Volume 126 — Missouri Reports

— S. P. Huston, Esq., Special Judge. (1) The words “to transfer its works” used in the contract of purchase have been defined by this court, and held to mean that the land company was bound by them to cause the buildings and machinery of the Omaha plant to be removed from' Omaha and to be set up in place in St. Joseph. This meaning is quite apparent when we reflect that distance does not affect it. South St. Joseph Land Co. v. Pitt, 114 Mo. 135.

— J. G. Simpson, Esq., Special Judge. (1) Plaintiff was not a competent witness to prove her marriage with Wm. Green. Chapman v. Daugherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433. (2) The records of the conveyances to Wm. Green were not the best evidence, and appellant’s objection to their introduction should have been sustained. (3) The conveyances from Mitchell and others, who were not shown to have had any title, do not prove title in Wm. Green.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Defendant had no authority whatever to construct or operate the switch track in question on Hall street as and in the manner it was done.

— Hon. Or. D. Bubgess, Judge. (1) The judgment entered January 5, 1881, in the proceedings of McCormick against this respondent and her husband, they both having been properly served and being at the time thereof in court in person and by counsel and agreeing thereto, was valid and binding upon respondent, hence the court erred in holding the same void and rendering its judgment in this cause. Freeman on Judgments [2 Ed.], secs. 149, 150.

— Hon. J-. W. Heney,. Judge. (1) Plaintiff Miller was not a competent witness.. R. S. 1889, sec. 8918; Randall v. Randall, 64 Yt. 419. (2) Under the evidence defendant was entitled to a decree dismissing the petition.

— Hon. James D. Eqx, Judge. (1) Omission to have inspected the chain which broke was not negligence on the part of the defendant under the circumstances of this case.

<p>1. Practice: jurisdiction: supreme court: collateral attack. Want of jurisdiction over the defendant is an objection that may be first raised in the supreme court on writ of error, or it may be raised in a collateral action.</p> <p>2. -: FOREIGN CORPORATION: summons: return. Á return of service of summons on a named person, “freight solicitor”'of defendant, in charge of its business ofS.ee at the time, is sufficient to show that the person served was the agent of the foreign corporation, defendant, under section 2017 (R. S. 1889).</p> <p>3. -: process: return. Returns upon pi’oeess should receive a reasonable and fair construction.</p> <p>4. -: petition, objections to. Tlje objection that the petition does not state a cause of action may. in Missouri, be advanced first in the supreme court on appeal or error.</p> <p>5. Personal Property: possession. Possession of goods is a fact which, unexplained, warrants an inference of some property in the goods.</p> <p>6. -: special property: parties: consignees. A special property in goods is sufficient to support an action against the carrier for their loss; and the consignees of such goods may maintain such an action, or the person with whom the contract for carriage was made.</p> <p>7. -: COMMON CARRIER: FAILURE TO DELIVER: PRIMA FACIE CASE. Where goods received for carriage by a common carrier, are not delivered at their destination, after a reasonable time, a piim-a facie case of default on the part of the carrier is made out, calling for explanation on his part.</p> <p>8. -: COMMON CARRIER, ACTION AGAINST: PLEADING. It ÍS not essential in a suit against a common carrier, upon a contract for the carriage of goods, to aver a consideration for the contract.</p> <p>9. -: common carrier. An agreement “to forward” goods may, in some circumstances, comprehend a stipulation to carry and deliver them beyond the defendant’s own line.</p> <p>10; -: -. Where a carrier agrees to deliver goods beyond his own line, he becomes responsible as carrier to the point of delivery in the absence of any limitation of that obligation.</p> <p>11. Code Procedure: pleading, construction op. In interpreting a pleading its allegations are to be liberally construed under the Missouri code of procedure; and, after verdict, plaintiffs are entitled to the benefit of every reasonable inference from the facts alleged.</p> <p>12. Common Carrier: meaning op terms. The meaning of the terms, “to be forwarded,” and “to deliver the same to plaintiff in good order,” explained. . .</p>

— Hon. J. W. Henby, Judge. (1) If defendant claims any benefit from the fact tli at plaintiff’s by-laws gave its secretary power to receive money, still the same by-laws required him to pay it to the treasurer. Defendant, however, can not claim the benefit of any by-law unless it shows that it had knowledge of such by-law, and relied thereon in its dealings with secretary Harris.

