Volume 171 — Missouri Reports

Louis City Circuit Court. — Row.. Walter B, Douglas, Judge. (1) The indictment is fatally defective and does not state an offense. 1. The crime depends upon bribe being paid in consideration of vote, decision, opinion or judgment being corruptly given. 2.

Motion to Revive Canse and to Substitute Administrator as Appellant. (1) The circuit court, by the allowance of the appeal, lost jurisdiction of the case and its order reviving it in the name of the administrator was without jurisdiction, and void.

— -Ron. A. ill. Woodson, Judge. (1) The only ground specified by the court, as required by section 801 of the statutes, not waived and withdrawn by the respondent, on which the motion for a new trial was granted, is the opinion of the court that the constitutional amendment providing that three-fourths of the jury concurring could render a verdict, is invalid. Hence, the only material question arising on this appeal is as to the validity of the said amendment.

— Ro». W. W. Graves, Judge. (1) Courts do not look withi favor upon charlatans. Richard v. Judd, 15 Abb. Rep. 184. Weltmer’s business comes within the definition of a common fraud. Barr v. Baker, 9 Mo. 850; Thompson v. Cohen, 127 Mo.. 215; State v. Nevell, 1 Mo. 248. It is held not libelous to call a person who practices medicine without full medical qualifications a quack Or impostor, for the law only protects lawful employments.

Louis City Circuit Court. — Ho». H. D. Wood, Judge. (1) The petition states no cause of action. It states no facts showing any failure on the part of defendant to perform the contract on its part; nor any facts showing that the notice alleged to have been given to the trust company by defendant prevented plaintiff from receiving from the trust company either the shares of stock or $5,000 of the proceeds collected from the bonus subscriptions, particularly the latter.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The court erred in finding for the defendants in this case and in finding that Pinkney Sublette died prior to 1861, the date of the death of Fannie Sublette, the common source of title of both parties here. If Pinkney Sublette died subsequent to the date, then the plaintiffs, as his heirs, are entitled to recover, and the sole issue in this case is whether Pinkney Sublette died prior or subsequent to 1861.

<p>Appeal from St. Louis City Circuit Court. — How. H. D: Wood, Judge.</p>

— Eon. H. C. Pepper, Judge. (1) Appellant claimed and now claims that the application was a promissory warranty. When the fire occurred the warranty was broken and the policy at that time, by reason of the breach of warranty, was suspended and inoperative when the fire occurred. 1 May in Insurance (3 Ed.), sec. 156; 1 Biddle on Insurance, secs. 543, 557; Brooks v. Ins. Co., 11 Mo. App. 349; Glendale Woolen Co. v. Ins. Co., 21 Conn. 19; Bank v. Ins.

— Row. Jno. P. Butler, Judge. (1) A resulting trust must not be declared on doubtful evidence or even upon a mere preponderance of the evidence. There should be no room for a reasonable doubt, and the evidence that the purchase was made with the trust funds must be clear and unmistakable.

— Hon. E. M. Hughes, Judge. (1) The court'committed manifest error in giving -defendant’s sixth instruction. It stands upon precisely the same principle as the erroneous ruling of the trial court, for which the judgment was reversed upon the former appeal.

<p>1. Statute of Frauds: performance: grant: easement. Where a contract which the statute of frauds requires to be proven by writing has been clearly shown by oral testimony to have been made and to have been fully performed, the performance takes it out of the operation of the statute.</p> <p>2. Ejectment: against railroad: constructing switch. The separate owners of four lots, desiring to use them for wholesale houses, solicited the defendant railroad to put in a switch along the alley in the rear of the lots. The company declined to do so unless the owners would give a ten-foot right of way off of the ends of the lot for switch purposes, and- to this all the owners consented, and thereupon the city council granted the privilege to the company to put in the switch on condition that it would pave the alley. Thus the switch was constructed over the ten feet in suit. Held, that the permission given the railroad company to enter on the ten-foot strip, was not a mere license revocable at the will of the owner, but an agreement between the owners of the four lots and the company, granting to the company a permanent right of way over the strip for the switch track and its uses, and having been performed it vests an easement in the company for such purposes.</p> <p>3. -: -: AGREEMENT FOR CONSTRUCTING SWITCH: CONSIDERATION. The consideration for said agreement was the advantage that the owner of the lot judged would attach to his property by a railroad switch at the back door- of his wholesale house, where a car could be conveniently loaded or unloaded, and where like facilities would attach to the property of the other three adjoining lot owners, thus increasing the commercial utility and the consequent value of the property in the immediate vicinity, all of which in contemplation of law is a valuable consideration.</p> <p>4. -: -: -: community of interests. Such a contract was not one between the company and the owner of the individual lot, but between it and the owners of all four lots, since the company did not incur the expense of the switch and paving in the expectation of handling the freight from one lot alone, and the property owners on their part depended on each other to agree upon the terms for constructing the switch, without which unanimous agreement it would not have been built, and thus the promise of all became the consideration for the promise of each.</p>

