Volume 156 — Missouri Reports

Louis Oity Circuit Court. — Hon. Horatio D: Wood, Judge. (1) Under the pleadings and evidence it was error to dismiss the bill. .The utmost that defendant was entitled to under the answer and evidence was a decree, adding to the t$10,000 debt any damages suffered from Gibson’s breách of contract before plaintiff could have the stock certificate transferred to him.

- — Hon. John W. Henry, Judge. (1) There was no testimony showing when the alleged defective condition of the iron flanges begun, and in the absence of direct notice there was no evidence on which to base notice of any -sort to the city. Baustain v. Young, 152 Mo. 317; Ca-rvin v. Mfg. Co., 52 S. W. Rep. 210; Ruggles v. Nevada,. 63 Iowa, 185; Dundas v. Lansing, 75 Mich. 499.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The wharf which was relinquished to the city as trustee as and for a “public highway and for wharf purposes,” is being used in a way varied from the object for which it was designed. Consequently the court ought to cause the trust to be observed, the obstructions removed from the leased premises, and the lease annulled. 2 Dillon on Mun.

<p>1. Practice: action at law: evidence. In an action at law the appellate court will not reverse the judgment of the trial court on a question of fact, if there is any substantial evidence to support it.</p> <p>2. Public Lands: navigable stream: Missouri river. A grantee from the United States of land in this State on the banks of a navigable stream, such as the Missouri River, takes only to low water mark, and not to the middle of the stream.</p> <p>3. -: -: -: ISLAND. The owner of the bank on the Missouri river is not, by reason thereof, the owner of an island which springs up in the midst of the river.</p> <p>4. -: -: -: -: ACCRETION. When in such case by accretion to the island its water margin unites with the main shore, the newly made land becomes a part of the island, and not of the main land, and the riparian ownership is not extended. (Cooley v. Golden, 117 Mo. 33, followed.)</p> <p>5. Lands: accretion granted to counties. Under the laws .of 1895, page 207, the title to islands formed in the navigable waters of this ■State is vested in the counties within which such islands are formed.</p>

— Noto. Richard Field, Judge. (1) The report of the commissioners was not a final Settlement of the matter in controversy and did not bind the parties until filed and confirmed by the court.. At any time prior to such confirmation plaintiff had a right to take a non-suit. Stephens v. Hume, 25 Mo. 349; Ivory v. Delore, 26 Mo. 505; Worthington v. White, 42 Mo. 462; Mayer v. Old, 51 Mo. App. 214; Wood v. Nortman, 85 Mo. 298; 1 McQuillin’s PI. and Prac.,'sec. 654.

— Hon. John W. Henry, Judge. (1) The court erred in admitting in evidence the resolutions adopted by the common council approving the plat of Mt. Evanston addition and Cook and Dudley’s addition. Downend v. Kansas City, Yl Mo. App. 529; St. Louis v. St. Louis University, 88 Mo. 155; Hahn v. Sweazea, 29 Mo. 199.

— Hon. Gallatin Craig, Judge. (1) The court erred in excluding Gray *as one of the 40 jurors on the ground that he said he could not convict on circumstantial evidence alone. There is no law permitting such ground for excusing a juror.

<p>1. Indictment: homicide: felonious purpose. The indictment in this case sufficiently charges that the homicidal act itself was done - with a felonious purpose, and is in all respects sufficient.</p> <p>2. Confessions: coercion. The officers and other witnesses testify unequivocally that no threats were made to extort defendant’s confession and no hope of reward was held out to him. Instead of extorting a confession, he was told that he didn’t have to make any; that if he hadn’t committed the crime he must not for the world admit it. The utmost extent that any witness went to was that one of the guards said to defendant that if he had been dragged into this crime it would go lighter with him to confess, but if he had not committed it to confess nothing. Held, that the statement of the guard was no more than an expression of an opinion by one who had no authority to make it easier on the prisoner, and hence it was not a promise, and no error was committed in admitting his confession.</p> <p>3. Refusing Defendant’s Instructions. Where everything asked in defendant’s instructions has already been given by the court of its own motion, it is not error to refuse defendant’s instructions.</p> <p>4. Insanity: sdeeiciency oe evidence. Two physicians, after an examination of a few moments, testified that defendant was insane when they examined him, but on cross-examination they admitted that they had never made insanity a subject of special study, and that the facts testified to by other witnesses as to defendant’s conduct and capacity to do business up to the very time of the assassination and that he stated his conscience was greatly relieved by the confession, pointed strongly to his sanity. Held, that the question of defendant’s insanity was properly submitted to the jury and was sufficient to support their verdict that he was sufficiently sane to know the right from the wrong of the crime he committed.</p>

