Volume 118 — Missouri Reports

— Hon. W. N. Evans, Judge. Revised Statutes, 1889, section 4092, requiring that indictments shall be presented Toy the foreman in their presence to the court and shall be there filed and remain as records of the court is mandatory. Wharton’s Criminal Pleading & Practice [8 Ed.], sec. 371; 10 American and English Encyclopedia of Law, pp. 523, 524, and cases there cited; Goodson v. State, 10 S. Bep (Fla.), 738; Simmons v. State, 15 S. E. Bep.

Francois Circuit Court. — Hon. James D. Fox, Judge. The indictment in this case is insufficient, and no error was committed by the trial court in sustaining the demurrer.

<p>Appeal from St. Louis Criminal Court. — Hon. Henby L. Edmunds, Judge.</p> <p>. (1) The court should have granted the continuance as aslced by defendant. Price v. People (111.), 23 N. E. Rep. 639; Miller v. State, 45 N. W. Rep. 451; State v. 'Butler 7 S. Rep. (La.) 669; Simsv. State, 21 Tex. App. 649. (2) The court erred in refusing to allow appellant’s attorney on cross-examination of the prosecutrix to develop the fact that Officer Anton, had induced her to come to St. Louis and institute and carry on the prosecution of appellant on this charge. State v. Montgomery, 28 Mo 594; State v. Brady, 87 Mo. 142; State v. Robb, 90 Mo. 30; Roeoe’s Criminal Evidence, sec. 141; State v. Howard, 14 S. E. Rep. (S. C.) 487; People ■ v. Dixon, 94 Cal. 255; People v. Thonsen, 92 Cal. 506; Geesley v. Railroad, 32 Mo. App. 413. (3) The court, erred in allowing the circuit attorney, over appellant’s objection to re-examine the prosecutrix about some underclothing found at the place where the alleged rape occurred, and to offer same in evidence before the jury. (4) The court erred in allowing the circuit attorney, over appellant’s objection, to show the condition of the prosecutrix at a time when she was alleged to have been in the room of one Mrs Louisa Harris, in the month of November, 1892,. and in allowing said witness to describe her physical condition. ‘WÉarton on Evidence, sec. 259; 21 American and English Encyclopedia of Law, pp. 99, 102. (5) The court erred in permitting the circuit attorney to disguise the prosecutrix and other witnesses before presenting them to the witness for the defense to be by them identified — and in refusing to call them forth into the presence of the court and jury for the purpose of identification until the circuit attorney had time to disguise them, and until he was permitted to first cross-examine the witnesses. (6) The court' erred in permitting the circuit attorney to call Officer Anton after the case had been closed on both sides, against appellant’s objection, and in allowing said officer to testify that “when arrested appellant’s pants were open and he had his penis in his hand.” Craighead v. Wells, 21 Mo. 404; Babcock v. Babcock, 46 Mo. 243. (7) The court erred in refusing to give, an instruction touching the appellant’s good character and reputation. Revised Statutes, 1889, sec. 4208; State v. Mathews, 20 Mo. 55; State v. Harcly, 7 Mo. 607; United States v. Means, 42 Fed. Rep. 599; Jackson v. State, 51 N. W. Rep. (Wis.) 89; State v.'Palmer, 88 Mo. 568; State v. Banks, 12> Mo. 592; State v. Branstetter, 65 Mo. 149. (8) The court erred in declaring the law of the case to the jury in instruction number 4. State v. Perkins,, 11 Mo. App. 82; State v. Cunningham, 100 Mo. 382. (9) The court erred in giving instruction number 5.</p> <p>(1) The first error suggested in the motion for a new trial is the overruling of the application for a continuance. There was no exception saved to the action of the court. State v. Stevenson, 93 Mo. 91. (2) The motion also suggests error in the empaneling of the jury, permitting prejudiced persons to be selected over appellant’s objection'; also, improper conduct of the circuit attorney in his closing argument; also, misconduct of the jury. There is nothing in the record to sustain these suggestions of error. Allegations made in a motion for a new trial are not self-probative. State v. Hultz, 106 Mo. 41. (3) The seventh suggestion of error, that the court erred in admitting evidence offered by the prosecution against the objection of appellant, is not well made. State v. Adams, 108 Mo. 208; State v. Porter, 26 Mo. 201; State v. Parker, 106 Mo. 217. (4) The court did not err in excluding evidence offered by defendant. State v. Botiglass, 81 Mo. 234; State, etc., v. Leland, 82 Mo. 231. (5) The instructions properly declared the law.</p>

