Volume 101 — Missouri Reports

Louis City Circuit Court. — Hon. (3-eorge W. Lubke, Judge. (1) The objection to the introduction of evidence, and the demurrer at the conclusion of the evidence, should have been sustained, because of the absence of causal connection between the acts of negligence charged in the petition, or proven, and the injuries which the plaintiff sustained. Stillson v. Railroad, 67 Mo. 671; Brown v. Railroad, 20 Mo.

Louis City Circuit Court. —Hon. L. B. Valliant, Judge. (1) Plaintiff’s testimony did not make & prima facie case and the demurrer to the evidence should have been sustained. Damrill v. Railroad, 27 Mo. App. 202 ; Powell v. Railroad, 76 Mo. 80 ; Railroad v. Hammet, 32 Am. & Eng.

— Hon. E. L. Edwards, Judge. (1) Tlie probate court had jurisdiction of the suit; probate courts, in the allowance of demands, are on the same footing with courts of general jurisdiction. Roth-man v. Schmuclcer, 94 Mo. 139 ; Johnson v. Beasley, 65 Mo. 250; Henry v. McKerlie, 78 Mo. 416 ; R. S. 1879, sec. 192. (2) Jurisdiction once conferred on a court is never divested, except by express words of exclusion.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence, interposed at the close of plaintiff’s evidence in chief. Spiva v. Coal Co., 88 Mo. 73, and authorities cited under second point. (2) The court erred in overruling defendant’s motion for a new trial for the reason that the evidence does not support, but is contrary to, the verdict.

— Hon. Rickard Field, Judge. (1) The circuit court erred in overruling defendant’s motion in arrest upon the first ground therein stated. The district court of the United States had sole jurisdiction over the subject-matter of this action. The circuit court of Cooper county, and the other circuit courts to which the same was taken by change of venue had no jurisdiction.

Louis City Cireuit Court. — Hon. Daniel Dillon, Judge. This action is to recover damages under the statute for the death of plaintiff’s husband, who was killed in St. Louis at the Lesperance street crossing of defendant’s railroad by alleged negligence in operating the latter. The issues for trial arose upon a general denial of the petition.

— Hon. W. D. Hubbard, Judge. (1) The deed of Joshua Davis to Joseph Weaver did not pass the'legal title; the legal title still remained vested in the heirs of I). B. Miller, deceased. First. It does not appear that a petition' for sale of the land was filed nor that the pretended sale was approved at the next term of the county court nor any order of the county court directing notice to be given to all persons in interest.

— Hon. J. M. Davis, Judge. (1) Defendant’s twenty-first declaration should have been given. It was incumbent on the plaintiff to prove that the special board of equalization for the year 1872 had valued, equalized and adjusted the property of the defendant for the years 1867, 1868, 1869, 1870, 1871 and 1872, and that a part of it had been apportioned to Caldwell county for purposes of taxation.

— Hon. Andrew Ellison, Judge. (1) A tax is not a debt. It operates in invitum. Its validity depends upon tbe fact that the officers have complied with the statute in every respect. The power of taxation, can only arise on the performance of certain acts, specifically pointed out by the law. No presumption can be indulged in favor of the regularity of the procedure of the officers.

— Hon. Andrew Ellison, Judge. (1) Fraud and collusion cannot be properly charged in general terms; the specific acts must be alleged. Bliss on Code Pleading, secs. 210, 218, 339; Hill v. Miller, 36 Mo. 182 ; Fox v. Webster, 46 Mo. 181; Smith v. Sims, 77 Mo. 269; McGindley v. Newton, 75 Mo. 115; Duffy v. Byrne, 7 Mo. App. 417.

— Hon. D. P. Stratton, Judge. The facts proven are not sufficient to show that a burglary was committed. State v. Kennedy, 16 Mo. App. 287 ; State v. Kennedy, 88 Mo. 341; Bex v. Smith, Ryan & Moody’s Crown Cases, Reserved H. L. 187, 1828; Russell on Crimes [5 Ed.] 786, 787. The indictment specially charges that the burglary was committed by raising the window; any other breaking will not support a verdict under this indictment.

— Hon. Chas. G-Burton, Judge. (1) In a contest between the creditors of the husband and the wife, there is and there should be a presumption against her which she must overcome by-affirmative proof, and recent married woman’s statutes have not changed this rule. Seitz v. Mitchell, 94 U. S. 580. (2) In the absence of evidence that land purchased during coverture by a married woman was paid for with her separate means, it will be presumed that her husband furnished the money.

— Hon. W. D. Hubbard, Judge. (1) Tke will was not properly attested and must be vacated. 1 Kent, pp. 461, 462, 463 and 464. (2) Thomas Cox, the sou of John B. Cox, deceased, is not named in or provided for by the will, and as to him his father died intestate. R. S. 1879, sec. 3969. (3) If it be held that naming is not necessary, still it must affirmatively appear from inspection of the will that Thos.