<p>1. Statutory Partition: finding of fact. In an action under the statute for the partition of realty, where there is evidence tending to sustain the court’s finding of facts, the appellate court will not disturb that finding.</p> <p>2. -: -: deference to court’s finding. Where there is ample evidence in the case to support the court’s finding that the advancements by an intestate to a certain child aggregated a given sum, the appellate court will not convict the trial court of error because the same amount might have been reached by taking into consideration an unsigned memorandum improperly admitted in evidence. It will on the contrary, in such case, be presumed that the court followed the proper .evidence, and disregarded the improperly admitted memorandum.</p> <p>3. -: advancements: evidence. Plaintiff signed a statement wherein he admitted he had received from his father an advancement of 80 acres of land at $1,600, and 14 acres for $154, and was put into the possession of the land, and his father stated at the time he would not make him a deed then because he might wish to give him another eighty later. Afterwards he gave him a deed to 174 acres at the expressed consideration of $3,354, and in that deed included the eighty-acre tract and the fourteen-acre tract previously given, and another eighty, which at the same price per acre mentioned in the original receipt, would make the entire consideration of $3,354. It was admitted by all persons that the first eighty and the fourteen aeres were advancements and there is' no evidence, outside of the recital in the deed, that plaintiff ever paid his father anything for the last eighty or that it was a gift. Held, that it, too, was an advancement.</p> <p>4. -: -: ACCOUNTS: embraced in statement. Where a child signs a statement reciting the fact that up to that time he has received certain advancements in money and property, it will be presumed that certain prior claims for work done and personal property were taken into account.</p>

— Hon. E. J. Broaddus, Judge. Judgment was based on tbe Powell Case, 157 Mo. 151. In accordance with tbis opinion tbe court beld that plaintiff bad no title to tbe premises sued for and could not recover. Tbe cases of Broyles v. Cox, 153 Mo. 242, and In re Powell, 157 Mo! 151, bave been overruled. Keen v. Wyatt, 160 Mo. 1; New Madrid v. Brown, 165 Mo. 38.

— Hon. Jno. P. Butler, Judge. (1), The deed from Ellington to Martha O. Gunn, conveyed to the grantee the fee simple title to the real estate free and clear from the control, interference, curtesy and. other interests of her husband. It was designed by the grantor to create in the grantee a separate, equitable estate in fee simple; free from her husband’s control and curtesy, and nothing more. This has been done by the express language of the deed.

— Hon. Henry C. Riley, Judge. (1) The evidence fails to establish a resulting trust. ‘ ‘ Testimony as to verbal admissions of persons since deceased is to be received with great allowance, and whenever it is attempted to prove a resulting trust by virtue of such admissions, the testimony must be clear, strong and unequivocal and leave no room for doubt in the mind of the chancellor as to the existence of such trust. ” Johnson v. Quarles, 46 Mo. 423; Davis v. Green, 102 Mo.…

