Volume 99 — Missouri Appeal Reports

Louis City Circuit Court. — Now. Warwick Rough, Judge. STATEMENT. The petition is as follows: “The plaintiffs, Evans R. Darlington, James G-.

<p>1. Lost Note: .JUDGMENT; PRACTICE, TRIAL: PRACTICE, APPELLATE. On an appeal from a judgment on a lost note by defendant, tbe bill of exceptions recited: “It is admitted he executed a note; counsel for plaintiff offered the note in evidence; plaintiff testified that he had given a note to the attorney to sue on, and he had misplaced it.” Eeld, that from the whole record it was evident that the note was not introduced, and was still lost, when the judgment was rendered.</p> <p>2. -: -: -: --•: BOND: RECORD: STATUTORY CONSTRUCTION. Under Revised Statutes 1899, section 457; a note is not negotiable, though for value received, unless payable to the payee named, or to order, or to bearer; sections 744 and 745 require that plaintiff, before judgment on a lost negotiable note, shall give bond. Eeld, that in an action on a lost note, where no bond was given, and no affirmative showing of negotiabilty made, it will be presumed on appeal, as against error in the trial court, that the note was negotiable.</p>

<p>Sales: QUALITY OF GOODS: EVIDENCE: SUFFICIENCY OF. Evidence that, out of 600 fruit trees sold plaintiff, all but twelve of them died, though they were well planted and cared for, and though similar trees purchased at the same time of other parties did reasonably web, was sufficient to support a finding that they were not of the quality contracted for.</p>

Charles Circuit Court. — How. E. M. Hughes, Judge. The contract is against public policy and void. The contract is void under the statute (E. S. 1899, sec. 3418), for the reason, no memorandum thereof was made, and was not, in fact could not, be performed within one year. Withnell v. Pelzold, 104 Mo. 509; Combs v. Transfer Co., 58 Mo. App. 112; s. c., 107 Mo. 351; Shultz v. Tatum, 35 Mo. App. 143.

— Hon. Elliott M. Hughes, Judge. The court gave at the instance of the defendant the following instruction: ‘ ‘ The jurors are instructed that if it has been shown by the evidence in this cause that the plaintiff at the time he purchased the mare from the defendants, was informed by the defendants or either of them that the said mare would break away from the hitching post, and plaintiff accepted said mare after being so informed, then the fact, if shown, that said mare…

<p>Appeal from Pemiscot Circuit Court . — Hon. II. C. . Riley, Judge.</p> <p>(1) Section 2748, Revised Statutes 1899, giving justices of the peace jurisdiction in misdemeanors, was passed in 1879, while section 3006 was passed in 1891. It radically changed the mode of procedure in cases arising under the act relating to dramshops, and will prevail over the former statute by necessary implication. “An affirmative enactment of a new rule implies a negative of whatever is not included or is different; and if, by the language used, the thing is limited to be done in a particular form or manner, it includes a negative that it shall not be done otherwise.” Ex parte •Joffee, 46 Mr. App. 360. (2) Where two statutes prescribe different modes of doing the same thing, the subsequent statute will prevail. Webb v. Midway Lumber Co., 68 Mo. App. 546. (3) The statute fixes the minimum legal sale of'one not a dramshop-keeper, druggist or merchant, at three gallons (R. S. 1899, sec. .3004). If he is a druggist merely he can not sell less than four gallons (R. S. 1899, sec. 3047). If a merchant he can not sell in less quantities than five gallons (R. S. 1899, sec. 8563). (4) The indictment did not state the proper quantity to bring it under the provisions of the druggist law, and was bad for the reason. State v. Greenhagen, 36 Mo. App. 24; State v. Ford, 47 Mo. App. 601; State v. Stephens, 62 Mo. App. 232; State v. Fanning, 38 Mo. 409; State v. Baskett, 52 Mo. .App. 389. An indictment for selling as a druggist should state the name of the person to whom the sale was made, in order that defendant may be advised sufficiently to produce a prescription, if he has one, covering the alleged illegal sale. State v. Harris, 47 Mo. App. 558; State v.Baskett, 52 Mo. App. 389.</p> <p>(1) The justice of the peace had jurisdiction to try and determine this case. R. S. 1899, sec. 2748. (2) The defendant should not have been indicted for selling liquor as a druggist, or a pharmacist, for the reason he was neither, as is shown by the evidence. Therefore, he was properly indicted for selling liquor without having a license as a dramshop-keeper. State v. Goff, 66 Mo. App. 491; State v. Workman, 75 Mo. App. 454.</p>

Louis County .Circuit Court . — Hon. J. W. McElhirmey, Judge. STATEMENT. . The action is unlawful detainer commenced before a justice of tbe peace of St. Louis county. The cause was tried before tbe justice on December 3, 1901. Tbe justice took it under advisement and on the sixth day of December, which was Friday, gave judgment for plaintiff.

— How. Edioin B. McKee, Judge. (1) Our first contention is that the written contract embodied the entire agreement of the parties as to the kind of engine to be sold, and the trial court erred in permitting defendant Hunter to give -oral testimony varying the terms of the written agreement to purchase the engine in question.

— Hon. Leigh B. Woodside, Judge. It is unnecessary to multiply authorities to this court, supporting the doctrine that sureties will be held liable only according to the strict letter of their bond. .The rule is well settled both by the text-books and by the decisions of this court. Brandt on Suretyship and Guaranty, secs. 393-396; Nofsinger v. Hartnett, 84 Mo. 549; Bauer v. Cabanne, 105 Mo. 110.

.Appeal from Knox Circuit Court . — Hon. Edwin R. McKee, Judge. The law is well settled in this State, that the appellate court will reverse the judgment of a trial court based upon the verdict of a jury which is manifestly the result of prejudice or passion. Bertram v. Railway, 154 Mo. 639. We submit that the verdict of the jury in this case is the result of passion and prejudice and is certainly against the weight of the evidence in the cause.

Louis County Circuit Court . — Hon. J. W. McElhinney, Judge.

1. Parol Evidence: PROMISSORY NOTE: MAKER OE NOTE': PARTNERSHIP. It is competent to show by parol, when properly pleaded, that the makers of a note are partners, and that they executed the same as a firm obligation. '2. -: -: -: -. Parol evidence is competent to show that one who appears from the face of a note to be, a co-maker, executed the note as surety. 5.---: -: -: SURETY: ACTION: EVIDENCE.

— Ho». J. L. Fort, Judge. (1) We are of the opinion that it is well settled as the law of this State that a policy of insurance may be assigned, although the Assignee has no pecuniary interest in the life of the assured, and where the assignment is executed by both the assured and beneficiary for a valid consideration, absolute and unconditional, the assignee is entitled to the whole of the proceeds of said policy. Such is the holding of McFarland, Admr. v. Creath, 35 Mo.

— lion. L. B. Wood-side, Judge. STATEMENT. The first count of the petition alleges in substance that on the twelfth day of March, 1901, the defendant (a corporation) sold to the plaintiffs four hundred acres of land (describing it) situated in the county of Pulaski, Missouri, at $1.50 per acre or for $600; that plaintiffs immediately paid the purchase price and entered into possession of the land; that defendant, prior to making the sale to plaintiffs, had sold and conveyed…

— Horn. J. T. Neville, Judge. STATEMENT. The defendant is a fraternal beneficiary society organized under article 2, chapter 12, Revised Statutes 1899. The*order has a lodge system with supreme and subordinate lodges, a ritualistic form of lodge work, a secret initiatory ceremony with signs and passwords and a representative form of government. Its supreme executive authority is vested in a supreme lodge.

—■ Hon. Henry C. Pepper, Judge. STATEMENT. Emma Aekerson, the plaintiff, is a girl fourteen years of age and sued by her next friend. Peter Ackerson was her grandfather. He died intestate in the year 1900. Defendant Ply is the administrator of the estate.