— Hon. H. M. Ramey, Judge. (1) The fact that James Neenan was a minor and no guardian acl litem was appointed, was not sufficient cause for setting aside the judgment. The rule that a-judgment against several defendants for a sum of money is an entirety, and, if erroneous as to one, is so as to all, has no applicability to cases where the judgment or decree relates to land. City of St. Louis v. Lanigan, 97 Mo. 175.

Louis City Circuit Court. — Hon. D. D. Fishes, Judge. (1) No sale has ever been set aside where the parties were on equal footing and the sale perfectly fair; mere inadequacy of consideration is not deemed a sufficient ground of relief of itself. Morriso v. Philliber, 30 Mo. 145; Phillips v. Stewart, 59 Mo. 491; Maloney v. Webb, 112 Mo. 575; Million v. McBec, 9 Mo. App. 344; Klein v. Vogel, 11 Mo: App. 211.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Action upon a benefit certificate issued by tbe defendant. From a judgment for plaintiff, defendant appealed. The contract sued upon is contained in tbe certificate, and certain parts of tbe constitution of tbe defendant, as follows: THE CEETIFICATE. “The Travelers’ Protective Association of America. This is to certify tbat Chas.

Louis City Circuit Court. — Hon. John A. Harrison, Judge. (1) Appellant is a prior and not a subsequent creditor. The contingent liability arose immediately upon the execution of the bond. When the bond is executed the surety becomes eo instanti a debtor.

— Hon. W. N. Evans, Judge. (1) The putting of the sheriff’s deed on record did not place the defendant in the actual or constructive possession, and ejectment would not lie against him. Childers v. Schants, 25 S. W. Rep. 209; Shaw v. Tracy, 95 Mo. 531. (2) The sheriff’s deed based on judgment against C. T. Clements, though by publication, was sufficient to pass the title of C. T. Clements, plaintiff’s grantor. Crusen v. Stephens, 123 Mo. 337; Elting v. Gould, 96 Mo. 535.

— John M. Williams, Esq., Special Judge. (1) In Missouri a referee has no power to permit an amendment of a pleading. (2) Courts should not allow a neglect to file a replication at the proper time to be remedied in such a manner as to deprive the opposite party of a fair trial of the facts to be put in issue by such replication.

— Hon. H. C. O’Bryan, Judge. (1) Witness Travis ouglit to have been allowed to testify to the declarations of the passengers made while the train was at a standstill, /to the effect that Barker had just been put off. Such, declarations were admissible as part of the res gestee. 1 Greenleaf on Evidence, sec. 108.

— Hon. C. W. Sloan, Judge. (1) The deposition of J. Gh Barnes should have been suppressed on the motion of appellants, because it was taken in Denver, Colorado, on September 2, and the respondent Jones had given the appellant notice that he would take depositions in Chicago, Illinois, on September 1, and the appellantshaving attended under the other notice, it was impossible for them or their attorney to be present in Denver on September 2.

— Hon. T. H. Bacon, Judge. (1) The court erred in not sustaining the defendant’s demurrer under the first count in the petition, because the evidence wholly failed to sustain the averments of the petition in these three particulars: First. That the cattle transported and alleged to have been permitted to escape, etc., were infected with a deadly disease. Second. That the defendants knew the fact. Railroad v. Finley, 16 Pac. Rep.

— A. W. Mullins, Esq., Special Judge. (l) The will of Ilett Tobbein gave a life estate in all his property to Catherine Tobbein, and on his death, one half to her heirs in fee, and one half to the Catholic church at Lexington. Catherine. Tobbein renounced the will and took, under the statute, one half of the whole estate in fee.

