Volume 137 — Missouri Reports

— Hon. William S. Herndon, Judge. (1) Evidently defendant’s motion to quash the indictment for the reasons given in the motion should have been sustained-and the court erred in overruling it. Under no phase of the case could Lizzie Shreve be a witness against the defendant for the reason of the allegation in the indictment as to her being his wife. (2) When charged with bigamy a man’s alleged wife can not be a witness against him.

— Hon. D. P. Stratton, Judge. (1) The defendant will not be heard to complain of the failure of the court to instruct the jury upon all the law or upon any particular branch of the case, for the reason that he failed to except to the action of the court to instruct the jury at the time. State v. Paxton, 126 Mo. 500; State v. Canilin, 118 Mo. 111.

Louis Criminal Court. — Hon. Thomas B. Haevey, Judge. (1) The record shows that the management of the case in the trial court by appellant’s attorney was so totally lacking in care and skill that he did not have that fair trial which the constitution guaranties and to which of right he is entitled. White v. Washington, 1 Barnes, 411; Godefroy v. Dalton, 6 Bing. 460; Reece v. Rigby, 4 B. & Aid. 202; Sharp v. Mayor, 31 Barb. 578.

Louis Criminal Court. — Hon. Thomas B. Harvey, Judge. (1) The crime of sodomy can only be^perpetrated upon one particular part of the body, to wit, the anus, and it must be charged that the attempt was made upon that part of the body. To unbutton the trousers and expose the bare body and lie upon the bare body, does not constitute the offense of attempt at sodomy. Criminal Defenses, p. 103; B. v. Jacobs, R. & R. 331. (2) The evidence is insufficient to sustain the conviction.

— Hon. W. W. Wood, Judge. (1) An ágreement, though verbal, that one of the two mortgages executed at the same time shall be a first lien, will be enforced, although the mortgage foreclosed was postponed first. Bigler v. Light, 90 Pa. St. 235; Beasley v. Henry, 6 111. App. 485; Mazev. Burk, 12Phila. 335.

— Hon. Rudolph Hibzel, Judge. Motion to tbanseeb to coubt in banc oyebbuled. The testimony tended to show the following: That defendant and deceased were husband and wife and had been married some four years prior to the homicide; that their family at the time of the killing consisted of themselves, a child, Louis, two years of age, a servant girl named Katie Hahn, and a cook named Annie Mace. They resided at house number 1724, South Compton avenue, in the city of St. Louis.

— Hon. Wm. . S. Hekndon, Judge. (1) The court erred in not granting the continuance as asked by defendant. State v. Anderson, 96 Mo. 241; State v. Maddox, 117 Mo. 617. (2) The court erred in permitting Krause (who was jointly indicted with defendant) to testify. See State v. Chyo Chiagk, 92 Mo. 395. (3) The verdict is against the law and the evidence.

— Hon. Chaeles W. Sloan, Judge. (1) It was the duty of the trustee to accept the receipt of the plaintiff for the’ surplus over and above the debt, interest and costs of sale. Boots v. Bistine, 44 N. E. Rep. 15. (2) After having made a valid sale and having the debt, interest and costs of sale, and a receipt for the surplus, tendered him, the trustee had exhausted his power and should have been restrained from making another sale and thus sacrificing the plaintiff’s property.

— Hon. John W. Wofford, Judge. (1) It is the duty of the trial court to instruct on the low grades of the offense which the evidence tends ■to prove. State- v. Turlington, 102 Mo. 642. (2) In.struction number 9 does not define either an assault or a rape. Furthermore it is erroneous in that it assumes that the witness Ola B. Sanders was under fourteen years of age. (3) The court should have instructed on common assault. State v. Banks, 73 Mo. 592; State v. Mwrphy, 14 Mo.

— Hon. W. W. Rucker, Judge. (1) The jurors, J. H. Carson, Milton Park, R. T. Murry, Henry E. Williams, J. T. Price, John Woolston, D. B. Higgins, and William J. Large were not qualified jurors, and the court committed error in disallowing defendant’s challenge to said jurors. State v. Cullen, 82 Mo. 623; State v. Walton, 74 Mo. 270; State v. Bryant, 90 Mo. loc..cit. 279; State v.Bobinson, 117 Mo. loe. cit. 659 and 660.

