Volume 164 — Missouri Reports

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The power of disposition, over the remainder interest in the real estate, given to Persis Smith by the trust deed to Edward Eilley, could be effectively exercised either by deed executed in consideration of love and affection, or by last will and testament, (a) Because it appears from the trust deed that the grantor intended to place no limitation or restriction upon the method by which she was to exercise her power of…

Prohibition. (1) No court in tbis State before which, a contested election is pending, or the clerk of any such court in vacation,' can, by writ issued to a clerk of a county court or to a board of election commissioners, as the case may be, compel such clerk or board in the presence of contestant and contestee and their attorneys to open, count, compare with the list of voters and examine the ballots in his or its office which were cast at the election in contest and…

<p> Prohibition. </p>

Prohibition. (1) The failure of the contestant to serve contestee with a ten days’ notice of the time and place of presentation of his petition, is fatal to the action. Secs. 7057, 7058, 7059, 7060, 7061, 7062, 7063, 7064, 7069 and 7070, R, S. 1899. These provisions are not inharmonious, and since notice of presentation of the petition is plainly required, the f ailure to 'give it is vital.

Prohibition. It is beyond the jurisdiction of a circuit court to enjoin the consideration or passage of an ordinance by the municipal assembly of the city of St. Louis granting a right of way over certain streets of the city for street railway purposes, because the consideration and passage of such an ordinance constitute legislative acts, which a court has no power to supervise. State ex rel. v. Sup. Ct.

— Hon. W. K. James3 Judge. (1) All requirements imposed by a Constitution for its amendment are mandatory and must be strictly complied with before any amendment can become a part thereof. Held: owned and used for exactly the same purpose, taxes all members of the first class and exempts from taxation a number of persons of the second class.

— Son. Andrew Ellison, Judge. (1)’ Plaintiffs’ demurrer at the close of proponents’ evidence should have been given. Eirst. Because the evidence wholly failed to show that Lear signed testator’s name to the alleged will in his presence and by his direction as required by Revised Statutes 1889, section 8870. R. S. 1899, sec. 4604; 1 Underhill on Wills, par. 189, p. 257. The provisions of this statute are mandatory and imperative.

<p>Practice: new trial: newlt-discovered evidence. Complainant was the execution purchaser of certain realty alleged to belong to defendant H, and sued to set aside certain conveyances of the property as fraudulent. Defendant H testified that the property had been purchased by him with money belonging to his sister, in whose name the title stood, and who had furnished him with about $24,000 in money in 1879 and 1883, which money he had deposited in a bank in his own name. Subsequent to the decree in favor of the defendants, the complainant discovered evidence that defendant H had testified in another suit that his sister gave him $8,000 in money to invest in 1882, which he put in his safe, and did not open any bank account for his sister at all until 1889, and that he had kept the money in his safe all the time. Held, to authorize the grant of a new trial.</p>

— Hon. Jno. A. Hockada/y, Judge. The court erred in sustaining plaintiff’s motion to strike out defendants’ answer. “The courts, upon good cause shown and for the furtherance of justice, may extend the time prescribed in this article for filing any pleading, or motion, upon such terms as shall be just.” E. S. 1889, sec. 2062. The answer filed by defendants stated a meritorious defense, which, if established, would have defeated plaintiffs’ case.

Louis City Circuit Court. — Hon. L. B. Valliant,. Judge. (1) The city having accepted the dedication made by Thomas Allen, all the conditions specified in the deed of dedication became binding on the city. Heitz v. St. Louis, 110 Mo. 618; Kemper v. Collins, 97 Mo. 644; St. Louis v. Meier, 77 Mo. 13; Becker v. St. Charles, 37 Mo. 13; Rose v. St. Charles, 49 Mo. 509.

Louis City Circuit Court. — Hon. Jacob Klein> Judge. (1) The deed of trust of February 10, 1894, from Emil Vorhauer to Henry Vorhauer, as trustee for William Vorhauer, to secure the payment of $5,500, and the sale made thereunder July 12, 1894, by the substituted trustee, Erd, to Henry Yorhaner, were based upon valuable considerations and were bona fide and lawfully made.

