Volume 111 — Missouri Reports

— How. M. G. ■ McGregor. Judge. (1) The deeds from Solomon Rothenbarger to plaintiffs, Sarah E. and Susan M., were never delivered. The evidence shows not only that they were never delivered, but that they were not intended to be delivered during the lifetime of Solomon Rothenbarger. Ruey v. Ruey, 65 Mo. 689; Rammerslough v. Cheatham, 84 Mo. 13; Turner v. Carpenter, 83 Mo. 333; Sneathen v. Sneathen, 104 Mo. 201.

— Hon. Ben E. Turner, Judge. A cause entitled as is the present one, and between the same parties litigant, has been before us on two former occasions; and will be found reported in 79 Mo. 644, and in 96 Mo. 180.

— Hon. Heney M. Eamey, Judge. (1) The construction placed upon the language of the statute by the state railroad commissioners and acquiesced in by all the departments of the state government up to the present time, thirteen years, should be adopted by the court. Edwards v. Darby, 12 Wheat. 106; Paclcard v. Richardson, 17 Mass. 143. Such contemporaneous practical construction has always been regarded by the government as equivalent to positive law.

— Hon. John W. H®nry, Judge. (1) The weight of evidence is clearly against the judgment of the court, and for this reason this court should reverse that ruling and render such judgment as the circuit court should have rendered. Benne v. Schnecko, 100 Mo. 250; Rawlins v. Rawliñs, 102 Mo. 563. It is only in doubtful cases when this court will defer to the finding of the trial court.

— Hon. H. 0. O’Bey an, Judge. (1) The court committed error in refusing to sustain plaintiff’s motion for a default against defendant Tistadt.

— Hon. Bichard Field, Judge. The official ballot mentioned in the opinion (omitting immaterial parts) is as follows, viz.: (The blanks in the ballot, indicated above by-asterisks, were filled in the original with the names of the several party nominees for the various state, county and township offices.) The other material facts appear in the opinion.

— Hon. C. H. S. Goodman, Judge. (1) The court should.have sustained the demurrer to the evidence, there being no evidence of conspiracy, and the witness, Ada E. Dyche, testifying that she requested the appellant to take her away, and that he never at any time solicited her to leave her father’s home; he was guilty of no crime in taking her, and the mere act of illicit intercourse on the road that night cannot make that a crime which would not otherwise be.

— Hon. M. G-. McG-begob, Judge. (1) There was no judgment against Jennie R. G-abriel, and no execution issued against her, and, therefore, no levy could be made on her property under the execution against her husband, John E. G-abriel, held by defendant Mullen.

— Hon. R. Hirzel, Judge. (1) “General threats are competent when clearly ■connected by independent evidence with some subsequent criminal action.” State v. Grant, 79 Mo. 137. But not otherwise. Wharton on Criminal Evidence, sec. 756; JRedd v. State, 68 Ala. 492.

Jackson Circuit Court. — Hon. J. H. Sloveb, Judge. (1) The only property that may be exempt from taxation in the hands of a school is a “lot in an incorporated city or town or within one mile of the limits of snch city or town, to the extent of one acre, or a lot one mile or more from the limits of such city or town, to the extent of five acres, with the buildings thereon.” Constitution, art. 10, see. 6.

(1) The memorandum calls for ground lying on ■the east side of Grand avenue, and between Missouri avenue and Sixth street. It is not stated in this memorandum that these streets and avenues are in Kansas City, Missouri; but this can bb shown by parol evidence. Scanlon v. Geddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413'; Bmnett v. Kullak, 76 Cal. 535; Marriner v. Dennison, 78 Cal. 202; Hurley v. Brown, 96 Am. Dec. 671, and note; Briggs v. Munchon, 56 Mo. 467.

— Hon. C. A. 'Anthony, Judge. (1) The demurrer to the evidence under the first count should have been sustained. It was the duty of Samuel Crumpley in approaching the crossing to exercise the degree of care commensurate with the danger to be apprehended there, and he should have approached the crossing under the apprehension that a train might be expected at any moment.