— Hon. M. G-. McG-regor, Judge. The plaintiff lived in Barton county; had lived there some seventeen-years, having previously lived in Newton county five years or more on a farm, all in cultivation. That farm'consisted of a piece of ground, to wit: The southwest quarter of the northeast quarter and the west half of the southeast quarter, less ten acres off the west side thereof (seventy acres), all in section 7, township 24, range 29.

— Hon. C. A. Anthony, Judge. (1) The court erred in its ruling on the instructions. It was incumbent on plaintiff to show that Boyle is not, and never was, a resident of this state. (2) To establish the presumption of death, absence by the absentee must be proved from his last known place of residence, or from the last place known and designated as his home. Struchfield v. Emerson, 52 Mo. 465; Spurr v. Trimble, 1 A. K. Marshall, 278; Dickens v. Miller, 12 Mo.

— Hon. Richard Field, Judge. (1) Plaintiff’s first instruction was wrong; cars can only move on the tracks and it is the duty of the traveler to give way to them. Hides v. Railroad, 27 S. W. Rep. 542; Zimmerman v. Railroad, 71 Mo. 476; Com. v. Temple, 14 Gray, 69; Elliott on Roads and Streets, pp. 577, 578; Childs v. Railroad, 33 La. Ann. 154; Chrisman v. Railroad, 150 Pa. St. 180; O’Neil v. Railroad, 129 N. Y. 125. (2) The court should have 'given defendant’s instructions.

Loihis City Circuit Court. — Hon. L. B. Valliant, Judge. The following instructions referred to in the opinion were given by the court at the instance and request of the plaintiff and the defendant: For the plaintiff: “1.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. This case is one of that class of cases which hold proprietors liable for injuries resulting to children, although trespassing at the time, where from the peculiar nature and open and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such an injury to flow therefrom as actually happened.

<p>Appeal from St. Louis City Circuit Court. — Hon. L. B. Valliant, Judge.</p> <p>(1) A middle letter is no part of a name, and its omission is not a misnomer .or variance. Smith v. Boss, 7 Mo. 463; Ormev. Shephard, 7 Mo. 606; Tallmadge v. Franklin, 5 Johns. 84; Keene v. Mead, 3 Pet. Sup. Ct. IT. S., p. 1. (2) When personal .service is had on a defendant, jurisdiction is obtained-, although he maybe sued by the wrong name; and, even when summoned by publication, it is sufficient to employ the Christian name by which he is generally known. Steinman v. Strimple, 29 Mo. App. 478. {3) Where the- name by which the defendant was published is idem sonans with his real name, he was properly served; and when they sound nearly alike as popularly pronounced, they are idem sonans. State v. Pullens, 81 Mo. 387. (4) “Possibly the fact that the sheriff sold the entire addition in a lump would have been ground for setting aside the 'sale, had timely proceedings been taken for that purpose, but the sale is not void. Such a complaint would not be heard, even in a proceeding to set aside the sale at this late day and after the rights of third persons have attached; much less is the sale void or voidable for any such reason.” Freeman on Executions, see. 307; Bouldin v. Fwart, 63 Mo. 330. There may be laches within -the statute of limitations. Minors may be guiltyoflach.es. Kline v. Vogel, 90 Mo. 239; Fuller v. Montague, 53 Eed. Rep. 204. (5) The answer of the minors in the tax suit by their guardian ad litem was sufficient. Pevely v. Simmer, 33 Mo. 28; Baldivin v. Whaley, 78 Mo. 186; Freeman on Judgments, sec. 487. (6) A purchaser at a tax sale under the law of 1877, acquires whatever title defendant in the execution had and none other. It follows that where there are several tenants in common, one alone may be divested of his title at a tax sale. Watt v. Donnell, 80 Mo. 195; Lott v. Payne, 90 Mo. 676; Boyd v. Filis, 107 Mo. 394; Campbell v. Gas Light Co., 84 Mo. 366. (7) Plaintiff’s bill should have been dismissed as to any one of them not sued or served as defendant in the tax suit, for the interest of such party was not affected by the tax sale, and he or she had a clear remedy in ejectment. Humphreys v. Milling Co., 98 Mo. 542; Fontaine v. Hudson, 93 Mo. 62.</p> <p>(1) The tax sale was void as to John O.- Corrigan, who was proceeded against as Owen Corrigan, Shelton v. Sachett, 91 Mo. 379. (2) Elizabeth Corrigan was not a party to the suit and had no notice of it, but one Elisha Corrigan was made a party and the evidence shows that Patrick Corrigan had no child by the name of Elisha. (3) The property should have been sold in parcels. Gordon v. O’Neil, 96 Mo. 350; Nelson v. Brown, 23 Mo. 13; State ex rel. v. Taney, 61 Mo. 399.</p>