Louis City Circuit Court.— Hon. W. B. Douglas, Judge. (1) The new matter pleaded as a defense in the first count in the answer is not, within the meaning of section 2050, Revised Statutes 1889, “a cause of action arising out of a contract or transaction set forth in the petition as the foundation of plaintiff’s claim.” And the court erred in not sustaining motion to strike it out.

<p>1. Parent and Child: SERVICES BY CHILD. Evidence in an action by- a decedent’s daughter to recover from his estate for services, examined, and held to warrant a finding that the services were rendered at the instance of the deceased, and upon his promise to pay.</p> <p>2. -: -: INSTRUCTION: PRESUMPTION: PRACTICE,TRIAL. An instruction, in an action by a decedent’s daughter to recover from his estate for services, that if plaintiff continued to reside with her parents after attaining her majority, and did work as before, the presumption is that the services were gratuitous, and that the burden was on her to rebut this presumption, is not in conflict with another instruction that ordinarily a contract to pay for services could be presumed but that a presumption might arise, under certain circumstances, that the services were gratuitous, and that in this case it was a question for'the jury, taking into consideration the circumstances and the relationship of the parties, to determine if there was an implied contract between the parties.</p> <p>3. -: -: -. In a suit by decedent’s daughter against his estate for services, an instruction that plaintiff could not re- - cover unless she showed, by a preponderance of evidence, that thei services were performed under an eocpress or implied contract to pay for them, was proper.</p> <p>4. -: -: -: -. Where in an action by a decedent’s daughter for services, plaintiff’s evidence showed that she came home at her father’s request, and began work with the understanding that she was to receive compensation, it was not error to instruct that she could recover for services from the time she began work up to the death of her father.</p>

Greene Circuit' Court. — How. Jas. T. Neville, Judge. Failure to complete the work for which the contract is let within the time therein stipulated, renders the taxbill void. Held: under the circumstances, to be of the essence of the contract.

Argus Cox, Judge. (1) The casual reading of respondent’s answer will, we think, convince the court that plaintiff’s motions to strike out a part of it and to make it more definite and certain, ought to have been sustained. (2) The attempted change of the corporate character of the defendant city by petition to the county court was and is a nullity. R. S. 1889, sec. 5257. State ex rel. v. Young, -61 Mo. App. 494.

<p>Practice, Appellate: EXCEPTIONS: INSTRUCTIONS, 'where the record shows that no exceptions, were saved in a trial of a case, except to the refusal of a new trial, and no instructions were asked, and the evidence was conflicting, there can be no review of the case except on- the record proper.</p>

— Ho». W. N. Evans, Judge. The husband or wife can not maintain a suit' for divorce on the grounds of indignities offered by the children of the defendant, unless . such indignities were brought .to the knowledge of the defendant. 68 Mo. App. 205. And it must appear that the plaintiff was the innocent and injured party, and that the indignities complained of were of such a nature as to tend to the subversion of the family relation. Webb v. Webb, 44 Mo. App. 229.

— How. W. N. ■Evans, Judge. (1) One who purchases land at an invalid sale of the same for general State and county taxes, and who subsequently pays taxes thereon, can not in the absence of a statutory provision therefor, recover from the owner of the land, either the amount paid by .him for the land at such sale, or the amount of the taxes subsequently paid. ■ (2) At common law the purchaser at a sale for taxes comes strictly and rigidly within the rules of caveat emptor.

Francois'Circuit Court.— Eon. James D. Fox, Judge. (1) The matter of restraining stock from running at large by a municipal corporation pertains to “the police power, and the wrongs complained of having been caused by an act of an officer of the city while attempting to enforce a police regulation,, the maxim respondeat superior does not, apply; therefore, defendants’ demurrer, offered at the close of plaintiff’s testimony, should have been sustained. McYey v. Barker, 92 Mo.

— Ho». J. T. Ne-ville, Judge. It was the duty of the defendant to keep and maintain the guard railing in a safe condition. Abutting, as this heavy, iron-barbed railing did, upon a main thoroughfare of a populous city, it constituted in its loose and unanchored condition a public nuisance and a constant menace to the passer-by. Franke v. City of St. Louis, 110 Mo. 516; Stevens v. Walpole, 76 Mo. App. 213; Kirkpatrick v. Knapp, 28 Mo.

— Wow. Argus Cox, Judge. STATEMENT. Plaintiff brought suit in the Wright Circuit Court in 1899, in replevin, to recover of the defendant the possession of a stock of drugs, medicines and paints. The record does not show whether or not the merchandise was delivered to plaintiff under the writ.

— Now. Elliott M. Hughes, Judge. (1) It was the duty of appellant to keep only so much of its road in good condition as was necessary to render it reasonably safe for travel. Bassett v. St. Joseph, 53 Mo. 290; Brown v. Glasgow, 57 Mo. 157; Craig v. Sedada, 63 Mo. 417; Stephens v. Macon, 83 Mo. 345; Fritz v. Kansas City, 84 Mo. 642; Ellis v. Wabash Ry., 17 Mo.

<p>1. Fraud: FRAUDULENT CONVEYANCE: FRAUD AGAINST SUBSEQUENT CREDITORS. Where one has fraudulently contracted debts, which he can not pay and then makes a voluntary conveyance of his property and thereafter contracts other' debts, which he can not pay, the inference is that he intended by his voluntary conveyance to hinder and delay his subsequent as well as his existing creditors.</p> <p>2. Fraudulent Conveyance: CONVEYANCE TO WIFE BY SHERIFF’S DEED. The relation of wife does not preclude or disqualify her to buy the husband’s lands, or his interest in lands at a sheriii’s sale, if she does so with her own money and without collusion with her husband to protect him from his creditors.</p> <p>3. Courts: JURISDICTION OF: MINUTES OF CLERK AND JUDGE: RECORD CAN NOT BE ATTACKED COLLATERALLY. The minutes kept by the judge and the clerk of a court of record may at a term subsequent to the trial at which the judgment was rendered, be used for the purpose of correcting an error of the clerk in entering the judgment as for the purpose of entering a correct judgment when the wrong one had been recorded, or for the purpose of entering a judgment nunc pro tunc, where the clerk omitted to enter any judgment at all upon the records, but can never be used in a collateral proceeding to show error or mistake in the judgment itself, or to contradict the date or the term of the court at which the judgment purports to have been rendered.</p> <p>4. Federal Courts: JUDGMENTS OF FEDERAL COURTS. The judgment of the Federal courts áre entitled to equal rank and presumption of regularity, as judgments of the circuit courts of this State.</p>

— How. E. M. Hughes, Judge. (1) Revised Statutes 1899, section 188, provides that any one may exhibit his demand by serving npon. the executor “notice in writing stating the amonnt and nature of his claim with a copy of the instrument of writing or account upon which the claim is founded.” We insist the demand here is not “an account stating the amonnt and nature of his claim.” It is a conclusion.

— How. Jas. T. Ne-ville, Judge. (1) The judgment should have been against the interpleader and her sureties.

— Ho». E. M. Hughes, Judge. The finding and judgment for.the defendant in the lower court should.be affirmed here, because the petition of the plaintiff does not state facts sufficient to constitute a cause of action against the defendant, under the statute, to recover compensation for improvements, in this that the plaintiff wholly failed to set forth in his petition the nature of his title.

— Eon. E. G. Pepper, Judge. The case of Sherrell v. Murray, 49 Mo. App. 233, decided by this court is “on all fours” with this case. The facts are the same except that the animal was replevined from the marshal before sale. The facts there as here were established by uncontradicted evidence. Plaintiff’s ownership of the animal was conceded, thus making a prima facie case for plaintiff.

—lion. J. T. Neville, Judge. (1) If the execution is fair on its face and comes from a court having jurisdiction of the subject-mat-, ter it is the duty of the constable to serve the same. Turner v. Franklin, 29 M6. 285, 287-8; Merchant v. Bothwell, 60 Mo. App. 341, 348-9; Mechem’s Public Officers, secs. 745, 768; Cooley on Torts' (1 Ed.), pp. 449, 464; American and English Ency. Law (1 Ed.), p. 530. (2) That judgment is a finality.