<p>Appeal from. Ray Circuit Court. — Sow. J. W. Alexander, Judge.</p> <p>(1) The line run by Banister in 1882 was an agreed line, as Kennedy at that time owned appellants ’ and Remelius owned respondent’s land, and both agreed on and employed Banister to survey and locate the line between the two tracts; and immediately after the line was located by Banister, both Kennedy and Remelius built the division fence thereon, Kennedy one-half and Remelius the other half, and from 1882 to 1898 there was no question raised about the line, but same was conceded to be the true, correct and agreed line. Respondent, as the grantee of Remelius, is bound by the agreements made and entered into by him. Blair v. Smith, 16 Mo. 273; Majors v. Rice, 57 Mo. 384; Turner v. Baker, 64 Mo. 218; Acton v. Dooley, 74 Mo. 63; Jacobs v. Moseley, 91 Mo. 457; Schad v. Sharp, 95 Mo. 573; Atkinson v. Pease, 96 Mo. 566; Krider v. Milner, ■99 Mo. 145; Smith v. McOorkle, 105 Mo. 135. (2) Acquiescence in an agreed line for more than ten years is binding on the parties and their grantors. Lindell v. McLaughlin, 30 Mo. 28; Coleman v. Drane, 116 Mo. 387; Jackson v. Smith, 9 John. 100.</p> <p>(1) The evidence in this case does not sustain the special defense of title by adverse possession as pleaded. Before one can acquire title by limitation, at least without color of title, his adverse possession must be actual, hostile, notorious, exclusive and continuous, for ten years under a claim of right. Sedgwick & Wait on Land Titles, secs. 729, 737, 740, 752; 3 Kerr on Real Property, sec. 2273, p. 2296; 1 Am. and Eng. Ency. of Law (2 Ed.), pp. 834-5; 2 Wood on Limitations (2 Ed.), sec. 269, p. 684; Wilkerson v. Eilers, 114 Mo. 254; Adkins v. Tomlinson, 121 Mo. 494; Ivy v. Yancey, 129 Mo. 508; Baber v. Henderson, 156 Mo. 573. (2) ‘ The evidence would not have justified the trial court in finding that Remelius and Kennedy agreed to permanently fix the boundary line dividing the northwest and the southwest quarters of said section seventeen on the Banister survey. The burden of proof devolved on defendants to establish this. The fact that Remelius and Kennedy at the time accepted said surveyed line as correct, believing it to be the true line dividing said quarters, would not preclude the grantees of either from claiming to the true line when subsequently ascertained, unless such survey had been acquiesced in for a length of time sufficiently long to warrant the presumption that said survey had been agreed upon as permanently fixing said boundary line. There is no presumption of surrender or waiver of rights under misapprehension; particularly, when the surveyed line is believed to be the true line and neither claims beyond the true line. 1 Jones on Real Prop, and Con. secs. 366-7; 4 Am. and Eng. Ency. of Law (2 Ed.), pp. 862-3; Knowlton v. Smith, 36 Mo. 513; Kincaid v. Dormey, 51 Mo. 553; McWilliams v. Samuel, 123 Mo. 662; Brummell v. Harris, 162 Mo. 404; Perkins v. Gay, 3 S. & R. (Pa.) 327; Brewer v. Railroad, 5 Meb. (Mass.) 478; Sanford v. McDonald, 53 Hun 263; Schraeder v. Packer, 129 U. S. 700; Hatfield v. Workman, 35 W. Ya. 578; Davis v. Russell, 142 Pa. St. 426; Crawford v. Abrues, 103 Mo. 94; Pinch v. Ullman, 105 Mo. 264.</p>

Circuit Court . — Eon. P. C. Stepp, Judge. (1) The plaintiff’s right to recover depends solely upon contract. The petition proceeds upon this theory and states the contract and its terms with much particularity. The plaintiff, being illegitimate, has no legal or equitable rights to any part of the estate of his father, unless he has established the express contract upon which he sues. Bent v. Vrain, 30 Mo. 268; Dyer v. Brannock, 2 Mo. App. 432; Easley v. Gordon, 51 Mo.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The court erred in refusing defendant’s sixth instruction. Defendant was allowed no opportunity to be heard as to the benefits to his property from the improvement made, and the assessment and taxbill issued therefor are in direct violation of the Constitution of the United States. U. S. Constitution, 14 Amendment, sec. 1; Wilson v. Trenton, 61 N. J. L. 599; 16 Am.

Louis City Circuit Court . — Hon. Wm. Zachritz, Judge. (1) No effort Las been made to lease tbe property, and, therefore, no impossibility can be said to exist. There must be shown such impracticability as will evidence, from real, earnest effort, a substantial impossibility. Lackland v. Walker, 151 Mo. 266. (2) Mere probable advantage is not sufficient.

