Volume 166 — Missouri Reports

— Hon. J. C. Lamson, Judge. (1) A voluntary conveyance by a debtor is, as against prior creditors, presumptively fraudulent. Hoffman v. Nolte, 121 Mo. 120; Patton v. Bragg, 113 Mo. 595; Jordan v. Buschmeyer, 97 Mo. 94. (2) The burden of proof was on Mrs. Williams to show the following: (a) That her husband had ample means left in his hands, at the time of the conveyance from Constant to her, with which to pay his debts. Hoffman v. Nolte, supra; Snyder v. Free, 114 Mo. 360.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. The reversal of a judgment in favor of a plaintiff, without remanding, amounts to a nonsuit only, restoring the parties to their statu quo ante-bellum; and the plaintiff is thereafter at liberty to bring his action anew within such time as may be prescribed by the statute of limitations. R. S. 1899, sec. 4285; Lumber Co. v. Lumber Co., 72 Mo. App. 257; Fries v. Railroad, 98 Pa.

Louis City Circuit Court. — Hon. 'Wm,. Zachñtz, Judge. (1) The agreement between respondent and. his intestate (Mrs. Judy) did not create a partnership between them. McDonald v. Matney, 82 Mo. 365; Newspaper Co. v. Farrell, 88 Mo. 594; Clifton v. Howard, 89 Mo. 192; Thompson v. Holden, 117 Mo. 118; Bank v. Outhwaite, 50 Mo. App. 124.

<p>1. Will: unwise PROVISIONS: relief. The beneficiaries under a will' must take what is given them, burdened with the conditions which the testator has imposed, whether wise or unwise. So that, if by the terms of the will partition is not to be made during the continuance of the life estate, the courts have no authority to decree partition or distribution, although the life estate may have lasted fifty years or more, and although the property is much depreciating in value because of the changed conditions in the town where the property is situate and there is such a lack of income-as make necessary improvements impossible, and although it may be apparent that partition would be immediately beneficial to both remaindermen and life tenants. The statute (see. 4383, B. S. 1S99) expressly prohibits a partition or sale contrary to the provisions of the will.</p> <p>2. --: EQUITY COURTS: limitations on powers. An equity court can not relieve the beneficiaries under a will from an unfortunate condition not foreseen by their testator which results in the impairment of the estate and to the injury of all, if to do so is to ignore the plain meaning and intention of the will. The jurisdiction of a court of equity is within the limits of the statute law of the State, and the chancellor is as much bound to obey that law as is the judge in a law court. But even were there no statute on the subject, a court of equity will not at the suit of a devisee require a trustee in violation of the will to incumber or sell a part of the trust property merely to render the rest more profitable. (Distinguishing Lackland v. Walker, 151 Mo. 247.)</p>

— Hon. Franklin Ferris, Judge. (1) Tbe court erred in holding that it was necessary for plaintiff to prove his employment to do the services set out in the petition by evidence of a resolution of the defendant’s board of directors duly entered on the official minutes of such board, and that plaintiff was not entitled to recover for legal services rendered to defendant while he was a director or secretary or treasurer of defendant, on a quantum meruit or in assumpsit.

— Hon. Jos. D. Perkins, Judge. (1) Tie word “executrix,” used in tlie second clause of the will of Emma I. Webb, is descriptive of the person intended by testator as the donee of the trust power, and the trust or power did not vest in the office of executor or executrix, but in the person intended by the designation “executrix,” and (lie power or trust is given Rebecca Ilayden as implicitly and exclusively as if tbe words, “Rebecca Hayden,” had been used instead of the words…

Louis City Circuit Court. — Iio-n. H. D. Wood>. Judge. The circuit court erred in sustaining defendant’s demurrer and gave judgment for defendants. (1) Plaintiff’s amended petition stated facts sufficient to constitute a cause of action. Laws 1897, p. 74; Huff v. Land & Imp. Co., 157 Mo. 65 ; Holland v. Challen, 110 U. S. 15.

Louis City Circuit Court. — Hon. Wm. Zaclvritz, Judge. (1) As the Act of April 9, 1895, provides for no time within which action on judgments theretofore rendered might be begun, it did not cut short the twenty-year period within which suits thereon might be brought according to the statute in force when the first judgment was rendered.