<p>Appellate Jurisdiction: amount in dispute: suit to canoed receipts. The Supreme Court has no jurisdiction of an appeal from an order of the circuit court sustaining a demurrer to a p'etition, which, while it charges the value of an estate left by plaintiff’s mother, of whom plaintiff is the only heir, to be $4,000, is,- nevertheless, not a suit to recover that sum, but a suit in equity against the administrator to reform one receipt for $750, and to cancel another for the same amount, both of which it is alleged were obtained from plaintiff by-fraud as a. full acquittance of plaintiff’s interest in said estate.</p>

Transferred from Kansas City Court of Appeals. (1) The petition does not state the value of the property. Eor aught we know or can know by the petition, the property might not be' worth ten cents, or it may be worth $100,000. The petition must state the value of the property in suits on policies of insurance. The value of the property is a constituted fact which must be alleged and proved. If this is not proved, then the plaintiff has no cause of action against the defendant.

— Hon. E. P. Oates, \ Judge. (1) The demurrer to evidence should have been sustained, and defendant’s instruction 1 should have been given, because the deceased was guilty of contributory negligence, (a) It was the duty of deceased to look and listen, and if there were any difficulties in the way of seeing or hearing he should have stopped, and if, by complying with such duty, he could have discovered the approach of the train, then he was guilty of negligence contributing…

— Hon. H. 'A. Hutchinson, Special Judge. Held: namely, that in October, 1882. That did not have tbe effect of incurring an indebtedness or imposing upon tbe city tbe burden of a debt equal to tbe aggregate amount to be paid in tbe course of tbe twenty years contemplated by tbe contract between tbe city of Boonville and Mr. Perkins.

<p>1. Swamp Bands: injunction: payment op judgment. A pending injunction to enjoin the county court from using the proceeds of swamp lands already sold to drain other swamp lands still held by the county (the basis of the suit being that the proceeds of the sale of such lands can not be used for any other except school purposes), is no bar to the payment, out of the proceeds of swamp lands in the county treasury, of a judgment for attorneys’ fees, which the county owed for services rendered by the attorneys in recovering such lands for the county.</p> <p>2. -: attorneys’ pees: payment out op trust pund. Under the statute authorizing the county court, as a special trustee to pay attorneys employed for the recovery of swamp lands belonging to the county, “out of any funds arising from the sale of such swamp lands or out of the general revenue fund of said county,” the attorneys are entitled to the satisfaction of their fees out of the proceeds of those lands, and can compel payment therefrom by mandamus.</p> <p>3. -: -: discharge. Where attorneys made a contract with the county court to act as attorneys for the county for the recovery of swamp lands belonging to the county and to clear up the title to other lands, under which express auhority they rendered services and incurred liabilities and were proceeding to render such other services as were required, until, without fault on their part and without any lawful excuse, the court declared the contract of employment cancelled, and took the work out of their hands and gave it to others to finish, such attorneys are entitled, under • such circumstances, to have whatever judgment a jury may render them as the value of their services, considered as compensation for services rendered, and to have the same paid out of the proceeds in the county treasury arising from the sale of the swamp lands of the county.</p>

— Hon. A. M. Woodson, Judge. (1) The answer and return of the appellants state that the city of St. Joseph is a city of more than 100,000 inhabitants and less than 150,000 inhabitants, and the court will take judicial notice of the population of the city; and the return also states that the city of St. Joseph is a city of the second class. The demurrer, of course, admits the truth of all of the allegations of the answer and return.

Mandamus. (1) The State committee is not invested with plenary power to g'o into a county and set aside, of its own volition, a nomination made under the auspices of the regular party authorities of such county. This case is very different from the O’Malley case. Here there was no dispute that there was a regular county committee. The party was not disorganized. If the State committee could interfere here, then it may set aside a nomination in any county at will.

— Hon. W. W. Bucher, Judge. (1) Plaintiff’s amended petition contains separate, inconsistent counts or causes of action and tbe circuit court erred, in overruling defendant’s motion to compel plaintiff to elect upon which, count she would proceed to trial, and in refusing to instruct the jury which count they should take into consideration. Roberts v. Railroad, 43 Mo. App. 289; Enterprise Soap Works v. Sayers, 51 Mo. App. 314; Seiter v. Bischoff, 63 Mo.