<p>1. Contract: varied by verbal agreement: delivery. A party can not recover upon an oral agreement made before a written contract which bars recovery became complete by delivery.</p> <p>2. -: -: -: subsequent parol contract: case stated. Plaintiff had lost his arm while working in defendant’s laundry, and afterwards in consideration of a payment to him of his wages of ten dollars a week for two months and a promise by defendant to give him employment whenever it pleased defendant to do so, executed a complete release for all damages, but before that written contract was delivered, the company by parol agreed to pay him $200 and to give him employment for life at $10 per week. The release was delivered after these new terms of settlement and employment were orally agreed to, and the $200 were paid and plaintiff was given employment for about eight years at $10 per week, but was then discharged, and now sues for the 77 weeks which have since intervened. Held, that as the oral promise for employment is in direct conflict with the release delivered subsequent to the making of the promise, plaintiff can not recover, the rule of law being that evidence of a contemporaneous or prior paro] agreement is inadmissible -to contradict or vary the terms of a valid written instrument. Inasmuch as the written agreement became complete by delivery after the oral agreement was made, the written agreement abrogates the prior oral agreement. But had the petition charged that the written agreement was completely entered into but was changed by a subsequent oral agreement, it would have stated a cause pf action.</p>

— Ucm. Jno. P. Butler, Judge. (1) Plaintiff’s right was founded upon a marriage contract or settlement in contemplation of marriage. It was incumbent on her to show that she had complied with its terms on her part, and it was error to strike out that portion of defendants’ answer pleading non-performance, abandonment and adultery. York v. Fenner, 59 Iowa 487, 13 N. W. 630; 1 Washburn’s Real Prop. (3 Ed.), p. 227.

— No». E. P. Gates, Judge. Baumbaugb did not acquire actual or constructive possession of any of the cattle on or before October 14, 1898. (a) He never, personally, at any time bad possession. Claflin v. Rosenberg, 42 Mo. 449; Swiggett v. Dodson, 38 Kan. 707; Harris v. Pence, 93 Iowa 48, 61 N. W. 927. (b) Nor did Baumbaugb ever bave any constructive possession of tbe cattle.

— Ho». Jos. D. Perkins, Judge. (1) The defendants were operating and controlling the mine at the time they made the contract with Raynes to dig the ore and put it in the tub for one-half of the proceeds; they did not release full control of the mine to Raynes, the contract was for their mutual benefit, they were contractors with each other, and the defendants being the parties furnishing the instrumentalities (in this case the place where plaintiff’s husband was required to…

<p>Contributory BTegligence: railroad crossing: looking: apprehending danger. Plaintiff’s husband, who was approaching a railroad crossing over a public street, may have seen defendant’s train which had crossed the street, the end of its last car having passed 120 feet beyond, and may have naturally inferred that it would continue to go that way, but instead, a car was detached and kicked back to make a flying switch on the other side of the street, and a second car, thus detached and driven back, without any switchman thereon, struck him and killed him. There was nothing to prevent him from seeing the train as far as it went, and had he looked he could have seen the approaching ear in ample time to have avoided the accident, but instead of doing so he looked the other way, and did not look towards the coming car until it was actually upon him. Held, first, that, if the trainmen saw deceased going headlong into danger with every indication that he was either oblivious to the situation or reckless of the consequences, the duty devolved upon them to make an effort to avert the accident; second, as there was no reason to suppose the man would act in that way, as he was coming directly towards the track in his buggy, with an unobstructed view, and nothing in his conduct to lead them to infer that he did not see the detached car, they had a right to infer that he did see it, and that he would stop in time to avoid a collision; therefore, their failure to stop the car under those conditions was not such wanton disregard of human life as would render the defendant liable in spite of the contributory negligence of the plaintiff’s husband, and these facts being shown by plaintiff’s witness, a demurrer to plaintiff’s case should have been sustained.</p>

Mandamus. (1) If there was nothing in the statutes on the subject but the words quoted in respondent’s brief, viz.: “to pay an incorporation tax or fee equal to those required of similar corporations formed within and under the laws of this State,” respondent might possibly be correct.

— Now. W. W. Wood, Judge. (1) Plaintiffs having alleged specifically that they claimed title through Sarah W. Snyder, must he confined in this action to said specific charge, and can not recover upon any other alleged cause of action not pleaded.

— Hon. E. P. Gates, Judge. The court below tried this ease and instructed the jury upon the theory that this Case fell within the provisions of Revised Statutes 1899, section 7890. (a) The statute applies to misrepresentations merely, not to warranties such as those contained in the health certificate.