— Hon. D. P. Stratton, Judge. (1) The instructions given by the trial court when this case was tried before a jury, and previous to its former appeal to this court, are omitted from this brief because the only questions that are now to be considered are relative to the authority of the trial court to enter judgment and sentence in a proper form according to the directions of this court Tbe motions for a new trial and in arrest of judgment, made previous to the first- appeal…

— lion. Argus Gox, Judge. (1) Statements implicating a defendant are nut admissible in evidence though made in his presence when the circumstances are such as not to require him to speak. State v. Young, 99 Mo. 674; State v. Glahn, 97 Mo. 694; State v. Mullins, 101 Mo. 516; 1 Yol. Greenleafs Ev., (5 Ed.), sec. 197; State v. Howard, 102 Mo. 148; 3 Am. and Eng. Ency. Law (1 Ed.), 494.

, Appeal from Christian Circuit Court. — Hon. James T. Neville, Judge. (1) The indictment in this case is fatally defective. It charges the shooting and wounding of Stephen Bilyeu, and that Stephen Bilyen died of said wounds, but fails to charge that any assault was made on Stephen Bilyeu, or ón any one else by this defendant, or either of his co-defendants in this indictment.

<p>Appeals: jurisdiction: constitutional question. An appeal in a criminal ease otherwise appealable to a court of appeals, and by that court transferred to this court on the ground that a constitutional question is involved, can not be entertained by this court if the constitutional question was not at any time raised in the circuit court.</p>

— Henry C. Pepper, Judge. (1) The witnesses indorsed on tbe indictment — all of tliem — bad testified, and none of them, n.or all of them, could make a case against defendant; then the indictment bad not all or any of the material witnesses indorsed on it. Only the testimony of Charles Pitts could really, under the holding of this court on first appeal, be considered material in any true sense. ITis name was not on the indictment.

— Hon. Henry O. Riley, Judge. This case ought to be reversed because the court failed to instruct the jury, as the evidence warranted, for murder in the second degree, and manslaughter in the several degrees as provided by statute. See. 4208, R. S. 1889; State v. Branstetter, 65 Mo. 149; State v. Swanagan, 109 Mo. 233; State v. Hopper, 71 Mo. 431.

— Hon. J ames T. Neville, (1) The special judge erred in calling regular judge to make an order for sheriff to summon special grand jury. ¥e know no law whereby a special judge, after he has sustained a motion to quash the indictment, can call back the regular judge to the bench, after a change of venue has at a prior time been taken from said regular judge.

— Hon. Henry G. Riley, Judge. (1) The indictment follows the language of the statute, and properly charges the crime. That is all that is necessary. State v. McDaniel, 94 Mo. 301; State v. Kirby, 115 Mo. 44; State v. Bennett, 102 Mo. 356; State v. Anderson, 81 Mo., 78; State v. Noland, 111 Mo. 473. This indictment contains the proper recitals as required by law. State v. Vincent, 91 Mo. 662. This indictment is sufficient to inform the defendant of the charge against him.

Louis Court of Criminal Correction. — Hon. David Murphy, Judge. (1) This is a proceeding under a city ordinance. Proceedings for violation of city ordinances, although partaking somewhat of the nature of criminal proceedings,” are civil. Kansas City v. Neal, 122 Mo. 234; St. Louis v. Schoenbush, 95 Mo. 618; Ex parte Holwedell, 74 Mo. 395; De Soto v. Brown, 44 Mo. App. 152.