— Eon. G. W. Thornberry, Judge. . (1) This was a conditional sale, made on installments under a written contract that plaintiff held the legal title to the property contracted for until full payment. Hence, plaintiff had no legal right to possession thereof until it first tendered to this appellant the full amount paid hy appellant on said property less twenty-five per cent for compensation for use. Secs. 3412 and 3413, R. S. 1899; Burt v. Mears, 41 Mo.

— Hon. J. T. Neville, Judge. (1) Five days after the execution was delivered to the said J. D. Stokes this cause of action arose: Revised Statutes 1899, section 4133, commands the constable to deliver possession to the landlord within five days from the time of receiving said execution. Execution can be issued to the township in which defendant resides. R. S. 1889, sec. 4036.

— Hon. F. R. Dearing, Judge. (1) Tt is a proposition too well settled to require the citation of authorities in its support, that the existence of malice and the want of probable cause are both necessary to the maintenance of an action for malicious prosecution. They are each distinct and essential ingredients of this private wrong, and both must exist at the institution of the prosecution complained of.

<p>Appeal from Newton Circuit Court. — Hon. H. G. Pepper, Judge.</p> <p>(1) Defendants were liable upon their indemnity bond, under section 423, Revised Statutes 1899. Kessler v. Gold Spring Distilling Co., 72 Mo. App. 573; Flint v. Young, 70 Mo. 221; Palmer v. Shenkel, 50 Mo. App. 571; Rebmon v. Durant, 53 Mo.. App. 493; Cabinet v. White, 48 Mo. App. 404; Rivercomb v. Durlcet, 74 Mo. App. 570. And appellant had no other remedy. (2) Even if this action were not authorized under section 423, Revised Statutes 1899, defendants would be liable at common law upon the indemnity bond for damages to plaintiff, because the bond was voluntary, not in violation of any statute, had no illegal purpose and did not contravene public policy. Rubleman Hardware Co. v. Greve, 18 Mo. App. 6; Barnes v. Webster, 16 Mo. 258; Williams v. Coleman, 49 Mo. 325; 1 Brandt on Suretyship and Guaranty (2 Ed.), sec. 22. (3) A constable has the common-law right to require indemnity before seizing or selling property. Shinn on Attachment, secs. 203; Smith v. Cieotte, 11 Mich. 383; Smith v. Asgood, 46 N. H. 178; Shriver v. Harbough, 37 Pa. St. 399. In addition, the constable had the common-law right to require an indemnity bond before selling property upon which he had levied — claimed by a third person.</p> <p>(1) The personal property in this case was seized and levied on under the writ of attachment. There was never any levy under the execution issued by the justice. The character of the levy and seizure in the first instance determines tbe right of the constable to exact an indemnity bond. Here it was under a writ of attachment and the property was in the custody of the law, as distinguished from a mere seizure under an execution. Where property has been seized by a constable under a writ of attachment, there is no provision of the law authorizing the giving of an indemnity bond. State to use v. Koontz, 83 Mo. 323; State to use v. Furniture Co., 22 Mo. App. 109; State to use v. Fitzpatrick, 64 Mo. 185; State to use v. Reyburn, 22 Mo. App. 303. (2) There is a local statute, applicable alone to the city of St. Louis, authorizing the constable or sheriff to demand a bond of indemnity in attachment cases, but it can not be that this statute can be invoked here. State to use v. Reyburn, 22 Mo. App. 109; State to use v. Furniture Co., 22 Mo. App. 185; Kreher v. Mason, 25 Mo. App. 291. (3) The point that this bond is good and can be enforced as a common law bond is not tenable, (a) This action is not to enforce a bond at common law. The case was tried in the lower court upon the theory that it was a valid bond given under the statute, and plaintiff will not be permitted to change front in this court and contend that it is now good as a common law bond, (b) Under the common law the constablé had no right to demand of the plaintiff a bond of indemnity before he shall levy an execution even. An agreement to reward an officer for doing that which it is his duty to do is void, and there can be no common-law liability. Kick v. Merry, 23 Mo. 72; Thornton v. Railroad, 42 Mo. App. 58. (4) Property was claimed by an execution debtor as exempt, but the plaintiff in the execution directed the constable to seize and sell .the property notwithstanding this, and executed an indemnifying bond, which was held by this court to be void. Johnson v. Ragsdale, 73 Mo. App. 594; Harrington v. Crawford, 136 Mo. 467. (5) It is a mistake to say that McElhaney had no other remedy. The indemnity bond being void, he could sue in replevin, or sue the. constable and defendants, Rogers and Rush both, in trespass. Or he need not have filed a claim with the constable. Palmer v. Shenkel, 50 Mo. App. 571; Cabinet v. White, 48 Mo. App. 404.</p>

<p>1. Petition: AVERMENT: PROOF: REMEDY: PLEADING: PRACTICE, TRIAL. A plaintiff will not be deprived of a remedy, nor his rights judicially denied merely because his averments were not all sustained by proof, when the unproven allegations were not necessary to warrant recovery, and the testimony supports averments sufficient to establish a cause of action.</p> <p>2. Practice, Trial: ISSUES: REPLY: WAIVER OF FILING REPLY : PRACTICE, APPELLATE. The case at bar was tried upon the theory that the issues had been completed by a reply on behalf of plaintiff to the affirmative matter set out in defendant’s answer, as appeared from the testimony offered by defendants to establish the affirmative allegations constituting their defense, as well as by the absence of any default for want of reply, or motion for judgment upon the pleadings, and although the record does not affirmatively show that a reply was filed, such objection can not be presented to the appellate court.</p>

<p>Appeal from Scott Circuit Court. — How. Henry C. Riley, Judge.</p> <p>(1) A simple inspection of the plat of the railroad yards and grounds shows the absurdity of the position that these yards. might lawfully be fenced. And when the plat was conceded to be correct and that the animal was killed in these yards, the court should then and there have given defendant’s peremptory direction to the jury to find the issues for the defendant. (2) Por a-still greater reason should the peremptory instruction asked by defendant at the close of all the evidence have been given. (3) The jury found that the defendant should have fenced off from the outside world a village of from 300 to 400 people and its terminal yards in which there was several miles of tracks, and this without the evidence of a single witness testifying directly to the feasibility of such a thing.</p> <p>(1) This action is brought under section 2867, Revised Statutes 1899, and was formerly known as fifth section of Damage Act. Under this section the courts have repeatedly held it is not necessary to allege or prove negligence on the part of defendant further than that a fence could lawfully have been built and maintained, but that it was. not done. Edwards v. Railroad, 66 Mo. 567; Russell v. Railroad, 83 Mo. 510; Wymore v. Railroad, 79 Mo. 247. (2) The court properly overruled defendant’s objection to the introduction of testimony under this petition, for it fully meets all that has been required of a petition in the above cases. When the animal is killed in the yards, the company is prima facie exonerated, etc., says defendant, but avoids citing any law bearing out that statement, while the cases cited above show they must fence yards, switches, and depot grounds when practicable. In-the case of Bean v. Railroad, the defendant asked “that if the cow was killed within the switch limits of the town of Irondale the plaintiff can not recover,” which was refused and the court said rightly. The fact of injury and that the road was not fenced when it occurred, make a prima facie case against the company, under the section this action was brought. Wymore v. Railroad, 79 Mo. 249. (3) Appellant’s fifth contention is that instruction No. 2 given for plaintiff and instruction No. 3 given for defendant conflict. Instruction No. 3 given for appellant places the burden of proof on the! plaintiff. The burden of proving the allegations of the petition rested on the plaintiff, but the burden of proving the necessity of leaving the tracks unfeneed rested on the defendant. Crenshaw v. Railroad, 54 Mo. App. 235.</p>

— How. L. B. Woodside, Judge. STATEMENT. The plaintiff filed the following complaint before John A. Pond, police judge, of the city of Lebanon (a city of the fourth class), to-wit: “The City of Lebanon, Missouri, plaintiff, v. Wil-' liam Gordon, defendant. “John Cum, being duly sworn, on oath states that William Gordon, on or about the 27th.day of July, 1901, and within the corporate limits of the said city of Lebanon, did then and there unlawfully and willfully violate…

— Row. R. C. Pepper, Judge. (1) The defendant certainly had a right to run its train along its own track, and because it saw fit to do so in a way which, in the judgment of its employee», was proper, and no more likely to frighten horses than if a whistle had been constantly blown, upon what possible ground can it be condemned?

