Volume 104 — Missouri Reports

— W. M. Robinson, Esq., Special Judge. (1) Where one in pursuance of, and on the faith ■of, an oral promise of the owner, that he shall have a ■deed for land, has changed his condition, entered into the possession of the land, made valuable and permanent improvements, incurred obligations, paid taxes, .and expended time, labor and money on account thereof, ■the case is taken out of the statute of frauds, and equity will compel a specific performance of such promise «gainst…

Louis City Circuit Court. — -How. L. BYallí ant, Judge. (1) The claim of appellant that the petition was bad as not stating facts sufficient to constitute a cause of action has been made with sufficient definiteness in the motions for a new trial and- in arrest. But even if such claim had been lacking in definiteness as in said motions filed, or not made at all in the case, it would not be lost, but could be made in this court for the first time.

— Hon. John I), Poster, Judge. (1) The defendants having appeared by attorney at the return term, they waived all informalities in the service and return of the writ of summons. Bartlett v. McDaniel, 3 Mo. 55; Lindell v. Bank, 4 Mo. 228,; Griffin o. Samuel, 6 Mo. 50 ; Moans o. King, 7 Mo. 411; Hembree v. Campbell, 8 Mo. 572; Phillebart o. Moans, 25 Mo. 323; Schell o. Leland, 45 Mo. 293; Miller v. McCoy, 50 Mo. 15.

Louis City Circuit Court. — Hon. Gr. W. Lubkb, Judge. This case was heard on the following petition and answer: “William G. McCormack, k, Plaintiff, v. “Charles H. Sawyer, Defendant. . “ Plaintiff states that on, to-wit, the twelfth day of December, 1883, defendant was indebted to the firm of Smith, McCormack & Co. in the sum of $14,941.60 for money then found to be due from said defendant to said Smith, McCormack & Co., upon an account stated between them; which said sum…

- — Ron. Richard Field, Judge. (1) The court erred in giving the declaration of law, numbered 1, asked for by plaintiffs and objected to by defendant, and in refusing to give the declaration of law, numbered 1, as prayed by the defendant. Sess. Acts, 1875, p. 61; Woodford v. Stevens, 51 Mo. 443 ; Barnes v. Bangert, 16 Mo. App. 22 ; Alexander v. Lydiclc,80 Mo. 341; R. S. 1879, secs. 3296, 3295 ; Sallee v. Arnold, 32 Mo. 532; Fisher v. Anchor Line, 15 Mo.

— Hon. O. M. Spencer, Judge.- (1) It is for the court to compare the marks in a trade-mark case or case of unfair business competition. If to the eye of the court, there is such a resemblance as must have been intended to, or would probably, deceive the ordinary purchaser, an injunction will be granted.

— Hon. C. O. Bland, Judge. While it was the duty of the auditor to immediately issue a distress warrant against Reddick and his sureties, upon ascertaining the amount he owed the state, still the failure of John Walker, the then auditor, to do his duty does not exonerate or discharge the sureties on Reddick’s bond.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. The court erred in overruling plaintiff’s objection to the introduction of any evidence by defendant, because, from the averments of the answer, it appears that at the time of the delivery of the mules to Grant he was not entitled to possession of them. By the transaction between Grant and Dennis, the latter became invested with the property in the mules and also with the possession. State v. Dennis, 80 Mo. 589.

Louis City Circuit Court. — Hon. Gr. W. Lujbkjb, Judge. (1) No exception was necessary to enable this court to review the ruling of the circuit court, on plaintiff’s motion to strike out of defendant’s answer the equitable set-off; the objection being predicated upon the theory that the part of the answer affected did not state facts sufficient to constitute a cause of action or defense. First.

— Hon. T. A. Gtll,. Judge. Ti-ie action is in replevin for certain promissory notes, amounting, in total value, to about $35,000. The answer is a general denial. Plaintiff is administrator of the estate of Francis F. Ford, deceased. The notes belonged to the latter in his-lifetime. The defendant is a nominal party or mere stakeholder, the real party interested adversely to plaintiff being Henry T. Ford, brother to the deceased.

— Hon. O. M. Spencer, Judge. (1) The city engineer was defendant’s vice-principal and plaintiff was entitled to recover. Gormly v. Iron Works, 61 Mo. 492; Whalen v. Church, 62 Mo. 326 ; Cook v. Railroad, 63 Mo. 397; Stephens n. Railroad, 86 Mo. 229. (2) The servant is not chargeable with contributory negligence if he go into a place of danger under the direction of the master, especially when he has the assurance of the master that it is safe for him to do so.

Habeas Corpus. (1) The local-option law having never been adopted in Marion county, the circuit court had no lawful authority to hear and determine the case. Held: is void for want of authority of law to render it, he is entitled to a discharge. Church on Habeas Corpus, sec. 371, p. 494; Ex parte Lange, 18 Wall. 176; Ex parte Wooldridge, 30 Mo. App. 612-618. If the last-cited case is persuasive authority, it is believed to be absolutely decisive of this case.

<p>1. Certiorari : office of writ. The office of the writ of certiorari is to bring the record of the proceedings of an inferior court or tribunal before a superior court to determine whether it had acted legally and within its jurisdiction.</p> <p>2. -: -. It is in the nature of a writ of error to review the proceedings of the inferior court or tribunal and is only allowed where no appeal or writ of error or other available mode of review is afforded.</p> <p>■3. -. Certiorari must be founded upon a final adjudication of the matter involved and cannot issue upon a merely interlocutory order.</p> <p>4. -. An order of court appointing commissioners in a condemnation proceeding is merely interlocutory, from which no appeal or writ of error will lie and is not a sufficient basis upon which to issue a writ of certiorari.</p>

Louis City Circuit Court. (1) If the sale was void, as alleged, Hughes and Gr. P. Wolff, or Gr. P. Wolff alone, became the legal owner of the mortgage. Brown v. Smith, 116 Mass. 108; Jackson v. Bowan, 7 Cowen, 13; Vroom v. Ritmas, 4 Paige, 526; Robinson v. Ryan, 25 N. Y. 370. (2) There was no equitable relief necessary to put plaintiff, Greo.