— Hon. Demid H. Eby, Judge. (1) Under tbe pleadings and the evidence, the court should have given the declaration of law asked for' by defendants, and its verdict and judgment should have been for defendants. Eirst. The original suit was an ordinary action at law on a promissory note. The so-called amended petition was not an amendment, but a complete change of cause of action. It was changed from an action at law to one in equity. • The same proof would not sustain both.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. (1) The only objection to tbe deed tendered by plaintiff as the complete fulfillment of ber contract was, that ber bus-band was not a party to it. (2) Tbe marriage contract became part of plaintiff’s deed to defendant. Klenke v. Koeltze, 76 Mo. 240. (3) If tbe deed tendered by plaintiff conveyed a sufficient title sbe performed ber contract, notwithstanding .the adverse opinion of tbe examiner, or of defendant’s counsel.

— Hon. E. M. Hughes, J udge. (1) When two adjoining proprietors agree what shall be the division line and use and occupy up to such marked line for a sufficient length of time, sufficient to show the… Held: “But the evidence tends to show that that resulted from a rather careless yielding of the parties, including plaintiffs and defendants, to the physical conditions of the land, than from a purpose to change the line.” Brummell v. Harris, 148 Mo. 445.

— Hon. W. N. Evans, Judge. There is nothing in the record to indicate that defendant ever excepted or in anywise objected to the panel being limited to thirty jurors; nothing to indicate that he undertook to peremptorily challenge more than twelve of them. State v. Holmes, 54 Mo. 153.

<p>1. Conveyances: delivery: depositary: dominion over deed. So long as a deed in the hands of a depositary is subject to be recalled by the grantor at any time, the grantee has no right to it, and can acquire none; and if the grantor dies without parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it. The depositary must have had such a dominion over it during the lifetime of the grantor as the latter could not interfere with, in order to have any control over it after his death. Otherwise, a turning over of the deed to the grantee after the grantor’s death is not a delivery, and without delivery there is no execution of a deed.</p> <p>2. -: patent ambiguity. A defect in the description of the land attempted to be conveyed, if apparent on the face of the deed, is not latent, but patent, and extrinsic evidence, as a rule, is not admissible to remove the ambiguity. The omission of township and range is a patent defect in the description.</p> <p>3. -: --: OMISSION OF TOWNSHIP AND RANGE: DEED OF GIFT. The omission of township and range, in the description of land, is such a patent ambiguity as renders the deed void. And where such a deed is a deed of gift, based on love and affection for the grantee, a child, a court of equity will not enforce it, or undertake to correct it.</p>

— Hon. Jno. G. Wear, Judge. (1) Plaintiff, the deck-hand, and Whalen, the sawyer, being engaged in a common employment, and both at the time of the accident working together at the same work, to a common end, were fellow-servants. Card v. Eddy, 129 Mo. 514; McCarty v. Rood Hotel Co., 144 Mo. 397; Miller v. Railroad, 109 Mo. 356; Marshall v. Schricker, 63 Mo. 308; Klochinski v. Lumber Co., 93 Wis. 417.

— Hon. Nat. M. Shelton, Judge. (1) A witness has no independent action for bis costs. He has no control of his costs. He must look alone to the party who demands his services, or to the provisions of the statute. State ex rel. v. Oliver, 50 Mo. App. 21Y; State ex rel. v. Oliver, 116 Mo. 118; Beedle v. Meade, 81 Mo. 306; Murphy v. Smith, 86 Mo. 333; Hoover v. Railroad, 115 Mo. YY; McOlannahan v. Smith, Y6 Mo. 428.

Louis City Circuit Court. — Hon. H. D. Wood> Judge. (1) The first ground for demurrer is that the second amended petition, and each of 'the counts thereof, constitute a change in the causes of action herein. We submit that this ground of demurrer comes too late. It makes no difference whether the original petition contains the same causes of action or not, as the filing of the first amended petition was the abandonment of the original one.