<p>1. Appellate Jurisdiction: county as a party. The appeal where a county is a party is to the Supreme Court.</p> <p>2. Circuit Clerk: fees: settlements: mistake as to law: after separation from office of reoorder. Where a circuit clerk under a mistaken view of the law as to his right to the fees earned by him before but collected after the separation of the offices of circuit clerk and recorder, makes a settlement with the county court, in pursuance of which he pays into the county treasury all the fees earned by him prior to the separation, and thereby did not retain enough fees to pay his own salary for the period covered by the settlement, he can not, in a suit against the county, recover such fees.</p> <p>3. -: -: -: -: -: RETAINING FEES SUBSEQUENTLY collected. Fees earned by a circuit clerk when collected by him or his successor, or by the sheriff or his successor, may be retained by him until the salary allowed him by law has been paid, although not collected when he makes settlement with the county court showing how much fees he has earned during the period covered by his settlement. The fact that he paid into the county treasury fees which at that time he was entitled to retain does not prevent him from holding back the amount from fees afterwards collected, hut he can not recover such amount from the county because, under a mistaken view of the law as to his right to such fees, he turned them over to the county treasurer.</p>

— lion. W. N. Evans, Judge. (1) The court erred in permitting W. P. Collier to próve his own agency for his wife, the defendant herein. There is no reason why the defendant should not or could not have been present and testified in her own behalf. She, no doubt, could have thrown some light on the subject. Basye v. Railroad, 65 Mo. App. 476, and authorities cited; Scrutchfield v. Sauter, 119 Mo. 615; Sanford v. Pollock, 105 N. T. 450.

— Hem. Jas. E. Ha-sell, Judge. (1) The information is sufficient. State v. Aguila, 14 Mo. 130; State v'. Hays, 78 Mo. 307; State v. Tucker, 84 Mo. 23. (2) The house mentioned in the evidence, a room of which was occupied by James P. Thompson, was a dwelling house within the meaning of the statute. State v. Jones, 160 Mo. 302. So the shed part of the house to which the fire was set was a part of the- dwelling house. State v. Hutchinson, 111 Mo. 257.

— Ho». E. A. Vinson-haler, Special Judge. (1) The deed, on its face, created in plaintiff and defendant an estate by the entirety. Pomeroy’s Equity Jurisprudence (2 Ed.), sec. 1376; Bispham’s Principles of Equity (5 Ed.), see. 469.

<p>1. Suit to Enforce Vendor’s Dien: necessary parties. Where one has conveyed land to a trustee for the use and benefit of his wife, such trustee and wife are not necessary parties to a suit to enforce a vendor’s lien against the land which existed at the time the land was conveyed to the trustee. The judgment to enforce the lien in a suit brought against the grantor in the trust deed alone is sufficient to entitle the purchaser at the execution sale under such judgment to bring an action for possession.</p> <p>2. -: -: notice. Such vendor’s lien being expressed in a deed recorded at the time the grantor conveyed to the trustee,- the trustee and the beneficiary had constructive notice thereof, and took subject to that lien.</p> <p>3. -: -: subsequent bights op benepiciary. A vendor’s lien reserved in the deed is in the nature of an equitable mortgage, and in law is governed by the same rules as a recorded mortgage executed according to the statute, and if the grantee subsequently conveys such lands while such lien is existent to a trustee for the use and benefit of his wife, the only effect of a failure to make her and the trustee parties to a suit to enforce the lien is to leave her right to redeem still open.</p> <p>4. Erroneous Judgment: collateral attack; no description op LAND IN JUDGMENT: AIDED BY OTHER RECORD MATTERS. An erroneous judgment will not be held to be void in a collateral attack, and if there is enough in the whole record to show that a judgment could have been corrected after its rendition had proper steps been taken to do so, it will not be held in ejectment to be void.</p> <p>5. -: -: -: -: proceeding in rem: case stated. In a ease to enforce a vendor’s lien, the judgment was defective for failure to describe the land, and there was no personal service upon the grantee, and hence the judgment as a personal one is absolutely void, but the petition correctly described the land, and on the back of it was endorsed: “Petition for vendor’s lien . . . Order of publication . . . Attach order of publication and take judgment by default for balance, $1,512.45.” Held, first, that the court being one of general and common law jurisdiction, if nothing appears in the record showing a lack of jurisdiction over the res, jurisdiction will be presumed as a matter of law when the judgment for a vendor’s lien against the land described in the petition is collaterally attacked; second, that a conclusion of a lack of jurisdiction cannot be drawn from the judgment alone; third, for the purpose of enforcing a vendor’s lien against the land it was only necessary to give the defendant notice, by publication; fourth, as the excerpts given do not show that they constitute the whole record in the ease and as the memorandum on the petition tends to show that the full record may have shown that publication was duly made and proof thereof duly filed, the judgment was not subject to collateral attack, and must be held to carry the title.</p>