— Row. Frank B. Dearing, Judge. STATEMENT. The case is here on a full transcript. The abstracts of the record made by defendant (appellant) are somewhat deficient, bnt not so much so as to authorize the court to sustain plaintiff’s motion to dismiss the appeal. The suit was on a promissory note and originated before W. A. Hill, a justice of the peace in Jefferson county, Missouri.

<p>1. Justice of Peace: SUIT IN JUSTICE COURT, COMMENCED WHEN: TAXBILL. Under section 3850, Revised Statutes 1899, a suit in a justice court on a taxbill is not commenced until the writ is issued and delivered to the constable for service.</p> <p>2. -: -: DOCKET ENTRIES NOT EVIDENCE OE DELIVERY OF WRIT. It is not competent to offer the entries in the docket of a justice of the peace, to show when the summons issued by him was delivered to the constable.</p> <p>3. -: -: EVIDENCE, SECONDARY, WHEN ADMISSIBLE. Owing to a constable’s failure to indorse on the writ.the date that it was delivered to him, testimony tending to establish , that the justice of the peace was in the habit of issuing writs and depositing them in a certain drawer in his desk for the constable to take to serve, may be and in this case is admissible in order to keep the lien alive.</p>

<p>Appeal from Greene Circuit Court. — Hon. G. W. Watson, Special Judge.</p> <p>(1) The conveyance by deed of the eighty acres of land promised John R. Marsh the grantor in the deed, and A. W. Ollis, agent for John D. Robinson, to pay the note owned by said Robinson, and secured by deed of trust on the land. For this reason the plaintiff, the assignee of said note, as also the assignee of said obligation can maintain this suit in equity. Crone v. Stinde, 156 Mo. 262 (overruling Hicks v. Hamilton, 144 Mo. 495); Ellis v. Harrison, 104 Mo. 270. (2) The testimony of witnesses Marsh, Ollis and Musgrave, was also admissible as a part of the res gestae, and served to elucidate the whole transaction. State v. Roper, 141 Mo. 327. (3) The defendant’s admission of receiving the deed from Marsh, restraining possession of the same, entering on the land, and selling and moving the house off the land, should have warranted the trial court in summarily rendering judgment against him. State to use v. O’Neill, 151 Mo. 67; State ex rel. v. •Smith, 150 Mo. 75.</p> <p>(1) It has been held by this court that where a party to whom a deed had been made and recqrded containing an agreement to' assume a deed of trust on the land, and he himself afterwards conveyed by warranty deed, the same land which deed' also contained’ a similar clause binding his grantee to pay the debt, that such assumption clause did not bind the first grantee. Brinkerhoif-Trust and Sav. Co. v. Horn,'83 Mo. App* HI; Bull v. Titsworth, 29 N. J. Eq. 73; Culver v. Badger, 29 N. J. Eq. 74; Cordts v. Craves, 29 N. J. Eq. 446. (2) The plaintiff must recover, if at all, upon the cause of action pleaded. There is a variance between the petition and whatever evidence of assumption was offered. Cray v. Race, 51 Mo.,App. 553; Houston v. Tyler, 140 Mo. 252.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. S. P. Spencer, Judge. ■</p> <p>STATEMENT.</p> <p>This cause was taken to the circuit court by appeal from a justice’s court.</p> <p>The justice’s transcript (omitting caption and certificate) is as follows:</p> <p>“Suit on an account; demand $39.97. Account filed and summons issued to constable E, J. Morrissey, November 28, 1899, returnable December 12, 1899 at 7 a. m. Summons returned executed; case called for trial December 12, 1899, at 7 a. m. Prayer for change of venue filed; not granted because affidavit not complete. Plaintiff appeared; defendant, though duly called, comes not, and makes default. The justice waited three hours, and defendant still remaining in default, the justice heard the evidence and finds for the plaintiff in the sum of $40.47. It is therefore adjudged by the justice that plaintiff recover from defendant the sum of forty dollars and forty-seven cents for his debt and cost of suit. Execution issued.to constable E. J. Morrissey, December 12, 1899, returnable according to law.</p> <p>“Now, on. this the 21st day of December, 1899, comes the defendant and files his affidavit and bond, praying an appeal, with Mississippi Valley Trust Company as surety. Bond approved and appeal granted; ease transmitted to circuit court, city of St. Louis, with all papers in the cause and transcript of docket.</p> <p>Judgment......•............$40.47</p> <p>Justice............. 2.65</p> <p>Constable.................. 2.15</p> <p>Levy ....................... 1.00</p> <p>Watchman.................. 18.50</p> <p>Transcript paid.............. 1.00</p> <p>The application for a change of venue which the justice overruled (omitting caption) is as follows:</p> <p>“Oscar B. Guthrie, the defendant in the above-named cause, makes oath and says that he can not have a fair and impartial trial before the above-named justice, before whom said cause is now pending, on account of the. bias and prejudice of the inhabitants of the district thereof, and he therefore prays a ‘change of venue’ to other justice having jurisdiction thereof, in accordance-with the statute in such cases made and provided.</p> <p>“Oscar B. Guthrie, Defendant.</p> <p>‘ ‘ Sworn to and subscribed before me, this 9th day of December, 1899.</p> <p>(Seal.) “John B. Edwards,</p> <p>“Notary Public, City of St. Louis, Missouri.”</p> <p>In the circuit court defendant moved that the judgment of the justice be vacated and the cause be remanded to the justice with directions that he grant a change of venue of the cause. On the hearing of the. motion, the notary (Edwards) testified that he was commissioned as a notary on the first' day of March, 1898, for four years. The court sustained the motion, entered an order vacating the judgment of the justice and remanded the pause to him with directions that he award the change of venue theretofore applied for. An unavailing motion to set aside this order was made by plaintiff, whereupon he appealed.</p> <p>(1) The case being called for trial, and the plaintiff being ready, there remained nothing for the justice to do, except to overrule the application for a change of venue, because it was not in form required by law. A change of venue is not authorized unless all the provisions of the statute in relation to the application have been complied with, and formerly, before the amendment of the statute with regard to changes of venue from a justice of the peace, it was held that the affidavit must be sworn to by the party himself and not by an agent or attorney. Huthsing v. Maus, 36 Mo. 101; Levin v. Dille, 17 Mo. 64. “The right to a change of venue is strictly statutory and does not exist except where given by the statute.” Manson v. Coleman, 86 Mo. App. 22.</p> <p>(1) The application for a change of venue being regular, being properly verified and filed in time, justice Houghton had no further jurisdiction in the matter after it was filed, either over the person of the defendant or the subject.of the action, and the pretended judgment rendered by him was and is absolutely null and void. R. S. 1899, sec. 3973; Jones v. Pharis, 59 Mo. App. 254; Endicott v. Hall, 61 Mo. App. 186; State ex rel. v. McCracken, 60 Mo. App. 650. (2) If the justice had no further jurisdiction after the affidavit for change of venue was filed, then the circuit court can never acquire jurisdiction on an appeal. ' State ex rel. v. McCracken, 60 Mo. App. 650; Reinhardt v. Kempf, 72 Mo. App. 650; Planing Mill Co. v. Short, 58 Mo. App. 320; Insurance Co. v. Foster, 56 Mo. App. 198. (3) If a court has no jurisdiction over the subject-matter of the action, the objection can be made at any stage of the proceedings — can be made for the first time in the appellate court — and parties do not waive their rights to object to the jurisdiction over the subject-matter of the action by appearing and trying a case on its merits. Henderson v. Henderson, 35 Mo. 434; Graves v. McHugh, 58 Mo. 499.</p>

Louis City Circuit Court. — Hon. Warwick Hoiigh, Judge. (1) There was no evidence before the court upon which to base any judgment herein in favor of plaintiff, as plaintiff offered in evidence no judgment or execution in his favor against garnishee’s presumed creditor, debtor in original'case No. 16122 referred to in statement heretofore.