— Son. D. W. Shackle-ford, Judge. (1) Tbe sheriff, under the terms of the deed of trust given by plaintiff and wife, had full authority to act in advertising and selling the land. The failure of the trustee to act, when requested, constituted a refusal to act. The request was peremptory; the beneficiary can not be defeated of its rights by a subterfuge and a quibble. Chase v. Williams, 74 Mo. 429.

Transferred from St. Louis Court of Appeals. (1) The facts in the case all show that plaintiff’s claim of possession at the time defendant entered is not bona fide but a mere pretense, and sham. He was not there — had nothing there, and by his contract of hiring to Magruder shows that he did not intend to return. His acts are inconsistent with his claim. He Graw v. Prior, 60 Mo. 56; Keen v. Schweiggler, 70 Mo. App. 409.

— lion. F. M. Hughes, Judge. (1) By the terms of the will the gift to Amos Hoselton created in him an estate upon 'limitation with a conditional limitation over to plaintiffs. The words “as long as” are words creating an estate upon limitation. The estate of plaintiffs was a conditional limitation. Tiedeman on Real Prop. (2 Ed.), sec. 281.

— Hon. Samuel Davis, Special Judge. (1) The court erred in retaining Powell as a member of the jury to try this cause, and in compelling… Held: do not disqualify, if, notwithstanding the scruple, the juror will render a proper verdict. Adkins v. State, 16 Ark. 568; Stallion v. State, 5 Col. 276; Com. v. Webster, 5 Cush. (Mass.) 295. The finding of the trial court as to the qualification of jurors will not be disturbed unless it appears that manifest error has been committed.

Habeas Corpus. PETITION. To the Honorable Supreme Court of Missouri, Division No. 2. Tour petitioner, Joseph Roberts, respectfully represents and states to this court, that he is now illegally and unlawfully imprisoned.and restrained of his liberty by one F. M. Wooldridge, warden of the Missouri State Penitentiary.

— Hon. E. J. Broaddus, Judge. (1) There is no principle better settled than that in a will contest all the heirs must be made parties. Watson v. Alderson, 146 Mo. 333; Wells v. Wells, 144 Mo. 198. (2) The court erred in refusing to permit the wife of plaintiff, Moritz Kischman, to testify in the cause as to what she had seen with her eyes at the bedside of the deceased on the morning when the pretended will was drawn.

— Hon. T. B. Robinson> Judge. (1) The indictment is bad for the reason that it does not negative the exceptions contained in the section of the statute under which it was drawn. This indictment was drawn when .the statute of 1889 was in force and is drawn under either section 3644, section 3645 or 3646, which correspond at this time to sections 2012, 2013, 2014, each of which contains an exception and the indictment does not negative such exception.

Louis City Circuit Court. — Hon. Jacob Klein■, Judge. (1) The trial court erred in overruling the defendant’s motion in arrest of judgment. Defendant’s counterclaim was specific as to amount, and prayed judgment for the difference between the $5,144.88 accrued to defendant and the $4,274.94 received by him, to-wit: $869.94; but no finding or judgment was entered one way or the other upon this prayer.

— Hon. W. N. Evans, Judge. Respondents are not entitled to protection as innocent purchasers without notice. Any facts which would put a prudent man on inquiry constitutes notice. Ins. Oo. v. Smith, 117 Mo. 261; Jennings v. Todd, 118 Mo. 296; Barrett v. Davis, 101 Mo. 519. But if respondents had no actual notice or knowledge of such facts as would presume notice, the lis pendens notice filed by appellant of his claim to the land in question would be constructive notice.

Prohibition. The order requires the Board of Election Commissioners to open, count, examine and compare with the list of voters all the votes cast for the office of coroner including the votes of the voters in those precincts where the validity of the votes were not in question, and the commissioners are commanded to compare these votes with the voting list, and thus destroy, at least as to them, the secrecy of the ballot, in violation of the provisions of the Constitution…

Prohibition. The defendant, Spencer, attempts to justify the order herein by alleging that the court in this matter heretofore in this court held that plaintiff Hancock by filing an answer waived the failure to give the ten days’ notice required by section 7057, Revised Statutes 1899. It would perhaps be sufficient to say that the preliminary rule entered in the former case, prohibiting respondents from carrying into effect the order there involved, was made absolute.

