Volume 124 — Missouri Reports

Louis Criminal Court.—Hon. H. L. Edmunds, Judge. (1) The court erred in refusing to sustain defendant’s challenges to jurors Lenard Meyer and Luther S. Taylor. R. S. 1889, sec. 4197; State v. Bryant, 93Mo. 273. (2) The court erred in allowing several prisoners charged with various offenses to plead guilty in the presence of the jury called to try this appellant, against appellant’s objection at the time.

—Hon. C. H. 8. Goodman, Judge. (1) The partition sale ordered by the Atchison circuit court was “for cash in hand.” It was the duty of the sheriff of DeKalb county to collect the purchase price at the time of the sale, and if it was not paid, to resell the land. G-. 8. 1865, 614, sec. 31; Icl., 645, secs. 45,46; Hewitt v. Lally, 51 Mo. 93; Goode v. Croiv, 51 Mo. 212.

<p>The judgment in this ease was affirmed upon the authority of Burden, ■ v. Taylor, ante, p. 12.</p>

—Hon. James H. Lay, Judge. (1) The affidavit of nonresidence was sufficient to authorize the making of the order of publication. R. S. 1879, sec. 3494; Burnett v. McCluey, 92 Mo. 230; Allen v. Bay, 96 Mo. 592. (2) Moreover, the judgment recites that the court found that the defendants had been duly notified by publication, etc., and this can not be questioned collaterally, as in this ejectment.

Transferred from St. Louis Court of Appeals. (1) Cheeks are negotiable instruments and are transferable by indorsement and delivery. Tiedeman, on Com. Paper, secs. 430, 440; Edwards on Bills, p. 84; 2 Daniel on Neg. Inst.','secs. 1582, 1651; Morse on Banking, 255; Robertson v. Coleman, 141 Mass. 231; Little v. Bank, 2 Hill, 425; Stephens v. McNeill, 26 Barb. 656; Fuller v-. Hutchings, 10 Cal. 523; Merchants’ Bankv. Sav. Inst., 33 N.,J;.. Law, 170; Burns v. Kahn, 47 Mo.

Louis City Circuit Court.—Hon. L. B. Yalliant, Judge. (1) The homestead law in force in 1872, vested the fee simple title in Regina Schorr, testator's widow, and the court, therefore, erred in refusing defendant's instruction. Slcouten v. Wood, 57 Mo. 383; Gragg v. Gragg, 65 Mo. 343; Kaes v. Gross, 92 Mo. 647; Rock-hey v. Rockhey, 97 Mo. 76; Case v. Mitsenbu/rg, 109 Mo. 311.

—Hon. C. H. 8. Goodman, Judge. (1) The trial court, after it had rendered final judgment and overruled motions for new trial and in arrest and entered an order granting an appeal, could not legally set aside the judgment. The question is analogous to those arising on changes of venue.

—Hon. G-. D. Burgess, Judge. (1) The mere fact that the brake-staffs were removed from the nine. cars of steel, did not make out a prima facie case of negligence against the defendant. Bowen v. Railroad, 95 Mo. 268; Taller v. Railroad, 93 Mo( 79; Wood on Master and Servant [2 Ed.], sec. 346; p. 708; Randall v. Railroad, 109 U. S. 478; Railroad v. Hughes (Pa.), 33 Am. and Eng. Railroad Oases, 348.

—Hon. O. D. Bus-. g-ess Judge. (1) The verdict is fully sustained by the evidence. (2) Plaintiff’s instruction number 2 correctly stated the law. Jones on Chattel Mortgages, sec. 56; StonebraTcer v. Ford, 81 Mo. 532; Chandler v. West, 37 Mo. App.635. (3) Besides, defendant’s second instruction presented the same theory of the case as did plaintiffs’ second one and the defendant can not, now -complain of error in plaintiffs’ instructions.

—Hon. I. C. Dempsey, Special Judge. (1) The court erred in applying the credit of $695.50 (representing the wheat transaction) on the purchase price of the farm.

