Volume 108 — Missouri Reports

Prohibition. (1) The constitution of the state confers plenary-original jurisdiction on probate courts over settling the accounts of executors and administrators. Const., art. 6, sec. 34; R. S. 1889, secs. 47, 48. The circuit court has no original jurisdiction in civil cases which are otherwise provided for by law. Stale ex rel. Sanders v. Blakemore, 104Mo. 340.

Louis City Circuit Court. — EEon. Jacob Klein, Judge. (1) The court' erred in refusing the instruction asked at the close of the plaintiff’s evidence, to the-effect that he was not entitled to recover, for reasons-particularly stated in the brief following. (2) The verdict is against the weight of evidence, and there is-not in the whole record any substantial evidence to support it. For particular reasons see the brief following.

Louis City Circuit Court. — Hon. J. E. Wlti-irow, Judge. (1) The demurrers to the evidence should have been sustained. First. The deceased was a trespasser upon the defendant’s tracks, and its servants owed him no duty except that of not wilfully injuring him, and of this there is no evidence. Barlcer v. Railroad, 98 Mo. 50; R. S. 1889, sec. 2611. Second.

Louis City Circioit Court. — Hon. Jacob Klein, Judge. (1) Branch,, at the expiration of his term of office as curator, was in default, and his official bond in that capacity was answerable accordingly. When he assumed the duties of the succeeding office of trustee and gave a new bond prospective in terms, the sureties thereon did not become liable for any defaults of the prior term of office.

— Hon. Gf. D. Burgess, Judge. (1) The title to land, occupied and held adversely by a party or his tenant, under color of title and claim of right for the statutory period of limitations, vests absolutely in such claimant. Biddle ». Mellon, 13 Mo. 335; Fugate v. Pierce, 49 Mo. 441; Barry v. Otto, 56 Mo. 177; Fullcerson v. Mitchell, 82 Mo. 13. And such title may be relied on for the recovery of the land as well as invoked as a defense.

sexton Appeal from Jackson Circuit Court. — Hon. T. A. Gill, Judge. (1) If an easement is visible, purchaser takes subject tr it. Zell v. Unvoer sadist Soc., 119 Pa. 402. The right'of way in controversy was either fill or - cut. The work had been completed. Plaintiff gave nothing for the strip; knew of it, recognized it and contracted in reference to it. It seeks to contest defendant company’s right in it, not at law, but by an injunction. This cannot be done.

— Hon. Gr. D. Burgess, Judge. The lower court erred in holding as matter of law, that the securities were discharged because the county court issued, in the course of the funding scheme, more than $120,000 in renewal bonds, to-wit, $170,000. It was- on'this ground the court decided the case, and this question is sharply put in the declarations of law refused for plaintiff and given for. defendants.

Louis City Circuit Court. — Hon. L. B.. Y allí ant, Judge. (1) In the sale of lands, if the contract is speculative, then the measure of damage is compensatory, whether the contract be executed or executory in its-form.

— Hon. T. A. Gill, Judge. (1) The testimony as to the finding of the new block, the next evening after the accident, between the rails where plaintiff’s foot was caught, was clearly incompetent to prove prior negligence on the part of the defendant. The overwhelming weight of authority is against its admissibility, and the decisions of this court are to the same effect. Nipsley v. Co., 88 Mo. 348 ; Brennan v. St. Louis, 92 Mo. 482.

— How. W. I. Wallace, Judge. (1) The deed offered in evidence by the defendant from the plaintiff to Sarah E. Pitts and Theodocia Pitts did not pass any title to Theodocia, for the reason that her name is not in the body of the deed, but only in the habendum, and for that reason plaintiff’s objections thereto should have been sustained. (2) The court erred in permitting the witness, Sarah E. Pitts, to testify.

Certified from St. Louis Court of Appeals. The information is bad, because: First. It is not based on the affidavit of one having knowledge of the commission of the alleged offense, nor is it based on the personal knowledge of the prosecuting attorney. Second. It fails to set out the name of the person to whom the alleged illegal sale of the liquor was made by the defendant as a registered druggist.

<p>1. Criminal Practice: second indictment : change of Venue. Where, after a change of venue has been granted in a criminal case, a new indictment is found against the defendant in the court from which the case was taken, and the court to which the' venue was removed quashes the indictment pending in it, and defendant is rearrested, mandamus will not lie to compel the former court to certify the second indictment to the court to which the change of venue was taken.</p> <p>'2. -:-:-. A change of venue on the second indictment could be obtained only by application under the statute.</p>

— Hon. Gr. D. Burgess, Judge. (1) Appellant claims that the fifth instruction, given on behalf of the plaintiff, is erroneous in this: First. That it is not in harmony with the issues made by the pleadings, but tenders a new and different issue. Second.

