Volume 141 — Missouri Reports

Mandamus. By this action, original here, relator endeavor's to obtain a peremptory mandamus against the judges of the Kansas City Court of Appeals to compel the transfer of a cause to the Supreme Court. In response to an alternative writ the defendants filed a return, to which relator made reply. Relator then prayed a peremptory writ on the facts admitted. Thei’e is no controversy as to the facts.

Certiorari. (1) The remedy is the proper one to pursue in this ease. We have no statute in this State regulating the practice on proceedings by certiorari, and are to look to the common law for a guide in such cases. State ex rel. v. Slover, 113 Mo. 211; Railroad v. Morton, 27 Mo. 317. (2) The object of the writ is to keep inferior judicatories in the bounds of their jurisdiction and the writ would lie, though there be another remedy. State v. Dotvling, 50 Mo. 134.

Mandamus. (1) The board of police commissioners, being' charged by law with the responsibility of managing and conducting the police department and required monthly to make out pay-rolls as vouchers, showing the amount of money due each member of the force, the city auditor is allowed no discretion, when a pay-roll in proper form, signed by the proper officers, ‘is presented, but must audit the claim and draw his warrant upon the treasurer of the city, he being only a…

Mandamus. (1) The Secretary of State bases- his refusal' to file papers and issue his certificate on the provisions of section 1, Revised Statutes 1866, wherein it is provided that if no period is limited in a charter it expires in twenty years. First. The contention of relators is that this section does not apply to charitable and educational. corporations. Second.

— Hon. W. W. Rucker, Judge. (1) The dealing in lottery tickets has been outlawed by the laws of the United States and Postoffice Department, as against good morals and public policy. 3 Am. and Eng. Ency. of Law, p. 556, ante and post; Buhe v. Bucle, 124 Mo. 178.

Mandamus. (1) The contention of relator is that neither the whole of the act of 1897, nor section 6 thereof, ever contemplated requiring the city to pay the expense of holding this special election, and that section 6 was intended to insure a fair election, but never had any reference to the question of who w;as to pay the cost thereof, and that inasmuch as the Constitution and laws of this State authorize a separate taxation for school purposes, the cost of this special…

— Hon. C. C. Bland, Judge. (1) The absolute and unrestricted power of disposition given the first taker of an estate unlimited, creates in such person a fee, and a limitation to another is void, as being repugnant to the first grant. 2 Blackstone, 164; Bubey v. Barnett, 12 Mo. 6; Norcum v. D’Oench, 17 Mo. 118; Allen v. Claybrooli, 58 Mo. 131; English v. Beehle, 32 Mo. 186; Easel v. Eagan, 47 Mo. 277; Green v. Sutton, 50 Mo. 186; State exrel. v. Toisón, 73 Mo. 320; Tremmel v.…

— Hon. John A. . Ho chad ay, Judge. (1) The instruction given by the court on motion of the State defining a “reasonable doubt” is erroneous and illegal. This instruction is misleading. The same implies that the doubt must be such a one as is alone created and produced by the evidence. It includes all reasonable doubt that may arise from a lack or want of evidence.

Prohibition. Prior to the twenty-sixth day of January, 1871, John J. Murdock and Charles K. Dickson were partners in the city of St. Louis, doing business under the name and style of Murdock & Dickson. On that day the firm was dissolved by the death of Dickson. On the twenty-second day of March, 1871, Murdock, the surviving partner, took charge of the partnership estate and gave bond in the probate court in the sum of $125,000, with Barton Bates and James B. Eads as sureties.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. The trial court erred in refusing to give defendant’s instruction for a nonsuit offered at close of entire case. (1) Because there was no evidence to show that John Willum was guilty of actionable negligence that caused Barber A. Keown’s injury. Patterson, Railway Accident Law, secs. 71, 268; •Strauss v. Railroad, 75 Mo. 185; 16 Am. and Eng. Ency.

— Hon. James G-ibson, Judge. (1) The trial court committed error in overruling defendant’s objection to the question asked by plaintiff’s attorney: “What is a slow and safe rate of speed to do coupling and uncoupling when switching cars?” This question assumed a fact which had not been ■proven; that is, that there was “a safe rate of speed for coupling and uncoupling cars.” Haish v. Munday, 12 Brad. (111.) 545; People v. Mather, 4 Wend. 249; People v. Graham, 21 Cal. 261.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The plaintiff can not sue defendant or recover damages from defendant on the claim that by the conveyances of defendant she lost title to that same land and lost that land. Com.

— Hon. William S. Herndon, Judge. (1) The proceedings begun by Messrs. Althouse & Trice in the circuit court, March 15, 1884, deprived the plaintiffs of none of their rights to the land, and conferred no right or title, either legal or equitable, upon the defendant. They were void from beginning to end. The circuit court acquired no jurisdiction over the plaintiffs in this case by virtue of those proceedings, nor power to sell their lands.