— How. Geo. F. Longan, Judge. (1) The indictment is not good, and motion to' quash should have been sustained in each ease. -The indictment says: “did then and there unlawfully-amL feloniously have carnal knowledge of and abuse.” which should read, “did carnally know and abuse.” State v. Knock, 142 Mo. 522; State v. Burnes, 126 Mo. 565; Bishop’s Directions and Forms, sec. 907.

<p>This is a companion case of State v. Hunter, found at page 435 et seq. of this volume.</p>

<p>1. Appellate Jurisdiction: constitutional question: must be properly raised. A mere allegation in the petition that the acts done and threatened to be done by the defendant are unlawful for the reason that they are in violation of the Constitution, does not so involve a constitutional question as to give the Supreme Court jurisdiction over the appeal. It is only when .a constitutional question has been properly raised and passed upon by the trial court, and ruled upon adversely to the party appealing, that the Supreme Court acquires jurisdiction of the appeal on account of a constitutional question being involved.</p> <p>2. -: -: DISMISSAL FOR FAILURE TO PROSECUTE. Plaintiffs brought suit in term time, asking that defendant city be enjoined from holding an election for the purpose of establishing an electric light plant, and alleging that the acts threatened to be done by the city were in violation of their constitutional rights. Summons issued and was made returnable, not to the next term, but- to the term after the next term. Defendant at once entered its appearance, and filed an answer, and a motion asking for hearing during that term, which being sustained and the cause set down for a day certain, plaintiffs moved to set this order aside, which was also overruled, and the day for trial coming on and the plaintiffs coming not the court dismissed the petition for want of prosecution, and from an order refusing to set aside the dismissal, plaintiffs appeal. Held, that there is no constitutional question in the ease, but the only questions are whether or not the case was properly dismissed, and whether or not the ease was triable at the same term at which summons issued.</p>

— No». L. B. Wood-side, Judge. (1) Tender of the debt and interest secured by deed of trust, though made after .default, releases the mortgage lien. Farmers’ Fire and Loan Co. v. Edward, 26 Wend. 541; Kortright v. Cady, 21 N. T. 343; Thornton v. Bank, 71 Mo. 221; State ex rel. v. Ross, 136 Mo. 259; Phillips v. Bailey, 82 Mo. 639; 4 Kent’s Com. (10 Ed.), 228; McClung v. Trust Co., 137 Mo. 106. (2) Plaintiff was not bound to bring the money into court.

Prohibition. (1) A resort to a court of equity to set aside or annul a title at law is a direct attack upon that title, and the judgment will affect the title. Edwards v. Bail-road, 148 Mo. 516. A proceeding in equity which brings the holder of the legal title before the court for the purpose of charging his land with a demand to which he is a stranger, directly affects and involves the title.

<p>Ho Exceptions: correct record. Where there is no bill of exceptions and no error in the record proper, the judgment will be affirmed.</p>

— No». Samuel Davis, Special Judge. (1) The right to he present in all criminal prosecutions includes the right to be present when the grand jury is impaneled, and can not be confined to the hour and place of actual peril when the accused shall stand before the petit jury. State v. Warner, 65 S. W. 584; State v. Kyle, 166 Mo: 287; Thom, and M. on Juries, sec. 497; 1 Chitty’s Grim. Law, 314.

- — Now. Jno. W. Wofford, Judge. (1) “On the charge of embezzlement by agent or bailee, the agency or bailment must be proved.” State v. Myers, 68 Mo. 266; State v. Dodson, 72 Mo. 283. (2) We do not dispute what constitutes the crime o'f embezzlement, as defined by this court in State v. Cunningham, 154 Mo. 180, and it is immaterial to what wrongful use the money or property is intended.