'Appeal from Henry Circuit Court. — IIon. James B. ¡Gantt, Judge. (1) The first instruction asked by plaintiff and refused by the court should have been given. First Defendants could not set up as an outstanding title a mortgage executed by themselves. LaugMin v. Stone, 5 Mo. 43; Page «. Hill, 11 Mo. 149; Mathews v. ■Licompte, 24 Mo. 545; Gritchell v. Kreidler, 12 Mo. App. 497; Boyd v. Jones, 49 Mo. 202; Matney v. Graham, 59 Mo. 190. Second.

Certified from Kansas City Court of Appeals.. The lease mentioned in the opinion of the court is in these words, viz.: “This article of agreement witnesseth: That H. W. Tracy has this day rented to the Union Iron Works Company, of Decatur, Illinois, in the present condition thereof, the upper story of his business house, known as 1305, 1307 and 1309 West Twelfth street, Kansas City, Missouri, said company to have the use of elevator and platform in common with the other…

— Hon. Jos. P. G-rubb, Judge. (1) Tile plaintiffs nowhere allege, directly or by implication, that they or either of them were in the possession of the lands in controversy, and there is nothing, if the allegations of the petition are true, to prevent them from successfully prosecuting their suit by ejectment. Graves v. Swart, 99 Mo. 13 ; Davis v. Sloan, 95 Mo. 552 ; Dyer v. Bannock, 66 Mo. 216 ; Clark v. Ins.

— Hon. C. W. Sloan, ’ Judge. This is an action for damages based upon the alleged negligence of defendant in carelessly and negligently driving and forcing certain loose cars on its house or sidetrack, in the town of Pleasant Hill, Missouri, against some stationary cars, near a crossing on said track, whereby the plaintiff was, without warning, caught between the cars on the crossing, and thé fleshy portion of his thigh mashed.

— Hon. Chas. W. Sloan, Judge. (1) The court erred in refusing to give the defendant’s instruction at' the close of the evidence, that the plaintiff could not recover. Banking Co. v. O’Hara> 46 Gfa. 417; Bendict o. Chandler, 26 Ohio St. 393; Maguire v. Magee, 13 Atl.

Louis City Circuit Court. (1) Plaintiff acquired and holds the interest of James E. Reily whose title passed by descent to his infant daughter, from her to her mother, Julia, who became the wife of plaintiff, and by residuary clause to her will devised the same to plaintiff. Rodney v. McLaughlin, 97 Mo. 427.

— Hon. H. C. O’Bryan, Judge. (1) The special act of 1853 ( Session Acts, 1853, p. 569) exempting appellant’s property from taxation, and the acceptance of said act, and the compliance with its terms and conditions by appellant, as fully set forth in appellant’s petition, constitute a contract with the state of Missouri, within the meaning of section 10, article 1, of the constitution of the United States.

<p>Assault with Intent to Kill: review of conviction. Where there is no error in the instructions and the verdict is supported by the evidence a conviction of an assault with intent to kill will be affirmed.</p>

— Hon. J. H. Sloveb, Judge. Thomas Ellis, Sr., is plaintiff and W. P. Harrison and Thomas Ellis, Jr., are defendants in the action. Plaintiff presents four demands stated separately. In his petition they appear thus: First count, for $3,900, and interest, represented by notes. Second count, upon one note for $3,338.73, and interest. Third count, upon one note for $800, and interest. Fourth count, for money laid out and expended for the use of defendants.

— Hon. James M. Sandusky, Judge. (1) The court erred in excluding competent evidence offered by the plaintiff. Lorian v. Railroad, 46 Pa. St. 520. (2) Besides, the cost of building new chutes and a new switch were not only not proper elements of damage, but they were not even claimed in defendant’s “answer and cross petition” by which he is bound.

— Hon. James M. Davis, Judge. (1) Under the statute authorizing this action only the person who committed the homicide is liable. It is the wrongful act producing death which creates the liability. R. S. 1889, sec. 4426; Proctor v. Railroad, 64 Mo. 112; Dulaney v. Railroad, 21 Mo. App. 597; Jackson v. Railroad, 87 Mo. 424.