Louis City Circuit Court.—Hon. L. B. Yalliant, Judge. (1) There is no evidence to support the verdict. This court will look into the record to ascertain this, and, if it so find, will reverse the judgment. Schooling v. Ilailroad, 75 Mo. 518; Ilaclcer v. Broivn, 81 Mo. 68. (2) It was error of the trial court to permit expert testimony to be introduced to show that the effect of a knot in a piece of lumber was to weaken it. Rogers on Expert Testimony, sec. 6, p. 19; Gutridgev.

Charles Circuit Coivrt.—Hon. W. W. Edwards, Judge, (1) The statute under which this suit is brought must be equitably construed. Secs. 2092, 2093. The plaintiff mur.t come into court with clean hands and a fair case. (2) Plaintiff’s possession was not in good faith, but illegally obtained for the purpose of forcing the burden of proof of title on the defendant. The court committed error in refusing to give defendant’s instruction.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. Held: that, where a wife is riding with her husband in a private vehicle, and is injured by reason of his careless driving, his negligence will not prevent a recovery by her against a third person whose concurring negligence was the proximate cause of the injury. Railroad v. Greek, 14 L. R. A. (Ind. 1892) 733; Shaw rv. Kraft, 37 Fed.

—Hon. M. G. Mc-Gregor, Judge. (1) There can be no question as to the power of the city to establish a general sewer system. R. S. 1889, sec. 1544. The city exercised the power by ordinance. The city may condemn land for sewer route. R. S. 1889, sees. 1524 and 1544, ordinance number 119.

—Hon. C. H. S. G-oodman, Judge. (1) The petition does not state a cause of action and the court erred in overruling defendant’s objection to the introduction of any evidence by the plaintiff, because, as against its employees, defendant was under no duty to fence its road.

Louis City Circuit Court.—Hon. James E. Withrow, Judge. (1) The objection to the introduction of testimony under the petition should have been sustained, because there is no averment therein, charging that a dividend had been declared by the board of directors of the defendant company. Until that is done, the relation of debtor and creditor does not subsist between the corporation and its stockholders. Cook on Stock and Stockholders, sec. 544.

—Hon. C. A. Anthony, Judge. (1) The court below erred in finding for the defendant for the reason that the equitable title of defendants Julia, E. and O. W. Buckin the property in controversy was subject to attachment, execution and sale. Revised Statutes, 1889, sec. 4915; Edcly v. Baldwm, 23 Mo. 588.

—Hon. 0. A-Anthony, Judge. (1) No notice whatever having been given of the accident or injury, the claim, if one ever existed, is invalidated and no recovery can be had in this case. 2 May on Ins. [3 Ed.], secs. 460,465; Laforcev. Ins. Co.T 43 Mo. App. 527; TrasTte v. Ins. Co., 29 Pa. St. 198; Ins. Co., v. Kyle, 11 Mo. 289; Reynolds v. Association, 1 N. Y. Supp. 738.

—Hon. Rudolph Hiezel, Judge. The following axe the instructions given and refused in the case of Berry v. Bailroad, as called for in the opinion of Judge Sherwood, infra. Given at plaintiff’s request: “1.

Louis County Circuit Court.—Hon. W. W. Edwards, Judge. (1) There is no evidence sufficient to support the judgment. Plaintiff’s own testimony conclusively shows contributory negligence and that the wagon wheel broke in consequence of making too short a turn and not by reason of coming in contact with the iron pillar at all— a thing it was mechanically impossible for -plaintiff to accomplish.

Charles Circuit Court.—Hon. W. W. Edwards, Judge. (1) If Nancy Irvine had acquired anything from John Howell’s estate, it would have been by devise and not by inheritance. She was not responsible on the breach of warranty in Howell’s deed. Sauer v. Griffin, 67 Mo. 654; 4 Kent’s Com. [11 Ed.] p. 464; Keenv. Watson, 39 Mo. App. 172.