Mandamus. (1) Mandamus is a proper remedy to test the right of relator to the possession of the property committed to his charge by the Stoddard court as its executive officer, or its hand; and more especially is this true under circumstances of a case where the contest is between two courts of co-ordinate jurisdiction involving priority of right and over which this court alone by the terms of the constitution has supervising and superintending control.

— Hon. W. S. Herndon, Judge. (1) The verdict was against the evidence, and was clearly the result of passion or prejudice. State v. McNamara, 100 Mo. 117, and authorities cited. (2) The court erred in failing to instruct the jury as to manslaughter. State v. Gassert, 65 Mo. 352; State v. Wilson, 98 Mo. 440; State v. McKinsie, 102 Mo. 620. It is the duty of the court to give proper instructions, .whether they áre asked or not.

— Hon. E. M. Hughes, Judge. (1) The trial court failed to specify of record the ground of new trial, and the order granting a new trial should, therefore, be reversed. The statute, as amended by the laws of 1887, provides that “every order allowing a new trial shall specify of record the ground or grounds on Which said new trial is granted. ’ ’ Revised Statutes, section 2241. • Such provision is not permissive but mandatory.

Louis Criminal Court. — Hon. Hgnrt L. Edmunds, Judge. ' (1) The conversation between Brown and defendant’s mother in regard to the watch and chain in question was properly excluded. It' was an effort to-introduce the admission of a third party that he had committed the offense charged, such admissions by a third party are not competent. State v. Evans, 55 Mo. 460; State v. Duncan, 116 Mo. 288.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. Robbery in the first degree is the charge in the indictment, on which charge the defendants were convicted and their punishment assessed at five years imprisonment in the penitentiary.

— Hon. R. E. Roy, Judge. (1) The juror Abram Bird was not qualified to serve as a juror in this cause. He had prejudged the question of defendant’s former conviction, having served as a juror in the former case, wherein the indictment in this cause charges the defendant was convicted of the felony of “assault to kill.” At the time of'his voir clire examination, the identity of Abram Bird with the Abraham Bird who served on such former jury was not known to defendant.

— Hon. John E.. Byland, Judge. (1) The uncontradicted testimony of all the witnesses, save the defendant, presents a case of murder in the first degree, and establishes the guilt of defendant of that offense beyond all question, and the court was-authorized under that testimony to submit the question of defendant’s guilt or innocence to the jury, and hence the suggestion of appellant’s counsel in their motion for a new trial, that the verdict is against, and unsupported by,…

— Hon. John E. Ryland, Judge. The court below committed error in not giving the jury an instruction for common assault, whether asked ■or not, when the defendant’s evidence was that he ‘•shot to scare them and not to kill them.” The trial ■court erred in refusing to grant a new trial, when its attention was called to the neglect to give an instruction for common assault in the motion for a new trial. State v. Banks, 73 Mo. 592; State v. Murphy, 14 Mo.

— Hon. C, C. Bland, Judge. The errors complained of by defendant are: First. Admitting illegal and irrelevant testimony on the part of the state, especially the incompetent testimony of Ed. Hoard. Second. Defendant did not have forty-eight hours to challenge the jury as shown by the record, only having forty-two hours, when he was forced into trial. Third.

<p>1. Public Officer: contract for sale of unearned salary: .public policy. A contract by a public officer for the sale and collection of his unearned salary is against public policy, and void.</p> <p>2. -: -: -: embezzlement. Such contract being void, the officer malting it will not be guilty of embezzlement because of collecting the salary as agent of the party with whom he contracueul and converting it to his own use, since the void contract did noi divest him of the right to collect for himself and in his own right.</p>

— Hon. Jno. W. Wofford, Judge. ■ (1) The court erred in refusing to give instructions numbered 9 and 9a of the instructions asked by defendant. They properly stated the law as to the defense of an alibi. 2 Thompson on Trials, sec. 2440; McLain v. State, 18 Neb. 160; Campbell v. People, 109 111. 565; State v. Edwards, 109 Mo. 315.

