Volume 196 — Missouri Reports

—Hon. Wm. L. Jarrott, Judge. (1) The contract sued on was not procured by fraudulent misrepresentation of values. It was open and fair. (2) At the time of the making of the contract of sale defendants were not relying on the plaintiff. (3) Mere inadequacy of consideration constitutes no defense to a hill for specific performance. Harrison v. Town, 17 Mo. 237; Seymour v. Delaney, 3 Cowen 505 ; Osgood v. Franklin, 2 Johns.

<p>1. EVIDENCE: Contradicting Witness: Immaterial Matter. When a question asked a witness is 'merely an attempt to contradict the witness on an immaterial matter haying no bearing on any issue in the case, an objection to the question is properly sustained.</p> <p>2. BURGLARY: Aiding and Assisting: Alibi: Instruction: Evidence. Where defendant testifies that he was not present at the time and place of the burglary, he is not entitled to an in struction to the effect that although the jury might believe he was present at the time, yet they could not convict him unless they further found that he was aiding and abetting some other person in the commission of the burglary. And in this case the point presented in the instruction requested by defendant had already been covered in an instruction given by the court.</p> <p>3. REMARKS OF ATTORNEYS: No Exception: Affidavits. Alleged improper remarks of attorneys can not be preserved by affidavits, but only by bill of exceptions.</p>

—How. Jas. J. Gideon, Judge. (1) Instruction 1 does not properly declare the law. It was essential that the jury should he required to find, not only that the defendant intentionally made an assault upon the prosecuting witness, but also that at the time of making the assault he did so with the intent to deprive the owner of his property.

—Hon. F. C. Johnston, Judge.. It appears from the transcript of the record filed in this cause that sentence was not pronounced hy the court upon the defendant, nor was judgment rendered upon the verdict of the jury. The record being in this condition, there is nothing before this court for review. State v. Holland, 160 Mo. 668; State v. Gullic, 170 Mo. 334; State v. Hesterly, 178 Mo. 43.

—How. Wm. H. Martin, Judge. The evidence is wholly insufficient to sustain the verdict and the instruction in the nature of a demurrer to the evidence, asked by the defendant at the close of the State’s case in chief, and again at the close of the whole case, should have been given. State v. Jones, 106 Mo. 312; State v. Scott, 177 Mo. 672; State v. Mahan, 138 Mo. 112; State v. Marshall, 47 Mo. 378.

Transferred from St. Louis Court of Appeals. (1) The New York cases furnish the only direct authority. People v. Herlihy, 73 N. Y. Supp. 236, 170 N. Y. 584; People v. Diamond, 76 N. Y. Supp. 57. (2) Keeping a hawdy house is an indictable misdemeanor in the city of St. Louis. G. S. 1865, chap. 206, sec. 19; State v. Clarke, 54 Mo. 17; State v. DeBar, 58 Mo. 395; State v. Lewis, 5 Mo. App. 465; Laws 1879, p. 89; R. S. 1899, sec. 2197.

—How. Jno. T. Moore, Judge. (1) There is no evidence, fact or circumstance in the whole case upon which a conviction can stand. The evidence, both for the State and for defendant, makes out a complete, absolute, perfect case of self-defense. (2) We challenge the State to find in this record one iota of evidence, any fact or circumstance, that would in the remotest degree authorize or justify the giving of the qualified instructions on self-defense.

<p>BILL OF EXCEPTIONS: Not Signed. Where the purported bill of exceptions is not signed by the judge who tried the case, there is nothing before the appellate court but the record proper, and if that is free from error, the judgment will be affirmed.</p>

<p>BILL OF EXCEPTIONS: Not Filed in Time. Where the hill of exceptions is not filed within the time allowed, there is nothing for the appellate court to review hut the record proper, and if that is free from error, the judgment will he affirmed.</p>

Francois Circuit Court.—Eon. Chas* A. Killian, Judge. (1) The motion to discharge the defendant should have been sustained. Secs. 2641, 2642, 2643, 2644, R. S. 1899; Brooks v. People, 88 111. 327. (2) It was error for the prosecuting attorney to ask witnesses for defendant if they were not charged with the crime of robbery. It is elementary that a mere charge is no evidence of guilt.

<p>LARCENY: From Person in Nighttime: Evidence. Evidence held sufficient to justify a conviction of larceny from the person in the nighttime.</p>

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

—How. Jno. W. Wofford, Judge. (1) (a) It is not a valid objection to the information that it charges the assault to have been made and the wounds to have been inflicted by the use of more than one weapon. State v. Blan, 69'Mo. 319; State v. McDonald, 67 Mo. 13; State v. Thomas, 99 Mo. 235.

—Hon. Howard Gray, Judge. Defendant did .not intend to force compliance with his desire at all hazards regardless of prosecutrix’s resistance, and therefore he is not guilty of the crime charged. State v. White, 52 Mo. App. 285; State v. Hayden, 141 Mo. 311; State v. Riseling, 186 Mo. 521; State v. Scholl, 130' Mo. 396; State v. Owsley, 102 Mo. 678. The evidence was sufficient to justify a conviction of defendant of the crime charged.

Louis City Circuit Court.—Uo». Robt. M. Foster, Judge. (1) Where a party can reasonably under the circumstances protect himself from a false pretense, be should do so. Com. v. Grady, 13 Bush (Ky.) 285; State v. Green, 7 Wis. 676; Buckalue v. State, 11 Tex. App. 352; Com. v. Gray, 76 Ky. 285; Com. v. Hutchinson, 2 Par. (Pa.) Sel. Eq. Cas. 309; Com. v. Haughty, 3 Mete. 223; State v. Young, 76 1ST. C. 258; State v. Norton, 11 Allen (Mass.) 266; Henshaw v. Bryant, 4 Scam. 109.