<p>Appeal from St. Louis City Circuit Court. — Hon. J. A. Sedd on, Judge.</p> <p>(1) The will of James Harrison, deceased, did not create a separate estate in his unmarried daughter, Cordelia Harrison, now Cordelia H. Leete. Garner v. Jones, 52 Mo. 68; Paul v. Leavitt, 63 Mo. 595 ; Morrison v. Thistle, 67 Mo. 596; Bank v. Taylor, 53 Mo. 450-455; 2 Rapalje & Lawrence’s Law Dictionary, p. 1132. (2) Section 19, chapter 115, General Statutes of 1865, did not make the greater part or any part of the money coming to Mrs. Leete, under the will of her father, her separate estate, or exempt from the debts of her husband. Collier Will Case, 40 Mo. 287; G. S. 1865, sec. 14, chap. 115; Peek v. Walton, 26 Yt. 86; Clark v. Bank, 47 Mo. 1. (3) The rights of Mrs. Leete, under her father’s will, to one-fifth of the entire estate, was a chose m action within the meaning of the law, and as such entitled Dr. Leete jure mariti to take possession thereof, and appropriate the same for his own use and behoof. Collier Will Case, 40 Mo, 287 ; Leakey v. Maupin, 10 Mo. 368.; Watervelt v. Oregg, 12 N. Y. 202 ; 2 Kent’s Com. [12 Ed.] p. 135. (4) The money invested by Dr. Leete in the premises in controversy, having been secured to him by the exercise of his marital right to reduce his wife ’ s legacy to possession, became and was Dr. Leete’s own money; therefore, no resulting trust arose in Mrs. Leete to the premises in controversy, purchased and improved with such money. Rogers v. Rogers, 87 Mo. 259; Modrell v. Riddell, 82 Mo. 31 ; Terry v. Wilson, 63 Mo. 499 ; Whitmore v. Learned, 70 Me. 276 ; Plyden v. Hyden, 6 Bax. 407; Boyd v. McLean, 1 John Ch. 590; Burns v. Bangert, 16 Mo. App. 26. (5) As payment of the purchase money was not made by Mrs. Leete, when the title was taken, and as no obligation to pay was incurred by her at the time of the purchase, no subsequent payment, however clearly proved, would create any resulting trust in her favor to the premises in controversy. A resulting trust must arise, if at all, at the time the legal title is taken. Perry on Trnsts, sec. 133; Bottsford v. Burr, 2 John. Ch. 408 ; 2 Pomeroy’s Eq. Jur., sec. 1037; White v. Carpenter, 2 Paige, 217; 51 Am; Dec. 755, note. (6) There was no agreement between Mr. Leete and Mrs. Leete that the title to the premises in controversy should be taken in her name. There was, therefore, no trust created in favor of Mrs. Leete, ■when. Dr. Leete took the title in his own name. Kid-well v. Kirkpatrick, 70 Mo. 214; Ream v. Karnes, 90 Ind. 171; Wiley v. Basil, 4 Md. Ch. 327. (7) Augustus B. Hart having without any notice of Mrs. Leete’s alleged rights loaned a large sum of money on the faith of Dr. Leete’s apparent ownership of the property in controversy, his right, or the right of a purchase under his judgment, should be enforced in preference to the wife’s claim to a resulting trust in the property so apparently owned by Dr. Leete. Zimmer v. Bansby, 56 Gfa. 79 ; Brooks v. Shelby, 54 Miss. 353; McQoy v. Hyatt, 80 Mo. 130. (8) The deed of December 9,1884, cannot be upheld under the equitable doctrine of “equity to a settlement.” 3 Pomeroy’s Eq. Jur., secs. 1114, 1115, 1116; Bold’s Adm’r v. Geiger’s Adm’r, 2 Gfratt. 98-110; 1 White & Tudor’s L. O. in Eq. 674, and cases cited. (9) The deed of December 9, 1884, was not intended to be in consideration of any debt due by Dr. Leete to his wife, and cannot be upheld on any such theory. First. Such theory is not pleaded. Second. If it were, it is not true in fact. Third. There was no mistake of law or fact, and none claimed by the parties. Fourth. The rule permitting explanation of consideration has no application to this case. Fifth. There is no data for, reforming the contract, no evidence on which to do it. State v. Frank, 51 Mo. 98; Modrell r>. Riddell, 82 Mo. 31 ; Brohammer v. Hoss, 17 Mo. App. 1. Sixth. There was no issue at the trial concerning the existence of any debt to Mrs. Leete, and, if there was, it was not proved. (10) The married woman’s act of March 25, 1875, is not retrospective, and cannot be held to exempt any money or property secured by Dr. Leete prior to its passage, in the exercise of his marital rights, from the payment of his own debts. Richardson n. Lowry, 67 Mo. 411; Hitz v. Bank, 111 H. S. 722; Roberts v. Walker, 82 Mo. 208; Moses v. Bode Go., 84 Mo. 242; Terry v. Wilson, 63 Mo. 493. (11) The existence of a homestead right in Dr. Leete to $3,000 worth of the property in controversy does not screen the balance of the property, in the neighborhood of $30,000, from the just demands of Dr. Leete’s creditors. Crisp ». Crisp, 86 Mo. 630; Bunn t>. Lindsay, 95 Mo. 250; Thompson v. Newberry, 93 Mo. 18. (12) If Mrs. Leete has thirty-seven-hundredths of the premises in controversy, as found by the court below, the homestead right is left to the family, and should not be taken out of the sixty-three-liundredths of the property decreed to belong to the plaintiff. The husband and wife, both, are not entitled to the homestead. Willis v. Matthews, 46 Texas, 478-484; Tourville v. Pierson, 39 111. 