— Hon. Richard Field, Judge. (1) It was error to admit evidence of plaintiff’s general conduct and habits as to sobriety. Collins v. Glass, 46 Mo. App. 297; Suttie v. Aloe, 39 Mo. App. 38. And the admission of such evidence constituted reversible error. Suttie v. Aloe, 39 Mo. App. 38; Clark v. Fairley, 30 Mo.

— Hon. James D. Fox, Judge. The defendant was tried for the crime of murder in the first degree, resulting, after a severance granted,… Held: then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did forcibly strike and beat the said Charles Cargile in and upon the body of the said Charles Cargile, fracturing and breaking the heck of the said Charles Cargile, giving to him, the said Charles Cargile, a mortal injury,…

— Hon. John W. Henry, Judge. (1) The court erred m ruling as a matter of law, that the mere act of bringing an attachment suit was a conclusive election between inconsistent remedies and was a complete bar to this action. Anchor Milling Co. v. Walsh, 20 Mo. App. 107; Lapp v. Ryan, 23 Mo. App. 436; Foundry Go. v. Hersee, 33 Hun, 176; Butler v. Hildreth, 5 Met. 49; Mining Co. v. Mining Co., 7 Fed.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) Plaintiffs’ first legal proposition is that the deed under which they claim, i. e., the deed from Yeates and wife to Goodlett, trustee for Catherine Cornwell, vested the entire estate in the lands in Catherine Cornwell; and that effect can not be given to-the so-called covenant of the trustee to convey to James Cornwell, should she die without making or directing some other disposition of the land.

— Hon. H. M. Ramey, Judge. Action for damages in the sum of $12,000, for injury to plaintiff’s foot, it having been run over and crushed by the defendant company’s cars in its railway yard in the city of St. Joseph, requiring amputation of the larger portion of the foot. The subjoined plat indicates the locus in quo and its surroundings.

(1) The court erred in holding that, the surplus of insurance was not corporate property. Respondent-G-arrison, being an officer and director of the corporation, could not deal with the trust property to his individual benefit. Bent v. Priest', 10 Mo. App. 543; s. c., 86 Mo. 475; Foster v. Mill Co., 92 Mo. 79; Boanv. Winn, 93 Mo. 503; Ward v. Davidson, 89 Mo. 445; Packet Co. v. Davidson, 95 Mo. 467; Bennett v. Company, 19 Mo. App. 349.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) The probate court should have classified this judgment. Wernse v. McPike, 100 Mo. 176, followed in Stephens v. Bernays, 21 S. W. Rep. 17 (as to the principle involved). And especially as it had ample power to do justice, and in doing so to call in the aid of equitable rules and principles. 1 Woerner’s Am. Law of Admin., 310; Titterington v. Hooker, 58 Mo. 593.

Mandamus. (1) The remedy of a proceeding to contest the election of Bremermann is not an adequate remedy for the relief sought, nor such as to defeat the writ of mandamus in this case. State v. Peacock, 15 Neb. 443; Clark v. McKemie, 7 Bush, 523; Roemer v. Canvassers, 70 Mich. 30; In re Sloan, 25 Pac. Rep. 935; Belknap v. Board, 94 Mich. 517; Wood on Mandamus, 114; Merrill on Mandamus, secs. 51 to 54; Smith v. Lawrence, 2 South Dakota, 185.