<p>Appellate Practice: bill of exceptions. Where appellant files no bill of exceptions, and no error appears upon the record proper, the judgment of the lower court will be affirmed.</p>

Louis Court of Criminal Correction.— Hon. David Murphy, Judge. (1) The statute in controversy is constitutional; it falls under the police powers of the state. Tiedeman, Police Power, sec. 85; Wáshington v. Ah Lun,-9 L. R. A. 395; Cooley on Cons. Lim., secs. 390-393.

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. It appears from the record that the appellant was indicted for a fdlony, viz., receiving stolen property, etc., of the value of $33.60, but was convicted of a misdemeanor, viz., receiving stolen property of the value of less than $30. This court therefore has no jurisdiction of the appeal and the cause should be certified to the St. Louis court of appeals. State v. White, 109 Mo. 223; State v. Saye, 109 Mo. 225.

Louis Circuit Court. (1) Relfe and Chew had no right to redeem from the sale to Simpson under two years and six months after the sale to Simpson, by the terms of the statute, therefore their sale in October, 1823, was void, as Hammond had the exclusive right to redeem for two years and six months after August 24, 1821.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The petition is one at law to which defendant interposed a general denial, and also an equitable defense, but the court ignored the equitable defense and tried the case on the legal issues alone.

<p>Supreme Court: appellate jurisdiction: constitutional question. In a prosecution by a city for violating an ordinance requiring a license to sell fresh meat at wholesale for which the city shall charge one hundred dollars, a motion to quash the proceeding because the complaint does not state a cause of action or any offense against the laws of the city or state, does not raise a constitutional question, and the supreme court is without jurisdiction on appeaj from a judgment sustaining the motion.</p>

Louis City Circuit Court. (1) An executor or administrator is not a proper party defendant in a bill for partition of the lands of the decedent. The court erred in overruling defendant Herman Nagel’s demurrer to the petition. Throckmorton v. Pence, 121 Mo. 50; Freeman, Cotenancy and Partition, sec. 471; Speer v. Speer, 14 N. J. Eq. 240; Garrison v. Cox, 99 N. C. 478; Tindal v. Drake, 51 Ala. 574; 17 Am. and Eng. Ency. Law, p. 723.

<p>Appeal from, Bay Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

— Hon. James H. Lay, Judge. Certified from Kansas City Court of Appeals. (1) Plaintiff assumed the risk incident to his position, since it was more dangerous than that regularly provided for passengers, and since he took it, not from necessity, or at the request of defendant, but for his own pleasure. Carroll v. Bailroad, 107 Mo. 653; Tuley v. Bailroad, 41 Mo. App. 432; Smotherman v. Bailroad, 29 Mo.

— Hon. E. J. Broaddus, Judge. (1) Appellant relies for a reversal, upon the action of the court below, in overruling motion for new trial and motion in arrest. If Henderson bought to the row of trees or to a point south of them, or even to a point south of the north fourth of lot 8, then appellant is entitled to a reversal. Diggs v. Kurts, 33 S. W. Rep. 815; Flynn v. Herye, 4 Mo. App. 360.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in admitting the testimony of Michael Hammel regarding the acts and intentions of the appraisers, and his interpretation of their award, which were objected to by defendant. Wyatt v. Bail-road, 14 S. E. Rep. 683; Turner v. Williams, 10 Wend. 141. (2) The court erred in refusing the declarations of law and finding of facts asked by defendant. See authorities cited under point 3.

— Hon. W. S. Herndon, Judge. (1) Condemnation proceedings should be construed in strict conformity to the law, and if not, they are null and void. Shaffer v. St. Louis, 31 Mo. 264; Lind v. Clemens, 44 Mo. 540; Swan v. Railroad, 38 Mo. App. 593; Fore v. Hook, 48 Mo. App. 260. (2) The order of publication was not published for three weeks before the twenty-fourth of December, and it did not set out the jurisdictional facts.

— Hon. W. W. Wood, Judge. (1) The petition states good grounds for setting aside and vacating the sheriff’s sale under execution. McKee v. Logan, 82 Mo. 528; Cole County v. Madden, 91 Mo. 592; Keiser v. Gammon, 95 Mo. 217. (2) This proceeding is, by the terms of the statute, to be conducted in the same manner and with like effect as though it were a judgment and execution in a foreclosure proceeding in the circuit court. R. S. 1889, sec. 8059.

— Hon. W. M. Eobinson, Judge. (1) It is the province of the jury to determine questions of fact which are at issue in a case. The court should not instruct them to draw inferences which are not legal. Moses v. Eddy, 28 Mo. 382; Smith v. Hutchison, 83 Mo. 690. (2) If there is any evidence relevant to the allegations, it is for the jury to determine their sufficiency, and the jury may make all reasonable inferences from the facts in evidence.

