of proof on that point. Wright v. Crockett, 7 Mo. 125; Clarke v. Laird, 60 Mo. App. 289; Boot & Shoe Co. v. Bain, 46 Mo. App. 581.

— lion. Goo. F. Longan, Judge. (1) Upon tbe filing of tbe protest tbe' city council ceased to bave any jurisdiction'to proceed witb tbe work. Laws of 1893, p. 92, sec. 110; Eorbis v. Bradbury, 58 Mo. App. 506. (2) Tbe council can not acquire jurisdiction after tbe proceeding is dead by the withdrawal of names from tbe protest.

— Hon. W. B. Teasdale, Judge. (1) The defense of innocent purchaser for value without notice is not available to the defendant in this action, for the reason that the fact of his being an innocent purchaser, if it existed, is a defense which can not be raised by a general denial, but must be affirmatively pleaded in the answer and the burden is on the defendant making the plea. Holdsworth v. Shannon, 113 Mo. 508-524.

— Hon. John W. Henry, Judge. ' (1) The evidence failed utterly to prove an agreement. (2) There was, on plaintiff’s own testimony, no consideration, and the alleged agreement was for that reason a mere nudum pactum, null and void. (3) Plaintiff has no rights growing out of the contract between defendant and Sherman, the sender of the answer. Eo-rd v. Postal Tel. Co., 27 So. 409; Tel. Co. v. Wood, 57 Eed. 471; Cable Co. v. Eord, 117 Ala. 672, 23 So. 684; Tel.

— Hon. James Gibson, Judge. (1) Tbe court erred in submitting to the jury the construction of the written contract. Eord v. Dyer, 148 Mo. 523, 541; State to use v. Lefanire, 53 Mo. 470; Comfort v. Eallingal, 134 Mo. 281; Chapman v. Railroad, 114 Mo. 542; State to use v. Donnelly, 9 Mo. App. 520; Black River Lumber Oo. v. Warner, 93 Mo. 374; Thorn, etc., Cement Co. v. Roofing Co., 77 Mo. App. 21; Hughbanks v. Insurance Co., 60 N. W. 640; 11 Encyc. of PI. and Pr., 78, 81.

— lion. Jno. W. Henry, Judge. (1) Tbe law does not require anything formal in tbe mode of giving notice in this class of eases. Notice in this class of cases is tbe equivalent of knowledge of a fact. A notice in this class of eases may be actual or it may exist where there is knowledge of such facts as put the party affected upon inquiry. 16 Am. and Eng. Ency. of Law, 790-792; Johnson-Brinkman Commission Company v. Bank, 116 Mo. 558; Clark v. Bank, 57 Mo.

— Hon. G&o. F. Longan, J udge. (1) Tbe consideration of negotiable paper in tbe bands of a bona fide purchaser, for value, before maturity, can not be inquired into. Mala fides alone can open tbe door to sucb inquiry. Gross negligence is not sufficient, but actual notice of tbe facts wbicb impeach tbe validity of tbe note must be brought home to tbe bolder. Mayes v. Robinson, 93 Mo. 114; Johnson v. McMurry, 72 Mo. 278; Jennings v. Todd, 118 Mo. 296; Bank v. Pipkin, 66 Mo.

— Hon. A. M. Woodson, Judge. (1) An agreement to make a lease may be enforced either by bill in equity for specific performance or by action at law for damages. 1 Taylor’s Landlord and Tenant (8 Ed.), sec. 37. (2) The question whether a contract will be construed as a lease or an agreement to make a lease is óne of construction, and depends upon the paramount intention of the parties. Jackson v. Delacroix, 2 Wend. 433; Jackson v. Monarief, 5 Wend. 26.

— Hon. Wm. L.. Jarroii> Judge. (1) Tbe court should have given tbe declarations of law asked by plaintiff. (2) After misusing bis office to carry to bis pockets tbe money of bis late ward — money that be could not have otherwise obtained than as guardian — be should not be beard to say: “It is true I wrongfully, colon officii obtained tbe money, but will account for it only in my individual character.” Pombeck v. Bombeck, 18 Mo. App. 34.