— Hon. H. M. Ramey, Judge. (1) The ordinance by which the respondent attempted to extend its limits is unreasonable, arbitrary and oppressive, in that it is an attempt arbitrarily so to extend the city limits as to include large and valuable tracts of farming lands used and suitable for agricultural purposes only, and which are not needed or used for any city purpose whatever, thereby imposing upon the owners of such tracts heavy and oppressive burdens without any benefit or…

<p>Mandamus: stenographer: criminal court oe jaokson county. Where the statute confers no authority on a court to appoint a stenographer, mandamus will not lie, at the instance of a defendant convicted therein of an offense, to compel the judge of said court to direct one acting as its stenographer to furnish such defendant with a transcript of its proceedings without.charge for said services. {State ex rel. v. Mwpliy, 125 Mo. 464).</p>

— Hon. H. M„ Ramey, Judge. (1) The statute (city charter) under which the tax bill was issued was unconstitutional, because it provided for taking property without “due process of law.” No hearing was provided for the taxpayer. First. A hearing is an essential element of due process of law.

(1) Appellant contends that the order made on the twenty-fourth day of July, 1893, by the Hon. John Or. Wear, in vacation, appointing Eli Klotz receiver of the railway and all its property, so far as this suit is concerned, is final. High on Receivers [2 Ed.], sec. 27a, p. 31; Barry v. Briggs, 22 Mich. 201; Taylor v. Sweet, 40 Mich. 736; Iron Co. v. Meeker, 109 U. S. 180; Bank v. Iron Works, 58 Mich. 315; 20 Am. and Eng.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Branch, while curator, converted to his own use funds belonging to his ward, Alice Crookes, amounting, in round numbers, to $20,000. This was a breach of his bond as curator and at once fixed a liability thereon. State to use v. McCormack, 50 Mo. 569; Bissell v. Sax-ion, 66 N. Y. 55; School District v. McDonald, 39 Iowa, 564; State to use v. Jones, 89 Mo. 470.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Tbe court, by its decree in the partition case, found that defendants were all “duly notified” in accordance with its previous order of publication. This recital is not disputable collaterally. So held in the following cases: Latrielle v. Dorlegne, 35 Mo. 233; Lenox v. Clark, 52 Mo. 116; Freeman v. Thompson, 53 Mo. 183; Bumfeldt v O’Brien, 57 Mo. 569; Brawley v. Bcmney, 67 Mo. 280.

— Hon. Joseph Cravens, Judge. (1) There was no order of the circuit court of Newton county authorizing the county court to assess, levy and collect the taxes for school building purposes attempted to be levied and assessed by the order of the county court dated August 4, 1890. They are, therefore, absolutely void and illegal. By sections 7653 and 7654 of Revised Statutes, 1889, such order of the circuit court was necessary. A county court has no implied power to levy taxes.

Louis City Circuit Court. (1) The court had no jurisdiction. First. A married woman can ■ only sue her husband in equity, and the probate court has no equity jurisdiction. Bishop’s Married Women, sec. 610; Story’s Equity Jurisprudence, secs. 1367, 1372, 1374; LlgenfriU v. llgenfrits, 49 Mo. App. 127; Church v. McJElhinney, 61 Mo. 540; Church v. Bobberson, 71 Mo. 326; Scudder v. Ames, 89 Mo. 496. Second. This is no case of a demand against an estate for the debt of a decedent.

— Hon.. Argus Cox, Judge. This appeal results from the conviction of the defendants of the crime of murder in the second degree. John W. Paxton and Theodore Paxton are brothers ' and Ort Paxton is the son of Jno. W. The two elder Paxtons are the nephews of Jno. W. Quigg, whom they killed, and Ort Paxton is the grand nephew of Quigg. The jury assessed the punishment of Jno. W. and Ort at fifteen years in the penitentiary, and that of Theodore Paxton at ten years.

— Hon. W. N. Evans, Judge. (1) The court should have given an instruction to the jury that they might find defendant guilty and assess his punishment at a fine or imprisonment in the county jail, or both such fine and imprisonment. See Revised Statutes, 1889, section 3950. It is the duty of the circuit court to instruct the jury on all the law arising in the case. Hardy v. State, .7 Mo. 608.