<p>1. Pleading: public statute. One desiring to avail himself of tie-provisions of a public statute is required only to state facts which bring his ease Clearly within its provisions.</p> <p>2. Constitution: common carrier: double-decked cars. Revised: Statutes, 1889, sections 2598 to 2600, which require railroad companies to furnish double-decked ears for carrying sheep when requested, and provide a penalty for refusal to do so are constitutional, being a, reasonable regulation of common carriers.</p> <p>3. Pleading: double-decked cars: statute. A petition to recover the penalty for violation of said statutory provisions need not state that the point to which plaintiff’s sheep were to be shipped was a station on the defendant’s road, where it alleges that “defendant was conducting a general passenger and freight business over the line of its railroad” between the point of shipment and the point of destination.</p>

— Hon. M. Gr. MoGtbegob, Judge. The act is unconstitutional: (1) Because it gives plaintiff a fee for his attorney (m each court to which .the case may go), thereby depriving defendant of its property without due process of law, and giving it to another, — contrary to section 10, bill of rights of the •constitution of Missouri.

— Hon. J. H. Slover, Judge. (1) The evidence fully supported the allegations of the petition. “Where there is any evidence at all tending to prove the allegation of the petition, the case should go to the jury.” JBaumv.

— Hon. J. Gt. Wear, . Judge. (1) The proceeding is to enforce a lien under the provisions of article 4 of chapter 47 of the Revised Statutes of 1879. Section 3207 of the same article prescribes the rules of pleading, practice, process and other proceedings in cases arising under said article; there is no difference between such a petition as this and a petition on an account for goods sold and delivered, excepting only the additional allegations with reference to the lien.

— Hon. W. D. Hubbard, Judge. (1) The statement for confession was insufficient under the statute to authorize the court to enter up the .judgment. First. It did not state the facts out of which the indebtedness arose. Stern v. Mayer, 19 Mo. App. 511; Bank v. Mayer, 19 Mo. App. 517; Gilman v. Fovey, 26 Mo. 280; Eowe v. Dorscheimer, 31 Mo. 349; Bryan v. Miller, 28 Mo. 32; Bankv.

<p>1. Criminal Law: assault with intent to rape. To sustain a conviction for an assault with intent to rape, the evidence must show that the assault was made with the intent to have sexual intercourse with the worhan hy force and against her will, notwithstanding the utmost resistance that might he offered.</p> <p>2. -: -: intent. It is for the jury to determine, under all the facts and circumstances, the intent with which an assault was made, and if made in a rude and insulting manner, hy seizing the person of the woman, against her will, it would constitute an assault and battery.</p>

<p>• Dramshop Keeper: sale by agent to'minor: prima eacie case: evidence. The doctrine announced in State v. MeCance, 110 Mo. 398, followed and affirmed.</p>

Certified from Kansas City Court of Appeals. The appellants assign as error: First.

— Hon. James G-ibson, Judge. (1) Mrs. Ferguson, by reason of her disability of coverture, did not have the power to borrow money, and execute her notes therefor. That she could not do so by the common law will not be controverted. Nor will it be denied that there is no statute of this state empowering her to do so. Besides, it has been decided in this state that such a contract is void.

.Error to Balls Circuit Court. — Hon. W. W. Edwards, Judge. . (1) This action is in effect one against the sureties on the administration bond, and no charge, for which they are not liable, can be herein made against the administrator. Dix v. Morris, 66 Mo. 514; State v. Bichardson, 82 Mo. 509; Lewis v. Carson, 93 Mo. 591. {2) The findings of the referee are reviewable as in chancery cases. In re Est. of Meeker, 45 Mo. App. 186.