— Hon. W. W. Graves, Judge. (1) The ease should have been continued on the application of defendant. One of the defenses was defendant’s insanity. To prove this he had made an effort to obtain the testimony of Judge Dudley, Doctor Black, Ms former wife, Mrs. E. G. Seligson, Ms daughter, and Dr. Rhodes. These witnesses lived in different parts of the country and had known defendant under different circumstances.

— No». Jno. P. Butler, Judge. (1) Instruction 2 for the State is erroneous in omitting the word “willfully.’’ In omitting this word, the offense of murder in the second degree was not correctly defined. This is reversible error.

— Hon. Samuel Davis, Special Judge. The court erred in overruling defendant’s application for a continuance. The application showed due diligence. R. S. 1899, sec. 2600; State v. Warden, 94 Mo. 649; State v. Dewitt, 152 Mo. 76; State v. Bradley, 90 Mo. 160. The court should have heard evidence in support of defendant’s application for a change of venue. R. S. 1899, sec. 2576; State v. Bohannon, 76 Mo. 562.

— Hon. W. W. Graves, Judge. (1) The separation of the jury after the trial and final submission of the cause to them, when returning from the courtyard and passing through the courtroom and anteroom and on the stairways on their way to the jury room, especially when a part of the jury was led by Franklin, the disqualified sheriff, was error, and no evidence should have been admitted on the part of the State to show that no improper influences were brought to bear upon them…

— Ho». Argus Cox, Judge. (1) Defendant interposed an objection to the introduction of any evidence in the cause and alleged as a reason therefor that the information was not sufficient on which to base the prosecution. The sufficiency of the information or indictment can not be raised by an objection ore terns to the introduction of testimony. State v. Meyers, 99 Mo. 107; State v. Duncan, 116 Mo. 296; State v. Risley, 72 Mo. 609.

— Ho». E. R. McKee, Judge. (1) After defendant’s conviction, he, in due time, filed a motion for a new trial, which was by the court overruled. But defendant saved no exception to the 'action of the court in this regard. Having failed to except to this ruling of the court and to save his exception, he must be deemed to have waived any possible ■objection thereto, and to have acquiesced therein. There is, then, nothing before this court for review, except the •record proper.

— Hora. J. W. Alexander, Judge. No bill of exceptions has been filed in this case and we have nothing except the record to pass upon. Defendant was indicted upon the charge of robbery committed against one John P. Cox, on April 18, 1901, at Livingston county, Missouri. The amount of money taken from the prosecuting witness is charged in the indictment as being one dollar and seventy cents, lawful money of the United States.

— Hon. Jno. W. Wofford, Judge. (1) Appellant called as a witness diaries H. Dorton, and offered to prove that M., H. Allen on September 21, 1901, passed a forged check on him, and that appellant was not the person. The rejection of such offered evidence was error. State v. Bailey, 94 Mo. 311; State v. Murray, 91 Mo. 104; State v. Yaeger, 66 Mo. 180; State v. Patrick, 107 Mo. 154.

— Hon. Henry G. Pepper, Judge. (1) The indictment follows the language of the statute creating the offense for which defendant was being tried. Every element constituting the crime is alleged. It fully meets all the requirements of good pleading. State v. Knock, 142 Mo. 522; Ballerson v. State, 63 Ind. 531; State v. Burries, 126 Mo. 565; State v. Johnson, 93 Mo. 317; 2 Bishop’s New Crim. Pro., sec. 960. (2) The State proved every element necessary to constitute the offense.

Lawrence Circuit Court. — Eon. E. C. Pepper, Judge. (1) The verdict was against the evidence and the weight of the evidence. Where the evidence is preserved in the bill of exceptions, the appellate court will inquire whether the verdict is against the evidence. State v. Fritterer, 65 Mo. 422; State v. Clarkson, 96 Mo. 364.

<p>Ho Errors: aítirmance. Where the indictment is properly drawn, and the instructions are free from objection and cover every phase of the case, and there is no error in the admission or exclusion of evidence, the judgment will be affirmed.</p>

Louis City Circuit Court . — Ron. Walter B. Douglas, Judge. The transaction, according to the weight of the evidence, was a loan. If, however, it was an agency to invest the fund, any investment, however unwise, would disprove an embezzlement, if made in good faith. In this connection the youthfulness and inexperience of defendant, and the consequent overconfidence in himself and in others, are to be taken into consideration.