<p>1. Ordinance: trespass: improved real estate. Revised Ordinances of St. Louis, art. 17,188, section 981, provides that it shall be unlawful for any person without the consent of the owner -or his agent to enter on any inclosed or improved real estate, lot, or parcel of ground in the city, or to deposit thereon or remove therefrom any substance, dirt, refuse, etc. Held, that under the ordinance one could not be held liable for a trespass committed within a building, since the provision of the ordinance plainly showed that it applied to land, and not to buildings.</p> <p>2. Complaint: amendment: admission oe counsel. Where the complaint against defendant was under an ordinance making trespass on improved or inclosed land unlawful, and plaintiff’s counsel, in the presentation of the case, admitted the offense was a trespass within a building, it was an amendment of complaint to that effect, and the court properly excluded any evidence, and discharged defendant.</p>

— Hon. John W. Henry, Judge. (1) One who takes a negotiable note payable to order without indorsement or merely by assignment, takes only the title of the person who transferred to him and subject to ail equities against the note. This is so even though the note be taken before maturity, for value and without notice of such equities. Tiedeman on Com. Paper, sec. 247; Eandolph on Com.

<p>1. Instructions: “admissions taken as true.” An instruction that told the jury that any statements of the defendant which have been proved by the State and not denied by the defendant, are to be “taken as admitted as true,” was reversible error.</p> <p>2. -: resisting force with force. An instruction was in these words: “If you believe from the evidence that the defendant was on his own premises and that deceased came thereon threatening to kill him or do him great bodily harm or to eject him therefrom, the defendant had the right to repel force with force and to use such means and such force as was reasonably necessary to save himself from harm.” Held, that this instruction was good as far as it went, but that it fell short of stating the full right of defendant, in that it permitted the jury to say what resistance in their opinion was reasonably necessary, whereas they should consider how it "appeared to him at the time under the then circumstances.</p> <p>3. --: apprehension : self-defense. An instruction in regard to apprehension of danger, where defendant is on his own premises, is assailed by a man nearly twice as large as himself, and is hemmed up in a stable from which his adversary bars ‘the only exit, should not maximize every restriction of the right of self-defense, and minimize every right of the defendant.</p> <p>4. -: MANSLAUGHTER IN THIRD DEGREE: SELF-DEFENSE. Where the evidence, upon which an instruction for manslaughter in the third degree is based, clearly makes out a case of self-defense, no such instruction should be given.</p> <p>5. -: THREATS by deceased. The fact that threats made by deceased concerning defendant were in a sense conditional, did not render them inadmissible.</p>

Court. — Eon. E. J. Broadclus, Judge. (1) Tbe granting of a change of venue in a criminal case is a matter 'within the discretion of the trial court. And the appellate tribunal will not disturb the trial court’s ruling thereon unless that discretion has been palpably abused. State v. Dyer, 139 Mo. 199; State v. Tatlow, 136 Mo; 678. (2) The defendant was in custody when indicted. The indictment. was returned at the February term, 1899.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The trial court erred iu overruling appellant’s demurrer to the cross-bill, and in rendering the decree in question thereon.

- — Hon. J. L. Fort, J udge. (1) The court erred in permitting witness, Matilda Thorn, to testify to a conversation between herself and her husband on the morning of the difficulty, not in the presence of Moore, for the reason, that such conversation forms no part of the res gestae, and was not proper matter for the consideration of the jury in this cause. And because it threw no light whatever upon the actions and conduct of the deceased and defendant afterwards.

Criminal Court. — Son. B. J. Gasteel, Judge. (1) There was no evidence that the iron bar or gas pipe mentioned in evidence was a deadly and dangerous weapon, or that it was “a large piece of gas pipe,” and the court therefore erred in submitting these questions to the jury in its instructions numbered 2, 3 and 11, and refusing the instruction asked by defendant on common assault. State v. Jackson, 126 Mo. 516.

