Volume 96 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Bel- , don P. Spencer, Judge. (1) An absentee shown not to have been heard of for seven years by persons who, if he had been alive, would naturally have heard of him, is presumed to have been alive until the expiration of such seven years, and to have died at the end of that term. Lawson on Presumptive Evidence, p. 251; Kanz v. Great Council,'13 Mo. App. 341; Lancaster, Adm’r v. Ins. Co., 62 Mo. 128; Hancock v. Ins. Co., 62 Mo. 32.

— Now. J. C.Lams on, Judge. (1) There was no independent or separate consideration for Cole’s signature on either one of these notes except such as was… Held: in this State that “The creditor of the maker of a note can not set up as against the party holding such note as ■ collateral security for a pre-existing debt, in an attachment suit, any equities existing between the original parties.” Davis v. Carson, 69 Mo. 609; Colbrook Col. Sec. (2 Ed.), sec. 25, pp. 46, 47.

— Hon. James L. Fori, Judge. (1) That a corporation is liable for an offense like the one charged in this information, is no longer an open question. “A corporation is liable to indictment for nuisances created by the positive act of its officers- or agents in the course of their employment, as by the obstruction of a highway.” 7 Am. and Eng. Ency. of Law (2 Ed.), 842; Clark on Corporations, sec. 7, page 198.

— Ho». Henry G. ■Pepper, Judge. (1) It is a settled law of this State that the defendant may have judgment oh his counterclaim. Swope v. Weller, 119 Mo. 564. Defendant may recover in the same action the amount hy which his claim exceeds that of plaintiff’s, whether such claim be in the nature of set-off or recoupment. Hay v. Short, 49 Mo. 139. Under the present code, defendant may recover a balance found to be his due as well by recoupment as by set-off.

<p>Appeal from Scott Circuit Court. — Ho». Henry G. Riley, Judge. •</p>

— Hon. Frank B. Bearing, Judge. STATEMENT OF THE CASE. The petition alleges that the plaintiff is the owner of and possessed of certain quarter sections of land, which the defendants wrongfully entered upon, and cut down trees standing and growing thereon, and removed the same and converted them to their use, to. plaintiff’s damage of $3,000. The answer was a general denial.

— Ho». Frank R. Bearing, Judge. (1) The taxing up of the costs, sought to he re-taxed in the proceeding, was done under the law by the clerk, and is to be regarded as being prima facie ■correct, except as to costs taxed in his own favor. Hazeltine v. Railroad, 39 Mo. App. 440; Tittman v. Thornton, 53 Mo. App. 515.

Charles Circuit Court. — How. Elliott M. Hughes, Judge. (1) The demand, the basis of this action, was never exhibited to the defendant, administrator, and no notice was given him that the demand would be presented to the probate court for allowance and classification, as required by law. Grewe v. Hanszen, 87 Mo. App. 63; Price v. McCause, 30 Mo. App. 627; Secs. 188, 197, 199, R. S. 1899.

<p>Appeal from St. Louis City Circuit Court. — Eon. William Zachritz, Judge.</p> <p>(1) After the discharge of defendant Cunliff, in bankruptcy, from the legal obligation of the contract, this court can not render a judgment for the amount of the debt against them, and inasmuch as the lien is an incident to the judgment against the contractors, against whom an execution must issue, and a return nulla bona be had before proceeding against the property, how is it possible for a court to sustain a mechanic’s lien when there is no contract upon which a personal judgment can be rendered against the contractors ? Bombeck v. Deyors, 19 Mo. App. 38; Steinkamper v. McManus, 26 Mo. App. 52; Johnson, etc., Co. v. Schuyler, 49 Mo. App. 587; Ray Co. v. Cramer, 54 Mo. App. 592. (2) The judicial authority to enforce a mechanic’s lien in Missouri is purely statutory, and does not belong to the powers of a court of equity. Steininger y. Reaman, 28 Mo. App. 594; McAdow v. Sturdevant, 41 Mo. App. 226. (3) In the statement of the law as contained in ‘ ‘ Case and Comment, ’ ’ referred to by plaintiff’s counsel, an examination of the cases will show that the court exercised equitable jurisdiction, and the statutory provisions were entirely different from the statutory provisions of Missouri. Mfg. Co. v. Burns, 59 Mo. App. 396. (4) The testimony shows that by the “order,” whether containing words of the assignment of the account or not, it was intended by the parties to assign, the item of the account of $315, for glass and glazing, to the Drew Glass Company, as the amount of the debt which plaintiff owed to it, and as the particular item of indebtedness from-the Cunliffs to Holland out of which Holland’s indebtedness to the glass company accrued. The Drew Giass Company, if was shown, did the work and furnished the material for $315. It was considered by Holland that the Drew Glass Company had an equitable right to that item, and to make their title thereto sure he executed the written “order” or assignment. Griswold v. Railway, 18 Mo. App. 52; Kimball v. Donald, 20 Mo. 579; Smith v. Sterritt, 24 Mo. 260; Jones v. Hurst, 67 Mo. 568. (5) .The item of $315 having been assigned to the Drew Glass Company before tbe filing of tbe lien paper, plaintiff bas no title under which to maintain a lien for that item, nor can the Drew Glass Company, under an arrangement with plaintiff, maintain such lien, because the lien is a personal matter. Griswold v. Railway, 18 Mo. App. 52; Benham v. Banks, 50 Mo. App. 840.' (6) The testimony is uncontradicted that the Drew Glass Company’s men did the glazing, and were paid by the glass company, but it does not appear from the testimony what amount of the item of $315 constitutes wages. No-lien is given plaintiff for the labor furnished by the Drew Glass Company, and inasmuch as the value of this labor is inseparable from the $315 item, for this conglomeration of lienable and non-lienable items the lien must fail for the whole of said item. Griswold v. Railway, 18 Mo. App. 52; Brown v. Railway, 56 Mo. App. 460; Gallagher v. Schmidt, 55 Mo. App. 116; O’Connor v. Railway, 111 Mo. 194; Gauss v. Houseman, 22 Mo. App. 115. (7) The item of $315 has no dates, nor has the itemization shown in the bill of Drew Glass Company against the plaintiff; nor does the lien paper help-out this defect by the statement that the material was furnished and the labor done betwixt certain dates. The item of $315 is therefore void. Mitchell Plumbing Co. v. Allison, 138 Mo. 50; Curless v. Lewis, 44 Mo. App. 278.</p> <p>(1) The discharge in bankruptcy in no way invalidates or renders unenforcible the mechanic’s lien in this case. Douglass v. St. Louis Zinc Co., 56 Mo. 388; Geibel v. Simeon, 62 Mo. 257; Phillips on Mech. Liens, secs. 299, 300. (2) Section 67 of the Bankruptcy Act avoiding “liens obtained through legal proceedings” if obtained within four months prior to the filing of a petition in bankruptcy, does not embrace-mechanic’s liens at all, and if it did, the lien in the case* at bar was not obtained within said period. In re KerbyDennis Co., 95 Fed. Rep. 116; In re Emslie, 102 Fed. Rep. 291; C. C. A. reversing Cir. Ct., 98 Fed. Rep. 716. (3) It seems to be conceded that if we have established our lien at all it runs upon all of the houses, or at least appellant’s brief makes no contention to the contrary. We cite, however, the following cases: Walden v. Robertson, 120 Mo. 38; Bickel v. Cray, 81 Mo. App. 653; Deardorf v. Roy, 50 Mo. App. 70. (4) There was no assignment by Drew Class Company to plaintiff, but even if it might be so held, it was as collateral security, in no way defeating Holland’s right to sue. Ittner v. Hughes, 133 Mo. 692; Same v. Same, 154 Mo. 55; Fisher v. Patton, 134 Mo. 32. (5) The lien shows upon its face that the “Lights” itemized in Exhibit B meant glass in place, and it is unnecessary to state separately the panes of glass, the putty, oil, tin tacks, the labor and ordinary breakage that enter into glass in place. Mc-Dermott v. Claas, 104 Mo. 14; Walden v. Robertson, 120 Mo. 45; Ittner v. Hughes, 133 Mo. 679; Same v. Same, 154 Mo. 55; Fisher v. Patton, 134 Mo. 52. (6) A lien account without dates, aided by the affidavit stating time of accrual of the demand, has been repeatedly held sufficient. Hayden v. Wulfing, 19 Mo. App. 353; Kearney v. Wurdeman, 33 Mo. App. 447; Bruns v. Braun, 35 Mo. App.; Baer v. Pfaff, 44 Mo. App. 598; Bambrick v. Webster Croves, etc., Ass’n, 53. (7) Mechanics’ lien statute highly remedial and liberally construed. Dewitt v. Smith, 63 Mo. 263. (8) Form of judgment correct. Schoeffer v. Lohman, 34 Mo. 18; Seibel v. Siemon, 52 Mo. 563; Schulenberger v. Hayden, 146 Mo. 582; Landan v. Cottrill, 159 Mo. 308. (9) Evidence reasonably shows houses in course of construction when deeds of trust were filed March 25, 1897, and Buckingham then prima facie mortgagee. Schulenberger v. Hayden, supra.</p>

