Volume 159 — Missouri Reports

Transferred from. St. Louis O'ourt of Appeals. (1) Plaintiff was guilty of contributory negligence which bars his recovery, and the court should have instructed the jury at the close of the case that he was not entitled to. recover. Culbertson v. Railroad, 36 S. W. 834; Jones v. Barmead, 63 Mo. App. 501; Vogg v. Railroad, 36 S. W. 646; Henry v. Railroad, 76 Mo. 293; Lane v. Railroad, 33 S. W.- 651; Johnston v. Stewart, 34 S. W. 889; Schoenholtz v. Railroad, 37 N. Y. Sup. 682.

Louis City Circuit Court. — Hon. S. P. Spencer, Judge. (1) All of the evidence in the case-conclusively establishes: (a) That the value of the land taken, belonging to this exceptor, and the damages by reason of the taking, were far greater than the amount allowed by the commissioners; (b) that none of this exceptor’s land was benefited by the opening of Euclid avenue.

— Hon. Joseph D. Perkins, Judge. (1) Tbe deed from Mrs. Wamack’s brothers to her and ber husband, partitioning said land, 'did not convey title to them hut simply defined 'the boundaries of her land, the title of Which she acquired from her father. Dawson v. Lawrence, 42 Am. Dec. 210, and' authorities cited in note thereto; Harrision v. Ray, 23 Am. State Rep. 57; Bumgardner v. Edwards, 85 Ind. 117; 17 Am. and Eng.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) The contract set up in the petition as the basis of relief, being a contract modifying, changing and varying the contract of the deed of trust with its power of sale, is itself a contract for the sale of lands, tenements and hereditaments, or of an interest in or concerning them, and as such the statute of frauds required that it or some memorandum or note thereof should be in writing and signed by appellant or some…

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Respondents can not amend their petition by reply, and under the guise of an estoppel, recover for the breach of a contract not sued on. Hill v. Mining Co., 119 Mo. 30; Cole v. Armour, 154 Mo. 350; Mohney v. Reed, 40 Mo. App. 109; McMahill v. Jenkins, 69 Mo. App. 279. (2) It is a prerequisite to the validity of tax bills that a limit should be fixed by ordinance of the 'aggregate cost of doing the work.

— Hon. Jas. T. Neville, Judge. (1) The court should not have admitted the record of recount made by and offered in evidence by the contestee for the purpose of showing that he received a greater number of votes than originally certified by judges and.clerks of election. The evidence in this case is overwhelming that while the ballots were in the hands of the contestee they were changed and tampered with. Soné v. Williams, 130 Mo. 531.

— lion. J. F. Green, Judge. (1) In this State, the assessment of property is made by the assessor by calling on the taxpayer and requiring him to make a correct statement of all taxable property owned by him, or under his care, charge or management, except merchandise which may be required to pay a license tax.

Transferred from Kansas City Court of Appeals. (1) When one devotes bis property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but so long hs hé maintains the use, he must submit to the control.

— Hon. Frank B. Dearmg, Special Judge. (1) The omission was without prejudice to appellant. Any firm or corporation is known and referred to by its firm or corporate style. It could make no difference to the appellant whether the AdlerrGoldman Commission Company was a corporation or a co-partnership composed of one Adler and one Goldman.

<p>1. Appointment of a Receiver in Vacation: building and loan association. In an appeal from an order refusing to set aside an order appointing a receiver of a building and loan association in vacation, whether or not the judge had authority to direct the receivers to wind up the affairs of the association, can not be considered. The judge had authority to appoint receivers in vacation to take charge of, collect and preserve the estate, and if he had no jurisdiction to go beyond that, anything done by the receivers under that order beyond the extent of his jurisdiction would be invalid and could be so declared ón final decree.</p> <p>2. -: -: PETITION: cause of action: answer. Where the petition, signed by the Supervisor of Building and Loan Associations alone, contains averments that indicate an unsafe business, that the association has been conducting its business in a manner which, when viewed in the light of recent decisions of the appellate courts, destrbys public confidence in it and jeopardizes the rights of stockholders, that many of them had filed their stock for withdrawal and if permitted to do so at the then book value it would so cripple the association that other stockholders would not get the same proportion for their stock, and the answer of the corporation accompanies such petition admitting its averments, it will be held, in an appeal from an order refusing to set aside an interlocutory decree, that the petition states a cause authorizing the appointment of a, receiver, under the statute empowering the judge to appoint a receiver in vacation whenever he shall deem it necessary. But whether or not it will be held to state a cause of action on final decree, is not decided.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) There was no evidence that tbe appellant secreted tbe property.