Louis Court of Criminal Correction. Hon. Jas. R. Claiborne, Judge. The act of the legislature under which defendant was prosecuted is unconstitutional and void. First. Because it is in conflict with section 22 of article 2, constitution of Missouri, and denies defendant a trial-by jury as contemplated by said section. Potter’s Dwarris, pp. 437, 469 ; Wynehamer v. People, 13 N. Y. 378; 2 Story on Const. [4 Ed.] sec. 1943.

Louis City Circuit Court. — Hon. L. D. Fisher, Judge. (1) The trial court erred in admitting as evidence against defendant tlie declaration of. plaintiff, Christian Senn, as to the cause of the accident, made to the driver after the transaction was complete. The declaration in question was not admissible as being of the res gesta. State v. Snell, 78 Mo. 240 ; Leahey v. Railroad, 97 Mo. 165. And the witness was not a participant so as to make his declarations evidence.

Quo Warranto. (1) There were no vacancies in the new wards such as there was any authority under the law to till, and, hence, the special election was void. The Australian ballot law by the amendment of 1891 was extended so as to apply to every voting precinct in the state and to all elections, except those expressly excluded.

— Hon. H. C. O ’ Bey an, Judge. (1) It was competent for defendants to show, as they offered to do, that immediately after the shooting the prosecuting witness Walls had a knife in his hand, and that he then made statements concerning what had just transpired inside of the house. (2) The third instruction for the state is clearly erroneous, at least as to the defendant, Hermann Noeninger.

— Hon. W. D. Hubbard, Judge. (1) To maintain partition, it must appear that the lands sought to be partitioned are held in joint tenancy, . tenancy in common or coparcenary, and if this appears any one or more of the parties interested therein may maintain such suit, making every person having an interest therein parties thereto. R. S. 1889, secs. 7132, 7135. (2) The plaintiffs are the legal owners of an undivided two-thirds interest in the land in controversy.

— Hon. O. M. Spencer, Judge. Action for personal injuries to plaintiff by defendant as a passenger carrier. Judgment for plaintiff; defendant appealed. The defendant’s request for instruction, numbered 1 (mentioned in the opinion), as originally asked, read as shown below; but the court erased the words now inclosed by brackets, added in their stead those indicated by italics, and then gave the instruction so modified. “1.

— Hon. Thos. H. Bacon, Judge. (1) Daniel Archdeacon, on his voir dire, said that his relation to plaintiff would influence his verdict, and he should, therefore, have been excused by the court. Railroad v. Adler, 56 111. 344; Davenport Co. v. Davenport, 13 Iowa, 229.

— How. M. G. McGregor, Judge. (1) The court should have admitted the testimony of Ollie Rogers as to his arrangement to meet the prosecuting witness for illicit purposes subsequent to the act charged against defendant, and as to -defendant’s-detection of her in such meeting. 1 Greenl. on Ev. [Ed. 1886] sec. 423; Whar. on Crim. Law, sec. 817; People v. Austin, 2 Parker’s Crim. Law Rep. 154.

— Hon. J. M Sandusky, Judge.' (1) There can be no murder in the second degree without premeditation, and it must be charged in the indictment. State v. Robinson, 73 Mo. 306; State v. Erb, 74 Mo. 199; State v. Lewis, 74 Mo. 222; State v. Harris, 76 Mo. 361.