<p>1. Certiorari: jurisdiction: practice. Gertiorari, under constitutional provisions, is strictly the common-law writ of that name and only brings up the record of the court to which it is issued and reaches only errors or defects appearing on the face of such record and which are jurisdictional in their nature.</p> <p>‘2.--:-- — :--. The writ of certiorari will not issue from the supreme court to the Kansas City court of appeals in a case of which the latter court has jurisdiction.</p>

— Hon. M. G. McGregor, Judge. (1) Section 11 of the charter does not grant to the city council authority to impose penalties on the owners of dogs within the city who fail to pay a license. Such extraordinary power must be expressly conferred. Dillon on Municipal Corp. [3 Ed.] 345, and notes. (2 ) The ordinance makes a person a culprit for owning that which the law recognizes as property, without paying for the privilege which is unconstitutional and void.

Ejectment may be brought against a county to recover land claimed by the county to have been dedicated to a public use, and this is what Clark county sets up as a defense in her answer. Sedgwick and Wait’s Trial of Title to Land [2 Ed.] 174, sec. 251; Barry v. Sonoma County, 43 Cal. 217 ; Lyell v. Supervisors, 3 McL. 580; Armstrong v. St. Louis, 69 Mo. 303 ; Strong v. City of Brooklyn, 68 N. Y. 1. Sedgwick & Wait’s Act. & Def., sec. 252.

— Hon. GK D. Burgess, Judge. This is an action of ejectment for a tract of land in Chariton county. Plaintiff claims title under a sheriff’s deed conveying to him thirty-five acres regularly levied upon and sold as the property of defendant to satisfy certain judgments of the circuit court.

— Hon. John Gr. Wear, Judge. (1) ■ The evidence offered by the state wholly failed to show that Lucas’ Cow, that was found dead, was the same cow that witnesses think they saw defendant shoot.

Louis. City Circuit Court. — Hon. W. H. I-Iorner, Judge. (1) The city of St. Louis had authority, under its charter, to make the lease set up by defendant in its amended answer, of the date of January 7, 1885. City Charter, art. 3, sec. 26, subdiv. 2 ; Cooley on Const. Lim. [2 Ed.] pp. 521-553; Nurse v. Railroad, 21 111. 522; West v. Bancroft, 32 Vt. 367; Kelsey v. King, 32 Barb. 410 ; Railroad v. Applegate, 8 Dana, 289 ; Bt.

— Hon. C. C. Bland, Judge. The county clerk under Revised Statutes, 1879, section 5600, is entitled to fees “for filing every paper not hereinbefore, specified five cents.” Under this provision the appellant was entitled to recover. This section has been the law since 1865. Revised Statutes, 1879, section 6862, provides that the county clerk shall be allowed certain fees for certain specified work, but does not make the fees therein mentioned exclusive.

— Hon. John Gr. Wear, Judge. (1) The defendant was entitled to a jury to try the issues joined. Const, of U. S. Amendments ; Const, of Mo.; R. S. 1879, secs. 3345, 3352, 3386. (2) The court should have sustained defendant’s application for a change of venue. Baily v. Kimbrough, 37 Mo. 182. (3) The court had no authority as against an adverse possession and actual disseizin to direct a partition.

— Hon. J. P. Hale, Judge. (1) The verdict is against the evidence. (2) The court permitted incompetent evidence to go to the jury; the testimony of the witness Smith, as to result of his examination of the tax books, should have been excluded. (3) The remarks of the prosecuting attorney, as to the excluded testimony of Skinner, constituted error. State v. Lee, 66 Mo. 165; State v. Kring, 64 Mo. 591.

— Hon. J. JD. Foster, Judge. (1) It is admitted that this land was, prior to defendant’s possession, school lands held b.y plaintiff for the use and benefit of the public schools. (2) The defendant claims the land by limitation. The statutes-of limitation do not run against lands held for school purposes. R. S., sec. 3227. (3) To successfully plead limitation, defendant must show actual and adverse possession for more than ten years.

— Hon. M. Gf. McGregor, Judge. (1) While transactions between father and son are not to be presumed fraudulent, yet where they affect creditors the court will scan them with a critical eye and… Held: and the' weight of authority sustains the doctrine, that, where, as in this case, one buys land, pays the purchase price therefor, and enters into possession thereof, with an agreement that a deed shall be made, the transaction is a sale.

— Hon. J. F. Hall, Judge. (1) The indictment is drawn under section 1309, Revised Statutes, 1879, and is sufficient. State t>. Leedy, 95 Mo. 76'; State v. Butterfield, 75 Mo. 297. (2) The instructions given by the court fully, fairly and correctly submitted the law of the case to the jury.