Transferred from Kansas City Court of Appeals. (1) There was an absolute want of actual authority in Mr. Lathrop to have made the contract upon which plaintiff seeks to recover. Boogher v. Ins. Co., 8 Mo. App. 534. (2) There is no evidence that Mr. Lathrop himself was anything more than a local agent. Dozier v. Freeman, 47 Miss. 660; Hwrley v. Watson, 36 N. E. Rep. 727; Hatch v. Taylor, 10 N. H. 543; Bank v. Kortright, 22 Wend. 361; Bryant v. Moore, 26 Me. 87.

<p>Multifarious Pleading. Plaintiff brought suit against the defendant corporation, alleging its insolvency and a former judgment of $60,000, and prayed that the other defendants, being stockholders of said company, be decreed to pay $95 per share on each share of stock owned by them, respectively, because they had never paid but $5 on each share of their stock, and also prayed for $10,000 against the president of the company for money wrongfully appropriated by him, and for a judgment against the president for whatever balance of said $60,000 should be unpaid after the other two sources should be exhausted, for waste and wanton destruction of the mine which said company had leased from plaintiff. Held to be multifarious, and a demurrer to the petition was properly sustained.</p>

(1) Here is a proposition which in onr judgment states the equity of this ease, to wit: That the Grain Drill, Minneapolis Company and Deuscher Company have such right to share in these proceeds as Ferguson had, and no other; their equity to share is founded upon the equitable right that they have as against Ferguson; they enter the equitable arena, basing their rights upon the relation that exists between themselves and Ferguson, and can of course have.no greater right as…

<p>Appeal from the Hiclcory Circuit Court. — Hon. Argus Cox, Judge.</p>

— Hon. James T. Neville, Judge. (1) By his assumption in the deed to him, J. T. Keet became the mortgagor himself, primarily liable. He could not, under any circumstances, purchase or keep the mortgage alive. An assignment or transfer of it to him would have satisfied it. Devlin on Deeds, sec. 1056; 15 Am. and Eng.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court erred in declaring as a matter of law the plaintiff could not recover. (2) The fact that plaintiff knew that the sidewalk was out of repair and defective, it being in the nighttime when she was passing over the sidewalk, did not as a matter of law make her guilty of contributory negligence in undertaking to pass over the sidewalk.

— Hon. James T. Neville, Judge. (1) Said deed of trust and trustees’ deed are void for uncertainty in description. Neither of them describes the land sued for. A more glaring attempt to make a deed, by the court, can not be found in the books. (2) The rule of law is, “if an estate can not be ascertained by the description in the grant, the deed fails altogether.” 3 Washburn on Real Property, 426, 428; 2 Devlin on Deeds, sec. 1010; 6 Peters, 345; 10 Wallace, 270; 6 Gray, 554.

— Hon. James T. Neville, Judge. (1) Did T. A. Mills abandon bis homestead rights in the particular land described in plaintiffs’ petition, and acquire a new homestead in the town lots purchased and occupied by him and his family in Brookline? Kaes v. Gross, 92 Mo. 647; Thompson on Homes and Exemp. 212, sec. 255. (2) The homestead means the home., place — th'e place where the house is, — it is the home, the house and adjoining land where the head of the family dwells. Gr.

— Hon. Benjamin E. Turner, Judge. (1) As Mrs. Wolcott was not made a defendant in the tax suit, and as her interest in the land was therefore not affected by the sale to Million, she can not maintain an action to set aside the sale, on the ground of fraud. Jones v. Babcoch, 15 Mo. App. 150; Smith v. Harris et al., 43 Mo. 557; Gardner v. Adams, 12 Wend. (N. Y). 297.

— Hon. James T. Neville, Judge. (1) The following three cases determine the main questions involved and fix the liability of defendant in this case. Bassett v. St. Joseph, 53 Mo. 290; Buesching v. Gaslight Co., 73 Mo. 219; Wigginv. St. Louis, 135 Mo. 558. (2) Pedestrians have the right to walk along and across streets at any point they may see fit. Henry v. Railroad, 113 Mo. 525. And it is the duty of the city to keep the whole of its sidewalks in repair.

— Hon. James E. Withrow, Judge. (1) John T. Davis, during Ms lifetime, having offered to make specific performance of the contract mentioned in plaintiffs amended petition, and plaintiff having thereupon waived Ms action for the $5,000 and joined in the prayer for such specific performance, and the offer and the joinder being a matter of record in the court, they constituted an “agreed case,” “a solemn judicial admission” for submission of the cause to the court on that…

— Hon. James T. Neville, Judge. (1) The statutes of this State giving a lien for work and labor and material upon the roadbed, depots, rolling stock, station houses, bridges, or culverts, of any railroad in the State, does not in its terms, and was never intended by the legislative body, to embrace street railways. R. S. 1889, secs. 6741, 6743, 6744, 6747, 6754.. and 6756; Knapp v. Bailroad, 74 Mo. 379; Booth on Street Railways, 2; Bailroad v. Johnson et al., 25 Pac.