<p>Indictment: “induced to sell:” insueeiciencí. In an indictment for obtaining • horses by false and fraudulent representations, it is not sufiicient to state that the prosecutors, believing said false pretense and false representation so made as aforesaid by defendant to be true, and being deceived thereby, “were induced to then and there sell and deliver to said defendant said horses.” The words “were induced to sell” do not amount to a positive, distinct averment that the prosecutors did sell and deliver said horses to defendant. Without proof that the defendant did sell and deliver the horses, the defendant could not he convicted; and the proof should not go beyond the indictment. In an indictment nothing material can be taken by intendment or implication.</p>

— Ron. T. B. Bobinsont Judge. (1) The court erred in giving instructions four and five, asked by tbe State. They wholly omit to require tbe jury to find any fraudulent or felonious intent on tbe part of defendant, and are similar to an instruction recently condemned by this court. State v. Cunningham, 55 S. W. 282. Tbe fifth instruction is further objectionable for referring tbe jury to tbe indictment for some of tbe issues in tbe case.

<p>1. Negligence: cake dee to newsboy. A newsboy, jumping on and off a moving street car to sell papers, not hailing the ear to stop to receive him, nor signaling those in charge thereof to stop and let him alight, not asking leave to board, but jumping on and off under circumstances clearly indicating no purpose to pay fare, having no aim to be transported but only aiming to avail himself of the presence of persons thereon likely to buy his papers, is in no sense a passenger, and the carrier is not under obligations to exercise the high degree of care due to a passenger, but ouly ordinary care.</p> <p>2. Continuance: absent witnesses: beading affidavit. The affidavit stated on its face that the witness, lived in St. Louis, that he could be procured at the next term, and set up what he would testify if present, and that there was no other person by whom such facts could be proved or fully proved, and the records show such was true. The appellant agreed that the affidavit might be read to the jury, but the court of its own motion continued tihe case for 35 days to a day certain, hut no further effort was made to obtain the absent witness. Held, that the court erred in permitting this affidavit to be read at the trial on said day, sufficient time having been given for ascertaining whether or not such evidence was attainable.</p> <p>3. E.eading Stenographer’s Notes to Jury. 'Stenographer’s notes taken at the trial are n'ot for the use of the jury, hut of the judge. The jury on the second day after the cause was submitted to them, sent a note to the trial judge stating they could not agree as to the facts in the evidence of two witnesses, and asking that they might have the stenographer’s transcript of their testimony, being “satisfied that the jury can not agree without” sudh transcript. Held, that it was error for the court, without the consent of counsel on both sides, to have ordered the jury again brought into court and the stenographer to read them his notes of the testimony of such witnesses.</p> <p>4. Hégligence: newsboy jumping on cars: no evidence to sustain verdict. In spite of such errors against the appellant as are set out in syllabi 2 and 3, the judgment will be affirmed if there is no evidence to show negligence on the part of the street railway company resulting in his injury. The plaintiff was a newsboy ten years old and in no sense a passenger. He jumped on the running board of a slowly moving street ear without invitation, for the sole purpose of selling papers to passengers. He offered his papers to a passenger in the front seat, and then passed on toward the rear of the grip car, behind the gripman, 'his face towards the opposite side of the ear, not looking around and not seeing the wagon and horses of the co-defendant, which stood close to the track, and while so doing and while holding to the stanchion, the moving car carried him against the horses or wagon tongue, and thereby he was knocked off, and fell under the wheels of the trailer, so crushing his leg as to make amputation necessary; at the time of the accident, the car was moving at a moderate rate, the gripman was at his post looking ahead, as his duties required him to do, and the conductor was on the rear platform. Held, that the question of negligence was not one for the jury on the theory that the plaintiff was a child ten years old, but as there was no evidence of negligence on the part of the street railway, and as the action has abated as to the owner of the wagon and team on account of his death, the judgment for defendant company should be affirmed.</p>

Louis City Circuit Court. — Hon. Jno. A. Talty, Judge. (1) The city of St. Louis has express charter power to establish a general sewer system, to construct sewers, and to regulate the use of the same. Charter, art. 6, secs. 20-23; art 3, sec. 26, par. 2. And also implied power. Dillon’s Mun. Oorp. (4 Ed.), sec. 805. Having constructed its sewers the city may impose any reasonable terms and conditions upon which private citizens may use the same. Dillon’s Mun.

