Volume 107 — Missouri Reports

Louis Court of Criminal Correction. Hon. James R. Claiborne, Judge. C. II. Krum on motion to dismiss writ of error. The motion to dismiss the writ of error should be sustained. (1) By the teims of the statute creating the St. Louis court of cr'minal correction, as amended March 5, 1869, a writ oí erro can only be sued out by a defendant, and such writ will not lie in behalf of the state. Sess. Acts, 1869, sec. 26, p. 198.

— Hon. Rudolph Hirzell, Judge. (1) The court erred in overruling the motion to quash and in arrest. State v. Feaster, 26 Md. 326; State v. Davis, 29 Mo. 391. (2) The court had no right to allow the state’s attorney to mutilate the indictment by allowing names of witnesses to be indorsed thereon after the jury was sworn. It made the indictment say something it did not say when it left the grand jury. It was not the same document that the grand jury returned into court.

Mandamus. This is an application for a mandamus to compel the transfer of a certain cause to the supreme court.

— Hon. D. A. DeArmond, Judge. (1) On the first of April, 1889, the plaintiff had the right to demand an exchange of his six-per-cent. bonds for the new fives at par, and was not bound either to receive the money that was tendered for them, or to take the new fives at their market value. Sess. Acts, 1887, p. 26 ; Sess. Acts, 1889, p. 26 ; R. S. 1889, sec. 835; Carpenter v. Hindman, 32 Kan. 601; Merrill x>, Monticello, 138 U. S. 673 ; Lloyd r. Altoona, 134 Pa.

— Hon. J. M. . Sandusky* Judge. (1) “A deed directly from the husband to the wife was void at law, but it will be upheld in equity as a defective conveyance, if the wife could show herself to be meritorious.” Walton v. Parish, 96 N. C. 259. (2) In a great many cases it is recognized that the husband may owe the wife a debt — or vice versa — and when such debts have been paid to husband or wife, in preference to other creditors, it is no fraud on such other creditors.

— Hon. T. A. Gill, Judge. The following instructions were given for plaintiff: “ 1.

— Hon. Gf. D. Burgess, Judge. (1) The case of State ex rel. n. Pond, 93 Mo. 606, should be overruled, and the local-option law held unconstitutional. (2) There was not sufficient testimony to convict defendant on the first and sixth counts of sales to John Burr. He always told defendant he wanted alcohol for medicine and he thought he did. (3) Defendant being a druggist could not be convicted under the information in this case.

J. H. Slover, Judge. (1) The constitutional protection against damaging private property for public use does not embrace every loss or depreciation to property, which is due directly to public improvements. Unless the owner is disturbed in the enjoyment of some right which he is entitled to make use of in connection with his property, he cannot recover.

Louis City Circuit Court. (1) Section 1, article 17, chapter 14, of the Revised Ordinances of the city of St. Louis, 1881, and ordinance 12.179, are valid and binding ordinances, and were properly and legally adopted by the city of St. Louis in pursuance of paragraph 14, section 26, of article 3, of the city charter, and as a part of the power given to the city by the legislature to make police regulations, designed to promote the good government, health and welfare of the…

— Hon. D. P. Stratton, Judge. (1) A certificate of acknowledgment is fatally defective if the officer fails to certifiy that the party is “known” to him, etc. Holton v. Kemp, 81 Mo. 661; Tally v. Davis, 83 Am. Dec. 179 ; Note to 41 Am. Dec. p. 175. (2) The court, therefore, erred in admitting in evidence the two mortgages purporting to have been executed by Samuel A. Wilson.

.Appeal from, Andrew Circuit Court. — Hon. A. W. Anthony, Judge. (1) The court erred in overruling defendant’s instruction in tbe nature of a demurrer to the evidence. There was no delivery of the deed from Beecraft to plaintiff or to anyone for his use. Newell v. Holdridge, 43 N. W. Rep. (Minn.) 84. The defendant paid for the land and was the equitable owner, and had a right to'hold the deed or dispose of it as he saw fit. Newellv. Holdridge, 43 N. W. Rep. (Minn.) 84, supra.