Louis County Circuit Court. — Eon. J. W. McElhinney, Judge. (1) If a witness who can see testifies that he looked and did not see an object which, if heTooked, he must have seen, such testimony is unworthy of consideration. Baltimore Traction Co. v. Helmes (Md.), 1 Am. Neg. Rep. 64-65.

— Ho». H. C. Pepper, Judge. (1) The evidence on the part of the plaintiff'was not sufficient to support a verdict in his favor, and the court should have sustained the demurrer at the close of the evidence in his behalf. There was no proof that the animal was struck within the right of way inclosure.

— Now. Edwin R. McKee, Judge. (1) The only question in this case is, Did the-stakeholder have notice not to pay over the money to-the other party to the bet before he paid it over ?

Louis City Circuit Court. — Ho». P. R. FUtcraft, Judge. (1) “The street commissioner shall have under his special charge the construction, reconstruction, repairing and cleaning of the public streets, alleys and places, excepting parks.” Charter, City of St. Louis, art. 4, sec. 35 (R. S. 1899, p. 2109).

— Ron. L. B. Wood-side, Judge. (1) The petition of plaintiffs states that the certificate was issued to Henderson on condition (among others) that he comply with the rules and regulations then governing the circle and the benefit fund and that might thereafter be adppted by the supreme circle to govern said circle and fund.

Louis City Circuit Court. — Ho». Wm. Zachritz, Judge. (1) The agreement of April 20th could only he impeached for fraud or mistake, and is binding in this action because not so impeached. That such settlements as that evidenced by the paper of April 20th are binding upon the parties until impeached for fraud or mistake, is well settled. Pickel v. St. Louis Chamber of Commerce, 10 Mo. App. 191; Gibson v. Hanna, 12 Mo. 165; Carroll v. Paul, 16 Mo. 226.

Louis City Circuit Court.— Eon. Wm. Zachritz, Judge. STATEMENT. Plaintiff recovered a thousand-dollar judgment against defendant for injuries lie received in a collision -with one of defendant’s street cars on June 4,1900, on Washington avenue, where- the avenue is crossed by Beaumont street, in the city of St. Louis. From this judgment defendant appealed.

— Wow. ■James J. Gideon, Judge. (1) The defendant as an aid to the proprietor and simply delivering whiskey to the purchaser at the direction of the proprietor and in his presence, when the proprietor had the right to make the sale and the sale was made within the scope of the proprietor’s authority and license, violates no law and does not come within the meaning of the rule in the case of State v. Gibson, 61 Mo. App. 368.

— Row. David R. Eby, Judge. (1) It has been held in this State that tbe fact that a defendant in execution is about to remove from the State will not justify tbe levy of an execution on bis exempt property. State to use v. Knott, 19 Mo. App. 151. (2) It has been tbe settled policy of tbe courts to construe exemption laws favorably to tbe debtor, instead of pursuing tbe opposite course. Holliday v. Mansker, 44 Mo. App. 465; Green v. Baxter* 91 Mo.

— How. H. C. Riley, Judge. . STATEMENT. The facts in this case, briefly stated, are that Robert Rutledge, an attorney at law, prosecuted a suit for the plaintiff and recovered a judgment in her favor for $2,142.32, which amount he collected and deposited in the defendant bank to his individual credit. After-wards he gave a check to plaintiff against the deposit for $1,792.35, which plaintiff presented to the bank and had cashed.

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) When an agent is disloyal to his principal’s' service, he forfeits compensation. The evidence of disloyalty in this ease would have precluded a recovery even if there had been an employment by defendant. Chapman v. Currie, 51 Mo. App. 40; Smith v. Tyler, 57 Mo. App. 668; Mechem on Agency, secs. 454 and 455.

— Ho». IF. W,. Graves, Judge. (1) Usury was not properly pleaded. (2) Final judgment should be here entered for plaintiff. (3) The law of Kansas, by which this transaction should be governed, provides that interest shall not be charged in excess of ten per cent per annum. If more than that is charged the party charging it shall forfeit the excess, and it shall he deducted from the principal. The Kansas statute does not provide .for forfeiting the costs.

— Eon, W. B. Tectsdale, Judge. (1) No evidence was introduced tending to show that defendant was guilty of negligence. Torpey v. Railway, 64, Mo. App. 387; Stokes v. Burnes, 132 Mo. 214. (2) The court erred in giving instruction number 1, asked for by plaintiff. Short Line v. Tracy, - 66 Fed. 931; Mays v. Railroad, 63 la. 562 (14 N. W. 340); Hulehan v. Railroad, 68 Wis. 520 (32 N. W. 529); Railroad v. Orr, 84 Ind. 50.

— Ho». John W. Henry, Judge. (1) It was not within the scope of the clerk’s authority, as an employee of Randall, to undertake to prescribe doses of morphine. “A druggist is one who compounds or prepares drugs according to medical prescriptions given by physicians.” Century Dictionary; Bishop on Non-Contract Law, sec. 716. (2) The failure to label the morphine “Poison” was not the proximate cause of death. The nature of the drug was known to deceased.

— How. J. H. 8lo-_ ver, Judge. (1) At common law, there was no lien in favor of tbe livery-stable keeper. Now, by statute in most of tbe States, sucb a lien bas been given upon tbe animal cared for, and in three or four of tbe States, not only upon tbe animal, but upon buggies, harness, etc., but we are not able to find any other statute like our own. This statute being in derogation of tbe common law, must be strictly construed. Stone v. Kelley, 59 Mo.

— Now. J. W. Alexander, Judge. (1) It is well settled in this State that a shipper can not hold a railroad company on a contract made with its local station agent for a shipment beyond the company’s line, unless it is shown that the local agent was authorized by the company to make such a contract, or that the course of business hadbeenthat ttLe agent had previously made contracts of that character which the company had accepted and acted upon, neither of which facts was…

— Eon. J. W. Alexander,■ Judge. (1) The false return made by the sheriff in an action at law may be attacked and set aside in court of equity upon a direct proceeding brought for that purpose. Phillips v. Evans, 64 Mo. 17; Ryan v. Boyd, 33 Ark. 778; Ridgeway v. Bank, .50 Tenn. 522; Hamblen v. Knight, 60 Tex. 36; Constitution, art. 2, sec. 30; Smoot v. Judd, 161 Mo. 673.

— Hon. J. H. Slover, Judge. (1) It is competent to show by parol the circumstances and surroundings of parties to a contract, the subject-matter of the contract and the object aimed at by the parties in making the contract, so that the language of the contract may be understood by the court, as it was by the parties.

— So». H. G. Timmonds, Judge. (1) The chattel mortgage was fraudulent and void as to these defendants. It was so decided on the former appeal in the case of Dry Goods Co. v. Brbwn, 73 Mo. App. 245, which, case was approved, and 'followed in the later case of Lowrence v. Barker, 82 Mo. App. 125. Also, see Williams v. Kirk, 68 Mo. App. 457.

— Hon. J. W. Alexander, Judge. (1) The lien of the State for its taxes is prior and paramount to all other liens. Fleckinstine v. Baster, 114 Mo. 493; Stafford v. Fizer, 82 Mo. 393; Boyd v. Ellis, 107 Mo. 394; Allen v. McCabe, 93 Mo. 138. (2) Tax liens and the proceedings to foreclose them are governed by the same rules as mortgages. Klutz v. Gardiner, 65 Pac. 771.