— Hon. •A. M. Woodson, Judge. (1) The deposition of’ James Leach was irrelevant and injected into the case a-collateral issue, which was calculated to mislead and prejudice the jury. The evidence must correspond with the allegations, and be confined to the points in issue. 1 Greenl. on Ev. [14 Ed.], sec. 52; Best on Evidence, sec. 644; 7 Am. and Eng.

— Hon John A.' Ho ok ad ay, Judge. (1) The court erred in permitting any evidence whatever to be introduced on the part of plaintiff, for the reason- stated in defendant’s objections to the introduction of any evidence. Sufficient facts were not stated to any equitable relief; and even if all the facts as stated were true, they did not- constitute a cause of action.

Francois Circuit Court. — Hon. James P. Gtreen, Judge. On motion to dismiss writ of error. We must insist first of all that respondent’s motion to dismiss the writ of error sued out in this case should be sustained for reasons therein assigned. Schnelle v. Devanny, 61 Mo. App. 458; R. S, 1889, sec. 2290.

— Hon. James H. Slover, Judge. (1) The action of the marshal in seizing the property and removing it was a breach of the conditions ■ of the mortgage, and the mortgagee became thereby entitled to possession. Huiser v. Beck, 55 Mo. App. 668. (2) A pre-existing debt is a sufficient consideration to support a mortgage. Brocking v. Straat, 17 Mo. App. 296; Davis v. Carson, 69 Mo. 609; Way v. Braley, 44 Mo. App. 457; Huiser v. Beck, 55 Mo. App. 668.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Defendant failed to file his bill of exceptions in time. We have nothing save the record proper before us subject to examination. The instructions appear to have been preserved, but this court will not take them under consideration when not accompanied by the evidence. The indictment charges grand larceny in the usual manner approved by this court, and it is therefore free from attack.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) Appellate courts do not undertake to pass upon the weight and strength of the testimony where an inference of guilt can reasonably be drawn. (2) The instructions given by the court are complete, and fully advised the jury as to all the law in the case. An exception to the court’s failure to fully instruct the jury on all points of law comes too late when made for the first time in the motion for a new trial.

— Hon. D. P. Stratton, Judge. (1) The demurrer to the evidence interposed by defendant at the close of plaintiff’s case should have been sustained. The evidence was not sufficient to warrant a conviction. State v. Jones, 106 Mo. 313. (2) No conviction of grand larceny can be had unless the property stolen is of the value of $30. The value must be shown. Lowry, by a guess, fixes the amount stolen at $29.35. He could not place any value on the ■ cheek.

— Hon. Reuben E. Roy, Judge. (1) The instruction offered by defendant to the effect that if the defendant had been willing at all times since the alleged seduction to marry the prosecuting witness, and offered to do so, the jury may take such fact into consideration in assessing his penalty, was properly refused. An offer to marry by the defendant will not excuse him, unless accepted by the party injured ; nor can it be considered a circumstance in its nature mitigating.

— Hon. 0. 0. Bland, Judge. (1) The indictment does not aver and charge that the weapon used on Hopkins was a deadly or dangerous one, and one likely to produce death or great bodily harm, as the law requires, and is therefore bad, and the lower court should have granted a new trial. R. S. 1889, sec. 3489. (2) The trial court erred in admitting J. M. Diehl to testify over the objections of the defendant’s attorney of an impeaching question when he could not fix the time.

— Hon. 'W. W. Wood, Judge. (1) The indictment is sufficient. It charges the offense in the language of the statute as nearly as can be. State v. Bullinger, 54 Mo. 142. (2) The evidence is sufficient to warrant the verdict found. State v. Bryant, 134 Mo. 246; State v. Goforth, 136 Mo. Ill; State v. Punshon, 124 Mo. 448. (3) No error was committed in giving the sixth instruction.

— Hon. D. P. ' Stratton, Judge. (1) Crime may be established by circumstantial evidence, but the trial court should see to it that such evidence is cogent and convincing, and excludes all other reasonable hypotheses. Mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake. State v. Jones, 106 Mo. 313.

Lo'uis City Circuit Court. — Hon. P. B. Flitcraft, Judge. (1) Clause 4 of section 183, Be vised Statutes 1889, requires that a “judgment rendered against the deceased in his lifetime” shall be placed in the fourth class of demands against his estate.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The indictment alleged a robbery by taking money from the person, and the evidence showed only a taking from the presence. The variance is fatal. R. S. 1889, sec. 3530; 2 Bishop’s New Cr. Law, sec. 1177; Wharton’s Cr. Law, 3847.