— Hon. W. W. Rucker, Judge. (1) The charge of uttering a forged note purported to have been made by “J. Mugumry” is not supported by proof of one purported to be executed by J. H. Montgomery. The variance was fatal. (2) The court erred in giving instructions at the instance of the state. (3) The court improperly overruled the motion for a new trial.

<p>Appeal from Bay Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

— Hon. Dorsey W. Shackleford, Special Judge. (1) The defendant pleaded, and sought to show by testimony, that he had discharged his duty by calling upon the collector and paying all the taxes that were, assessed and charged against him for the years 1888, 1889, and 1890. The circuit court committed reversible error in refusing to allow him to plead and show this as a matter of defense. Harness v. Cravens, 126 Mo. 233.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Defendant was entitled to have a copy of the indictment served upon him at least forty-eight hours before his plea — and, therefore, before the trial. First. The statute requires it. R. S., sec. 4138. Second. The constitution guarantees it. See. 22, art. 2, const.; sec. 30, art. 2, const.; State v. Green, 66 Mo. 631; State v. Davis, 66 Mo. 684; secs. 22 and 30, art. 2, const.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The circuit court of St. Charles county has no jurisdiction of a suit in ejectment, unless the land sued for is within the county of St. Charles. Even consent of the parties could not confer original jurisdiction. R. S. 1889, sec. 2011; Field v. Maloney, 78 Mo. 172.

(1) A tender of a bribe to a justice of the peace, corruptly to decide a cause not pending, but afterward to be instituted before him, the bribe being declined, and the suit never undertaken, has been held indictable at common law, though not within certain statutes. 2 Bishop’s New Crim. Law, sec. 89; Barefield v. State, 14 Ala. 603.

(1) The information in this case follows the language of the statute creating the offense and fully sets out all the facts necessary to constitute the offense and to inform the defendant of the nature and character of the charge he is required to meet. Laws 1895, p. 226. (2) It is contended in the motion found in the record that this act is amendatory to section 7077, Revised Statutes 1889. This is not true.

— Hon. D. P. Stratton, Judge. (1) The evidence having disclosed that the defilement of the prosecuting witness occurred in Polk county, if it occurred anywhere, defendant’s demurrer to the evidence should have been sustained. The venue as laid must be shown by the proof to be in the proper jurisdiction. Constitution, art. 2, sec. 22; R. S. 1889, sec. 3986; State v. McGinnis, 74 Mo. 246; State v. Smiley, 98 Mo. 605.

— Hon. W. S. Herndon, Judge. On conviction of murder in the second degree, ten years in the penitentiary was awarded defendant. The indictment charged defendant with murder in the first degree, in that he had shot his father-in-law, Jacob Oxford, to death with a pistol on the sixth day of October, 1895.

— Hon. B. E. Tubneb, Judge. (1) The executions having been issued from the Hannibal court of common pleas, and made returnable to that court, the levy of them on the lands in Ralls county brought said lands, so far as said executions were concerned, under the exclusive jurisdiction of that court. Fisher, by buying at the execution sale, brought himself within that jurisdiction.

— S. W. Moore, Esq., Special Judge. . (1) The sixth instruction given at request of defendant is a proper declaration of the law applicable to this case. The breach of duty, upon which an action is brought, must be not only the cause but the proximate cause of the damage to plaintiff. 1 Shear. & Redf.

— Hon. John A. Hockaday, Judge. (1)The claim of Matilda Ballenger that all the real estate in controversy was purchased with her money is without substantial evidence to support it. (2) The' unreasonableness of the contention that she did not know that the title to the property in controversy was in her husband until after he had failed and executed and delivered to her the deed in question on the twenty-eighth day of December, 1893, is clearly shown by the evidence.

— Hon. E. M. Hughes, Judge. Transferred from St. Louis Court of Appeals. (1) The former awards of damages to defendant bar any subsequent action by the same parties to condemn this same property for the same use, and this court erred in rejecting this evidence and refusing defendant’s several refused instructions. Rogers v. St. Charles, 3 Mo. App. 41; Wilherson v. Buchanan Co., 12 Mo. 328; St. Joe v. Hamilton, 43 Mo. 282.

