Volume 134 — Missouri Reports

O. Tichebob, Esq., Special Judge. (1) A bond may be placed in the hands of the beneficiary or obligee to become operative only upon the performance of a condition precedent and if the condition is not performed there is no delivery.

Prohibition. (1) The terms of the act of February 1, 1871, are sufficient to confer jurisdiction on the Jackson county criminal court to hear and determine contested elections for the office of marshal of Jackson county. (2) Section 16 of said act is not in contravention of the provisions of section 32, article 5, of' the constitution of 1865.

— Hon. E. J. Broaddus, Judge. (1) Stockholders may protect their individual rights in eorpprate property, and prevent by equitable action unauthorized acts of officers, the issuing of shares, misappropriation of funds^-in fact any departure from the chartered purposes of the corporation. R’y v. Collins, 40 Gra. 582; Kemp v. Mining Co., 78 N. Y. 159; Chetlain v. Insurance Co., 86' Ill. 220; Terwilligerv. Co., 59 Ill. 249. 10 Am. and Eng.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The measure of damages in a suit by a vendee against a vendor, for breach of contract of sale of land, is the difference between the purchase price of the land sold, and its value when, under the terms of the agreement between the parties, the trade should be closed. Kirkpatrick v. Downing, 58 Mo. 32.

— Hon. J. H. Slover, Judge. (1) One whose acts are the primary cause of an injury to another, for which a city is compelled to respond in damages is liable over to such city for such damages. 2 Dillon's Municipal Corporations [3 Ed.], sec. 1062; St. Joseph v. Railroad, 116 Mo, 637; Portland, v. Richardson, 54 Maine, 46; Littleton v. Richardson, 34 N. H. 179; Boston v. Worthington, 10 Gray (Mass), 496.

<p>Mortgage: sale under power, when set aside: equity. In a suit to set aside a sale made under a power contained in a mortgage, the evidence disclosed that plaintiff held the first nóte due under the mortgage, and that H., one of the defendants, held the other. Plaintiff testified that after the notes (which were for $1,000 each) became due, H.’s agent asked him to join in the foreclosure sale, that he did not then determine to do so, and the agent promised to see him again • before advertising the property, but did not do so, and that plaintiff did not learn of the foreclosure until after the sale. The agent testifying for defendant denied in substance plaintiff’s testimony. The property, which was worth $1,500, was sold for $100. Reid, that the decree of the trial court setting the sale aside would not be disturbed.</p>

— Son. W. N. Evans, Judge. (1) The court erred in excluding the photographic copies of the affidavits of Michael Leane, William K. Annis, James Beard, William Murphy, which were made by those parties as a foundation for the entries of the different tracts of land in controversy. State v. Clinton, 67 Mo. 384; 1 Greenlf. onEv. [12 Ed.], p. 27, sec. 21, p. 614, sec. 570, p. 623, sec. 578, p. 625, sec. 580; G-raduation Act, 1854.

Louis City Circuit Court.— Hon. James E. Withrow, Judge. First. Possession of a bond by the obligee is prima facie proof of its delivery by the obligors who have signed it, even though it be incomplete on its face. 2 Greenl. Ev. [14 Ed.], sec. 297; Williams v. Springs, 7 Ired. L. 384; Bank v. Bidgley, 1 Harr. & Gill. 324; Chandler v. Temple, 4 Cush. 285; Grim v. School Directors, 51 Pa. St. 220; Blume v. Bowman, 2 Ired. L. 338; Ward v. Churn, 18 Gratt.

— Hon. W. W. Rucker, Judge. (1) Every juror who had formed an opinion on the issue from reading in the Democrat the literal or substantial testimony of the former trial was incompetent and totally disqualified under the law of Missouri. Const, of Mo., art. 2, see. 22; Const.