<p>1. Embezzlement: indictment: statute. An indictment under Revised Statutes, 1889, section 3549, for embezzling a piano is sufficient, if it substantially follows the language of the statute.</p> <p>2. -: - — . The concluding words of the indictment that defendant did “feloniously steal, take and carry away” the piano merely state conclusions, and do not render the indictment bad for duplicity.</p> <p>3. Criminal Practice: evidence. Where it appears that defendant was the prosecuting witness’ agent for the sale of pianos, and that their transactions extended from a period antedating the contract down to the termination of the agency, a statement of account rendered by the prosecuting 'witness to defendant which showed that defendant had the piano in question on hand at a certain date is properly admissible in evidence after it was introduced in part by defendant during the cross-examination of the prosecuting witness.</p> <p>4. -: —:—. So under such circumstances letters written by the prosecuting witness to the defendant requesting him to make a settlement and to' account for the pianos are admissible, especially where the defendant does not deny the sale of the piano and the appropriation of the proceeds, and the letters were a part of the correspondence between the parties and were not replied to by defendant.</p> <p>5. --: EMBEZZLEMENT: criminal intent. An instruction which makes the defendant’s fraudulent intent consist in converting the piano “to his own use with the intent to convert it to his own use without the consent of his employer” is sufficient on the question of the criminality of the conversion.</p> <p>6. -: -:--. The legislature may within the constitutional limit declare an act criminal irrespective oí the motive with which it was committed.</p> <p>7. -:--: -. An instruction, that if defendant, with intent to embezzle the piano, sold it, and, to further carry out such purpose, took a note in his own name and sold the note he would be guilty, is correct.</p> <p>8. --:--:--. A provision in the contract under which defendant handled and sold the pianos, that pianos remaining longer than a certain time should be returned, or defendant would pay interest thereafter, does not change defendant’s rights as to pianos- remaining longer than the period specified ; he was still an agent to sell them.</p> <p>9. -: objection TO evidence. A mere general objection to evidence may be disregarded by the trial court.</p> <p>10. -- — : defendant as witness : oross-examination. Mere voluntary statements made by defendant on cross-examination as a witness cannot be made a ground for reversing the judgment.</p>

<p>1. Pleading: illegality op contract : new matter. The defense of illegality of a contract sued on must be specially pleaded, in the absence of anything in the petition disclosing such invalidity.</p> <p>2. --: -: practice in supreme court. An appellate court will not consider an nnpleaded defense.</p> <p>3. Sunday: athletic, sports : statute. Revised Statutes, 1889, section 3854, which provides that “Every person who shall be convicted of horse racing, cock fighting, playing at cards or games of any kind” on Sunday shall be guilty of a misdemeanor, do not extend to the prohibition of mere athletic sports.</p>

Francois Circuit Court. — Hon. Jas. P. Green, Judge. The county board under the statutory provisions relating thereto had the power at its meeting in April, 1891, to raise the valuation of the real property involved in this proceeding. R. S. 1889, secs. 7517, 7518-9.