Louis City Circuit Court. — Hon. Jambs E. Withrow, Judge. Appellant contends that the trial court erred in granting the new trial for the following reasons: First. The plaintiffs have no cause to complain in any event as the verdict on the evidence should have been for defendant, (a) No evidence or inference of defendant’s negligence. Overholt v. Vieths, 93 Mo. 422; Blanton v. Bold, 109 Mo. 64; Randle v. Railroad, 65 Mo. 325; Smilie v. St. Bernard Bollar Store, 47 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The trial court had no right to give a peremptory instruction for defendant at the close of the whole case on the ground that defendant’s evidence conclusively established either want of negligence on its part or contributory negligence on the part of Louis Winkler.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The ten years bar of the statute of limitations governs the remedy in this ease. Such is the law applicable to suits seeking to enforce trusts in real estate. Ins. Co. v. Smith, 117 Mo. 261.

— Hon. E. J. Broaddus, Judge. (1) The court erred in admitting testimony regarding the feasibility of the proposed roadway, in permitting the map, exhibit 11 A,” to be introduced in evidence, which map was not a faithful representation of the land either at the time the land was taken or at the trial, and was based wholly upon the imaginations and conjectures of defendants, and in allowing certain witnesses to testify to the value of the lands with the proposed road located…

Prohibition. (1) By the state constitution this court is vested with á general superintending control over all inferior courts with the power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. State constitution, art. 2, sec. 3; State ex rel. v. Rossr 122 Mo. 164; State v. Mead, 36 Mo. 232; 8 Bacon’s Abr., p. 266.

— Hon. E. M. Hughes, Judge. (1) The legislature alone can prescribe the form of procedure. Musick v. Railroad, 114 Mo. 309. (2) “The question whether the contemplated use be really public shall be a judicial question and as such judicially determined” is the language of the constitution. The pleading of the plaintiff in this ease shows that the proposed ditch was for a public use or purpose, and all the evidence shows likewise.

— Hon. W. W. Rucker, Judge. (1) The evidence in this record does not establish with certainty the age of the prosecutrix, nor does it disclose any fact or circumstance from which her age may be fairly and conclusively deduced. (2) The crime charged was not established.

— Hon. W. N. Evans, Judge. (1) An entry or land warrant location with the register or receiver of the land office is sufficient upon ■which a plaintiff can recover in ejectment, whether patented or not; and even if the patent was void for having been issued after the death of Tobler, the entry-made by him at the land office was sufficient to authorize his heirs or their assigns to recover in ejectment. R. S. 1889, sec. 4627.

<p>1. Municipal Corporation: nuisance: failure to enforce ordinance. A city is not liable for damages sustained by a property owner because it failed to prevent the erection of a wooden building on an adjoining lot, in violation of an ordinance.</p> <p>2. Pleading: petition, sufficiency against demurrer. A petition which charges that defendants have erected and maintained a frame building, on lots adjoining a building owned by plaintiff, in violation of a city ordinance, and which is a public nuisance under such ordinance, and a constant menace to the safety of plaintiff's property, and the latter is damaged thereby, states a good cause of action for damages as against a demurrer.</p>

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. • (1) The owner of land owes some duty even to a trespasser, and the law will not permit him to take advantage of the trespass to inflict serious injury either by his own hands or through snares and deáthtraps. Bishop on Noncontraet Law, secs. 846 and 847. ■ 1' Thompson on Negligence, notes sec. 2, on p. 300.

— Hon. E. M. Hughes, Judge. Certified from St. Louis Court of Appeals. (1) The application of Joseph L. Harris in the circuit court for writ of certiorari should have been denied, because his petition shows that he did not own the land over which the private road is located. Moore v. Bailey, 8 Mo. App. 156. (2) When a bill of exceptions is made part of the record, as in this case, the appellate court will accept it as absolute verity. Christian v. Night, 19 Mo.

— Hon. Richaed Field, Judge. (1) The judgment should be reversed because the finding of facts is contrary to the evidence in the case. Blount v. Spratt, 113 Mo. 48; McElroy v. Maxwell, 101 Mo. 294. (2) The judgment in the case of Taylor v. Short, rendered on stipulation of the parties is not res judicata. It certainly does not conclude the defendant from denying that the mill property belonged to him and plaintiff as partners. Freeman on Judgments [3 Ed.], secs. 257, 258.