<p>1. Curator: bond: surety: limitation. Where a bond is given in court for the faithful performance of duty by a curator, and the latter takes title in his own name to his ward’s land, incumbers it in 1882 and dies in 1886, due statutory notice being given in 1886 (by his administrator) for presentment of demands against his estate; held, that the administration limitation (sec. 184) did not bar an action brought in 1891 against a surety on the bond to recover ■damages for the expenses of a suit begun by the ward in 1887 to set aside the incumbrance referred to.</p> <p>2. -: -•: -: -. A cause of action accrues on a covenant at the breach thereof; but; where the breach is merely formal, the statute of limitation as to substantial damages (after-wards resulting therefrom) begins to run from the time said damages occur.</p> <p>3. -: -: breaches: distinct causes op action. Damages resulting from each breach of the bond of a guardian or curator constitute a distinct cause of action.</p> <p>4. -: -: -: elements on damages. It is a breach of duty for a curator to take title to his ward’s land,'and then to place an incumbrance upon it to secure his personal loan; and the expenses of a suit by the ward to set aside that incumbrance are but natural and proximate results of the curator’s act. Counsel fees are a legitimate item of such expenses.</p> <p>5. Surety: responsibility fob principal’s acts: estoppel. Where a surety is bound to respond for the consequences of his principal’s act, and is notified of a suit brought to avoid the effect of said act, consents thereto, and participates in said suit, he is answerable for the reasonable expenses of the suit in the circumstances described in. the opinion.</p> <p>fi. -: : Reduction of damages. It is a general rule that parties threatened with damage from the act of another are bound to take such reasonable and available precautions against loss as may be in their power!</p> <p>7. -: : CONSTRUCTION OF SURETY’S OBLIGATION. While the liability of a surety is to be confined to the limits of his engagement, the latter is entitled to such a natural construction as will accord with its purpose and intent.</p> <p>'8. -: : expenses of litigation. A surety, bound to bear the expense of litigation caused by the act of his principal, is entitled to control the same, and is only liable for the reasonable expense thereof.</p>

— Hon. E. L. Scakritt, Judge. The law upon which this proceeding was had, known as the park and boulevard amendment to the Kansas City charter, is in contravention of the constitution of Missouri. First. It casts the burden of paying for a park upon the real estate in one district composing about one third of the city instead of placing it upon the entire city. State ex rel. v. Leffingwell, 54 Mo. 477; Qrisioell Case, 58 Mo. 196. Second.

— Hon. D. P. Strat-ton, Judge. (1) Under the laws of this state, the plaintiff, though a married woman, could maintain her action against the defendants. R. S. 1889, sees. 1996, 6864, 6869; Glow v. Chapman, 125 Mo. 103; Bains v. Bullock, 129 Mo. 117; Arnold v. Willis, 128 Mo. 145.

— Hon. D. W. Shackleeobd, Judge. (1) The court erred in refusing to consider the facts and circumstances tending to show the meaning and intention of the contract of January 18. (2) The contract of January 18 should be construed in the light of the admissions in the contract of June 12, and the fact that the money realized' from the land after Jan-nary 18 was equally divided between the two firms.

<p>1. Supreme Court: jurisdiction: certiorari: constitution. The supreme court has original jurisdiction in certiorari; but its appellate jurisdiction in cases of that kind extends only to those wherein the real dispute falls within one of the classes of eauses over which the court is given jurisdiction by the constitution (art. 6, see. 12).</p> <p>2. -: -: -: -. A proceeding to obtain a certiorari to quash a tax assessment of personal property by a county board of equalization which involves “the construction of the revenue laws of this state,” is within the jurisdiction of the supreme court.</p> <p>3. Certiorari: practice: annulment or tax assessment. Certiorari calls for an exhibit of the record of the body whose action is called in question. It is a proper remedy to annul an increased tax assessment if made without jurisdiction.</p> <p>4. -: -: amended return. Where a return in certiorari is. incomplete, leave may properly be given to file an amended return.</p> <p>5. -: -. In the absence of a statute regulating certiorari, the courts have power to mold the procedure upon that writ according to “the principles and usages of law,” under the common law system, so far as consistent with the existing statutory law.</p> <p>6. -: action of public body. The validity of action by a public. body is generally to be determined on certiorari by its record alone.</p> <p>Y. Taxation: county board of equalization: meetins: notice: constitution. Where a statute appoints a time and place for the. meeting of a county board of equalization to hear objections to an increase of assessment of personal property by said board, such statutory notice is sufficient to answer the requirement of due process of law, under the federal and state constitutions.</p> <p>8. -: -: -: -: VALIDITY OF ASSESSMENT. Such notice as the law requires to be given on increasing a tax assessment, is essential to the validity of that proceeding.</p> <p>9. ■-: exercise of taxing power: constitution. The occasions. and the mode of exercising the power of taxation are within the discretion of the lawmaking authority except as limited by the constitution.</p> <p>10. -: BOARD OF EQUALIZATION: INCREASE OF ASSESSMENT: “DUE process of law.” Where opportunity is given for a hearing upon an increase of tax assessment, ordered by a hoard of equalization, it is sufficient to constitute “due process of law” if the hearing is allowed after the order, and before it becomes a finality.</p> <p>11. -: -: sufficiency of record. Where a taxing board is authorized to act according to their opinion of the matter, it is not necessary to the validity of their action that their record should show that the board heard evidence on the subject.</p> <p>12. -: bank: assessment: estoppel: certiorari. Where a bank returns as its own certain property for assessment for taxation it can not on certiorari successfully insist that that property should have been assessed as the property of its stockholders and not of the bank.</p>