<p>Appeal from Cooper Circuit Court. — Hon. E. L. ; Edwards, Judge.</p> <p>(1) Mrs Harriet Gr. O’Bryan was incompetent as a wifeless. R. S. 1879, sec. 4010; Sess. Acts, 1887, p. 287; Moore v. Moore, 51 Mo. 118 ; Moore v. Wingate, 53 Mo. 398 ; Willis v. Oammill, 67 Mo. 730 ; Holman v. Bachus, 73 Mo. 49. (2) Henry M. Thompson was not a competent witness. R. S. 1879, sec. 4010 ; Sess. Acts, 1887, p. 287 ; Paul v. Leavitt, 53 Mo. 595 ; Ilaerle v. Kreihn, 65 Mo. 202 ; Joice v. Branson, 73 Mo. 28 ; Wood v. Broadley, 76 Mo. 23. (3) Mrs; Maria G-. Allen and Mrs. Clara D. Thompson were not competent witnesses. R. S. 1879, sec. 4010; Sess. Acts, 1837, p. 287. (4) The general reputation in the community as to the ownership of the farm was competent evidence. Barrett v. Donnelly, 38 Mo. 492 ; Benoist v. Darby, 12 Mo. 196 ; Dickerson v. Qhrisman, 28 Mo. 134 ; Railroad v. Clark, 68 Mo. 371; Wilson v. Albert, 89 Mo. 537. (5) To establish a gift, the proof must be so clear, definite, unequivocal and cogent as to leave no room for doubt. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268 ; Woodford v. S tephens, 51 Mo. 443 ; Atkinson v. Henry, 80 Mo. 151; Jackson v. Wood, 83 Mo. 76 ; Philpot v. Penn, 91 Mo. 38 ; Adams v. Burns, 96 Mo. 361; Allen v. Logan, 96 Mo. 591 ; Modrell v. Riddle, 82 Mo. 31; Rogers v. Rogers, 87 Mo. 257 ; Moore v. Crawford, 130 U. S. 122 ; Berry v. Hartzell, 91 Mo. 132; Burdett v. May, 100 Mo. 13. (6) This is especially true in cases between parent and child. Jones v. Tyler, 6 Mich. 364 ; Ackerman v. Fisher, 57 Pa. St. 457; Worth v. Worth, 84 111. 442 ; Ackerman v. Ackerman, 24 N. J. Eq. 316 ; Hugus v. Walker, 12 Pa. St. 173 ; Poorman v. Kilgore, 2 Casey, 365; Cox-v. Cox, 2 Casey, 375. (7) The entire proof in this case consists of ádmissions and loose declarations of Henry Bell, deceased, which are entitled to but small weight and are to be received with great caution. Woodford v. Stephens, 51 Mo. 443 ; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Cornet v. Bertelsmann, 61 Mo. 118 ; Paris v. Haley, 61 Mo. 453; Melton v. Smith, 65 Mo. 315 ; Modrell v. Riddle, 82 Mo. 31 ; Berry v. Hartzell, 91 Mo. 132 ; Carney v. Carney, 95 Mo. 353; Hugus v. Walker, 12 Pa. St. 173; Dragoo v. Dragoo, 50 Mich. 573; Burdett v. May, 100 Mo. 13. (8) The evidence in this caise is not sufficient to support the decree. Adams v. Burns, 96 Mo. 361; Dragoo v. Dragoo, 50 Mich. 573; Wright v. Wright, 31 Mich. 380; Forward v. Armstead, 12 Ala. 124; Eehert v. Mace, 3 Pa. 364; Eason v. Eason, 61 Tex. 225 ; Waterman on Spec. Perf., sec. 285 ; Shell-hammer v. Ashbaugh, 83 Pa. St. 24; Veth v. Qierth, 92 Mo. 97; Isaacs v. Skrainka, 95 Mo. 517.</p> <p>(1) Mrs. O’Bryan, the plaintiff, was a competent witness. O'Bryan v. Allen, 95 Mo. 68. She was not rendered incompetent by Revised Statutes, 1889, section 8918. (2) A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive. Sedgwick, Stat. & Const. Law, 188; Ins. Co. v. Flynn, 38 Mo. 483; Barton Co. v. Walser, 47 Mo. 200 ; St. Louis to use v. C lemens, 52 Mo. 144. (3) The widow in a suit for assignment of dower is not held to strict proof of her husband’s title. It is only necessary that her case be made out with reasonable certainty ; any other degree of certainty in a case of this kind is unattainable. Gentry v. Woodson, 16 Mo. 224; Scribner on Dower, p. 237; 2 Scrib., p. 199; Neale v. Neale, 9 Wall. ( U. S.) 1. (4) The evidence in this case clearly proves all the allegations of plaintiff’s petition, and the court below was fully warranted in rendering the judgment it did. Deters v. Jones, 35 Iowa, 512; Burkholder ». Ludlam, 30 Gratt. (Ya.) 255 ; Hardesty v. Richardson, 44 Md. 617; Langston v. Bateé, 84 111. 524; Story *. Black, 5 Montana, 26 ; Anderson v. Shockley, 82 Mo. 250; ■ West v. Bundy, 78 Mo. 407; Halsa v. Halsa, 8 Mo. 3u3.</p>

— Hon. J. P. Grubb, Special Judge. (1) Notice of the raise was properly given to respondents. R. S. 1879, sec. 6673; R. S. 1889, sec. 7519. (2) Respondents appeared before the board by attorneys and resisted the raise, which is binding on them. State v. Gaylord, 41 N. W. Rep. (Wis.) 518; s. o., 73 Wis. 306.

— Hon. G. H.. Bubckhabtt, Judge. (1) The verdict is against the evidence in the case,, and this court will set aside a verdict when it is without-evidence to support it. Hacker v. Brown, 81 Mo. 68; Foster v. Foster, 77 Mo. 227; Schooling v. Railroad, 75 Mo. 518; Fo/ir grieve v. Moberly, 29 Mo. App. 141. Or when the evidence so preponderates against it as to show that it was the result of partiality, prejudice or passion.

Louis City Circuit Court. — How. James A. Seddon, Judge.' (1) That a party, may sue directly on a contract made by another for his benefit, the contract in other respects being valid, is no longer an open question in this state. May v. Lowell, 44 Mo. 328; Fitzgerald v. Barker, 70 Mo. 685. (2) The deed of May 1, 1882, from George S. Case to his daughter was in conformity with his contract with the defendant, Andrew Y. Cherbonnier.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) In no event can the heirs of the widow take any part of the estate of testator. The word heirs will ’ be held to mean child or children when necessary to carry out the clear intention of the testator. Chew v. Keller, 100 Mo. 369 ; Haver stecld s Appeal, 103 Pa. St. 394; Waddell v. Waddell, 99 Mo. 345. (2) The grandchildren take per capita and not per stirpes.