— Hon. E. J. B-road-dus, Judge. (1) Respondents say no exceptions were saved to tbe overruling’ of motions. No motion in arrest or for a new trial was necessary in order to present tbis case on appeal to this court, and, hence, it is wholly immaterial whether exceptions were saved to the overruling of those superflous motions. Shephard v. Drake, 61 Mo.'App. 138; Erskine v. Loewen-stein, 82 Mo. 301; Parker v. Waugh, 34 Mo. 340; Slagel, Adm’r, v. Murdock, 65 Mo. 552.

— Hon. J. D. Perkins, Judge. (1) The school funds are divided into different classes, to-wit: (a) County school fund. Secs. 9824, 9825, 9826, 9871, R. S. 1899. (b) Township school fund. Sec. 9829, R. S. 1899. (c) District school fund. R. S. 1899, secs. 9750, 9752, 9757, 9758, 9771, 9777, 9838. (2) The bond in this case only obligates the sureties for the proper disbursement of the county school fund and not for the district school funds.

— Hon. Jno. W. Henry, Judge. (1) This case was properly certified by the justice to the circuit court, and when this was done the circuit court became “possessed of said cause.... as if originally commenced therein,” and regardless of the question as to whether or not the justice had jurisdiction of the case. E. S. 1889, sec. 6219; E. S. 1899, sec. 3951; Meier v. Thieman, 90 Mo. 441; State ex rel. v. Ganzhorn, 52 Mo.

<p>Appeal from Yernon Circuit Court. — Hon. II. 0. Timmonds, Judge.</p> <p>Piled brief on merits.</p> <p>Piled brief on merits.</p>

— lion. JE. P. Gates, Judge.' (1) Tbe nature and requisites of accord and satisfaction are defined by Judge Síeith in Swoiford Bros. Dry Goods Company v. Goss, 65 Mo. Held: 58 Mo. 213; Curtis v. Browne, 63 Mo. App. 431. (4) Accord and part performance do not constitute a satisfaction. 1 Encyclopedia of Law & Procedure, p. 315, and authorities there cited. 1 Am. & Eng. Encyclopedia of Law (1 Ed.), p. 94, and authorities cited.

