Volume 130 — Missouri Reports

— Hon. W. M. Robinson, Judge. (1) If a person owns the building, it is wholly immaterial whether he has any other interest in the premises or not in order to have a mechanic’s lien sustained against it. Kline v. Perry, 51 Mo. App. 422; Seaman v. Pacldock, 51 Mo. App. 468. (2) A tenancy from month to month may be subject to a mechanic’s lien. Leatherage v. Sheidley, 50 Mo. App. 495; Ombony v. Jones, 19 N. T. 234.

<p> Mandamus, </p> <p>(1) The act of March 28, 1868, on its face is not an act reviving or reenacting anything. It is prima facie valid. Bailroad v. Shambaugh, 106 Mo. 568. The validity of that act has been repeatedly recognized by this court in its former decisions. City v. Gaslight Co., 70 Mo. 69; Gaslight Co. v. City, 86 Mo. 495; State, etc., v. Gaslight Co., 102 Mo. 472. (2) The charter of relator did not expire on March 2, 1887, as claimed by respondent. (3) The state having invested relator with the right to "light the city of St. Louis, and to make and vend gaslights and other lights, including electric lights, and to that end, to lay down “all pipes, fixtures, or other things properly required,” then the city of St. Louis can not, by any ordinances or requirements on its part, annul or destroy those franchises, nor can it impair' or abridge them, nor can it impose substantial burdens and conditions upon their exercise, not imposed by the state itself. The Laclede company accepted the charter as offered by the state, and it did so at a time when it was a doubtful venture to enter into competition with an established rival, namely, the St. Louis Gaslight Company. That a large investment of money and property has since been made in good faith on the strength of the Laclede charter is admitted; hence, relator, its stockholders, and all those who have invested in relator’s securities, have vested rights which can not be substantially abridged or disturbed by the state itself, much less by the municipal authorities of the city of St. Louis. State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; State ex rel. v. Greer, 78 Mo. 188; Sloan v. Railroad, 61 Mo. 24; Scotland Co. v. Railroad, 65 Mo. 123; Weston v. City, 2 Pet. 449; Dartmouth College Case, 4 Wheat. 518; Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683; Gas Co. v. Louisiana Light Co., 115 U. S. 650. (4) Nor can the ordinance in question be upheld as a mere police regulation, for its provisions reach far beyond the province of such regulations. “Police regulations,” says the supreme court of Missouri, adopting the language of Judge Cooley, “must have some reference to the comfort, safety or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges, which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter, or curtailment of the corporate franchise.” State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; Gas Co. v. Light Co., 115 U. S. 650; Lotásville Gas Co. v. Citizens Gas Co., 115 U. S. 683. (5) The grant of corporate power to use, for any given purpose, a designated substance or material, or “any substance or material that may be used as a substitute ¿for” the one so designated, necessarily implies and includes the right to use such substance or material under whatever conditions, and in whatever manner, may be necessary to accomplish that purpose. A fortiori, such a grant includes the right of making such “substance or material” available for that purpose by subjecting it to conditions appropriate to. the particular case, — whether, for example, by setting fire to illuminating gas, or by applying to such substance or material the expansive power of steam, or the propelling power of gravity, or that mysterious vis viva, called muscular power, created by an effort of the human will, or by transmitting what is called electricity through copper wires. But in either case, the substance or material is one thing, and the conditions under which it is used, or the force which may be applied to it for the given purpose, something entirely distinct therefrom ; and the corporate power and right to use the former has nothing in the world to do with the nature of the latter, however interesting to physicists that inquiry might be.</p> <p>(1) The act of March 26, 1868, is in conflict with paragraph 2, section 1, of constitution of 1865 and also with section 25, article 4, of said constitution. The particular claim made by respondent is, that the act of March 26, 1868, is an act reviving, renewing and re-enacting the act of March 2,1857, and that it violates this provision of the constitution of 1865, in that it refers to “all the rights, privileges and franchises granted to it by the fifth section of the act to which this act is amendatory,” which language is absolutely unintelligible without reference to section 5 of the act of 1857, and reading into the act of 1868, the provisions of the act of 1857, which conferred such rights, privileges and franchises; ■ and that it strikes out from the fifth section of the act of 1857, the words “during the continuance of this act,” and substitutes therefor the word “forever;” and in that the act of 1868 attempts to repeal section 6 of the act of 1857, by simply employing the following language: “And the sixth section of said act, to which this act is amendatory, is hereby repealed.” The act of 1868 can not be construed as an amendment by implication but as an attempt to amend the act'of 1857 without publishing in full even the section amended. (2) Relator’s charter by the terms of section 9 of the act of 1857 expired on March 2, 1887, and hence relator is not entitled to any of the privileges, rights and franchises claimed for it. (3) Article 2, chapter 15, Revised Ordinances, 1857, of city of St. Louis, as amended by ordinance number 16894, is a valid regulation of the streets of the city and is binding on relator. People ex rel. v. Squire, 145 U. S. 175; s. o., 14 Daly, 154; s. c., 107 N. Y. 593. (4) It is not true, as claimed by relator, that it is a matter of common knowledge that gas and electricity are, because produced by the operation of heat on carbon, therefore . the same thing either in cause or effect. (5) On the second day of March; 1857, lighting by electricity was wholly unknown to art, and the legislature by act of said March 2, 1857, did not, and did not intend to, confer upon relator the right to manufacture and vend electricity for lighting purposes.</p>