— Hon. Samuel Davis, Special Judge. (1) The court erred in permitting the prosecuting attorney on the voir dire examination of a large number of jurors to make inquiries of them touching their competency in a manner unwarranted by law and to defendant’s great prejudice.

<p>Appeal from Texas Circuit Court. — lion. L. B. Woodside, Judge.</p>

— Hon. E. M. Hughes, Judge. Tbe court erred in giving declarations of law numbered 2 and 4 asked by the attaching creditor. Ritchie had the right to prefer one creditor to another, even though the effect of such preference was necessarily to hinder or delay other creditors in the collection of their debts.

— Hon. E. M. Hughes, Judge. (1) There is no merit in the point raised by the defendant in his motion to quash the indictment, on the ground that the form prescribed by the statutes is not followed. The form prescribed by the statutes to be followed in cases based upon it has been declared by this court to be unconstitutional on the ground that it does not sufficiently inform the accused of the nature and cause of the charge preferred against him.

Louis County Circuit Court. — Hon. Rudolph Hirzelj Judge. (1) The defendant was authorized to grant or refuse a franchise to plaintiff “to construct, maintain and operate an electric railroad.......on, along, over and upon” its streets.

— Hon. H. G. Riley, Judge. (1) On a charge of embezzlement by agent or bailee the agency or bailment must be proved. State v. Meyers, 68 Mo. 266; State v. Dodson, 12 Mo. 283. (2) There was no evidence of agency or bailment in this case. On the contrary the prosecutor testified that he delivered $80 to the defendant under a contract that the defendant would, within thirty days, furnish him $800 genuine money therefor.

— Hon. E. M. Hughes j Judge. (1) Upon the undisputed facts in this case, the contributory negligence of the deceased was the proximate cause of his death, and, for that reason, the plaintiff is not entitled to recover. Holwerson v. Railroad, 157 Mo. 216, and cases cited. (2) The demurrer to the evidence should have been sustained.

— Hon. D. P. Stratton, Judge. (1) This communication is not absolutely privileged as it was not made in any parliamentary, judicial, naval or military proceeding — and even if it was in a judicial proceeding, tbe absolute privilege has its limits and may be lost if the parties use it as a cover to vent private malice. Newell on Defamation, p. 425, sec. 30, and p. 460, sec. 51; Hyde v. Mc-Cabe, 100 Mo. 412.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) It is in evidence and uncontradicted that the houses were erected to the roof before the plaintiffs’ mortgage was executed, and mechanic’s liens have always been held superior to a mortgage executed after the buildings were begun, which is also the theory of the Missouri statute. E. S. 1899, sec. 4209; Yite v. Dixon, 12 Mo. 479; DuBois’ A'dm’r v. Wilson, 21 Mo. 213; Beilly v. Hudson, 62 Mo. 383.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The contract in question is within the'statute of frauds as affecting an interest in lands. It is also within the statute touching trusts. E. S. 1889, secs. 3418 and 3416. (2) A renewal, modification or extension of a contract is as much within the statute as the original contract. Bunker y. Harrington, 52 Mo. App. 431; Curie’s Heirs y. Eddy, 24 Mo. 117.

<p>Negligence: ordinary cAre: machine: evidence. The planing machine which took off plaintiff’s arm was in perfect running order and reasonably safe, of its character, for tbe purpose for which it was being used, and plaintiff was familiar with its construction and operation, and was furnished a safe place for the discharge of his duties, in planing lumber, and in their discharge with ordinary care it at no time became necessary for him to place his arm in dangerous proximity with the edge of the knife that took off his arm. He undertook to remove shavings from a hole where they had clogged, by using a stick. Ordinary care would have required him to use a longer stick, and that would have avoided the injury. Held, that a demurrer to the evidence was properly sustained, the company being without negligence.</p>

— Hon. Henry O. Uiley, Judge. (1) Defendant, being indicted for robbery in the first degree, for which a minimum, but no maximum punishment is prescribed, was entitled by law to a list of the qualified jurors twelve hours before trial. Laws 1895, p. 165. (2) The record not only failed to show that such list was delivered, or tendered to defendant, but shows affirmatively that the list of jurors was not offered to him until after the State had made its challenges.