<p>Appeal from Cass Circuit Court. — Son- Wm. L. Jcvrrott, Judge.</p> <p>(1) By the answer, plaintiff’s cause of action as alleged in petition, is admitted. Kinman v. Cannefax, 34 Mo. 147; Price v. Mining Co., 83 Mo. App. 470; Darrett v. Donnelly, 38 Mo. 494; Adams v. Trigg, -37 Mo. 141; McCord v. Railroad, 21 Mo. App. 95; Atteberry v. Powell, 29 Mo. 429. (2) The answer is inconsistent, frivolous, evasive and ambiguous, and should be taken most strongly against the pleader. Price v. Mining Co., 83 Mo. App. 474; Darrett v. Donnelly, 38 Mo. 493; Adams v. Trigg, 37 Mo. 142; Miller v. Railway, 62 Mo. App. 257-8; Sheppard v. Starrett, 35 Mo. 367; Dal-rymple v. Craig, 76 Mo. App. 117; Snyder v. Eree, 114 Mo. 360, 367; Kinman v Cannefax, 34 Mo. 147; Houston v. Lane, 39 Mo. 495. (3) Witness Summers, having been the attorney for Lindsey Dickey in the collection of the note in suit, all information which he received while so acting, concerning the subject-matter, in controversy, was privileged. State v. Dawson, 90 Mo. 149; Eoff v. Irvine, 108 Mo. 378; Ebersole v. Rankin, 102 Mo. 488; Henry v. Buddecke, 81 Mo. App. 365; Walden v. Bolton, 55 Mo. 405. (4) Summers as attorney for Lindsey Dickey, had no authority, merely from his employment as such, to compromise the debt or cause of action of his client. Spears v. Ledergerber, 56 Mo. 465; Barton v. Hunter, 59 Mo. App. 610; Willard v- Siegel, 47 Mo. App. 5; Walden v. Bolton, 55 Mo. 405; State v. Clifford, 124 Mo. 498; Vandérline v. Smith, 18 Mo. App. 59; Hosier v. Lange, 80 Mo. App. 234; 2 Greenleaf, Ev., sec. 114; Weeks Atty’s, sec. 219; Bank v. Leyser, 116 Mo. 68; Bank v. Morris, 125 Mo. 350; Lowry v. Mining Co., 65 Mo. App. 272; Murphy vMnsurance, 83 Mo. App. 481; Peck v. Ritchey, 66 Mo. 114; "Williams v. Edwards, 94 Mo. 447; Diel y. Railway, 37 Mo. App. 454; 1 Greenleaf Ev., sec. 114; Christian v. Smith, 85 Mo. App. 117; Alt v. Grosclose, 61 Mo. App. 409; Williams v. Edwards, 94 Mo- 451; Earrar v. Kramer, 5 Mo. App. 171; 1 Greenleaf Ev., sec. 114; Iron Oo. v. Halverson, 48 Mo. App. 383; State v. Arnold, 55 Mo. 89; State v. Jaeger, 66 Mo. 173.</p> <p>(1) This canse should have been brought in justice court, since the demand, exclusive of interests and costs, is only $50, and the justice has original jurisdiction of all causes not exceeding $250 exclusive of interest and cost. R. S. 1899, sec. 1674, subdivision 3; R. S. 1899, sec. 3835. (2) The weight of authority is-in favor of allowing a general denial of all allegations not otherwise admitted, when not ambiguous. 1 Am. and Eng. Ency. PL and Pr., 803. (3) A general denial is not inconsistent with a special plea of payment. 1 Am. and Eng. Ency. PI. and Pr., 857; Steerson v. lYaterbury, 52 Minn. 211; Doran v. Dinsmore, 20 How. Pr. N. T. Sup. Ot., 504; Patrick v. Boonville G. L. Oo., 17 Mo. App. 462; Nelson v. Brodhack, 44 Mo. 599. (4) Tho communication from Lindsey Dickey to witness Summers, not being in its nature private, nor being what could properly be termed a confidential disclosure, should have been admitted in evidence, said communication being very material to show Summers’ authority. Schaaf v. Eries, 77 Mo. App. 346; 1 Greenleaf on Evidence, sec. 244.</p>

<p>1. Writ of Error: STATUTE OP LIMITATIONS: STATUTORY CONSTRUCTION: JUDGMENT. The statute (section 837, Revised Statutes 1899) provides that “all writs of error upon any judgment or decision of any court in any case, whether civil or criminal, shall be brought within one year after the rendering of such judgment or decision, and not thereafter,” and the only exceptions made by the statute are in favor of persons under twenty-one years of age and of judgments rendered prior to the act.</p> <p>2. -:' --■: --: APPEAL: EPPECT. And while an appeal is generally held to be a continuation of a case, it does not stop the execution of the judgment, unless the statutory appeal bond is given, nor destroy the judgment lien given by the statute; its validity is merely held in suspense pending the appeal. It continues to be a final judgment, and, if affirmed, dates from the term of court at which it was rendered.</p>

— Son. Jumes L. Neville, Judge. We do not understand that an actual division fence in fact is necessary to take tbe case out of tbe operation of tbe stock law, but that tbe agreement to build and maintain one is all that is required, and if tbe defendant failed to comply with bis agreement and build bis part, be is guilty of contributory negligence; be invites the trespass, injury, and damages and can not complain or shield himself behind tbe stock law. Eield v. Bogie, 72 Mo.

— Hon. J L. Fori, Judge. (1) The court erred in permitting the defendant to testify over the objection of plaintiff, as to conversations had with plaintiff’s agent, concerning the subject-matter of this contract at the time of and prior to the execution of the written contract, and in refusing to strike same out; all such prior and contemporaneous agreements were merged into the written contract. 1 Greenleaf on Ev., sec. 215; Hair Oo. v. Wolmsley, 32 Mo.