<p>Appeal from St. Louis City Circidt Court. — Hon. L. B. Valliakt, Judge.</p> <p>(1) The court erred in giving the instructions asked by plaintiff. Milburn v. Railroad, 86 Mo. 109 ; Stepp v. Railroad, 85 Mo. 226; Kelly v. Railroad, 75 Mo. 141; Smith v. Hardesty, 31 Mo. 412 ; Hurt ®. Railroad, 94 Mo. 256 ; Bowling v. Allen, 88 Mo. 299 ; Railroad v. State, 31 Md. 357; s. c., 100 Am. Dec. 71; Henze v. Railroad, 71 Mo. 638; Isaacs v. Skrainka, 95 Mo. 517; MatMason v. Mayer, 90 Mo. 585. (2) The verdict is against and unsupported by the evidence, and should, therefore, have been set aside.</p> <p>(1) The point that the first instruction given for plaintiff, as to the burden of proof, is erroneous is clearly untenable. Petty v. Railroad, 88 Mo. 306; Donovan v. Railroad,, 89 Mo. 147 ; Thorpe®. Railroad, 89 Mo. 655. (2) Whilst it may be true, that, as to the value of services involving science and skill, an opinion of an expert, as to value, is necessary proof, yet in services commonly rendered by all mankind, such as nursing the sick, one man is supposed to know as much on the subject as another. In the language of this court, the value of such services ‘£ may be measured by the experience and judgment of the jury,” without proof of value. Parsons v. Railroad, 94 Mo. 296; Nagel v. Railroad, 75 Mo. 666. (3) The criticism of the third instruction given for plaintiff is wholly without merit. If plaintiff was free from fault, any negligent act of defendant directly contributing to plaintiff5 s injury renders defendant liable. McDermott v. Railroad, 87 Mo. 301. (4) Even if there was no requirement in either the third or fourth instruction, that plaintiff should have been in the exercise of ordinary care, still as the question of plaintiff ’ s care was submitted to the jury fully in defendant’s instruction number 2, and as the instructions are to read as a whole, this could be no error. Owens v. Railroad, 95 Mo. 181, overruling Sullivan v. Railroad, 88 Mo. 182, followed by Dougherty v. Railroad, 97 Mo. 661.</p>

Francois Circuit Court. — Hon. J. D. Fox, Judge. (1) The previous conduct of defendant in the saloon, and what was said and done by him and the prosecutor during this altercation, and defendant’s declaration, upon being put out of the saloon, that he would go down home and get his Winchester, were admissible in evidence.

— Hon. C. H. S. Goodman, Judge. (1) The railroad had the power to authorize Haynes to build platform foh his exclusive use. 2 Redfield, Railways [3 Ed.] sec. 184, pp. 225-6; 1 Redfield, Railways, sec. 27, p. 93, par. 2. The exercise of the license is neither a monopoly nor an infraction of public policy. Richmond v. Railroad, 26 Iowa, 191.

— Hon. J. B. Hantt, Judge. The trial court erred in the rendition of the interlocutory decree. It allowed the defendants to fence in plaintiffs’ prairie lands and use them twenty-one years without paying any rent, only for the land in cultivation in 1865 when the defendants took possession, and besides this made plaintiffs pay for the improvements and pay taxes. This is surely an error and appears on the record of the case.

— Host. E. L. Edwards, Judge. (1) Under the evidence, an instruction should have been given by the court for fine and imprisonment in county jail. (2) The court should instruct the jury that the law makes no presumption under the evidence, and that the intention of defendant in shooting is a matter of fact to be found by the jury.

— IIon. M. A. Fyke, Judge. (1) An action to foreclose a mortgage is barred by the statute of limitations if not brought within ten years from the time the cause of action upon such mortgage accrued. Bush v. White, 85 Mo. 339; Johnson v. Johnson, 81 Mo. 331.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) A bequest of chattels generally, without any restriction, as in the second clause of the will, would pass the absolute property. (2) In construing the bequest of chattels, with reference to the devise of the real estate, in the same paragraph of the will, the difference in the language used is striking and significant, and indicates a clear intention to make a different disposition of the two kinds of property.

— Hon. T. A. GriLL, Judge. (1) Specific performance is not an absolute right. It is a matter of sound judicial discretion, exercised upon a consideration of all the facts and circumstances of each case in which it may be sought.

