Volume 133 — Missouri Reports

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) A trial court should not give instructions on a matter of negligence, when there is no evidence to support them. Evans v. Railroad, 106 Mo. 594; Goltz v. Griswold, 113 Mo. 152. In both these cases there was a jilea of contributing negligence; not so in the case at bar: Graham v. Gross, 50 Mo. App. 380.

— Hon. H. M. Ramey, Judge. (1) The first instruction given on behalf of the plaintiff was clearly erroneous for the following reasons: First. It submitted to the jury questions not based upon any evidence in the case.

— Hon. Eudolph Hirzel, Judge. In this proceeding for specific performance, it is conceded by plaintiff that the abstract of pleadings prepared by defendants is correct, which sets forth: “1. That he, the said Eberhard H. Sehweer, should take, adopt, support, and treat her son, this petitioner, at all times, as his own natural child, and that plaintiff should at all times perform the duties toward said Sehweer due from children toward parents. “2.

—Benjamin J. Casteel, Esq., Special Judge. (1) The court was not legally organized as the judge of the criminal court did not endeavor, and hence did not fail, to secure the judge of some other circuit. Stalling v. Thomas, 18 S. W. Eep. 184; Taylor v. Mason, 9 Wheat. 344. (2) The court erred in excusing the jurors Imbrie and Gray. They were both competent. . (3) The state in this case contends that the defendant killed the deceased.

— Hon.Thomas H. Bacon, Judge. (1) The defendants could lawfully limit their liability to negligence or delays occurring while the cattle were in their control and on their road.

— Hon. Aegus Cox, J udge. (1) The record fails to show an arraignment and the conviction can not stand. State v. Williams, 117 Mo. 379; State v. Walker, 119 Mo. 468. (2) The record must show that what took place amounted to an arraignment. .Fitzpatrick v. People, 98 111. 260; Lynch v. Commonwealth, 88 Pa. 193; Ray v. People, 6 Colo. 231.

— Hon. C. A. Anthony, Judge. (1) There was a sufficient delivery of the Stringer deed so as to pass the title to Tama Otis and appellants’ fourth instruction as asked should have been given. Parker v. Parker, 8 N. W. Rep. (Iowa) 806. That case is in many respects similar to this.