— Hon. Elliott M. Hughes, Judge. (1) Tbe only question in tbe case, is: Does a justice ■of tbe peace, living in a county where neither tbe plaintiff nor defendant resides, and where tbe defendant can not be found, have jurisdiction to render a judgment binding on anybody?

— Hon. W. N. Evans, Judge. (1) The mere possession of a negotiable note imports that the holder acquired it bona fide. Hartón v. Bayne, 52 Mo. 531; Carly v. Butter, 55 Mo. 398; Cloud v. International Bank and News Co., 23 Mo. App. 319; Bank v. Stanley, 46 Mo. App. 440. If a party shows that he acquired the note in good faith, actual notice of facts impeaching its validity must be brought home to him to affect his rights. Bank y. Pipkin, 66 Mo. App. 592.

Court of Common Pleas.— Son. Franle B. Burrough, Judge. (1) A bill for an accounting between partners may be maintained by the executor or administrator of a deceased partner. 17 Am. and Eng. Ency. of Law, p. 1277. (2) The settlement between the partners of October 4, 1886, should not be disturbed.

Genevieve Circuit Court. — Now. Frank B.. • Bearing, Judge. (1) The alleged promissory note sued on, imports a consideration, and can only be denied or inquired into by a proper” plea for that purpose, and as none was filed, all plaintiff’s evidence in rebuttal tending to prove admissions made by Coff-man to the effect “that the note was all right or was good,”' was incompetent, for the reason that under defendant’s special plea of non est factum only the single issue that…

Louis County Circuit Court. — Hon. John W. McElhinne-y, Judge. Held: and to this extent the judgment is right. R. S. 1899, secs. 3506, 3507; Strouse v. Drennan, 41 Mo. 289; Bone v. Tyrrell, 113 Mo. 175; R. S. 1899, secs. 3512, 3504, 3510, 3497, 3496.

— Hon. Leigh B. Woodside, Judge. (1) Tlie motion to quash the information should have been sustained, because the second information was not an amended information, but an entire substitution. The first information was a perfect charge under the merchant’s law and was not susceptible of amendment. The second information charged an offense under the dramshop law. While the law is liberal as to amendments, it does not permit a substitution.

— Eon. Eenry C. Pepper, Judge. STATEMENT OE THE CASE. The appeal is from the action of the circuit court in overruling appellant’s motion to disallow the following items of cost which were taxed by the clerk, against the appellant, to-wit: “Defendant moves the court to retax and strike out the following items of costs that have been improperly and illegally taxed against him, to-wit: Isaac Landers, J. P. Docketing, filing and indexing.$1 10 Warrant and affidavit. 70 Two…

— Son. James T. Neville, Judge. Plaintiffs’ petition states a good cause of action. Eout v. Giraldin, 64 Mo. App. 165; Raddick v. Hutchinson, 95 U. S. 210.

— Hon. Henry 0. Riley, Judge. (1) Defendant’s motion to quash should have been sustained. Section 1959, Revised Statutes, entitled, “Destruction of fruit and ornamental trees,” etc., which the State invokes in support of the information, has no application.

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

— Hon. J. L. Fort, Judge. STATEMENT OE THE CASE. We adopt the statement of the case made by appellant as it is a full and fair history of the proceedings both before the justice and the circuit court.- It is as follows: “This action was commenced originally before a justice of the peace of Butler county, for the purpose of recovering possession of the premises described in the complaint.

— Hon. James T. Neville, Judge. The contract being for the delivery of a certain quantity of wheat in Chattanooga, places the bnrden of proof of such delivery, in quantity and quality, on the defendant. Gáus & Sons v. Maglechal, 42 Mo. App. 307; Long Bros. v. Armsby Oo., 43 Mo. App. 253; Scharff v. Meyer, 133 Mo. 429.