— HoN. Andrew Ellison, Judge. (1) The court should have granted the change of venue. The applicants were the plaintiffs, and gave notice as soon as information was acquired by them. Dowliny v. Allen, 88 Mo. 300; Corpenny v. Sedalia, 57 Mo. 88; State to the use v. Matlock, 82 Mo. 455; Reed v. State, 11 Mo. 380; State exrel. v. Lubke-, 29 Mo. App. 555; State v. Thomas, 32 Mo. App. 159; State v. Shipman, 93 Mo. 157.

Appeal'from Howell Circuit Court. — Hon. W. N. Evans, Judge. (1) The defendant being charged with receiving deposits in the Willow Springs Bank of Howell county, Missouri, as its cashier, knowing at the time of so receiving that the bank was insolvent and in failing circumstances, the state is held to strict proof of the charge as laid in the indictment, and the proof that another received is a total failure of proof. State v. West, 21 Mo.

— Hon. John E. Ryland, Judge. (1) The court erroneously instructed the jury that in determining the weight to be given to defendant’s evidence the jury should consider the fact that the defendant was the accused party and on trial. The attempted qualification of this' error in a subsequent part of the instruction does not remove the vice of the error, but only produces an instruction contradictory in its terms.

— Hon. D. W. Shaokleeobd, Judge. (1) The conclusion of the indictment is insufficient. After stating the circumstances it should draw the conclusion that “so” the defendant feloniously did. 3 Chitty’s Grim. Law, p. 737; State v. Pemberton, 30 Mo. 376; State v. Meyers, 99 Mo. 107; State v. Terry, 103 Mo. 11; State v. Rector, 126 Mo. 328. (2) The application for a continuance was improperly overruled.

— Hon. John E. Ryland, Judge. (1) The statute only applies to judges and clerks of election and persons ejusdem generis. State v. Schuch-man, 33 S. W. Rep. See, also, Endlich on Interpretation of statutes, secs. 85 and 358.

<p>Appeal from Jackson Criminal Court. — Hon. John W. Woeeord, Judge.</p>

<p>1. Criminal Practice: change or venue: waiver. Where it appears that a cause was, with the consent of the prosecuting attorney and the defendant, remanded from the county to which it had "been taken by change of venue to the county in which the indictment was found, and no exception was taken to the action of the court, though the record does not show whether a petition duly verified and supported had been filed by defendant, any objection to such change will be deemed waived.</p> <p>% Criminal Law: manslaughter in second degree, a conviction of manslaughter in the second degree, held, supported by the evidence.</p>

— Hon. E. L. Scar-ritt, Judge. (1) The court erred in the admission of the testimony of the witnesses Sheffield,Braley,Palmer, Eads,and Ul-rich, and each of them, and of the witness, Mahoney, on cross-examination, in relation to the conduct of the sale of the delinquent land list of Kansas City, for the year 1889, and in refusing to strike out said testimony, for the reason that the same was incompetent, irrelevant, and immaterial, under the issues made by the pleadings, and…