Louis City Circuit Court. (1) It is a well settled rule of law that an estate in remainder, to parties who may come in esse, may be partitioned. Beinders v. Koppebnann, 68 Mo. 482; Wills v. Slade, 6 Ves. Ch. 498; 1 Story on Equity Jurisprudence [13 Ed.], sec. 656a; Mead v. Mitchell, 17 N. T. 210; Jenkens v. Fahey, 73 N. Y. 355; R. S. 1889, see. 7136. (2) An estate in remainder may be partitioned during the life of the life tenant.

Louis City Circuit Court.—Hon. D. D. Fisher, Judge. The defendant Tittman, being public administrator of the city of St. Louis in the year 1888, was ordered by the probate court to take charge of Mrs. Garrison’s estate. The only'asset of the estate consisted of the amount due Florence from her trustee Branch, which, at the time, was somewhat over $20,000.

—Hon. Andrew Ellison, Judge. (1) The crime charged is a statutory offense, and the guilt of the defendants depends solely upon the intent or purpose they had in view in stopping the train. Sec. 3588. (2) A penal statute is construed liberally as in favor of a defendant, and strictly as against him. And no person is to be made subject to such statutes by implication. State v. Bryant, 90 Mo. 534.

—Hon. D. W. Shackleford, Judge. (1) The court erred in the matter of giving instructions. (2) The wife of defendant was an incompetent witness. State v. Arnold, 55 Mo. 89; State v. Willis; 119 Mo. 185. (3) The court erred in permitting proof of a different assault than the one on trial. (4.) The court erred in permitting proof of the former indictment.

—Hon. J. C. Lamí son, Judge. (1) The verdict was against the evidence and was the result of prejudice or passion. Statev. McNamara, 100 Mo. 100, and authorities therein cited. (2) The court erred in failing to properly .define or tell the jury what a-“heat of passion” is. Statev. McKimie, 102 Mo. 620.

—Hon. D. W. Shackleford, Judge. (1) The statements of deceased and his wife were not competent as dying declarations. State v. Simon, 50 Mo. 370; State v. Johnson, 118 Mo. 491; Motherly v. Com., 19 S. W. Rep. 977. (2) The defendant ought to have been permitted to prove that a few days before the shooting he had caused the deceased to be arrested for the purpose of binding him to keep the peace toward defendant.

—Hon. E. M. Hughes, Judge. (1) The indictment does not charge that the assault complained of was made with a felonious intent, nor with an intent feloniously to kill. For that reason, it is defective. State v. Clayton, 100 Mo. 516; State v. Davis, 26 S. W. Rep. 568; 3 Chitty’s Crim. Law, p. 828; 2 Bishop’s Crim. Proc., secs. 77, 651, 652, 653, 654.

<p>Criminal Law: appellate practice. Where there has been no bill of exceptions filed, and there is no error in the record proper, the judgment of the trial court will be affirmed.</p>

—Hon. E. J. Bboaddus, Judge. (1) The indictment is defective and insufficient. R. S. 1889, sec. 3126. (2) The circuit court of Clay county had no jurisdiction of the case. The- court .should have sent “a transcript of the record and proceedings in the cause, including the order of removal and the petition therefor.” R. S. 1889, sec. 4166.

—Hon. D. W Shackleford, Judge. (1) tfhe indictment is sufficient. Sec. 3795, R. S. 1889. (2) Defendant assigns in his motions for new trial as one of the errors alleged to have been committed, the overruling of his application for a continuance, but bas since evidently abandoned it for he has failed to preserve it in his bill of exceptions, or to save any exceptions to the action of the court in overruling same.

—Hon. William S. Herndon, Judge. Murder iu the first degree was the accusation against defendant, and on that he was found guilty of the second degree of that crime, and his punishment fixed at ten years in the penitentiary, and he appeals to this court. The homicide of which defendant was convicted occurred at Dick Porter’s saloon in the city of St. Joseph on the night of February 27, 1892.

