Volume 142 — Missouri Reports

(1) The court erred in admitting in evidence the pretended collector’s deed from Ransom as collector to James Ewart, and the quitclaim deed from Ewart to Chris Groomer- The said collector’s deed was a mere skeleton deed, and fails to recite and show the things essential to make it a valid conveyance, and was void upon its face and incompetent and irrelevant under the issues in this case. Burden v. Taylor, 124 Mo. 13.

Louis City Circuit Court. — Hon. P. R. Elitceapt, Judge. (1) The first seven grounds of the motion of the Third National Bank are representations on which the Third National Bank might sue Stephenson and the Parkers, if the representations are false, but they certainly constitute no right in the Third National Bank to have Stephenson’s attachment postponed to any claim that the Third National Bank might have had against the Parker Stationery Company, and the trial court…

— Hon. Reuben F. Roy, Judge. (1) Section 8839, Revised Statutes 1889, imposes no liability on heirs or devisees. Their liability is to be determined by the common law. At common law, devisee is not liable at all, and the heir only liable on ancestor’s covenants' when expressly named in the covenant. Bartlett’s devisees were not mentioned in the covenant in his deed to Charless. Whittlesey v. Brohcmmer, 31 Mo. 98; Bauer v. Griffin, 67 Mo. 654; State v. Miller, 18 Mo.

<p>1. "Wills : ALLOWANCE OP PEES TO GUARDIAN AD LITEM WITHOUT NOTICE to ward. Plaintiff was appointed guardian ad litem for the minor-defendants in a will contest. The will was upheld, and final judgment was rendered, a motion for new trial filed, and plaintiff, without notice to the defendants, and before the motion for new trial was passed upon, filed his motion for an allowance of $2,000 for his services as guardian ad litem, and that such allowance be made a. judgment against defendants. Reid, that such judgment, without notice to the defendants, was void and was obtained without the "due process of law” required by section 30, article II, Constitution of Missouri, because the court had no jurisdiction over the persons of defendant. It is admitted that if such motion had been filed before final judgment in the will ease, such judgment would not have been void for that reason, but held, also, that the motion for a new trial was not a suspension of the final judgment. Reid, also, that such minor defendants were not wards of the court for the purpose of said motion and that the judgment, being personal against the defendants, can not be justified on the ground that it was costs in the will case.</p> <p>2. - — ■: ALLOWANCES TO GUARDIANS ad litem. There is no statute in this State conferring upon the circuit courts the power to make-allowance in favor of guardians ad litem except in eases for the partition of real estate. But the authority to allow them compensation for services rendered minors whose estates are about to be jeopardized, must be implied from the court’s inherent powers to appoint-such guardians, but such compensation is not in the nature of costs, but must be against the minors,-and are justified on the ground that such services are a necessary.</p>

— HonI E. J. Broaddus, Judge. (1) To constitute the statements in the application a warranty, the application must be made a part of the policy, and a warranty upon the part of the assured. In the absence of this stipulation in the policy the application is collateral, and statements made therein are merely representations. Ins. Co. v. Bobertson, 39 111. 123; Miller v. Ins. Co., 31 Iowa, 217; Williams v. Ins. Co., 31 Me. 219; Bacon’s Ben. Soc. and Life Ins., sec. 194.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) Appellant’s petition for review is in accordance with the provisions of the statute.

— Hon. Richard-Field, Judge. (1) The property in controversy having been a reversion in Mary T. Graves, wife of George L. Trail, supported and preceded by the life estate of Elizabeth Graves, which life estate did not terminate during the coverture, there was no such seizin in the wife or husband as entitled the husband to curtesy. Williams on Real Property [4 Ed.], p. 219; Broom, Leg.