Certified from St. Louis Court of Appeals. (1) The shipping book offered in evidence was one of the books used by Timmons in making the statement of Walsh’s earnings during the week, and to the correctness of which Walsh assented by receiving and accepting the statements so made. The entries in the book were, therefore, original evidence as part of the res gestee.

— Hon. D. A. DeArmond, Judge. Where a conveyance of land, executed and delivered, but not recorded,, has been lost, a court of equity will protect the rights of the grantee by divesting the heirs or representatives of the grantor of any apparent title they may have, and establish the title of the grantee and his assigns therein. Wright's Ileirs v. Christy's Heirs, 39 Mo. 125; Wynn v. Cory, 43 Mo. 301; Mason v. Blade, 87 Mo. 229.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Suit in equity to set aside a deed of trust. Decree for defendants. Plaintiff appeals.

— Hon. J. E. Hale, Judge. (1) The foreclosure of the mortgage was a complete satisfaction of the mortgage, and the debt secured! by it to the extent of the purchaser’s bid. Freeman on Executions, p. 434: Ladd v. Blant, 4 Mass. 402 Trenary v. Clmver, 48 111. 28 ; Hoard v. Wilcox, 47 Pa. St. 51. (2) The county court or the sheriff should-have compelled McLelland to have paid the $116, or they should have resold the land.

— Hon. C. H. S.„ GrOODMAN, Judge. The title to this lot did not pass to the plaintiff under the mortgage of February 15, 1879, as it was not specifically described in that instrument, and it was not in any sense an appurtenance belonging to the railroad therein conveyed. 1 Bouvier’s Law Diet., title, Appurtenances, p. 136; Coke on Littleton, sec. 184, p. 121; Phila. v. Railroad, 58 Pa. St. 253; Jones on Railroad Securities, sec. 104; Panic v. Tennessee,' 104 TJ.

— I-Ion. Henry M. Ramey, Judge. (1) Section 11, article 10, constitution of Missouri, does not deal with the individual assessments of each piece of property, real or personal, but is only aimed at keeping the gross assessment of property in the city, made by the city assessor, down to the same amount as that made by the county assessor on property within the city, so as to make the limitation on the levy effectual.

<p>Appellate Practice: bill of exceptions : motion for new trial. A motion for a new trial will not be considered on appeal unless it is either incorporated into the bill of exceptions, or is called for therein, and has been copied by the clerk into the record certified \,by the appellate court.</p>

— Hon. O. M. Spencer, Judge. (1) The court erred in giving the declaration of law asked by respondent, to the effect that under the law and the evidence the finding should be for respondent. The undisputed evidence is that appellant Baker had been in the open, notorious, continuous, exclusive and adverse possession of the land in dispute for more than twenty years. The finding of the court is against the law and the evidence, and should have been for appellant.

— G-eorge Robertson, Esq., Special Judge. (1) The court should have considered the question as to whether the verdict of the jury was against the weight of evidence in passing on plaintiff’s motion for a new trial. The record entry made by Judge Hughes, after Mr. Robertson had been selected and qualified as special judge, should not have prevented the consideration of that question.

— IIon. J. M. Sandusky, Judge. (1) The plaintiff was entitled to have the report of the commissioners set aside, and a jury trial ordered as a constitutional right. Const., art. 12, see. 4; Railroad v. Almeroth, 13 Mo. App. 91; Railroad v. Story, 96 Mo. 611; Ptisey’s Appeal, 83 Pa. St. 67; Turnpike Co. v. Burket, 26 Ind. 53; Isom v. Railroad, 36 Miss. 200; Stewart v. Baltimore, 7 Md. 500; Kimball x>.

— Hon. Richard Field, Judge. Action for personal injuries. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion ,of the court. (1) The petition does not state facts sufficient to constitute a cause of action. Hudson t>. Hauroad, 101 Mo. 31; Steffen v. Mayer, 96 Mo. 420; Milburn v. Railroad, 86 Mo. 109; Railroad v. Hester, 11 S. W. Rep. 104; 72 Tex. 40. The court should have given instructions, numbered 5, 6, 8 and 9, asked by defendant.