— Hon. Elliott M. Hughes, Judge. (1) - The court erred in excluding the papers in the replevin suit of E. E. Jones v. Mrs. Mary Rickey, and other evidence proffered by plaintiff for the ■ purpose of showing that Jones had split his cause of action and had abandoned his effort to recover the hogs in controversy in said replevin suit, and had proceeded to judgment for other property described in the writ, all of which constituted but one cause of action, both chattel mortgages…

Louis City Circuit Court. — Now. Selden P. Spencer, Judge. STATEMENT OF THE CASE. The Royal Arcanum is a fraternal-beneficial association incorporated under the laws of Massachusetts and doing business in this State.

<p>1. Taxation: EXEMPTION PROM NOT TRANSFERABLE. An exemption from taxation is not transferable without express legislative authority, nor does it pass by a conveyance of the “property and franchises” of the transferring company. The exemption or immunity granted to the North Missouri Railroad by section 3 of the Act of 1865 (Laws 1865, p. 89), concerning actions for stock-killing, is subject to the same limitations as to transfer.</p> <p>2. Judgment: LIEN EXPIRES WHEN: APPEAL: SUPERSEDEAS. The lien of a judgment expires at the end of three years from its rendition, even although an appeal with supersedeas may stay the execution during that entire period.</p> <p>3. Statute of Limitations: STATUTORY CONSTRUCTION: SCIRE FACIAS. A suit upon a judgment of a justice of the peace is barred by limitation after five years by the Missouri statute (R. S. 1899, sec. 4273), but a scire facias to revive the judgment will lie at anytime within ten years.</p> <p>4. Justice’s Judgment: APPEAL: PRACTICE, TRIAL: PRACTICE, . APPELLATE. An appeal by defendant having been taken from a justice’s judgment was dismissed by the circuit court, whereupon defendant appealed from the dismissal and the appellate court affirmed that judgment. Held, that the statute of limitations did not begin to run against the justice’s judgmeht until the affirmance aforesaid.</p> <p>•5. -: APPEAL FROM: DISMISSAL OF APPEAL: JUDGMENT BECOMES A FINALITY. An appeal from a justice’s judgment vacates it until the appeal is disposed of; but on dismissal of the appeal the justice’s judgment becomes a finality.</p> <p>fi. Justice of Peace: JURISDICTION: STATUTORY CONSTRUCTION. A justice of the peace in 1883 had jurisdiction over an action for $125 damages for the killing of stock, under the general laws of Missouri.</p> <p>7. Case at Bar Distinguished. The case at bar is distinguished from Daniels v. Railroad, 63 Mo. 43) relieving the court from deciding how far the authority of the latter case may be qualified by later Missouri decisions.</p>

Louis City Circuit Court. — Now. Selclen P. Spencer, Judge. (1) The court’s action in referring the case upon the application of the defendant and against the protest and objection of plaintiff, was erroneous. Sec. 698, R. S. 1899; Dooley v. Barker, 2 Mo. App. 325; Schmidt v. Rose, 6 Mo. App. 579; Thornton v. Life Ass’n, 7 Mo. App. 544.

Louis City Circuit Court.- — Hon. Sellen P. Spencer, Judge. (1) The acceptance by a grantee of a deed containing a clause by which he assumes and-agrees to pay the mortgage debt of his grantor, makes him personally liable for the payment of the debt as the principal obligor, and the liability of the mortgagor becomes that of a surety; and all the doctrines governing principals and sureties apply to them according to the decisions cited below.

<p>1. Election Commissioners of tlie City of St. Louis: STATUS OF OFFICE OF ELECTION COMMISSIONERS OF ST. LOUIS DEFINED. The office of election commissioner of the city of St. Louis was created by an act of the General Assembly, the incumbents of the office are the appointees of the Governor, their functions apply to both the city and State and are designed to aid in carrying out, in part, the policy of the State, to secure fair city and State elections.</p> <p>2. -: -: CONSTRUCTION OF CHARTER OF ST. LOUIS CITY. An election commissioner of the city of St. Louis does not come within the letter or spirit of section 10, article 4 of the charter of the city of St. Louis, and is not disqualified from bidding under an advertisement made by the “commissioner of supplies” of the city of St. Louis for bids to furnish the city with supplies, because he is the president of a corporation which offers to bid to furnish said supplies.</p>

— Hoot. George F. Longan, Judge. (1) It was error for the court below to permit plaintiff to introduce in evidence the pleadings and judgment in the case of Olivia A. Brown v. The Mo. Pac. Ey. Co., in support of plaintiff’s plea of former adjudication, contained in his reply. (2) Albert S. Brown, sole plaintiff in the present case, was not only not a necessary party to the former suit of Olivia A. Brown, but he was not a real or even a proper party to that suit.