<p>"1. Cities: CURRENT necessary expenses: enforced payment of debts. Under section 4977, Revised Statutes 1889, the necessary current expenses of a city of the fourth class are restricted to the salaries of its officers and a reasonable police force. A waterworks company, therefore, that has, in conformity to an ordinance, supplied the city with water, is entitled to a judgment for the value of such service, and to collect such judgment by mandamus, and such judgment and the payment thereof can be postponed only to the payment of the salaries of officers and of a reasonable police force.</p> <p>■J3. -: --: bonds. The words “income and revenue provided for each year” do not include money arising from the sale of a city’s bonds, which were sold by the city for the purpose of raising money to pay other bonds then outstanding; and the fact that a part of the money derived from the sale of the bonds has been by the city placed in its general expense fund, does not alter the case — that the proceeds of such sales are to be excluded in estimating the annual income and revenue of the city. Income does not mean money borrowed</p>

— Hon. D. W. Shackleford, Judge. (1) Whatever the statutes of other States may be, section 4915, Revised Statutes 1889, fixes the status of real estate here. (2) In this ease the lien of the judgment had expired, but the lien of the execution attached from the time of filing the notice of levy required by section 4922, Revised Statutes 1889, and the conveyance by the execution defendant on the following day could not defeat this lien.

Mandamus. (1) In so far as the decree affirmed relator’s right to the use of the tracks and to their maintenance, and prescribed the conditions of such user, it did not, in the legal sense, command anything affirmative to be done by the defendant and was therefore self-enforcing and not superseded. Aliter, as to the money judgment, the enforcement of which was superseded. Railroad v. Railroad, 105 Mo. 562; Railroad v. Railroad, 132 Mo. 47; State ex rel. v. Dillon, 96 Mo. 57.

— Hon. R. E. Culver, Judge. (1) The lower court erred in failing and refusing' to instruct the jury on manslaughter in the second or third degree as requested by the defendants. State v. Turlington, 102 Mo. 642; State v. Patrick, 107 Mo. 147; State v. Nelson, 118 Mo. 124; State v. Tallmadge, 107 Mo. 543; State v. Berkley, 92 Mo. 54. (2) The lower court erred in refusing to instruct the jury to find the defendant, Charles May, not guilty.

— Hon. A. M. Woodson, Judge. (1) The act of the legislature, under which this proceeding was had, is unconstitutional in that it violates section 21 of the bill of rights, which provides that: “Private property shall not be taken or damaged for public use without just compensation.” Acts 1893, p. 62, secs. 5 and 10.

— Hon. J. C. Lamson, Judge. (1) “A homestead, is the place where the owner lives and resides. It must be used and occupied by the owner as the homestead.” Thompson on Horn, and Exemp., sec. 100. (2) A family “is a collection of persons who live in one house and under one head or manager.” Thompson on Horn, and Exemp., sec. 60. (3) In legal contemplation two elements are essential to constitute a family headship.

— Hon. Edward L. Scarritt, Judge. (1) The only damage which the evidence showed plaintiffs’ property to have sustained by defendant’s acts, under the ordinance, which authorized it to do certain work in the alley, was caused solely by lowering the natural surface to the grade established by the city. This damage did not-entitle plaintiffs to injunctive relief. First. Because no claim therefor was made in the petition. Second.

Louis City Circuit Couzrt. — Hon. D. D. Eisher, Judge. (1) The partnership estate having received from Edgar Ames during his lifetime, on account of the partnership assets at Yicksburg on August 14, 1866, the sum of $39,523.61, such sum should be deducted from whatever amount is found to have been realized from the assets, and the administratrix should be required to account for and pay to the partnership estate only the balance remaining of the amount so realized after such…

<p>1. Will: CONVEYANCE: RES ad judicata. This court having on a former appeal held a will devising one hundred acres of land, and in another appeal a later deed conveying other lands to the devisee, to' be valid, the only question in this suit of ejectment that can be considered is, did the conveyance adeem, revoke or satisfy the provisions made for the devisee by the will?</p> <p>2. Wills: ademption: The , doctrine of ademption applies only to-bequests of personal property; and while no good reason, on principles of justice and equity, exists why it should not also be applied to devises of real estate, yet this rule is an old one and as the legislature has not seen fit to change it, the courts will not take the initiative to effect sueh change.</p> <p>3. -: ademption: reason and application. In ease the parent has given a legacy to a child by will and afterward a gift or advancement to the same legatee of property of the same kind, the courts presume that he intends to adeem or revoke the legacy, in whole or in proportion to the value of the donation, the reason being that the gift itself is gone. But a will can not be revoked except for statutory reasons, and the statute (R. S. 1889, sec. 8871), does not permit a will to be revoked by a subsequent conveyance. So that if a father devises one hundred acres of land to a son, and the rest of his lands to his other children, and then by a subsequent deed conveys to the same son one hundred and fifty acres of the land so devised to them, the devise is not adeemed or revoked by the conveyance.</p> <p>4. -: -: separate consideration. Where the legatee has paid a valid Consideration for the property received after the will was made, the doctrine of ademption can not apply.</p> <p>5. -: -: consent and satisfaction of devisee. Unless the devisee consent that a conveyance of land to him shall be accepted by him in satisfaction of a previous devise, both the devise and conveyance must stand.</p>