<p>1. XTbel: malice: matter for jury. Where, in a libel case the publication, conceded to he defamatory, comes under the class of “qualified privileges,” and the only point is whether there was an abuse of the privilege (that is, whether or not the publication was made in good faith, and where the evidence tends to show that the defendant knew or had the means of knowing his charges were untrue), a prima facie ease is made for the jury.</p> <p>2. -: -: -: case stated. The plaintiff was employed by a number of electric light companies as chief engineer in the joint construction by the companies of underground conduits, and the defendant, as the president of one of them, wrote the president of another a letter which is the foundation of the action, in which there were charges affecting plaintiff’s personal and professional standing. Plaintiff’s evidence tended to prove that these charges were false, that the defendant either knew or had the means of knowing they were untrue, and that the exigencies of the situation, in the construction of the joint work of the companies, did not call for such charges for the protection of the company defendant represented, and that while the communication was privileged the publication was an abuse of the privilege. Seld, that these things were evidence of malice proper to be weighed by the jury, and hence, the court should not have forced plaintiff to a nonsuit.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) That the constitution and laws of organizations such as defendant, are binding on its members, is not an open question in this State. Coleman v. Knights of Honor, 18 Mo. App. 194; Smith v. Knights Eather Mathew, 36 Mo. App. 184; Grand Lodge, etc., v. Sater, 44 Mo. App. 452; Marshall v. Supreme Lodge, 59 Mo. App. 87; State ex rel. v. Grand Lodge, 70 Mo. App. 466; Ellerbe v. Eaust, 119 Mo. 653.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Tbe trial court erred in making tbe order charging the assignees with the amount of the note of C. H. Filley ($3,292) as for so much cash in their hands belonging to the assigned estate; for the reasons, to-wit: (a) There is no provision of the statute, regulating voluntary assignments for the benefit of creditors, which gave the court power to do so.

— Hon. U. G. Orion> Special Judge. • (1) The deed to Mary Ann Walker and the heirs of her body was such a conveyance as at common law created a fee tail general. 2 Sharswood’s Blaekstone, p. 214; Clarkson v. Clark-son, 125 Mo. 381; 1 Washburn on Eeal Prop., 253; Eeed v. Lane, 122 Mo. 311; Parrar v. Christy, 24 Mo. 453; Bone v. Tyrrell, 113 Mo. 175; Eozier v. Graham, 146 Mo. 352; Burris v. Page, 12 Mo. 232; Emmerson v. Hughes, 110 Mo. 631.