— Hon. Richard Eield, Judge. (1) The remedy provided by section 2835, Revised Statutes 1889 (sec. 984, revision of 1879), is exclusive, and the only remedy the plaintiff could pursue for his alleged grievances, if he has any, must be under the statute. Tyree v. Bingham, 100 Mo. 457; Thompson v. Greeley, 107 Mo. 580; Gill v. Balis, 72 Mo. 429; Slattery v. Tram. Co., 91 Mo. 217; Sanborn v. Doe, 28 Pac. Rep. 105.

— Hon. John E. Ryland, Judge. (1) There was no evidence of sufficient probative force to convict the defendant of. the crime for which he was tried and the trial court should have instructed a verdict for the defendant either at the close of the State’s evidence or at the close of all the evidence given in the case.

— Hon. John W. Wofford, Judge. Defendant, a negro, convicted of murder in the first degree of Lawrence Schuebel, appeals to this court. Held: was the keeper of a dancing “dive” and was, by the testimony, shown to be himself an all-around thief. Joe Patterson, a comrade of defendant, and living at the same house of defendant’s mother, and who was present at the time of the shooting, testified deceased made no move nor spoke a word even after defendant slapped him.

Louis Criminal Court. — Hon. Henry L. Ejdmunds, Judge. Defendant having failed to perfect and file his hill of exceptions in time, we have nothing but' the indictment and record proper before us. These being regular and the offense charged in the usual form, the judgment of the lower court should be affirmed.

— Hon. James E. Gkeen, Judge. (1) There was no error in the court admitting the testimony as to the altercation between Barlow and defendant Raper, which immediately preceded and was connected with the ejection of defendant from the house, and his almost simultaneous assault on Long.

— Hon. J. 0. Lamson, Judge. (1) The acts charged are offenses against the lands of another, and to secure a conviction, the title to real estate is necessarily involved. To secure a conviction, the State must prove that the lands were the lands of another, and also that the accused had no interest therein.

— Hon. E. M. Hughes, Judge. (1) The Supreme Court will not undertake to interfere with the finding of the jury unless there is a total failure of proof. State v. Goforth, 136 Mo. 111. (2) The instructions given by the court are in the usual form in such cases, clearly and carefully drawn, and correspond'in every essential point to the instructions approved by this court in the case of State v. Fitzgerald, 130 Mo. 420.

— Hon. James D, Fox, Judge. (1) The indictment is sufficient under the following cases: State v. Tyrrell, 98 Mo. 354; State v. Edwards, 109 Mo. 316. (2) Now the addition here is simply the word “granary” to the word “warehouse,” and I take it that the word “granary” is simply descriptive of the character of the “warehouse.” And if this he true, under the decisions in this State the indictment is certainly good.

<p>Criminal Law: fair trial. The defendant having had a fair trial, the evidence establishing his guilt, and the record being free of error, the judgment will be affirmed.</p>

— Hon. L. B. Woodside, Judge. (1) Burning haystacks or ricks is not an offense under section 3518, Revised Statutes 1889, defining arson in the fourth degree. A stack of hay situate on a farm, as described in this indictment, is neither “goods, wares, nor merchandise” in the legal .or common acceptation of those terms. State v. Bryant, 90 Mo. 534; State ex rel. v. Seibert, 123 Mo. 424; State v. Schuchmann, 133 Mo. 116.

— Hon. John E. Ryland, Judge. (1) The indictment is authorized by section 3489, Revised Statutes 1889. It is drawn in the language of the statute as near as practicable, and is therefore sufficient in every essential particular. State v. Ghwnley, 67 Mo. 41; State v. Little, 67 Mo. 624. (2) There'is abundant evidence disclosed in the transcript to authorize the verdict of guilty.

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

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

Louis City Circuit Court, — Hon. William Zachritz, Judge. With nothing but the record proper before us, and that appearing regular, and the indictment being-in good form, the judgment of the trial court should be allowed to stand.

<p>Appeals: criminal law: record: no billon exceptions. When no bill of exceptions is filed and no error appears in the record proper, the judgment will be affirmed on appeal.</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. Benjamin E. Turner, Judge. STATEMENT. The following are copies of one of the notes and one of the coupons mentioned in the opinion as secured by the deed of trust wherein the Messrs. Bull were trustees.

Louis Court of Criminal Correction. — Hon. David Murphy, Judge.

<p>Error to St. Louis Court of Criminal Correction. — Eon. David Murphy, Judge.</p>

— Hon. D. P. Stratton, Judge. (1) Defendant having made no objections nor taken any exceptions to the action of the court in overruling its motion for a new trial, there is nothing before this court for review but the record proper. R. S. 1889, sec. 2302; State v. Murray, 126 Mo. 526; Danforthv.