— Hon. John G-. Wear, Judge. (1) The basis of this suit is the failure of the judges .who were appointed by the county court to hold the election on November 3, 1896, at Fitzgerald voting precinct, to act, and the fact that the election was held by four judges instead of six as the statutes require, and that of these four but two were duly appointed by the county court, the other two acting without the authority of appointment or election by the voters present, as the…

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. The agreement between H. Clay Sexton and Thos. Maxwell, under which the land in controversy was conveyed to the latter, did not, according to the pleadings and proofs in the case, create a constructive trust in Maxwell for the benefit of plaintiffs, as found by the trial court.

— Hon. J. H. Slover, Judge. (1) The motion for judgment non obstante veredicto was filed out of time. It should have been made upon the rendition of the verdict and before the entry of judgment. ' At least it should have been made within four days after verdict. 2 Tidd’s Practice, p. 920; Freeman on Judg., p. 7; State v. Bank, 14 Miss. 215; Schermerhorn v. Schermerhorn, 5 Wend. 514; Harrison v. Railroad, 11 C. B. 541.

— Hon. WilliamS. Hebndon, Judge. (1) The deed conveyed an estate tail — a life estate to Joseph S. Hunter with remainder to plaintiffs who are the children and heirs of the body of said Joseph S. Hunter. The proper words to create an estate tail are “heirs of the body.” 6 Am. and Eng. Ency. of Law, 879; 2 Bl. Com. 114. Under the statute, Revised Statutes 1889, section 8836, said Joseph S. Hunter took an estate for life' with remainder to his children, the heirs of his body.

— Hon. William S. Herndon, Judge. (1) The act of the G-eneral Assembly to re-district the State into judicial circuits, having never become a law in a constitutional manner, the court could not exercise its jurisdiction at the times prescribed by said substitute bill, and its judgment in this case at the pretended June term, 1893, of said court, was null and void for that reason. Const. Mo., art. IY, secs. 30, 31 and 32; 13 Am. and Eng. Ency.

Quo Warranto. To the information filed in this cause a demurrer has been introduced which necessitates copying the-information, which is as follows: “Now comes R. F. Walker, for the State of Missouri, and states that the defendant was created and organized as a building and loan association on the nineteenth day of July, 1887, under and in accordance-with an act of the Ueneral Assembly of the State of Missouri entitled “An act. concerning mutual savings fund loan and…

Louis City Circuit Court. — Hon. P. R. Élitcraft, Judge, (1) Instruction 1, given at the instance of the plaintiff, does not correctly express, the rule of law in respect of this case, and was misleading. It made the Lindell company answerable for the high degree of care of a carrier.

<p>Appellate Practice : mandamus: when denied. The Supreme Court will not entertain applications for extraordinary remedies where the applications can be made to the circuit court in the first instance, unless the ease is one of more than ordinary magnitude and importance. (Following State ex rel. v. Walbridge, 116 Mo. 656, and State ex rel. v. County Court, 64 Mo. 170.) And this ease is held to be one the facts of which do not warrant the Supreme Court in exercising its original jurisdiction in mandamus.</p>

— Hon. John G-. Wear, Judge. (1) The motion of plaintiff for an entry nunc pro-tune showing that the motion for a new trial was overruled, should have been sustained. Harlan v. Moore, 132 Mo. 490; Loving v. Groom, 110 Mo. 632; Hansbrough v. Judge, 80 Mo. 307; Coop v. Northcut, 54 Mo. 128; Priest v. McMaster, 52 Mo. 60; Fletcher v. Cooms, 58 Mo. 430.