<p>Appeal from Bay Circuit Court. — Hon. E. J. Broaddus,. Judge.</p> <p>(1) The crop did not pass at the trustee’s sale-for the reason that it did not belong to the owner of' the land, the mortgagor, but to the defendant, B. F. Swan, the tenant. There was a separate ownership of the crop from that of the land and a severance in law of the crop from the land upon which it stood. Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 349; Harris v. Turner, 46 Mo. 438; Morgner v. Biggs, 46 Mo. 66; Touine v. Bowers, 81 Mo. «491; Willis v. Moore, 59 Tes. 628; Hershey v. Metzger, 90 Pa. St. 217; Bankv. Crary, 1 Barb. S. O. (N. Y.) 542; Warren v. Leland, 2 Barb. S. O. 613; Pickens v. Webster, 31 La. Ann. 870; Bveringham v. Braden, 58 Iowa, 133; Gregory v. Bosencrans, 72 Wis. 220; Heavilon v. Bank, 81 Ind. 250; Barrett v. Ghoen, 119 Ind. 56; Wooley v. Holt, 14 Bush. (Ky.) 788; Caldwell v. Alsop, 48 Kan. 571; Bank v. Beegle, 35 Pac. Eep. (Kan.) 814; Whiter. Pulley, 27 Fed. Eep. 436. (2) ‘Annua! crops, crops raised by yearly labor and cultivation or fmctus industriales, are to be regarded as personal chattels independent of and distinct from the land, capable of being sold by oral contract and without regard to whether the crops are growing or having matured have ceased to draw nutriment from the soil.” Garth v. Caldwell, 72 Mo. 622; Smock v. Smock, 37 Mo. App. 56; Holt v. Holt, 57 Mo. App. 272; 3 Wash. Eeal Prop. [4 Ed.], top page 346; Benjamin on Sales [Bennett’s Ed.], see. 120. (3) It is only when such crops belong to the owner of the land that they are held to pass by a sale of the realty, and then not because they are technically a part of the realty, but for the reason that it has become a rule of construction or interpretation of the deed or contract of sale to regard the transfer of the crops; unless reserved, as within the contemplation of the parties. If severed, either in law or fact, before a sale of the realty, they do not pass and a separate ownership of the crop distinct from that of the land works a severance in law of the crop. Authorities cited under division 1. (4) The act of March 20, 1893 (Acts of 1893, p. 210), reserving to the tenant his rights to the growing and unharvested crops on a sale of the land under foreclosure proceedings, applies directly to this case. The law went into effect June 21, 1893, and the sale in this case was made-July 5, 1893. The law is constitutional and valid. Cooley on Const. Lim. [5 Ed.], top pages 440-443,. and cases cited; Wilds v. Van Voorhis, 15 Gray, 139; Coev. Ritter, 86 Mo. 282; State ex rel. v. Hager, 91 Mo. 452; Porter v. Mariner, 50 Mo. 364; Hens chalí v.. Schmidt, 50 Mo. 454. (5)- The law of this state is well settled that the mortgagor is the real owner of the-land, can deal with it as such so long as he is permitted to remain in possession, and is entitled to the rents and profits until entry by the mortgagee, or sale of the property under foreclosure proceedings. Kennett v. Plummer, 28 Mo. 145; Woods v. Hildebrand, 46 Mo. 284; In re Life Association, 96 Mo. 632; Fountain v.. Schulenberg Co., 109 Mo. 55, 64; White v. Wear, 4 Mo. App. 34; Simpson v. Keane, 39 Mo. App. 635. (6) Such being the case, the plaintiffs had no-vested right in the growing crops at the taking effect of the act of March 20, 1893. The mortgagor or his assignee could have made whatever disposition of them they pleased, without consent of the-mortgagee, and without impeachment of waste. What they could do themselves the law could do for them. A mere interest in expectancy, such as the plaintiffs had in the defendant’s crop before the sale, is not considered a vested right and may be abolished at the will of the legislature. See authorities cited under division 4. See, also, Baker's Executors v.. Kilgore, 145 U. S. 487; Bay v. Gage, 36 Barb. 447; Percy v. Cockrill, 53 Fed. Rep. 872; McNeer v.. McNeer, 142111. 388; Loveren v. Lamprey, 22 N. EL (2 Foster) 434. (7) Defendant’s fourth, instruction should have been given. The plaintiffs by their agreement with (1. I. Reed to accept the defendant’s rent in satisfaction of interest, and thereby inducing the defendants to plant and cultivate the corn, are estopped to claim such corn. Big. on Estop., pp. 367, 445, 578; Bank v. Frame, 112 Mo. 502; Sehenck v. Sautter, 73 Mo. 46; Moore v. Bank, 52 Mo. 377; Gamhart v. Finney, 40 Mo. 449; Chouteau v. Goddin, 39 Mo. 229; Miller v. Anderson, 19 Mo. App. 71; Justice v. Lancaster, 20 Mo. App. 559; Weise v. Moore, 22 Mo. App. 530. (8) Defendant’s third and fifth instructions should have been given. The plaintiffs by their recognition of the defendants as tenants, and by their acquiescence in the planting and cultivating of the corn, are estopped to claim the same. 2 Wash. Real Prop. [4 Ed.], top p. 136; Masterson v. Railroad, 72 Mo. 342; Fvans v. Snyder, 64 Mo. 516; Landrum v. Bank, 63 Mo. 48; Collins v. Rogers, 63 Mo. 515. Pro-volt v. Railroad, 57 Mo. 256.</p> <p>(1) A sale of land under a deed of trust carries title to growing crops upon the premises at the date of sale. Fischer v. Johnson, 51 Mo. App. 187; Hayden v. Burkemper, 101 Mo. 644; Vogt v. Cunningham, 50 Mo. App. 136; 'Watson v. Menteer, 59 Mo. App. 387; Salmon v. Fewell, 17 Mo. App. 125; Wallace v. Cherry, 32 Mo. App. 436; Wood’s Landlord and Tenant, sec. 124. (2) This is true, although the crops may have been grown by a tenant of mortgagor. Fischer v. Johnson, 51 Mo. App. 157; Wood’s Landlord and Tenant, sec. 124. (3) The authorities upon this question in this state are so clear and full that we deem it unnecessary to cite authorities from other states or to discuss the question. The authorities cited by appellant from this state are commented upon and distinguished by the supreme court in Hayden v. Burkemper, 101 Mo. 644. (4) The court below correctly held that the act of March 20, 1893, could not apply to this case without giving it a retrospective operation. This act took effect June 21, 1893; the sale under the deed of trust was made July 5, 1893; the corn in controversy was a growing crop when the act took effect, and the deed of trust had already attached to it and bound it as security for the debt; otherwise a sale under the deed of trust could not pass title to the crop. If, therefore, the act of March 20, 1893, affects this case as claimed, it destroys a part of respondent’s security by retrospective operation. For a full discussion upon the subject of retrospective laws, see Leete v. Bank, 115 Mo. 184. (5) The action of replevin will lie for corn upon the stalk, when matured. Garth v. Caldwell,-72 M.o. 627; Hayden v. Burkemper, 101 Mo. 648; Salmon v. Feioell, 17 Mo. App. 118; Huff v. Henry, 57 Mo. App. 341. There is no element of estoppel in this case.</p>