— Hon. J. L. Fort, Judge. (1) Tke testimony of witnesses as to their opinions regarding the merits of the application for a change of venue was clearly incompetent. It is for the witness to state the facts and for the court to draw conclusions from the facts. State v. Burgess, 78 Mo. 234. These witnesses might have believed all the testimony on the part of the defendant to be true, have known it to be true in fact, and still have believed that he could have a fair trial.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The court erred in giving the instruction for a non-suit. It is necessary for a plaintiff to show malice and want of probable cause, and when that is done a case is made. The acquittal of Babcock in this case was prima facie evidence of the want of probable cause. It was sufficient to prevent a nonsuit. Oasperson v. Sproule, 39 Mo. 39; Thomas v. Smith, 51 Mo. App. 605; Sharpe v. Johnson, 16 Mo. 660.

<p>Appeal from Cass Circuit Court. — Hon. W. W. Wood, Judge.</p> <p>(1) If the husband, John R. Sbipley, received the money from bis wife’s inheritance under the laws of Pennsylvania, it was impressed with -a trust and so remained in this State, and this is so irrespective of the husband’s consent. State ex rel. v. Rank, 80 Mo. 626; Story’s Eq. Juris., secs. 1379-1382; Tillman v. Tillman, 50 Mo. 40; Meyer v. McCabe, 73 Mo. 241; Grabill v. Moyer, 45 Pa. 533; Bergy’s Appeal, 60 Pa. 408. (2) At common law, the husband did not acquire ownership of the wife’s property by reducing it to possession, where it was shown it was not his intention to make it his own. And where it is shown that the husband by his acts and statements, held property and treated and considered it as the separate property of his wife, he is estopped from setting up any claim or denying the trust. Coughlin v. Ryan, 43 Mo. 99; Iíolthaus v. Hornbostle, 60 Mo. 439; McCoy v. Hyatt, 80 Mo. 130; Wood v. Hicks, 36 Mo. 326; Bowen v. McKean, 82 Mo. 594; Clark v. Clark, 86 Mo. 114; Shaw v. Shaw, 86 Mo. 594; Kinealy v. Macklin, 89 Mo. 433; Botts v. Gooch, 97 Mo. 88; White v. Clasby, 101 Mo. 162; Boynton v. Miller, 144 Mo. 681. (3) Eor the purpose of raising a resulting trust, the admissions of the party holding the legal title, that the consideration was paid by another, are admissible. Griddle v. Griddle, 21 Mo. 522; Cavin v. Smith, 21 Mo. 444; Morey v. Staley, 54 Mo. 419; Price v. Kane, 112 Mo. 412; Boggess v. Boggess, 127 Mo. 305; Boynton v. Miller, 144 Mo. 681; Tuggle v. Hughes (Tex.), 28 S. W. Rep. 61. (4) The burden is on the husband receiving a deed from his wife, to shov? that it is the result of her free will and consent after a full disclosure of all the facts and circumstances attending the transaction. Pomeroy’s Eq. Juris., secs. 951, 956, 957; Story’s Eq. Juris., secs. 218, 307, 308, 329; Cadwalader v. West, 48 Mo. 483; Ranken v. Patton, 65 Mo. 378; Bradshaw v. Tates, 67 Mo. 221; Street v. Goss, 62 Mo. 226; Garvin’s Adm’r v. Williams, 44 Mo. 465 ; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Allore v. Jewell, 94 U. S. 506; Erhart v. Dietrich, 118 Mo. 418. (5) The evidence discloses the fact that this sixtv-acre tract was in the name of Mrs. Louisa C. Shipley; as to who furnished the money with which it was purchased, the evidence is silent; hut even if the purchase money had been furnished by the husband, by having the deed made to his wife, the presumption is that he intended it as a settlement on hex, that he meant it as a