<p>1. Mandamus: school election: appointment op election officers. Mandamus is properly brought in the name of the state, on the relation of taxpayers residing in a school district, wherein an election of a school director is to be held, to compel the board and its members constituting the election committee to rescind certain appointments of judges and clerks, made by such committee, for the election of a member of the board.</p> <p>2. -: inferior tribunal: abuse of discretion. While mandamus will not ordinarily lie to control the action of an inferior tribunal in whom a discretion is vested as to the performance or nonperformance of duties devolved upon it by law, yet, if the discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise.</p> <p>3. -: SCHOOL BOARD ELECTION: JUDGES AND CLERKS: VACATION OF appointment. Where a school board has been guilty of a gross abuse of the discretion conferred on it by statute, to fix the time, place, and manner of conducting elections of members of the board, by selecting for purely partisan ends judges and clerks of such election, who are all members of the same political party, and by persistently and arbitrarily refusing to hear or to accede to requests of taxpayers for the appointment of election officers from different political parties, the supreme court, in the exercise of its superintending control over inferior tribunals, will, by mandamus, compel the board to rescind the appointments so made and to select judges and clerks from different political parties.</p>

— Hon. James Gibson, Judge. (1) Where, as here, a homestead has been acquired, it is not lost by abandonment, by a temporary absence for purposes of business, health, or recreation. Duffy v. Willis, 99 Mo. 132; Leake v. King, 85 Mo. 413; Kaes v. 'Gross, 92 Mo. 647; Hobson v. Rough, 20 S. W. Rep. 523; Painter v. Steffen, 54 S. W. Rep. 229: Hines v. Nelson, 24 S. W. Rep. 541; Edwards v. Reid, 58 N. W. Rep. 202; JCaeding v. Joachinsthal, 56 N. W. Rep. 1101.

— Hon. R. F. Roy, Judge. (1) This case has once been heard by the supreme court, and is reported in 109 Mo., page 253. In that opinion the court decided expressly and emphatically that the Mississippi bridge, here in question, was included within the language, no less than the spirit and intent, of section 7765, Revised Statutes, 1889. Therefore we insist that it is not now open to further adjudication, but is res adjudicata as to all questions decided in that opinion.

JError to Atchison Circuit Court. — Hon. CL A. Anthony, Judge. (1) There was no misjoinder of causes of action.. (2) The contract in suit is not against public policy,. the plaintiffs did not agree to run their mill nor in any manner to disregard their duties as millers. Koehler v. Feuerbacker,' 2 Mo. App. 11; 3 Am. and Eng. Encyclopedia of Law, p. 875. (3) The plaintiff had the right to liquidate the damages in their contract.

— Hon. A. M. Woodson, Judge. (1) The court erred in overruling the motion of contestee to strike' out the amended notice of contest ■filed by the contestor, and also erred in overruling the •objection made by contestee to the introduction of any testimony under the amended notice of contestor. The election was held November 6, 1894. The original notice of contest was sei’ved by contestor on contestee November 27, 1894.

— T. J. Smith, Esq., Special Judge. (1) First. The bond and coupons, calling as they do for an attorney’s fee, are nonnegotiable instruments, under the decisions of this state. Bankv. Gay, 63 Mo. 33; Sannstag v. Conley, 63 Mo. 476; Bankv. Marlow, 71 Mo. 618; Bankv. Gay, 71 Mo. 627; Bank v. Jacobs, 73 Mo. 35; McCoy v. Green, 83 Mo. 633; Hope v. Barker', 112 Mo. 338. Second.

— Hon. W. W. Eucker, Judge. (1) The dealing in lottery tickets has been outlawed by the laws of the United States and by the postoffice department as being against good morals and public policy generally. Buhe v. Buck, 124 Mo. 178; 3 Am. and Eng. Encyclopedia of Law, p. 556. (2) There was no evidence whatever that the tickets were jointly purchased in Louisiana; the evidence shows separate and independent purchases.

<p>1. Ejectment: obstruction of street: abutting owners. Property owners can maintain ejectment for tlie permanent obstruction of the surface of the street adjoining their property.</p> <p>2. City: addition: streets: title of abutting owners. Under Revised Statutes, 1855, page 1536, section 8, providing that the plats of additions to a city shall be a sufficient conveyance to vest the foe of such parcels of land as are therein intended for public use in the . county in which the city is situate for the uses therein named, the . grantees of lots abutting on streets designated in the plat will acquire the beneficial right in the land to the center of the street subject to the public easement.</p> <p>B. -: vacation op STREET: addition: statute. On the vacation of a street which was the boundary of the addition to the city, held, the title to the street under the statutes vested in the property owners on each side thereof to the center of the street. (Laws, I860, p. 200; Laws, 1877, p. 186.)</p>

— Hon. D. P. Strat-ton, Judge. The following are the instructions given and refused, called for in the opinion of the court. Given by the court of its own motion: “1. The defendant is presumed to be innocent until proven guilty beyond a reasonable doubt; if you have a reasonable doubt of defendant’s guilt you will acquit him, but such doubt should be a substantial one, founded on the evidence and not a mere possibility of innocence. “2.