— No». James Gibson, Judge. (1) The trial court erred in overruling defendant’s motion to dismiss this action for want of jurisdiction. Powers v. Railroad, 169 U. S. 97; Cox v. Railroad, 68 G-a. 44.8; Railroad v. Fulton, 59 Ohio St. 575. (2) The trial court erred in overruling defendant’s motion to stay proceedings in the case at bar until the cost taxed against plaintiff in his former suit upon the same cause of action should be paid. 23 Am. and Eng.

— Ho». W. B. Teas dale, Judge., (1) The judgment should have been set aside on ■defendant’s motion, because defendant was taken by surprise by plaintiff’s attorney, and an improper verdict rendered, and finding by the court rendered in favor of the plaintiff and against the defendant’s! cause of action. R. S. 1899, sec. 800.

— How. J. W. Alexander, Judge. STATEMENT BT BROADDUS, J. This is a suit on the bond of William A. Holman as public administrator and ex-officio public guardian and curator of Ray county, Missouri.

— Hon. Argus Cox, Judge. (1) Instruction No. 1 given by tbe court, purports to cover tbe whole case, and authorized a recovery by plaintiff, if tbe jury should find tbe facts for plaintiff as hypothecated in tbe instruction. Tbe instruction left out of view tbe question as to tbe iron-■safe and inventory clause, and also tbe question of tbe •mutilation of tbe policy, to disprove which tbe burden was placed upon tbe plaintiff.

— Hón. W. W. Graves, Judge. (1) The appellant as executor, as well as trustee for two of the legatees, looked after and took entire charge of the establishing of the paper writing as the last will of Maria S. Fry, deceased, after the contest had been instituted in the circuit court.

— How. E. P. Gates, Judge. (1) When plaintiff received notice of the cancellation of the contract, it was its dnty to stop right then and there, and if any damages had been sustained up to that time, it was entitled to recover them. We invoke the well-known principle of law, that it is the duty of a party to a contract to prevent by all reasonable effort the accumulation of damages. State ex rel. v. Harrington, 44 Mo. App. 297; Lawson v. Price, 2 Law & Eq.

— Son. W. B. Teasdale, Judge. (1) There is no evidence to warrant the -funding of the jury, either on the question of the value of the propertv or measure of damages in favor of the defendants. Ascher v. Schaefer, 25 Mo. App. 3; Schultz v. Hickman, 27 Mo. App. 27; Battis v. McCord, 70 la. 46.

— Now. Edwin R. McKee, Judge. (1) Section 19 of the charter of defendant company -declares that the act incorporating it shall be deemed a public act and shall be liberally construed and shall take effect from and after its passage. Session Acts 1855, page 73-77.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. Held: Smith v. Tobener, 32 Mo. App. 601; Cole v. Skrainka, 105 Mo. 303, 308, 309, where are cited: Kiley v. Oppenheimer, 55 Mo. 374; City of Kansas v. Swope, 79 Mo. 446.

Louis City Circuit Court. — Noil Walter B. Douglas, Judge. STATEMENT OF THE CASE.

— No». James L. Port, Judge. (1) Timber growing and standing on land is a part of tbe real estate and must be disposed of by instruments effectual to convey an interest in real estate, and if respondent did not have title to tbe timber standing upon the land he could not create title in himself by cutting it down and hauling it away. Anderson v. Costigan, 30 Mo. App. 32; Deland v. Vanstone, 26 Mo. App. 301; Alt v. Grosclose, 61 Mo. App. 412.

Louis City Circuit Court. — How. William Zachritz, Judge. (1) The Missouri decisions settle the case for this, court. Irwin v. Wells, 1 Mo. 9; Himes v. McKinney, 3 Mo. 270; Matheny v. Johnson, 9 Mo. 230. (2) The rule is that replevin will lie without demand whenever trover lies without demand; it is elementary law that trover will lie for a conversion. 5 Waits’ Actions and Defenses, p. 483; Pace v. Pierce, 49 Mo. 395; Wells on Replevin, sec. 351.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) The proceeds of an insurance policy on the assessment plan, as contemplated by art. 2, chap. 119, R. S. 1899, made payable to the executors and administrators of the insured, can not be applied to the payment of the debts of the deceased, and the administrator holds the fund as trustee for the heirs and next of kin ■of the insured, free from the payment of debts.

Louis City Circuit Court. — Hem. Selden P. Spencer, Judge. (1) This is an action by respondent against appellant, brought before a justice of the peace, to recover ■$300 alleged to have been loaned by respondent to appellant. The case was appealed to the circuit court. Appellant denied at the trial, and now denies, that the loan was ever made. Judgment was rendered by the circuit court, a jury being waived, against appellant.

Louis City Circuit Court. — Now. Sélden P. Spencer, Judge. STATEMENT OP THE CASE.

Louis City Circuit Court. — How. Selden P. Spencer, Judge. (1) Just compensation for the injury sustained is the principle at which the law aims, and the parties will not be permitted by express stipulation to set this principle aside. Meyer v. Hart, 40 Mich. 517; Hahn v. Horstman, 12 Bush 249. (2) The sum named must not only be reasonable in itself, but the parties themselves must intend it to be regarded as liquidated damages irrespective of the terms employed.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The contract was not changed hy the letters between the parties, dated March 28 and March 30, and April 4,1899. In order to change a contract there must be the same unity of mind and definiteness of understanding as is required in the creation of one.

Louis City Circuit Court. — Eon. Eoratio D. Wood, Judge. (1) We submit that the doctrine of commingling, apart from proof of actual user, rests on the presumption that a certain mode of keeping the funds implies a user of the funds of a benefit derived from them. In re Schofield, 99 111. 513; In re Sudds, 66 N. Y. S. 231; Briggs v. Walker, 19 Ky. L. Rep. 1490; 10 Am. and Eng.

Louis City Circuit Court. — Bo». John A. Talty, Judge. (1) The circuit court erred in peremptorily instructing the jury to find for the respondent against the appellant, either as a joint maker or as an indorser, for the following reason: The testimony showed that the appellant was not a maker, hut was accepted hy the respondent and his indorser, Henry Wollman, as an indorser.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. STATEMENT. On December 29,1887, Alexander Frankenthal and William Goldstein were the owners of adjoining lots on Washington avenue, in the city of St. Louis, upon which each was about to erect a building.

— How. John W. Henry, Judge. (1) The instruction is in strict harmony with the ■condition of the contract, was fully supported by the ■evidence, and was therefore properly given. Briggs v. Ins. Co., 53 N. T. 446, 2 Ins. L. J. 929; Hobbs v. Ins. Co., 11 'Out. App. 741; Miller v. Ins. Co., 41 111. App. 395; Ins. Co. v. Foote, 22 Ohio St. 340. (2) In Miller v. Ins. Co., 41 111.