Louis City Circuit Court. — Hon. John A. Harrison, Judge. (1) The release pleaded in the answer was a bar to the cause of action stated in the petition until-, rescinded in some legal method, and it was error to try the issue of fraud, as raised in the reply, jointly with the other issues in the case, before a jury. The issue of the fraud -or good faith of the release' should have been tried separately as a proceeding in equity.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) When there is a false call in a deed and it can be rejected and still leave sufficient to identify the land it will be rejected. Shewalter v. Pirner, 55 Mo. 218. (2) Whenever natural or permanent objects are embraced in the calls of a deed they absolutely control.

<p> Certified from St. Louis Court of Appeals. </p> <p>Transferred to St. Louis court of appeals.</p>

Prohibition. The petitioners applied for a prohibition against the county judges o£ Montgomery connty to stop proceedings in execution of an order of the county court for the removal of the county seat from Danville to Montgomery City.

(1) Tlie court erred in refusing the instruction prayed for by interpleader. Under the law, Ewart immediately became the absolute owner of said undivided one half of said stock of goods; Meek had no interest therein on the thirteenth day of January, 1888, that was liable to be seized, either under attachment or execution. Jones on Chattel Mortgages [2 Ed.], sec. 699; Jackson v. Cunningham, 28 Mo.

— Hon. Henry M. Ramey, Judge. This is a suit in equity, brought by creditors of George L. Jewett & Company, to have a deed made by that firm, February 8, 1893, declared to be a voluntary deed of assignment for the benefit of all their creditors, instead of for the benefit of the Saxton National Bank which claims to be alone secured thereby. A few days before that date, the firm of Jewett & Company became insolvent, their paper having gone to protest.

— Hon. J. G-. Wear, Judge. (1) The deed sought to be set aside in this proceeding was obtained by the fraudulent misrepresentations and concealment of material facts by the defendant Kinzer. It was therefore absolutely void as to E. E. Kinzer and his heirs and representatives. Turner v. Turner, 44 Mo. 537; Dickinson v. Kempinsky, 96 Mo. 256; Sayre v. Devore, 99 Mo. 439;' Crabtree v. Bradbury, 13 S. W. Eep. (Ark.) 935.

— Hon. J. H. Sloyer, Judge. (1) The instruction directing the verdict for defendant should have been given. Plaintiff is confined to the act of negligence pleaded. Waldhier v. Railroad, 71 Mo. 514; Rarty v. Railroad, 95 Mo. 368; Schlereth v. Railroad, 96 Mo. 509; Renton v. Railroad, 52 Iowa, 161; Garter v. Railroad, 65 Iowa, 287; Price v. Railroad, 72 Mo. 414.

— Hon. J. H. Sloveb, Judge. (1) Where a party “failed to object to the court’s instructions at the time they were given, he can not afterward be heard to complain.” Lefkow v. Allred, 54 Mo. App. 141. (2) “There was no exceptions saved to the giving of any instructions, and they need not be considered for that reason.” State v. JElvins, 101 Mo. 243.

Louis City Circuit Court. ■ (1) There was no laches on plaintiff’s part. Bliss v. Pritchard, 67 Mo. 181, which also holds that laches must be pleaded. Kelly v. Hunt, 61 Mo. 466; Klein v. Vogel, 90 Mo. 239; White v. Pendry, 25 Mo. App. 547; Bradshaw v. Tates, 67 Mo. 233. (2) Set-off is not allowable in this action, it being clear from the evidence that the entire trust fund is a mere trifling amount as compared with the claims of creditors. Webber v. Leighton, 8 Mo.