— Hon. Jas. H. Hazdl, Judge. (1) The information was not verified by the oath of the prosecuting attorney; neither was it verified by the oath of some person competent to testify as a witness in the case; neither was it supported by the affidavit of such person; neither has any such affidavit been filed with said information. R. S. 1899, sec. 2477. The form of the affidavit required to be made by the prosecuting attorney will be found in section 2479, Revised Statutes 1899.

Prohibition. (1) A writ of prohibition issues whenever the lower court is without jurisdiction, or is acting in excess of its jurisdiction, or in abuse of its powers, and no other remedy is available. State ex rel. v. Wood, 155 Mo. 425; Railroad v. Wear, 135 Mo. 230; State ex rel. v. Elkins, 130 Mo. 90; State ex rel. v. Hirzel, 137 Mo. 447.

Louis City Circuit Court. — Son. Jacob Klein, J udge. (1) The estimates and decisions of the water commissioner of St. Louis, in evidence in this cause, were not final and conclusive as to the work and material embraced in this action, and did not in any sense constitute accounts stated between the parties, and it was error to hold that, upon the pleadings and evidence, plaintiff was not entitled to recover. Lewis v. Railroad, 49 Fed.

Quo Warranto. The respondent bas no sucb vested right in the office of circuit clerk and ex officio recorder of deeds as to prevent the county court from dividing the two, thereby creating the office of recorder of deeds separate and distinct from that of circuit clerk. R. S. 1899, secs. 9079, 9080.

— Hon. W. W. Bucker, Judge. (1) The defense of fraud set up in the answer converts the action in ejectment into a suit in equity. Lewis v. Eodes, 150 Mo. 498; Eidgway v. Herbert, 150 Mo. 606. In such an action with an equitable defense, the appellate court will weigh all the evidence and review the verdict. Eidgway v. Herbert, supra. The entire evidence is preserved and presented here, and appellants insist that on the weight of evidence they are entitled'to a decree.

— Hon. W. K. James, Judge. (1) Under the evidence in this case, the accident to the plaintiff resulted from one of the hazards and perils ordinarily incident to his employment as lineman.

Louis City Circuit Court. — Non-. Jas. E. Withrow, Judge. (1) The court erred in excluding testimony showing statements and directions of the testatrix respecting the plan of the buildings and structures and occupancy and usage of the lots.

— Hon. Edw. P. Gates, Judge. (1) This case was improperly referred to the referee. When any issue in a case is such that, standing alpne> it would be triable by a jury, the case can not properly be referred. The reference of such a case is a violation of section 28, article 2, Constitution. R. S. 1889, sec. 2138; Evans v. Kalbfleisch, 16 Abb. Prac. (N. S.) 13; Townsend v. Hendricks, 40 How. Prac. 143; Wheeler v. Ealconer, 30 Sup. Ot. (N. Y.) 45; Rose v. Combes, 37 Sup. Ct.

Louis City Circuit Court. — Ron. P. B. Bliicraft, Judge. (1) Local or special assessments for the construction of drains and sewers can not be levied upon property which does not abut upon the line of the sewer, and which can not connect with such drain or sewer except through private property. Gilmore v. Hentig, 33 Kan. 156; Beechwood Avenue Sewer, First Appeal, 169 Pa. St. 490; Park Avenue Sewer, 179 Pa. St. 433; Pittman v. Reading City, 179 Pa.

— Hon. Jno. P. Butter, Judge. (1) Tbe distributees, James S. and John M. Pound, assignees of widow, neither gave nor offered to give any refunding bond under section 239, R. S. 1899.-(2) Until final settlement in this ca^e, and the time for allowing claims has expired and all charges and demands have been settled and the only remaining duty of the executor is to pay out on final distribution, ean the executor be forced to distribute funds of the estate excepting where…

— Hon. D. TY Shackle-ford, Judge. Under the rule announced and adopted by this court in Bell v. Campbell, 123 Mo. 1, the threats of Piersol to prosecute plaintiff constituted duress. Earl v. Norfolk, etc., Co., 36 N. J. Eq. 192. The plaintiff, being influenced by the' threats of Piersol, is entitled to have the deed of trust cancelled for duress. Hensinger v. Dyer, 147 Mo. 219; Eout v. Geraldin, 64 Mo. App. 165; Turley v. Edwards, 18 Mo. App. 676.