<p>1. Appeals: validity of creation of trial court. The question of the legal existence of the trial court cannot be raised on appeal.</p> <p>2. Local Option: burden of proof. The adoption of the local-option law is established prima facie by the state by the production of a certified copy of the result of the election, as spread upon the records of the county court in compliance with that law, and proof that the requisite subsequent publication of the result was made. (State v. Searcy, 39 Mo. App. 393, approved.)</p> <p>3. Elections: certificate of election. Beld, arguendo, that in the case of a general election the eounty clerk is required to take to his . assistance two justices of the peace, or two judges of the eounty court, only for the purpose of aiding him in examining and easting up the votes given to each candidate, and that these two justices or judges are not required to sign the certificate of election given to the candidate having the highest number of votes.</p> <p>4. Local Option: certificate of election. It is not essential to the validity of the election, putting the local-option law in force in any locality, that any certificate of the election should be signed by the two justices 'or the two judges of the county court, called in'to aid the county clerk in casting up the votes.</p> <p>5. County Court Records: presumptions. It is presumed that the county court orders everything, which appears upon its records, to be recorded therein.</p> <p>6. Local Option: sales by druggists. A person who is indicted for a violation of the local-option law, and defends on .the ground that he is a licensed druggist, and as such made the sale of liquor for which he is indicted, must bring his sale within the provisions of the law relating to such sales by druggists, and, where the sale is for medicinal purposes, must, therefore, show a physician’s prescription.*</p> <p>7. -. The constitutionality of the local-option law reaffirmed, following State v. Dillard Moore, 107 Mo. 78.</p>

(1) Proceedings by a corporation to condemn property for public use may be dismissed by the corporation at any time prior to a final judgment; but when they are so dismissed the corporation is liable to the property-owner for the actual loss inflicted by the institution and maintenance of the proceedings. Liesse ■v. Railroad, 2 Mo. App. 105; s. c., 72 Mo. 561; Railroad v. Lackland, 25 Mo. 515; St. Joseph v. Hamilton, 43 Mo. 282; Rogers v. St. Charles, 3 Mo.

— Hon. John G-. Wear, Judge. (1) There is not sufficient evidence in this record to warrant a conviction on any of the grades of homicide, and the judgment should be reversed and the defendant discharged. (2) The defendant and Brown, being both charged as principals for the commission of the same offense, should have been joined in one indictment if indicted at all. Revised Statutes, 1889, sec. 4105. (3) The witness, Alf.

— Hon. John Gk ‘Wear, Judge. (1) The indictment in this cause is defective in that it fails to allege that the offense was committed at any certain time. 1 Bishop on Criminal Procedure, secs. 386, 406; 2 IBishop on Criminal Procedure, secs. 387, 131, 134. (2) There is no evidence in this record to sustain the charge of either burglary or larceny. And the court should have so told the jury. First.

— Hon. John L. Thomas, Judge. (1) There was evidence tending to prove that the payments were made on account of an indebtedness then due Beck from Haas, and the finding of the jury is conclusive. Ramsey v. Barnes, 12 N. Y. Sup. 627; Chiclsley v. Poioell, 91 Mo. 622; Bede v. Haas, 31 Mo. App. 180. (2) Plaintiff had a right to apply payments, in the absence of defendant’s direction, in such manner as he pleased, and to apply a portion of each payment to different debts.

<p>Criminal Law1: rape: evidence. Oil trial for rape, testimony of the defendant that he had reason to believe the prosecutrix was over the age of consent is inadmissible. (State v. Sous, 109 Mo. 654, affirmed.)</p>

— Hon. E. M. Hughes, Judge. James Y. Howell, Jr., was seized of an estate of inheritance in the undivided one-half of said land, during his marriage with Isabella, subject to the dower of his mother, Louisa, and under section 4546, Revised Statutes, 1889, page 1039, he was entitled to the immediate possession of two-thirds of the one-half of said land, and could have moved at any time before his death; and obtained possession of two-thirds of the one-half of said land, under…

<p>1. Supreme Court Practice: abstract. A motion to dismiss the appeal for failure to file a complete abstract, as required by the rules of the supreme court, will not be considered where it does not distinctly point out in what respect the abstract is insufficient.</p> <p>2. -: -. The rule requiring the abstract to “have a complete index at the end” is imperative.</p>