<p>Appeal from Holt Circuit Court. — Hon. Gallatin Craig, Judge.</p> <p>(1) Section 1 of the Bankruptcy Act defines the word “transfer.” In re Ft. Wayne Electric Corp., 99 Fed. Rep. 400; Worden v. Columbus Electric Co., 96 Fed. Rep. 803; Strobel v. Knost, 99 Fed. Rep. 409; In re Conhaim, 97 Fed. Rep. 923; Pirie v. Title & Trust Co., 182 U. S. 438, 45 L. Ed. 1171-6; In re Cutwillig, 1 Am. Bank. Rep. 388; In re Cray, 3 Am. Bank. Rep. 647. (2) -The court erred in declining to give the instruction requested by the plaintiff covered by our second assignment. Buchanan v. Smith, 16 Wall. 277; Collier, Bankruptcy, pp. 316-319; In re Philip Jacobs, 1 Am. Bank. Rep. 518; Brandenburg, Bankruptcy (2 Ed.), pp. 567-569; Main v. Cien, 7 Biss. 86, F. C. 8973; North v. House, 6 N. B. R. 365, F. C. 10310; In re Kahley, 4 N. B. R. 124, F. C. 7593.</p>

— Hew. Paris C. Stepp, Judge. (1) “It is the settled doctrine of this court that if upon the pleadings and undisputed facts the judgment is for the right party, there can he no reversal no matter what errors intervened npon the trial.

— How. Paris G. Stepp, Judge. (1) The unexecuted oral agreement between Slover and Rock is a nullity in law. It constituted no obstacle to Rock’s right to enforce his $493 note and mortgage. It was an accord, without any satisfaction. Dry Goods Co. v. Goss, 65 Mo. App. 59: Vining v. Ins. Co., 89 Mo. App. 315; Wilkerson v. Bruce, 37 Mo. App. 159; Barton Bros. v. Hunter, 59 Mo. App. 618; Shaw v. Burton, 5 Mo. 478; Russell v. Lytle, 22 Am. Dec. 537; Bank v. DeGrauw, 35 Am.

— Hon. Gallatin Craig, Judge. (1) If the contention of respondent is correct that the court had no jurisdiction the garnishee was bound to set up such facts before the justice. Hopkins v. Huff, 67 Mo. App. 394. (2) This objection to the jurisdiction can not avail the garnishee anything; it stands on the same footing as the objection of a third person questioning the validity of the proceedings collaterally. Goodman v. Gordon, 61 Mo. App. 685.

— Ho». Gallatin Craig, Judge. (1) The court erred in not granting Mm a new-trial, because tbe affidavit filed with the motion for a new trial shows that the Dr. Johnson, who wrote the prescription, offered in evidence for the purpose of showing that the sale of whiskey made to Jack Brinegar,: for which defendant was convicted, was a regularly registered practicing physician. Laws of 1874, p. Ill, see. 3; 37 Mo. App. 576.

<p>1. Criminal Procedure: DIFFERENT COUNTS: EVIDENCE: HARMLESS ERROR. Where there are different counts in an information and there is a failure of evidence as to certain counts, it is better to nolle prosequi such counts, or for the jury to return a verdict for the defendant thereon; in this cause, however, the failure to do either of these is harmless error.</p> <p>2. -: WANT OF ERROR IN RECORD: AFFIRMANCE. Where there is no error in the record the judgment should be affirmed.</p>

— Hon. Gallatin Craig, Judge. STATEMENT BY BROADDUS, ff. The plaintiffs were at and prior to the sixteenth day of March, 1901, engaged as partners in the business of putting up and retailing natural ice in the town of Maryville, Missouri, and the defendant company located at Burlington, Iowa, was engaged in the business of constructing and putting in operation machinery for the manufacture of artificial ice.

— Hon. A. D. Burnes, Judge. (1) The lower court erred in refusing appellant’s demurrer to the evidence because the evidence did not prove nor tend to prove that the rail fell directly on respondent’s foot, but that it rebounded or. rolled on it after falling.

Appealed from Buchanan Circuit Court. — How. A. M. Woodson, Judge. (1) “It is well settled that the master may conduct his business in his own way and the employee knowing the hazards of his employment, waives the right to compensation for injuries incidentally resulting therefrom.” Bradley v. Railway, 138 Mo. 293; (2) Whatever danger there, was, was perfectly evident to Parsons and was a risk assumed by him.

— Row. J. W. Alexander, Judge. (1) Under the evidence of the respondents themselves, they, C. H. Longfellow and others, are not the real parties in interest and, hence, can not maintain this action. Draper v. Minor, 36 Mo. 290; Douthitt v. Stinson, 63 Mo. 278; Lilly v. Menke, 126 Mo. 190; Wilson v. Polk County, 112 Mo. 126; Bliss on Code Pleading (1 Ed.), sec. 409; State to use v. Matson, 38 Mo. 489; Whittelsey’s Practice, sec. 158.

— Hon. J. W. Alexander, Judge. (1) All courts in Missouri will take judicial notice of all public laws, the counties composing judicial circuits, in what circuit a county is situate, the terms of circuit courts and the beginnings thereof, and, accordingly, that the June term of Clay Circuit Court began in 1902 on the ninth day of June in that year. Session Acts 1901, p. 108, et seq.; State ex rel.

— Hon. J. W. Alexander r Judge. (1) The return of the sheriff is in words and figure's as follows and is sufficient: “Executed the within… Held: The statute under consideration is a penal statute, (b) The force of the statute “is wholly spent within the territorial limits of the State.” 108 Mo. 464. (c) The .defendant is not liable for failing to deliver a message. The liability of the company is only for a failure to transmit, and does not attach for a failure to deliver.

— How. John A. Hockaday, Judge. (1) The complaint is good and fully advises defendant of the charge, and the same being in the words ,of the ordinance is sufficient. See on this point the following authorities: Gallatin v. Tarwater, 143 Mo. 40; St. Louis v. Knox, 74 Mo. 79; Trenton v. Devorss, 70 Mo. App. 8; St. Louis v. Writzel, 130 Mo. 600; St. Louis v. Smith, 10 Mo. 439; Memphis v. O’Connor, 53 Mo. 468; St. Louis v. Frein, 9 Mo. App. 590; Springfield v. Ford, 40 Mo.

— Sow. John A. Hockadcuy, Judge. (1) The demurrer should have been sustained.' The petition and writ both show that the board of directors acted within the scope of their authority under the school law. The question of whether the relator was a resident or non-resident called for the exercise of judgment and discretion; it was a question upon which the board must have evidence and pronounce a conclusion.

— lion. John A. Hockaday, Judge. (1) The trial court erred in not sustaining defendant’s motion to suppress the depositions of plaintiff’s witnesses, Taylor, Scott and Swink; and also erred in… Held: in Hainey v. Alberry, 73 Mo. 427, that an acknowledgment to a deed of trust, taken before a notary who was the trustee in said deed of trust, was void. The object of our statute is obviously to secure the utmost fairness and impartiality in the taking of depositions.