— Hon. 0. H. S. Goodman, Judge. (1) A debtor may prefer one creditor to another. He may sell, mortgage or pledge the whole or any part of his property for the benefit of one or more of his creditors to the exclusion of all others, and if the transfer is bona fide it will be sustained. Insolvency does not deprive him of the right to make a preference. Hargadine v. Henderson, 97 Mo. 875; Foster ».

— Hon. Turner A. Q-ill, Judge. Plaintiee .sues in ejectment for -part of lot 27, block 6, of “Peery Place,” in Kansas City, Missouri. Held: by himself and by the tenants of his codefendant, Johanna Maloney, the actual and peaceable, open and notorious, continuous and exclusive possession of the premises in controversy, under an exclusive claim of right thereto in his wife and codefendant, Johanna Maloney, hostile and adverse to the claim of plaintiff to said premises,…

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The statute of limitations is not a bar to this action. First. In the peculiar case of the liability of stockholders, it does not begin to run until a call by the directors of the corporation, or order of a court of equity, or other authorized demand. Lionberger v. Bank, 10 Mo.

— Hon. Ben. E. Turnee, Judge. (1) The- court improperly allowed the prosecutrix to testify to former attempts of rape upon her by defendant. Wharton’s Crim. Ev. [9 Ed. ] sec. 46, p. 45; sec. 48,p. 49; sec. 49, p. 49 ; secs. 29, 30, pp. 35, 36; secs. 32, 34, 35> pp. 37, 39, 40 ; 1 Gfreenl. Ev. [14 Ed. ] secs. 52, 53 ; State v. Daubert, 42 Mo. 242 ; ParMnéon v. People, 25 N. E. Rep. 764; Shipley ». People, 86 N. Y. 375; State v. Walters, 45 Iowa, 389.

— Hon. Gr. D. Burgess, Judge. {1) The petition of plaintiff states facts sufficient ■feo constitute a cause of action against defendant. (2) 'The charter of the town of Trenton authorizes the passage of the ordinance mentioned in plaintiff’s petition. (3) The tax authorized by the ordinance mentioned in the petition of plaintiff is constitutional and valid. (4) ' The charter of plaintiff and the ordinance mentioned in plaintiff’s petition are constitutional and valid.

Louis City Circuit Court. — Hon. Si-iepaed Barclay, Judge. (1) Plaintiffs’ rights in the vacated street are property, ana the act of the city in vacating the street without providing compensation therefor to the plaintiffs constitutes a taking within a constitutional prohibition.

Louis County Circuit Court. —Hon.. W. W. Edwards, Judge. (1) First. A judgment is the decision and' sentence of the law propounded by the court or other competent tribunal upon the matter contained in the-record. Freeman on Judgments, pp. 1, 2; 6 Wait, p. 767, and citation ; Crosby v. Jerome, 37 Ind. 264. Second.. And such a judgment is conclusive, even if erroneous,, till regularly annulled or reversed by an appeal for that purpose.

— Hon. C. A. Anthony, Judge. (1) The trial court erred in permitting plaintiff to go to trial without having first served defendant with notice of the amended petition. R. S. 1889, secs. 2083. 2109; Limbird v. Book, 30 Mo. App. 477. (2) The defendant was not in default, had the right to stand on the very terms of the statute, and was not required to plead until notice.

Louis City Circuit Court. — Hon. Gf. W. Lubke, Judge, (1) The trial court erred in refusing this defendant’ s instruction of nonsuit, offered at the close of all-the evidence. There was absolutely no evidence of negligence on the part of this defendant or any of its employes. Under the facts, as shown by the testimony, the case should not have been submitted to the jury.