— Hon. Rudolph Hirzel, Judge. (1) All distinction between principál and accessory before the fact, has been abolished by section 3944, Revised Statutes, 1889, and said section provides that, such accessory “maybe charged, tried, and punished in the same manner as a principal in the first degree. ” State v. Fredericks, 85 Mo. 145; State v. Anderson, 89-Mo. 312; State v. Buckner, 93 Mo. 88; State v. Payton, 90 Mo; 220.

Prohibition. (1.) The facts disclosed by the petition and exhibits filed in this proceeding invoke the exercise by the court of its original jurisdiction and power of .“superintending control over all inferior courts.’' Sedgwick on Con. Stat. and Const. Law [2 Ed.],. 209; Earl of Ailesbury v. Pattison, Doug. 130; Bex v. Loxdale, 1 Burr. 145; State ex rel. v. Klein, 116 Mo. 259; St. Louis v. Howard, 119 Mo. 41; Press Brick Co. v. Barker, 50 Mo.

Mandamus. (1) A peremptory writ of mandamus should issue upon the facts presented, disregarding the contest sought to be raised by respondent concerning relator’s right and title to the office of superintendent of waterworks. It is well settled by the general doctrine relating to the writ of mandamus, and by a consistent line of decisions of this court, that in this proceeding a contest for an office will not be determined. State ex rel. v. Taaffa, 25 Mo.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (3 ) The Waters-Pierce Oil Company was properly joined as a defendant with the city under section 9, of article 15, of the scheme and charter (R. S. 1889, p. 2143). It is there provided that whenever the city is jointly liable for. a tortious act with another party who resides in this state that then such other party shall be made a codefendant..

<p>1. Written Contract: construction. A ■written contract for the erection of a boiler plant construed and held to call for a plant of six thousand horse power to be paid for at the rate of $18.50 a horse power, and that plaintiffs could not furnish all the power which could be economically produced upon the boilers erected in the plant, as determined by actual test.</p> <p>2. -: -: parol evidence. Parol evidence was not admissible to stow that it was the real intention of the parties to the contract that plaintiff should furnish all the power that the boiler plant would produce, not less than six thousand horse power, and that defendant was to pay for all such power at the rate of $18.50 a horse power.</p>

— Hon. H. M. Ramey, Judge. (1) This court will try the case de novo — try it upon the evidence, as if it had originated here, and was to be tried here for the first time. Lins v. Lenhardt, 127 Mo. 271; Blount v. Spratt, 113 Mo. 48; Mc-Flroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250.

<p>1. Railroad: trespasser on track: negligence. The servants of a railroad in charge of its trains owe, even to a trespasser on its track, the duty of care to avoid injuring him. Such duty arises in all eases so soon as the perilous situation of the trespasser is discovered.</p> <p>2. -: -: -. Where the engineer sees that the trespasser is not informed of his peril, it is the former’s duty to give the latter a sufficient warning, and in time for him to leave the track in safety.</p> <p>3. -: -: -. The fact that the engineer could have seen the trespasser on the track when one eighth of a mile from him and gave no warning till within four hundred feet, is not negligence if such warning was given in time for the trespasser to have safely left the track-</p> <p>4. -: -: -. That the engineer failed to reverse his locomotive and to apply the air brakes as soon as he saw the danger, does not make the company liable if it appears the train could not have been checked in time to avoid the accident.</p>