gift, and the land was just as much her property as if it were purchased with her separate funds, and in considering this case it must be so considered. Street v. Goss, 62 Mo. 228; Bradshaw v. Yates, 67 Mo. 221; 2 Pomeroy’s Equity (2 Ed.), sec. 1039; Perry on Trusts, secs. 143, 147; Story’s Equity, see. 1204; Siebold v. Ohrisman, 75 Mo. 308; Schuster v. Schuster, 93 Mo. 438; Kinzey v. Kinzey, 115 Mo. 496; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Saunders v. Saunders, 144 Mo. 482; Schouler on Husband and Wife, secs. 217, 383, 385, and 387.</p> <p>(1) The court can only grant such relief as is warranted by the allegations in the petition. Plaintiffs can not plead a contract or an express trust in the petition as a basis of recovery, and recover upon an implied or resulting trust not pleaded. The petition fails to state a cause of action. It claims under an express trust — an express agreement, and no such written agreement as is required by statute is stated. Newman v. Kenton, 79 Mo. 382; McKnight v. Brady, 2 Mo.’ 110; Ross v. Ross, 81 Mo. 84; Muenks v. Bunch, 90 Mo. 500; Reid v. Bott, 100 Mo. 66; Bank v. Doran, 109 Mo. 52; Chitty v. Railroad, 148 Mo. 74. (2) Even if a resulting trust is properly pleaded, then the alleged declarations of Shipley, that his wife’s money bought the land, and that it belonged to her, do not prove the facts, and is not sufficient to establish a trust. Johnson v. Quarrels, 46 Mo. 423; Woodford v. Stephens, 51 Mo. 447; Cornett v. Bartlesman, 61 Mo. 127; Modrell v. Biddle, 82 Mo. 36; Berry v. Hartsell, 91 Mo. 136; Bingo v. Richardson, 53 Mo. 394; Kennedy v. Kennedy, 57 Mo. 77; Shaw v. Shaw, 86 Mo. 598; Rodgers v. Rodgers, 87 Mo. 259; Philpot v. Penn, 91 Mo. 44; Allen v. Logan, 96 Mo. 601; Taylor v. Von Shraeder, 107 Mo. 226; Dailey v. Dailey, 125 Mo. 96; Faning v. Doan, 139 Mo. 412; Curd v. Brown, 148 Mo. 92; Roberts v. Walker, 101 Mo. 601; Adams v. Burns, 96 Mo. 363; King v. Isley, 116 Mo. 159; Bradley v. Bradley, 119 Mo. 61; Reid y. Painter, 129 Mo. 682; Price v. Kane, 112 Mo'. 419; State to use v. Bank, 10 Mo. App. 487. (3) All the statements alleged to have been made by Shipley — that the land belonged to his wife, were declarations which if competent would tend to prove an express trust which can not be done by parol. Green v. Cates, 73 Mo. 115; Price v. Kane, 112 Mo. 419; Hillman v. Allen, 145 Mo. 644. (4) In 1870, the common law in reference to the property of married women was in force in this State, by which the husband acquired an absolute right to all the money and personal property of the wife, except such as constitute her equitable separate estate. Walker v. Walker, 25 Mo. 376; Sloan v. Torrey, 78 Mo. 625 ; Alexander v. Lidick, 80 Mo. 341; Flesh v. Lindsay, 115 Mo. 13; Lete v. Bank, 115 Mo. 200. (5) Even if Mrs. Shipley owned any money in Pennsylvania, which by the statutes of that State was her statutory separate estate there, yet, when she and her husband changed their domicil to Missouri in 1870, if they brought her money with them, the rights of the husband to the same must be determined by the laws of the State at that time. Minor v.- Cardwell, 37 Mo. 350; Meyer v. McCabe, 73 Mo. 236; Benue v. Schnecko, 100 Mo. 256; 3 Am. and Eng. Ency. of Law, 568, 570; Chapman v. Robertson, 6 Paige Ohanc. 521. The statutory separate estate of the wife is not of the same character as her equitable separate estate. Bedsworth v. Bowman, 104 Mo. 44; Gwinn v. Smuirr, 101 Mo. 552.</p>