— Hon. D. P. Stbatton, Judge. Where there is sufficient evidence to go to the jury and proper instructions are given, their finding is conclusive. Gilbert & Son v. Hill, 77 Mo. 553.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The proceeding for the production of books and papers for inspection takes the place of a bill of discovery in equity, and is only granted where the bill of discovery would lie. Larimore v. Bobb, 114 Mo. 446; Arnold v. Water Co., 26 Atl. Rep. 55.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The American Folding Chair Company was, on the sixteenth day of October, 1890, a “going concern,” employing over fifty hands, actively engaged in the prosecution of its legitimate manufacturing business, and in full and undisturbed control of its property, unaffected by any liens or judicial proceedings. First.

— Hon. Alex. Ross, Judge. The fact that plaintiff did not take the witness stand and testify to the bona fide character of the conveyance to him requires a reversal of the judgment of the trial court. Felt v. Hatcher, 58 Mo. 235; Bent v. Lewis, 88 Mo. 471; Baldwin v. Whitcomb, 71 Mo. 651; Maberry v. McClurg, 74 Mo. 574.

Mandamus. In this proceeding for a mandamus against the auditor, the petition of relators, which, by agreement is substituted for the alternative writ, is the following: “The relators inform the… Held: following Melvin v. Whiting, supra, that mileage fees of a witness residing outside of the state could only be taxed to the state line. The supreme court of Oregon announced a like rule in Crawford v. Abraham, 2 Oregon, 163.

— Hon. C. H. S. Goodman, Judge. (1) The note and trust deed, under which respondent claims, were made to A. W. Frederick, J. T. House, and J. F. Harwood (respondent) as joint obligees. The whole transaction was repudiated by J. T. House.

— Hon. E. M. Hughes, Judge. (1) The levy upon which the tax in controversy was founded is void.

— Hon. D.W. Shackle-ford, Judge. (1) A landlord can not sue his tenant in ejectment without notice to quit being first given. Tyler on Ejectment, p. 206.

— Hon. John W. Henry, Judge. (1) The court erred in its rulings on the instructions. (2) Money claimed to have been received on partnership account by one partner can not be recovered- by the other partners in an action at law. Springer v. Cobell, 10 Mo. 641; Smith v. Smith, 33 Mo. 557; Rtissell v. Given, 46 Mo. 411; Bonds v. Beemis, 55 Mo. 524. (1) Plaintiffs are entitled to recover on the facts stated in the petition. Land Go. v. Case, 104 Mo. 572; Tale.

— Hon. James H. Lay, Judge. ' (1) The evidence shows the existence of the relation of guardian and ward, parent and child, a double fiduciary relation. This relation did not cease with the mere fact that the defendant was one day over the age of eighteen, but the undue influence, which the law presumes to exist when such fiduciary relation is shown is still presumed to exist under the evidence in this ease.

— Hon. Gr. D. Burgess, Judge. The exact question here presented was decided adversely to the respondent by the supreme court of Missouri in Railroad v. Fowler, 113 Mo. 458. It was there held that the land owner is not entitled to interest on the award, since he has the right to withdraw it at any time. Appellant, having failed to file such an abstract of the record as is required by rule 15 of this court, the appeal should be dismissed.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) There is no evidence in this case to support the verdict and judgment.

<p>The case of Meiners v. City of St. Lom-s, ante, p. 274, followed and affirmed.</p>

<p>Supreme Court: appellate jurisdiction: amounts in dispute. On the face of the petition the sum claimed, was in excess of $2,500. Defendant’s answer merely denied any indebtedness and the amount in dispute was not reduced by anything else contained in the record. The judgment was for defendant and plaintiff appealed. Selcl, that the amount in dispute exceeds the sum of $2,500 and the supreme court has jurisdiction of the appeal.</p>

— Hon. W. S. Herndon, Judge. The material parts of the record of proceedings of the township board, referred to in the opinion, are as follows: The petition of plaintiff, Martha Belk, to the board represented that she owned a certain (described) tract of land; “that no public road passes through or touches said land,” and prayed the establishment of a private road twenty feet wide between certain points (a course duly and particularly defined), so as to join a public road…

— Hon. D. W. Shackleford, Judge. (1) The finding of the trial court is in direct conflict with the evidence. It conclusively shows that a written contract was entered into between S. W. Seovern and Abraham Fulkerson, Sr., as to the purchase of the land at the tax sale, and that Seovern in Ms lifetime fully complied -with, the terms of said written contract, and such being the case, plaintiffs are entitled to no relief in the premises.