— Hon. John G-. Wear, Judge. (1) The court below erred in refusing, at the January term, 1895, to entertain defendants’ motion for a new trial, filed August 20, 1880, and in holding that the same had been abandoned and was no longer pending.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Where one, having an interest in land, accepts the proceeds of a defective judicial sale of it, knowing the facts which constitute such defect, he thereby ratifies the sale as made, and will be estopped thereafter to question its validity. Freeman on Yoid Jud.

<p>1. Practice: instructions: repetitions. An instruction should avoid unnecessary repetitions, in different forms, of the principles of law governing a case.</p> <p>2. -: -: abstract propositions oe law. An instruction that states an abstract proposition of law and leaves it to the jury to apply the facts unaided should not be given.</p> <p>3. -: -: reversal : new trial. Instructions faulty because of unnecessary repetitions and because they contain simple abstract propositions of law will not generally authorize a reversal of a verdict; yet if the trial court has given a new trial because of such mistakes, an appellate court will not interfere unless it has clearly abused its discretion.</p> <p>4. Practice: new trial: presumption. The order granting anew trial is presumptively correct.</p> <p>5. Defective Machinery; foreknowledge. An instruction that told the jury that “defendant can not be chargeable in this action unless the injury is of such a character, in the manner of its occurrence, as might have reasonably been foreseen or expected by defendant, as the natural result of the machinery running roughly and jerking,’“was erroneous. If the injury follows as the direct consequence of the negligent act, the defendant can not be excused because the injury was not foreseen.</p> <p>6. Appellate Practice: reasons for granting new trial. In ease the reasons assigned by the trial court for granting a new trial are not sufficient, the appellate court may inquire whether the order granting the new trial may be upheld on some other ground assigned in the motion therefor. But where the grounds assigned in the motion are sufficient, the appellate court will not seek for outside grounds upon which to override the order granting a new trial.</p>

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) By the.language used in the contract with' reference to the damages which should be paid for a breach of this stipulation as to the character of the advertising, the parties intended, in the event of a wholesale breach of the agreement, such as the defendants have committed, to liquidate the damages which should be paid, and to relieve the plaintiff from the necessity of proving actual damages.

— Hon. C. B. McAfee, Judge. (1) The indictment is insufficient for the reason that it fails to state that the defendant feloniously intended to cheat and defraud the Springfield Stove Works, the corporation in question. State v. McGhesney, 90 Mo. 120; State v. Horn, 93 Mo. 190. (2) The court erred in admitting illegal and irrelevant testimony as shown particularly on pages 1, 2, 3 and 4 of the bill of exceptions.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. • ' (1) The defendant having been convicted of murder in the second degree, it is unnecessary to present either argument or authority in support of instructions given on murder in the first degree, or as to the sufficiency of the indictment on that question. State v. Kelley, 85 Mo. 143; State v. Williams, 68 Mo. 110. (2) No error was committed by the court in refusing defendant’s instructions.