'Appeal from Montgomery Circuit Court. — Hon. E. M. Hughes, Judge. (1) The indictment is insufficient. It should allege the age of the girl and it or the record should read, “Sworn and charged to inquire into and for the body of Montgomery county.” State v. Broolcs, 94 Mo. 121; State v, Freeman, 21 Mo. 481; State v, Vincent, 91 Mo.- 665. (2) It was error to allow the witnesses, Appling, MacMahan and Bellamy to testify to the reputation of the prosecutrix.

— Hon. B. E. Turner, Judge. (1) The judgment of conviction is not supported by the evidence; the former conviction was not proved. State v. Brown, 115 Mo. 409; Greenleaf on Evidence, sec. 375. (-2) It was error not to permit defendant to prove the addition made to his judgment by justice Helms. Smith v. Chapman, 71 Mo. 218; Norton v. Porter, 63 Mo. 346. (3) The court erred in giving instructions 1 and 2 for the state; no felony was proved.

— Hon. James Gibson, Judge. (1) The court erred in permitting defendant to read in evidence section 848 of ordinance numbered 41982. Railroad v. Mills, 11 American and English Railroad Cases, 128. (2) The court also erred in permitting defendant to prove how crossings at Ninth and Walnut streets were usually made.

— Hon. J. W, Wofford, Judge. (1) The indictment is bad for duplicity, and charges no crime. The court erred in n'ot sustaining the defendant’s demurrer to the indictment. United Slates v. Ntmnemacker, 7 Biss. 129-131; Jackson v. State, 11 Ohio, St. 101; State v. Berrman, 8 Nev. 262; Staler. Burt, 61 N. 0. 619.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The directors of a corporation occupy a fiduciary position.. They are trustees and agents of the corporation and stockholders. In general they are governed by the same rules as are applied to trustees. Angelí and Ames on Corporations [11 Ed.], sec. 312,pp. 344, 345; Patrick v. Gas Light Co., 17 Mo. App. 462; Chouteau v. Allen, 70 Mo. 338; Bent v. Priest, 86 Mo. 475; Brewster v. Stratman, 4 Mo.

— Hon. E. L„, Edwards, Judge. (1) ' Defendant’s' objection to the introduction of any evidence should have been sustained. The petition does not state a cause of action, for at least two reasons: First. It shows upon its face, that the servants running and operating the train which jumped the track and injured plaintiff, were fellow servants, with plaintiff. Summerbaysv. Railroad, 2 Col. 484;. Hotvv. Railroad, 8 Kan. 642; Rohbackv.

— Hon. Joseph Cravens, Judge. (1) The discrimination against personal property employed in banking, and in favor of other personal property not so employed as a necessary consequence, by the local authorities charged with the administration of the revenue law, was a palpable violation of the constitution, under which taxation is lawful only in proportion to the real value of the property taxed, and only'when uniform upon the same class of subjects, and only when in pursuance…

<p>1. Deed: color of title. A sheriff’s deed conveying the interest of one who never had title and the deed of the sheriff’s grantee amount only to color of title.</p> <p>2. Practice: action at law: trial by court:, instructions. Where the evidence is conflicting in an action' at law tried by the court without a jury, instructions should be given and refused, the same as if the trial had been by jury, in order that the appellate court may see the theory of law, upon which the trial court proceeded and how it found the facts.</p> <p>3. -: -: - — : -. Where this is not done, the trial court should pursue the practice prescribed by Revised Statutes, 1889, section 2135, and state in writing its conclusions of facts found separately from tho conclusions of law.</p> <p>4. Landlord and Tenant: estoppel: fraud. While a tenant cannot, as a general rule, dispute his landlord’s title, such estoppel does not apply in those cases where the tenant was induced by force, fraud or misrepresentation to enter into the lease.</p> <p>5. -: -: -ejectment. A plaintiff in ejectment may rely upon an equitable estoppel for the purpose of defeating a defense based upon the statute of limitations.</p>

— Hon. John A. Hockaday, Judge. (1) A negotiable note is a courier without luggage, whose countenance is its passport. Keck v. Brewing' Co., 22 Mo. App. 187, and authorities there cited. (2) Even if Bush knew that Jennings had a contract with Chase that if his company did not supply the books when called for, his note was to be voi'd, this could not affect Bush’s legal right to a verdict in this case.