— Son. James T. Neville, Judge. (1) Presumption is that defendant did not use ordinary care, and from the alleged answer of defendant negligence is inferred. Rayl v. Ereilich, 74 Mo. App. 246. (2) Oan not contract against negligence. Witting v. Railroad, 101 Mo. 637. -(3) In this case the means of showing how the colt was killed is with the defendant and not with the plaintiff. Witting v. Railroad, 101 Mo. 631.

— Hon. James T. Neville, Judge. (1) Only that part of each premium payment was usurious that was in excess of the amount necessary to add to the payment made under the name of interest to bring the rate to eight per cent per annum; that is to say two dollars only of each premium payment was usurious and not the entire payment of three dollars. E. S. 1899, sec. 3709; 27 Am. and Eng. Ency. Law, 918, 925, 942; Eowles v. Loan Co., 86 Mo. App. 103.

— Hon. W. N. Evans, Judge. (1) It being admitted that V. M. Hines, the agent of C. W. White, for the collection of the note in suit, and with whom all the transactions relative to the payment of the note were had, is dead, A. J. Snelson was clearly incompetent to testify, and his testimony should have been excluded. B. S. 1899, sec. 4652 j Williams v. Edwards, 94 Mo. 447; Leach v. MeEadden, 110 Mo. 585; Nichols, Shepard & Co. v. Jones, 32 Mo.

— Hon. Henry G. Riley, Judge. (1) There was no evidence that tbe injury occurred either in the township where suit was instituted, or in an adjoining township, and the judgment should therefore be reversed. Jewett v. Railroad, 38 Mo. App. 48; Backenstoe v. Railroad, 86 Mo. 492; Whitesides v. Railroad, 49 Mo. App. 250; King v. Railroad, 90 Mo. 520; Porter v. Railroad, 66 Mo. App. 624. (2) The second and third instructions for plaintiff are erroneous. Wasson v. Cook, 80 Mo.

— Hon. Elliott M. Hughes, Judge. (1) The defendant Barker, and the eitv of Laddonia, having been sued jointly and a separate and final judgment having been rendered in favor of the city, it was not in the power of the court to render another final judgment in the same cáse. R. S. 1899, sec. 282; Sater v. Hunt, 75 Mo. App. 470; Beshears v. Vandalia Banking Ass’n, 73 Mo. App. 293; Henry v. Gibson, 5S Mo. 570; Holbom v. Naughton, 60 Mo. App. 103.

— Hon. J. L. Fort, Judge. (1) To permit injunction to restrain civil trespass, two conditions must concur: Plaintiff’s title must be admitted or be established by a legal adjudication; and, tbe threatened injury must be of such a nature as will cause irreparable damage. Oamey v. Hadley, 32 Ela. 344; Gause v. Perkins, 3 Jones Eq. ITT; Thompson v. Williams, 1 Jones Eq. 176; Schooner v. Bright, 24 W. Ya. 701; Cox v. Douglas, 20 W. Ya. 175.

Louis City Circuit Court. — Hon. Warwick Hough,, Judge. (1) “Whenever a person has money in his possession, however he may have come by it, that belongs to another, and wbicb -ex aequo et tono be has no right to retain, the person to whom it belongs may maintain an action for it as for money had and received.

— Ron. E. B. McKee, Judge. (1) The court has a discretion to grant or to withhold the remedy, and should withhold it, if the relief sought is inequitable. Marble Oo. v. Eipley, 10 Wall (IT. S.) 339; Blanchard v. Railroad, 31 Mich. 43; Railroad v. Speers, 32 Ga. 550; Story’s Eq. Juris., secs. 750, 776; City of Marshall v. Railroad, 10 Su. Ot. Rep. 846; Murfeldt v. Railroad, 25 A. & E. 144. (2) Respondent asks for specific performance of the covenants named in the deed.