<p>1. Criminal Law: new trial: lack on evidence. The granting of a new trial on the ground of a want of evidence to support the verdict, rests largely in the discretion of the trial court; and where the verdict has received the approval of that court and there is substantial evidence to support it, the appellate court will not interfere.</p> <p>2. -: lack of deliberation. Where there is no evidence showing that the homicide was deliberate, no instruction for murder in the first degree should be given.</p> <p>3. -: definition of manslaughter. The facts and circumstances attending homicides are so diversified that it is impossible to lay down any absolute rule as to all the necessary elements of manslaughter, and the one announced in 1 Wharton’s Criminal Law, [9 Ed.] section 304, seems to be generally accepted by American courts as correct.</p> <p>4. -: arrests: force used by an officer: heat of passion: manslaughter. If an officer without malice intentionally shoots and kills another while resisting arrest, and in so doing uses no more force or violence than is reasonably necessary to accomplish his arrest, the homicide is justifiable. But if he uses'more force than is reasonably necessary for that purpose, and shoots the other while resisting arrest, he is guilty of manslaughter in the fourth degree. Or if immediately after the other ceases to resist arrest, the officer in the heat of passion, engendered by the other striking him in the face with his fists or hands, shoots and kills the other, intentionally but without malice, he is guilty of manslaughter in the fourth degree.</p> <p>5. -- — : non-prejudicial instruction. A judgment can not be reversed because an instruction was given upon which there was no evidence to predicate it and which moreover presents a mere abstract proposition of law, if it is also apparent that such instruction imposes no additional burden upon the other side, and invades none of his personal rights, and therefore could not have been prejudicial to him.</p> <p>6. -: arrests: force “absolutely necessary.” An instruction that told the jury that an officer “had no right to use any more force in making or attempting to make the arrest than was absolutely necessary” is held to be erroneous, as requiring the officer to determine the necessary force with a degree of precision that is impossible.</p> <p>7. -: retaining jury four days. It is held that the trial judge, in retaining a jury for four days before it found a verdict, did not exceed his discretionary powers, in the absence of any showing of coercion on his part.</p>

— Hon. Otho S. Callihan, Special Judge. (1) The petition does not set forth any breaches of the bond, and does not set out any amount of money coming into the hands of the treasurer; refers to no settlement had, nor does it state that the treasurer was ever ordered to turn over any part of the money sued for. No exhibits are filed with the petition, and defendants are not advised of what they are to meet, and the petition fails to state any cause of action against defendants.

— Hon. William Page, Special Judge. (1) Defendants failed to perfect and file their bill of exceptions in this case. We therefore have nothing before us except the record proper. (2) The indictment is drawn in the language of the.statutes as near as practicable and is sufficient. It is based upon section 3489 and contains all the essential allegations therein required. State v. Chumley, 67 Mo. 41; State v. Clayton, 100 Mo. 520; State v. Prosser, 137 Mo. 624.

C. B. MoAeee, Judge. (1) The indictment is in the usual form employed in such cases and conforms in all its essential features with the strict provisions of law. State v. Tutt, 63 Mo. 596; State v. Tyrell, 98 Mo. 354; McClain’s Crim. Law, sec. 508. (2) Burglary and larceny may be charged in the same count. State v. Owens, 79 Mo. 619; State v. Alexandria, 56 Mo. 131.

<p>l. Voluntarily Entering Into a Difficulty. An instruction that concedes the right of self-defense is destroyed when to the words defining that right is added the further words: “If defendant voluntarily entered into the difficulty there is no self-defense in the case.”</p> <p>2. -: right to usb VIOLENCE. If the right of self-defense exists, the defendant has the right to voluntarily use violence to resist violence. “The voluntary entering into a difficulty” is not an ingredient of any homicidal crime. Self-defense being an affirmative, positive, intentional act, it must needs follow that such act is volimta/ry.</p> <p>3. -: sele-deeense: malice. However much hatred one may bear toward another, and however much he may desire an opportunity to take his life, yet if the facts of the case show that, to save his own life, he is fully justified in slaying the other, the malice can not be counted against him. (Distinguishing State v. Partlow, 90 Mo. 608.)</p> <p>4. -: threats: waiver. Where no objection was made to hearsay evidence concerning threats, which was flagrantly incompetent, and no instruction has been asked directing the jury to disregard such threats, no error in regard thereto can be assigned on appeal.</p>

— Hon. W. W. Rucker, Judge. (1) The crime attempted to be charged was not established. The evidence in this record does not show the felonious intent of the defendant, nor does it disclose any facts or circumstances from which a felonious intent could be fairly drawn. (2) The word “feloniously” is used twice in the second instruction, and no light whatever thrown on the meaning of the word, nor any attempted explanation of its meaning.

— Hon. William S. Hekndon, Judge. (1) The court erred in the third instruction given on the motion of the State. It. does not properly define reasonable doubt. It entirely ignores that element of doubt that might arise from the insufficiency of the evidence, and really casts upon defendant the burden of proving his innocence. State v. Blue, 136 Mo. 41, and authorities cited.