— How. John A. Hockaday, Judge. (1) A partner or joint contractor who abandons the venture can not hold his co-partner- or co-contractor to an account, and the party performing is entitled to hold the entire proceeds for his own use. Henry v. •Bassett, 75'Mo. '89; Rhea v. Tathem, 1 Jones Eq. (N. Car.) 290; Johnson v. Bright, 15 111. 464; Grafton v. Paine, 7 App. D. C. 255.

Original Proceeding by Mandamus. (1) Mandamus will lie to compel a county clerk to discharge his general duties as clerk, as they arise, pending contest between rival county commissioners. In re Delgado, 140 U. S. 586; Dutton v. State, 42 Neb. 804; Ottawa v. People, 48 111. 233. (2) Respondent’s duty to record the licenses is .fixed and unvarying, hence, mandamus is appropriate. Potioni Place v. Railway, 51 Kansas 609.

Appealed from Livingston Circuit Court. — No». J. W. Alexander, Judge. (1) No demand-in writing for the delivery of possession was necessary. R. S. 1899, sec. 3321; Bierkenkamp v. Berkenkamp, 88 Mo. App. 448; Young v. Smith, 28 Mo. 68. (2) No notice to quit was necessary. R. S. 1899, sec. 4111; Ish v. Chilton, 26 Mo. 259; Young v. Smith, 28 Mo. 69; Stephens v. Brown, 56 Mo. 25; Ilulett v. Nugent, 71 Mo. 132; Russell v. McCartney, 21 Mo.

— How. Elbridge J. Broaddus, Judge. (1) The court will take judicial notice that corn planted in May, 1894, was a growing crop on July 5 of that year. Garth v. Caldwell, 73 Mo. 622; Culverhouse v. Warts, 32 Mo. App. 420; Bliss-on Code. Pleading, arts. 177, 188.

cm. W. K. James, Judge. (1) The petition does not state a cause of action and defendant’s objection to the introduction of any evidence thereunder should have been sustained. Current v. Railway, 86 Mo. 62; Crane v. Railway, 87 Mo. 588; Johnson v. Railway, 96 Mo. 340. (2) There is no evidence that the car door was defective. The only evidence is that when plaintiff attempted to open it, it fell and injured him.

— ffcw. W. L. Jarrott, Judge. Statement by Broaddus, J. During the month of June, 1900, appellant and the respondent, James D. Dyer, entered into an oral contract by which appellant was to undertake to cut and put up forty acres of timothy and clover hay belonging to- and growing on land owned by the wife of respondent, James D. Dyer, and was to receive the one-half part thereof for putting up the same.

— No». Nat M. Shelton, Judge. (1) The duty was imposed by law upon the prop•erty-owner to extinguish the fire if he could reasonably do so. Thompson on Negligence (Late Edition), sec. 2327; Tilley v. Railroad, 49 Ark 535; 6 S. W. 8; Railroad v. McKay, 69 Miss. 139; 12 So. 447; Hoyle v. Railroad, 28 Hun. 363; Douglas v. St. Johns, 18 Mo. 362; Railroad v. Miller, 48 N. E. 663; Railroad v. Bailey, 46 N. E. 688.

— Ho». W. K. James, Judge. (1) Under the contract, the contractors were required to do anything “implied or necessarily connected with the proper completion of the work,” including excavating “to firm and solid ground,” andnó order of the architect, written or otherwise, was required for this. Early v. 0 ’Brien, 64 N. Y. Sup. 848; Woodruff v. Railroad, 108 N. Y. 39.

<p>1. Partnership: ACCOUNTING-: AGREEMENT. On a review of the evidence relating to a settlement between partners, it is found that certain accounts were to be taken by the plaintiff at a given amount, and that there was error in charging plaintiff with only half of that amount.</p> <p>2. Res Ad judicata: FORMER SUIT: RESCISSION: ACCOUNTING: VENDOR’S LIEN. The plaintiff brought an action against defendant to set aside a transaction involving the sale of a farm by him and a purchase of a store and the settlement of certain accounts, on the ground that at the time he was non compos, and praying for an adjustment of the equities of the parties. In this he was defeated and his bill was dismissed without more. He subsequently brotight this action for an accounting and to charge the balance due him as a lien upon the farm. Held, the former action was not a bar to this since on the bill in that case and the finding of the court an investigation of the accounts of the parties could not be had nor a vendor’s lien enforced.</p> <p>'3. Appellate Practice: ABSTRACT: RECITAL. In an abstract of the record, nothing more is required than a recital of the various entries.-</p>

Louis City Circuit Court. — How. Walter B. Douglas, Judge. (1) An employee or servant is liable in a suit brought by Ms master to indemnify the latter from the consequence of Ms negligence or misconduct. Sehouler on Domestic Relations (5 Ed.), sec. 478; Green v. New River Co., 4 T. R. 589; Pritchard v. Hitchcock, 6 Man. & Gr. 165; Steinhauser v. Spraul, 127 Mo. 556.

Louis City Circuit Court. — Ho». Walter B. Douglas, Judge. (1) This is a suit in equity and will be considered and reviewed by this court de novo. Chapline v. Stone, 77 Mo. App. 525; Bene v. Schnecko, 100 Mo. 258; McElroy v. McElroy, 101 Mo. 308.

Louis City Circuit Court. — Ho». Walter B. Douglas, Judge. (1) The plaintiff is not the real party in interest and the contract sued on being a personal option can uot be assigned. Sec. 540, R. S. 1899. (2) If the writing without any other evidence shows a cause of action, the limitation is ten years, but if any other evidence than the writing has to be resorted to, to make out a case, the period is five years. Meneffe v. Arnold, 51 Mo. 536; Carr v. Thompson, 67 Mo. 472.

Louis City Circuit Court. — Hon. William Zacforits, 'Judge. (1) Defendant renounced the contract, and plaintiff’s right of action for profits lost, accrued at once. Berthold v. Co., 165 Mo. 280; Roehm v. Horst, 178 U. S. 1; Chapman v. Railroad, 146 Mo. 494; Gabriel v. Co., 57 Mo. App. 526.

— How. Elliott M. Hughes, Judge. (1) The defendant, as the successor in title to the North Missouri Railroad Company, was, when this suit was brought, lawfully in possession of the entire strip of land conveyed to it by Diggs in 1856. R. S. 1899, sec. 3321; R. S. 1899, sec. 3349; Hargis v. Railway, 100 Mo. 210. (2) The statute of limitations can not be here'invoked as a bar to the defendant’s possession, because the land was conveyed to it for a pub-lie use.

Louis City Circuit Court. — Ho». Walter B. Douglas, Judge. (1) The statute of 1895 is intended to he exclusive respecting'the modes of ratification of contracts made during infancy, and the common law is not thereby revived. R. S. 1899, see. 3423; Sutherland on Stat. Construction, sec. 140; R. S. 1899, sec. 4177; State v. Slaughter, 70 Mo. 484.- (2) Defendant’s conduct after coming of age did not constitute a ratification under the statute of 1895.