— Hon. J. H. Slover, Judge. Plaintiff, Mr. Thomas Burke, had judgment in the circuit court for damages for defendant’s appropriation of his land. Defendant appealed.

— Hon. R. H. Field, Judge.- (1) The court erred in refusing instructions asked 'by plaintiff, numbered 1 to 7 inclusive, and also erred in giving instructions 1 to 15 of its own motion. .(2) 'The law presumes that plaintiff was free from negli.gence, and in the exercise of ordinary care-at the time of the injury; there was no evidence to the contrary. Hence the court erred in giving the instruction numbered 13.

— Hon. R. H.. Field, Judge. (1) Fraud must be affirmatively proved as alleged., 1 Beach, on Modern Equity Jurisprudence, p. 72, sec. 71; Ryan v. Hitchcock, 43 Mo. 527; Marksbmy v.. Taylor, 10 Bush, 519. It cannot be left wholly to-inference or even principally to conjecture. (2) The-wrongful acts charged against Flanders, if true, positively amount to a crime. Therefore, the presumption of innocence prevailed with as much force as if this-were a trial upon an indictment.

..Appeal from Moniteau Circuit Court. — Hon. E. L. Edwards, Judge. (1) The petition does not state a cause of action 'under the law in road cases. Railroad v. Young, 96 Mo. 41; Fisher v. Davis, 27 Mo. App. 324.

— Hon. E. L. Edwards, Judge. (1) The courts of this state regard the “intention” •of the owner of a homestead when determining whether a homestead has been abandoned. Buffey v. Willis, 99 Mo. 132, and cases cited. (2) Actual, physical occupancy as a home of the premises, claimed as a homestead by the party claiming the homestead, is not in all cases necessary. BusJce v. BusJce, 51 Mich. 541; Blwn v. Garter, 63 Ala. 240.

Louis City Circuit Court. — Hon. Jas.E., Withrow, Judge. (1) The deed of trust of defendant to Tracy was-in its nature a voluntary conveyance, because half of the entire amount it was given to secure was for the individual debt of John Ring, the president of the-. ■■defendant company. The defendant at the time was in embarrassed circumstances, and was immediately ■ afterwards unable to meet its maturing obligations.

Habeas Corpus. (1) The object and purpose of this imprisonment is to coerce the payment of a debt through a levy: Imprisonment for debt has been abolished in this state. Constitution of Missouri, art. 2, sec. 16; Bobert v. Stoner, 18 Mo. 484; Coughlin v. Ehlert, 39 Mo. 283; Ex parte Grenshaiv, 80 Mo. 447; Mallory v. Fox, 20 Fed. Rep. 409; The Blanche Page, 16 Blatch. 1.

Louis Court of Criminal Correction.— :Hon. J. R. Claiborne, Judge. (1) The office of insurance superintendent is one created by statute, and he can giant a license only to» those whom the statute designates, and his license-issued to any other is a nullity. McCreary v. Rhodes,. 63 Miss. 455; People v. Davis, 45 Barb. 494; Stale v.. Hill, 52 N. J. Law, 326; Fort v. State, 18 S. E. Rep. (G-a.) 14.

— Hon. E. L. Edwards, Judge. The court erred in refusing instructions numbered 1 and 2 as asked by defendant. That land formed by accretion belongs to the owner of the contiguous tract to which the accretion is made, is a fundamental principle. Land not originally riparian becomes so when the river has reached it by gradually washing away all the intervening land. Welles v. Bailey, 55 Conn. 292.

— Hon. E. M. Hughes, Judge. (1) The first instruction given for plaintiff is clearly erroneous. The plat book and deeds read in evidence by plaintiff instead of showing the legal title to the land is dispute to be vested in plaintiff unequivocally show that it is not so vested. (2) Defendant’s instruction in the nature of a demurrer to the evidence ought to have been given. (3) The failure to describe the land therein renders the verdict and judgment bad and incurable.