Louis City Circuit Cou/rt. (1) Proceedings by a municipal corporation under an ordinance which is entirely void may be restrained^ 2 High on Inj., sec. 1247; Mayor v. Radeke, 49 Md. 217; Davis v. Fasig, 128 Ind. 271; Rushvillev. Rush-ville, 28 N. E. Eep. 853; Hitchcock v. St. Lo%iis, 49 Mo. 484; Dennison v. Kansas City, 95 Mo. 416; Schopp v. St. Loiás, 117 Mo. 131. (2) The plaintiffs are entitled to maintain this action jointly and there is no misjoinder of parties plaintiff.

<p>1. Appellate Jurisdiction: amount1 involved. The amount of plaintiff's judgment, and not the sum demanded in his petition, determines the jurisdiction of the appellate court, the judgment being complained of by defendant alone.</p> <p>2. -: “title to real estate.” An action seeking merely to charge a part of plaintiff's demand on defendant’s land does not involve title to real estate within the provision of the constitution relating to the appellate jurisdiction of the supreme dourt.</p>

— Hon. James H. Lay, Special Judge. Than sleeked to Kansas city court oe appeals. As this suit seeks subrogation only — to declare a lien and enforce it — title to real estate is not involved, and the appeal should have been granted to the Kansas City court of appeals. Gardner v. Terry, 99 Mo. 523.

. Appeal from Morgan Circuit Court. — Hon. D.' W. Shackleeoed, Judge. ■ (1) Plaintiff Cora L. Martin was a competent witness. The issues made by the pleadings were separate and required separate findings by the court. She was competent to testify for her coplaintiffs, even if she could not testify for herself, and the court erred in ruling that she was incompetent for any purpose in the case.

— Hon. E. J, Broaddus, Judge. (1) As both parties claimed under Wm. Humphreys, it was not necessary to show title from the government to plaintiff. (2) The title to the strip in controversy under the deed to defendants remained in Humphreys. Shep., Touchstone, 79, 86, 88; Bogy v. Shoal, 33 Mo. 272; Banclall v. Randall, 59 Mo. 399; Allen v. Scott, 21 Pick. 25. (3) Defendants had the entire tract inclosed when they accepted Humphrey’s’ deed.

— Hon. John E. Ryland, Judge. (1) The record recites that the motion in arrest of judgment was not offered until more than four days after judgment, and, this being true, the court very properly refused to entertain it. R. S. 1889, sec. 4273.

— Hon. John W. Woeeord, Judge. (1) The court let in evidence on all the first five counts in the indictment, and defendant, while being tried on all six counts,… Held: in 'SO many words, that one partner is liable for the crimes of the other within the. scope of the partnership. Defendant' offers no authorities on this point. (3) The court after excluding the first five counts of its own motion, then refused to sustain the demurrer to the evidence and erred therein. First.

Louis Criminal Court. — Hon. D. W. Shackleford, Judge. (1) Robbery is a larceny aggravated by the manner of its accomplishment, and is compounded of larceny and force. R. S. 1889, sec. 3530; State v, 0} Conner, 105 Mo. 121; State v. Brannon, 55 Mo. 63; State v. Jenkins, 36 Mo. 372; State v. Brown, 104 Mo. 365; State v. Sommers, 12 Mo. App. 374; Bishop on Crim. Law [8 Ed.], see. 1156. .

— Hon. John A. Hockaday, Judge. (1) The court erred in overruling defendant’s objection to the competency of Mr. Ives, who was accepted as one of the panel of forty persons from whom the. jury was selected. (2) The court should have permitted the witness to testify to his conversation with defendant after the deceased left the cabin and the wheelhouse of the boat.

— Hon. John E. Byland, Judge. (1) Instruction number 1 given on the part of the state is erroneous in that it authorizes the jury to assess defendant’s punishment at imprisoment in the penitentiary for a term not less than two years. State ex rel. Baker v. Frala, 47 Mo. 310; Mustek v. Bailroad, 114 Mo. 309. (2) The evidence in this case did not authorize or justify the trial court in giving any instruction as to the question of an assault with intent to rape.