<p>Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>(1) Stockholders are bound by the decree in insolvent proceedings to the extent of showing that it was necessary that assessments to pay creditors should be made, and that they were made. Thomp. on Corporations, sec. 3049; Howard v. Glenn, 85 Ga. 238; Hawkins v. Glenn, 131 U. S. 319; Glen v. Liggett, 135 U. S. 533; Glen v. Marburg, 145 U. S. 499; Railroad-v. Smith, 54 Ohio St. 562; Thomp. on Corp., secs. 3567, 3499. (2) The statutory double liability of the stockholders in a corporation is contractual and may be enforced against the stockholder, in the courts of his domicile. Kirtley v. Holmes, 107 Eed. 1; Hodgson v. Oheever, 8 Mo. App. 318; Bagley v. Tyler, 43 Mo. App. 195; Guerney v. Moore, 131 Mo. 650; Parmer’s Co. v. Gallaher, 43 Mo. App. 482; Sackett Bk. v. Blake, 3 Rich Eq. 225, 234; Aultman’s Appeal, 98 Pa. St. 505. (3) The proceeding is properly in equity. Leuke v. Treadway, 45 Mo. App. 507; Perry v. Turner, 55 Mo. 418; Shickle v. Watts, 94 Mo. 410; King v. Armstrong, 50 Ohio St. 222-233; Turnbull v. Pomeroy Salt Co., 24 Weekly Law Bulletin, 133; Morgan v. Lewis, 46 Ohio St. 1; Younglove Lime Oo., 49 Ohio St. 663; Barnett v. Gifford, 47 Ohio St. 180. (4) The action is good under Missouri statutes. Laws 1891, p. 68; Riley v. Grand Island Receivers, 72 Mo. App. 281.</p> <p>(1) The right to hold stockholders in an amount equal to the stock held by them is a right unknown to common law; it is a right created by statute. As the statute creating this right also prescribes the remedy for its enforcement, that remedy is the only and exclusive remedy. And the remedy prescribed is of such a character as to be available only in the courts of the State creating the corporation, being an equitable proceeding against the corporation and -all its resident stockholders for the purpose of completely winding up its affairs. Einney, Receiver, v. Guy, 106 "Wis. 256; Nimick v. Mingo Iron Works, 25 W. Ya. 184; Bank v. Eraneklyn, 120 U. S. 746; Marshall v. Sherman, 148 N. Y. 10; Eowler v. Lamson, 146 Ill. 472; Bates v. Bay, 198 Pa. St. 513; 3 Thompson’s Corporation, sec. 3054, 3055; 1 Cook Corporation, see. 220, 223; Erickson v. Nesmith, 15 Gray, 221; Rnowlton v. Ackley, 8 Cush. 93; Dauchy v. Brown, 24 Yt. 197; Pollard v. Bailey, 20 Wall. 527. (2) It will not do to say the suit is based upon the Constitution of Ohio and not the statutes. As a matter of fact, the petition distinctly predicates the suit upon the statutes. Marshall v. Sherman, 148 N. Y. 9. (3) Indeed, the suit must be based upon the statutes, as the Constitution of Ohio, so far as the provision in question is concerned, is clearly not self-executing, but 'distinctly calls for legislation to carry out its provision. Marshall v. Sherman, 148 N. Y. 9;" Groves v. Slaughter, 15 Pet. 449; Morley v. Thayer, 3 Eed. Rep. 737; May v. Black, 77 Wis. 101; Woodworth v. Bowled, 61 Kan. 569. (4) Befendants in this cause are not bound by the judgment rendered in Ohio by the court of common pleas because they were never served with summons and did not enter an appearance therein. They were not in said suit represented by the corporation in any such sense as that judgment could be rendered against them or affecting their individual liability. Wilson v. Railroad, 108 Mo. 588; Rood v. Wharton, 67 Eed. Rep. 434; Winston v. Bosler, 102 Eed. Rep. 70; Einney, Receiver, v. Guy, 106 Wis. 256. (5) Upon plaintiff’s theory as to the force and effect of the action of the Ohio case, the demurrer was properly sustained because of a mis-joinder of parties defendant. Plaintiff’s theory is that the Ohio court rendered judgment against Jacob Gruen for a certain amount and against John Gruen for a certain amount, and plaintiff now asks this court to render a judgment against each defendant for tbe amount determined by the Ohio court, plus interest. In other words, he is joining two suits upon judgments rendered against different persons. Whether the suit be considered legal or equitable in its nature, there is a mis-joinder of parties defendant. Perry v. Turner, 55 Mo. 418.</p>