<p>Appeal from St. Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge.</p> <p>(1) The court erred in sustaining the demurrer to plaintiff’s evidence. (2) Even though deceased negligently walked on defendant’s railroad in the middle of a block in front of a moving car, if the motorman saw him, or by the exércise of ordinary care might have seen him in time to have stopped his train before reaching him, and failed to do so, defendant is liable. Moore v. Bailroad, 126 Mo. 277; Hides v. Bailroad, 124 Mo. 122; Sullivan v. Bailroad, 117 Mo. 221; Eichhorn v. Bailroad, 32 S. W. Rep. 993; O’Mellia v. Bailroad, 115 Mo. 205.</p> <p>(1) Plaintiff is limited to the negligence pleaded. Qwrley v. Bailroad, 93 Mo. 445; Ely v. Bailroad, 77 Mo. 34; Price v. Bailroad, 72 Mo. 414; Waldhire v. Bailroad, 71 Mo. 514; Bieffington v. Bailroad, 64 Mo. 216. (2) It was the duty of the deceased to look and listen before stepping in front of the approaching train of street cars. Smith v. Railroad, 52 Mo. App. 36; Hickman v. Railroad, 17 Mo. App. 65; Booth on Street Railways, p. 126, sec. 312. (3) First. The motorman had the right to assume that the deceased would not expose himself to danger. Yancey v. Railroad, 93 Mo. 133; Baker v. Railroad, 122 Mo. 595; Boyd v. Railroad, 105 Mo. 371; Smith v. Railroad, 52 Mo. App. 36. Second. And that his sight and hearing were good. Condee v. Railroad, 31 S. W. Rep. (Mo.) 1029. Third. Deceased was not in danger until he stepped on the track. Boyd v. Railroad, 105 Mo. 371; Zurfleet v. Railroad, 16 Mo. App. 636. (1) If deceased took his chances on “hurrying around the car, and made a miscalculation, his widow can not recover. Weaver v. Railroad, 60 Mo. App. 207; Booth on Street Railways, p. 125, sec. 311. (5) The rule that plaintiff may recover notwithstanding his negligence, if the defendant, by the exercise of ordinary care, could have prevented the injury after he exposed himself to danger, has no application where a person goes in front of a moving train too near for it to be stopped in time to avert the collision, whether he was seen or not. Prewitt v. Eddy, 115 Mo. 283; Boyd v. Railroad, 105 Mo. 371. (6) Between crossings the street cars have the right of way. Moore v. Railroad, 126 Mo. 265, and cases at page 275. (7) First. Plaintiff should be nonsuited where contributory - negligence appears from either the direct or cross-examination of his own witnesses. Church v. Railroad, 119 Mo. 203; Stone v. Hunt, 91 Mo. 175; Warren v. St. Louis Mer. Ex., 52 Mo. App. 157. Second. If there is no substantial evidence of negligence, plaintiff should be nonsuited. Hyde v. Railroad, 110 Mo. 272; Kennedy v. Railroad, 13 Mo. App. 1. (8) First. Testimony has no probative force where- it conflicts with well known physical facts. Baker v. Railroad, 122 Mo. 533; Hickman v. Railroad, 47 Mo. App. 65; Smith v. Railroad, 52 Mo. App. 36; Weaver v. Railroad, 60 Mo. App. 207. Second. This is true even in criminal cases. State v. Anderson, 89 Mo. 332; State v. Bryan, 102 Mo. 24; State v. Turlington, 102 Mo. 646; State v. Nelson, 118 Mo. 124; State v. Brown, 119 Mo. 527.</p>

<p>1. Examiner of Title: guarantor: reasonable skill and oare. An examiner of title to land does not become a guarantor of such title, but is liable only for the want of reasonable skill and care.</p> <p>2. -: NEGLIGENCE: ACCRUAL OP RIGHT OP ACTION, A right of action for negligence in the examination of title to land accrues at the time the examination is made and reported, and not when damages result therefrom.</p> <p>3. -: -: -: parties. Such right of action exists only in favor of the parties to the contract or their privies.</p>

• Louis County Circuit Court. — Hon. Rudolph Hibzel, Judge. (1) At the time of the sale by the administrator and afterward, until the sale was proved, George Aubuehon and his brothers and sisters were owners of the land described in petition as tenants in common. Sherwood v. Baker, 16 S. W. Rep. (Mo.) 531; Wohleinv. Speck, 17 Mo. 561..