<p> Prohibition. </p> <p>(1) The probate court had no jurisdiction to make the order of distribution, because the statutory notice had not been given. Lilly v. Menke, 126 Mo. 220; In re Grider, 21 Pac. Rep. 523; Timberlake v. Brewer, 29 Ala. 108; Snell v. Rawlings, 3 Humph. (Tenn.) 85. The court had no jurisdiction to make the order of distribution, because the transcript on appeal, required by section 286, Revised Statutes 1899, had not been certified by the clerk of the circuit court to the probate court. State ex rel. v. Guinotte, 156 Mo. 519. (2) The probate court having made the order of distribution without notice to the executor’s attorney, and without; compliance with the promise to the executor’s attorney to give notice, deprived the executor of his day in court, and the order was unconstitutional, as taking the property of the executor without due process of law, and denying bfm the equal protection of the law. Lowrey v. Eainwater, 70 Mo. 157; Eees v. Watertown, 86 Mo. 107; Huber v. Eiley, 53 Pa. St. 112; Burton v. Platter, 10 H. S. App. 657; Murray v. Hoboken L. & I. Co., 59 H. S. 270; Kennard v. La., 96 H. S. 480; Stewart v. Palmer, 74 N. V. 183. (3) It is evident that the manner of making record entries and making up the record in the probate court is liable to cause great mistakes, and we submit that the record entries attempted to be made in this case during the term subsequent to that at which the order was claimed to have been made, without any nunc pro tunc order, is void. Johnson v. Commonwealth, 80 Ky. 377; Belkin v. Ehodes, 76 Mo. 651; Gibson v. Chouteau, 45 Mo. 173; Bartlett v. Eeicheneeker, 5 Wash. St. 369; Harvey v. Whitlack, 1 Mont. 713. (4) This action was properly made and brought. Sec. 4453, E. S. 1899; 16 Eney. of PL ánd Pr., p. 1, 132; State ex rel. v. Aloe, 152 Mo. 466; People ex rel. v. Eitzgerald, 47 N. Y. Sup. 556; Cosby v. Los Angeles, 110 Cal. 54; In re Eice, 155 H. S. 396. (5) Prohibition is a common law remedy. 19 Am. and Eng. Ency. of Law, 264. (6) The plaintiff has a right to take a nonsuit. Mayer v. Old, 51 Mo. App. 214; Lawrence v. Shreve, 26 Mo. 492.</p> <p>(1) (a) If the executor was aggrieved by the order of the probate court, he had an adequate and ordinary remedy by appeal within ten days after the term. If he did not know the decision had been rendered it was his own fault, for under the circumstances in evidence he ought to have known it. The facts show that knowledge was brought home to him that the court was about to render judgment. State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Burekhartt, 87 Mo. 533. (b) The action of the circuit court on the application for prohibition before it was in- law equivalent to a ruling denying the writ. The instruction being a peremptory one that Green was entitled to the relief he asked for, and being refused, did not entitle the plaintiff to take a nonsuit, with leave to move to set the same aside, after submission of the cause, in an action at law. Plaintiff finding that the court had decided against him, after a week’s submission of the cause, seeks to evade the judgment of the circuit court by this device. McLean v. Stuve, 15 Mo. App. 317. There is no warrant for a so-called “non-suit” in a prohibition case. The plaintiff is not permitted to speculate on getting the writ, and when the court finds against him, to avoid the effect of an adverse decision by withdrawing his petition; hence, plaintiff has no standing by original suit in the Supreme Court. He could under the statute have appealed from the circuit court as in other cases, and that decision is a bar to further original proceedings. R. S. 1899, sec. 4455; Coleman v. Dalton, 71 Mo. App. 14. (c) Prohibition will not be awarded to prevent an execution on a judgment already rendered. It is then too late. (2) The failure of the executor to give a supersedeas bond when he appealed from the personal money judgment against him (finding the balance on his final settlement) rendered by the circuit court, prevented the appeal from suspending the effect of the judgment. ' R. S. 3899, sec. 809; Branson v. Branson, 102 Mo. 613; Woerner on Administration (2 Ed.), sec. 547, p. 1202. The appellant was not excused from giving bond because he was executor. He did not appeal in the interest of the estate in his representative character, but against the estate’s interest from a personal judgment against him, and, hence, was required to give bond like any other person. Sec. 281, R. S. 1899; Woerner on Administration (2 Ed.), sec. 546, p. 1201. (3) The probate court (after tbe balance on final settlement bad been found and certified down to it by tbe circuit court), clearly bad jurisdiction to make tbe order of distribution. Tbis order was made after final settlement. On final settlement tbe statute nowhere requires notice to tbe executor before tbe court can make distribution. He is in court at tbe time, on bis own application, and after tbe final settlement ascertains tbe amount in bis bands, be bas no concern with its distribution, or to whom made or bow made. Branson v. Branson, 102 Mo. 618. (4) Tbe transcript and original papers sent down by tbe circuit to tbe probate court was a sufficient compliance with section 286, Bevised Statutes 1899. It filled every substantial requisite and notified and advised tbe probate court of wbat bad been its rulings so that tbe latter could “proceed according to the judgment of tbe circuit court.” (5) Tbe judgment is valid and may be appealed from, from tbe time wben rendered, tbougb not written up by tbe clerk until later. Am. and Eng. Ency. Law, “Judgments” subd. 3, under “Practice in Entering Judgments,” in notes.</p>

— Son. James D. Fox, Judge. ' (1) Plaintiff must show title or right of possession in himself before he can disturb defendant’s possession, and must recover, if at all, on the strength of his own title, and not on the weakness of that of defendant. Poster v. Evans, 51 Mo. 39; West v. Bretelle, 115 Mo. 653; Siemers v. Schrader, 14 Mo. App. 346; Dunlap v. Henry, 76 Mo. 106; Parker v. Oassingham, 130 Mo. 348; Chenault v. Quisenberry (Kv.) 57 S. W. 234.

E. J. BroacLdus, Judge. (1) There can be no merger where the legal title is in one person and the equitable title is in another. In this case-the legal title .was in the trustee, J. M. Winters, upon condition broken. Siemers v. Schrader, 88 Mo. 23; Johnson v. Houston, 47 Mo. 227; Hospes v. Ahnstedt, 13 Mo. App. 273; Bowse v. Johnson, 66 Mo. App. 63.