— Judge. Son. Rudolph Sirzel, (1) Tire court erred in giving instruction, numbered b, on reasonable doubt. It tells tbe jury that in order to acquit tbe defendant on tbe grounds of reasonable doubt, that doubt must arise out of tbe evidence, thereby excluding from tlie consideration of the jury any doubt that may arise from lack of evidence. This is calculated to mislead the jury. State v. Nueslien, 25 Mo. Ill; State v. Bobbst, 131 Mo. 339; State v. Blue, 136 Mo. 41.

— Hon. W. W. Woods, Special Judge. (1) This ease should have been taken from the jury upon defendant’s instruction in the nature -of a demurrer to the testimony, interposed at the close of plaintiff’s case, and re-interposed at the close of the whole case. The danger was obvious and impending, and was known to defendant for six days prior to the accident. Eugler v. Bothe, 117 Mo. 475; Watson v. Coal Co., 52 Mo.

— Hon. John A. Hoclcaday, Judge. (1) The court should have given an instruction upon self-defense, and it should have been given whether requested or not. State v. Taylor, 118 Mo. 154. (2) The second instruction, given for the 'State, is misleading, and prejudicial. (1) The jury found the defendant guilty on the first count of the indictment. He can not be heard to complain of the insufficiency of the second count, for on that charge he stands acquitted.

— Hon. L. B. Woodside, Judge. The court gave the following instructions, numbered one, two and three, on the part of the State, to-wit: “1.

Circuit Court. — Eon. L. B. Woodside, Judge. (1) There is no evidence that the property, which the .indictment pretends to- charge the defendant with stealing, was of any value whatever at the time the same is charged to have been taken. There must be some value proven at the time of the taking of the property or a conviction can not stand. State v. Krieger, 68 Mo. 98.

<p>Transferred from Kansas City Court of Appeals.</p>

Transferred, from St. Louis Court of Appeals. (1) A grantee is not liable for tbe payment of a mortgage -debt upon tbe property which he purchases, although the conveyance to him may so recite, where his immediate grantor to whom the promise is made, is not himself personally liable. 1 Jones on Mort., sec. 755; Vrooman v. Turner, 69 N. Y. 280; Townsend v. Rackham, 88 N. E. Rep. 731; Norwood v. DeHart, 30 N. J. Eq. 412; King v. Whiteley, 10 Paige, 465; Mount v. Van Ness, 33…

Louis Oily Circuit Court.' — Hon. P. B. • Fliicraft, Judge. (1) A mortgagee or pledgee may perform sucb acts as giving tbe notice of sale, conducting tbe sale, etc., tbrougb its agent. Jones on Mortg., sec. 1861; Hubbard v. Jarrell, 23 Md. 66; Crauston v. Crane, 97 Mass. 459; Singleton v. Scott, 11 la. 589; Eogarty v. Sawyer, 23 Cal. 570; Cogan v. McNamara, 18 Atl. Eep. 157; Bryan v. Baldwin, 7 Bans.

— Hon. G. L. Dobson, . Judge. (1) The trustee should have divided the property as requested by intending purchasers, and not having done so, the sale will be set aside. “The rule is firmly established that a trustee in selling land is trustee for both parties and is bound to adopt all reasonable modes of proceeding in order to render the sale most beneficial to the debtor.

Louis County Circuit Court. — Son. John Rudolph Sirzel, Judge.

— if on. Richard Field, Judge. (1) Our administration laws furnish ample authority for the administrator to care for and preserve the estate, to lease and repair realty without any permit from the circuit court, and he is required to do so and is liable on his bond for any waste or mismanagement of the estate. R. S. 1889, secs. 100, 101, 129 and 130; Powell v. Powell, 23 Mo. App. 365; Eoff v. Thompkins, 66 Mo. 225; Lass v. Eisleben, 50 Mo. 122; Lewis v. Carson, 16 Mo.