— Hon. D. W. Shackleford, Judge. (1) The evidence of the value of the services of Cosgrove & Johnston was all oneway; there was no conflict whatever as to their valúe. The only question in issue before the jury was whether they had been employed. The jury found that there was an employment, and there being no conflict of testimony about the value of. the services, the jury should have found that plaintiffs were entitled to the full amount sued for.

— Hon. James. T. Neville, Judge. (1) The paper referred to in the pleadings and evidence in this case as “the two year note” relied on by respondent, not having been accepted by respondent, though recited in the deed of trust, had no legal existence as evidence of indebtedness. Chitty on Contracts [9 Am. Ed.], page 8, sec. 9, and notes 1 and 2; Bobin-son v. Estes, 53 Mo. App. 587; Green v. Cole, 103 Mo. 70; Taylor v. Von Schraeder, 107 Mo. 206.

<p>1. Fraudulent Conveyance: chattel mortgage: retention AND DISPOSITION BY MORTGAGOR: PAYMENT OP MORTGAGE DEBT. A chattel mortgage which by its terms allows the mortgagor to remain in possession of the mortgaged property and sell and dispose of it and apply the proceeds to the payment of the mortgage debt is valid on its face as against other creditors of the mortgagor.</p> <p>2. -: -: -: benefit of mortgagor: extrinsic evidence. A chattel mortgage which by its terms allows the mortgagor to retain possession of the piortgagod property and sell and convert the proceeds to his own use is void on its face, as against creditors; and if such power is not given by the terms of the mortgage itself, but is given by the mortgagee by agreement outside the mortgage, it will have the same effect.</p> <p>3. -: -: practice. Where a chattel mortgage is not void on its face, and the extrinsic evidence as to its fraudulent character is not conclusive, the question of fraud is one for the jury, under proper instructions.</p> <p>4. -:-: REGISTRY: POSSESSION OF MORTGAGEE. Failure to record a chattel mortgage avoids it as to all persons, except the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee, trustee, or cestui que trust, and such change of possession must be actual, open, and visible, regard being had to the situation and character of the property, and it must take place before the rights of third parties intervene. R. S. 1889, see. 5176.</p> <p>5. -: DEED ABSOLUTE ON ITS FACE: WRITTEN DEFEASANCE: SEORET trust: creditor: estoppel. A deed absolute on its face and duly recorded, which is modified by an unrecorded contemporaneous written defeasance, in the nature of a secret trust for the benefit of the grantor, is fraudulent as to tho creditors of the grantor, and the fact that a creditor took a like security in no way changed the nature of such absolute deed or estopped the creditor from showing its true character.</p> <p>6. -: solvency of debtor: attachment. The fact that a debtor who fraudulently disposes of a part of his property is solvent will not defeat an attachment upon the ground of such fraudulent disposition.</p>

— Hon. C. C. Bland, Judge. (1) The judgment in this cause is erroneous. It divests the plaintiff of all right, title, and interest toad the lands described in his deed from the St. Louis & San Francisco Eailway Company. The issues in this cause only involve the title to lots 13 and 14, in block 63, and Eleventh street, which runs or did run through the north end of said land, being a part of southeast quarter of the southeast quarter of section 8, township 37, range 12.

— Hon. P. C. Stepp, Judge. (1) A verbal contract not to be performed within one year’s time is within the statute of frauds and void. R. S. 1889, sec. 5186. (2) A verbal contract to extend the time of payment must be founded upon a valid consideration. Pingree on Mortgages, sec. 1536; Frasier v. University, 39 Ind. 556; Loomis v. Donovan, 17 Ind. 198; Fishv. Haywood,, 28 Hun (N. Y.), 456; Jones on Mortgages [5 Ed.], sec. 1180.