<p>1. Peddler: statute. One going from place to placs selling medicine and delivering the same at the time and place of sale is a peddler within the meaning of Revised Statutes, 1889, section 7211. (State v. Smithson, 109 Mo. 149, followed.)</p> <p>2. --: license: regulation op commerce. A peddler vending single bottles of medicine manufactured in another state and which were taken from a box in which several bottles were separately wrapped and shipped into this state can not invoke the commerce clause of the federal constitution as against Revised Statutes, 1889, section 7211, defining a peddler and imposing a fine for dealing as such without a license.</p> <p>3. -: -: burden of proof. The burden is on defendant to prove his license in a prosecution for peddling without a license.</p>

—Hon. J. C. Lamson, Judge. (1) Upon a trial for murder, threats or declarations of the deceased, that that she intended to commit suicide, are admissible on the part of the defendant, especially when the evidence of the corpus delicti is purely circumstantial.

—Hon. D. P. Stratton, Judge. (1) The indictment sufficiently charges the crime of which the defendant has been convicted. R. S. 1889, sec. 3530. (2) It is charged that the robbery was committed by force and with violence; hence it was unnecessary to charge that the person robbed was put in fear. The judgment, therefore, should be affirmed.

—Hon. Silas Woodson, Judge. (1) The court erred in refusing to permit defendant to prove the peaceable and happy relations of defendant and his wife; what she said as to the cause of her absence from him; and her threats to kill herself; and the reason therefor, and that she 'was an expert in the use of firearms; and was in the habit of carrying a revolver. First. They were proper subjects to be considered by the jury as explanatory of the means and manner of her death.

—Hon. H. C. Riley, Judge. ' (1) This court will not pass upon the sufficiency of the testimony except where there is a total failure of proof, and where it is evident the jury were actuated by prejudice or passion. No such conclusion can be reached by reading the record in this case. State v. Young, 24 ,S. W. Rep. 1038; State v. Banks, 118 Mo. ■117; State v. Hermann, 117 Mo. 629; State v. Moxley, 115 Mo. 644; State v. Burd, 115 Mo. 405; State v. Richardson, 117 Mo. 586.

Appealjrom Ozark Circuit Court.—Hon. W. N. Evans, Judge. This cause must be determined upon the record proper; nothing else is preserved in this court. The indictment follows the language under which it is drawn, clearly, and charges the defendant with the crime of which he has been convicted. R. S. 1889, sec. 3620; State v. Woodioard, 95 Mo. 129.

—Hon. Jas. J. Gideon, Judge. (1) The well established rule in this state is that the bill of exceptions must be filed during the term at which the defendant’s appeal was. allowed, unless otherwise ordered by the court, and that in no event can the defendant file his bill of exceptions in vacation except by permission of the court entered of record. State v. Berry, 103 Mo. 367; Webster Co. v. Cunningham, 101 Mo. 642; R. S. 1889, see. 2168.

Appeal'from Macon Circuit Court.—Hon. Andbew. Ellison, Judge. (1) The indictment in the case is invalid and was so declared by the supreme court prior to December 20, 1893, wherefore, there was no authority in the Macon county circuit court to order the recognizance forfeited or to enforce a forfeiture thereof by scire facias, and the demurrer should have been sustained. State v. Terry, 117 Mo. 377; State v. Cameron, 117 Mo. 371.

—Hon. W. N. Evans, Judge. . Under the statute, bills of exceptions must be filed at the term at which the appeal was allowed, unless, by consent of parties, the court enters an order of record, extending the time for filing the same. R. S. 1889/ sec. 2168.