<p>Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.</p> <p>(1) The plaintiff in his petition pleaded one cause of action and was permitted to recover upon another and different cause of action. Tarnell v. Railroad, 113 Mo. 570; Chitty v. Railroad, 148 Mo. 64; Waldheir v. Railroad, 71 Mo. 514; Mason v. Railroad, 75 Mo. App. 1; Hite v. Railroad, 130 Mo. 136; Milling Co. v. Transit Co., 122 Mo. 277; Melvin v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572. (2) The plaintiff, having alleged in his petition a specific act of negligence as a right of recovery, to-wit, a collision of trains, can not recover upon evidence showing an attempt to jump to escape or avoid an apprehended collision. McCarty v. Hotel, 144 Mo. 397; McManamee v. Railroad, 135 Mo. 440; Chitty v. Railroad, 148 Mo. 75. (3) The court committed error in modifying instruction 6 by striking out the clause, “from his seat.” Chitty v. Railroad, 148 Mo. 76, par. 2. (4) The damages awarded are excessive, unwarranted and indicate prejudice and passion on part of the jury. Ohitty v. Railroad, supra; Rodney v. Railroad, 127 Mo. 68; Waldheir v. Railroad, 87 Mo. 37, 49 Pac. Rep. 478; Berksen v. K. O. Cable Go., 144 Mo. 229; Hollenbeck v. Railroad, 141 Mo. 112; Sawyer v. Railroad, 57 Mo. 240; Adams v. Railroad, 100 Mo. 555; Furnish v. Railroad, 102 Mo. 438; Hurt v. Railroad, 94 Mo. 255; Gurley v. Railroad, 104 Mo. 211; Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Goetz v. Ambs, 22 Mo. 172; Whitsitt v. Ransom, 79 Mo. 260; Garrett v. Greenwell, 92 Mo. 125; Caruth v. Richeson, 96 Mo. 192; Carroll v. Railroad,-107 Mo. 653; State v. Railroad, 31 S. W. 263; s. c., 32 S. W. 33; Lily v. Menke, 126 Mo. 212; Slette v. Railroad, 53 Minn. 341; Peri v. Railroad, 87 Hun (N. Y.) 499.</p> <p>(1) Instruction 1, given on behalf of plaintiff, limits his right to recover to the facts stated in the petition, and is identical with the one given at the first trial and approved by this court on the former appeal. (2) In view of the ruling of this court on the instruction given at the first trial, relative to an attempt to escape, no instruction on that subject was asked or given at the last trial. (3) The issue presented to the jury by the instructions is clean cut as to whether plaintiff was injured in the manner stated in the petition, or by jumping from the car, as contended by defendant. (4) Instruction 2 on the measure of damages is the same as the one given on the former trial, and correctly lays down the rule in cases of minor plaintiffs. Rosenkranz v. Railroad, 108 Mo. 15; Schmitz v. Railroad, 119 Mo. 277. (5) The damages are not excessive. The accident occurred on April 3, 1893. Plaintiff was taken to the hospital in St. Louis on April 5 and kept there till January 20, 1894, nine months and fifteen days. He was'confined to his bed for six weeks. It was three months before he could get about on crutches, and for five months afterwards he was compelled to use them. Tie suffered pain continuously for seven months and has since suffered off and on for two or three weeks at a time. His ankle is stiff and the leg enlarged at the seat of fracture. Soon after his return from the hospital his leg began to fester and discharge matter, and this .has continued periodically every four or six weeks ever since up to the trial in March, 1900, nearly seven years. During all this time his limb has required constant bandaging. Dr. Ryder, who examined him in March, 1900, found a cicatrix on the inner side of the leg five by five inches with an open sore in the center, one inch by one and three-fourths inch, which he says is permanent and has the effect of impairing plaintiff’s general health. (6) The fact that this is the second verdict, rendered seven years after the accident on proof of plaintiff’s condition at that time, and four years after the first trial, that the case was tried before another judge and in a different county from the one in which the first trial was had, should be considered by this court in passing on the question of the ex-cessiveness of the verdict. Eullerton v. Eordyce, 144 Mo. 534. (7) Passion and prejudice will not be presumed from the amount of the verdict alone. Griffith v. Railroad, 98 Mo. 176. (8) Nor is the amount allowed by the jury proof of passion or prejudice. Benedict v. Railroad, 123 Mo. 242; Berkson v. Railroad, 144 Mo. 222. (9) Plaintiff’s injuries were not the result of an accident, but were caused by the careless, wanton recklessness of the agents of defendant, who owed plaintiff the duty of safe transportation to his destination.</p>