<p>1. School Taxes: licenses: collector’s commissions. Tire collector of the revenue of St. Louis is entitled, under the statute, to a commission of three per cent for revenue collected by him for the school board on the amount of goods, wares and merchandise, returned by merchants and manufacturers pursuant to the laws of the state relating to merchants’ and manufacturers’ licenses.</p> <p>2. - — : classification. Two methods are and have always been employed for the collection of all taxes, briefly denominated “Tax Books” or “Tax Bills,” and “Licenses;” and the commissions to which collectors are entitled for collecting the revenue is fixed by statute according’ to this classification, they being entitled to receive certain rates upon all taxes collected by means of “tax bills,” and certain other rates upon all .taxes collected by means of “licenses.”</p>

Louis City Circuit. Court. — Hon. Jacob Klein, Judge. .(1) Where one of the parties to a continuing contract notifies the other that he will not abide by its terms, such other party may treat the entire contract as at an end and sue for the breach; and he is not bound to offer to perforin on his part. Pond v. Wyman, 15 Mo. 183; Black Eiver Lumb.

- — Hon. JE. 'M. Hughes, Judge. The property was not a homestead for the following reasons: (1) It is situated in the corporate limits of Troy. The dwelling house in which they lived is located on lot 51. Lot 51 is one hundred feet square and contains over thirty-six square rods of land.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) ' By interposing tbe demurrers to appellant’s petition tbe respondents conceded the truth of all^tbe averments of tbe petition. Shields v. Johnson Go., 144 Mo. 77; Dodson v. Lomax, 113 Mo. 555; McGinnis v. Geo. Knapp & 'Go., 109 Mo. 131;. Wolff v. Ward, 104 Mo. 127. And they thereby also conceded to be true the conclusions of fact drawn from the matters recited in the petition.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Tire trial court erred in refusing plaintiffs’ instruction offered at tbe close of both defendant’s case and the whole case. A will contest is a trial de novo, and the will must be proved in solemn form, as though never presented in the probate court. Not having been proved, it must fall.

— Hon. Andrew Hllison, Judge. (1) A deed absolute upon its face, intended by tbe parties to be security for tbe payment of money, will, in equity, be treated as a mortgage. And such intent may be shown by parol evidence. This proposition is elementary, and the decisions are numerous, a few of which are here cited: Book v. Beasly, 138 Mo. 455; Cobb v. Day, 106 Mo. 278; O’Neill v. Capelle, 62 Mo. 202; Hargadine v. Henderson, 97 Mo. 375.

Transferred from Nansas City Court of Appeals. (1) The court improperly permitted a recovery for damages sustained at different times from the incursion of cattle at one time, and of hogs at other times. (2) Plaintiff was not entitled to recover the value of the corn eaten by his own hogs which he turned into the field. (3) Defendant discharged its duty by fencing the sides of its track.

<p>Railroad Bence: loss of hogs: proximate cause. In an action against a railroad company for hogs which escaped from plaintiff’s field on to defendant’s adjoining right of way through defendant’s defective right of way, and were lost, it must be shown that the railroad company’s failure to keep a lawful fence was the proximate cause of the loss. And in this case it. is held that an admission that “at said time and place the defendant did not have upon the sides of its road fences sufficient to turn hogs” and “that plaintiff’s hogs passed out of and escaped from the inclosed fields along and adjoining defendant’s railroad and were thereby lost,” was a concession that the defective fence was the proximate cause of the loss of the hogs.</p>

Transferred from Kansas City Court of Appeals. This suit was a mingling together of a number of indefinite causes of action, if any existed, arising between June 1 and December 1, 1896. It was error to permit a “lumping” proof of and recovery upon a number of distinct causes of action.

— Hon. George F. Longan, J udge. The court erred in giving instruction number 1 on behalf of defendants. The letter as published by defendants purporting to be written September 20, 1896, by the J. D. Hail Dry Goods Company to the Rothschilds is charged in plaintiff’s petition to be false and defamatory, and not true or genuine. It is a part of the libelous publication, the whole of which is charged to be false and defamatory.

— Hon. B. ,F. Boy, Judge.* (1) The motion for new trial filed' August 19, 1895, upon the incoming of the jury’s verdict that plaintiff was entitled to dower in the lands, was premature, and' hence when overruled appellant was not called upon to take a bill of exceptions. G-oode v. Lewis, 118 Mo; 357; St. Louis v. Boyce, 130 Mo. 572; Rennels v. Washington University, 96 Mo. 226; Macke v. Byrd, 109 Mo. 487.