— Hon. H. C. Biley, Judge. (1) First. Section 6669 and the following, Bevised Statutes of 1889, provides what territory may be organized into a levee district by the county courts in the several counties and the method to be pursued in procuring said organization; the qualification of the members of the levee bpard, etc. Each of the provisions of said section is negatived by the petition.

— Hon. P. 0. Stepp., Judge. Under the agreed statement of facts the court below erred in rendering final judgment against appellant, because: First. The Iowa court in the garnishment proceedings set out had jurisdiction of the parties, and the wages garnished. 'Wyeth v. Lang, 127 Mo. 242; 54 Mo. App. 147; 29 S. W. Rep. 1010; Mooney v. Railroad, 60 Iowa, 346. Second.

— Hon. W. W. Wood, Judge. (1) There is no evidence that any of the purchasers in this case relied upon the statements of E. N. Peyton as to where the lines were. The purchasers had equal means with the sellers of information as to where the lines were.

— Hon. Howard Gray, Special Judge. There is nothing in the constitutional question raised. It is raised for the first time in this court. Courtiuright v. Crow, 44 Mo. App. 568.

— Hon. J. C. Lamson, Judge. The appellant’s demurrer to the evidence should have been sustained. If there is no evidence to support an issue, it is the duty of the court to instruct the jury. Alexander v. Harrison, 38 Mo. 258; McFarland v. Bellows, 49 Mo. 311.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The fund here contended for belongs to the legal owner of the lots February 21, 1881, the date of the judgment in the condemnation proceedings. Hilton v. St. Louis, 99 Mo. 199. (2) At the date of the judgment in the condemnation proceedings Mary E. Tanner was the legal and equitable owner of the lots in controversy here.

— Hon. John E. Ryland, Judge. (1) Sections 3931, 3932, Revised Statutes, 1889, are unconstitutional. First. Because the enforcement thereof would, tend to deprive citizens of the state of their liberty or property without due process of law. Second.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. It is submitted that the court below erred in holding that the reversionary lease made by Eugenia Reel, the life tenant, May 21, 1889, to begin on May 21,1891, was, by virtue of the power of May 21, 1860, binding upon the appellant as assignee of the remainder-men after the death of the life tenant, and that the lease should have been held to have been terminated as to the appellant, upon the death of the life tenant, on…

Mandamus. (1) The return is false in fact, known to respondent to be false, was not authorized by him, or made under any instructions from him, and is a contempt of this court. State v. Railroad, 41 N. J. L. 250; Bac. Abr., Mandamus; Merrill on Mandamus, sec. 282. (2) The traverses in the return are not positive averments of fact, but allegations on information, or vague and undefined denials, which nowise show a right to refuse obedience to the-alternative writ. High on Ex.

— Hon. E. L„ Scarritt, Judge. (1) We contend on the facts shown by the evidence, that plaintiff did not make a note, but that the instrument was obtained from her by fraud and false statements and pretenses; that defendants and their agents not only used the husband Bruno MoOckel as a “mere conduit” for the purpose of conveying their fraudulent schemes to the ears of the wife, plaintiff herein, but coerced him by the fear of criminal prosecution for embezzlement, into acting…

— Hon. C. A. Anthony, Judge. (1) The preponderance of the evidence, considered with the physical facts in this case, is so great as ■ to imply gross partiality, prejudice, or misconduct on the part of the jury. Wilson ,v. Albert, 89 Mo. 544, and cases cited; Hunt v. Railroad, 89 Mo. 608; JDeering v. Saum, 56 Mo. 479; Balter v. Btonebraker’s Adm’rs, 36 Mo. 345; Powell v. Railroad, 76 Mo. 85; Spohnv.

Louis City Circuit Court. — Hon Daniel Dillon, Judge. (1) Where one holds an estate in one trust capacity, which he is required to pay or1 deliver to himself in another trust capacity, inasmuch as he can not sue himself, the law eo instante transfers the estate from himself in the one capacity to himself in the other.

■ Prohibition. (1) The right of the relator to a special .jury is unquestioned, the controversy being as to what is a special jury and how the same is to be selected. It will be observed that under the Act of 1891, page 172, the mode of selecting a special jury is the same as that of an ordinary one, namely, by drawing from the wheel.