Louis City Circuit Court. — Ho». E. D. Wood, Judge. (1) Tire court erred in failing to instruct the jury as to good character of the defendant.

Transferred from St. Louis Court of Appeals. (1) The court erred in rejecting the testimony in reference to transactions between defendant Obear and Chew in reference to sale of property purchased by Chew. High on Inj. (2 Ed.), sec. 748, sec. 1549, p. 1178; Kerr on Inj. (2 Ed.), sec. 25, p. 25; Michael v. St. Louis, 112 Mo. 610; 7 Am. and Éng. Ency. of Law, 18; Midland L. Co. v. Kruger, 52 Mo. 418; Longworth v. A slip, 106 Mo. 155; Pelkinton v. Ins. Co,, 55 Mo. 172.

Louis City Circuit Court . — Hon. O’Neill By an, Judge. (1) Persons accused of crime still have the right to be informed of the nature of the charge against them in clear, consistent and unambiguous averments, notwithstanding any statutes to the contrary. State v. Ferry, 109 Mo. 601; State v. Evans, 128 Mo. 406; State v. Furgerson, 152 Mo. 92.

— How. Nat. M. Shelton, Judge. Is the indictment sufficient? It does not use the word, “with,” in charging the assault made with revolver and bullet. It would have been better pleading to have inserted the word, “with,” in its proper place instead of eliminating it as was done here; yet we do not think the indictment defective as drawn when considered as a whole. State v. Ferguson, 152 Mo. 92; Shay v. People, 4 Perkin’s Criminal Cases 353; State v. Burns, 99 Mo. 471.

Louis Court of Criminal Correction.— Hon. Willis H. Clark, Judge.

— Ho». E. P. Gates, • Judge. (1) The court erred in overruling defendant’s ■demurrer, (a) Because the alleged acts of negligence on defendant’s part are not shown to be the proximate cause of the injury, (b) The evidence shows contributory negligence of the most flagrant character on the part of the plaintiff.

Louis City Circuit Court. — No». Jacob Klein, Judge. (1) The court erred in not permitting the jury to pass upon the evidence. The question of the contributory negligence of the plaintiff was a specific issue in the case, and the jury, and not the court, must determine that question. This is the settled rule in this State where the evidence, although small, tends to support the allegations of the petition- or any material part of the same.

<p>1. Administration: suit for personal property: pleading. A petition by the administrator pendente lite charging that the executrix turned over to trustees under the will personal property of the value of $5,800, without stating what said personalty consisted of, does not tender an issue entitling such administrator to recover such property from the trustees. There is no such description of the property as would support a judgment.</p> <p>2. -: -: administrator pendente lite. An administrator pendente Ute has no greater power than a regular administrator, and no more comprehensive title. He is to do, while his office lasts, whatever an administrator should do to protect the interests of the estate for those who are entitled to its benefits, no more, no less.</p> <p>3. -: -: -: right to rents. Neither an administrator pendenlte lite nor the regular administrator has any authority over the real estate of decedent, or to the rents arising therefrom, unless there is an insufficiency of personalty to pay the debts, and an order of the probate court, reciting that fact, directing him to take control of the real estate and use it to pay allowed demands.</p>

Transferred from St.' Louis Court of Appeals. (1) Husband and wife can contract together the same as individuals. Seay v. Hesse, 123 Mo. 463. (2) A debt dne a wife from a husband stands on as good a footing as a debt due any other person, and she may be given a preference over other creditors. Bank v. Winn, 132 Mo. 80; Hart v. Leete, 104 Mo. 337; Seay v. Hesse, 123 Mo. 450; Scott v. Klein, 61 N. W. (W.' Ya.) 918; MeQuown v. Law, 18 111.

— Now. Gallatin. Craig, Special Judge. Eebecca Graham, widow of Wm. M. .Graham, appellants’ ancestor, by joining in the deed of date February 4, 1848, and returning to Virginia, abandoned and destroyed her right of quarantine, and plaintiffs are barred from a recovery by the lapse of time. Quick v. Eufe, 1.64 Mo. 408.