— Hon. H. J. Broaddus, Judge. (1) The devise to S. L. Alexander was conditional. “No precise form of words is necessary in order to create conditions in wills; any expression disclosing the intention will have that effect.

— Hon. J. O. Lamson, Judge. (1) Defendant’s answer admitted bis possession of tbe land sued for and tbe case was tried on tbis answer. Tbe plaintiff proved its title to tbe land and asked tbe court to instruct tbe jury to find for plaintiff. Tbe court refused to do tbis and tbe jury returned a verdict for defendant.

— Hon. P. G. Stepp, Judge. (1) Th.e trust mentioned in tbe answer as to tbe eighty-acre tract of land involved in this appeal is clearly an express trust, according to all definitions of that term. Price v. Kane, 112 Mo. 412; Bobb v. Bobb, 89 Mo. 411; Weiss v. Heitcamp, 127 Mo. 23; 1 Beach, Mod. Eq., sec. 234; Rogers v. Ramey, 137 Mo. 598; Hillman v. Allen, 145 Mo. 638; Woodruff v. Stephens, 51 Mo. 443; 1 Perry on Trusts, sec. 19.

Louis City Circuit Court. — Son. James E.Withrow, Judge. (1) If the court should hold that the Herman contract for the repair of the Boyd street sewer did not bind the city as a contract because no ordinance was passed, and that the catch-basins did not come within the meaning of the “extra work” clause therein, and that the resolution in regard to the catch-basins did not bind the city to pay for them, yet the city is liable in this case on the ground that it was a…

— Hon. Rudolph Hirzel, Judge. (1) Respondent under .the facts in this case could only become a citizen of the United States by proceeding under the laws of naturalization passed by acts of Congress. Boyd v. Thayer, 143 U. S. 135. (2) And naturalization is nothing more or less than a judicial determination of an asserted right. In re Bodek, 63 Fed.'Rep. 813; Spratt v. Spratt, 4 Pet. 393; Webster oh Citizenship, p. 143.

— Ron. D. P. Stratton, Judge. (1) “Eraud may be presumed in equity, but must be proved at law. Therefore a court of equity will grant relief upon the ground of fraud established by presumptive evi- - dence which courts of law would not always deem sufficient to justify a verdict.” King v. Moss, 40 Mo. 551.

<p>1. Suit by Trustee of Express Trust. The words “a trustee pf an express trust” include a person with whom or in whose name a contract is made for the benefit of another, and such a person is authorized to sue in his own name for the breach of such a contract without joining with him those beneficially interested with him therein.</p> <p>2. -: PLEADING: CUBED BY EVIDENCE AND VERDICT: ALTERNATIVE conteact. The plaintiff, as trustee for himself and other citizens of Ferguson, entered into a written contract with a railroad, by which, in consideration of $3,000 to the road paid by plaintiff for himself and other subscribers, the railroad agreed to run six trains per day between Ferguson and St. Louis on an agreed time schedule, and a theatre train on Wednesday and Friday nights. The company, after a year or so, took off the theatre train, and, after complaint, demand for compliance with the agreement or return of the money, and the railroad’s refusal to do either, the trustee-sued for the amount of money subscribed, alleging a breach of the contract. The defendant demurred to the petition, on the ground tihat it did not state a cause of action, and on the overruling of the demurrer by answer denied every allegation in the petition. It is claimed on appeal that as the Contract sued on was in the alternative, that is, that the defendant could discharge its obligation by running the trains on the agreed schedule or by returning the money either to the plaintiff as trustee or to him and his co-contributors, it was necessary, for a statement of a cause of action in plaintiff as trustee, that the petition allege that the company had failed to return the money to his co-contributors. Held, first, that, notwithstanding the demurrer, such allegation was not necessary for a statement of a cause of action in plaintiff, but was a matter of defense, the rules governing alternative pleading being inapplicable; second, if the contract was in the alternative and the rules governing alternative pleading were applicable, the failure of the petition to allege a refusal to return the money to the trustee’s co-subscribers was cured by the verdict and the admission of evidence, without objection, that at a meeting of all the subscribers the trustee was directed to demand a reinstatement of the train or a return of the money, and that both demands were ignored.</p> <p>3. -: -: AMENDMENT AFTER VERDICT: WHEN CONCEDED. Where the parties have tried a case as if the omitted averment were in the petition, although a demurrer was lodged against it on account of such omission, it will be sufficient to sustain a verdict, if after .verdict it would have been consistent with the evidence, admitted without objection, to amend it so as to include such averment. And Where such amendment might properly have been made, and the parties at the trial have proceeded as if it had been made, this court on appeal will consider the petition as having been amended.</p> <p>4. Contract: defeasance: pleading. Where a contract contains a clause which expresses the terms under which defendant may terminate it, it is not necessary for plaintiff in a suit to recover for a breach of the contract, to plead such defeasance clause, because that is matter* of defense.</p>