— Hon. P. C. Stepb, Judge. (1) Where both parties claim through a common source of title, it is unnecessary to go back of that common source. JEbersole v. Rankin, 102 Mo. 488; Finch v. JJllman, 105 Mo. 525. (2) Payment of taxes is no evidence of possession. Tax receipts are only admissible in evidence to show the good faith of the claimant. Chapman v. Templeton, 53 Mo., 463; Cashman v. Heirs, 50 Mo. App. 663.

<p>1. Negligence: sidewalk: defective manhole. A person permitted by an ordinance of tbe city to maintain manholes in the sidewalk in front of his premises for the reception of coal must use reasonable care to keep them in a safe condition; nor can he relieve himself from such duty by imposing it on another.</p> <p>.2.--: -1 — : -: independent contractor. Where a coal company, as an independent contractor, delivers coal in the manhole, .the property owner is not responsible for the company's negligence in performing its contract.</p> <p>3. --: -: --: -. Such exemption, however, eon- ■ tinues only while the contractor is engaged in the performance of his ■ • contraef.</p> <p>4. -: - — : -: -. Where such coal company after delivering the coal fails to properly replace the manhole cover, it is for the jury to say whether notice could be imputed to the owner of the premises so as to render him liable for an accident to a pedestrian occurring fifteen minutes later.</p> <p>5. Practice: deposition: nonresident witness. The fact that a nonresident witness is within the jurisdiction of the court’s process at the time the cause is tried will not prevent the reading of his deposition previously taken, if the witness is not actually present in court.</p> <p>6. -: -: -: harmless error. Error in excluding the deposition of a nonresident witness after it was read because of his subsequent appearance in court is not sufficient ground for reversal, where the complaining party was permitted to cross-examine the witness and obtained from him a full confirmation of the evidence given in the deposition.</p> <p>7. --: expert witnesses: jurors. The evidence of expert witnesses is not admissible unless it is clear that the jurors themselves, from want of experience or knowledge of the subject, are not capable of drawing correct conclusions from the facts proved.</p> <p>8. -: instructions: harmless errqr. The giving of abstract instructions, though improper, will not warrant a reversal unless they are clearly misleading.</p> <p>9. Negligence: concurring acts on dependant and third person. Where, in an action for damages resulting from defendant’s negligence, it appears that a single act caused the injury’ and that the damages are inseparable, the fact that another person concurred in producing the injury is immaterial.</p> <p>10. Practice: instructions: harmless error. A refusal, in a suit for personal injuries, to. caution the jury against determining the amount of a verdict by lot is not reversible error, especially in the absence of any complaint as to the amount of the verdict.</p>

— Hon. James Hibson, Judge. (1) The act of the legislature under which the jury was summoned and impaneled in this cause is unconstitutional and defendants’ motion to quash should have been sustained. Laws of Missouri, 1891, p. 172; Constitution of Missouri, art. 4, sec. 53; State v. Jackson Go., 89 Mo. 237; Murnane v. St. Louis, 27 S. W. Rep. 711.

— Hon. James Hibson, Judge. Plaintiffs ought to have proved the -cause of action sued on. In a suit brought on an account there can be no recovery where the proof shows a conversion. Plaintiffs can not sue upon one cause of action and recover upon another.

— Hon. John A. Hockaday, Judge. -(1) The trial court should have allowed the witness, T. H. Hubbard, to testify as to the grade and course of the. railroad at and adjacent to the point of the crossing of the county road.- With a heavy grade and sharp curves at this point the disadvantages to the defendant might be far in excess of any advantages that could possibly accrue. To show such grade and curves was the object of offering such testimony.