— Hon. James E. . GrREEN, Judge. (1) The court erred in overruling the demurrer and also the motion in arrest of judgment. The letter set out in the indictment contains no threat to accuse of any crime or felony.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) The court erred in refusing to sustain defendant’s motion praying the production in court of the written statement made by defendant at the time of his arrest. (2) The court erred in admitting testimony of the witnesses Scheibe and Behland for the state, relating to the alleged statements of defendant prior to the shooting.

— Hon. James D. Fox, Judge. The defendants have filed no bill of exceptions; although the record recites that one has been filed, yet there is none in the record bearing the signature of the circuit judge, as is required.

— Hon. D. W. Shackleeoed, Judge. (1) The circuit court of Cooper county had no jurisdiction to try this cause. Judge H. L. Edmunds had no power, right, or authority to again assume jurisdiction, and his appointment of Judge Dorsey W. Shackleford was null and void. The entire proceedings under Judge Shackleford were coram nonjudice. State v. Molerly, 121 Mo. 604; State v. Hayes, 81 Mo. 574; s. o., 88 Mo. 344; State v. Schaffer, 36 Mo.

Louis Criminal Court. — Hon. Heney L. Edmunds, Judge. (1) The indictment is in the approved form and sufficient. (2) The court committed no error in its rulings on the evidence. (3) The court did not err in denying defendant a new trial.

— Hon. P. O. Stepp, Judge. The second instruction is erroneous, in that it submits to the jury an issue not made by the pleadings. The question of consideration for the sale, exchange, or delivery of the check is not raised by the indictment,, but is presented by this instruction. It is error for the court to attempt to cure the omission of an’ indictment by an instruction. State v. Smith, 119 Mo. 439; State v. Warren, 57 Mo. App. 502.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) The indictment is in all respects sufficient as to the burglary of which appellant was convicted. The instructions fully covered the law of the case, and are in all respects correct. There is no error apparent in the record. (2) ''The testimony of Mrs. Brooks was admissible and competent, its value to be determined by the jury. State v. Babb, 76 Mo. 501; State v. Lick-son, 78 Mo. 438; State v. Eopkirk, 84 Mo. 278.

— Hon. W. N. Evans, Judge. (1) The evidence does not support the allegations of the petition. (2) It was the duty of the trial judge to fully instruct upon what it took to constitute perjury and to have determined as to whether the facts alleged in the indicttnent as to the assignment of perjury were material or not. It was the province of the court and not the jury to determine the materiality of the facts alleged to' have been «sworn to. State v. Williams, 30 Mo. 364.

Louis Criminal Court. — Hon. J. E. Green, Special Judge. (1) The trial court did not err in its rulings on the evidence. (2) The instructions fully declared the law of the case and were in all respects appropriate and correct. State v. Grant, 79 Mo. 113; State v. Hayes, 89 Mo. 262.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. Defendant was indicted and convicted for the crime of establishing a lottery in the city of St. Louis and from the judgment rendered herein he appeals to this court. The testimony in substance, discloses these facts: Defendant had an office on the third floor of a building on the northeast corner of Sixth and Chestnut streets, in the city of St. Louis, where he ostensibly conducted a real estate business.

— Hon. Argus Cox, Judge. (1) Section 3480 does not make any carnal knowledge of a girl under fourteen years rape; the act is not rape, unless the girl is under twelve years of age; or, if the girl is over twelve and under fourteen, then the act must be committed by a married man.

<p>Practice: constitutional question: jurisdiction. A constitutional question is not involved in the determination of a cause merely because it becomes necessary in considering it to consult the constitution to determine the boundary line of the state or a county • thereof.</p>

— Hon. E. M. Hughes, Judge. (1) It does not appear that court was in session or open the day the indictment was returned. No opening orders appear in the record. This is fatal to a verdict of guilty. R. S., sec. 4092. (2) The grand jury that returned the indictment was a “special” grand jury, and, it not appearing that this offense was given them on charge, the motion to quash should have been sustained.

Louis Criminal Court. — Hon. Henby L. Edmunds, Judge. (1) All the testimony showed either murder in the first degree, or manslaughter in the third or fourth degrees. The fact that the indictment charged murder in the second degree, did not warrant the court to instruct for that grade of homicide, unless there was evidence tending to sustain it. Instructions should be confined to the case made out by the testimony.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The court below erred in sustaining the motion for a new trial, because: First. .Instruction number 5 for defendant was properly given. Henry v. Railroad, 113 Mo. 534. Second. Instruction number 6 for defendant was properly given. O’Mellia v. Railroad, 115 Mo. 217. Third. Instruction number 9, given by the court on its own motion, was proper.