<p>Appeal from St. Louis Criminal Court.—Hon. H. L. Edmunds, Judge.</p> <p>(1) The court erred in permitting the introduction of the testimony objected to. State v. Wolf 15 Mo. 168; State v. Goetz, 34 Mo. 85; State v.' JIarolcl, 38 Mo. 496; State v. Laubert, 42 Mo. 242; 12 Am. and Eng. Encyclopedia of Law, pp. 843, 855, 878 and cases cited. (2) And the error was not cured by an instruction withdrawing such testimony from the consideration of the jury. State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145. (3) Such testimony is only admissible where the proof of the act charged in the-indictment is dependent upon circumstantial evidence and is in such cases admitted as the best evidence obtainable, there being no direct evidence of the commission of the act charged in the indictment. State v. Moore, 101 Mo. 323; State v. Daubert, 42 Mo. 243; State v. Harr old, 38 Mo. 496; State v. Goets, 34 Mo. 85; 12 Am. and Eng. Encyclopedia of Law, p. 855. .</p> <p>(1) The indictment is in proper from. There is no error apparent upon the record proper. R. S. 1889, sec. 3535. (2) Where the bill_of exceptions purports to contain evidence only -upon certain points, this court will presume that the proof as to all other essential elements of the offense was duly made at the trial. State v. Tucker, 84 Mo. 23. (3) The testimony admitted on the part of the state as to other stolen property being found in defendant’s possession with that charged in the indictment, was competent under the general rule of evidence and the established rule of this court. 3 Greenleaf’s Evidence, sec. 31-; State v. Moore, 101 Mo. *316. (4) The only instruction for review'is that to which exception was saved; the others can not be considered. State v. Day, 100 Mo. 242. Notwithstanding a general complaint against all in the motion for new trial. State v. Beedj 89 Mo. 168; State v. JEtambo, 95 Mo. 462.</p>

—Hon. A. H. Livingston, Special Judge. The appeal in this case must be dismissed. The state is only entitled to appeal in criminal prosecutions in cases where the indictment is quashed, adjudged insufficient on demurrer or where the judgment thereon is arrested. State v. Ashcraft, 95 Mo. 348.

Louis Criminal Court.—Hon. H. L. Edmunds, Judge. (1) The indictment sufficiently charges the offense under the statute. There is no error apparent upon the record proper. R. S. '1889, sec. 3480; State v. Wray, 109 Mo. 594; State, v. Lacey, 111 Mo. 514. (2) A party charged with the offense of rape may be lawfully convicted of an assault with intent to ravish. R. S. 1889, secs. 3940, 3950; State v. Dalton, 106 Mo. 463.

Louis Criminal Cotirt.—Hon. H. L. Edmunds, Judge. It was error for the court to refuse a trial by jury. Constitution, art. 2, secs. 28, 30; R. S. 1889, sec. 2131. The proceeding by scire facias to make absolute a conditional judgment taken against the surety on forfeited bail bond is purely civil and not criminal in its nature, being merely a suit for the recovery of money. State v. Fosey, 90 Ala. 45.

<p>1. Forfeited Recognizance: scire facias : jury. A surety is not entitled to a jury on a scire facias proceeding to enforce a forfeited recognizance. (State v. Soeffnei-, ante, p. 488, followed.)</p> <p>2. Client and Attorney: judgment : compromise. An attorney, in. the absence of express authority to that effect, has no power to compromise his client’s suit, orto satisfy his judgment, without receiving the sum due thereon.</p> <p>3. Forfeited Recognizance: surety: circuit attorney: illegal contract. A circuit or prosecuting attorney, even with the consent of the judge in vacation or at chambers, can not release a surety on a forfeited recognizance' in consideration of a payment to such attorney of ten per cent, of the amount of the recognizance and of all the costs of the prosecution.</p> <p>4. -: -: remittitur. A forfeiture of recognizance can only be remitted by the court in which the forfeiture is taken upon cause shown entered of record.</p>

, Louis Criminal Court.—Hon. H. L. Edmunds, Judge. (1) The court should have granted a trial by jury. “The scire facias upon a recognizance is in its nature a civil1 proceeding, as distinguished from a criminal proceeding.” State v. Woerner, 33 Mo. 216. “It has been -often decided that scire facias is an action; it is also a suit.” Milsap v. Wildman, 5 Mo. 425; Wolff v. Schaeffer, 4 Mo. App. 367; Broten v. Railroad, 37 Mo. 299; Humphrey v. Lundy, 37 Mo. 323.

Louis Criminal Court.—Hon. H. L. Edmunds, Judge. (1) A recognizance taken by an unauthorized officer or person, is null and void, and can not be enforced, either as a statutory or common law obligation. 1 R. S. 1889, secs. 4049, 4123, 4126; 2 R. S. 1889, p. 2149, see. 16; State v. Randolph, 26 Mo. 213'; State v. Nelson, 28 Mo. 13; State v. Watson, 54 Mo.