Eraneois Circuit Court. — Hen. James J). Fox, Judge. (1) The trial court committed error in permitting the plaintiff to testify with particularity, to the number or ages of her children.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The trial court erred in permitting the plaintiff to testify, against the objection and exception of defendant, to statements by Thomas J. Payne (through whom defendant claimed title) in the nature of admissions of the alleged common law marriage, said Payne being deceased at the time of the trial, and plaintiff being interested in 'the event of the suit.

Certiorari. Tbe duties of an administrator pending suit, commence from tbe date of tbe order of appointment and if tbe decree in tbe action is appealed from, do not cease until tbe appeal bas been disposed of. Tbe appeal operates as an extension of tbe suit. Taylor v. Taylor, ,6 Probate Division, 29; Dunbam v. Dunbam, 16 Gray 577; 'Werner’s Am. Law of Administrations (2 Ed.), sec. 181; Estate of James Eobinson, 12 Pliila. (Pa.) 14.

Louis City Circuit Court. — Hon. Franklin - Ferris, Judge. (1) Under sec. 22, art. 6, charter of St. Louis, before a lien can arise on property in a taking district for the cost of the construction of sewers, tlie board of public improvements must make an assessment of the entire cost of the construction against the property.

Louis City Circuit Court. — Hon. Jno. A. Tally, Judge. (1) The second instruction given on the part of the defendant is likewise erroneous because it takes from the jury all questions excepting the negligence of the deceased in going on to the defendant’s track. Everything else is disregarded.

— Hon. A. M. Woodson, Judge. (1) The notice required by the sections of the statutes is jurisdictional arid the validity of all proceedings for tbe collection of taxes subsequent thereto is dependent upon the question as to whether or not such-notice has been given.

<p>1. Ejectment: interest recoverable: after-acquired interest. Plaintiff in ejectment can obtain judgment only for such undivided fractional interest in the land he owned at the time of ouster laid. Judgment for such interest as Jie acquired after suit brought and before trial is error. And although a judgment for the fractional interest owned by him when the suit was brought may show that defendant has no interest at all, yet plaintiff can not have defendant ousted of the entire tract, but holds as a co-tenant with him until suit and judgment by the owners of the other aliquot parts.</p> <p>2. -: co-tenant’s judgment. It is not the law in this State that one tenant in common, entitled under his deed to only a part interest in the premises, can recover the whole thereof in a suit against a stranger to the title, and when put in possession under his judgment can hold for the other co-tenants as well as himself.</p> <p>3. -: TITLE BY LIMITATION: NAKED POSSESSION: OWNERSHIP. Possession for 'ten years or any other length of time is no bar to a recovery by the true owner if the one who entered into possession of the land had no claim of title at the time and asserted none adverse to the true owner, and during the time he held it in possession did not have or assert a claim of title to the land', and did not claim to own it. Naked possession never ripens into title by limitation. To be effective, adverse possession must be hostile to the title of the true owner and under claim of ownership.</p>

— Hon. Henry O. Riley, Judge. (1) Tbe order or judgment of tbe probate court finding tbat sucb a claim was a demand and charge against Covington’s estate is not void. Brown v. Woody, 64 Mo. 547; Rogers v. Johnson, 125 Mo. 212; Camden v. Plain, 91 Mo. 129; Marcev v. Stark, 116 Mo. 481; Sherwood v. Baker, 105 Mo. 472.