— Hon. John A. Hockaday, Judge. (1) There was, therefore, no evidence to warrant the giving of plaintiff’s first instruction, nor to justify a submission of the ease to the jury. (2) That instruction was farther defective in that it did not require the jury to find that the horses were struck on the crossing — in fact did not in any manner refer to the place of the killing at all.

Apiieal from Saline Circuit Court — Now. Samuel ■ Davis, Judge. .(1) It was an error to admit testimony as to the statements and representations of witness Simms, plaintiff’s agent, concerning the history and condition of the engine sold by plaintiff to defendant, because the written order for the engine, signed by defendant, contained this clause: “And it is expressly understood that no agent has any power whatever to bind The New Birdsall Company by any agreement…

— Hon. Samuel Davis, Judge. (1) In adjusting the compensation of the landowner, the rule in this State, where private property is damaged for public use, is the same as when private property is taken for public use, and in each case the benefit to be deducted from the damage is the direct and peculiar benefit that results in particular to the owners of property, and not the general benefit that such land derives in common with the lands of other owners in the neighborhood.

— lion. Nat. M. Shelton, Judge. (1) Was John Coulson an incompetent witness because of the death of Margaret Coulson? We contend he is not incompetent. Our statute (sec. 4652), provides that interest in the result of the suit will not disqualify a witness.

— Hon, Nat. M. Shelton, Judge. (1) The contracts of insurance in Missouri for town mutual companies are required by the laws of the State to be in writing and all the terms thereof must be in writing — other agreements or waivers can not be made. R. S. 1899, sec. 8091. (2) The existence of the chattel mortgages in question, without recognition thereof on the policy, rendered the same void in so far as the item applying to the mortgaged property is concerned. Hubbard v. Ins.

— Hon. Nat. M. Shelton, Judge. (1) There was no equity-in plaintiff’s bill. The matters therein set up could have been pleaded in the company’s answer in the garnishment either originally or by supplemental answer or amendment. They could have been shown on the trial by Adams and Matthews & Company just as they were on the trial of this cause. The remedy was ample at law and the appellants would have been entitled to a jury on the issues.

— Hon: P. G. Stepp, Judge. (1) The contract made with appellant was within the powers of the school board. Where an express power is given by a statute, all the powers necessary to carry it into effect are implied. The directors of a board empowered to build a house, and furnished with funds for that purpose, have- all the powers necessary and incident to make the grant effectual, and contracts entered into by them for that purpose are valid and binding on the district.

— How. W. K. Jamies, Judge. (1) Hodges’ contract especially provided that he should proceed with his work under the direction of the city engineer and that he should he entitled to an extension of his time in case he was hindered or delayed. The trial court refused to give plaintiff the benefit of said sections of his contract, which was error. ’Whittemore v. Sills, 76 Mo. App. 248.

— Hon. J. W. Alexander, Judge. (1) The relief granted by the court was entirely different from that asked in defendant’s motion and the trial court should have declined to sustain it for that reason, the motion itself assigning no reason for quashing the execution. Bryant v. Russell, 127 Mo. App. 431; State ex rel. v. 0 ’Neil, 78 Mo. App. 26; Paddock v. Lance, 94 Mo. 283.

— Hon. J. W. Alexander, Judge. (1) The court committed error in refusing to give the demurrer to the evidence and the peremptory instruction to find for defendant requested at the close of all the evidence, and defendant’s instruction No. 3, and in giving plaintiff’s instructions submitting the case to the jury.

<p>Appeal from Daviess Cirenit Court. — Hon. J. W. Alexander, Judge.</p>

<p>1. Evidence: ADJUDICATION OF BANKRUPTCY: PREFERENCE: INTENTION: INSTRUCTION. Where a trustee in bankruptcy is suing to recover money alleged to have been paid by the bankrupt as a preference it was proper to admit in evidence the adjudication of bankruptcy as showing insolvency and intended preference, and an instruction to the same effect was also proper.</p> <p>2. -: BANKRUPTCY: MOTION FOR COSTS: HARMLESS ERROR. In a proceeding by a trustee in bankruptcy to recover a preference, it is harmless error at most to admit in evidence the defendant’s motion requiring plaintiff to give security for costs.</p> <p>3. -: -: PREFERENCE: PRESENCE OF DEFENDANT AT ADJUDICATION: HARMLESS ERROR. In an action by a trustee in bankruptcy to recover a preference, if it is not necessary to show that defendant had specific notice of the adjudication, it is not harmful.</p> <p>4. Verdict: INTEREST: JUDGMENT. A verdict was for a given sum at sis per cent from a given date. Judgment was entered for the amount of the verdict with the interest added. Eeld, reversible error.</p>

— Eon. J. W. Alexander, Judge. (1) The appellate court will examine the record and render such judgment as should have been rendered by the trial court, or remand the cause with directions to the lower court to render the proper judgment. Baughman v. Waterworks Co., 58 Mo. App. 580; Lovell v. Davis, 52 Mo. App. 342.

— Hon. John A. Hockaday, Judge. (1) The evidence wholly failed to prove the case stated in the petition. There was no delay in the shipment. The hogs were loaded in Fayette on the evening of September 26, 1901, to reach East St. Louis and go upon the market of September 27.

— How. John P. Butler, Judge. (1) Appellant’s contention is that the honorable circuit court erred in dismissing appellant’s appeal from the judgment of the probate court. Secs. 146 and 150, R. S. 1899; Overton v. Johnston, 17 Mo. 449; Pattee v. Thomas, 58 Mo. 173; Brown v. Woody, 22 Mo. App. 258. (2) Was a motion for a new trial necessary in the case at bar? Wallace v. Underwood, 32 Mo. App. 478; Johnson to use v. G-reve, 60 Mo. App. 170; O’Conner v. Koch, 56 Mo. 261.

— Hon. E. P. Gates, Judge. (1) The assessment for special tax was levied against twenty-seven feet of real estate and included in it a tract of land owned and occupied by appellants for twenty-one years, together 'with land owned by other parties, and was therefore void and all proceedings had to enforce special taxbills issued on such assessment were void.

— How. W. L. Jarrott, Judge. (1) The judgment was not proven. The transcript offered was not and did not purport to he the whole record. The whole record must he offered. Philipson v. Bates, 2 Mo. 77; Dameron v. Williams, 7 Mo. 138; Crone v. Dawson, 19 Mo. App. 214; Williams v. Williams, 53 Mo. App. 617; Seymour v. Newman, 77 Mo.

— lion. L. H. Waters, Special Judge. The question in this ease to which we wish to call the attention of the court is that there is an entire failure of proof on behalf of plaintiffs not only as to the two -causes of action stated in the petition on which the cause was tried, namely, that plaintiffs were entitled to one-half of a bonus of $4,000 which'was alleged to have been paid to the defendants for the firm of Winslow Brothers and Robertson Brothers to move down to the…

— No». Gallatin Craig, Judge. (1) The court erred in giving defendant’s instructions 1, 2, 4 and 8 oh the subject of sufficiency of delivery. Elliott v. Keith, .32 Mo. App. 119; Criley v. Vasel, 52 Mo. 445; State ex rel. v. Casteel, 51 Mo. App. 143; Scully v. Albers, 89 Mo. App. 118. The bill of sale was confirmatory evidence of delivery. Knoche v. Perry, 90 Mo. App. 487.

— Now. J. W. Alexander, Judge. (1) An unpaid bid at a sheriff’s sale under judgment, without a deed, confers no title on bidder, at least-in Missouri. Strain v. Murphy, 49 Mo. 337; Leach v, Koenig, 55 Mo. 451; Simmons v. Cook, 109 Ga. 553; Alexander v. Merry, 9 Mo. 514; Askew v. Ebborts, 22 Cal. 263.