<p>Appeal from Livingston Circuit Court. — Hon. James M. Davis, Judge.</p> <p>The deed from the county to Pace of July 11, 1876, operated as a merger of the legal and equitable title in Pace. 1 Jones on Mort., chap. 10, secs. 848, 859; Jerome's. Seymour, Harr. R. (Mich.) 357; Bassett v. Hathaway, 9 Mich. 28; Agnew v. Railroad, 59 Am. Rep. 237; Tylor v. Brigham, 3 N. E. Rep. (Mass.) 486 ; Állcins v. Angert, 46 Mo. 518. The holder of a note secured by mortgage devised to the owner of the equity of redemption held a release or cancellation of note. Wead v. Gray, 78 Mo. 59-66. This is not the case of acquisition of the equity of redemption by the mortgagee, where the mortgage will generally be kept alive at the election of the mortgagee. 1 Jones on Mort., sec. 870. (2) But if no merger took place, then the deed from the county to Pace (from mortgagee to mortgagor) of date eleventh of July, 1876, conveying “all the right, title, interest, estate, claim and demand that the said county of Linn has of, in and to the real estate above described” was, and is, a release, or an assignment of the. mortgage to the mortgagor Pace. Tyler v. Brigham, 3 N. Eng. 486 ; 1 Jones Mort. [3 Ed.] sec. 859 ; 2 Jones on Mort. [ 3 Ed.] sec. 972, note 6 ; Wood-bury ». Aikin, 13 111. 639 ; Bassett v. Halloway, 9 Mich. 28; Somes ®. Skinner, 3 Pick. 51; Allans v. Angert, 46 Mo. 515, 518. (3) The trial court clearly erred in permitting the parol evidence of Pace and Martin to establish a sale of swamp lands to Pace prior to 1871. County courts were required to order the sale of swamp lands. G. S. 1865, p. 278, sec. 3. County courts are courts of record, and their acts can only be known by their record. ’ Dennison v. County, 33 Mo. 168.</p> <p>(1) The legal title to the land in question was granted by the state of Missouri to Linn county, and the county by its commissioner, duly appointed by the county court and authorized to convey the land to James Pace, the purchaser, did convey it to him, and said deed of conveyance is sufficient and valid. There is no evidence that the sale by the county to Pace was a private sale. And in the absence of any evidence to the contrary the presumption is that the officers and county authorities did their duty. But both the plaintiff and the defendant claim from and under James Pace, and neither can. be heard to say that the title was not vested in him. Wilcoxon v. Osborn, 77 Mo. 621; Bigelow on Estoppel [ 3 Ed.] pp. 283-284; Charles v. Patch, 87 Mo. 463; Holland v. Adair, 55 Mo. 40; Brown v. Brown, 45 Mo. 412 ; Qhouquette v. Barada, 33 Mo. 249 Fugate ». Pierce, 49 Mo. 441, 449 ; Swartz v. Page, 13 Mo. 603. (2) The question of merger, insisted on by counsel for appellant, does not arise in this case. Ficklin v. Stephenson, 33 Mo. 341; Rogers v. Tucker, 94 Mo. 346, 351. The record eviden'ce and the parol evidence of Pace and Martin show beyond question that no merger was intended. The intention of the parties as well as their acts must be considered. The mortgage debt was not paid, nor any part of it. And there is no recital in the deed from the county by Martin, commissioner, to Pace that the mortgage was paid or satisfied. 1 Jones on Mortgages f 2 Ed. ] secs. 848, 855, 856, 872; 2 Bouvier’s Law Diet. [8 Ed.] p. 156 ; Aiken v. Railroad, 37 Wis. 469; Morgan v. Hammett, 34 Wis. 512, 524; 1 Wash, on Real Property [2 Ed.] p. 186 ; Purdy v. Huntington, 42 N. Y. 334. (3) The statute then and now in force expressly authorized the conveyance in the manner the deed to Beckett was executed. Gf. S. of Mo. 1865, sec. 4, p. 444 ; 1 R. S. 1879, sec. 671, p. 110; 1 R. S. 1889, sec. 2398, p. 611. And the deed from the county by B. A. Jones, commissioner, contains proper recitals to show his appointment and authority to act. But no question is raised in that regard by appellant. The deed, however, would have been good without any recital of his”appointment if he acted as commissioner. Henry v. Atkins, 50 Mo. 266. ■( 4 ) Nothing short of an actual payment of the debt itself, or an express release, will operate as a discharge of the mortgage lien. Lippold v. Held, 58 Mo. 213. (5) The defendant has neither the legal title to, nor any equitable interest in, the land in controversy. The deed of trust under which he purchased was subsequent to the mortgage to the county and when the defendant purchased at the trustee’s sale the county had already re-acquired the title under, the foreclosure proceedings. (6) It is submitted that upon the whole record the judgment is clearly for the right party, and that no error was committed by the trial court against the interest of the defendant affecting the merits of the action, and therefore the judgment should be affirmed. 1 R. S. 1889, sec. 2303, pp. 590-591; Valle v. Pieton, 91 Mo. 207; The State ex rel. v. Edwards, 78 Mo. 473, 478; Miller v. Graham's Adm'r, 41 Mo. 509</p>

H. P. White, Judge. (1) The court’s definition of larceny forms a good definition of trespass but falls far short of defining larceny. Sackett’s Inst, to Juries, sec. 8, p. 741 and p. 743, sec. 11; Nutzell ». State, 60 Ga. 264; State v. Green, 81 N. C. 560; Mason •». State, 32 Ark. 238; Hart v. State, 57 Ind. 102; 0pm. w. Hurd, 123 Mass. 438; State v. Wood, 46 la. 116 ; 63 Ind. 223 ; Holser v. State, 5 S. W. Rep. 523 ; Hamlit v. Com., 5 S. W. Rep.