Mandamus. (1) The business of collecting, distributing and vending news to a great number of newspapers throughout the United States is, under the principles of the common law, and wholly without reference to the circumstances of the defendant, being a corporation and the grantee of important franchises, including the delegated right of eminent domain — a business affected with a public interest, which therefore -is not juris privati and in respect to which the defendant is…

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) Plaintiff’s right of action was not, as a matter of law, barred by any “assumption of risk” on his part by reason of his having remained in the employ of the defendant after he had some reason to know that' the switching apparatus was defective, especially in view of the repairs made by the master ; and the question of his contributory negligence in so doing was, under the circumstances in this case, for the jury…

— Hon. Jno. A. Rich, Judge. The record shows that an indictment was presented against Milton Bell, signed, indorsed and filed March 5; on March 6, an indictment for the same charge was presented against Edward Johnson and on March 13, both were tried upon an indictment against Milton Bell and Edward Johnson.

<p>Appeal from Audrain Circuit Court.- — Hon. E. M. Hughes, Judge.</p> <p>(1) To enable plaintiffs to recover in a replevin suit they must show title as against the party holding possession. The two chattel mortgages introduced in evidence do not show title in plaintiffs against the sheriff, who was in possession of the property for the partnership creditors of the firm. The mortgage and note introduced by plaintiff which was given by Eoy Medley to his sister, Effie Medley, on his individual one-half interest in the stock to secure an individual debt and which was assigned to plaintiffs was absolutely void as to partnership creditors. Ewert v. Mercantile Co., 130 Mo. 112; DuPont v. McLaren, 61 Mo. 508; Bank of Clinton v. Brensen, 97 Mo. 105. (2) The plaintiffs had taken possession of the merchandise under the writ of replevin and had it at the time of the trial or had disposed of it and had the proceeds. The sheriff, defendant, had a special interest in all over the value of plaintiffs’ valid mortgage. But under the verdict plaintiffs take more than their interest. A verdict should have been rendered assessing the value of the plaintiffs’ interest therein as well as the value of the whole property. Boutell v. Warne,62 Mo. 350; Delworth v. McKelvey, 30 Mo. 149; Daugherty v. Cooper, 77 Mo. 528; Balridge v. Dawson,- 39 Mo. App. 527; Lewis v. Muson, 64 Mo. 551; Mfg. Co. v. Boeder, 44 Mo. App. 324; Kers v. Drew, 90 Mo. 147.</p> <p>(1) The appeal in this case should be dismissed because of appellant’s failure to file such an abstract of the record as is required by rule 13 of this court. Craig v. Scudder, 98 Mo. 664; Cunningham v. Bailroad, 110 Mo. 208; Garrett v. Mining Go., Ill Mo. 281; Brand v. Cannon, 118 Mo. 595; Nolan v. Johns, 126 Mo. 167; Barnsey v. Shannon, 140 Mo. 281; Sedgwick County v. Newton County, 144 Mo. 301; Snoddy v. Jasper County, 146 Mo. 112; Herrman v. Daily, 74 Mo. App. 505; Costello v. Eesler, 80 Mo. App. 107; Halstead v. Stone, 147 Mo. 649; Murrall v. McGuigan, 148 Mo. 334. (2) Said appeal should be dismissed for the further reason that the brief of appellant does not allege, “separately and distinctly” what errors of the trial court are complained of by him, as required by rule 15. Giboney v. Ins. Go., 48 Mo: App. 185; Powell v. Moeller, 149 Mo. 471. Said appeal should be dismissed for the additional reason that appellant nowhere asks, in his abstract, statement or brief, that the judgment of the circuit court be reversed, modified, or interfered with in any way. So far as his printed pamphlet indicates, the case is brought up merely for discussion of certain legal abstractions, without hope or desire on the part of appellant to change the result of the trial in the court below. If appellant desires an adjudication of the case 'by this court, he should have asked for it.</p>

— Hon. Jno. A. Hocicaday, Judge. (1) The court erred in permitting plaintiffs to be asked this question: “State whether or not in your opinion your father was in a fit mental condition at any time for several years before he died to transact business.” The capacity of the deceased to understand the transaction in which he was engaged is the test of his ability to make the deed.