447; Gambette v. Brock', 41 Cal. 78; Thompson on Homesteads, secs. 220-226. (13) As the circuit court never found that there was a valuable consideration, for the deed to Mrs. Leete’s trustee, and as the circuit court never found that there was a mutual mistake in respect to the consideration recited in the deed of December 9, 1884, and as such were not the facts, and were not supported by any evidence in the case, we do not argue, except incidentally in discussing the testimony, defendant’s point 8, or subdivision 5 of their point 1. (14) There was no error in the refusal of the defendant’s application to hie an amended answer at the time, and under the circumstances attending the application. Shields ?). Powell, 29 Mo. 315 ; Gott v. Powell, 41 Mo. 416; Jones v. Hart, 60 Mo. 364 ; Vogler v. Montgomery, 54 Mo. 577. (15) On the theory that Mrs. Leete has any interest in the premises in controversy, the referee adopted the correct method of apportioning the respective interests of Dr. and Mrs. Leete thereto. Bowen r>. McKean, 82 Mo. 594; Harrison v. Smith, 83 Mo. 210 ; Stoller v. Coates, 88 Mo. 514. (Í6) Dr. Leete’s right to reduce his wife’s choses in action to possession and have and enjoy them and their proceeds as his own property was conferred upon him by the marriage contract between himself and wife in 1871. This right was not impaired or affected by the married woman’s act of 1875. Accordingly, it is immaterial whether he exercised the right before or after the passage of the act. First. Concerning the character of the marriage contract. Reeves’ Domestic Relations [ 4 Ed. ] p. 251 ; State to use v. Fry, 4 Mo. 182. Second. What constitutes retrospective legislation or impairment of the obligation of the contract within the meaning of the constitutional prohibition? State ex ret. v. Hayes, 52 Mo. 578; State ex ret. v. Grant, 79 Mo. 113 ; Green v. Biddle, 8 Wheat, 84; Sedgwick on Construction of Stat. and Const. Law [ 2 Ed. ] p. 160 ; Ins. Go. v. Flynn, 38 Mo. 484; St. Louis v. Clemens, 52 Mo. 144. Third. The right of the husband to reduce the choses in action of the wife to possession and have the fruits thereof as his absolute property was a recognized and valuable right at common law; also an assignable right and one which could be reached by the husband’s creditors. Abington v. Travis, 15 Mo. 243; Wood v. Simmons, 20 Mo. 363-380; Croft v. Bolton, 31 Mo. 360; Hockaday v. Sallee, 26 Mo. 220; Schuyler v. Hoyle, 5 Johns. Ch. R. 196; Reeves’ Domestic Relations [4 Ed.] p. 5, note. Fourth. The act of March 25, 1875, does not by its terms necessarily relate to the husband’s rights in choses in action acquired by a wife before its passage. Fifth. If it was so intended to relate to such rights it is unconstitutional and void because it impairs the obligation of the contract, and is retrospective in its operation. Dartmouth College Case, 4 Wheat., p. 518 ; Wells on Separate Property of Married Women, pp. 93-95; O ’ Connor v. Harris, 81 N. C. 284-5 ; Sherry v. Niles, 57 Ga. 512; Dunn v. Sergeant, 101 Mass. 336; Jackson v. Sublette, 10 B. Mon. 467; Byder v. Hulse, 24 N. Y. 372. Sixth. It is not necessary that the right, in order to be protected from invasion by the constitutional safeguards, should be either a right or an estate in property; a right to secure the property is equally protected by the constitution. Warner v. Yeitch, 2 Mo. App. 463; Gunn v. Barry, 15 Wall. 610 ; Phillips v. Schall, 21 Mo. App. 44; State ex rel. v. Greer, 78 Mo. 193.</p> <p>(1) Mrs. Leete, having the legal title to the property in her trustee, and having been at the date of the deed a creditor of her husband for more than the value of the property, her trustee can hold that title against any other creditor. First. She was such a creditor as to all money collected by her husband from Edwin Harrison after March 25, 1875, and lost by him in loans to, or indorsements for, the Harrison Wire Company. Broughton v. Brand, 94 Mo. 169; Gilliland v. Gilliland \ 96 Mo. 522; Cooper v. Slandley, 40 Mo. App. 138; Harrison v. Smith, 83 Mo. 210. Second. Hr. Leete’s right to have preferred his wife as a creditor, and her right to have accepted the preference, cannot be questioned. Mere equitable obligations of like character have been held to be valid considerations for deeds. Bump on Fraudulent Conveyances, 316; Bump on Fraudulent Conveyances, 219 ; Cole v. Shea, 45 N. J. Eq. 786; Kennedy v. Powell, 34 Kan. 22; Savage v. O’Neal, 44 N. Y. 298; Rudershausen v. Atwood, 19 Bradwell, 58; Crouse v. Morse, 49 Iowa, 382; Sims v. Moore, 74 Iowa, 497. Third. Where equities are equal legal priority 'will prevail. Thorndike z>. Hunt, 3 DeOex. & Jones 563 ; Case v. James, 29 Beav. 512; Davidson v. Cowan, 1 Hev. Eq. 470; Muse v. Letterman, 13 S. & R. 167; Baird v. Williams, 19 Pick. 381; Ellis v. Kreutzinger, 27 Mo. 311; Ensworth v. King, 50 Mo. 477; Davis v. Ownsby, 14 Mo. 170 ; Martin v. Nixon, 92 Mo. 26; Black v. Long, 60 Mo. 181; Parks v. Bank, 97 Mo. 130. Fourth. That Mrs. Leete did not formally release her husband from any part of this indebtedness, as consideration for the deed, is immaterial. Williams ®. Robbins, 15 Gray, 590; Chamberlain v. Dorrance, 69 Ala. 40; Dudley v. Dudley, 45 N. W. Rep. (Wis.) 602. Fifth. If there was a mutual mistake, as the circuit judge says there appears to have been, by Dr. Leete and his wife, in respect of the consideration recited in the deed, that fact disposes of the averment of fraudulent intent under the circumstances of this case. The parties to the deed are not estopped by such recital. Bean