— Hon. A. M. Woodson, Judge. (1) While the rule is that it is the duty of the master to use ordinary care to furnish a reasonably safe place to work, and reasonably safe appliances with which to work, and that the servant may assume that this duty on the part of the master has been performed, it is qualified by the equally well-settled rule that the servant may not, as against his master, assume as true what he knows to be untrue, or what the ordinary care which he has…

— Hon. Edw. P. Gates, Judge. (1) The trial court, over defendants’ objections, permitted plaintiff to introduce in evidence the acts, declarations and statements of one legatee against the others, upon the theory that they were competent against the persons who made them. The court permitted alleged statements and declarations of one legatee to stand as evidence against the others. A will can not be set aside as to one, and sustained as to another.

— Hon. W. N. Evans, Judge. (1) In the absence of evidence or pleading that property in the name of a married woman, acquired during coverture, has been paid for by her separate means, the presumption of law is that it was paid for with those of the husband, and in such case it is not within the protection of the statute securing to the wife the money arising from the sale thereof or of her separate-means.

<p>1. Deed: best and secondary evidence. Where a deed can not be produced, its record should be offered, and parol evidence is inadmissible.</p> <p>2. Ejectment: interest of third persons. In ejectment, defendant can not show an outstanding equitable interest in a third person.</p> <p>3. Decree: reformation of deed: description. A decree, rendered in 1896, which reformed a deed of trust executed in 1890, by changing the description of the land conveyed so as to include the homestead of the grantor, speaks, as between the parties, from the date of the execution of the deed of trust; and the deed is not affected by the Act of 1895, forbidding the sale of the homestead by the husband without the wife joining therein.</p> <p>4. Ejectment: necessary parties: wife’s homestead rights. In ejectment, defendant could not defend his wife’s alleged homestead rights, where she was not a necessary party, and was not- made a party.</p>

<p>Appellate Jurisdiction: amount involved $3,795. Although appeal was taken prior to the Act of 1901, which gave the Courts of Appeals jurisdiction of appeals in cases involving not to exceed $4,500, yet if the ease was not submitted when that act went into effect, it will be transferred to the proper Court of Appeals.</p>

— Hon. E. L. Scarritb, Judge. (1) A judgment in a garnishment suit is dependant upon the judgment in the principal case. If the latter is void, reversed, or satisfied, the garnishment judgment shares the same fate. France v. Evans, 90 Mo. 74; McCloon v. Beattie, 46 Mo. 391; Smith v. Railroad, 49 Mo. App. 54; Hopkins v. Huff, 67 Mo.

Prohibition. (1) In 46 Mo. 529, tbe Supreme Oourt decided that an information in the nature of a quo warranto under the statute must show affirmatively that the relator has a title to the office if the defendant’s title be defective, and therefore must show that the relator possessed all the requisite qualifications for the office.

— Hon. B. 8. Byors, Special Judge. No record of an adjournment appears, from the August term, 1900, to the first Monday in October, 1900. This fact can only appear by record. Milan v. Pemberton, 12 Mo. 394; Dennison v. County of St. Louis, 33 Mo. 168; R. S. 1899, secs. 3603, 1604, 1605, 1679. In criminal causes jurisdiction can not be conferred by consent of the accused. City of Kansas v. Knott, 78 Mo. 356. An adjourned term can be held only in the way pointed out by statute.