— How. J. H. Slover, Judge. (1) The notes were made to Mrs. Gotcher for her land. They were her sepárate property, and her husband had no power or authority over them unless conferred in writing. R. S. 1879, secs. 3295, 3296. (2) Defendants claim title by an indorsement of the wife’s notes by the husband. To establish the husband’s agency for the wife, the evidence must be clear and satisfactory. There is no evidence of the husband’s authority.

— Hon. Andrew Ellison, Judge. (1) The publication not being against Mrs. Byers by her true name is fatally defective. R. S., sec. 3496; 11 Mo. 408; 87 Mo. 315 ; 42 Mo. 489; 44 Mo. 252; 91 Mo. 377. (2) Though the record recites that due notice was given, yet the same may be contradicted by record recitals or papers on file. 88 Mo. 411; 86 Mo. 366.

Mandamus. Section 5745 provides, “Whenever any court or judge thereof shall commit any boy to the reform school, such court or judge shall enter a continuing judgment for the required amount per month, to be paid quarterly as hereinafter provided, for the keeping of such boy in such reform school, against the county, parent or guardian, as the case may be, together with the costs.” This section is general; it is not limited to cases of misdemeanor.

— Hon. J. H. Sloyer, Judge. (1) The court erred in refusing declaration of law, numbered 4, asked by plaintiff, which declares that a widow’s claim of dower is not barred by making her a party in specific performance proceedings against her husband or his heirs, unless dower is especially adjudicated, although she may be sued .and decree be rendered against her, as well as the heirs. That is surely the law.

Certified from Kansas City Court of Appeals. (1) No testimony was admissible to sustain the so-called special defenses tendered by the answer, viz., First. That the effect of the contract between the city and the contractor was to grade Ninth street from Broadway to Washington, etc., without cost to the propertyrowners. Second.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Under tbe present homestead act, the land used as a homestead passes, upon the death of the uwner, to his widow for life, and tó his children during minority. Subject to this' right of the widow and minors, the homestead may be sold to pay debts. The creditors, therefore, have an interest therein, under the existing law.

— Hon. T. A. Gill, Judge. Action by plaintiff upon a claim for money paid, by a statutory assignee, upon a judgment against the estate in his hands, the judgment having been afterwardsreversed upon appeal; finding for defendant; present appeal by plaintiff.

Louis City Circuit Court. — Hon. Jas. A. Seddon, Judge. The court below erred in approving the report by which the deficiency that existed in the compensation of Sheriff Harrington during his first term of office was made good from the surplus created by the earnings of his second term of office. Allen v. Cowan, 76 Mo. 193.

— W. H. Brownlee, Esq., Special Judge. (1) An examination of the evidence shows that the defendant did not hold the land adversely for ten years, hence, the ten years’ statute does not apply.

Loiois City Circuit Court. — Host. Gk W. Lubke, Judge. (1) The petition in this case does not state facts sufficient to constitute a cause of action against defendants. State ex rel, v. Bldg. Co., 14 Mo. App. 597 ; Billon v. Hunt, 11 Mo. App. 248; s. c., 28 Mo. 150 ; Murray v. Richmonds, 1 Allen (Mass.) 414; Braclcett v. Luthe, 4 Allen, 138 ; Qilliland v. Railroad, 19 Mo. App. 416 ; Bliss on Code Pleading, sec. 318.

— Hon. C. 0. Bland, Judge. (1) There was a fatal variance between the property described in the indictment and the evidence offered in proof thereof. Bouvier’sDict., p. 454 ; 2 East, P. C. 616 ; 1 Leach, 105 ; Kelley’s Crim. Law, p. 321, sec. 543, and p. 322, sec. 594; 2 Hale, 182 ; 2 East, P. C. 616. (2) The property should have been described as neat cattle. R. S. 1889, sec. 3535. The motion in arrest of judgment should have been sustained.

Certified from St. Louis Court of Appeals. (1) The contract relied on by plaintiff was void because it was for the assignment of a lease of lands and was not in writing. R. S., sec. 2510. Parol testimony should have been excluded, and the demurrer to the evidence sustained.