v. Patterson, 122 U. S. 496; Hitz v. Bank, 111U. S. 722; Feather stone v. D agnail, 29 S. C. 45 ; Coles v. Soulsby, 21 Cal. 47; Dudley ®. Dudley, 45 N. W.' Rep. (Wis.) 602; Minor v. Sheehan, 30 Minn. 419; Wolford v. Farnham, 46 N. W. Rep. (Minn.) 295; Fontaine ®. Sav. Inst., 57 Mo. 561; Baile v. Ins. Co., 73 Mo. 371; Lielke v. Knapp, 79 Mo. 27; Sexton v. Anderson, 95 Mo. 373. (2) The decree is erroneous in disregarding the defense of homestead made by the answer and sustained by the evidence. Kendall v. Powers, 96 Mo. 142 ; Orr v. Shraft, 22 Mich. 260; State ex rel. v. Iron Co., 88 Mo. 222 ; Davis v. Land, 88 Mo. 436; Grimes v. Portman, 99 Mo. 229; Beckman ®. Meyer, 75 Mo. 333; Yogler v. Montgomery, 54 Mo. 577. The defense of homestead in such an action has been sustained in other states in the following cases, and the list is by no means complete : Derby v. Weyrich, 8 Neb. 174 ; Officer v. Evans, 48 Iowa, 557 ; Aultman ®.' Ileiney, 59 Iowa, 654; Addicken v. Humphal, 56 Iowa, 365 ; Payne v. Wilson, 76 Iowa, 377 ; Smith v. Rumsey, 33 Mich. 183 ; Rhead v. Hounson, 46 Mich. 243 ; Pulte v. Getter, 47 Mich. 560; Orr v. Shraft, 22 Mich. 260. (3) The exemption clause in the act of March 25, 1875 (R. S. 1879, sec. 3296 ; R. S. 1889, sec. 6869), applied as well to money received by Dr. Leete on account of his wife’s inheritance prior to the date of that act, as to the money received by him thereafter from the same source. Nance ®. Nance, 84 Ala. 375 ; Burns ®. Banged, 92 Mo. 167; Richardson ®. Lowry, 67 Mo. 411 (1878); Bledsoe v. Simms, 53M'o. 305. (4) The will of James Harrison impressed upon the bequest to Mrs. Leete the character of a separate estate. Dugans v. Livingston, 15 Mo. 151 ; Morrison v. Thistle, 67 Mo. 599 ; Allison v. Chaney, 63 Mo. 279 ; Carter v. Alexander, 71 Mo. 585; Russell v. Eubanks, 84 Mo. 82, and cases cited; Reinders v. Koppelman, 94 Mo. 338; Preston v. Brant, 96 Mo. 556. (5) Without regard to the will of James Harrison, section 19, chapter 115, General Statutes of 1865 (Wagner, p. 936), made by far the greater part of the money coming to Mrs. Leete prior to March 25,1875, her separate estate, and exempt from the debts of her husband. This statute should be liberally construed. Rogers v. Bank, 69 Mo. 563; Diver v. Diver, 6 Smith (Pa.) 106, 109 ; Paver v. Lester, 17 How. Pr. 413, 416; Goss v. Cahill, 42 Barb. 310, 315. (6) Dr. Leete did not exercise his marital right of reduction to possession as to any of the choses in action of his wife. Barron v. Barron, 24 Vt. 375; Blade v. Barber, 30 Vt. 191; Slandeford v. Devol, 21 Ind. 404; Machen v. Machen, 28 Ala. 374; Hind's Estate, 5 Whart. 138; Gochenaur's Estate, 23 Pa. St. 460; Pierson v. Smith, 9 Oh. St. 554; McCampbell v. McCampbell, 2 Lea (Tenn.) 661. (7) Under the circumstances of this case the wife’s equity to a settlement was a sufficient consideration for the deed in question. Smith v. Kane, 2 Paige Chan. 302; Wickes v. Clarke, 3 Edw. Ch. 58; Wickes v. Clarke, 8 Paige Ch. 161; Kenny v. Udall, 5 Johns. Ch. 464 ; Poindexter v. Jeffries, 15 Grat. 363. (8) The circuit court, having found that there was a valuable consideration for the deed to Mrs. Leete’s trustee, should have dismissed the petition. Tt'uesdell v. Baríes, 104 N. Y. 164; McGraw v. Gwin, 7Ired. ( N. C.) Eq. 55 ; Bragg v. Stanford, 82 Ind. 234; Syracuse Plow Co. v. Wing, 35 N. Y. 421 ; Whann v. Atkinson, 83 Ala. 592; Bremmerman v. Jennings, 101 Ind. 253 ; Sibley v. Hood, 3 Mo. 290. (9) The consideration for the deed was not only valuable but adequate under the correct method of tracing trust funds. Harrison v. Smith, 83 Mo. 210 ; Stoller v. Coates, 88 Mo. 514; “The Progress of Equity in Following Trust Funds,” 31 Cent. Law Jour. 125 and 145. (10) If doubt exists as to the construction to be given to the act of Dr. Leete in executing and delivering the deed, such doubt should be resolved ‘in favor of defendants. Dallam v. Renshaw, 26 Mo. 544; Rumbolds v. Parr, 51 Mo. 592; Henderson v. Henderson, 55 Mo. 534; Page v. Dixon, 59 Mo. 43 ; Ames v. Cilmore, 59 Mo. 537; Webb v. Darby, 94 Mo. 621. (11) Plaintiff ’ s contention below that Dr. Leete having been married prior to March 25, 1875, the act of that date did not and could not affect his relation to property coming to his wife prior or subsequently to its passage, is not sustained by the better considered cases, either state or federal. Henry v. Dilley, 25 N. J. L. (1 Dutch.) 302; Pritchard v. Bank, 8 Lou. 130; Goodyear v. Rumbaugh, 13 Pa. St. 480 ; Johnston v. Johnston’s Adm’r, 31 Pa St. 451. (12) As a rule of evidence the act of March 25, 1875, applied to all personal property, theretofore or thereafter acquired, in the manner therein stated, by women then married. Ins. Go. v. Hill, 86 Mo. 466; Coe v. Ritter, 86 Mo. 277; St. Louis v. (Eters, 36 Mo. 456; Rogers v. Bank, 69 Mo. 560; Rieper v. Rieper, 79 Mo. 352; McCoy v. Hyatt, 80 Mo. 130. (13) Mrs. Leete is not estopped from claiming title in her trustee, under the pleadings and evidence in this case. Facts relied upon as an estoppel in pais must be specially pleaded. Bray v. Marshall, 75 Mo. 327 ; Noble v. Blount, 77 Mo. 235; Hammerslough v. Cheatham, 84 Mo. 21; Railroad v. Levy, 17 Mo. App. 509 ; Bank v. Jennings, 18 Mo. App. 657; Kennedy v. Klein, 19 Mo. App. 19; Miller v. Anderson, 19 Mo. App. 71, 75.</p>