— Hon. F. E. Burroughs Judge. (1) Oral gift accompanied by possession of donee and improvements of tbe premises will create color of title and donee will hold against donor and will also hold against the assignees and legal representatives of donor. The donee is in the position of a purchaser for valuable consideration, and the court will decree title in donee.

<p>1. "Will: capacity: verdict: FINAL. Where the issue as to testator’s capacity to make a will was submitted to the jury on instructions to which no objection is urged, and there was ample evidence to sustain the verdict, the court is concluded by the jury’s finding therein.</p> <p>2. -: undue influence: taking issue from jury. Where there were no confidential relations existing between the testator and his beneficiary, and there is no substantial evidence that the will is the result of any undue influence exercised by the legatee over the mind of the testate, the court is justified in taking the issue of - undue influence from the jury.</p> <p>3. -;: PRACTICE: MISCONDUCT OF JUROR: DISCHARGE. This COUl't will defer largely to the discretion of the trial court, in refusing to discharge the jury for alleged misconduct of a juror; And when the motion to discharge the jury charges that a juror engaged in conversation with one of the parties, but does not state that he in anywise talked to him about the case on trial, and nothing appears to show that he did, and there is nothing suspicious about ■such occurrence, the judgment will not be reversed because the motion was denied.</p> <p>4. Evidence: impeachment: contradictory statements. The contradictory statements which may be shown for the purpose of impeaching a witness must be of facts pertinent to the issue, and which could have been shown in evidence as facts independently of the inconsistency.</p>

— Hon. Rudolph Hirzel, Judge. (1) Tbe court was wrong in finding “the plaintiffs wore the owners of and tenants in common to the undivided one-tenth interest” in the land, and the finding made by the court was not sufficient to base a judgment upon. E. S. 1899, sees. 3066-7-8-9.

— TIon. D. W. Shackleford, Judge. (1) Tbe court erred in requiring tbe plaintiff to pay tbe taxes that accrued upon tbe land subsequent to tbe death of her husband, and in refusing to charge tbe same in her favor upon said real estate. Her dower was never assigned to her. She was entitled to tbe use of tbe land without being charged with any part of tbe taxes thereon. Tbe rents and profits were hers, and she was not bound to pay taxes out of tbe same.

<p>Appeal from Bates Circuit Court. — Hon. Jas. H. Lay, Judge.</p>

<p>1. Appeals: easement: jurisdiction. Where it is apparent on the face of the bill that the easement claimed is a right in real estate, the appeal is to the Supreme Court.</p> <p>2. Easement: stairway: way op necessity. Where plaintiff owned a lot forty-seven feet wide, on which he had begun to erect three buildings, he can not claim that a space of six feet between him and his grantor is a way of necessity for the construction of a stairway to his second or third stories. However convenient that space might be for a stairway, an easement thereon was not a Way of necessity because he could build a stairway on his own lot or within his own building.</p> <p>S. -: -: appurtenance. A stairway on a vacant space between two buildings can not be included by the use of the word “’appurtenance” in a grant of one of them, if the .stairway was not there when the deed was made. Appurtenances can include only such things as are necessary to the enjoyment of an estate and are practically annexed thereto at the time of the grant.</p> <p>4. -: LOST INSTRUMENT: CONTENTS: PROOP: DISCONTINUANCE: injunction. In order to pass title to real estate by parol proof of the contents of a lost instrument, the testimony must be clear, cogent and convincing. And where plaintiff testifies that the agreement was that he was to have an easement in a stairway so long as his building stood, and the defendant’s agent and the disinterested witnesses, that he was to have the use of the stairway as long 'as they agreed about it, it will be held that the defendant had a right to terminate the easement at his own election, and that to perpetually enjoin him from doing so, whether he had formally notified plaintiff or not, was error.</p>

Certiorari. The jurisdiction of State and Federal district courts are concurrent and the first court taking jurisdiction will continue in it to the exclusion of the other. Stanhart v. Sibley, 19 Atl. Rep. 464; Works on Courts and Jurisdiction, sec. 17; Ober v. Gallagher, 93 U. S. 199; Merrill v. Lake, 16 Ohio St. 373; Booth v. Ableman, 16 Wis. 460; Powers v. Springfield, 116 Mass. 84; Desty on Removal of Causes, 74; Davis y. Life Association, 11 Eed.