<p>1. Deed of Trust: cestui que trust: concurrent remedies. A eestui que trust in a deed of trust given to secure a note may, at Ms option, bring a personal action on the note or a suit to foreclose the equity of redemption, or may bring suit for possession of the premises after condition broken.</p> <p>2. -: note: extension OP time. An extension of time given on a note by the creditor to the debtor must, to be binding, be in a form which will estop the creditor from bringing suit before the expiration of the period of extension.</p> <p>3. -: NOTES, EXTENSION OP TIME ON ONE: SURETY: PRIORITY. The extension of the time of payment of one of two notes secured by the same deed of trust, without the consent of one bound as surety on both notes, and by which he is discharged, does not affect its priority over the second note in the proceeds of the mortgaged property.</p> <p>4. -: -. Nor will such extension of the first note have the effect of extending the second one though both-have matured, by the terms of the deed of trust, because of default in payment of one.</p> <p>5..-: note: maturity: default op payment. A promissory note is not affected as to the date of its maturity by the terms of a deed of trust securing it, declaring that it shall become due on default of payment of another note, except for purposes of enforcing the mortgage security. Noell v. Gaines, 68 Mo. 649, overruled.</p>

— Hon. Richard Field, Judge. (1) Under section 2246, Revised Statutes, 1889, as amended in Session Laws of 1889, at page 70, the interlocutory judgment in partition determines the rights of the parties and is beyond the control of the court making the same after the term at which such judgment is rendered.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. . (1) The action being based on the charge that the plaintiff, Mary Taylor, was injured through negligent, careless, and reckless driving of defendant’s servant, and all of the evidence taken together having failed to establish that charge, but proving on the contrary that the defendant’s servant instead of driving the horse, was being run away with at the time, and was exercising every reasonable effort to avoid doing…

— Hon. D. W. Shackleeobd, Judge. (1) First. Plaintiff held the legal title to the lands described in the petition. The legal seizin and possession followed the title, and defendant must show that he, or those under whom he claims, have had open, notorious, and adverse possession under color of title for the statutory period. Bradley v. West, 60 Mo. 33; Lynde v. Williams, 68 Mo. 360. Second.

<p>1. Fraudulent Conveyance: execution sale: jurisdiction. A purchaser at an execution sale of lands situated in different counties is not required to bring suit in more than one county to set aside the • execution debtor’s conveyance because made in fraud of creditors.</p> <p>' 2. -: -: -: waiver. Where, too, in such case the defendant answers and defends the suit without raising any question of jurisdiction it will be deemed waived.</p> <p>■ 3. —-: -: innocent purchaser. The fact that a purchaser at an execution sale had knowledge of a prior unrecorded deed does not preclude his grantee from being an innocent purchaser.</p> <p>4. Equity: divesting title: decree. A decree vesting title out of the defendants, held to be in effect a decree declaring a declaration of trust void.</p> <p>"5. Partition: limitation: statute. An action for partition is not ■ one for the recovery of lands within Revised Statutes, 1889, section 6764, providing that no action for such recovery shall be maintained unless plaintiff or the person under whom he claims was possessed of the premises within ten years before the commencement of the action.</p>

— Hon. Rudolph Hiezel, Judge. (1) Where defendant in ejectment claims under an administrator’s sale and deed, he is required to show in the first instance, only the deed, the order of sale, and the order of court approving the sale. Price v. Association, 101 Mo. 107. (2) The court was authorized to order the sale of the land in question, although incumbered by the deeds of trust. R. S. 1889, sec. 143.

— Hon. Argus Cox, Judge. (1) This being an action at law, and every material fact which the plaintiffs were required to prove to make out their case being disputed by the defendants, it was error for the court to take the case from the jury and instruct them to find the issues for the plaintiffs. “Whether the plaintiffs were entitled to recover, dependéd upon the sufficiency and weight of the evidence.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in giving interpleader’s instruction.

— Hon. Paris C. Stepp, Judge. (1) There is no evidence to sustain the verdict. The prosecutrix was never in the care, custody, or employment of defendant. State v. Sibley, 132 Mo. 104, dissenting opinion of Judge Sherwood; State v. Arnold, 55 Mo. 89. Criminal statutes should receive a strict interpretation as against the state. 1 Blackstone’s Com., side pp. 87, 88; U. S. v. Wilterberger,5 Y7heat. 76; 1 Bish. Crim. Law, see. 256.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court below should have charged the surviving partner with interest from the different times Im received, the money which was not needed to pay liabilities of the firm, up to the time that the first settlement, was due, as it appears from the evidence that he used the funds in his business.