Quo Warranto. (1) The right to resign an office is universally recognized ; the only doubt ever existing in the matter was as to the necessity of acceptance by the appointing power, to make the resignation complete. Const., art. 14, sec. 4. In this case, there are both the resignation and acceptance.

— Hon. J. H. Slover, Judge. v (1) Mrs. Rooney at time contract was entered into with Bessie Sprague was a feme covert, and under the decision in Marlin v. Colburn, 88 Mo., page 229, her husband must join her in making a conveyance of her separate estate ; yet it must not be forgotten that she did not have the “jus disponendi of this property ; the trust was created for her heirs as well as her, and she must comply with the conditions of the deed before the trustee would have…

<p>Appeal from St. Louis City Circuit Court.— How. J. A. Seddon, Judge.</p>

<p>Appeal from Livingston Circuit Court. — Hon. J. M. Davis, Judge.</p> <p>(1) Robbery is larceny from the person, by violence, or by putting in fear. ' 2 Bishop, Crim. Law [ 3 Ed.] p. 595 ; Long v. State, 12 Gia. 293; People v. Nelson, 56 Cal. 77. (2) Larceny is characterized by a felonious intent. State v. Ware, 62 Mo. 597 ; State v. Shermer, 55 Mo. 83; State v. Stone, 68 Mo. 101. (3) Therefore, in robbery, the taking must be with an intent to appropriate the property as in larceny, with apimo furandi. People v. Keefer, 2 West C. Rep. (Cal.) 878; Long v. State, 12 Ga. 293; State r>. Holly way, 41 Iowa, 200; Ward v. Commonwealth, 14 Bush, 233 ; Murphy v. People, 3 Hun, 114; State n. Curtis, 71 N. C. 56 ; Jordan v. Com., 25 Gratt. 943; 2 Wharton, Crim. Law [7 Ed.] sec. 1697 ; State v. Broderick, 59 Mo. 320. (4) The court erred in not submitting to the jury the question of intent in taking the money. Jordan v. Com., 25 Gratt. 943 ; People v. Hall, 6 Park Cr. 642; Johnson v. Com., 24 Gratt. 555. (5) The court should have told the jury to find the taking was done “feloniously,” but .did'not. R. S. 1889, sec. 3530. (6) The court erred in not instructing the jury on all the law arising in this case, and a failure to do so constitutes reversible error, and it makes no difference that such instructions were not asked. State v. Banks, 73 Mo. 592 ;■ State v. Branstetter, 65 Mo. 154 ; State v. Palmer, 88 Mo. 568. (7) The court should have given an instruction on petit larceny. Com. v. Prewett, 82 Ky. 404; State v. Keeland, 90 Mo. 337 ; Kidd v. State, 83 Ala. 58. (8) The court should have instructed the jury that, if the defendants compelled Ottoman to pay a debt due them, then there was no robbery. Regina v. Hemmings, 4 F. & F. 50 ; State v. Holly way, 41 Iowa, 200 ; 2 Wharton’s Crim. Law [7 Ed.] sec. 1697. (9 ) The court erred in refusing instruction, numbered 4, as asked by defendants in relation to the snatching of property from the hand of another. Snatching property from the hand of another is not robbery. State v. Texler, 2 Cap. Law. Rep. 90; 6 Am. Dec. 558 ; State v. Willis, 16 Mo. App. 553; S hinn r>. State, 64 Ind. 13; State n. Sommers, 12 Mo. App. 374 ; 2 Wharton’s Crim. Law [7 Ed.] secs. 1701, 1786; 2 Bishop’s Crim. Law [3 Ed.] p. 597. (10) If instruction 4, as asked, was objectionable in phraseology, the court should have given a correct one in relation to that phase of the case, and a refusal to do so is reversible error. State ». Mathews, 20 Mo. 55 ; State v. Jones, 61 Mo. 232; State v. Lowe, 93 Mo. 571; State v. Stonum, 62 Mo. 596. (11) Modifying instruction 4 was a refusal.. Allen ». Mansfield, 82 Mo. 688. (12), The court erred in refusing instruction, numbered 6, asked by defendants. State v. Hays, 23 Mo. 319; State v. Broolcs, 92 Mo. 555. (13) The court erred in giving instruction, numbered 8, for the state, because it eliminated from the consideration of the jury what defendants said for themselves. They were entitled to what they said for themselves. State v. Hays, 23 Mo. 319 ; State v. Broolcs, 92 Mo. 555 ; State v. Hides, 92 Mo. 431. (14) Instruction, numbered 6, for the state, is erroneous. It is based upon Revised Statutes, 1889, section 4218, and is stronger in its terms than is contemplated by that section, and imports an obligation on the jury they “should consider.” State v. Wagner, 69 Mo. 197; Stale v. Zorn, 71 Mo. 415; State v. Saunders, 76 Mo. 35; State v. McGuire, 76 Mo. 326 ; State v. Banlcs, 73 Mo. 592. (15) The instructions for the state fail to tell the jury of what they shall find the defendants guilty. (16) Instructions 3 and 5, given for the state, are erroneous, because they assume that the crime of robbery had been committed, which was a fact in issue. Robertson v. Drane, 100 Mo. 273 ; Goner v. Taylor, 82 Mo. 347; State «. Castor, 93 Mo. 242. (17) Number 3 is also misleading, because it uses the word “stolen” instead of “taken;” if stolen, then it could only be petit larceny. (18) The court erred in giving instruction,, numbered 7, for the state, because there is no evidence to support it. (19) The court erred in not sustaining defendants’ motion for a new trial. R. S. 1889, sec. 4208. (20) The defendants’ motion in arrest should have been sustained, because the indictment is insufficient, in that it does not charge that the putting in fear was done “ feloniously.” 1 Wharton’s Prec. and Plead. [3 Ed.] book 4, eh. 4; 2 Archbold’s Prac. and Plead., p. 521; Train & Heard’s Prec. Ind. 461 ; State v. Jenkins, 36 Mo. 374, where indictment for robbery is approved.</p> <p>(1) The indictment properly charges the offense of robbery in the first degree. R. S. 1389, sec. 3530; State v. Davidson, 38 Mo. 374. (2) The first instruction for the state was essentially in the language of the statute, and unexceptionable. (3) The third instruction for the state is a literal copy of the third instruction given in the case of State v. Davidson, 38 Mo. 374. This instruction properly declared the law. State v. Pratt, 98 Mo. 482. Every robbery necessarily includes a larceny of the property taken, hence the criticism upon the use of the word “stolen,” in this instruction, instead of the word “taken,” is without force. Nor is this instruction in any respect misleading, for the jury could not have understood it in any other way than that, if a robbery was committed, the subsequent giving back of the property obtained by means of the robbery did not purge the offense. (4) The fourth instruction for the state is correct. The value of the property is not material. State v. Howerton, 58 Mo. 581. (5) The fifth instruction in regard to flight was proper. State v. King, 78 Mo. 555. (6) The sixth instruction properly declares the law as to defendant’s testimony. State v. Cook, 84 Mo. 40, and cases cited ; State v. Vansant, 81 Mo. 60; State v. Cooper, 71 Mo. 436. (7) The instruction as to an accessory is correct. State v. Hollenscheit, 61 Mo. 302, and authorities cited ; State v. Testerman, 68 Mo. 413; State v. Phillips & Ross, 24 Mo. 475 ; State v. Miller, 67 Mo. 607 ; State v. Cox, 65 Mo. 29; Slate v. Miller, 100 M046O6; R. S.' 1889, sec. 3944. (8) The eighth instruction given on the part of the state has been approved in a number of cases, and the court did not err in giving it, or refusing instruction, numbered 6, prayed for by appellant. State v. Hill, 65 Mo. 84. (9) The court did not err in refusing to give instruction, numbered 4, as asked by defendants, in relation to the snatching of property from the hand of another. 2 Bishop, Crim. Law, sec. 1167, et seq.; State v. Broderick, 59 Mo. 318.</p>

This is a suit to enjoin defendants from laying a track for a street railway, along a certain street in the city of St. Joseph. Upon demurrer the circuit court held that the petition did not state a cause of action for equitable relief. Plaintiff appealed. The sections of the ordinance, construed in the opinion of the court, are as follows: “Sec. 1.