— Hon. D. P. Stratton, Judge. (1) The deed introduced in evidence by the defendant is upon its face a simple release. First. Intention of the parties to a deed is to be deduced from a consideration of the whole instrument — every provision, clause and recital — as in the case of any other contract, and will be carried into effect.

— Hon. John L. Thomas, Judge. (1) The court erred in the declaration of law, given of its own motion, and in refusing the second, third and fourth declarations asked by defendant. The defendant’s defense of adverse possession was sufficiently made out. Under the evidence, he was entitled to tack his possession to that of S. G. McKee, so as to perfect his title under the statute, at least to the west half of the tract, as early as 1880 or 1881. Crispen v. Hannovan, 50 Mo. 536.

<p>Avpeal from Ripley Circuit Court. — Hon. John Gf. Wear, Judge.</p> <p>(1) The court erred in overruling defendant’s peremptory challenge of the juror J. N. Poynor. State v. Bumsrill, 87 Mo. 343; State v. Wyatt, 50 Mo. 309; State v. Taylor, 04 Mo. 358. (2) The testimony was not sufficient to support the verdict. (3) The court erred in not excluding statements of deceased to the witness Caughron. State v. Simon, 50 Mo. 370 ; State v. McCannon, 51 Mo. 160; State v. Draper, 65 Mo. 335 ; State v. Rider, 90 Mo. 55. (4) The court erred in refusing to permit witness Logan to state what was said by Whitwell when he rode up to defendant and deceased immediately after' the shot was fired. State v. Tester-man, 68 Mo. 408 ; State v. Sanders, 76 Mo. 35; State v. Gabriel, 88 Mo. 631. (5) The court erred in refusing to allow defendant to show the interest of witness Whit-well in the prosecution. (6) Instruction number 2 is erroneous because not based upon any testimony in the case going to show that defendant “voluntarily sought for, brought on or provoked the difficulty: ” and because it is argumentative and states abstract propositions of law. State v. Thompson, 83 Mo. 257. (7) The court should have also informed the jury, by proper instructions, of what the different degrees of crime consist. State v. Bryant, 55 Mo. 75; State v. Wyatt, 50 Mo. 309. (8) ' The court erred in compelling defendant to proceed to trial without having him furnished with a true copy of the indictment.</p> <p>(1) The copy of -the indictment was sufficient; the variation between it and the original was trivial and the objection is purely technical. (2). The juror J. N. Poynor testified “ that his impression was based upon what he heard from rumor, and he was, therefore, competent. State v. Bryant, 93 Mo. 273. (3) The statements by deceased to Whitwell and Caughron were competent as dying declarations. State v. Chambers, 87 Mo. 406; State v. Kilgore, 70 Mo. 546; State ». Draper, 65 Mo. 335 ; State «. Simon, 50 Mo. 370; Wharton’s Crim. Law, secs. 279, 282. Besides declarations to Whitwell were really a part of the res gestee. State v. Brown, 64 Mo. 367. (4) It was not error to refuse to allow A. J. Whitwell to be cross-examined, as to whether he had indorsed notes or a note to secure the. prosecution of defendant, or that he had made himself liable for the payment of fees to counsel, assisting the prosecuting attorney; even if this was true, it does not follow that he was biased or prejudiced, and his testimony affected thereby. But if the evidence was competent as tending to affect the credibility of the witness, its exclusion was not such an error as demands a reversal of the case. It is only where an error is committed by a trial court to the prejudice of a defendant that this court will reverse. State v. Cooper, 83 Mo. 698; State v. Griffith, 67 Mo. 287 ; State v. Robb, 90 Mo. 30 ; State v. Grate, 68 Mo. 22; State v. Holme, 54 Mo. 160.</p>

— Hon. B. E. Turner, Judge. (1) The record of the county court approving the bond is the only evidence of the fact and of what was done by the county court touching said bond. Medlin v. Platte County, 8 Mo. 235; Milan v. Pemberton, 12 Mo. . 599 ; Dennison v. County, 33 Mo. 168; Peppy v. Jefferson County, 47 Mo. 66 ; Maupin ®. County, 67 Mo. 327; Mobley v. Nave, 67 Mo. 546 ; Johnson County v. Wood, 84 Mo. 515 ; Bank v. Hoeber, 8 Mo. App. 171; Riley ®.