Charles Circuit Court. — Hon. E. ’M. Hughes, Judge. (1) The court erred in its instruction upon the presumption from possession of recently stolen property. (2) The court erred in refusing appellant’s instructions upon accounting for the possession of recently stolen property. .. (3) The verdict was against the weight of evidence. (1) The instructions are in- the form many times approved by this court.

— Hon. Rudolph Hirzel, Judge. (1) After defendant’s conviction he filed his motion for a new trial. In due time the' same was taken up, considered, and overruled by the court; to which action of the court in overruling said motion for a new trial, defendant did not take orsave any exceptions.

— Hon. John A. Hockaday, Judge. This case must be determined upon the record proper. Nothing else is preserved or brought here. The indictment is in the usual form; following the language of the statute under which it is drawn, it clearly and sufficiently charges the offense with which defendant was charged. R. S. 1889, sec. 3460.

Louis Criminal Court. — Hon.Henry L. Edmunds, Judge. (1) The indictment charges an absurdity. It alleges that the pistol was loaded with “one leaden bullet,” and that with said pistol so loaded the defendant shot Tobe Carlyle and inflicted two mortal wounds, from which he died. State v. Gray, 21 Mo. 492; State v. Fdwards, 70 Mo. 480; State v. Flint, 62 Mo. 393. (2) The evidence of the coroner’s stenographer was inadmissible.

— Hoh. Rudolph Hiezel, Judge. (1) The court erred in permitting the prosecuting attorney to cross-examine the defendant upon matters not brought out in the direct examination, against the objections of the defendant.

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. (1) The indictment is sufficient. (2) The testimony sought to be elicited 'from the witness Hodges was rightly excluded. (3) The statements of defendant to officer Fugles were self-serving and incompetent. (4) The instructions given by the court fully coveiled the law of the case. (5) There is no merit in the claim of newly discovered evidence.

— Hon. Wm. S. Herndon, Judge. The defendants were indicted, tried and convicted at the May term, 1894, of the Clinton circuit court of the crime of robbery in the first degree, and sentenced to imprisonment in the penitentiary for the term of twenty-five years each. This robbery is alleged to have occurred on the the twenty-sixth day of June, 1891.

<p>Appeal from Jefferson Circuit Court. — Hon. James E. Geeen, Judge.</p>

— Hon. Silas Woodson, Judge. The appeal in this case must be determined upon the record proper. Nothing more is brought here or preserved. Appellant filed no bill of exceptions, hence there are none saved. There is no error in the record. The indictment carefully follows the language of the statute creating the offense, . and under which it is drawn. R. S. 1889, sec. 3480. The approved form is employed, and all material allegations are set forth.

— Hon. James H. Lay, Judge. (1) The indictment is sufficient and alleges every substantive fact necessary to establish the guilt of the defendant. R. S. 1889, sec. 4115; State v. Turlington, 102 Mo. 642; State v. Burns, 99 Mo. 471; State v. Meyers, 99 Mo. 107; State v. Anderson, 98 Mo. 461.

— Hon. John E. Exland, Judge. The trial court committed reversible error in not instructing upon the whole law of the case. First. In not defining and explaining the word “seduce.” State v. Reeves, 97 Mo. 668. Second.

— Hon. John E. Ryland, Judge. (1) The court committed error in sustaining the motion to quash the indictment in this cause. It is' true, the defendant is charged with embezzling the funds of the city while acting as city marshal and ex officio collector; it is evident that the court proceeded upon the theory that the defendant could not hold these two offices at the same time, which was erroneous. The court probably had in mind section 18, article 9 of the constitution.

— Hon. J. C. Lamson, Judge. (1) The trial court abused its discretion in overruling the application for change of venue. State v. Dawson, 90 Mo. 149; Statev. Bradley, 90 Mo. 160; State v. Maddox, 117 Mo. 681. (2) The court failed to instruct on all the law applicable to the case. State v. Taylor, 118 Mo. 153; State v. Brown, 104 Mo. 365; State v. Moxley, 102 Mo. 374. (3) The court erred in instructing the jury as to recent possession of stolen property. 2 Bishop on Crim.