<p>1. Presumption: debtor: possession op obligation. Ordinarily a presumption of payment arises from the fact of possession by a debtor of the obligation executed to his creditor.</p> <p>2. -: -: -. Where it appears, however, that the debtor had the opportunity of obtaining possession or canceling the obligation otherwise than by its payment, the presumption does not arise.</p> <p>3. Parent and. Child: presumption op paymbmt: possession op note. Where a son takes his aged, enfeebled and demented father to his home and cares for him there until his death, the possession by the son thereafter of a matured note and deed of trust owing by the son to his father when the latter went to live with him, raises no presumption of payment.</p> <p>4. -: note: credits: presumption. Where, in an action to foreclose such deed of trust, there is no evidence that certain credits on the back of the note were in the handwriting of the deceased, it is error to instruct that all the credits are to be taken and considered as correct, and that the amounts were so paid and the burden to prove the contrary was on plaintiff.</p> <p>5. -: -: -: -. The son in such case is not entitled to any credit on the notes until he shows the absolute fairness of the transaction and that his father fully understood what was done.</p> <p>6. -: -: presumption. Where, in such action, there is evidence that the deceased gave his son a note after he went to his house, it is error to instruct that if deceased executed said note the law presumes the son was not indebted to his father and the burden is on the plaintiff to prove such indebtedness.</p> <p>7. Practice: presumption: jury. Where the presumption is one of fact, the inferences are to be’drawn therefrom by the jury.</p> <p>8. Parent: services op son: presumption. A son cannot recover for taking care of his aged and infirm father, unless he shows a state of facts which overcomes the natural presumption that he did not intend to charge for such services.</p>

— Hon. C. A.. Anthony, Judge. (1) The court erred in finding for Deitz and. Uenirim, as to the twenty-five shares of stock embraced in certificate number 28, and in refusing to enforce plaintiff’s lien thereon, for the following reasons: First.

— Hon. D. P„ Stratton, Judge. (1) The defendant’s by-law, making all transfers of stock subject to the.lien of the company for indebtedness of the holder, was valid as a proper restriction upon the transfer. Spurlock v. Railroad, 61 Mo. 319, and cases cited; 25 Mo. App. 642; Ins. Co. v. Goodfellow, 9 Mo. 49; Bank v. Bank,. 45 Mo. 513.

— Hon. E. M. Hughes, Judge. (1) The verdict is not against the law or the evidence. It is abundantly supported by the evidence. Plaintiff and the witness McAlister both testified that in March, 1887, when the shares were sold they were worth seventy cents on the' dollar. (2) The court did not admit incompetent or improper testimony offered by plaintiff.

JError to JDeKalb Circuit Court. — Hon. O. M. Spencer,, Judge. (1) There was no question in the cas.e that Lewis Hamer was the common source of title. It was not necessary for the plaintiff to show title in him. Finch v. VUmcm, 105 Mo. 263. (2) The court had no jurisdiction over the subject-matter of the action. General Statutes, 1855, p. 1231, sec. 10; Abernathy v. Moore, 83 Mo. 69; Henderson v. Henderson, 55 Mo. 544; Hope v. Blair, 106 Mo. 92.

— Hon. Jas. H. Lay, Judge. Under an indictment charging manslaughter in the second degree for killing Samuel Keene. Tried, he was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the penitentiary for the term of two years. The deceased, defendant and some others were riding on horseback along the public road leading from Butler toward their respective homes on Friday, the eleventh of March, 1892.

— Hon.'James Hibson, Judge. (1) The referee and the court erred in charging Mr. Potts interest on properties to September 8. Potts had paid out large sums on the properties and in their preservation. The item represents a return of some portion of his advances. He was not chargeable with interest thereon. Williams’ Adm’r, v. Heirs of Pettigrew, 62 Mo. 460; 11 Central Law Journal, pp. 285, 306, 324; In Matter of Estate of Campbell, 6 Mo. App. 563.

<p>The doctrine announced in the case of Moss v. Mailroad, 111 Mo. 18,. reaffirmed.</p>

— Hon. J. L. Thomas, Judge. The objection to the acknowledgment was purely technical. The title was in the wife, and while it may be admitted that the law of this state in force at that time, required the wife to be examined “separate and apart from her husband,” yet this defect was not available to defendant, unless he was a purchaser for a valuable consideration.