<p>Appeal from Dent Circuit Court. — Hon. L. B. Woodside,, Judge.</p>

— Hon. O. A. Anthony, Judge. (1) The phrase “and other necessaries,” in section 3405, means something. County of Boone v. Todd, 3 Mo. 140; St. Louis County v. Buland, 5 Mo. 159. (2) Words and phrases, the meaning of which in a statute have been ascertained, when used in a subsequent statute, are to be understood in the same sense. Collins v. Wilhoit, 35 Mo. App. 585. (3) The necessary incidental expense of the court must be paid.

— Hon. H. G. Timmonds, Judge. The third instruction, in which the court told the jury what it was necessary for them to find in order to convict, failed to say that the stealing must have been done with felonious intent; it did instruct that it must have been done with the intent to convert the same to his own use, or deprive the owner thereof of his property permanently, and this supplied the place of the word “feloniously,” and sufficiently defined the intent, which was…

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge.. (1) Defendants raised the point in the motion for a new trial that the court failed to instruct upon all the law of the ease. No such objection was raised at the time the instructions were given the jury. It comes too late when for the first time raised in the motion for new trial. This court has so held.

— Hon. B. J. Qasteel, Judge, (1) The court erred in permitting the State to introduce evidence concerning a certain shotgun, supposed to have been stolen from one D. A. Turner, which was found on the premises of the defendant. The effect of the evidence was to present to the jury testimony relating to another offense and to an entirely different transaction, which prejudiced the minds of the jury against the defendant in reference to the charge for which he was on trial.

Boone Circuit Court. — Hon. Jno. A. Hockaday, Judge. (1) It was error to allow tbe amended petition to be filed after tbe ease was submitted. Tbe amendment was made to overcome tbe errors made in tbe trial of tbe case and defendant had no opportunity to file an amended answer. It raised a new issue involving defendant’s liability for the twenty-acre tract against which defendant had no opportunity to defend. (2) There is no equity in the case.

Louis City Circuit Court. — Hon. P. B. Flitcraft, Judge. (1) The proof made does not support the allegations of the petition. (2) The first instruction given at the instance of plaintiff is not bottomed upon -the allegations of the petition ; and there are no allegations in the petition to warrant the giving of said instruction.

— Hon. L. B. Woodside, Judge. (1) The indictment would not be good under section 3551, Revised Statutes 1889, for the fact that it does not allege by whom tbe check was delivered to defendant.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. The petition or statement filed before the justice was wholly insufficient. It contained no recital of facts whatever from which a cause of action could be gleaned. It consisted entirely of conclusions or allegations of law.

<p>Instruction: “heat of passion:” fajxttee to define. The giving of an instruction which employs the term “heat of passion,” and fails to define the same, is error, and works a reversal of the judgment.</p>

Transferred from Kansas City Court of Appeals, . (1) Under tlie pleadings, the court erred in admitting the evidence offered by the plaintiff for the purpose of proving payment of the $85 note by the execution of the $101 note. Rider v. Culp, 68 Mo. App. 530; State ex rel. v. Deggs, 106 Mo. 160.

— Hon. E. J. Broaddus, Judge. (1) The curtesy of John H. Casler was in the equity of redemption held by his wife, Martha Casler. The sum of •money that the land, brought when sold, above the debt secured by deed of trust, was the equity of redemption, and in that John H. Casler had his curtesy, and not in the land paid for by defendant. Bobinson v. Lakenan, 28 Mo. App. 135; Khmer v. Walsh, 44 Mo. 65; Bogart v. Bogart, 138 Mo. 419.

— Hon. George F. Longan, Judge. (1) Tbe ancient ear-marks and recognized indicia of undue influence, moral coercion, fraud actual or constructive, surprise, imposition, over-solicitation, artfulness, are present in tbis record and show a transaction wbicb equity will watcli with an eye of “invincible jealousy” and annul, (a) There is that superintendence of the mind, body and property of Joseph Boyer by the Cofields, creating an intimate and confidential relation which…

Transferred from St. Louis Oourt of Appeals. (1) As against plaintiff, an existing creditor, Joseph Levy had no legal right to pay assessments for the purpose of keeping a beneficiary certificate in force for the benefit of his adult sister. The payments made by him for that purpose after he became insolvent were presumably fraudulent as against plaintiff, an existing creditor. Snyder v. Free, 114 Mo. 360; Insurance Co. v. Sandfelder, 9 Mo.