. Appeal from St. Louis City Circuit Court. — How. William Zachritz, Judge. STATEMENT OF THE CASE.

Louis Court of Criminal Correction.— Eon. Willis E. Clark, Judge. (1) As it does not appear from the record that any venue was proven, the judgment will not he allowed to stand. State v. Babb,- 76 Mo. 503. (2) The State failed to prove that the city of St. Louis was a municipal corporation. The evidence must correspond with the allegation. Frederick v. Allgaier, 88 Mo. 508. (3) The larceny was not proven, except by inference.

Louis City Circuit Court. — lío». D. D. Fisher, Judge. The court erred in overruling appellant’s motion for a new trial. (1) The demurrer to the evidence came too late. Moorehouse v. Ware, 78 Mo. 103; Watson v. Rice, 46 Mo. App. 554. (2) It was properly overruled, because: (a) It admitted every material fact proven in respondent’s favor and every possible inference therefrom. Baird v. Railway, 146 Mo. 281; Young v. Webb City, 150 Id. 341; Bank v. Simpson, 152 Id. 656.

Louis City Circuit Court. — Hem. Franklin Ferris, Judge. (1) “If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee and he may recover the property or its value…

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The probate court has sufficient jurisdiction to allow attorney’s fees for services rendered in behalf of an estate, and to order the administrator to pay same as part of the expense of administration. R. S. 1899, sec. 95; Lycan v. Miller, 56 Mo. App. 79; State ex rel. v. Tittmann, 103 Mo. 553; State ex rel. v. Walsh, 67 Mo. App. 348. (2) Attorneys conducting a case jointly are entitled to share the fee equally.

<p>Appeal from St. Louis City Circuit Court. — New. John A. Talty, Judge.</p> <p>STATEMENT OE THE CASE.</p> <p>Martin Anna was a lad between ten and eleven years of age at tbe time Ms left foot was crushed on a switch track of the Missouri Pacific Eailway Company in the city of St. Louis, by some freight cars passing over it.</p> <p>The accident occurred at the foot of Cherokee, street, an east and west thoroughfare which intersects some of the defendants tracks running north and south near the west bank of the Mississippi river.</p> <p>The testimony is that the improved portion of the street ended at the west side of the railway tracks, no crossing having been made, although wagons and teams belonging to tbe Anheuser-Busch Brewing Association were driven across the tracks at that place and then north along the east side of the tracks to an icehouse some distance above, and that people and wagons crossed in going to and from shanties built on the river bank. On the north side of Cherokee street there was a sidewalk coming down to the switches and at the northwest corner stood a building, perhaps the icehouse mentioned above, that obstructed the view of the tracks lo the north, so that a person going down the sidewalk towards the river could not see cars approaching from that direction until he emerged beyond the line of the building, which would carry him within three feet of the first switch.</p> <p>Martin Anna and his younger brother were coasting down the sidewalk on a Sunday afternoon in a toy express wagon, such as boys play with; at the same time an engine pushing some cars was backing along the west switch from the north and the wagon with Martin Anna in it either ran onto said switch and was •struck by the rear car, as some witnesses said, or ran between the trucks of the car, as others said. At that spot there was a ditch or depression of uncertain depth in defendant’s roadbed between its tracks in which Martin lodged and lay unhurt until two or more cars had passed over him, when in the excitement and confusion of the moment, which was increased by bystanders shouting to him to get out, he raised himself from the ditch and attempted to crawl from under the train with the result that the wheels caught his left foot on the rail and crushed it.</p> <p>The petition charges the defendant’s employees with several careless acts and omissions of duty, to-wit: failure to ring the bell or blow the whistle while the train was backing, having no watchman at the crossing to notify persons of the approach of the train and no man on the rear car to keep a lookout while' the train backed, as an ordinance of the city of St. Louis required, and neglect of the servants operating the train to stop its movement as soon as possible after discovering or being able by ordinary care, to discover the danger to the plaintiff.</p> <p>The defenses pleaded were a general denial and a plea of contributory negligence, which charged the plaintiff with running the wagon he was in so rapidly that he was unable to control its movements although he knew there was danger ahead, failing to look or listen for the approach of trains or heed warnings given by persons near the track, or the noise of the train and the engine bell, with neglecting to lie still after he was in a safe place under the train and to otherwise exercise such care as a boy of his age would have exercised under similar circumstances.</p> <p>At the instance of the defendant the court gave the following instruction:</p> <p>“7. The jury are instructed to disregard all the evidence taken in this cause, except that which relates to the allegation in the petition, that the servants of defendant in charge of the train discovered, or could, by the exercise of ordinary care, have discovered, the peril of plaintiff in time, by the exercise of ordinary care, to have avoided injury to plaintiff, and in respect to that allegation, the jury are instructed that, unless they believe from the evidence that the employees of defendant in charge of the train which injured the plaintiff knew that he was under the cars while the same were moving, or that, by the exercise of ordinary care they might have known, after he had been thrown under them, that he was there, and failed to stop the train as soon as they could stop it, the verdict must be for the defendant.”</p> <p>This instruction was likewise given by the court of its own motion:</p> <p>1 ‘ 1C. The jurors are instructed that if you believe and find from the evidence in this ease that'on the twenty-sixth day of August, 1900, Cherokee street was an open public street in the city of St. Louis, and that the railway switch track mentioned in the evidence was laid upon and across said street; and if you further ' believe and find from the evidence that on said day the defendant, St. Lonis, Iron Mountain & Southern Railway Company was running and operating its cars upon ■ and over said track and that the plaintiff, Martin Anna, while riding in a small wagon in an eastwardly direc- ' tion on the north side of said Cherokee street, ran into, ' or was struck by, the wheel or wheels of one of the cars of a train of cars of said defendant moving in a southwardly direction on said track at said time, and was thereby thrown under said train of cars; and if you further believe and find from the evidence that the servants and employees of defendant in charge of and operating the engine and said train of cars, discovered, or by the exercise of ordinary care might have discovered, the peril and danger of plaintiff near, or on said track, if you believe and find from the evidence ' he was in’ a position of danger, in time to have stopped said train of cars and averted the injury to plaintiff ■ and that they failed to do so, then you should find a verdict for the plaintiff.”</p> <p>This instruction requested by the defendant was 'refused:</p> <p>“2. The jury are instructed that, if they find from the evidence that both plaintiff and defendant were guilty of negligence which directly contributed to plaintiff’s injury, plaintiff can not recover.”</p> <p>The jury returned a verdict for the plaintiff, and ■defendant filed a motion for a new trial which the court sustained on two grounds: first, that error was committed in refusing said instruction No. 2; second, that error was committed in failing to embody in instruc"'tion No. 1C. the defense of contributory negligence specially pleaded, that plaintiff failed to lie still after he got upon the railroad track under the train.</p> <p>' This appeal was taken by plaintiff from the order sutaining the motion for a new trial.</p> <p>(1) The motion for new trial should have been overruled, as the court committed no error in giving or refusing instructions. (2) Instruction.number two, asked by the defendant, was properly refused. It is too general and covers the whole case. Even if it would have been proper to have instructed the jury upon plaintiff’s contributory negligence at the time he attempted to get out from under the train, the defendant having failed to ask for an appropriate instruction presenting such issue to the jury, the court was not bound on its own motion to supply the deficiency. Drey v. Doyle, 99 Mo. 459; Dempsey v. Eeinstedler, 22 Mo. App. 45. (3) One in a perilous position may attempt to escape a reasonably apprehended danger, and his action in so doing is not to be determined by what a person of ordinary prudence and care would have done under the circumstances. There is no rule of human conduct whereby a standard can be erected in such a case for the guidance of the jury. Thomason ,v. Eailroad, 74 Mo. 553; Siegrist v. Arnot, 86 Mo. 200'.</p> <p>(1) Our contention is that the plaintiff’s negligence in attempting to crawl out of the gutter in which he was lying in safety was an independent act of negligence on his part, which was contemporaneous with defendant’s alleged negligence in failing to stop the train, and was, hence, a direct and proximate contributing cause of his injury. In other words, his negligent act (if the jury should have so found it to be) mingled with the negligence of defendant (if negligent it was) up to the very moment that the injury was inflicted, and when such conditions exist no recovery can be had. Watson v. Eailwav, 133 Mo. 251; Sinclair v. Eailway, 133 Mo.. 245. (2) In view of the manifest correctness of the trial court’s action in sustaining the motion for a new trial and “the well-established.rule of appellate courts not to interfere with the discretion •of the trial courts in refusing or granting a new trial unless it clearly appears that the discretion has been abused and injuriously exercised, the presumption being that the discretion was properly exercised,” we respectfully submit that the order sustaining the motion should be affirmed. Howland v. Reeves, 25 Mo. App. 467; Railway v. McElroy, 161 Mo. 594; Loyd v. Railway, 53 Mo. 515; Reid v. Ins. Co., 58 Mo. 421.</p>