<p>Appeal from Audrain Circuit Court. — Hon. Elliott M.. Hughes, Judge.</p> <p>(1) If tbe decision qf tbe Court of Appeals reported in tbe 74 App. Pep. be tbe law of tbis case, then tbe plaintiff’s petition states a cause of action. Tbe plaintiff is under no-obligation, before maintaining this suit to return to the de7 fendant tbe $750 received by him. He received tbe $750 not in consideration of tbe papers executed by him, but simply as part payment to him of tbe money going to him as bis mother’s heir. These receipts of writings, signed by the plaintiff, were simply given to be used as evidence of tbe payment of tbe administrator to tbe heir. They were not based upon any consideration and were not executed for a consideration,. and were, therefore, not contracts within the sense of contracts based upon a consideration. (2) The paper wherein the plaintiff obligated himself not to further question or .require the administrator to account to him is void upon the face of it and is a fraud practiced by the administrator upon the plaintiff. Before the plaintiff can be required to return the $750 or offer to return it it must be shown that he accepted the $750 as a separate consideration for the execution of the paper. Hancock v. Blackwell, 139 Mo. 440. (3) The fact is, the St. Louis Court of Appeals was in error in holding that plaintiff would have to bring his suit in equity to cancel the receipts, and the circuit court was in error in holding that the plaintiff should return or make a tender of the $750 before he could maintain this action. See separate opinion in Courtney v. Blackwell, by Marshall, J., 150 Mo. 278. (4) Where •the instrument is invalid on the face of it, then there is no cause for equitable interference. 3 Pom. Eq. Juris. (2 Ed.), sec. 1377, and authority cited under note 4; also sec. 1399.</p> <p>(1) W¿ insist this action was not instituted against the right party. This is an action in equity against William Stuart individually to set aside and cancel a settlement and certain receipts given by plaintiff to William Stuart, administrator. The money paid plaintiff was money of the estate paid by William Stuart as administrator in the interest of the estate. If plaintiff should prevail in his action it would affect the estate and William Stuart as administrator, and not otherwise. The estate is the party in interest. The receipts belong to the estate and to cancel them the action should be instituted against the estate of Bache! Stuart. ITeitkamp v. Biederstein, 3 Mo. App. 450; Dillon v. Bates, 39 Mo. 292; Jackman v. Bobinson, 64 Mo. 289; Benin v. Eoberson, 49 Mo. 252. (2) Wm. Stuart, as administrator individually, had a perfect right to purchase plaintiff’s interest in the estate and have plaintiff assign his interest. Such purchase and assignment is not void. State ex rel. v. Jones, 139 Mo. 194. (3) It is admitted that plaintiff, when he signed the writings here sought to be can-celled, knew what the writings were, their purpose and effect, but he seeks to be released from the same on the ground that he was induced to execute the same by fraudulent representations on the part of defendant. It is well-settled law that when a party comes into a court of equity and asks to be released from a contract or settlement “the money received in consideration for the release must be tendered back and the defendant put in statu quo.” (4) Plaintiff’s laches defeats him in this action. Letters were issued to defendant May, 1893. Plaintiff sold and assigned his interest in this estate to defendant July 26, 1893, and this amended petition was filed in September, 1898. Plaintiff had rested on his rights for over five years — had received and gone through with the $750 paid him. Defendant had made his final settlement and had been discharged as administrator. The receipts and other proceedings of plaintiff in 67 Mo. App. 61, and 74 Mo. App. 182, show that plaintiff has known the facts for five years. Burgess v. Railroad, 99 Mo. 496. (5) Eraud must be promptly repudiated and rescission or an offer to rescind made, otherwise it will not be relieved against. Lewis v. Land Oo., 124 Mo. 673; Brockhaus v. Schilling, 52 Mo. App. 73. Demurrer to bill is the proper remedy. Burgess v. Railroad, 99 Mo. 496; Wilson v. Railroad, 120 Mo. 45. •</p>

— Hon. Henry 0. Riley, Judge. (1) The court erred in giving the instructions prayed for by the plaintiff, because there is no testimony showing that the plaintiff’s stomach or bowels was injured. His petition charges that the injury was done to his stomach and bowels. The testimony of all three of his physicians was that neither his stomach nor bowels was injured. He can not sue for one injury and recover for another and different one.