— Hon. Andrew Ellison, Judge. (1) A deed fair upon its face cannot be assailed collaterally in an action at law under a mere general denial. Held: 58 Mo. 213 ; Wiener ». Peacock, 31 Mo! App. 238; 1 Hilliard on Mortgages [4 Ed.] secs. 3, 4, pp. 476-8. (1) The married woman’s act guards the title of the wife against the husband in her separate property until she shall in writing consent for him to have and dispose of it for his own use and benefit.

— Hon. O. M. Spencer, Judge. (1) The former suit (82 Mo. 688) is no bar to this one even if the same title and defense were involved. Kimmel v. Benna, 70 Mo. 52 ; Ekey v. Inge, 87 Mo. 493; Avery v. Fitzgerald, 94 Mo. 210. (2) Adverse possession (not actual )must be based upon both color and claim of title. Bakewell v. McKee, 101 Mo. 342 ; Avery v. Adams, 69 Mo. 603; Norfleet v. Hutchins, 68 Mo. 597; Hamilton v. Boggess, 63 Mo. 244 ; Cooper v. Ord, 60 Mo. 431.

— Hon. E. M. Hughes, Judge. (1) The court committed error in allowing the wife of William Hubbard to testify against the objection of appellant as shown by the abstract, pages 10, 11, 12. This not one of the specified cases in which a wife may testify as laid down in section 4014, Revised Statutes, 1879, and that statute being in derogation of common law is to be strictly construed. Holman v. Bachus, 73 Mo. 49 ; Brismade v. Or oil, 14 Mo. App. 444; Willis ©.

— Hon. D. A. DeArmond, Judge. (1) The court erred in refusing to permit plaintiff’s witness, McAlister, to answer on cross-examination as to whether, upon defendant’s theory of the case, the track was a reasonably safe track, since what will be regarded as a reasonably safe track depends upon the character and quality of business done over it, and also the duty required of the servant. Bayharsh r>. Railroad, 103 Mo. 576.

— Hon. R. H. Field, Judge. (1) As far as Leigh H. Irvine is concerned, had he made no transfer to his brother, the law is clear that he would hold the property in trust for the plaintiff. Davis v. Kline, 96 Mo. 401-406, and cases cited. (2) Anri his brother, taking under a quitclaim deed, stands in no better position, for he takes the property subject to all equities. Campbell v. Gas Go., 84 Mo. -352, and cases cited; Kox v. Hall, 74 Mo. 315.

— Hon. O. M. Spencer, Judge. (1) The change of venue -was improperly awarded. The affidavit was sworn to by a formal party of record, but not by the party in interest. Huthsing v. Mans, 36 Mo. 107; In the Matter of Whitson’s Estate, 89 Mo. 58. The exception was properly saved and in the proper court. Squires v. Chillicothe, 89 Mo. 232.

Louis City Circuit Court. — Hon. B.L. Fisher, Judge. (1) The measure of damages was the fixed sum of $5,000. It was error to instruct for a sum ‘ ‘ not exceeding $5,000.” R. S. 1889, sec. 4425; Beclce v. Railroad, 102 Mo. 544; Magoffin v. Railroad, 102 Mo. 540; Crumply v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Sullivan v. Railroad, 97 Mo. 113; Wagner v. Railroad, 97 Mo. 512; Schlereth ».

— Hon. J. H. Sloven, Judge. (1) By the common law husband and wife are ■one person, and that person is the husband. A married woman under that law cannot legally make, indorse or accept notes or bills, as acting for herself. 1 Pars, on Notes & Bills [2 Ed.] p. 78.

— Hon. O. M. Spencer, Judge. (1) St. Joseph, adopted the law for cities of the second class, April 9, 1885 (sec. 4625), and a sale under that law for taxes delinquent under the old charter was as to those taxes void. R. S. 1879, sec. 4728; Laws, 1887, sec. 10, p. 54. The remedy for all taxes levied and delinquent under the old regime, the cause of action which had accrued as to them, is expressly preserved by sections 4762 and4825.

— Hon. J. F. Hale, J udge. (1) The evidence of Mrs. Potter was entirely irrelevant, and did not tend even to prove any pertinent hypothesis or issue in the case and its admission was erroneous. State v. Mix, 15 Mo. 153 ; State v. Wolf, 15 Mo. 168; State v. Thomas, 99 Mo. 235. (2) The instruction upon the subject of flight was wholly unsupported by the evidence, and the giving of it constituted reversible error.