— Hon. A. D. Bumes, Judge. (1) The motion to dismiss or quash should have been sustained. Indictment 1716, returned December 9, 1899, was an indictment against Dick Melvin and quashed the prior indictment 1709. R. S. 1899, sec. 2522. State v. Anderson, 96 Mo. 245; Austin v. State, 12 Mo. 393; State v. Vincent, 91 Mo. 665. Had Dick Melvin been arrested and arraigned under indictment 1716, a motion to quash could not have been sustained.

— Hon. John A. •Hockaday, Judge. (1) The trial court should have sustained defendant’s demurrer to the evidence, because there was an entire failure of evidence to show the guilt of defendant under either count of the indictment.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The word “to” according to Webster, is interpreted “as far as,” and Webster also defines “up till” as “to against.” Anderson’s Law Dictionary defines the word “to” to be a term of exclusion, unless by necessary implication it is used in a different sense.

— Hon. Argus Gox> Judge. (1) The court certainly erred in permitting Mrs. Ren Adams to testify with reference to an anonymous letter.

— Hon. K. B. Randolph, Special Judge. ' (1) The writing under which respondents claim title is testamentary in character and is therefore void as a deed. Under all the authorities an instrument of writing, to be good as a deed, must pass a present interest in the property. Where it takes effect and becomes operative alone upon the death of the maker, it is testamentary in character and insufficient as a deed.

Habeas Corpus. Tbe statute under which the petitioner is confined, is in violation of section 23, article 2, of the Constitution of Missouri, and of the fifth amendment to the Constitution of the United States. Counselman v. Hitchcock, 142 U. S. 547; State v. Quarles, 13 Ark. 307; State ex rel. v. Simmons Hdw. Co., 109 Mo. 118; Ex parte Green, 86 Mo. App. 216.

Louis City Circuit Court. — lion, H. D. Wood> Judge. The State failed to make a prima facie case because it failed to prove that Joseph Conley was an elector. The third instruction declared that if the name of Joseph Conley appeared on the registration book of that precinct, that fact, if proved, was prima facie evidence that said Conley was an elector and entitled to vote in the fifth precinct of the Seventeenth ward, and there was no evidence to rebut that presumption.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) Evidence on wbicb decree is based is incompetent. The record shows that Street and Hofmeister conducted the negotiations with Lange in question, that Lange is dead, and that Street and Hofmeister were stockholders and directors of plaintiff, and its agents in these very transactions, and were not competent witnesses. 1 Whart. Ev., sec. 466; Leach v. MeEadden, 110 Mo. 584; 1 Greenl.

— Hon. Frank R. Dearing, Judge. (1) The instruction asked hy defendant at the close of plaintiff’s case in the .nature of a demurrer to the evidence should have been given, because: The allegations of plaintiff’s petition that “the switch appliances used for the purpose of connecting the side or main or straight rail gave way and failed to act properly,” and the further allegation of said petition that “said switch, its rail and appliances supporting the roller, and the…

Prohibition. (1) The provisional prohibition can not be used as a writ of error, appeal or certiorari. State ex rel. v. Lewis, 76 Mo. 376; State ex rel, v. Thayer, 80 Mo. 440.

Prohibition. (1) Cuendet’s right to appeal to the circuit court of the city of St. Louis from the judgment of the probate court revoking his letters of administration is statutory.

— Hon. A. M. Wood-son, Judge. (1) The repeal of section 5537, Revised Statutes 1899, took out of the charter of cities of the second class the express requirements that such cities should have a city engineer. But there was left in that charter a plenary grant of power unto such cities to establish that office by ordinance, and when established, the duties of that office, so far as they are involved in this controversy, are prescribed by that charter.

— lion. John A. Uockaday, Judge. (1) The petition does not state the cause of action. Well-shear v. Kelley, 69 Mo. 343; State ex rel. v. Hoyt, 123 Mo. 348; Thompson v. Gardner, 10 Johns. 404; Lockhart v. Houston, 45 Tex. 317; 2 Desty on Taxation, 692 and 706-712; R. S. 1899, secs. 9246, 9247, 9253, 9273, 9315. (2) The collector’s taxbill read in evidence is not the bill required by law for personal taxes.