Louis City Circuit Court. — Hon. D. D. Eisheb, Judge. (1) To warrant the giving of a demurrer to the evidence it must be clear that a man of common prudence, in a like situation, would not have undertaken the work and that no other conclusion is fairly deducible from the evidence, giving the plaintiff the benefit of every favorable inference that may be reasonably drawn from it. Schroederv. Railroad, 108 Mo. 322-333, and cases cited; Millinery Go. v. Bailroad, 59 Mo.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) There is perhaps no principle of law better settled in this state than that a debtor, though in failing circumstances, may prefer one of his creditors over another and in so doing may secure such preferred creditor to the exclusion of all others, provided only that it be done bona fide and in good faith.” Wag-goner, etc., Co. v. Ziegler, etc., Co., 128 Mo. 473; Alberger v. Bank, 123 Mo. 319, and cases cited.

Prohibition. Peremptory writ awarded. Application for prohibition against James E. Withrow, oñe of the judges of the circuit court of the city of St. Louis, on the ground that the Knapp-Stout &Co. Company had applied for a special jury in a certain condemnation proceeding wherein the said St. Louis, etc., Railway Company was plaintiff and the Knapp-Stout Company was defendant, and that the respondent judge had denied such application except in a manner as qualified by a rule…

<p>1. Corporation Created by Special Act: period or existence limited BY general law, when. A corporation created in 1859 by special act of the legislature whose period of existence was not fixed by the act incorporating it, expired by limitation at the end of twenty years, as provided by the general statute in force at the time of the passage of the act creating it. Revised Statutes, 1855, p. 369, sec. 1.</p> <p>2. Corporation: limitation or existence: conveyance: ejectment: evidence. After a corporation's period of existence has expired it ceases to be a corporation do facto and can not execute á valid conveyance, and one claiming by adverse possession, and not being party or privy to such deed, may question its validity as a link in plaintiff's chain of title in an action of ejectment by showing by the law that gave the corporation existence that it was at the time of making the deed incapable of executing a valid conveyance.</p> <p>3. Appellate Practice: error op trial court in granting new trial: presumption op correctness op ruling upon grounds not set out. Where the trial court erred in granting a new trial on the grounds set out in the record, the appellate court will presume that it acted correctly in denying the motion upon other grounds, and, where the motion for new trial containing such other grounds and the action of the court upon them is not contained in the hill of exceptions such action can not he reviewed upon appeal.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in sustaining the objection to the introduction of the bond and contract. (2) It is established beyond controversy in this state, that a person for whose benefit an express promise is made, in a contract between other parties, may have the benefit of such promise. Howsmon v. Trenton Water Co., 119 Mo. 307; Ellis v. Harrison, 104 Mo. 276.

— Hon. R. H. Field, Judge. (1) ' The attempted dedication by A. J. Lloyd in 1866 was ineffectual as a statutory dedication because he was not at that time the owner. Angelí on Highways [3 Ed.], 147; 5 Am. and Eng. Encyclopedia of Law, p. 398. (2) The statute in force at the time required the dedication to be made by the “proprietor” of the property, that is, the “owner” of the same. Glen. Stat. 1865, sec. 1, ch. 44, p. 257; 2 Rap. Law Diet.

<p>1. Railroad: trespasser on track, collision with: negligence. Where a train is running through a populous neighborhood just outside the city limits, where workmen have for years been accustomed to use the track in going to and returning from their work, and the company’s servants in charge of the train see, or by the exercise of ordinary care, may see a person on the track in time to avoid a collision, but fail to use such care, the company will be liable, though the person injured was a trespasser.</p> <p>2. -: -: -: -: instruction. In an action against a railroad company for killing a trespasser on its traek there was evidence that the accident occurred in a populous neighborhood just outside the city limits, where workmen were in the habit of walking the traek; that from the point where deceased was struck the traek was level and straight for two thousand feet in the direction from which the train came, and that no signal was given until the engine was nearly upon the deceased. Held, that it was a question for the jury whether the company’s employees might, by the use of ordinary care, have seen the deceased in time to have averted the accident.</p> <p>3. -: -: -: -: evidence. On the trial defendant inquired of its engineer, who was in charge of the locomotive at the time of the accident, if it was not a common thing to see persons walking on the traek continue to do so after hearing the sounding of the alarm and until the train came near them, when they would leave the traek. Held, irrelevant and immaterial.</p> <p>IN BANC.</p> <p>4. Railroad: trespasser on track: stopping train. The engineer is not required to stop his train if the trespasser is far enough away to warn him, and a timely warning is sufficient until it is seen that for some cause it is not heeded. Then it is his duty to avoid killing even a trespasser, if by the exercise of ordinary care it can be done.</p>

— Hois. E. L. Scarritt, Judge. (1) The court erred in holding the jury law of 1891 was constitutional. (2) The plaintiff must be confined to the cause of action sued on. The cause of action stated is not one at law. France v. Thomas, 86 Mo. 80; Schradski v. Allbright, 93 Mo. 42. (3) A settlement with one of two joint tort feasors extinguishes the entire liability. Mets v. Soule, 40 Iowa, 236. (4) There is no necessity in rescinding a contract to return what is worthless.