— Hon. Henry Q. Biley, Judge. (1) The judgment against George Kenriek, as executor, was improper, as he had made final settlement of the estate, distributed the assets and been discharged a year before this suit was filed. (2) If the estate was liable for these taxes, the bill should have been allowed against the estate. Sec. 9246, B. S. 1899.

— Hon. P. O. Stepp, Judge. (1) All tbe evidence shows, that on part of plaintiff, and of defendants as well, that Mrs. Teegarden, nee Benedict, was largely indebted to her son, Austin, and that the conveyance of August 14, 1889, was made by Mrs. Teegarden to her son, by reason of such indebtedness'. Hence the allegation that said conveyance was voluntary, or without consideration, is without the slightest proof to sustain it.

— Hon. W. N. Evans, Judge. The venue stated in the margin or'caption of the indictment is taken to be the venue of all the facts stated in the body of the same, and in this case the county is indicated as Howell, the same as contained in the margin or at the caption. Sec. 2727, E. S. 1899; State v. Eraker, 148 Mo. 157; State v. Simon, 50 Mo. 370; State v. Keel, 54 Mo. 182; State v. Dawson, 90 Mo. 149; State v. Beaucleigh, 92 Mo. 490.

it Court. — Hon. H. J. Broaddus, Judge. . (1) Plaintiff can not recover on prior possession. Bledsoe v. Simms, 53 Mo. 305; Spurlock v. Dougherty, 81 Mo. 171; Prior v. Scott, 87 Mo. 303. (2) Plaintiff must recover on the strength of his own title, not on the weakness of defendant’s. Siemers v. Schrader, 14 Mo. App. 346; Foster v. Evans, 51 Mo. 39; Whitmore v. Crawford, 106 Mo. 435.

— Hon. W. N. Evans, Judge. (1) An agreed case occupies the same footing as, and stands in lieu of, a special verdict. When filed it becomes a part of the record proper, and it is not therefore necessary to ask instructions, file motion for a new trial or save exceptions, to have judgment thereon reviewed in the appellate courts. All the facts necessary to a judgment and recovery are contained in the agreed statement in this ease.

<p>Sentence to Penitentiary: persons under sixteen: habeas corpus: transfer to reformatory. The petitioner pleaded guilty to an assault to commit a robbery and to two indictments for robbery, and was sentenced on said several pleas to imprisonment in the penitenitary. Afterwards, on motion, the circuit court took evidence and found he was under sixteen years of age at the time he committed the crimes, and set aside said judgments. Thereupon he-began habeas corpus in this court for his discharge. Held, that he could not be discharged, but would be by this court transferred to the reformatory school, it having been the duty of the court which heard the motion to set aside the judgment, to sentence him to the proper place for the correct length of time.</p>

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Plaintiff’s oral motion to strike out defendants’ motion and affidavit in support thereof should have been sustained because: (a) The affidavit was taken before defendants’ attorney. Smith v. Ponath, 17 Mo. App. 262; 1 Ency. of PL and Pr. 330. (b) The facts upon which the defense was based were not set forth either in the motion or affidavit.

— Hon. Jno. W. Wofford, Judge, • (1) The court erred in refusing to allow defendant’s counsel to make an opening statement to tbe jury. The jury was not permitted to hear the opening statement on behalf of defendant. If any parts of the opening statement were incompetent or irrelevant they should have been ruled out by the court or governed by instructions; but the court, should have permitted a statement to be made to the jury.

<p>Bond in Criminal Case: judge absent: indorsement of clerk. In order for a bond taken by the sheriff for the appearance of a defendant in a criminal case to be legal, it must appear that the judge was not in the county when the clerk assumed to fix the amount of the bond, and any bond taken, by him will be invalid unless evidence is forthcoming that the judge was absent from the county when he fixed and indorsed the amount thereof thereon. Such defects are not mere irregularities in a recognizance taken by a competent officer; but unless the judge is absent no other officer has any power to fix the amount 'of bail. (Approving State v. Pratt, 148 Mo. 402.)</p>