—Hon. John W. Wofford, Judge. (1) Lyle, being a codefendant, was not a competent witness against defendant. R. S. 1889, sec. 4217; State v. Martin, 74 Mo. 547. (2) The court erred in admitting the evidence as to what Stillwell said as to the person who cut him. Rex v. Benderfield, 14 Cox Crim.

Louis Criminal Cowrt.—Hon. H. L. Edmunds, Judge. (1) The court committed error in excluding the inquiry, in her cross-examination, into Mrs. G-laze-brook’s previous character. Muller v. Association, 5 Mo. App. 401; Bing v. Jamison, 2 Mo. App. 591; s. c., 73 Mo. 242; State v. Baven, 115 Mo. 423. (2) The court erred in refusing to permit the witness Furber to testify because he remained in the court room after the order of exclusion.

—Hon. Silas Woodson, Judge. (1) The evidence of what the. officers did, and the property they found in the clothing of the Miller woman and at her house in the absence of defendants, and when they were in jail was inadmissible and misleading. State v. Wolff, 15 Mo. 168; State v. Castor, 93 Mo. 242; State v. Owsley, 111 Mo. 450; 3 Green-leaf on Evidence, see. 33; Wharton’s Criminal Evidence, sec. 758.

Louis Criminal Court.—Hon. Henry L. Edmunds, Judge. (1) The indictment is in proper form, and there is no error apparent upon the record proper.

<p>Appellate Practice: bill op exceptions. Where no bill of exceptions has been filed with the clerk of the supreme court and no error appears in the record proper, the judgment will be affirmed.</p>

—Hon. j. T. Neville, Judge. (1) Statutes authorizing the exercise of eminent domain are subject to a strict construction, and their, requirements must be strictly complied with. Ellis v. Railroad, 51 Mo. 200; Cunningham v. Railroad, 61 Mo. 33; Railroad v. Campbell, 62 Mo. 585; Rogers v. St. Charles, 3 Mo. App. 41; Blizev. Castlio, 8 Mo. App. 290; Anderson v. Pemberton, 89 Mo. 61; Hopldns v. Railroad, 79 Mo. 98; Leslie v. St. Louis, 47 Mo. 474.

—Hon. E. M. Hughes, Judge. (1) Courts of equity do not grant specific performance of contracts, except upon principles of justice and not as a matter of absolute right. Veth v. Gierth, 92 Mo. 97; Taylor v. Williams, 45 Mo. 80; Fish v. Lightner, 44 Mo. 268. Nor when the performance would render its enforcement harsh and inequitable.

—Hon. E. M. Hughes, Judge. Defendants appeal from a judgment for plaintiff in ejectment. The appeal was submitted to the first division and a decision announced affirming the judgment (24 S. W. Rep. 1033). Later a rehearing was ordered for the reasons indicated in the opinion filed on plaintiff’s motion to set aside that order.

—Hon. T. H. Bacon, Judge. (1) The traveler had the same right upon the crossing as the train had, and it was as much the duty of the train men to keep a lookout as the traveler, enhanced by the greater danger from the machinery used by the defendant. Eswin v. Railroad, 96 Mo. 290; White v. Railroad, 34 Mo. App. 57.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) Courts of equity will not decree specific performance when the decree would do injustice, and, generally, not in any case where it would be inequitable under all the circumstances. 2 Story’s Eq., secs. 769 and 770; Vethv. Gierth, 92 Mo. 104.

—Hon. W. N. Evans, Judge. (1) When the land was attached Thomas had abandoned his home and his family, and his wife having failed to assert her homestead rights, as provided by section 5435, Revised Statutes, her homestead interest was defeated by the attachment and sale thereunder. Blandy v. Asher, 72 Mo. 27.