— Hon. John Gr. Wear, Judge. (1) The statute fully defines the offense and the indictment should follow the statute. State v. McDaniel, 94 Mo. 301; State v. Kirby, 115 Mo. 440.

Louis Criminal Court. — Hon. Thomas B. Harveí, Judge. It was error to admit in evidence for the purpose of comparison certain extraneous handwritings under the provisions of section 8944a, Session Laws of 1895, because the same is in violation of article 1, section 10, Constitution of the United States, and also in violation of article 2, section 15, Constitution of Missouri, which provides that no ex post facto law shall be passed. State v. Bond, 4 Jones (N. C.), 4; Hartv.

— Hon. E. J. Bboaddus, Judge. (1) The court erred in giving to the jury the plaintiff’s first instruction. Said instruction declared “that it was the defendant’s duty to keep and maintain such crossing safe.” The defendant was only bound to exercise ordinary care in maintaining the crossing. Maus v. Springfield, 101 Mo. 617; Kiley v. City of Kansas, 87 Mo. 106; Haniford v. City of Kansas, 103 Mo. 181; Gerdes v. Iron Foundry Co., 124Mo. 359.

— Hon. R. F. Roy, Judge. On motion to dismiss writ of error. The notice that parties suing out a writ of error are required to serve on the adverse party or his attorney of record, was not given in this ease; in fact no notice of any kind has been given; the writ in this case was returnable to April term, 1896, of this court, and was in fact returned February 15, 1896. Therefore this writ should be dismissed.

— Hon. D. P. Stratton, Judge. (1) The motion to strike out that portion of defendant’s answer changing his liability as a guarantor, as fixed by the written agreement, to a principal, on the ground that such was the understanding at the time the guaranty was executed, should have been sustained. 1 G-reenl. Ev., sec. 277; James v. Clough, 25 Mo. App. 154; Koehring v. Muemminghoff, 61 Mo. 407; Fruin v. Railroad, 89 Mo. 404; State ex rel. v. Eoshaw, 98 Mo. 360.

— Hoh. James H. Lay, Judge. (1) Defendant filed a demurrer to plaintiff’s evidence. This should have been sustained. There is not a scintilla of testimony, from first to last, concerning these conveyances, sought to be set aside. No witness mentions the circumstances under which they were executed. Norton v. Faxton, 110 Mo. 467; Thompson v. Ish, 99 Mo. 160; Btish v. Lisle, 89 Ky. 393; White v. Stari, 47 N. J. Eq. 244; 2 Greenl. Ev. [13 Ed.], sec. 688.

<p>Appeal from New Madrid Circuit Court. — Hon. H. C. Riley, Judge.</p>

— Hon. E. M. Hughes, Judge. (1) Neither the minutes of the judge nor the record show that “defendant failed to appear without sufficient cause or excuse.” R. S. 1889, sec. 4134; State v. Whitecotton, 63 Mo. App. 8. (2) The Supreme Court had reversed' the judgment of the lower court and decided that the indictment was bad. A grand jury had met and been discharged — no new indictment found.

— Hon. James T. Neville, Judge. (1) The plaintiffs brought the proper action in this case and sought proper remedy. Lilly v. Tobbein, 103 Mo. 488; Michael v. St. Louis, 112 Mo. 610; Newmeyer v. Railroad, 52 Mo. 81. (2) Ejectment could not be maintained in this case because it is not a conditional estate. Mes ser smith v. Messersmith, 22 Mo. 369; O’Brien v. Wagner, 94 Mo. 96.

— Hon. W. W. Wood, Judge. (1) The proviso in section 7074, as amended by acts of 1891, pages 182,183, limiting the time in which such action shall be brought, is unconstitutional and void, for the reason that such is not within the purview of the title of the act, and not germane to the subject-matter of the act, and is beyond the amendment stated in the first section or enacting clause of the act, which sayswhatamendmentshall.be made to said section.

— Hon. James T. Neville, Judge. (1) The statutory franchise to erect a milldam does not give grantee any vested right, and what he takes by. such franchise is subject to regulation and control of the State. Cooley, Const. Lim., p. 473; Pratt v. Brown, 3 Wis. 603. (2) It is a settled principle of law that power resides in the several States to regulate and control the passage of migratory ñsh in the waters within- their respective jurisdictions.

— Hon. Rudolph Hirzel, Judge. (1) Tbe indictment does not charge that the offense was committed feloniously. State v. Duffenbacher,51 Mo. 26; State v. Fmerich, 87 Mo. 110; State v. Herrell, 97 Mo. 105; State v. Clayton, 100 Mo. 516; State v. Fairlamb, 121 Mo. 137. (2) The indictment is not written in the English language as required by the statute. R. S. 1889, sec. 3240.