— Hon. Elliott M. :Hughes, Judge. STATEMENT OF THE CASE. Plaintiff is a resident of tbe city of Mexico, Audrain ■county, Missouri. The premises he owns and npon which he resides, fronts seven hundred feet on Clark avenne in said eitv. Plaintiff bas three driveways on his premises with approaches from the avenue into his property, and a tile drainage from his residence to the street from thence under a culvert across the street.

— Son. James T. Neville, Judge. STATEMENT OE THE CASE. Omitting caption, tbe first three counts of the petition are as follows: “Plaintiff for her cause of action says that on the eleventh day of January, 1887, one Isaac Teague executed his promissory note for the sum of $3,000 made payable to the order of this plaintiff, due three years after date and to draw ten per cent per annum from maturity and for value received, and said Teague and his wife,....

— Hon. J. L. Fort, Judge. STATEMENT OF THE CASE. Tbis case came bere on an appeal from a judgment on a demurrer to tbe plaintiff’s petition, wbicb petition is as follows: “Plaintiff states that lie was, on tbe twenty-fourth day of January, 1899, appointed curator of George J. Staggs and Lonisa Staggs, minors, by the probate court of Butler county, in the State of Missouri, and duly qualified as such, and entered upon tbe discharge of bis duties as such, and that be is now…

— Hon. L. B. Woodside, Judge. STATEMENT OF THE CASE. The appellant is a mutual life insurance company doing-business on the assessment plan. Each policy-holder is designated as a member of the association.

— Eon. W. N. Evans, Judge. (1) An allegation specifying tbe act constituting tbe injury and alleging that it was negbgently done, is sufficient. Ravenscraft v. Railroad, 27 Mo. App. 617.

— Hon. J. L. Fort, Judge. Tbis is forcible entry and detainer, under Revised Statutes 1899, section 3320, by Rebecca A. Black, a married woman, to restore ber to tbe possession of lot two north of Delaware creek, of tbe southwest quarter of section nineteen, township twenty-six, range ten, Stoddard county, Missouri, containing about fifty-six acres, into the actual possession of which, under a deed purporting to convey the tract to her, she, George W. Black, her husband, and…

Louis City Circuit Court. — Son. Selden P. Spencer; Judge. (1) The court erred in bolding that tbe petition did not state facts sufficient to constitute a cause of action against defendant. Williams v. Railroad, 112 Mo. 463, and cases there cited; re-affirmed, 153 Mo. 487; Eldridge v. Eisber, 59 Mo. App. 53; Blaine v. Publishers:' George Knapp & Co., 140 Mo. 241.

Louis Oity Circuit Court. — Hon. Beldm P. Spencer, Judge. STATEMENT OE THE CASE. Mary Maag obtained a decree of divorce from her then husband, John Maag, in the circuit court of the city of St. Louis. By the decree John was required to pay to Mary twenty dollars on the first Monday of each month beginning on the second day of July, 1900, for the support of their infant child.

<p>1. Practice, Trial: COURT SITTING AS A JURY: DECLARATION OE LAW. The court sitting as a jury, in the trial of a cause, ■ should not deny to a party declarations of law applicable to the case.</p> <p>2. -: -: EVIDENCE: PRACTICE, APPELLATE. But in the case at bar, all the evidence was introduced by the appellant and the facts are practically undisputed, so that the propriety of the decision may be as well reviewed without the assistance to be derived from definite rulings on propositions of law.</p>