—Hon. H. C. O’Buy an, Judge. (1) By Ms declarations, acts and dealings, H. C. Kendall released the property of his wife from his marital rights, and the capital and increase thereof became and remained her separate property, and at her death descended to her heirs. Coughlin v. By an, 43 Mo. 99; McCoy v. Hyatt, 0 Mo. 131; Welch v. Welch, 63 Mo. 59; Clark v. Clark, 86 Mo. 114; Botts v. Gooch, 97 Mo. 88; Hart v. Leete, 104 Mo. 315.

Prohibition. (1) A proceeding by a railroad company to condemn land for right of way purposes involves the title to real estate and therefore this court has appellate jurisdiction. Musick v. Railroad, 114 Mo. 309; Railroad v. Lewright, 113 Mo. 660. (2) The right so acquired by the road is not only an interest in the land, but is also an exclusive right to its possession. Railroad v. Peet, 152 Pa.

—Hon. W. I. Wallace, Judge. (1) Ah administrator can not become the purchaser ■ of the trust property. Michaucl v. Girad, 11 U. S. Rep. [Lawyer’s Ed. 1, 92; 2 Story’s Equity [3 Ed.], sec. 1261; 1 Perry on Trusts [2 Ed.], sec. 430; 2 Smith’s Leading Cases [Hare & Wallace, notes], pp. 92, 714; 1 Ilid., p. 208; Thornton v. Irwin, 43 Mo. 163; Grumley v. Well, 44 Mo. 444; Bae v. Copelin, 47 Mo. 76; Lais v. Stenibery, 50 Mo. 124.

—Hon. E. M. Hughes, Judge. (1) A deed, even though void, may constitute color of title. Buswell on Stat. Lim. and Adverse Possession [Ed. 1889], secs. 255 and 259; Bartlett v. Kauder, 97 Mo. 356; Collins v. Rogers, 63 Mo. 515. (2) The court erred in not permitting J. E. Forgey to testify whether or not he took possession of the land under his purchase from Nere Yalle. It was proper to show possession in Forgey under color of title.

Louis County Circuit Court.—Hon. Rudolph Hirzel, Judge. (1) The action abated entirely on the death of Mrs. Senn. The statute which gives the right to sue for the death of a person caused by the negligence of a carrier, fixes the “forfeit” at $5,000. R. S., sec. 4425. This statute creates a new cause of action penal in its character. The recovery must be $5,000 or nothing; and a judgment for a smaller amount will be arrested on motion of the defendant.

Certified from St. Louis Court of Appeals. (1) Ordinance number 11558 provided a reasonable, feasible, safe method and standard for the construction of the sidewalk in question, and compliance with its terms is commanded under a penalty of forfeiture of property, and of personal liberty. Compliance with its terms is in the highest degree essential to the public interest and welfare.

Clair Circuit Court.—Hon. D. P. Stratton, Jt^dge. There is no excuse in the record for defendant’s third declaration of law.

—Hon. P. C. Stepp, Judge. (1) The testimony of Mr. and Mrs. Bixler, as to the conversation at Mr. Higgins’ house, in the absence of the defendant, was incompetent and prejudicial. This error is too glaring to be defended, or to require citation of authorities. (2) The testimony of witness Hampton was incompetent. Upon a trial for perjury incompetent testimony could not be waived. (3) It was not necessary to object specifically to the questions to witness Hampton.

Louis Criminal Court.—Hon. H. L. Edmunds, Judge. (1) The verdict is so inconsistent, in view of the evidence on the part of the state, that it ought not to have been permitted to stand. It can only be explained upon the theory of passion or prejudice against the defendants who were found guilty. That a verdict based upon prejudice or passion, or one against which the evidence strongly preponderates, will not be permitted to stand, is a most familiar proposition in this state.

—:Hon. A. M. Woodson, Judge. The petition in this case is one in equity, in substance, reciting: ’ That defendant is a corporation, and was, on the twelfth day of December, 1888, the. owner of a tract of land called Brookdale, an addition to the city of St. Joseph; that on that day defendant represented to plaintiff and one Henry W. Westover that it had entered into a contract with the Steel Car Company, a corporation, whereby the said Steel Car Company agreed to establish,…