<p>1. Vendee: DAMAGES: WARRANTY: PRACTICE, TRIAL. If a vendee retains a purchased article and 'sues for damages for a breach of warranty in regard to its quality, he can not recover the entire purchase price unless the article is shown. to have been worthless for any purpose.</p> <p>2. Evidence: INSTRUCTION: PRACTICE, TRIAL: PRACTICE, APPELLATE. When the evidence in a case, is such that different inferences in regard to what the facts actually were may .be deduced, and no instruction or declarations of law were asked, an appellate court will not say the case was decided on an erroneous theory.</p>

Louis City Circuit Court. — Ucm. William Zachrits, Judge. (1) The words ‘‘without good cause” are an essential averment in the petition, without which no cause of action for abandonment is stated whether the' cáse be civil or criminal in its nature. State v. Satchwell, 68 Mo. App. 39; State v. Link, 68 Mo. App. 161; State v. Brinkman, 40 Mo. App. -284.

<p>Appeal from St. Louis City Circuit Court. — How. D. D. Fisher, Judge.</p> <p>(1) The allowance of a claim by the United States District Court in Bankruptcy is a judgment, and such allowance operates as res judicata. Eppwright v. Kaufman, 90 Mo. 25; Nans on v. Jacob, 93 Mo. 331; Hayden Slate Co. v. Iron Co., 62 Mo. App. 569; Kendrick v. Manufacturing Co., 60 Id. 22; O’Brien Boiler "Works Co. v. Haydock, 59 Id. 653. (2) Under the Bankruptcy Act of 1898, section 57g, the claims of creditors who have received preferences can not be allowed unless such creditors shall surrender their preferences. Bankruptcy Act 1898, section -57g; Pirie v. Chicago Title & Trust Co., Trustee, 182 U..S.438.</p> <p>(1) If a bankrupt shall have given a preference within four months before the filing of the petition in bankruptcy, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. Bankruptcy Act 1898, section 60b; Pepperdine v. Bank, 84 Mo. App. 233; Pepper-■dine v. Bank, 88 Mo. App. 81. (2) The showing by the trustee of the allowance of the claim of the Columbia Distilling Company is not á’final judgment, and can not be pleaded as res adjudícala in the case, for a former judgment will not be deemed res adjudícala when it is not a final one.” Norton v. Bohart, 105 Mo. 615.</p>

Louis City Circuit Court . — Eon. James E. Withrow, Judge. STATEMENT OE THE CASE.

Louis City Circuit Court. — Now. John A. Talty, Judge. (1) In order to entitle the plaintiff to recover in this action upon quantum meruit, it was incumbent upon him to show, first, that the materials and work furnished by him were of value to the defendant owner, and were by him accepted and retained. Yates v. Ballentine, 56 Mo. 530; Eyerman v. Cemetery Ass’n, 61 Mo. 489; West v. Freeman, 76 Mo. App. 96.

Louis City Circuit Court. — Now. Selden P. Spencer, Judge. (1) The loans in question were usurious, not made . in accordance with the law of the State, or the by-laws of the association. The money was not offered to the shareholders in open meeting, and neither-of said shareholders made any bid in such open meeting of any amount of premium upon said loan. The loan was not put up at auction and awarded to the member who bid the highest premium for the same.

Louis City Circuit Court — Him. Walter B. Douglas-, Judge. STATEMENT OF THE CASE.

Louis City Circuit Court. — Ho». Horatio D. Wood, Judge. (1) In O’Brein v. Loomis, 43 Mo. App. 29, the rule is stated by Judge Thompson, p.' 40, thus: “The element of damage included in one of the instructions was ‘any loss of earnings.’ It is conceded there was. no evidence tending to show what plaintiff’s earning-capacity was. . . . The giving of this instruction was therefore error.” Culberson v. Railroad, 50 Mo.

Louis City Circuit Court. — Row. Franklin Ferris, Judge. (1) The variances between the petition and lien, and the lien and notice, and between the petition and notice, are immaterial. Notice must be misleading to invalidate it. Construction Co. v. Jones, 60 Mo. App. 3, et seq. (2) It is sufficient if the lien paper states the names of the contracting parties with whom plaintiff agreed to do the work and furnish the materials. CaMll, Collins & Co., v. Ely, 55 Mo.

.Appeal from St. Louis City Circuit Court. — Ho». 8el-den P. Spencer, Judge. In a civil action the prevailing party shall recover his costs against the other party, unless express provision is otherwise made by law. Sec. 1547, R. S. 1899; Sec. 1552, R. S. 1899; Hawkins v. Nowland, 53 Mo. 328; DuPont v. McLaran, 61 Mo. 502. The court in equity may award costs either against plaintiff or defendant. Discretion of trial court to award costs. . Turner v. Johnson, 95 Mo. 431.