— Hon. B.E. Turner, Judge. (1) Plaintiff, John D. Crook, was not a competent witness after the death of Dabney L. Tull, one of the defendants, to prove the date of contracting the debt. Meier v. Thiemcm, 90 Mo. 433; Bankv. Htrnt, 25 Mo. App. 170. (2) This action could not be tried until the third term after the death of Dabney L. Tull. Revised Statutes, 1889, sec. 2201. The action did not abate as to said deceased until the third term after his death.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Under the testimony in the case the defendants were makers of the note sued on, and were liable as such. Held: owned or transferred the note. If he is apparently on the paper an indorsee as well as an indorser, he is liable in the latter character only, and not as maker. Bickey v. Darner on, 48 Mo. 61; Marshall v. Cabanne, 40 Mo. App. 38; Diets v. Convin, 35 Mo. 376; Schnell v. P. M. Co., 89 111. 581.

.Appeal from JacTcson Circuit Court. — Hon. R. H. Field, Judge. , (1) A theater is a public place. When an owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest .in such usej and must to the extent of that interest submit to be controlled by the public for the common good, as long as he maintains the use. Munn v. Illinois, 94 U. S. 113; Joseph v. Bidwell, 28 La.

— Hon. B. E. Turner, , Judge. (1) The court committed an error in permitting any evidence to be introduced by plaintiff, and in overruling appellant’s motion in arrest of judgment, for the reason that the petition does not state facts sufficient to constitute a cause of action against defendant,' because the petition does not show or aver any authority in respondent to take charge of the estate of Clarissa Taylor, deceased, nor to bring this suit; bnt on the contrary the…

Certified from St. Louis Gowrt of Appeals. (1) The appeal was unauthorized by law because prosecuted from an order of the county court from which the circuit court had no jurisdiction. Railroad v. City of St. Louis, 92 Mo. 160. (2) Remonstrants had no interest in the matter otherwise than in common with the general public, and were not for that reason entitled to appeal.

— Hon. R. H. Field,. Judge. (1) The court committed error in admitting-incompetent and irrelevant evidence. (2) The instruction, numbered 1, given by the court of its own motion was erroneous. The instructions as to the issues made in it are not supported by any testimony, nor by the pleadings. Brown v. Railroad, 80 Mo'. 457; Taylor v. Railroad, 28 Mo. App. 552; Limn v. Railroad, 98 Mo. 652. (3.) The court erred as to the other instructions-given by it.

(1) The plaintiff had a ticket, was on defendant’s premises and platform, ready to take its train which carried passengers. He was a passenger. Patterson on Railway Accident Law, pp. 212, 213; 2 Wait’s Actions. & Defenses, 65; 2 Redfield on Railways, 303, note “c,” and cases cited. (2) The plaintiff had the right to be treated by the defendant as a common carrier should treat its passengers.

Louis City Circuit Cowt. — Hon. G-. W. Lubke, Judge. (1) The last two notes (of |496.55 each) sued on falling due after suit was brought, as to them, plaintiff was not entitled to recover. (2) The contract between the parties is joint, not several; neither Bowman nor Richey could sue alone, and the court should have so instructed the jury. Clark v. Cable, 21 Mo. 223; Denney v. Covey, 60 Mo. 224; Bobbins v. Ayres, 10 Mo. 538; Wells v. Gatey, 9 Mo. 565.

— Hon. E. M. Hughes, Judge. ■' (1) The town has authority to own and operate works necessary to supply it with water. Revised Statutes, 1889, sec. 1672. If there was no reference to water in said statute the express authority providing for the “improvement” of the town would justify an improvement for furnishing it with pure and wholesome water.

Louis City Circuit Cou/rt. Statutoey action by the widow of Mr. Win. B. Spotts to recover damages for Ms death, occasioned by alleged negligence of defendant. Verdict and judgment for plaintiff. Defendant appealed. The material facts are stated in the opinion. (1) Upon the undisputed testimony in this case the court should have instructed the jury to find for the defendant, as no negligence on the part of defendant’s servants was proved.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Petition .for injunction in order to prevent the defendants from removing certain sewer pipes and connections whereby plaintiff was enabled to drain his premises by arranging his pipes, so as to effect that purpose by means of a sinkhole on the defendant Boyce’s lot. The other defendants are agents of said defendant, and employed by her to do the work of removal.