— Hon. E. M. Hughes, Judge. (1) The evidence in the case as a whole does not support the verdict. The testimony does not present any elements of murder in the second degree. There should have been no conviction above the degree of manslaughter in the fourth degree.

— Hon. Argus Cox, Judge. (1) The trial court did not err in excluding the testimony of witness Sullivan as to defendant’s' sanity. He was not an- expert and did not otherwise qualify himself to give his opinion on the question presented. (2) The court did not err in refdsing to suspend the trial and to make an order requiring physicians to examine defendant in order to enable them to express an opinion on his sanity.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The state had a right to show that the defendant, upon being accused of this crime by his brother, remained silent and failed and refused either to deny the charge or to assert his innocence; his silence, under the circumstances, was a fact to which the jury were entitled. Ettger v. Com., 98 Pa. St. 338; Bobbins v. State, 9 Tex.

<p>1. Practice: action to set aside will: jury challenges. Plaintiff, in an action to set aside a will, should be required -to announce his jury challenges first, though the defendant has the burden of proof.</p> <p>2. -: -: -: harmless error. The fact, however, that the defendant was required to first announce his challenges will not authorize a reversal of the judgment in the absence of any showing of prejudice.</p> <p>3. Will: spiritual adviser: undue influence. Where a will is made in favor of one’s spiritual adviser to the total or partial exclusion of the testator’s lawful heirs, the burden of proof is on the devisee to show that the testator possessed testamentary capacity and that the will was not the result of undue influence.</p> <p>4. -: undue influence: presumption. No presumption of undue influence arises from the mere faet that distant relatives or religious or charitable institutions are made devisees to the partial exclusion of lawful heirs.</p>

Louis City Circuit Court.— Hon. Daniel Dillon, Judge. The second count of the petition fails to state facts sufficient to constitute a cause of action at law, or in equity. Julia Wells had no vested interest in th'e benefit certificate and Hasten Wells had the right at any time to either surrender the certificate or to change the beneficiary. Coleman v. Knights, etc., 18 Mo. App. 189; Conclave v. Capella, 41 Fed.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Appellant having been divorced from Leonard Weindel, the testator, for his fault and misconduct, is entitled to dower in his personal as well as real estate. Revised Statutes of Missouri, 1889, secs. 4517, 4526; Ibid.,- secs. 105 to 108; McFarland v. Base’s Adm’r, 24 Mo. 157; Hoyt v. Davis, 21 Mo.

. Prohibition. (1) All matters pertaining to a contested election case must be regulated by statute, as the right to make the contest and jurisdiction of any court to hear the same is purely statutory.

<p>1. Negligence: instructions: contributory negligence. Where, in an action for personal injuries, the evidence tends to show contributory negligence on plaintiff’s part, it is error to instruct the jury that the law presumes the plaintiff was exercising due care, and that, to repel such presumption, evidence of negligence on his part is necessary.</p> <p>2. Carrier: passenger. The relation of carrier and passenger can be created only by contract, express or implied.</p> <p>3. -: -: street railroad. One does not become a passenger on a street railway by a mere attempt to get on a car while it is in motion; there must, in such case, be some act on the part of the carrier indicating its acceptance of such person as a passenger to make him one.</p> <p>4. -: -: -: moving car. A person attempting to get • on an electric street railway ear while it is in motion, assumes the risks of injury only from the ordinary movements of the ear.</p> <p>5. -: -: -: -. The deceased, in this ease, held not to have been guilty of contributory negligence, as a matter of law, in attempting to board a street ear, though propelled by electricity, moving at arate of speed not exceeding three or four miles an hour.</p> <p>6. -: -. The failure of a street railway company to use a fender, designed for the protection of passengers only, is immaterial in an action for the death of a person who was not a passenger.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The description relied on in the plaintiff’s deed, the sole foundation of its title, if any it has, is fatally defective. Johnson Co. v. Wood, 84 Mo. 510; Ells v. Railroad, 40 Mo. App. 172; Tiedeman on Real Property, secs. 827, 828, 829, and cases cited; State ex rel. v. Railroad, 114 Mo. 1.