— Hon. E. M. Hughes, Judge. (1) The action of the court in sustaining a demurrer to the evidence on the first issue is contrary to the evidence and every circumstance in the case.

■ Appeal from Gasconade Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The act of the gexxex*al assembly passed at its extx*a session convexxed May 11, 1887 (Acts Extx*a Session, 1887, pp. 14, 15), is unconstitutional axxd void. The general assembly had no power or authority to pass the act at such extra sessioxx. Wells v. Railroad, 19 S. W. Rep. 530.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The trial court erred in admitting, against defendant’s objections, the testimony that the marble trade would understand defendant’s order to mean that the pieces were not to be of the required thickness when polished, that the plaintiffs so understood the order, and that plaintiffs were under no obligations toN fill any more of the order than they saw fit.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The statutes of fraud may be waived, and, therefore, to take advantage thereof it must be pleaded. McGowen v. West, 7 Mo. 570; Farrar v. Patton, 20 Mo. 81; Aultman v. Booth, 95 Mo. 383. (2) Bunte having purchased with knowledge of previous sale, is not a purchaser in good faith, and stands in no better position than Goerger. Maybee v. Moore, 90 Mo. 340.

— Hon. E. M-Hughes, Judge. (1) The facts stated in the plaintiff’s petition-, should be clear, definite and positive, such as to leave no room or, reasonable grounds for hesitancy, in the mind of chancellor, as to his right to recover. Defendant’s demurrer should have been sustained. Forristerv. Scoville, 51 Mo. 268. Hagman v. Shaffner, 88 Mo. 24.

— Hon. O. M. Spenoee, Judge. (1) The court erred in overruling the motion to strike from the record the petition of interplea filed by Gibson. Camden v. Plain, 94 Mo. 117. (2) If, under the will of her husband, Nancy Barger took the fee in said lands, then the money arising from the sale thereof became her absolute property.

— Hon. Joseph 'Cravens, Judge. (1) Defendant made the first lawful entry on the land in question, under a general grant from the United States, took possession of it and has ever since used it for the purposes of the grant, having perfected its original entry in conformity with the terms of such grant. Act of Congress, March 3, 1875. (Supplement to U. S. Revised Statutes, 1874-1881, p. 187.

— Hon» Thos. H. Bacon, Judge. (1) Plaintiff was the assignee for the value of a note for the purchase money of the real estate in controversy. The lien of the vendor of the land, to-wit,. Wm. A. Hunt, for his purchase money, passed to plaintiff, the legal holder of the note, and she had the right, to enforce such lien. Sloan v. Campbell, 71 Mo. 388,.

The motion to affirm for failure to prepare and file in this court a sufficient abstract is justified by the-following authorities: Long v. -Long, 96 Mo. 180;. Jayne v. Wine, 98 Mo. 404; Craig v. Scudder, 98 Mo. 664; Clarh v. Fairley, 100 Mo. 236; Snyder v. Free,. 102 Mo. 325; Thompson v. Allen, 107 Mo. 480; Cunningham v. Railroad, 110 Mo. 208; Garrett v. Coal Co.,. Ill Mo. 279.

— Hon. J. M. San- ■ dusky, Judge. (1) The court erred in appointing thecommis•sioners, against the objection of the defendants that the crossing at Grillis street in the manner proposed in the petition would materially interfere with the use of the railroad and property of the defendants, contrary to sec. 2741 of the Revised Statutes, and in denying the defendants a hearing on this question.

— Hon. John A. Hockaday, Judge. (1) The indictment is certainly not sufficient to inform the defendant what he is charged with. If the words are taken in regular order they have no meaning and cannot be understood to mean anything.