— Hon. J. M. Sandusky, Judge. (1) The proviso in the latter part of section 2689, Revised Statutes, 1879, authorizing husband and wife to mortgage a homestead, clearly forbids the husband alone to mortgage it. The mortgage to Tucker, executed by Moore alone, without the joinder of his wife, is void. MecJce v. Westmhoff, 85 Mo. 642; Kaes v. Gross, 92 Mo. 659; 9 American & English Encyclopedia of Law, pp. 485, 486, and notes.

Charles Circuit Court. — Hon. W. W. Edwards, Judge.' (1) The true division-line between the north half' and the south half of section 31, township 46, range 1,. east, is the line claimed by defendant, established by Arnold Krekel, county surveyor of St. Charles county, in 1847, and running from the original United States-quarter section corner in the east line parallel with the southern'line of said section, to a corner in the west-line thereof.

— Hon. R. H. Field, Judge. (1) The cause of action stated in the petition is distinguishable from that class of cases where it is sought to hold the landlord liable for injuries caused by the buildings becoming in a dangerous condition while under lease to tenants.

Appeal jrom St. Loúis City Circuit Court. — Hon. L. B. ■ Valliant, Judge. Action by plaintiff to recover of the defendant the sum of $500, alleged to be due him for legal services as 'an attorney-at-law. Plaintiff is a resident of the city of - St. Louis, and the defendants are resident in Randolph county. Williams had been served with process in the city of St. Louis at the suit of Cummisky and Samuels who are merchants in that city.

— Hon. E. M. Hughes, Judge. (1) Tbe granting clause is to Azra A. Holmes alone. It shows a consideration of $200 paid by bim for forty acres of tbe land. As to tbis forty acres tbe condition and limitations expressed in tbe Jiabenckm cannot operato to cut down tbe fee to a life-estate. Wood v. Kice, 103 Mo. 329-335. (2) If Azra A. Holmes did not take a fee, but only a life-estate, then the daughters took the fee. First. Because the conditions are too uncertain to take effect.

— Hon. H. C. 0 ’Bryan, Judge. The record does not show that defendant was ever arraigned, or that he waived such right. This must affirmatively appear. 59 Mo. 154.

— Hon. Silas Woodson, Judge., (1) No error was committed by the court in giving instruction, numbered 2, for the state. The presumption of guilt arising from the recent possession of stolen property applies both to the burglary and larceny. State v. Warford, 106 Mo. 55. (2) The evidence shows defendant is guilty, and the judgment should be affirmed.

— Hon. James Gtbson, Judge. (1) The court erred in sustaining the objection to the introduction of any evidence. The trustee was not appointed until after the institution of the action and at the time of the filing of the amended petition.

— Hon. E. L. Edwabds, Judge. (1) The court erred in admission of evidence in behalf of the state. The evidence that defendant had on the preliminary examination of Knatzer made a different statement from that made on the latter’s trial was not sufficient corroboration to convict. Sclmlter v. Ins. Co., 62 Mo. 239; 2 Wharton’s Criminal Law [9 Ed.] sec. 1317; 2 Bishop on Criminal Law [7 Ed.] secs. 931, 1045.

— Hon. (4. D. Burgess,. Judge. The indictment should have been quashed: First.. Because it was drawn under section 3555, Revised Statutes, 1889, when it should have been drawn under the special treasury law. Revised Statutes, 1889, ch. 164. The special law repealed the general law in regard to embezzlement by public officers, in so far as it applied to the state treasury.

Certified from St. Louis Cowt of Appeals. (1) The court erred in sustaining the plaintiff’s, motion to strike out part of defendant’s answer, if the-matter stricken out tendered any defense, in whole or in part, to the action or any part of the action. Justice-v. Lancaster, 20 Mo. App. 559; Kerr v. Simmons, 82 Mo. 269.