<p>1. Negligence: railroad : binging bell : ordinance. The failure to ring a bell on a moving railroad engine as required by a city ordinance constitutes negligence.</p> <p>2. --:-:-: -. Such negligence alone will warrant a recovery when it appears that obedience to the requirements of the ordinance would have prevented the injury sued for, but not otherwise.</p> <p>3. -: RINGING BELL : QUESTION FOR JURY. Whether or not the bell was being rung at the time of the accident is, where the evidence is conflicting, a question for the jury.</p> <p>4. ---: PREVENTION OF INJURY : QUESTION FOR JURY. Whether the injury might have been prevented had the bell been rung was also a question for the jury.</p> <p>5. --: highway : railroad and traveler. A traveler and a railroad company when using a public highway in common must each look out for the presence of the other; one to avoid being injured and the other to avoid inflicting injury.</p> <p>6. Hailroad: traveler: recovery notwithstanding contributory negligence. While such traveler riding on a wagon- on the track is guilty of negligence in not lookiug back for a colliding train, still his negligence will not prevent recovery on his part if the servants of the company in charge of the train saw, or, by the use of proper care, might have seen, the peril to which the traveler was exposed, and thereafter could have avoided the injury and failed to do so..</p> <p>7. Negligence: pleading : evidence. The charge in the petition of negligent management of the train will authorize proof of negligence of the company after its employes saw the peril to which plaintiff was exposed.</p> <p>8. --': INJURY CAUSING DISEASE: QUESTION FOR JURY. Where, in an action for personal injuries caused by the negligence of a railroad, the physician who examined plaintiff after the accident testified that he found evidence of compression of the chest and pneumonia arising from the compression which involved both lungs, and where it appears that the malady from which plaintiff suffered both before and at the trial was superinduced by the pneumonia arising from the injuries, such evidence was sufficient to authorize the finding of the jury that plaintiff’s malady was caused by the injuries received in the accident.</p> <p>9. --: personal injuries : damages : verdict. Where the evidence in such action tended to show that plaintiff was confined to his house three weeks after the accident, that both of his sides were compressed, that pneumonia resulted, that up to the time of the trial he was unable to work ,and suffered continual pain, and, also, that the injury might be permanent, a verdict of §5,000 will not be set aside by the supreme court as excessive.</p> <p>10. ---: -: -: -. The question of the amount of the verdict is peculiarly one for the jury and the supreme court will not interfere with it on the ground of excessiveness, unless it clearly appears that such verdict was the rosult of improper motives or conduct on the part of the jury</p>

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The levy of the attachment in the case of John Stanton r. Alois Boschert, and the lien created thereby, were prior in point of time to the levies and liens of the attachments in the cases of R. F. Wheeler et al. v. Alois Boschert and of I. W. Overstreet et al. r. Alois Boschert, and the court should have so found. First.

■ — • Hon. M. G. MoGreoor, Judge. (1) It being admitted in this case that app ellant is the owner of the paper title to the strip of land in question and that he had bought and paid for the same, the burden was on the respondent to prove an adverse and antagonistic possession of said land under color and claim of title by herself, and those under whom she claims, for ten years before the commencement of this action. Russell v. Davis, 38 Conn. 562 ; Boadley v. West, 60 Mo. 33.

Louis City Circvit Court. — Hon. L. B. Valliant, Judge. (1) The premises in question contained buildings, and Petzold’s tenancy under the statute was, therefore, from month to month. R. S. 1889, sec. 6371. First. The doctrine of an implied tenancy from year to year has its origin in the desire to protect farmers who have planted their crops. 1 Wood on Land. & Tenant [ 2 Ed. ] secs. 21, 22, p. 93, and notes ; 1 Taylor on Land. & Tenant [ 8 Ed. ] sec. 55, and note 3. Second.

Louis City Circuit Court. (1) The petition states a cause of action against the defendant, and all the allegations thereof are to be taken as admitted by the demurrer. (2) Under the allegations of the petition, the engineer, whose negligence occasioned the death of' the deceased, was not a fellow servant of the latter. He was the vice-principal or alter ego of the defendant, and the defendant is responsible for the consequences of his negligence. Moorev.

Prohibition. The facts out of which, this case arises are in brief the following: On January 18, 1890, the petitioner obtained a‘ decree for divorce from Barbara Scott, in the circuit court of Cass county, duly entered of record on that day. On January 22, 1890, she filed in that court her motion for a new trial, which was overruled January 31, 1890.

Louis City Circuit Court. — Hon** Daniel Dillon, Judge.- (1) Under the agreement read in evidence, Schulte and Fosburg were not partners in the firm of Branch,, Crookes & Co. in any sense of the term. Clifton v, Howard, 89 Mo. 192; Ashby v. Shaw, 82 Mo. 76.

— Hon. C. A. Anthony, Judge. (1) The court should have given the instruction asked at close of evidence for the state, as there was no evidence of any assault, or attempted force, or of an intent to commit a rape, and the verdict is entirely unsupported by the evidence. State v. Burgdorff, 53 Mo. 65; State v. Mansfield, 41 Mo. 470; State v. Marshall, 47 Mo. 378; State v. PerMns, 11 Mo.

— Hon. Jas. B„ G-antt, Judge. (1) The deceased’s contributory negligence should defeat a recovery. This should be so ruled, upon elementary principles, upon an intelligent understanding-of the uncontroverted facts. Darracutts v. Railroad, 31 Am. & Eng. R. R. Cases, 157. (2) The projection of iron rails, timbers, etc., over the ends of cars, was risk of the service in which the deceased was engaged. Beach on Cont.

— Hon.. Alexander Martin, Special Judge. (1) The remedy by writ of injunction shall exist m all cases to prevent the doing of any legal wrong, whatever, whenever, in the. opinion of tlie court, an adequate remedy cannot be afforded by an action for damages. R. S. Mo. 1879, sec. 2722, p. 457.

— Hon. Richard Field, Judge. This is a suit in equity by appellants against respondents, to obtain a decree of title to a tract of about ten acres of land near Marshall, in Saline county, Missouri. The plaintiffs ar,e purchasers of the title of Barnabas Sappington under execution, against defendant, Frank Sappington, who claims by virtue of certain conveyances charged by plaintiffs to be fraudulent as against them.

— How. T. A. Gill, Judge. This is a suit for specific performance. The plaintiff alleges that, on the thirty-first day of May, 1886, John P. Gregory was the owner of certain lots in Kansas City, Missouri, and by his agent sold the same to plaintiff for $11,175, of which sum $200 was paid at the date of the contract, and the balance to be paid at different times thereafter.

Louis City Circuit Court. — Hon. L. B. Yallí ant, Judge. (1) Defendant’s demurrers to the evidence, at the close of the plaintiff’s case and at the close of the whole evidence, should have been given. Matti v. Railroad, 32 Am. & Eng. R. R. Cases, 73; Railroad v. Davis, 32 Am. & Eng.