<p>1. Municipal Corporations: railroad: use op streets. The power of municipal authorities to grant the right to a railroad company to lay its tracks along the streets of the city is not absolute; it can not confer such power if the operation of the road will destroy the use of the street as a public thoroughfare.</p> <p>2. -•: -■:--: presumption. Where, however, a city by its ordinance grants the right to a railroad company to construct its road in a public alley and such privilege is accepted, a presumption arises that the power was properly exercised, and that due regard was had for the rights of the public and the adjoining property owners.</p> <p>3. -: -: -. Cities can not authorize the use of the public streets for purely private purposes.</p> <p>4. -■: --: -: constitution. Under the constitution of Missouri, article 12, section 14, which declares that all railways are public highways and all railroad companies common carriers, a switch track, constructed in a public alley on an established grade by authority of the city connecting with the main line and operated by the railroad company, is for public use; and this is true notwithstanding the ordinance granting the license provided that no ears should be set on the switch except for the use of the adjoining property owners, nor be permitted to remain thereon for any length of time between certain designated streets.</p> <p>5. -: -: -: -. The mere fact that a railroad company restricts the use of a switch track to the carriage of property does not make the use of the track private.</p>

— Hon. E. J. ' Broaddus, Judge. (1) To appeal under section 2253, Revised Statutes 1889, the certified copy of judgment and record entries and order granting appeal, must be filed in the office of the clerk of the supreme court fifteen days before the first day of the return term. Rodney v. Bryne, 1 Mo. 742; Boggs v. Ins. Co., 31 Mo. 499; Caldwell v. Hawkins, 46 Mo. 263; In re Drake Estate, 7 Mo. App. 512; Ellis v. Wyett, 10 Mo. App. 580; Kumwick v. Castleman, 21 Mo.

— Hon. W. S. Hebndon, Judge. Plaintiff had judgment in the circuit court on two special tax bills for an amount in excess of $2,500. Defendant appealed.

Certified from Kansas City Court of Appeals. (1) The court erred in refusing to instruct the jury that plaintiff could not recover because the law under which plaintiff sues was unconstitutional and void. State v. Loomis, 115 Mo. 307; also, San Antonio & A. P. B’y Co. v. Wilson, Central Law Journal, Yol. 35, issue No. 13, 212. (2) The court should have awarded defendant a new trial, because it had refused said instruction.

<p>Criminal Law: instructions. The instructions in this case in relation to burglary and. larceny are such as have often been approved by this court, and all of them, including those in reference to the presumption arising from the recent possession of the goods stolen, are free from fault.</p>

— Hon. C. A. Anthony, Judge. The following facts are clearly established by the admissions of the defendant and the' evidence in this case to wit: (1) At the commencement of this action plaintiff was the owner of the southeast quarter of the northeast quarter of section 34, township 62, range 40, in Holt county, Missouri, and the land in controversy is a part of same, and the defendant was in the possession of the land in dispute.

— Hon. A. M. Woodson, Judge. (1) The point upon which the court sustained the demurrer to the petition was that plaintiffs could not dispute the recitals in the deed of their ancestor. Held: whether in the name of one or all. If the property is in the name of one partner he is a trustee, and holds the legal title in trust for the benefit of the partnership. Story on Partnership, sec. 92. (2) Interest of one partner in partnership property may always be shown by parol.

<p>No Bill of Exception: record: judgment. Where there is no bill of exceptions, and no error apparent in the record proper, the judgment will be affirmed on appeal.</p>

<p>No Bill of Exceptions: appeal. Defendant appealed and was given ninety days to file bill of exceptions. This time was afterward extended to nearly eight months, at defendant’s request. Held, that, as defendant had failed to file a bill of exceptions before expiration of leave, the clerk properly certified the appeal to this court.</p>

<p>No Bill of Exceptions: judgment. When defendant files no -bill of exceptions in this court, and no error appears in the record, the judgment of the circuit court will he affirmed.</p>

<p>1. Criminal Procedure: appeals: felony. An appeal from a.proceeding to enforce a forfeiture of a recognizance in a sum less than $2,500, is properly brought to this court, rather than to the court of appeals, where the original offense was a felony.</p> <p>2. -: -: --. A proceeding to enforce a recognizance in a criminal ease is not an original action at law, but a continuation of the criminal proceeding already begun.</p> <p>3. ---: -: -: jurisdiction. Whether the St. Louis criminal court has jurisdiction to enforce a forfeiture of a recognizance in a criminal case, and whether this court has jurisdiction on appeal therefrom, must depend upon the fact whether the original proceeding in which the recognizance is taken, was a felony or a misdemeanor.</p>

<p>Appeal from, St. Louis Criminal Court. — Hon. H. L. ' Edmunds, Judge.</p>

<p>Appeals: criminal law: record: no bill or exceptions. When no bill of exceptions is filed and no error appears in the record proper, the judgment will be affirmed on appeal.</p>

— Hon. Rudolph Hirzel, Judge. ' There being no bill of exceptions in this case and no exceptions saved, there is nothing before the court except the record proper, and in this there is no reversible error.