— Eon. Nat M. Shelton, Judge. (1) The demurrer to the evidence should have been sustained on two grounds: First. Because the contract was put in writing and respondents could not recover on an oral contract. Hoffman v. Railroad, 68 S. W. 212. ' Second. Because it was not the debt of appellant and comes within the statute of frauds. R. S. 1899, see. 3118.

— Ho». P. C. Stepp, Judge. (1) Eeplevin may be maintained to recover a note obtained by fraud. Goodger v. Finn, 10 Mo. App. 1. c. 231; Goldsmith v. Taussig, 60 Mo. App. 460; Gotcher v. Haefner, 107 Mo. 1. c. 277; Keim v. Vette, 167 Mo. 389. (2) The foregoing observations show that a note, though paid, has a value to the maker, and where it is thus paid, and the plaintiff as against the defendant, is entitled to the possession, it is enough to state a nominal money value.

— Ho». James E. Hasell, Judge. STATEMENT BY BROADDUS, J. The defendants in this case are partners. They were engaged in the practice of law, writing insurance, loaning money and doing a general brokerage business at the time of the incidents which are narrated in this record. They were the owners of a set of abstract books and they desired to form a corporation for the purpose of doing an abstract business.

<p>Appeal from Jackson Circuit Court.— Hon. J. W. Henry, Judge.</p> <p>(1) Secret liens, etc. Bagley v. Greenleaf, 7 Wheat. 46; Adams v. Buchanan, 49 Mo. 64. (2) Deed withheld and burden of proof. Lyons v. Bank, 29 Fed, Rep. 566; Standard v. Guenther, 67 Wis. 101; Sayer v. 'Guenther, 73 Wis. 356; Central v. Doran, 109 Mo. 40; State v. Freame, 112 Mo. 502; Bank v. Buck, 123 Mo. 141; 'Williams v. Kirk, 68 Mo. App. 457; Sauerwine v. Champagne, 68 Mo. App. 32. (3) Unwritten liens. 3 Pom. Eq. Juris., sec. 1253; ■ Green v; DeMoss, 10 Humph. 371; Cowley v. McLaughlin, 141 Mass. 181;, 2 Washburn Real Prop., 506; Johnson v. Cawthorn, 1 Dev..and Bates Eq., 32; Dawson v. Gerard, 27 Minn. 411; Webb v. Robinson, 14 Ga. 216; Allen v. Loving,. 34 la. 499; Cook v. Banker, 50 N. Y. 655; Hulett v. Whipple, 58 Barb. 224; Roberts v. Rose, 2 Humph. 145;. Ganngs v. Chester, 5 Yerg. 205; Uhler v. Sample, 201 N. J. Eq. 288; Coffin v. Ray, 1 Mete. 212; Porter v. Dubuque, 20 la. 440. (4) Probate judgments. Jamison v. Wickham, 67 Mo. App. 578; Munday v. Deeper,. 120 Mo. 417; Branford v. Woolf, 103 Mo. 391; State v. Cornice, 62 Mo. App. 569. (5) Merger. Cookson v. Railway, 74 Mo. 477; Hall v. Winckell, 38 Vt. 588; Am. and Eng. Ency. Law, title, “Merger,” pages 336 and 341. (6) Third party advancing money to pay off mortgages under agreement or otherwise. Grady v. O’Reilly, 116 Mo. 346; Kleinman v. Greslina, 114 Mo. 437; Peal v. Harvey, 70 Mo. 160. (7) Courts do not erect securities which parties neglect to erect for themselves, even where prima facie equities are stronger than in ease at bar. Hoyt v. Story, 3 Barb. 262; Stewart v. Flowers, 44 Miss. 513; Price v. Cutts, 29 Ga. 142; Yan Schine v. Goodwin,. 42 Mo. App. 39; Chamberlain v. Platz, 1 Mo. App. 183; Printup v. Barnett, 43 Ga. 407. (8) Rights of co-tenants and subrogation. Jones on Liens, secs. 1156 and 1157; Am. and Eng. Ency. Law, title, “Subrogation,” pages 234, 236 and 237; Price v. Courtney, 87 Mo. 395. (9) Taxes on undivided shares. Sec. 7612, R. S. 1899; K. C. Charter, art. 5, sec. 14, p. 75; Preston v. Wright, 81 Me.' 306. (10) Renewals, etc., as non-reliance on liens. Taylor v. Baldwin, 1.0 Barb. 626; Walsh v. McBride, 72 Md. 45. (11) Character of proof. Hitchcock v. Baughan, 36 Mo. App. 220; Am. and Eng. Ency. Law, “ Equitable Mortgages, ” sec. 6, p. 67; Kramer v. McCaughey 11 Mo. App. 426 Allen Withrew, 110 U. S. 119; Cotton v. Goit, 30 S. W. 281. (12) Laches. Goodnow v. Goodnow, 140 Mo. 206.</p> <p>(1) Schultz now claims to he a judgment creditor by virtue of the allowance in his favor in the probate court of Jackson county. But it is not the law of Missouri that a judgment creditor is a purchaser. And an undisclosed vendor’s lien will be upheld as against every person except only a purchaser of the land without notice of the lien, and such purchaser must have bought the property and have a deed for it, or must have advanced money and taken the land for his security. His possession of a judgment falls far short of giving him the necessary vantage ground of a purchaser for value. (2) It is no defense to this proceeding that the plaintiffs had obtained an allowance of their claim against Tryner’s estate in the probate court, of McLean county, Illinois. Thornton v. Pigg, 24 Mo. 249; Savings Assn. v. Mastín, 61 Mo. 435; Jones on Mortgages, secs. 936, 937; Jones on Liens (2 Ed.), secs. 1098,1116; Graves v. Coutant, 31 N. J. Eq. 763, 780; "Waldrom v. Zacharie, 54 Tex. 503; Ball v. Hill, 48 Tex. 634, 640. (3) The moneys paid by plaintiffs on Tryner’s account should be repaid to them out of his interest, because they were paid by them in discharge of a liability incurred by them with his assent and his request, for the-purpose of raising funds wherewith to relieve from a burden, property in which they and Tryner had a common interest. Holloway v. Holloway, 97 Mo. 628; Herchenroeder v.'Herchenroeder,'75 Mo. App. 283; Burnes Estate v. Ayrlawn Co., 82 Mo. App. 66;.Rozier v. Griffith, 31 Mo. 171; Peck v. Williams, 113 Ind. 256; Foltz v. Wert, 103 Ind. 404; Packard v. King, 3 Col. 211; ■Story Eq. Juris. (12 Ed;), sec. 656b; Freeman Cotenancy and Partitioh, sees. 505, 512; Pomeroy’s- Eq. Juris. (2 Ed.), sec. 1240; Carter v. Penn, 99 HI. 390; Eurmau v. McMillian, 2 B. J. Lea (Tenn.) 121; Prentice v. Janssen, 79 N. Y. 478; Owen v. McGhee, 61 Ala. 441; Rankin v. Black, 1 Head. (Tenn.) 650; Gee v. Gee, 2 Sneed (Tenn.) 396; Hall v. Eiddock, 21 N. J. Eq. 311; Danforth v. Mo.ore, 55 N. J. Eq. 127. (4) There is no laches in the case.</p>

Circuit Court. — Hon. John A. Hochaday, Judge. (1) The term “religious society” had in the English ecclesiastical law, and has in our law, a well-defined meaning. “As commonly used in our law, it is synonymous with ‘parish,’ ‘precinct,’ and designates an incorporated society, created and maintained foi the support and maintenance of public worship.” Weld v. May, 9 Cush. (Mass.) 181; Silsby v. Barlow, 16 Gray (Mass.) 330; 2.0 Am. and Eng. Ency.