-Appeal from Cape Girardeau Circuit Court. — Hon. H. C. O’Bryan, Judge. (1) The three judgments assigned to Hartle were -obtained at the same term of court and on the same day, January 5, 1885. Hence neither had priority over the ■ other. R. S. 1889, sec. 6012. (2) All the judgments under which this land was sold were junior judgments except Randall judgment, and the purchaser took subject to the lien of the older judgments. R. S. 1889, sec. 6021.

— Hon. IT. 0. O’Betan, Judge. (1) The evidence clearly shows that defendant did mot live on the farm, and that it was,occupied by his tenants at the institution of the suit. The tenants •should have been joined as defendants. Ins. Co. v. Cummings, 90 Mo. 267; s. c., 13 Mo. App. 76; R. S. 1879, secs. 2243 and 2247. (2) The court erred in refusing declaration- of law, numbered 1, as asked by defendant. Authorities, szopra.

Louis Criminal Court.— Hon. J. 0» Noemile, Judge. (1) The indictment should have been quashed, because it charged several distinct offenses in the same count. State v. Clarkson, .59 Mo. 149 ; State v. Flint, 62 Mb. 398. (2) The indictment should have been quashed, because it failed to allege that the accused had qualified as an officer or had entered upon the discharge of his duties as such.

—Hon. H. C. O’Bryan, Judge. (1) The order of the probate court of Pemiscot ■ county, disapproving the report of sale, made by Mrs. Edsall,administratrix, etc., to defendant herein, rendered the sale absolutely void, and the purchaser acquired no title thereby to any land so sold. R. S. 1879, secs. 167 and 168. Castle-man v. Relfe, 50 Mo. 583.

Certified from Kansas City Court of Appeals. (1) The court committed error in giving the instruction by which the jury was directed to find for defendant. The case must go to the jury. The evidence not only tends to prove plaintiff’s cause of action, but is direct, positive, strong and uncontroverted and makes a strong case. Matthews v. Elevator Go., 50 Mo. 149; Bowen v. Lazalere, 44 Mo. 383; Wilson v. Board, 63 Mo. 137; Grady a. Ins.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. ■ (1) The sheriff’s advertisement was sufficient. R. S. 1879, sec. 2380. (2) Where the execution is regular on its face, the sheriff is not bound to go behind the writ to see whether the judgment is regular. Higdon v. Conway, 12 Mo. 295. (3) The form of notice given in this case is the one in common use, and this court will take cognizance of the forms commonly used to enforce the process of the courts.

— Hon. RiohaudField, Judge. (1) Defendant, having undertaken, as the agent of plaintiffs, for the exchange of their farm, could not exchange with himself for his own property, or for property he had contracted to purchase, without first fully advising plaintiffs of such facts. Having contracted with himself and having taken the title to plaintiffs’ land to himself, is itself sufficient to entitle plaintiffs to a rescission.

— W. E. Bowden, Esq., Special Judge. (1) The defense put in evidence the mortgage by Krudwig to Husted for two purposes: First. To defeat plaintiff by showing an outstanding legal title. Second. To claim under the tax title on assessment suit and sale against Husted for year 1876. Said mortgage was not admissible for either purpose: First. The outstanding mortgage cannot be invoked by defendant unless he is in privity with Husted.

— Hon. T. A. Gtll, Judge. (1) It is well settled that money paid under a mistake may be recovered back. Bank v. Bank, 55 N. Y. 211; Ins. Co. v. Walsh, 18 Mo. 229; Koontz v. Bank,. 51 Mo. 275; Morrow v. Burber, 97 Mo. 155. (2) The exception to the above rule is that the drawee is bound to know the signature of the drawer, and if he accepts •or pays he is without remedy.

— Hon. O. M. Spences, Judge. This suit was begun in 1877, by Milton J. Bundy, to -enjoin the enforcement of a deed of trust, executed by Mm, to certain land in Andrew county, Missouri, purporting to secure the sum of $5,000, and interest. Tlie -defendants are Mary A. Adams, the owner of the claim .so secured, her husband, and the trustee in the deed of trust. The case originated in Andrew county, but a -change' of venue was taken to Buchanan, where it was finally tried.