— Hon. H. 0. O’Bryan, Judge. (1) The refusal of the court to grant a continuance on account of the absence of John Gr. Juden (who had been subpoenaed but was sick in bed), a material and a very material witness, was.undoubted error. (2) The court erred in failing to give an instruction as to previous good character of defendant. It is the duty of the trial court to give all necessary instructions. State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592.

— Hon. John E. Ryland, Judge. ' (1) The testimony sought to be elicited from the defendant by his counsel as to deceased telling him that a man by the name of Wood had come to see her, and had threatened her, was properly excluded. “Declarations of a person, in order to be received in evidence, must be contemporaneous and connected with the principal fact, constitute part of the res gestae or serve to illustrate such principal fact.” State v. Hay, 100 Mo. 248, and…

Mandamus. (1) The signing and allowing of a bill of exceptions is a judicial act in the hearing and trying of a case, for the doing of which a judge is disqualified, when he shall have been of counsel in a cause, under section 4174, as well as under the common-law maxim: “No one should be judge in his own cause.” Consaul v. Lidell, 7 Mo. 250; Granor v. School Bist., 18 Mo. App. 397; Connelly v. Leslie, 28 Mo. ■ App. 551; Waterman v. Morgan, 16 N. E. Rep.

— Hon. Thos. H. Bacon, Judge. (1) Instruction, numbered 1, given by the court, is erroneous. First on the question of reasonable doubt.' Bressler v. Beople, 5 W. Rep. 185, 192; State v. Crawford, 34 Mo. 200; State v. Head, 57 Mo. 252; State v. Beeper, 78 Mo. 470. (2) It is further erroneous in requiring a reasonable doubt to be based either on the evidence or lack of evidence in the case.

— Hon. D. P. Stratton, Judge. ’ (1) The judgment should be reversed and defendant discharged because the corpus delicti was not proved. (2) The evidence was not sufficient to support the verdict. (3) The third instruction given by the court on its own motion improperly assumes that the heifer was stolen, and is of too restrictive a character. State v. Bruin, 34 Mo. 541; State v. Gray, 37 Mo. 465; State v. Crank, 75 Mo. 407.

— Hon. C. 0. Bland, J udge. (1) Instruction, numbered 5, asked by the defendant should have been given, and the principle therein set forth is the proper one in such cases. Beg. v. Oxford, 9 C. & P. 525; Barton v. People, 114 111. 505. The doctrine of uncontrollable impulse is recognized by all late writers on insanity, and the asylums furnish many instances of patients begging to be. restrained to prevent their doing injury to themselves and others.

<p>1. Court, Legal Existence of: collateral attack. The question of the legal existence of the trial court cannot arise upon an appeal from a judgment in a proceeding commenced in that court. (State v. Wiley, 109 Mo. 439, affirmed.)</p> <p>2. Constitution: local option. The former decisions of the court affirming the constitutionality of the local-option act reaffirmed.</p>

— Hon. J. H. Sloveb, Judge. (1) The father, as natural guardian, could not maintain this suit. Revised Statutes, 1889, sec. 5279; McCarty v. Bountree, 19 Mo. 345; Morris v. Bailroad, 58 Mo. 78; Sherwood v. Neal, 41 Mo. App. 416. (2) The court should have directed a verdict for defendant. Dennis Spillane, if on the traek where he received his injury, did not exercise that degree of care which was incumbent on one of his years and intelligence. Etcher v.Bailroad, 124 N. Y. 308.

<p>Criminal Law: embezzlement. The evidence in this case examined, and held sufficient to support the conviction of defendant of embezzlement, as bailee of goods.</p>

— Hon. Andbew Ellison, Judge. (1) The third instruction given for the state is fatally defective. The girl Ollie testifies that at least forty-eight of the seventy-five rapes committed on her were committed in Randolph county. The third instruction is not restricted to any time or place, but tells the jury to convict if defendant had intercourse with her while under fourteen.