— A. M. Hough, Esq., Special Judge. (1) The motion to quash the notice of contestor should have been sustained. Held: that the burden of proof to show that the ballots have not been tampered with is on the contestant or the party producing the ballots, yet he is not required to satisfy the trier of the facts beyond a mere possibility of interference, “but that they were intact to the satisfaction of the jury.” People ex rel. v: Livingston, 79 N. Y.…

— Hon. J. C. Lamson, Judge. (1) The pretended sale was made by Codings without any authority, express or implied, from Redenbaugh, his partner, and said want of authority was known to the purchasers, Kelton and son.

Louis City Circuit Court. — Hon. John A. Harrison, Judge. The exceptions of the defendant Boyce were overruled on January 4, 1893. On January 9 she fiied a motion a new trial in respect to the court’s action on the exceptions — a wholly nugatory act, inasmuch as the action of the court on the exceptions was not a final judgment.

— Hon. D. W. Shaokleeord, Judge. (1) The court erred in giving the plaintiff’s instructions. First. They they did not correctly state the duty and liability of defendant. Second. They did not set forth the facts necessary to constitute contributory negligence. Moore v. Railroad, 29 S. W. Rep. 9. Third. They were inconsistent with the one given for defendant. Fourth. They were not warranted by the evidence.

<p>.1. Jurisdiction: habeas corpus. One imprisoned for the violation of an order or judgment in excess of the jurisdiction of the court rendering it can be discharged on habeas corpus.</p> <p>2. Prohibition: contested election: suspension op judgment: rehearing. Where the supreme court has denied a writ of prohibition to restrain the circuit judge from enforcing a judgment of ouster in a contested election ease pending an appeal from said judgment, neither leave to file a motion for rehearing and intention to file it, nor the actual filing of the motion, will suspend the force of the judgment of the supreme court, in the absence of an order specially providing therefor.</p> <p>3. Contested Election: judgment op ouster: bond. The refusal of the county court to approve the bond of one whom the circuit court in an election contest case, adjudged entitled to the office, will not excuse the incumbent from refusing to surrender possession of the office in obedience to the judgment of ouster.</p> <p>4. Practice: NEW trial : execution. The mere filing of a motion for new trial will not operate per se to stay the issuance of an execution.</p>

Louis Court of Criminal Correction.— Hon. J. R. Claiborne, Judge.

— Hon. E. J. Broaddus, Judge. (1) Under the statutes, a ballot is fraudulent, without regard to intent, when it has on the face or back thereof any writing or printing not expressly authorized, hence all ballots having the names of the voters written on the back thereof are fraudulent, and should not have been counted. R. S. 1889, secs. 4671, 4677,-and secs. 4773 and 4780, as amended by Session Acts, 1891, pages 134 and 135.

— Hon. E. M. Hughes, Judge. (1) The court erred in failing to instruct upon all questions of law; in giving instructions not warranted by the evidence and in giving illegal instructions. State v. Taylor, 118 Mo. 153; State v. Welsor, 118 Mo. 124. (2) The jury should have been instructed on murder in the second degree. State v. Williams, 69 Mo. 112; State v. Dierberger, 96 Mo. 666; State v. Wieners, 66 Mo. 13.

— Hon. John A. Hockaday, Judge. (1) The evidence of the plaintiff was too indefinite and uncertain upon which to base a verdict. (2) The title of the bridge was not in the county. (Session Acts, 1851, page 337). (3) Plaintiff’s cause of action was barred by the statutes of limitations. R. S. 1889, sec. 6775; Potvers v. Council Bluffs, 45 Iowa, 652; James v. Kansas City, 83 Mo. 567; Peden v. Railroad, 73 Iowa, 328.

— Hon. W. W. Rucker, Judge. (1) The plaintiff in this cause was permitted to recover upon a cause of action not stated in his petition. Buffington v. Railroad, 64 Mo. 246; Waldheir v. Railroad, 71 Mo. 514; Edens v. Railroad, 72 Mo. 212; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Gurley v. Railroad, 93Mo. 450; Haynes v. Trenton, 108 Mo. 132.

— Hon. Jambs Gibson, Judge. (1) The court has jurisdiction by reason of the constitutional questions involved. State, etc-, v. Francis, 95 Mo. 44. (2) Defendant was entitled as of right to a trial of the issues raised by the affidavit for attachment and its denial was error. See Farrington v. McDonald, 28 Mo. 581.