— Hon. J. C. Lamson, Judge. (1) The court erred in admitting the check in evidence. The indictment described the instrument alleged to be forged as a check for $65.50, signed with the name of Lorenz Sulkowski. The instrument offered in evidence was a check for $65.50 and signed by L. Sulkowski. This was a fatal variance. State v. Fay, 65 Mo. 490; State v. English, 67 Mo. 136; State v. Owen, 73 Mo. 440; State v. Chamberlain, 75 Mo. 382.

<p>1. Bape : child under consent age: prior sexual intercourse. In the prosecution of an accused person for rape upon a girl under the age of consent, it is not competent to ash her if she had sexual intercourse with other men prior to her carnal knowledge of the defendant; nor is such evidence competent as bearing against the corroboration which the birth of a child tended to give to the charge that defendant had had illicit intercourse with the prosecutrix, even though the child was in the court room at the trial, if the question ashed was in reference to acts of intercourse occurring before defendant had ever had intercourse with her. (Distinguishing from the New York ease of People v. Flaherty, 79 Hun. 48.)</p> <p>2. Practice; attempt to extort money: exclusion op evidence. If no question as to the exclusion of evidence was made in the motion for a new trial, the appellate court will not consider a complaint (made for the first time here) that defendant was not permitted to show that the motive of the prosecutrix in the prosecution for rape was to extort money from him.</p> <p>3. -: error in instructions : not pointed out in motion nor new trial. If the attention of the trial court is not called to an erroneous instruction in the motion for a new trial, defendant will be-deemed to have waived it.</p>

<p>1. Appeals: not allowed to state on informations. The State is not entitled to an appeal in a prosecution founded on an information. It can appeal only when an indictment, first, has been quashed; or second, where it is adjudgbd insufficient .upon demurrer; or third, where the judgment thereon is arrested.</p> <p>2. Appeals by State; of statutory orioin.' Appeals as practiced in 'this country are of statutory origin, and are regulated by statute, and this being the case it is essential to the exercise of such right that the statute be strictly pursued.</p> <p>3. --■: from what courts. An appeal by tbe State can not be allowed except from a court baying jurisdiction to proceed to tbe trial of a defendant for tbe offense charged.</p> <p>4. -: -: st. louis court of criminal correction. Tbe St. Louis Court of Criminal Correction has no jurisdietion to try felonies.</p>

— Hon. J. C. Lamson, Judge. (1) There was no arraignment of defendant before life was put' on trial. This is error under repeated rulings of the court. Staté v. Williams, 117 Mo. 379; State v. Walker, 119 Mo. 467. (2) The evidence shows that the deceased began the difficulty and at the time had a knife concealed under his coat.

— Hon. D. P. Stratton, Judge. (1) The transaction between Hoover Brothers and Dillard, as shown in this record, discloses actual fraud. (2) The agreement between Hoover Brothers and Dil- • ard, as detailed by the latter, at the time the chattel mortgage was executed, gave Dillard unlimited authority to deal both with the property and the creditors of the firm. It shows an attempt to delegate the power and to prefer creditors, rendering the transaction fraudulent in law.

<p>1. Condemnation Proceedings: appellate court. The Supreme Court, in a proceeding involving the legality of a proceeding to condemn land for a public road, is the proper appellate court, since the title to land is involved.</p> <p>2. ———■: judgment op county court: collateral attack. The judgment of a county court ordering that a certain public road be established, is not open to collateral attack, if it had acquired jurisdiction by proper notice and petition.</p> <p>3: -: sufficiency of petition. A petition for a public road did not state through whose land the road would pass, but otherwise correctly described its course. But in the report of the road commissioner he describes the land in contest as that of Major Baubie, and the report of the commissioners to assess damages describes the strip as belonging to '‘Annie Baubie,” the plaintiff herein, who was the wife of Major Baubie. Held, that the petition was sufficient to support a judgment of the county court, ordering the road opened, against a collateral attack by injunction which sought to restrain the road overseers from tearing-down plaintiff’s fences, etc.</p>

— Hon. J. J. Gtdeon, Judge. (1)1 The instrument set forth in the indictment does not purport to have the signature of anyone attached thereto — that is- to -say, the name, “Mrs. Austin,” is not the name of any particular person, and is not the subject of forgery, and could not purport to be the act of any particular person. Bishop’s New Crim. Law, p. 465, sec. 766.