— Hon. Gr. D. Burgess, Judge. (1) The bill of exceptions fails to show the venue of the offense, and for this reason the judgment must necessarily be reversed. State v. McGinniss, 74 Mo. 245; State v. Hartnett, 75 Mo. 251; State v. Hughes, 82 Mo. 86. (2) The tenth instruction given for the state was erroneous. State v. Melton, 102 Mo. 683.

— Hon. T. H. Bacon, Judge. (1) Instruction, numbered 2, we think, clearly declares the law, and properly submits to the jury the determination of the facts charged in the indictment and testified to upon the trial, and is not subject to the objections raised to the instruction in State v. Brown, 104 Mo. 366; State v. Hays, 105 Mo. 76-85; State v. O'Connor, 105 Mo. 121-125. (2) The third instruction was correct.

— Hon. H. P. White, Judge. (1) The indictment sufficiently charges the offense of murder in the first degree. (2) The second and third grounds assigned in the motion to quash are not well taken. State v. Snell, 78 Mo. 240. (3) The failure of one grand jury to indict is no bar to action on the part of a subsequent one.

— Hon. M. Oliver, ‘ Judge. (1) The defendant should have been arraigned in the circuit court of Texas county. (2) The statute nowhere makes the constable' a peace officer, and he is not authorized to arrest without warrant, except in case of felony. The court erred in giving instruction, numbered 12, for the state. (3) Instruction, numbered 14, for the state is also erroneous. (4) The court erred in refusing instructions asked by defendant.

— Hon. O. M. Spencer, Judge. (1) The petition does not plead that the accident resulted from a violation of the city ordinance; hence, it was error for the court to instruct on such ordinance. (2) So it was error to so instruct under the evidence in the case. Bishop - on Non-Contract Law, sec. 436;, Whitaker’s Smith on Negligence, p. 1; Cooley on Torts, p. 630; Brown v. Railroad, 49 Mich. 153.

— Hon. J. H; Slover, Judge. (1) Ryan had the right to demand an allowance for the shortage in the lot of ten feet, and was not put in default by doing so. Hillv. Buckley, 17 Yes. 394; Jones v. Schackelford, 2 Bibb. 410; Collins v. Smith, 1 Head, 251; Wood v. Griffith, 1 Swan. 54. (2) Mrs. Dunlap, having contracted to convey more land than she had, was at once in default and could not declare a forfeiture.

— Hon. J. H. Slovee, ' Judge. (1) If the property in question was simply the legal estate of Mrs. McFarland, she, by joining her husband, might convey an absolute title thereto. Revised Statutes, 1889, sec. 2396. (2) A mortgage when conforming to the requirements- of the statute for the conveyance of her legal estate, made upon property held as her. legal estate and to secure her note, is valid, although the note is absolutely void.

— Hon. James Gtbson, Judge. (1) The master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master, and he’ has the right to rely upon the superior knowledge and skill of the master. Tire servant is not free to act upon his own suspicions of danger. Shortell v. St. Joseph, 104 Mo. 120; Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Railroad, 96 Mo. 209.

— Hon. E. M. Hughes, Judge. (1) Aside from provisions of statute, the general rule is that a quitclaim deed simply transfers whatever interest the grantor may then have, and is subject to a prior deed of the same grantor, although the grantee had neither actual or constructive notice of such prior ■deed. Sharp v. Cheatham, 88 Mo. 498; Munson v. JEnsor, 94 Mo. 509.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The grounds of the motion for new trial, mentioned in the opinion, are thus stated in the motion: 11First. The court erred in admitting improper and illegal evidence offered by defendant. “Second. The court erred in giving improper and illegal instructions asked by defendant. ‘ ‘ Third. The finding and judgment are against the evidence and weight of evidence. “Fou/rth. The finding and judgment are against the law. 11 Fifth.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The city of St. Louis, under its charter, has sole power and authority to grant to any person or corporation the right to construct railways in said city. “Scheme and Charter,” art. 3, sec. 26, cl. 11; 2 Revised Statutes, 1889,p. 2099. (2) A valid municipal ordinance, as against persons bound thereby, has the force of a legislative act.