— Eon. A. M. Woodson> Judge. (1) It is an elementary proposition that there can be no officer de facto unless there is an office de jure. This proposition is so well settled that it is not deemed necessary to cite authorities in support thereof. (2) The office of engineer being an office created by the Legislature, the Legislature had the power to abolish it. State v. Davis, 44 Mo. 129; Wilcox v. Rodman, 46 Mo. 322.

— Hon. D. H. Eby, Judge. (1) In a case of tbis kind it is not necessary to prove bow mueb of any particular poison it would take to destroy life, or that sucb quantity was found in tbe body of deceased.

Erancois Circuit Court. — Hon. D. L. Rivers, ■ Special Judge. (1) There was no statutory authority in the circumstances for the election of a special judge, and hence the court was without jurisdiction to try said cause. R. S. 1899, sec. 2595. (2) The record fails to show that the election as made was approved by the court, and hence the election was incomplete, and the sitting judge had no jurisdiction.

— Hon. D. H. Bby, Judge. (1) The instruction in the nature of a demurrer, offered by defendant at close of plaintiff’s case, should have been given, there being no evidence of force used or attempted to be used by defendant. In order to convict for an assault with intent to rape, the evidence must show beyond a reasonable doubt, that defendant intended to accomplish his purpose regardless of any resistance the woman might offer.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Everyone has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be governed by a different law from that which is applied in all similar cases, and which permits a private prosecution to come into court, demand a special jury in a criminal case, and deposit $15 for the payment thereof, is not legitimate or constitutional legislation,…

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Defendant’s application for a change of venue alleges: “That the minds of the inhabitants of the city of St. Louis, Missouri, are so prejudiced against him that he can not have a fair trial in the above-entitled cause in said city.” This was the only reason or complaint made by defendant.

— Hon. Jno. W. Wofford, Judge. Under an indictment for robbery in tbe first degree, tbe proof must show that tbe money or property was taken from tbe possession or in tbe presence of tbe owner thereof, and if it appear that tbe person alleged to be tbe owner is not the owner, but only a servant or employee of tbe owner left in possession for a time, tbe variance is fatal ánd a demurrer to the evidence should be sustained.

— Hon. W. L. Jarrott, Judge, (1) Where the statute creates an offense, an indictment which follows the words of the statute is sufficient. State v. West, 158 Mo. 317; State v. Van Wye, 136 Mo. 241; State v. Addock, 65 Mo. 592; State v. Batson, 31 Mo. 344; State v. Presbury, 13 Mo. 34; State v. Eulton, 19 Mo. 680; State v. Johnson, 93 Mo. 317; State v. Mohr, 68 Mo. 303; State v. Schieneman, 64 Mo. 386; State v. Davis, 106 Mo. 230; State v. McDaniel, 40 Mo.

— Hon. James E. Hazell, Judge. (1) The indictment in this case is sufficient. It is true-it does not charge upon what particular part of the body the wound was inflicted,- but under our decisions and statutes it is sufficient now to charg’e the wound had been inflicted in and upon the body, without specifying the part of the body. State v. Edmundson, 64 Mo. 399; 88 Mo-. 402; State v. Arnewine, 126 Mo. 571; 76 Mo. 35; Kelley’s Criminal Law, sec. 484.

— Hon. B. J. Oasteel, Judge. The evidence does not support the verdict, and all shows that the prosecuting witness made the assault on defendant when he was leaving the premises, and threw a brick and rock at him before he assaulted prosecuting witness. The usual contention is in this case that the verdict is against the weight of the evidence.