— IIon. C. C. Bland, Judge. (1) The court erred in sustaining the demurrer to the evidence. (2) The change in the bond was not made by the county court, nor by its direction, and this case does not fall within the general rule governing alteration of written instruments. First.

— Hon. J. B. G-antt, Judge. (1) The loss of the letter written from Kansas City was proved by its custodian, the proper party. (2) The admission of secondary evidence is discretionary with the trial court, and its discretion will not be interfered with, unless it clearly appears that It was abused. Christy v. Earanaugh, 45 Mo. 375; MeCorey v. Wallace, 22 Mo. App. 377.

— Hon. J. P. Grubb, Judge. This action was commenced by the plaintiff October 30, 1880, against the children of John H. Rode, deceased, who are the sole devisees (and the husbands of such of them as were married women), and James W. Strong, Ira Brown and others, to foreclose a deed of trust in the nature of a mortgage executed by defendant Strong, dated April 3, 1867, purporting to convey certain land described in Buchanan county, Missouri, to defendant Brown, in trust to…

— Hon. Richard Field, Judge. (1) The petition, being both for the vacation ol an existing public road and the establishment of a new-public road, was such a misjoinder that the court acquired no jurisdiction for either purpose. Laws of 1883, pp. 158, 164.

— How. D. A. DeArmond, Judge. This is an action of ejectment for a tract of land in Bates county. The petition is in usual form; tbe answer, a general denial. It was mutually conceded that defendant was in possession at the beginning of this action, and James Sullivan the common source of title. After evidence of the rental value of the land plaintiff offered a sheriff’s deed which the court excluded. This led to plaintiff’s taking a nonsuit with leave.

<p>1. Practice: exceptions : skeleton bill. Motions and documentary evidence filed in a cause or deposited with the clerk may be called for in making up á skeleton bill of exceptions.</p> <p>2. -: -: oral evidence. The judge is not called upon to Bign a bill of exceptions as a true one until the oral evidence in the cause has been written out and made a part of the bill, so that he may have opportunity to examine and correct it.</p> <p>3. -: -: -: stenographer’s notes. In preparing bills of exceptions parties are not required to resort to the stenographer’s copy of the oral evidence, but they may write it out from their notes or from memory, as was formerly done.</p>

— Hon E. L. Edwards, Judge. This is an action for personal injuries to plaintiff alleged to have been suffered while a passenger on defendant’s railway.. The case was here befpre, and is reported by the same title in 87 Mo. 74. In some of its phases it is so remarkable that a somewhat full statement of it, as presented by the record of the last trial, will be given.

— Hon. Chas. W. Sloan, Judge. (1) The bar docket of the circuit court was a record authorized by the statute to be kept for the information of the court, bar and the public generally. R. S. 1879, sec. 3722.

— Hon. J. M. Sandusky, Judge. (1) It was not competent to prove that deceased said before his death that he did not want defendant prosecuted, as he himself was to blame. “In criminal prosecutions the state sustains no such relation to the party injured as will render his declarations admissible in evidence against the state.” State Curtis, 70 Mo. 594. (2) The dying declarations were made in extremis and were properly admitted. State v. Chambers, 87 Mo. 406 ; State r>.

— Hon. John E. Ryland, Judge. (1 ) It is not necessary to charge an- assault. 2 Bishop’s Grim. Proc., sec. 955. (2) The indictment charges acts which constitute an attempt. 1 Bish. Crim. Law, secs. 742, 767, 768c2, 772a/ Bish Stat. Crimes, secs. 496, 499 ; Bishop’s Directions and Forms, sec. 913; State v. Hayes, 78 Mo. 307; 1 Russ, on Crimes [9 Ed.] 83, et seq.; Com. v. Jacobs, 9 Allen, 274 ; People v. Bush, 4 Hill. 133; 11 Mo. 116.

— Hon. E, L. Edwards, Judge. This is an action of ejectment. The petition alleges plaintiff’s right to the possession of one undivided tenth of the land mentioned and that defendant entered into the premises and unlawfully withholds possession. The answer admits defendant’s possession of. the land, but denies generally all other allegations of the petition. The cause was submitted to the court, sitting as a jury.

Louis Criminal Court. — Hon. Jas. C. Normile, Judge. (1) Elizabeth F. Van Duzer, being a married woman living with her husband, could not, in law, be the owner of the dwelling-house alleged to have been broken into; the ownership of the dwelling-house should have been laid in her husband; for “a house tenanted by a married woman is, in law, the house of her husband, and in case of burglary the ownership should be laid in the husband.” 1 Wharton, Criminal Law [ 9 Ed. J sec.…

(1) Respondent’s first instruction given is erroneous and misleading in that it bases the plaintiff’s right of recovery wholly upon his ownership of the eighty acres described, in the petition, without regard to the respective rights of the parties to the one hundred feet right of way through the tract, which is really the only matter in , dispute.