— Hon. Paris C. Stepp, Judge. (1) The testimony of the prosecuting witness, as to the promise of marriage, was not corroborated in any manner, or by any person, or by any circumstances, as would satisfy the provisions of section 4212, Revised Statutes of 1889, which requires the promise of marriage to be corroborated to the same extent required of the principal witness in perjury. (2) The court erred in giving instruction 1 on the part of the State.

— Hon. C. A. Anthony, Judge. (1) From the date of the arrest of Hennessey and Green by sheriff B. F. Pixler, the appellant, Holker, had a lien upon the estate of such criminals and upon the revolvers, watch, diamond and $246 which the sheriff took into his possession and received from such prisoners, subject only to such lien, if any, held by the State. R. S. 1889, sec. 4317.

<p>The companion case of State v. Tobie, post, page 547, followed and approved.</p>

— Hon. John W. Wofford, Judge. (1) The second count of the indictment upon which defendant was convicted fails to charge that defendant caused to be forged the deed alleged in the indictment, with a felonious intent to defraud, and therefore fails to state facts sufficient to constitute any offense under the law of this State. R. S. 1889, sec. 3626; Mattisonv.

— Hon. James H. Lay, Judge. (1) The evidence is undisputed that the inter-pleader had a written bill of sale for the goods, and was in the actual possession thereof when the attachment was levied. These gave the interpleader prima facie title” at the time of the seizure, and the burden of proof was thereby cast upon Stewart, the assignee, to show that the interpleader’s prima fade title was wrongful and fraudulent. Singer v. Goldenburg, 17 Mo.