— Hon. 17. N. Evans, (1) Tlie motion to strike out plaintiff’s petition and for judgment on tibe answer and cross-bill should bave been sustained. R. S. 1889, secs. 8920, 8924; Larimore v. Bobb, 114 Mo. 446; Snyder v. Ranb, 40 Mo. 166; Haskell v. Sullivan, 31 Mo. 4-35; Carr v. Dowes, 4:6 Mo. App. 351; Royer v. Girman, 48 Mo. App. 510.

— Hon. 77. 77. Bucher, Judge. Tbe exceedingly able and interesting brief filed liere by appellant’s counsel can not entice us away from tbe simple proposition tliat tbis appeal was taken from a voluntary non-suit. • The sole reason assigned for taking said nonsuit is tbe refusal of tbe trial court to permit plaintiff to read in evidence to the jury tbe promissory note filed with plaintiff’s petition.

— Hon. E. J. Broaddus, _ Judge. (1) It is not tbe province of tbe court to sustain an-instruction for tbe defendant after a demurrer bas been overruled and tbe defendant bas offered tbe evidence. Gannon v. Gas Co., 145 Mo. 503; Linn v. Massillon Bridge Co., 78 Mo. App. 111. (2) There is priority of grant and descent-in tbe possession 'of Peter Yiew, Darton and Yiew heirs.

— J-Ion. Joseph D. Perkins, Judge. (1) The city had ample authority and power to make the contract with Cowgill & Hill, whereby, in consideration of the payment of $150 by them, to the said city, it was agreed that the city should assume the repair and maintenance of the bridges. Sec. 2, art. 5, Laws 1875, p. 168; sec. 24, art. 5, Laws .1875, p. 170; sec. 5, art. 7, Laws 1875, p. 177; see. 1, art. 7, Laws 1875, p. 178; sec. 55, art. 5, Laws 1875, p.- 173.

— Hon. John O. Wear, Judge. (1) There is no proof that M. IT. Moss, the justice before whom this suit was commenced, resided or held his office in the township where the stock was killed, or in an adjoining township. Neither does the transcript of -the justice show this to be so. R. S. 1889, sec. 6122; Lindsay v. Railroad, 36 Mo. App. 51; Rohland v. Railroad, 89 Mo. 180. (2) The verdict, is without evidence to support it.

Louis City Circuit Court. — Son. Belden P. Spencer, Judge. (1) Moneys due and owing by municipal -corporations can not be reached, either by garnishment or by equitable proceedings, in order to satisfy the claims of judgment creditors of the person to whom such moneys are owing.

— lion. Jas. T. Neville, Judge. (1) The plaintiff’s deed is void. The sheriff’s notice of sale was published only eleven days. R. S. 1889, sec. 4914; Dow v. Chandler, 85 Mo. 245. The power to sell does not attach or is not brought into existence until the notice, in the mode prescribed by law, has been given.

— Hon. L. B. Woodside, Judge. (1) A general warranty deed, like the one in question, can only be set aside when it is procured by fraud or undue influence, or by mistake, and such fraud, undue influence and mistake must be charged in the petition, and not only charged, but must be proved as charged. Brown v. Pickle, 135 Mo. 405; Taylor v. Crocket, 123 Mo. 300; Weiss v. Heitkamp, 127 Mo. 23; Eogers v. Eamey, 137 Mo. 598.

— Hon. W. N. Evans, Judge. (1) Inasmuch as the deed in naming Francis Fox, the grantor, described him as the patentee of the land conveyed, and as the other record evidence showed that said Fox was not the patentee of any lands in any other section 26, in range 5, in Oregon county, said deed, in view of said facts, was sufficient to convey said land in section 26, township 25, range 5.