— Hon. C. W.. Sloan, Judge. (1) The appellants, sureties upon the injunction bond of Nolan, have the right to prosecute an appeal from the judgment against him for the damages occasioned by the injunction. R. S. 1879, sec. 3710 ; Freeman on Judgments, sec. 180 ; Towle v. Towle, 46 N. H. 432; Oelrichs v. Spain, 15 Wall. 211; McAllister v. C lark, 86 111. 236; Haniford v. City, 103 Mo. 180.

Louis City Circuit Court. — TIon. D. L. Fisher, Judge. (1) Respondent’s own evidence shows he was guilty of contributory negligence. He knew and must have known from his experience that in so large and busy a yard every track upon which he stepped was likely at any moment to be in use, and that inattention on his part would necessarily meet either with injury to himself, his fellow-servant or the master’s property.

Certified from Kansas City Court of Appeals. (1) The condition in the sale that the hogs were to remain the property of the vendor Collins, until paid for by the vendee McComas, was void, it not being in writing, executed, acknowledged or recorded as provided in cases of mortgages of personal property. R. S. 1879, sec. 2505 (second clause); Cooler v. Johnson, 86 Mo. 533. In the above case the debt was prior to the sale.

— Hon. Richard Field, Judge. (1) An act which is penal by law is rendered so solely because the law of the jilace of its commission so provides, and such. law has no force beyond the territorial jurisdiction of the political power making it. The sending of this message contemplated the doing of acts beyond the jurisdiction of Missouri, and, hence, the failure to do such acts cannot be penal under the Statutes of Missouri.

Prohibition. (1) Prohibition is the proper remedy in this case. High. Ex. Rem., sec. 789 ; Fite v. Black, 11 S. É. Rep. 782; State v. Judge, etc., 24 La. 598; State v. Judge, etc., 21 La. 735; Gralle v. Grade, 81 Ya. 773.

— Ros. T. H. Bacow, Judge. (-1) That portion of Dr. Plays’ deposition concerning information which he acquired from his patient, Mrs. Davenport, while attending her in a professional character, and which was necessary to enable him to prescribe for her ■ was incompetent evidence, and the court committed error in admitting the same in evidence over the objection of defendant. R. S. 1889, sec. 8925.

— Hon. O. M. Spencer, Judge. (1) The trial court found the verdict was grossly excessive. This was equivalent to a finding that it was rendered under the influence of passion or prejudice ; and, if this were true, it was the duty of the court to set the verdict aside and submit the case to a fair and impartial jury. Koetz 'o. Bleckman, 46 Mo. 320; .Doty v. Steinberg, 25 Mo. App. 335; Sheedy v. Brick Works, 25 Mo.

— Hon. J. M. Sandusky, Judge. (1) The court committed- error in overruling defendant’s motion to exclude the evidence and dismiss the cause, because the election of Special Judge Hughes of the Platte circuit court for its August term (at which the indictment was found) was unauthorized; the indictment was a nullity. First.

Certified from Kansas City Court of Appeals. (1) The prevailing rule in the state’ is that executors and administrators stand in the position of trustees-to those interested in the estate upon which they administer, and are liable only for want of due care and skill, and that the measure of care and skill required of them is that which prudent men exercise in the direction of their own affairs.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The insurmountable fact exists that respondent was struck by the car before he could traverse a space of five feet (the width of the track) at a brisk gait. To clear that distance required the taking of but two steps, as the step of the average man is from two and one-half to three feet.

— Hon. James F. Green, Judge. - (1) The court was authorized under Revised Statutes, 1889, section 4230, to fix the punishment. (2) The fifth instruction, relating to the question of self-defense, was most favorable to the defendant. In support of this instruction, see State v. Mustek, 101 Mo. 260; Slate v. Hardy, 95 Mo. 455 ; State v. Culler, 82 Mo. 632 ; State v. Hicks, 92 Mo. 43.

— Hon. W. I. Wallace, Judge. (1) The defendant is not entitled to a decree of specific performance, because the'evidence relied upon to establish the parol contract set up in answer is not of such character as will warrant the decree.

— Hon. J. D. Fox, Judge. (1) The state of Missouri by an act, approved March 29, 1872, article 3, sections 39 and 45, delegated to the city of Cape Girardeau, Missouri, “the exclusive power and right to regulate, tax and license all ferries within the limits of the city,” and to “ exercise complete and perfect control over * * * the trade, commerce, etc., as the city may deem expedient.” Acts, 1872, p. 328.