Louis City Circuit Court. — Hon. Gf. IV. Lubke, Judge. (1) The execution of the antenuptial contract was sufficient in form to sustain it under the statute and in equity, and will be held to be good as between the parties. No objection was made to its introduction, and the rights of no third parties had intervened.

— Hon. C. A. Anthony, Judge. (1) The sale of the land in question in mass by the sheriff, when it was susceptible of division, and a party in interest requested him to divide it, and more than the amount of the mortgage debt and all costs was bid for one parcel, was illegal and fraudulent as to-plaintiffs, and should have been set aside. Tatum v. Holiday, 59 Mo. 422; State v. Young, 61 Mo. 397; Kelley v. Hurt, 61 Mo. 463; Bouldin r>.

Mandamus. (1) The supreme court has power to issue writs-, of mandamus, and to hear and determine the same, and its jurisdiction does not depend upon the fact that it would have appellate jurisdiction in the same matter. State ex rel. v. Tracy, 94 M6. 217. A judge of the supreme court has authority to issue an alternative-writ of mandamus in vacation. State ex rel v. Weelcs, 93 Mo. 499 ; Miller v. Yogel, 12 Mo. App. 592. Man-, damus must issue from supreme court in this case.

Louis City Circuit Court. — Rom. Daniel Dillon, Judge. (1) Appellant’s possession of the premises mentioned in the suit under color and claim of title is admitted by the pleadings and shown by the evidence, and is adverse to any right shown in plaintiffs. (2) It was incumbent on plaintiffs to show that they or their ancestor or other person under .whom they ■claim was seized or possessed of the premises in question within ten years before ■ the commencement of this suit.

— Hon. «J. F. Hale, Judge. (1) The sole controlling question in this cause is : Was the conveyance of the property in question by J. R. Thomas, deceased, to P. L. Winkler, and the execution of the notes by Winkler to Sarah L. Thomas, wife of J. R. Thomas, and respondent herein, a gift of such property to her?

— Hon. J. D. Eox, ' Judge. (1) The law is constitutional; all laws are upheld by courts, unless clearly repugnant to the constitution. State ex rel. v. LaugMin, 75 Mo. 148; Slate v. Able, 65 Mo. 357; Phillips v. Railroad, 86 Mo. 540; State n. Hope, 100 Mo. 347. This law was passed under the constitution of 1865, not 1875. Bounties are given to promote the public good, and the intention of the legislature should not be defeated by the courts.

Court. — Hon. Rudolph Hiezel, Judge. (1) The contract, if any was made, was an immoral one, and will not be enforced. Anson on Contracts, p. 179, and cases there cited; Atherly on Marriages, p. 390, et seq.; 2 Parsons on Contracts [6 Ed.] p. 67 ; 1 Story on Contracts [ 5 Ed. J sec. 541; 1 Story on Contracts [6 Ed.] sec. 582; Kent’s Commentaries [2 Ed.] sec. 39, p. 466.

— W. N. Randolph, Esq., Special Judge. The instruction given by the court at the instance of the plaintiff is erroneous. First. Because it directed the jury to find the issues against the defendant if satisfied from the evidence that the melons were damaged while being transported by some other carrier, thus ignoring the contract of affreightment which expressly limited defendant’s liability to injuries occurring on its qwn line.

<p>^Practice In Supreme Court: dismissal op appeal. An appeal will be dismissed in the supreme court where the appellant fails to file an abstract of the record and statement of the case as required by the rules of the court.</p>

— Hon. I). P. Stratton, Judge. (1) Instruction, numbered 1, given on- the part of plaintiff is erroneous for several reasons: First. Because the “hole” in the platform was not the approximate cause of the injury. Hudson ». Railroad, 101 Mo. 13 ; MatMason v. Mayer, 90 Mo. 586 ; Stepp v. Railroad, 85 Mo. 233. Second. Because defendant owed plaintiff no duty in regard to the hole. Larmore v. Iron Go., 101 N. Y. 392; Severy v. Nickerson, 120 Mass. 306. Third.