Prohibition. (1) The original jurisdiction conferred on the St. Lonis court of appeals by the twelfth section of the seventh article of the constitution to issue writs of quo warranto, and to hear and determine the same, was abrogated by the amendment to the constitution of 1884.

— Hon. Theodoee Beace, Judge. This is'a suit to foreclose a chattel mortgage on a stock of groceries and other merchandise. In 1881, plaintiff became surety for defendant Enoch. J. Jacobi on a note of the latter to a third party for twenty-five hundred dollars and interest at eight per cent, per annum payable one year thereafter. In 1888, the note remaining yet unpaid, over due, Enoch J. Jacobi executed said mortgage to plaintiff to indemnify him as such surety.

— Hon. John E. Ryland, Judge. (1) The court erred in permitting the state to prove what Newton Hughes said at the coroner’s inquest. State n. Young, 99 Mo. 666 ; People n. Willett, 92 N. Y. 29; 3 Am. & Eng. Ency. of Law, 494. (2) The court also erred in admitting the evidence of defendant taken at his examination at .the coroner’s inquest. People v. McMahon, 15 N. Y. 384; People n. Mindon, 103 N. Y. 690 ; Wharton’s Crim. Law, séc. 690 ; Staten.

Louis Criminal Court. — Hon. J. 0. N 0EMILE, Judge. (1) As it appears from the record, there was no legal evidence that the value of the coat in question was thirty dollars or more, the court erred in giving instructions numbered 1 and 2. 1 Bishop on Crim Proc., sec. 751; State t>. Kreigher, 68 Mo. 98 ; State v. Doepké, 68 Mo. 208 ; 3 Greenl. Ev., sec. 153.

— Hon. T. A. Gtill, Judge. This is an action to enjoin the city of Kansas from taking possession of a parcel of land, regularly condemned for public use as a street, until the payment of proper compensation therefor. The city of Kansas passed an ordinance to extend Independence avenue, October 3, 1882. Proceedings were begun under it to acquire the land of plaintiff, as well as of others, for public purposes as part of that thoroughfare.

Louis City Circuit Court. — How. Gr. W. Lubke, Judge. (1) The only substantial defense pleaded is “that after plaintiff submitted his plans, designs, etc., to defendant, plaintiff, with the assent of defendant, waived and abandoned any claim or right of plaintiff to become the architect and superintendent of said building, under or by virtue of the terms of the resolutions aforesaid.” Waiver and abandonment are questions of intention, and are to be determined from a…

— Hon. T. A. Gill, Judge. (1) The land in controversy was not the separate property of Mrs. Adeline Smurr, and her contract with Gwin and Daugherty, being merely an executory one, was and is utterly void and cannot be enforced. Huff «. Price, 50 Mo.. 264; Shroyer v. Hickell, 55 Mo. 264 ; Hall v. Callahan, 66 Mo: 316 ; Wilcox v. Todd, 64 Mo. 388; Atkinson v. Henry, 80 Mo. 151; Alexander x>. Lydick, 80 Mo. 341; Mueller v. Kaessmann, 84 Mo. 318.

— Hon. Jambs M. Sandusky, Judge. This action is in ejectment. The conflicting titles to the land in dispute run back to Henry B. Baker as the common source.

Louis City Circuit' Court. — Hon. Gr. W. Lubktc, Judge. (1) The court erred in striking out from the defendants’ answer to plaintiff.’s amended petition those portions-to which the plaintiff’s motion to strike out was addressed. Skillet v. Fletcher, 2 Com. Pleas, Law Rep. 469 ; Bank v. Hunt, 72 Mo. 600; Graves v. Bank, 10 Bush. 23.

This is an appeal from the decision of the circuit court of Buchanan county, sustaining defendants’ demurrer to plaintiff ’s amended petition for specific performance of .an agreement to convey the real property of respondent Mary L. Brown, a married woman, held as her legal (not statutory or separate) estate. Defendants are husband and wife.

— Hon. J. M. Sandusky, Judge. (1) The true inquiry is not what the testator meant to express, but what the words used do express. Couch v. Eastham, 29 W. Ya. 788; Stohes ». Van WycJc, 83 Ya. 729. Words cannot be put into a will, even to meet an unforeseen state of affairs. 1 Redfield on Wills, 437.

— Hon. J. P. Grubb, Judge. This is the second appeal in this cause, the first being reported (under the same style) in 82 Mo. 200. The petition and genéral nature of the case are stated quite fully there. The suit is in equity to enforce an alleged contract or settlement in the nature of jointure, said to have been made between Joseph Walker and defendant, during the life of the former.