— Hon. John W. Wofford, Judge. • (1) The second count of the indictment is assailed because of its duplicity, as it contains allegations which constitute two separate and distinct crimes. Under the act of 1895 the offense is complete without regard to the use of force. An assault signifies force, and if the offense was committed by force, the defendant might be guilty of rape, a crime punishable' by death, in the discretion of the jury.

Louis City Circuit Court. — Hon» James E. Withrow, Judge. (1) This suit being brought for breaches of the condition of a bond, it was not necessary for appellants to plead the payments made by the constable Peterson to relator. Wheeler & Wilson Mfg. Co. v. Tinsley, 75 Mo. 458.

<p>1. Pleading: ex-oebtcio notice or records in same oAttse. Courts will take notice of all matters of record in the same cause; hence it is unnecessary in an amended petition to allege that the original suit was begun within the statutory period.</p> <p>2. -: -: damages for killing plaintiff’s husband. Plaintiff’s husband was killed by defendant’s railroad on February 25, 1894, and this action was begun by his widow March 22, 1894. On May 5, 1894, defendant demurred, but withdrew the demurrer on June 16, and on the same day plaintiff filed an amended petition, which defendant answered October 9, and on December 12, 1894, plaintiff filed a second amended petition, without averring the filing of the original petition within six months after the death of plaintiff’s husband. Held, that such averment was unnecessary, since it stated that he was killed on February 25, 1894.</p> <p>3. Practice: effect of demurrer. A demurrer to the evidence ad- • mits every fact which the jury might infer from the evidence if it were before them.</p> <p>4. Negligence: starting oars. A carrier of passengers is bound to allow them reasonable time to enter and leave its cars, and while it may start before a passenger-has been seated, it must exercise the highest degree of care that prudent and cautious persons would use and exercise under similar or the same circumstances in starting its cars, so as not to suddenly jerk or jar him and thereby injure him.</p> <p>5. ■— -■: -: case stated. 1 The plaintiff's evidence showed that-defendant’s ear was entered from an elevated platform twenty feet high, through iron gates, which were opened after the ear had stopped, then up a few steps of the car’s platform; that the deceased stepped upon the steps of the car to take passage, and while in the act of stepping upon the car’s platform the conductor rang the bell and the car was suddenly started forward, and the deceased either fell off, or stepped off to avoid falling off, upon the station platform, and by reason of the momentum acquired by him while thus on the steps of the ear he was precipitated to the ground below, and killed. Held, that on this evidence plaintiff was entitled to go to the jury.</p> <p>6. —■—-: railings at station platforms. Under the circumstances in this case, the question of whether the defendant was guilty of negligence in leaving a space of twenty-six inches between the cars on the track and the railing or guard to the station platform, was one for the jury. It is also held, that the mere fact that other elevated roads had been equally guilty in constructing such railings, would be no defense. ;</p> <p>7. Death of Husband: measure of damages. The jury were instructed that if they found for plaintiff, who was suing for the negligent killing of her husband, they would award her "such damage not exceeding five thousand dollars as you may deem fair and just under the evidence in this case with reference to the necessary injury resulting to her from the death of her husband.” Meld, not to be erroneous. An instruction for the defendant which "excludes all idea of prospective damages of a pecuniary nature and limits the widow’s recovery to the immediate damage suffered or at most to those up to the trial,” was properly refused, the words "necessary injury” in our statute being broad enough to include any damages which may be estimated according to a pecuniary standard, whether present; prospective or proximate.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) When one party to a transaction is dead, the •statute excludes the testimony of the other party to any matter pertaining to the contract or transaction made by them. R. S. 1889, sec. 8918. The disqualification does not, however, extend to relevant matters not immediately involved in the transaction. Reichenbach v. Ellerbe, 115 Mo. 588.