<p>1. Principal in Second Degree: common intent. If a person be present while a felonious assault is being committed by another, and by words or acts aid or advise or encourage another to commit the assault, with the intent that the words or acts of encouragement shall encourage and abet the crime committed, he will be equally guilty with the person who actually commits the physical act.</p> <p>2. -: ———: indictment: conviction. A person may be charged with doing 'an act himself and be held liable under such charge for being present, aiding and assisting another in doing it.</p> <p>3. -: -: instruction. The instructions in this case told the jury that “all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting,” and, also, that,“If from the evidence, you find and believe that......the defendant, either alone ur acting together with another, with a common intent, feloniously made an assault,” etc. Held, that this instruction was proper whether the shot was fired by defendant or by another who was being aided or encouraged by his words or 'acts.</p> <p>4. -: -: -: case stated. Defendant and a companion were on a street car, and on leaving, used the vilest language to the conductor for not having called their attention to the street where they wished to get off. He stepped down on the lower step of the platform and then swung back up and said, “I got a notion to smash you,” and grabbed at and struck at the conductor, who, finding himself penned in between the two, in order to get away from them struck the defendant, and immediately threw open the ear door and wont inside, slamming it behind him. One of the men threw open the door, and shot him, and immediately both disappeared, some witnesses testifying that the shot was fired by defendant, others that he was knocked to the ground when the conductor struck him, and did not again mount the car, and that the other man did the shooting. Held, that under the circumstances, the instruction permitting defendant’s conviction, whether he did the shooting himself, 'or aided and abetted it, was properly given.</p>

— Eon. Jno. W. Wofford, Judge. (1) Two things are absolutely necessary to make a dying declaration admissible, viz.: First, the party must at least suppose himself in extremis; second, where it is possible, the exact language of the party must be given. It is not sufficient that the substance be given. (2) The admission of the alleged confession of the defendant was error. As soon as arrested the defendant was taken to the office of the prosecuting attorney.

— Hon. Henry O. Pepper, Judge. (1) There was evidence, in addition to that of defendant, tending to prove that the deceased began the difficulty which resulted in his death.

Appeal, from Douglas Circuit Court. — Hon. W. N. Evans,, Judge. (1) An examination of the information shows every essential allegation to charge the crime of perjury. State v. Jennings, 98 Mo. 493; State v. Horman, 106 Mo. 635; State v. Smith, 63 Vt. 201; State v. Massey, 5 Tex. App. 81; State v. Huclisby, 87 Mo. 414; State v. Cave, 81 Mo. 454; Kelly’s Criminal Law, sec. 821; State v. Pratt, 98'Mo. 482; State v. Mattingly, 8 Tex.

— Hon. Jos. D. Perkins, Judge. (1) Tbe owners of land whose interests would be affected in this case are necessary parties to its complete determination. A suit can not be maintained in equity where a necessary party is not made such. Crawford v. Altman, 139 Mo. 262; Stein-man v. Strimple, 29 Mo. App. 478.

'Appeal from St. Louis City Circuit Court. — Hon. L. B. Valr licmtj Judge. My contention is that for the purpose of making the final appropriation'under section 10, article 6, the assembly alone, without the concurrence of the mayor, has the power, under that section, to say that the money shall be paid to those whose property has been taken in terms of the commissioners’ report.

Transferred from St. Louis Court of Appeals. The courts of this State have always held that a conviction in a municipal court is a bar to the subsequent prosecution by the State for the same offense. State v. Simonds, 3 Mo. 414; State v. Cowan, 29 Mo. 330; State v.Hannah Thornton, 37 Mo. 361; Pilot Grove v. Frank McCormick, 56 Mo. App. 530; State v. Freeman, 56 Mo. App. 579. Prosecutions by a city are not civil cases.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The charter of a corporation formed under a general law, does not consist of the articles of association alone, but of such articles taken in connection with the law under which the organization takes place. “The provisions of the law enter into and form a part of the charter.” People ex rel. v. Chicago Gas Trust Co., 130 111. 285; Morawetz on Private Corporations, sec. 318.

— Hon. Jas. E. Hazell, Judge. (1) The indictment in this, case is bad, because the indictment does not show that it was found by a grand jury, “duly impaneled, charged and sworn” by a court competent to try the case, nor does it show that it was- returned into the circuit court of Cole county, nor does it allege any venue or jurisdiction in the caption. (2) The court should have granted defendant a continuance. It was a reasonable request.

— lion. H. G. Riley, Judge. (1) The indictment is insufficient; the word “die” can not be construed “died” or “did die.” The death of the assaulted party is a’necessary allegation in the indictment and can not be supplied by intendment. State v. Eurgerson, 152 Mo. 92, 63 S. W. 101; State v. Eector, 126 Mo. 328. (2) Instruction 2, asked by defendant, presented the law as appli-' cable to the facts in this case, and should have been given.

Louis City Circuit Court. — Hon. P. R. Flit-' craft, Judge. (1) Whether the misrepresentation act applies to assessment companies, is no longer an -open question in this State.