<p>1.. Negligence: variance. Where, in an action against a railroad for personal injuries caused, by its negligence, the petition charges the injury to have occurred in a certain street, and the evidence shows that it happened elsewhere in the city, such variance is immaterial.</p> <p>2. -: instructions: contributory NEGLIGENCE. Where defendant’s instructions in such case fully set forth the defense of contributory negligence, he can not complain that plaintiff’s instructions omitted to state the facts necessary to constitute such defense, and this is true although such instructions as given for plaintiff authorized a recovery, if the negligence of defendant was the direct cause of the injury, “without negligence on plaintiff’s part contributing thereto.”</p> <p>3. -: -. Defendant can not complain of an instruction given for plaintiff as erroneous, because it requires him to prove more facts than were necessary to entitle him to recover.</p> <p>4. Railroad: city: regulating speed of trains. The authority of a city, under its police power, to regulate the speed of railroad trains within its limits, is not restricted to its streets and crossings.</p> <p>5. - — : -: ordinance: negligence per se. The running of a railway train at a rate of speed in violation of a eity ordinance, is negligence per se.</p> <p>6. -: -: NEGLIGENCE: QUESTION FOR jury, when. Whether such negligence is the proximate cause of the injury caused by the train colliding with plaintiff is, where reasonable minds may well differ, a question for the jury.</p> <p>7. -: -: -. The evidence showed that plaintiff was riding a mule within the corporate limits of a city, and had stopped at a house near the track, when, seeing a train coming, he endeavored to ride at a safe distance; the whistling of the locomotive frightened the mule so that it became ungovernable, and carried plaintiff upon the track, where the collision occurred. It did not appear that plaintiff knew the animal was afraid'of the cars. Held, the question of plaintiff’s contributory negligence was properly submitted to the jury. {Moore v. Bailroad, 126 Mo. 265, distinguished.)</p>

— Hon. D. W. Shackle-ford, Judge. The following are the plats and surveys referred to in the opinion: EXHIBIT F. Township 45 north, range 12 west, of the fifth principal meridian, south of Missouri. EXHIBIT D. Crandall land — Plat of fractional sections numbers 16, 21, and 22 as surveyed by me, and accretions to said sections, surveyed April 10, 1891. In township 45 north, range 12 west, fifth principal meridian. B. C. Bond, surveyor of Cole county, Missouri.

Louis City Circuit Court. — Hof. Daniel Dillon, Judge. Held: that he could not recover damages from the town. Barnes v. Inhabitants, 138 Mass. 67. “A dangerous place twenty-five feet from the highway, clearly would not be in such dangerous proximity as to make traveling on it unsafe.” Murphy v. Gloucester, 105 Mass. 470.

— Hok. W. S. Herndon, Judge. (1) The court erred in overruling plaintiff’s objections to the admission of evidence in support of the allegations made in defendant’s amended answer relating to the alleged purchase, by Chestnut, of the Wy-andotte property. Rawle on Covenants for Title [3 Ed.], p. 66.

D. W. Shackleford, Judge. The defendant appeals to this court because of his ■conviction and sentence under the provisions of section 3487, Revised Statutes, 1889: “If any guardian of any female, under the age of eighteen years, or any other person to whose care or protection any such female shall have been confined, shall defile her, by carnally knowing her, while she remains in his care, custody, or employment, he shall, in eases not otherwise provided for, be punished by…

— Hoh. J. H. Sloveb, Judge. • The demurrer to the evidence should have been sustained. Plaintiff’s own evidence showed clearly that the deceased was guilty of contributory negligence. The case was, therefore, not entitled to be submitted to the jury. On approaching the crossing the deceased was bound to exercise ordinary care — to both look and listen for approaching trains.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court gave improper and erroneous instructions at the request of defendant. Schepers v. Railroad, 126 Mo. 665. (2) The plaintiffs should have been awarded a new trial in view of the extraordinary developments in this cause subsequent fco the verdict. Sec. 2240, R. S. 1889, p. 577; Hurlbut v. Jenkins, 22 Mo. App. 572; State v. Murray, 91 Mo. 103; State v. Wheeler, 94 Mo. 254; State v. Bailey, 94 Mo. 316. First.