<p>Appeal from Clinton Circtiit Court. — Hon. James M. Sandusky, Judge.</p> <p>(1) The court erred in admitting in evidence the record of the county court to prove the appointment of Baubie and the facts authorizing his appointment. 1 Wharton on Evidence [1 Ed.], page and section 639; Haile v. Palmer, 5 Mo. 403; Lathrop v. Baubie, 106 Mo. 470. (2) Unless the deed to McDaniel and the entry in the county court records rest in Baubie the legal title to the northwest quarter and west half of the northeast quarter, of section' 23, township 57, of range 30, the judgment is for the wrong party. The deed vests the legal title in the beneficiaries and only gives to McDaniel and his successors authority to sell and convey lots and out lots in the name of the “ Cameron Town Company;” Ellis v. Fisher, 65 Am. Dec. 52; Coulter .v. Robinson. 57 Am. Dec. 168; Hooberry v. Harding, 3 Coop. Ch. 680; Kay v. Scates, 78 Am. Dec. 389; Pughv. Hayes, 113 Mo. 424; Revised Statutes, 1855, see. 1, p. 354. (3) The land sued for is neither a lot nor out lot. The authority to sell land not laid off into lots or out lots is given by a distinct provision in the deed; and is dependent upon the conditions enumerated in the provisions. None of them were complied with. (4) The decision in the case of Lathrop v. Baubie, 106 Mo. 470 is an anthority for the positions assumed herein.</p> <p>(1) The appointment of Baubie by the county court was in strict conformity with the power contained in the -trust deed and was not against any principle of public policy. (2) A stranger cannot attack such appointment in a collateral proceeding. (3) The fact that a part of the owners of the land upon which the town of Cameron was laid out and platted, sold their interest to Croysdale constitutes no defense to this suit. (4) The defendant admits that Samuel and McCorkle are the common source of title. Plaintiff, having shown title emanating from the common source, is entitled to recover, unless defendant shows a better title from the common source. Miller v. Hardin, 64 Mo. 545. (5) It is an established principle that in ejectment suits where both litigants claim title through the same third party, it is sufficient for the plaintiff to deduce title from the common source. Broivn v. Brown, 45 Mo. 412; Fellows v. Wise, 49 Mo. 350; Bank v. Maynard, 51 Mo. 548; Holland v. Adair, 55 Mo. 40; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545.</p>

Certified from St. Louis Court of Appeals. (1) The defendants McCabe and McKeag were not entitled, under the evidence in this case, to the assesment of any damages upon the dissolution of the injunction, either as counsel fees or otherwise. Buford v. Keokuk Northern Line, 3 Mo. App. 159; St. Louis v. Alexander, 23 Mo. 483; Bircher v. Parker, 40 Mo. 118; Uhrig v. St. Louis, 47 Mo. 528.

— Hon. W. H. Brownlee, Special Judge. (1) The court erroneously and improperly permitted the jurbrs to separate at the noon recess, and also at the recess in 'the evening for supper. The separation of the jurors at the end of the trial could not be authorized by the tíonsent of the parties. McLean v. State, 8 Mo.' 153; State v. Collins, 81 Mo. 652; State v. Murray, 91 Mo. 95; State v. Gray, 100 Mo. 123; Whitney v.-State, 8 Mo. 165; State v. Orrick, 106 Mo.

— Hon. Jambs M. Sandusky, Judge. (1) We contend that Clark and Swike were, ■engaged in a conspiracy to defraud Swike’s creditors. If a prima facie case of conspiracy has been made out by all the facts and circumstances in proof, then the independent statements and admissions of Swike are admissible and should not have been excluded from-the consideration of the jury.

<p>1. Specific Performance: contract to adopt child : equity. A. court of equity will decree specific performance of a valid agreement by a testator or intestate to adopt one as a child and to make a settlement of property in consideration of personal services rendered,, but it will only do so where such services have been fully and faithfully performed.</p> <p>2. '-: -: evidence. The burden is on the person claiming the benefit of such contract to establish it by clear, cogent and convincing evidence.</p> <p>3. -: -: -. Proof of casual remarks, made from time to time by1 the alleged promisor, but not in the presence of the plaintiff, are insufficient to establish the agreement.</p> <p>4. -: witness: death on one contracting party. One claiming under such contract is, where the other party is dead, incompetent to-testify in an action to enforce the sainé.</p> <p>5. -: -: -. Where it is sought to use such witness in-. rebuttal as to matters occurring since the appointment of the administrator of the decedent, the offer of the evidence should be confined to such subsequent matters.</p>

-. — Hon. A. M. Woodson, Judge. (1) If the statute governing cities of the second class applies, and it certainly does, the plaintiff city has legal capacity to sue and maintain this action for the collection of delinquent taxes which accrued to the city before it became a city of the second class, and the third ground of defendant’s demurrer was not well taken and should have been overruled.