— Hon. B. E. Turner, Judge. The court erred in finding for defendants in matter of possession. 2 Wag. Stat., secs. 216,217, p. 1205, and secs. 218, 219, p. 1206; Hailey v. Guinn, 76 Mo. 635.

— Hon. J. H. ' Slover, Judge. The court erred in sustaining defendant’s demurrer to plaintiff’s petition, and the appellant cites the following authorities, to-wit: Dennick v. Railroad, 103 U. S. 11; Knight v. Railroad, 26 Am. & Eng. R. R. Cases, 485; Leonard ». Kav. Co., 84 N. Y. 48; Boyce Railroad, 18 N. W. Rep. (Iowa.) 673; Morris v. Railroad, 23 N. W. Rep. (Iowa) 143; Railroad v. Lewis, 40 N. W. Rep. (Neb.) 401 ; Stoeckman n. Railroad, 15 Mo..

— Hon. J. H. Slover, Judge. (1) The court erred in holding that the notice of sale was not duly and legally given. (2) The court erred in holding that the collector did not file in the office of the city auditor a copy of the notice of sale with his certificate indorsed thereon, setting forth that notice had been posted up in the four most public places in the City of Kansas, at least three weeks before the day of sale.

— Hon. J. H. Slover, Judge. This is an action on five negotiable promissory notes, alleged to have been executed by defendant by and through one Stewart Jackson. The plaintiffs were copartners, engaged in the horse and mule business in Kansas City, and had been for two years prior to the making of the notes sued on.

— Hon. Charles W. Sloan, Judge. Plaintiffs are husband and wife. The purpose of their present suit is to set aside a deed of trust in the nature of a mortgage, made in 1882, conveying Mrs. Barrett’s land (her sole and separate property in equity), to secure a note of Mr. Barrett for $3,000 and interest. The defendants are the holders of the note secured and the trustee (with power of sale), named in the deed of trust. The petition alleges two grounds or causes of action.

— How. C. A. Anthony, Judge. (1) The first instruction properly defines the technical terms. State v. Thomas, 78 Mo. 327 ; State v. Gee, 85 Mo. 647. (2) The second as to murder in the second degree is correct. See above cases. (3) The third as to the presumption arising from the wilful using upon another a deadly weapon at a vital part is correct. State v. Talbot, 73 Mo. 347; State o. Thomas, 78 Mo. 327. (4) The fourth as to manslaughter in the second degree is correct.

— Hon. M. G. McGregor, Judge. (1) There was not in law or equity any sale of the notes. Nothing but the land was sold. 1 Story on Contracts, pp. 40, 45; Chitty on Contracts, pp. 136, 5&1 ; Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Sitton ®. Shipp, 65 Mo. 305; Benjamin on Sales [ 2 Ed. ] 1; Williamson v. Berry, 8 How. ( U. S.) 544. (2) Case was but a stockholder, and had a right to make $2,000 profit upon the land, and as much more as he could.

— Hon. C. W. Sloan, Judge. (1) The existence of an inchoate right of dower in Mrs. Collier, at the time appellant entered into the covenants, at most constituted only a technical breach of the covenants against incumbrances, and only nominal damages were recoverable. Sedgwick on -Damages [4 Ed.] 195, note; 4 Kent, Com., art. 4; Rawle on Cov. for Title, 541, 571 ; Collier vf Gamble, 10 Mo. 466; Walker v. Beaver, 79 Mo. 664; Priest v. Beaver, 22 Mo.

Prohibition. (1) A preliminary rule of prohibition may be properly issued by a judge in vacation. Lloyd on Prohibition, ch. 9, secs. 1, 2, 3 ; Iveson v. Harris, 7 Yes. 251 ; 4 Inst. 81; Mayo v. James, 12 Gratt. 17; Ex parte Ray, 45 Ala. 15; Ex parte Boothe, 64 Ala. 312; High oh Extra. Rem., sec. 785; Addison on Torts [Wood’s'Ed. 1881] sec. 1462; Const. Mo., art. 6, secs. 3, 12; Const. Mo., secs. 5, 8, amendment to art. 6; Stale ex rel. v. Weeks, 93 Mo. 499.

— Hon. J. G. Wear, Judge. (1) This is a case of total failure of proof, and for that reason the judgment should be reversed. (2) The court as appears from the record wholly failed to instruct the jury, which was reversible error. State v. Banks, 73 Mo. 568 ; State v. Palmer, 88 Mo. 592; 10 Mo. App. Ill; 16 Mo. App. 556.

— Hon. W. D. Hubbard, Judge. (1) The court erred in giving instructions based on the theory of either murder in the first or second degrees. (2) The court erred in giving instructions, numbered 6, 8 and 9 for the state. (3) This case is easily distinguishable from Slate t>. Emery, 78 Mo. 77, and cases cited in that case. (1) As defendant was only convicted of manslaughter, instructions as to murder will not be reviewed by this court. State v. Wilson, 98 Mo. 440.

— Hon. W. I. Wallace, Judge. (1) There is no evidence that prosecutrix was of previous chaste character or good repute. This being a material element of the crime, it was necessary for plaintiff to have so proven affirmatively. State ®. Hill, 91 Mo. 423; People v. Iioderigas, 49 Cal. 9; West v. State, 1 Wis. 186; 3 Crim. Law Magazine, 338, et seq.; R. S., sec. 1254; State ». Patterson, 88 Mo. 88.

— Hon. M. Gf. McG-regor, Judge. (1) The trial court erred in sustaining defendant’s demurrer to plaintiffs’ evidence. When the persons in charge of a railroad train see persons on the track in front of the train in an exposed and dangerous condition, it is their duty to immediately use all efforts within their power, consistent with the safety of the persons and property on the train, to stop or check the speed of the train. Donahoe v. Railroad, 83 Mo. 543.

— Hon. W. I. Wallace, Judge. (1) The circuit court erred in dismissing the plaintiff ’ s suit. This co urt expressly held that the obj ection, that this cause of action had been changed, came too late after trial. Objections must be made at the time. 93 Mo. 530. The amendments in the fourth petition were suggested by this court, and the case reversed on first count and remanded for a new trial.

Mandamus. (1) The duties of the county clerk are ministerial and not judicial. He has no duty, except to certify the number of votes cast for each candidate for each office, as the result of a sum in simple addition, with no' power to pass upon the legality of returns, or to judge of their sufficiency.