— Hon. Paris C. Stepp, Judge. (1) Burglary and larceny are separate and distinct offenses, and may be prosecuted by indictment in separate counts, or be joined in one count; and the jury may find the defendant guilty of either or both. R. S. 1889, sec. 3529; State v. Hecox, 83 Mo. 531; State v. Owens, 79 Mo. 619; State v. Kelsoe, 76 Mo. 505; State v. Martin, 76 Mo. 337; State v. Hutchinson, 111 Mo. 257.

— Hon. W. W. Rtjoker, Judge. (1) The demurrer to the evidence as to the charge of grand larceny should have been sustained. The motion for a new trial should also have been sustained, and the defendant discharged.

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. (1) The state had the right to examine witnesses whose names were not indorsed on the indictment at the time of its return, but were so indorsed by prosecuting attorney, by leave of court, on day before jury was sworn; nor was defendant entitled to a continuance because such indorsement was not made a matter of record by the clerk, nor because defendant was not given notice thereof by the clerk, if such leave was given by…

<p>Appellate Practice: certiorari: habeas corpus: court op appeals. On an application for certiorari to remove into the supreme court the record of a proceeding on a writ of habeas corpus, pending before Judge Gill, of the Kansas City court of appeals, it was held that, as the judge had general jurisdiction of the subject-matter, and it did not appear that any objection to his proceeding had been made before him, or that any want of jurisdiction appeared in the record there, the writ of certiorari would be denied.</p>

Quo Warranto.; (1) The circuit court of Wayne county, Missouri, has acquired no jurisdiction of the person of respondent, MeSpaden, as she has never been served with a writ and no writ has issued from said court for service upon her. The practice in qtio warranto is governed by the civil code. R. S. 1889, sec. 2013; Fenwick v. Gill, 38 Mo. 525; Burton v. Deleplain, 25 Mo. App. 376; State ex rel. Brison v. Lingo, 26 Mo. 496.

Quo Warranto. (1) The provisions of the law for filling vacancies, section 1964, Eevised Statutes 1889, govern, as against the general statute upon the same subject. State ex rel. v. Rankin, 49 N. W. Eep. 1121. (2) Where the time or tenure is fixed, and no provision for holding over is found, then the tenure ceases on the day fixed in the statute creating the tenure, and the right to hold ceases upon' that day. State ex rel. v. O’Leary, 66 N. W. Eep. 264.

— Hon. Jambs T. Neville, Judge._ (1) The court clearly erred in holding in this case that it was necessary to pass the ordinance ordering the work done prior to advertising for bids, and the failure so to do vitiated the proceedings. It is the charter that grants, limits and defines the powers of the council as a legislative body, which can neither be added to nor taken from by any ordinance passed by the city council.

Mandamus. This a proceeding by mandamus. The object of it is to compel the defendant, as circuit judge, to approve a bond offered by relators as a stay bond on an appeal in the case of Vogelsang et al. v. Heokel Habdwabe Company et al. The pleadings show the following facts admitted: Messrs. Vogelsang and Gardner, as stockholders of the Heckel Hardware Company, filed a petition in the circuit court in St. Louis against that company, and against Messrs.

<p>Writ of Prohibition: jurisdiction. An application by the attorney-general for a prohibition against the hearing by Judge Gill (of the Kansas City court of appeals) of a writ of habeas corpus, issued by him, was denied on the ground that the objection of want of jurisdiction of the judge should first be presented to him, inasmuch as it was not shown that any want of jurisdiction yet appeared in the record before Judge Gill.</p>

— Hon. W. M. Robinson, Judge. (1) Executors or administrators are privies in law. 1 Freeman on Judgments [4 Ed.], secs. 162,163. (2) The respondent is estopped from litigating with the administrator with will annexed of Louisa G. Lane, that which she had formerly conclusively litigated with the executor, who was the predecessor of said administrator in the same estate. Btoutimore v. Clark, 70 Mo. 478; 1 Freeman on Judgments [4 Ed.], sec. 163, p. 300; 21 Am. and Eng.