— Hon. James Hibson, Judge. (1) Plaintiff’s motion for a new trial is not provided for by statute, but it is made under the common law rule that trial courts have power to vacate their judgments during the trial term. Todd v. Railway, 33 Mo. App. 114; Nelson v. Ghiselin, 17 Mo. App. 665;. Williams v. Court, 5 Mo. 252; 1 Black on Judgts., sec. 297. (2) It is therefore equitable relief, not relief at law, which is sought.

— Hon. John GL Wear, Judge. (1) The evidence shows that the deed of appellants is perfect, as well as first in point of time, and executed for a part of the consideration to be paid for the land. Then they have the superior equity. 1 Story’s Equity, sec. 176 [8 Ed.], and cases cited. (2) A chancery court never interferes to aid a mistake by correcting a deed, except where a superior equity is shown.

<p>1. Husband and Wife: separate estate op wipe: conveyance by-wipe op her equitable separate estate. The purchase of real estate by the husband with money inherited by the wife, which was, under the statute, her separate property and under her sole control (R. S. 1879, sec. 3296), and the taking of the deed in his own name, conveyed to him the legal title in trust for her sole and separate use, and the mortgage of the land by her, without being joined by her-husband, had the effect of passing to her grantees all the equitable-interest she had in the land and was valid and binding on her.</p> <p>2. Married Woman: mortgage op equitable separate estate: securing legal title. An agreement by a married woman, who-had alone executed a mortgage on her equitable separate estate, authorizing the mortgagees to institute such proceedings as might be-necessary to secure the legal title from her husband, was sufficient, authority for them to secure such title by deed.</p>

Charles Circuit Court. — Hon. E. M. Hughes, Judge. The ordinance of the city referred to in the opinion of the division is as follows: — “An ordinance providing for licensing and regulating meat shops or market places in the city of St. Charles, and State of Missouri. “Be it Ordained by the city of St. Charles, in the State of Missouri, as follows: “Section 1.

— Hon. J. H. Slover, Judge. (1) That a party who has paid a judgment, afterward reversed, can recover the same in an action for money had and received is well settled by the current of authorities. Northivestern Fuel Co. v. Brock, 139 U. S. 216, and numerous cases therein cited.

— Hon. Richaed Field, Judge. (1) The conveyance from J. G-. L. Harvey to his brother was in fraud of the grantor’s creditors, and its necessary effect was to hinder and delay them in the collection of their debts then about to ripen into executions. The grantee states that the 'object and purpose of the conveyance was to reduce the debtor’s property into money so as to prevent it from being sacrificed by the legal process, viz., the executions then about to be issued.

<p>1. Ejectment: new trial: excessive damages. Id ejectment, where the defendant answered but made no further appearance, and judgment was rendered against him, the granting of a new trial will not be disturbed on appeal, it appearing that the motion was supported by affidavits tending to show that the damages assessed were excessive.</p> <p>2. Practice: vacating judgment: negligence on parties. The action of a court of general jurisdiction in yacating, during the term, judgments by default and in granting relief against the neglect of parties and their attorneys will not be disturbed on appeal unless such action is elearly arbitrary and oppressive.</p>

— Hon. Argus Cox, Judge. (1) The court improperly admitted the minutes kept by plaintiffs, as there was a record kept by the proper officer. Bhehan v.Jns. Co., 53 Mo. App. 355; Lewinv. Dille, 17 Mo. 69; Ins. Co. v. Loner gran, 21 Mo. 49; Carr v. Carr, 36 Mo. 411; Price v. Hunt, 59 Mo. 261; Olive v. Morgan, 28 S. W. Eep. 573.

Louis City Circuit Court. — Hon. D. D. Fisheb, Judge. (1) The appellant was entitled to a nonsuit.