<p>Appeal from St. Louis City Circuit Cou/rt. — Hon. Jacob Klein, Judge.</p> <p>(1) The judgments should be reversed on the authority of Gabriel v. Mullen, 111 Mo. 119; Scrutchfield v. Sauter, 119 Mo. 615; Broion v. Brown, 124 Mo. 79; Bank v. Winn, 33 S. W. Rep. 457; Owings v. Wiggins, 34 S. W. Rep. 877; Bains v. Bullock, 129 Mo. 117, which cases follow Hart v. Leete, 104 Mo. 305 ;• which last named case was in effect overruled by Leete v. State Bank, 115 Mo. 184. (2) The matters decided in these cases, on the former, appeal, as stated in Leete v. State Bank, 115 Mo. 184, are not necessarily conclusive on the appellant. Wernse v. McPike, 100 Mo. 476; Spohn v. Bailroad, 87 Mo. 74; s. c., 101 Mo. 417; s. o., 116 Mo. 617; s. o., 122 Mo. 1; Bird v. Sellers, 122 Mo. 23; s. c., 113 Mo. 580; Butledge v. Bailroad, 123 Mo. 131. (3) Leete v. State Bank, supra, is not in harmony with any prior decision of this court regarding the principal points it undertakes to decide. This court has construed the act of March 25, 1875, as applying to the property rights of parties then married in Bichardson v. Lowry, 67 Mo. 411, and the statute was thereafter re-enacted without change as section 3296, Revised Statutes 1879. The same construction was given to section 3296 in Bettes v. Magoon, 85 Mo. 580; Bartlett v. Umfried, 94 Mo. 530, and Gillilandv. Gilliland, 96 Mo. 522, and thereafter re-enacted, without substantial change, as section 6869, Revised Statutes 1889. (4) When a court of last resort construes a statute, and that statute is afterward re-enacted or continued in force, without any change in its terms, it is presumed that the legislature adopted the construction given to it by the court. Handlin v. Morgan County, 57 Mo. 114; Easton v. CourtwrigTit, 84 Mo. 34; Reed v. Fainter, 129 Mo. 674, 686; State v. County Court, 128 Mo. 439; Venable v. Railroad, 112 Mo. 125. (5) The unconstitutionality of a statute must appear beyond a reasonable doubt, before the courts will pronounce it void. State ex rel. v. Ransom, 73 Mo. 78; State v. Addington, 77 Mo. 110; State v. Able, 65 Mo. 357; Eioing v. Hoblitselle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; Phillips v. Railroad, 86 Mo. 540; State v. Pond, 93 Mo. 606; State v. Hope, 100 Mo. 347. (6) The right of a husband to reduce to his possession the c hoses in action of the wife, is not a vested interest inproperty. Hart v. Leete, 104 Mo. 315; Leakey v. Maupin, 10 Mo. 368; Pickett v. Everett, 11 Mo. 568; Cillet'v, Camp, 19 Mo. 404; Walker v. Walker, 25 Mo. 367; Coughlin v. Ryan, 43 Mo. 99; Hunt v. Thompson, 61 Mo. 148; Wood v. Simmons, 20 Mo. 365; Paige v. Sessions, 4 How. (U. S.) 122; Clarke v. McCreary, 20 Miss. 354; Ewing v. Hoblitselle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; Alexander v. Alexander, 85 Ya. 352; Allen v. Hanks, 136 U. S. 300; White v. Waite, 47 Yt. 502; Taylor v. Taylor, 12 Lea (Tenn.), 490; Rugh v. Ottenheimer, 6 Ore. 231; Witte Bros. v. Clarke, 17 S. C. 327; Deckv. Smith, 12 Neb. •389; Kilpatrick v. Holmes, 108 N. C. 206; Noel v. Ekving, 9 Ind. 37; Trapnellv. Conklin, 37 W. Va. 256; Cherokee Lodge v. White, 63 G-a. 742. (7) Curtesy before birth of issue is not a vested interest in property. Hill v. Chambers, 30 Mich. 422; Hathorn v. Lyon, 2 Mich. 95; Brown v. Clark, 44 Mich. 311; Breeding v. Davis, 77 Ya. 639; Billings v. Baker, 28 Barb. 346; Denny v. McCabe, 35 Ohio St. 580; Mellinger v. Bausman, 45 Pa. St. 529. (8) Curtesy initiate is not a vested interest in property. Thurber v. Townsend, 22 N. Y. 517; In re Curtis’ Will, 61 Hun. 372; Rugh v. Ottenheimer, 6 Ore. 231; Gitchell v. Messmer, 87 Mo. 131. (9) Whether or not the act of 1875 effected any change in the property relations of parties then married, it exempted from the sole debt of the husband thereaf ter incurred and not created for necessaries for the wife or family, all personal property thereafter accruing to the wife. 2 Bishop on the Law of Married Women, 100, quoting from White v. Dorris, 35 Mo. 181; Schouler on Husband and Wife, sec. 206. (10) The by-law of respondent bank could not impress upon the stock a lien for its claim against Dr. Leete, in view of appellant’s claims thereto under the act of 1875. Murray v. Pinkett, 12 Clark So Fin. 764; Stickney v. Stickney, 8 So. (Ala.) 568; Bank v. Durfee, 118'Mo. 431; Trust Go. v. Lumber Go., 118 Mo. 447.</p> <p>(1) That the plaintiff has no title to the stock in question as against the defendant bank is res adjudicata in this ease. Leete v. State Bank, 115 Mo. 184 (which is this ease now on hearing in this court); Dowling v. Allen, 102 Mo. 213; Keith v. Johnson, 109 Mo. Í30; Hickman v. Link, 116 Mo. 127; “The Law of the Case,” 42 Cent. L. J. (January 31, 1896). (2) The defendant bank, under its charter and by-laws, has a lien on the stock in question for Dr. Leete’s debt to it. Ins. Co. v. Good'ellow, 9 Mo. 149; Bank v. Bank, 45 Mo. 513; Spurlock v. Railroad, 61 Mo. 319; Bank v. Bank, 105 U. S. 217; Bank v. Laird, 2 Wheat. 390; Neal v. Jenney, 2 Cranch, 0. C. 188; Pierson v. Bank, 3 Cranch, C. C. 363; Morgan v. Bank, 8 Serg. So R. 73; Bank v. McNeal, 10 Bush. 54; Ang. So Ames Corp. [10 Ed.], sec. 359; 2 Thompson on Corp., secs. 2317-2744. (3) This court has held that the clause as to exemptions in section 6869 (3296, R. S., 1879 with amendments) applies to the separate property of the wife, and not that which the husband has acquired through his common law marital rights. Gabriel v. Mullen, 111 Mo. 119. (4) The act of March 25,1875 (R. S. 1879, sec. 3296), if applicable to the legacy of plaintiff under the will of her father, he having died, and she having married before the act, would be in conflict with article 2, section 15, of the Constitution, forbidding retrospective legislation, and void. Ex parte BetMnim, 66 Mo. 550; State ex rel. v. Greer, 78 Mo. 188; Lins v. Ins. Go., 8 Mo. App. 363; St. Louis v. Clemens, 52 Mo. 143; Ins. Go. v. Flynn, 38 Mo. 483; Cooley, Const. Lim. 362; Sedgwick, Stat. & Const. Law, pp. 188, 202. (5) The act of March 25, 1875, was not intended to take away the right of a husband, theretofore married, to reduce to his possession choses in action previously acei’uing to his wife. The act can not be construed as retrospective unless no other construction is possible. State ex rel. v. Rays, 52 Mo. 580; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Ferguson, 62 Mo. 77; Thompson v. Smith, 8 Mo. 73; State v. Grant, 79 Mo. 119; State ex rel. v. Walker, 80 Mo. 613; State exrel. v. Finn, 87 Mo. 310; Ely v. Holton, 15 N. Y. 595; Newland v. Marsh, 19 111. 384; Seamans v. Garter, 15 Wis. 548; Kidd v. Montague, 19 Ala. 625; Cooley, Const. Lim. 76,185. (6) If the act of March 25, 1875, be construed as taking away the husband’s right then existing, to reduce his wife’s choses in action then in existence to his possession, it would so interfere with his vested rights of property as not to come within the proper limits of the law-making power; would deprive him of property without due process of law, and be unconstitutional and void. Westerveldt v. Gregg, 12 N. Y. 202; Barnes v. Undenuood, 47 N. Y. 356; McCahill v-. Hamilton, 20 Hun. 393; Berley v. Ramp acker, 5 Duer. 189; Dunn v. Sargeant, 101 Mass. 336; Jackson v. Sublett, 10 B. Mon. 467; Stearns v. Weathers, 30 Ala. 712; O’Connor v, Harris, 81 N. C. 284; Sperry v. Haslin, 57 Ga. 412; Bold v. Geiger’s Adm’r, 2 Gratt. 110; Gunn v. Barry, 15 Wall. 622; Moreau v. Betchemendy, 18 Mo. 522; Williams v. Courtney, 77 Mo. 588; Abington v. Travis, 1.5 Mo. 243; Croft v. Bolton, 31 Mo. 355; Hockaday v. Sallee, 26 Mo. 220; Schuyler v. Hoyt, 5 Johns. Oh. 196; 2 Kent’s Com., p. 157; Reeve’s Dom. Rel. [4 Ed.], p. 5, note; Schouler, Dom. Rel. [3 Ed.] 173; Scribner on Dower, 21.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The plaintiff must recover, if at all, through the strength of her own title. Stonebraker v. Ford, 81 Mo. 535. (2) That the plaintiff has no title to the bonds in question as against the defendant bank is res judicata in this case. Leete v. Bank, 115 Mo. 184; Bowling v. Allen, 102 Mo. 213; Keith v. Jolmson, 109 Mo. 130; Rickman v. Link, 116 Mo. 127'; “The Law of the Case,” 42 Cent.