— Hon. John E. Ryland, Judge. One of the material averments of the indictment was the venue. This was neither submitted to the jury by any declaration of law, nor is it shown by the evidence, and, on either ground, the error was fatal. State v. West, 69 Mo. 401 ; State v. McGinniss, 74 Mo. 245, and cases cited; Kelley’s Or. Law & Prac., sec. 130, p. 73; State v. Burns, 48 Mo. 438; State v. Quait, 20 Mo. App. 405.

— Hon. M. G. McGregor, Judge. (1) The trial court erred in applying to this case section 8835, Revised Statutes, 1889, providing that title acquired by a grantor after conveyance inures to the grantee. At the time W. J. Swindle conveyed to his children, he did have the legal estate ; the unpaid tax was an incumbrance merely. Tiedeman on Real Property, secs. 852, 727, 729, 710; Blondeau v. Sheridan, 81 Mo. 545.

— Hon. C. A. Anthony, Judge. (1) The court erred in compelling defendant to go into trial on an imperfect transcript of the record of the Harrison circuit court. (2) The court erred in overruling defendant’s motion for a continuance. (3) The court erred in its rulings on the admission and exclusion of evidence. (4) The court erred in giving instructions for the state. (5) The second count of the indictment is insufficient in law to sustain the verdict.

— Hon. T. H. Bacon, Judge. (1) The court committed manifest error in giving-instruction, numbered 1, of its own motion in behalf of respondent. Appellant Dodd could neither object nor acquiesce in the entry on the land, or the building of the-railroad, nor could he interfere with respondent’s possession until the expiration of the life-estate of his mother, Maria Dodd.

Louis City Circuit Court. (1) Neither James nor Jesse Seligman, although parties to this suit, testify as a witness, either as to the alleged transfer of the stock or npon the question of partnership, or upon any other question in the case. It is well settled in this state that the failure of a party to a suit to testify to facts within his knowledge, and put in issue in the case by him, raises a presumption against him.

— Hon. Joseph Cravens, Judge. (1) There was no evidence to show that the cow was ever stolen by anyone. The evidence tends to show that there was a cow that might have been Rodgers’ running around defendant’s premises from April till November, 1889.

Louis City Circuit Court. (1) The legislature undoubtedly has the right to say that relief can be had by mandamus in a given case, although such right did not exist before the passage of the act. Such are inherent legislative powers, and their exercise is not forbidden by the coustitution. The legislature has seen fit to declare that respondents can be compelled by mandamus to pass on a certain class of claims in a certain manner. State v. JacJcson, 105 Mo. 196.

— Hon. C. H. S. Goodman, Judge. (1) The circuit court of Harrison county had no jurisdiction of the cause. First. While the transcript from DeKalb county recites that the indictment in this case was returned and gives a copy of it, no further reference to, or mention of, this case is made therein. Second. The transcript was not sufficient to confer jurisdiction. Third. The transcript was not certified as- required by law. R. S. 1889, sec. 4166. Fourth.

— Hon. Andrew Ellison, Judge. (1) The county courts in the exercise of their general administrative powers have the right and the power to employ counsel, when public interests are to be subserved. Henly v. Clover, 6 Mo. App. 183. Under the act of 1873, county courts are authorized to employ assistant counsel whenever the public business demands it. Sess. Acts, 1873, p. 18; Thrasher v. Creene Co., 87 Mo. 419. Nor is the act or 1873 repealed by the revision of 1879.

— Hon. E. M. Hughes, Judge. (1) The court erred in excusing the juror Slavens, and in.substituting for him Sabourin. (2) On the testimony of the prosecutrix, the defendant ought to have been declared not guilty by the court; -clearly the jury ought to have found him not guilty. State v. Reeves, 97 Mo. 668; State v. Wheeler, 94 Mo. 252 ; State v. Patterson, 88 Mo. 88.

— Hon. J. M. Sandusky, Judge. (1) The court erred in refusing to discharge the juror Lynch. His statement, made after the opening statements of counsel had been made and the jury had separated, that “If the G — d d — -—d son of ab — h promised to marry the .girl, why didn’t he do it,” in the presence of a crowd on the street,- disqualified him from acting as a juror.

- — Hon. C. H. S.. Goodman, Judge. (1) The indictment charges the offense in the-language of the statute, and is sufficient. R. S. 1889, sec. 4622; 95 Mo. 889. (2) Section 4622 of Revised Statutes, 1889, is constitutional.