Mandamus. (1) The relator contends that under the faets in the premises it was the duty of the county court to draw a warrant as applied for. Section 7903a, Revised Statutes, enacted by the legislature March 15, 1897 (see Sess. Acts 1897, p. 218).

Transferred from Kansas City Court of Appeals. (1) The “act to regulate the sale of medicines and poisons by druggists and pharmacists” (Laws of Missouri, 1881, p. 130) and the amendment thereto (Laws of Missouri 1883, p. 89) were intended to “regulate the whole subject of the sale of intoxicating liquors by druggists.” The defendant sold the liquor as medicine, being a regularly licensed druggist, and only upon the prescription of a regularly licensed and practicing…

<p>1. County Clerk: failure to account for fees : pleading. Where a county clerk makes correct statements to the county court of the fees received hy him, it is necessary for the petition to state, as a condition precedent to the institution of suit on his bond for a failure to pay into the county treasury the excess of fees collected by him above his salary and the pay of his deputies, that the county court examined his settlement, ascertained the amount of excess of fees due the county, and ordered the excess paid into the county treasury. But these allegations are not necessary where it is alleged that the county clerk was guilty of fraud and deceit in filing' statements which omitted a part of the fees received by him. If the petition alleges that the clerk collected fees which he failed to report to the county court, it states a cause of action. (Distinguishing State ex rel. v. Dent, 121 Mo.. 162.)</p> <p>H. -: -: breach of bond. It is the duty of the county clerk to make correct quarterly statements to the county court of all fees received by him, from whom received, and the amount paid for deputy hire, and if he fails to do so there has been a breach of his bond. As to the fees actually reported by him, the approval of the county court is final; but the approval of his quarterly returns by the court can not be said to embrace those fees which he received and failed to report, nor can it be said that the court acted upon them.</p>

<p>Appeal by State: information. The State is not entitled to an appeal, nor to a writ of error, on the quashing of an information for insufficiency.</p>

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) By the laws of Missouri it was the duty of respondents to have had the will of Robert G-. Stafford recorded in the recorder’s office- of the city of St. Louis, where the real estate devised to them by his will is situated, within six months after its probate. The will not being recorded in Missouri until March, 1894, there was no notice of such will or of its provisions to anyone, until that time.

— Hon. J. J. Gideon, Judge. (1) On account of the prosecuting attorney’s failure to prepare the bill of exceptions this case must be affirmed without going into the merits or demerits in reference to the sufficiency of the indictment. State v. Fraher, 137 Mo. 258. (1) As the motion to quash is not preserved in the bill of exceptions, it can not be considered by the court.

— Hon. A. M. Woodson, Judge. (1) Before respondent is entitled to the relief prayed for, he must show that there was a mistake, and that it was a mutual one, between the parties, by testimony so clear and convincing that there is no doubt left in the mind of the chancellor. There must be a certainty of the mistake; a preponderance of testimony in its favor is not sufficient. Tesson v. Ins.

— Hon. Reuben F. Roy, Judge. (1) The court should have required plaintiff to give security for costs. R. S. 1889, sec. 3916; McMahon v. McMahon, 100 Mo. 97; Jackson v. Hardin, 83 Mo. 176. (2) The court erred in refusing to give instruction number 2, asked by defendants. There was absolutely no evidence of mental unsoundness. Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Norton v. Paxton, 110 Mo. 456; McFadin v. Catron, 120 Mo. 252; 138 Mo. 197.

— Hon. E. J. Broaddus, Judge. (1) The court erred in overruling the defendant’s application for a continuance, and forcing it to trial without the depositions of the plaintiff and the witness Applegate. In this State it has uniformly been held that where a continuance is refused a party who has used due diligence to procure his evidence, such refusal constitutes reversible error.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The trial court erred in receiving in evidence the tax returns made by defendant Rothan. 2 Wharton on Ev. [3 Ed.], sec. 1199; 1 Greenl. on Ev. [15 Ed.], see. 176; The New Orleans, 106 U. S. 13; McLellanv. Cox, 36 Me. 95; Dean v. Ross, 105 Cal. 231; Prewettv.