Louis City Circuit Court. — Hon. D. I). Fisher, Judge. -STATEMENT- OF THE CASE. The suit is for damages on account of injuries received by plaintiff by being thrown from the rear platform of one of the defendant’s cars where he had gone preparatory to alighting from the car when it reached his point of destination.

Louis, City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) A judgment for damages for breaches of a ■contract occurring prior to the filing of such suit is not •a bar to another suit for damages for breaches of said (same) contract occurring after the filing of the first suit- and not included in said judgment, where the damages sought to be recovered are damages for separate and distinct breaches of a continuous contract of uncertain duration,, divisible and…

Petition for Writ of Certiorari to Review the Issuance of Liquor License. The court was without authority of law or jurisdiction, as follows: (1) To issue or grant a iicense at a special term. Sec. 2997, Acts 1901, page 142. (2) To issue license without petition being filed ten days before first day of the court to which it was to be presented. Ibid. (3) To issue license to any but male citizens. Sec. 2993, R. S. 1899; State ex rel. v. County Court, 66 Mo.

Louis City Circuit Court. — Now. Warwick Hough, Judge. STATEMENT OP THE CASE. Plaintiff instituted this action before a justice of the peace by filing tbe following account: “Oct. 29, 1901. “Martin & Young, Lawyers: E. C. Greer & Sons Eealty Co., a corporation, 719 Chestnut street, City.

<p>Buies of St. Louis Court of Appeals: NOTICE. The rules of the St. Louis Court of Appeals require notice to be given to the adverse party or his counsel of a notice of motion to affirm the judgment; but such notice may be waived.</p>

— Hon. John A. Hochaday, Judge. The bond in this case seems to have been framed under section 2287, Revised Statutes 1889. Sec. 849, R. S. 1899. It is a bond with different conditions to that required in ordinary appeal by section 809, Revised Statutes .1899. The bond here sued on did not bind appellant' to perform the judgment rendered in the circuit court of Callaway.county.

— Ho». John A. Uockaday, Judge. (1) The evidence shows that Boon entered into the partnership in good faith, and assumed one-third of the debt to the Glasgow Savings Bank as the consideration of the sale of a third interest to him in the stock of goods. He permitted the business to be conducted in his name for over three years and assumed all the liability of a partner in said business during that time, under the belief that it was being conducted for his benefit.

J. W. Alexander, Judge. (1) We claim that the court committed error in holding that the executor was without power to sell or dispose of the note as a trustee. We say that by the terms of the will he was, as to this note, a trustee to hold it or its proceeds, and had full power to sell, or collect, or reinvest.

- — -How. J. W. Alexander} Judge. (1) The plaintiff can not recover in this case for the reason that the cause of action, if any exists, is in favor of W. C. Lemon and Sarah J. Lemon, jointly, and not in favor of Sarah J. Lemon, severally. Culver v. Smith, 82 Mo. App. 390-398, and cases there cited. (2) The cause of action alleged in plaintiff’s petition is for failure to deliver to her the hotel furniture and fixtures alleged to have been traded to her by the defendants.

— No». A. M. Woodson, Judge. (1) The court erred in admitting in evidence, over the objections of the defendant, ordinance No. 2998 and the contract for the' grading of Colorado avenue. Neither the ordinance nor contract was relevant to the issues made by the pleadings. The rule, too well known to need the. citation of authorities, is: The evidence must correspond with the allegations of the petition, and be confined to the point at issue.

— Hon. A. M. Woodson, Judge. (1) The court erred in permitting the witness, Poteet, to testify as to the amount of voluntary travel over the road, termed by the pleadings Thirty-second street. Downend v. Kansas City, 156 Mo. 60; Carle v. DeSoto, 156 Mo. 443.

— ÍZo». A. M. Woodson, Judge. (1) The court erred in not sustaining defendant’s demurrer to plaintiff’s case, because plaintiff based his ease solely on alleged customs as to climbing through between cars and as to hell signals hy switch engines, and there was an entire failure of proof as to any such customs, either in relation to trains standing or moving on the east main line, or even in relation to cars standing or moving in the yard.

— Now. Elbridae J. Broaddus, Judge. (1) The defendant was not entitled to the possession of the dead human body under the statutes relating to the disposition of human bodies. R. S. 1889, sec. 6883, 6884, 6885, 6886. (2) The plaintiff as an undertaker, under the directions of the friends of the deceased, had a right to the possession of the body for the purpose of burial. R. S. 1889,' sec. 6884.

<p>Appeal from Daviess Circuit Court. — Hon. J. W. Alexander, Judge.</p> <p>(1) The judgment can not stand for the reason that the land alleged to have been inclosed was not and is not cultivated land as alleged to be so in plaintiff’s statement. Sec. 4573 R. S. 1899. (2) Plaintiff’s action is not within the spirit or meaning of said section 4573.</p> <p>(1) Where the abstract of the appellant does not contain all of the evidence offered at the trial, the-appellate court will not consider the sufficiency of the evidence, nor whether there was or was not any evidence on any given fact. Carpenter v. McDavitt, 66 Mo. App. 1; Oglegay v. College of Dental Surgery, 71 Mo. App. 339; Davis v'. Vories, 141 Mo. 234; State v. Fritterer, 65 Mo. 422. (2) The appellate court has no constitutional power to, and will not, pass on the weight of conflicting evidence in an action at law where the case was tried by the court sitting as a jury. Blanton v. Dole, 109 Mo. 64; State ex rel v. Stead, 143 Mo. 248; Sutter v. Eaeder, 149 Mo. 297; James v. Hicks, 76 Mo. App. 108; Eice v. McClure, 74 Mo. App. 383. (3) Instructions numbered one, two, three and four, which were refused by the court, were properly refused.</p>

— How. P. G. Stepp, Judge. (1) This court has power to hear and determine this writ of error. State v. Myers, 99 Mo. 112; State v. Van Matre, 49 Mo. 268; State v. Vaughn, 26 Mo. 29; Magee v. State, 8 Mo. 495. (2) The court is not deprived of this right because the plaintiff in error plead guilty. State v. Levy, 119 Mo. 434.

— Now. Paris G. Stepp, Judge. (1) An agency can. not be proven by the admissions or statements of the supposed agent. Bank v. Morris, 125 Mo. 1. c. 350; Mitchum v. Dunlap, 98 Mo. 418, and cases cited; Iron Co. v. St. Louis Co., 112 Mo. 383; Bank v. Leyser, 116 Mo. 51, 1. c. 68; Mechem on Agency, sec. 100.

— How. A. D. Burnes, Judge. (1) Joint trustees constitute but one person in law, and when the administration of a trust is vested in co-trustees they all form but one collective trustee, and all must join or be joined in a suit with respect to the trust property. White v. Watkins, 23 Mo. 423; Vandever’s Appeal, 8 W. & S. 405; Perry on Trusts (4 Ed.), sec. 411; 22 Ency. Plead, and Prac., p. 19, and note.