Louis City Circuit Court. — How. Shepard Barclay, Judge. (1) Tbe refusal of tbe trial court to submit special issues to tbe jury as prayed by plaintiff constitutes reversible error. R. S. 1889, secs. 6594, 6596, 6598; Commonwealth v. Desmond, 123 Mass. 407; Rogers v. Railroad, 35 Mo. 153; State v. Proctor, 90 Mo. 334; State v. Railroad, 32 Fed.

— Hon. W. D. Hubbard, Judge. This is an action for personal injuries sustained by plaintiff by reason of the alleged negligence of defendant, the city of Springfield, in permitting one of its street crossings to remain in a dangerous and unsafe condition, after due notice thereof. The pleadings need not be specially noted.

Charles Circuit Court. — Hon. W. W. ' Edwards, Judge. (1) This is purely an equitable proceeding ; every feature and statement in the bill appeals to the conscience of the chancellor. In such a case it is always a question of laches, and not a question of limitations. Kline v. Yogle, 90 Mo. 240. The delay that will defeat a recovery in equity depends upon the peculiar circumstances of each case; and is not defined by any statute of limitations. Smith v. Washington, 11 Mo.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The good faith and belief in an absolute title, which is required in equity as a condition of the allowance for improvements made upon land of which the possessor is not the owner, is determined by the same considerations and principles which govern the question of what is an innocent purchaser1 for value. “In good faith” is equivalent to “without notice.” Lee v. Bowman, 55 Mo. 400 ; Coover v. Johnson, 86 Mo. 533.

Louis Gity Circuit Gourt. — Hon. Gr. W. Lubke, Judge. (1) The bill of lading introduced in evidence by the defendant is the express contract under whose terms the shipment was made. Shelton v. Railroad, 59 N. Y. 258; Nelson v. Railroad, 48 N. Y. 498; Moriarty v. Herndon's Express, 1 Daly, 227; Grace v. Adams, 100 Mass. 505 ; O'Brien v. Kinney, 74 Mo. 125 ; Wallace v. Matthews, 39 Gra. 633.

— Hon. W. I. Wallace, Judge. This is an action to enforce a bond and mortgage, executed to evidence and secure a loan of the school funds of Webster county. The defense is that the obligation of the instrument was discharged by reason of facts amounting to a release of the defendants as sureties in the bond. The reply put this defense in issue. The court found for defendants, and there was judgment accordingly. The other material facts are stated in the opinion.

Charles Circuit Court. — Hon. W. W. Edwabds, Judge. (1) The court .erred in refusing the first instruction asked by defendant. It was a correct declaration of law in the case. ■ Jenlcins ®. McCoy, 50 Mo. 349; Adams v. Leip, 71 Mo. 598; White v. Wear, 4 Mo. App. 341; Harris v. Turner, 46 Mo. 438; Kennett v. Plumer, 28 Mo. 145; 'Morgner v. Biggs, 46 Mo. 66; McAllister v. Lawler, 32 Mo. App. 91. (2) The court erred in refusing defendant’s second instruction.

— Hon. Andrew Ellison, Judge. (1) The patent from the state to Edward A. Edwards and his warranty deed to plaintiff were sufficient to warrant a recovery by plaintiff, as there was no adverse possession shown by the evidence, but a holding under the state or Macon county, and the statute of limitation was never set in motion..

— How. G. D. Burgess, Judge. . (1) The principal point we make in this case is that the petition does not state facts sufficient to entitle the appellee to the relief prayed for and granted by the court, or that the agreement set forth in appellee’s petition does not prohibit appellant from leaving openings or windows in the wall, and that in the absence of such prohibition, either in the agreement or by statute, appellant lias the right at common law to leave said Openings…

Louis City Circuit Court. — Hon, Shepard Barclay, Judge. The third instruction given for plaintiffs was erroneous for the following reasons: (1) Between landlord and tenant there is no implied covenant on the part of the landlord that the premises are fit for the particular use which the tenant intends to make of them, or that the' building will endure during the entire term.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge.' (1) Upon the pleadings, the deed sought to be set aside is clearly and absolutely void as against the appellant, who stands in the place of a creditor existing at the time. R. S. 1879, p. 417, sec. 2497; Gentry v. Robinson, 55 Mo. 260; Lionberger v. Balter, 88 Mo. 447; Reinhart v. Long, 95 Mo. 401. (2) The deed read in evidence by the grantee does not bring him within the qualifications of section 2498.

— TIon. Chas. W. Sloan, Judge.' This is an action upon a promissory note of the following tenor: “$417.00. Holden, Mo., July 7, 1884. “For value received, on or before the first day of September, 1885, the undersigned promise to pay to the order of the Springfield Engine and Thresher Company four hundred and seventeen dollars, payable at 'Farmers’ and Commercial Bank, Holden, Missouri, with interest at eight per cent, from date until due, and ten per cent, after due.