— Hon. Chas. W. Sloan, Judge. (1) Plaintiff and Mrs. Evans, the wife of defendant, T. D. Evans, are coterminous proprietors of portions of lot 4 numbered in the pleadings; and the plaintiff, and those through whom he claims title, purchased with constructive notice of the metes and bounds of her premises, described in and fixed by the recorded conveyances in the line of her title. R. S., sec. 2419.

— Hon. W. D. Htjjbbakd, Judge. (1) Technical disseizin, that is, such disseizin as will eventuate in a conversion of the legal estate, must, in its incipiency even, be begun under color of title or claim of right, and be accompanied by all the legal' necessities of intention by the disseizor to convert such estate to his own use during the whole period of time required by the statute ; and the occupancy thereunder begun must be openly, notoriously, exclusively, consecutively…

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Suit should have been revived in name of John, not of Michael, Carroll’s administrator. Cases cited by plaintiff are of no force because under the old common law, when not as now by the statute, the suit was not required to be in name of real party in interest. The administrator is not the unqualified owner of the assets of the estate.

— Hon. J, MI. Sandusky, Judge. (1) In order to ascertain the true intent, meaning and purpose of the deed made by Valentine Smallwood Peyton, December 5, 1836, the court must take into-consideration the circumstances in which he then stood with respect to the members of his family. The intent, meaning and purpose of the grantor is the proper legal interpretation of the deed.

Hon. T. H. Baoon, Judge. (1) Appellant only had possession of an individual one-fourth interest, which interest he was legally entitled to hold. He was not in adverse possession of the whole premises claiming title thereto, adversely to anyone who claimed to be his cotenant.

Mandamus. (1) The fact that the term has passed during which one of the courts of appeals should have certified and transferred a case to the supreme court does not divest the power of the supreme court to afford relief by mandamus, and by that measure to order such a case certified and transferred to it for a final determination. State ex rel. v. Lewis, 71 Mo. 170; State v. Judges, 2 Penn. (N. J.) 541 ; Moses on Mandamus, p. 28.

— Hon. Gr. D. Burgess, Judge. (1) There is no foundation for an instruction upon the theory of murder in the second degree. First. Conceding the defendant was the aggressor, a concession, in the face of the uncontradicted evidence, yet, if he brought on the affray with no felonious intent, but in the course of the struggle found it necessary to kill deceased in order to save himself from serious personal injury, the offense is manslaughter not murder.

Louis City Circuit Court. — How. Jas. E. Withrow, Judge. (1) The transcript had not left Byron’s office before Langlet tried to serve the notice of change of venue, so that Sheehan had not acquired jurisdiction of the suit when he signed the notice, and when Langlet attempted to serve it. This state of facts being established, the law presumes its continuance until there was-evidence of a change of status. Best on Presumptions, p. 119 ; 1 Grreenl.

— Hon. Andrew - Ellison, Judge. (1) Under the allegations of each of the petitions--' in each of said cases, the defendants were liable to-respond to the plaintiff for the losses caused the bank by their plain and inexcusable violation of the charter -of the bank. Stephens v. Overstolz, 43 Fed. Rep. 465.

<p>Savings Banks: illegal loans: liability of directors. The-directors of a savings bank who have made loans to one person in excess of one-fourth of the bank's capital stock, contrary to the-prohibition of Revised Statutes, 1879, section 916, are liable to the bank or its receiver for any actual losses resulting to the bank from the wilful disregard of the statutes.</p>

Loúis City Circuit Court. — Hon. D. D. Fisi-ibr, Judge. (1) The petition avers that defendant in the .presence of other persons who understood him charged plaintiff with misappropriation of seventy-five cents belonging to defendant’s firm, and further avers that thereby defendant intended to and did charge plaintiff with the crime of larceny or acts constituting the crime of embezzlement. As averred,the acts constituted embezzlement under our statute. R. S., sec. 3549.