Louis City Circuit Court. (1) The circuit court erred in rendering judgment for plaintiff, and should have entered judgment for defendant. Kane v. Railroad-, 112 Mo. 34; Watson v. Railroad, 47 N. Y. 157; Wilson v. Hathaway, 42 Iowa 173; Brown v. Coxmty Com., 12 Mete. 208; E. S. 1889, secs. 2418, 2419, 2420.

<p>Appeal from, Andrew Circuit Court. — Hon. William S. Herndon, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. L. B. Valliant, Judge.</p>

— Hon. Joshua Alexander, Special Judge. (1) The testatrix, at the time of making the pretended will, had not capacity to make a will. Benoist v. Murrin, 58 Mo. 307; Young v. Bidenbaugh, 67 Mo. 574; Harvey v. Sidlens, 56 Mo. 372. (2) The court erred in taking the case, by mandatory instruction, from the jury. There was evidence sufficient to establish the allegations in the petition, and the case should have gone to the jury.

— Hon. W. W. Rucker, Judge. (1) Not until the act of April 19, 1893, was the “police judge” created. How the city on the fifth of July, 1892, could, by ordinance, make a “police judge” is the mystery. (2) Again, no evidence in this record of any vacancy in the office of either “recorder” or “police judge,” from all that appears, the “police judge” may have been present while the “special police judge” was performing judicial duties in his place.

— Hon. John' A. Hockadan, Judge. (1) One who has “read the evidence taken before the coroner’s jury, either as originally written, or as printed in a newspaper.......and formed an opinion therefrom, as a matter of law is disqualified, and he can neither form one of the list of forty, nor one of the jury which tries the issue joined.” State v. Culler, 82 Mo. 626; State v. Taylor, 134 Mo. 138.

<p>Indictment: motion to quash: final judgment: when state mat . not appeal. A motion to quash an indictment was sustained, but no entry was made ordering the indictment quashed and defendant discharged, nor adjudging the indictment insufficient and ordering it quashed and defendant committed or bailed to answer another indictment. Held, not to be such a final judgment as will allow an appeal to be taken.</p>

<p> On motion to affirm. </p>

Louis City Circuit Court. (1) Every person claiming title by gift necessarily admits that up to the time when the gift was alleged to have been made the chattel was the property of the donor. Dickeschied v. Bank, 28 W. Va. 360; Samson v. Samson, 67 Iowa, 253; Barnum v. Beed, 136 111. 388. (2) The power of attorney to Mrs. Soulard neither conferred nor purported to confer upon her any authority to give away her husband’s property.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The court should have given the preliminary instruction offered at the close of plaintiff’s testimony and given at the close of the case. The evidence showed without contradiction that the loss and damage occurred through the act of Grod, namely, the unprecedented flood shown in evidence, and there was no substantial evidence to show or to justify the jury in finding that the plaintiff was guilty of any negligence.