— Hon. James Gibson, Judge. (1) As the defendant held the premises in question under a lease from the complainants expiring July 1, and as upon July 2 (the date upon which the complainants allege the. right of possession to he in them), by his own admission he remained in possession without having obtained the consent of the complainants or having any agreement with them in regard to it, he was guilty of unlawful detainer as of that date, and the complainants were entitled…

— Ho». E. P. Gates, Judge. (1) The breach, of the bond alleged is the conversion of personal property, and it is an undisputed proposition of law that to warrant a recovery for conversion the petition must allege that the plaintiff was the owner, and in possession, or entitled to possession, of the property in controversy, at the time of the alleged conversion. The omission of the allegation of possession, as in the case at bar, makes the petition fatally defective.

— Ho». John A. Hockaday, Judge. (1) A suit is not submitted until all instructions are given and the jury retires to consider of tbeir verdict. Wood v. Nortman, 85 Mo. 298; Waterworks v. School District, 23 Mo. App. 227; Hensley-v. Peck, 13 Mo. 587; Templeton v. Wolf, 19 Mo. 101; Benoist v. Murrin, 48 Mo. 52; Martin v. Feweli, 79 Mo. 401; Mayer v. Olds, 51 Mo. App. 214; Wood v. Woodmansee, 84 Mo. App. 328; Wilson v. Stark, 42 Mo. App. 376; Lawrence v. Shreve, 26 Mo. 492.

— Ho». James Gibson, Judge. (1) Failure of proof. Blackwell v. Adams, 28 Mo. App. 61; Powell v. Railroad, 76 Mo. 80. (2) Brokers must be the procuring cause, and it is not sufficient for Ms act to be one of tbe chain of causes. Ramsey v. West, 31 Mo. App. 676, 687. (3) Plaintiff did not produce or introduce to defendant a purchaser ready, willing and able to purchase the engine at the price stipulated in the contract as he contends for. Zeidler v. Walker,' 41 Mo.

— How. J. H. Slover, Judge. (1) It is competent for the parties at any time to totally disregard the original contract and substitute another in its place. Henning v. U. S. I. & S. Co., 47 Mo. 425; Vastine v. Wayman, 5 Mo. App. 598; Jacobs v. Maloney, 64 Mo. App. 270; 21 Am. and Eng. Ency. of Law (2 Ed.), 663. Tbe result of such novation is tbe extinguishment of tbe original obligation and all its incidents. 21 Am. and Eng. Ency. of Law, 674-5.

— Sow. George F. Long am,, Judge. (1) The receiver and trustee, took the title to said property as of the date of the filing of the involuntary bankruptcy suit against the said Wells, to-wit, on the 8th day of November, 1900. Bankruptcy Act, 1898, sec. 67a, 70, sub. 4 and 5; In re Pekin Plow Co., 112 Fed. 308; In re Burka, 104 Fed. 326. (2) The bankruptcy court acquires jurisdiction upon the filing of the petition. This jurisdiction covers the entire subject.

— -Now. J. E. Ha-sell, Judge. (1) The court erred in sustaining a demurrer and directing a verdict for defendant at the conclusion on plaintiff’s evidence. 1 Greenleaf on Ev., secs. 83, 92, 485, 508; Winham v. Kline, 77-Mo. App. 36-44; Flournoy v. Warden, 17 Mo. 435; Karr v. Jackson, 28 Mo. 317; Howell v. Carl, 50 Mo. App. 440; Moore v. Cans, 113 Mo. 110; R. S, 1899, sec. 3098. (2) The proof established a valid mortgage under the laws of Iowa.

— How. J. D. Perkins, Judge. (1) The court should have allowed appellant for services performed; and if the trial court fails to do so the appellate court will. State ex rel. v. G-rabill, 69 Mo. App. 536. (2) The court misconstrued its order.

— Hon. II. C. Timmonds, Judge. (1) Accord and satisfaction is the substitution of another agreement between the parties, in satisfaction of a former one, and the execution of the latter agreement; and this constitutes a bar to any action on the original claim. Swofford Bros. D. G-. Co. v. Goss, 65 Mo. App. 55; Giboney v. Ins. Co., 48 Mo. App. 185; Grumley v. Webb, 48 Mo. 562; Perkins v. Headley, 49 Mo. App. 556; Maack v. Schneider, 51 Mo.

Appea] from Barton Circuit Court. — Nora. E. C. Timmonds, Judge; (1) The court erred in giving instruction number 3, at tbe request of defendants. 14 Am. and Eng. Ency.. Law (2 Ed.), 242, 300; 3 Am. and Eng. Ency. Law (2 Ed.), 201; Bump on Fraud. Conv. (4 Ed.), 41-43, secs. 54, 56; Chamley v. Lord Dusany, 2 Scb. & Lef. 690; Bank v. Lumber Co., 59 Mo. App. 317; Bank v. Lumber Co., 134 Mo. 432; Bank v. Lumber C,o., 68 Mo.

— Now. John P. Butler, Judge. (1) A public officer is not entitled to his salary by virtue of a contract expressed or implied. The right to the salary which the ordinance prescribes, exists-as a creature of law, and as incident to the office, and that salary is to be paid him whether or not he neglects his official duties. Bates v. St. Louis, 153 Mo. 18; State ex rel. v. Walbridge, 153 Mo. 194, and cases cited.

— Hon. John P. Butler, Judge. (1) Nothing will be presumed to be within the jurisdiction of inferior courts and tribunals, and tbeir jurisdiction must appear by the record in all cases where it is directly attacked. State ex rel. v. County Court, 66 Mo. App. 96; Railroad v. Young, 96 Mo. 39, and cases cited.

— Ho». Gallatin Craig, Judge. (1) There was no testimony tending to support the finding of facts made by the court, hut even if the facts found were true, they did not constitute the fund in controversy a trust fund. Connor v. Black, 132 Mo. 150; Hill v. Johnson, 38 Mo. App. 383; Deierling v. Sloop, 67 Mo. App. 446; Crawford v. Spencer, 92 Mo. 498. (2) The evidence,tending to show that the Trader’s Grain Company was operating a bucket-shop was improperly admitted.

— Ho#. John P. Butler, Judge. (1) “Personal service of process upon a non-resident defendant in a State other than the State issuing the process, is insufficient to subject his person to the jurisdiction of the court, because a State can not eifeclively send its process beyond its own limits, and a judgment by default against a non-resident so served is void in personam, both within and without the State of its rendition, and no action can be maintained upon it. ” Reno on…

— Horn. Samuel Davis, Judge. (1) The documentary evidence by way of deeds introduced in evidence by both plaintiff and defendant, shows beyond dispute that this entire sidewalk, from end to end, is on private lots and no part thereof on the street line or on city property.

— Row. W. K. James, Judge. (1) The defendant is entitled to a homestead exempt from execution in and to the entire tract in controversy, it being less than eighteen square rods and in a city of over forty thousand inhabitants. R. S. 1899, sec. 3616. (2) And that St. Joseph is a city of over one hundred thousand inhabitants, as shown by the last United States census, this court will take judicial notice. Dunne v. Railway, 131 Mo. 1; State ex rel. v. Kerrmann, 75 Mo. 354.

— How. James E. Eaeell, Judge. (1) All causes for divorce existing at the time of. the first suit should be excluded from this action, unless-it expressly appears that such causes were unknown to plaintiff at that time. Donnell v. Wright, 147 Mo. 639; Waggoner v. Waggoner, 76 Md. 311; Morrison v., Morrison, 142 Mass. 361; Henderson v. Henderson, 3 Hare 115; Beloit v. Morgan, 7 Wall. 662. (2) The evidence is insufficient to sustain the finding of adultery with Chris Parker.

— Eon. Argus Cox, Judge. (1) The chattel mortgage upon the stock of goods insured was not released nor satisfied, notwithstanding the promise that it would be, . The debt was not. paid, and the mortgage remained in full force. (2) The promise to release the mortgage was gratuitous, without consideration and not binding. (3) The chattel mortgage could not be released by verbal agreement. Secs. 4358 and 4360, R. S. 1899.