— Hon. C. H. S. Goodman, Judge ■ (1) The circuit court was without jurisdiction because the account was not presented to the county. R. S. 1879, secs. 1210-1216-8. (2) The court committed error in the admission of evidence. (3) The court erred in refusing to give defendant’s instructions, numbered 1, 2, 3, 4, 5 and 6. They embody the law, and there was sufficient testimony to fully warrant the giving of each of said instructions.

Louis City Circuit Court. — Hon. James E. Witheow,. Judge. The proper meaning of section 8, of article 6, of the ■charter of St. Louis (R. S. 1889, p. 2121) covers reasonable attorney’s fees and also other proper ■expenses incurred by defendants in good faith in endeavoring to obtain for their land a fair and reasonable compensation. Leisse v. Railroad, 2 Mo.

— Hon. Rudolph Hiezel, Judge. (1) For the grant of an immediate estate in possession the grantee must be in esse, and the deed may be avoided by showing that the grantee came into being after the delivery of the deed. Hulick v. Scovill, 4 Grilm. (111.) 191; Miller v. Chittenden, 2 Iowa, 368; Hall v. Leonard, 1 Pick. ( Mass.) 27; Morris v. Stephens, 46 Pa. St. 200 ; Hornbeek v. Westbrook, 9 Johns. (N. Y.) 73 ; Chase ¶.

Mandamus. (1) Revised Statutes, 1889, section 2262, required that reasonable opportunity be given to agree on, or to elect, a special judge before the court can award a change of venue. T^acy v. Barrett, 75 Mo. 469, and other cases were decided before the amendment of 1889.

— Hon. Andrew Ellison, Judge. (1) The bill of sale on its face is fraudulent in law and should have been so declared by the court. JElser ¶. Graber, 6 S. W. Rep. (Tex.) 560; Blum McBride, 5 S. W. Rep. (Tex.) 641; Oppenheimer v.. Haeff, 4 S. W. Rep. (Tex.) 562 ; McVeigh v. Baxter, 82 Mo. 518 ; Holmes v. Braidwood, 82 Mo. 610; Mey■berg v. Jacobs, 40 Mo. App. .128; Hanna v. Finley, 33 Mo. App. 645 ; Link v. Harrington, 41 Mo.

<p>1. Railroad: negligence: trespasser on track. In an action against a railway company for causing the death of plaintiff’s daughter, aged fifteen years, the evidence tended to show that, although the deceased was a trespasser on defendant’s tracks, yet many people habitually walked on the tracks along the place of the accident, and that the train was running more than six miles an hour, in violation of the city ordinance. The engineer saw the girl when about six hundred feet distant, and sounded the alarm whistle when within about thirty-five feet of her, but did not check the speed of the train, although the deceased gave no indication of hearing the alarm signal. Held, that a verdict for the plaintiff would not be disturbed.</p> <p>2. -: -: -. Where there is reason to apprehend that the track may not be clear, the persons in charge of a railway train cannot act on the presumption that the track is clear without the company being responsible for the consequences, and this is true, notwithstanding the company’s right to have a clear track. '</p>

— Hon. Chas. W. Sloan, Judge. This is an appeal from a judgment for plaintiff for $3,208.41, entered upon a verdict in the circuit court of Cass county. After the usual motions and exceptions the defendant appealed. The action is for personal injuries. The defendant company was operating an elevated railway line in Kansas City, Missouri, extending thence a short distance into the state of Kansas.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Where the petition admits defendant’s possession of property, alleged to have been converted, to have been originally rightful, a demand and refusal is necessary to transform a mere detention into a conversion ; and this defense is available in this action under a general denial. Hanson v. Jacob, 93 Mo. 340 ; Dusky v. Ricdder, 80 Mo. 400.