— Hon. Jno. T. Moore, Judge. (1) The copy of the information as served upon defendant was not certified to by the clerk of the conrt, and for that reason gave no notice to him of the charge against him. E. S. 1899, sec. 2558; State v. Schmidt, 137 Mo. 266. (2) The verdict is against the evidence.

—lion. Wm. N. Evans, Judge. Confessions made to a minister or priest in his official character and for the purpose of procuring spiritual advice are not admissible for any purpose. R. S. 1899, sec. 4659; Martin v. Bowden, 158 Mo. 379. (1) The information is sufficient to charge defendant with the crime of manslaughter, the crime of which he was convicted. While it dues not use the closing form “on his oath aforesaid,” yet in its present form it charges manslaughter.

Francois Circuit Court.—No». Samuel Davis, Special Judge. (1) The information, which was duly verified, is sufficient in form and substance. It is fully up to the requirements of the statute, and informations and indictment's similar to it have been approved. R. S. 1899, secs. 2033 and 2039; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414.

—Hon. J. W. Alexander, Judge. (1) Defendant was charged with taking a specific amount upon a specific day from an incorporated company, being charged under the general embezzlement act. It should not have been permissible to offer evidence of smaller amounts for any other reason than to characterize the taking of the specific amount set forth in the information.

Habeas Corpus. The second sentence was void, The criminal court had no jurisdiction of the person of petitioner at a sueeeeding term from that when sentence passed, as petitioner was in contemplation of law in a custody different from that of the criminal court. There is no authority in law for the trial of a prisoner under sentence, until after such sentence has expired. It is against the law and prohibited by the law. State v. Buck, 120 Mo. 479.

—Hon. J. W. Alexander, Judge. (1) The area of the action and benefit of the Aull Fund is at and within the territory of the city of Liberty as fixed by section 1, article 1, of the Act of February 27, 1851 (Laws 1851, p. 98)—one square mile— and within two miles of the territory embraced in the city of Liberty. The area of the action and benefit comprises 21.56 square miles.

—Hon. Andrew F. Evans, Judge. (1) There must be a reversal of the judgment for the brick company. There were four distinct judgments rendered against appellants, the sureties upon the contractor’s bond—one for $5,132.25, in favor of the brick company, and separate judgments in favor of each of the three interveners, aggregating $2,937.86.

—How. J. W. Alexander, Judge. It was the duty of the sheriff, as trustee, to act for the interests of all parties. When requested by a party in interest, he should have sold in parcels, and not have sold more than was necessary to pay the debt and expenses. Plaintiff was entitled to have his interest in land and not have it converted into cash, against his protest.

— Hon. J. H. Slover, Judge. (1) The trial court should have directed a verdict for defendant. 1. There was no evidence tending to show negligence on the part of defendant. The mere fact that an accident occurred does not raise a presumption of negligence on the part of the defendant. It was necessary that plaintiff establish, by substantial evidence, his allegation of negligence on the part of defendant, which he failed to do.

—No». Samuel Davis, Judge. (1) The lease contains a clause of forfeiture for the failure to perform any of its conditions and the ten days notice of forfeiture was served on Ga.ffin by tbe sheriff. (2) Plaintiffs’ instructions should have been ■given, and the judgment should have been for plaintiffs.

Louis City Circuit Court.—Eon. Jno. A. Blevins, Judge. (1) The exclusion of Green’s testimony was error. Clark v. Thias, 173 Mo. 628; 30 Am. and Eng. Ency.. Law (2 Ed.), 1046. (2) The exclusion of Green’s testimony injured plaintiff. Cole Co. v. Madden, 91 Mo. 585. (3) The arrangement made by the trustee with purchasers who had no interest in the proceedings save to speculate on a good bargain ought to cause a reversal of the judgment. Cassidy v. Wallace, 102 Mo. 581.

'Appeal from St. Louis City Circuit Court.—Rom.. D. D. Fisher, Judge. (1) There was no consideration for MacDonald’s promise to Dexter. A bill in equity does not lie to enforce the performance of a voluntary promise of a gift. Brevator v. Creech, 186 Mo. 558. The option from Latinette to Allen had expired prior to the purchase by MacDonald and MacDonald purchased directly from Latinette with his own money, taking title in his own name, as he had a right to do.

<p>1. TAX SALE: Apparent Owner: Notice of Actual Owner. In a suit for taxes, brought against the apparent or record owner, the purchaser at the tax sale does not take the title if he had actual notice at the time of the sale and conveyance to him by the sheriff that such apparent owner was not the real owner.</p> <p>2. -: -: -: What Is Actual Notice. Actual notice that the apparent' owner is not the real owner is used in contradistinction to the constructive notice imparted by the record of a conveyance. It does not mean direct evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show that the apparent owner was not the real owner, such as notice of actual possession, or facts and circumstances coming to the knowledge of the purchaser such as would put a man of ordinary circumspection upon his inquiry, will amount to actual notice.</p> <p>3. -: -: -: -: Facts in Evidence.. Plaintiff lived in Kentucky and had bought the land from a corporation, but had not recorded his deed. His Missouri agent testified that he told one of the defendants that plaintiff claimed the land and said lie had a deed to it, "hut the deed was not recorded; and that defendant testified that the agent told him, before he had purchased the land at the sheriff’s sale, that plaintiff had told him (the agent) that he had a deed to the land, but that it was not recorded, and that plaintiff had requested him (the agent) to pay the taxes and call on him for the amount. That defendant also testified that he hnew plaintiff “claimed to own the land,” but that the other defendant, who was a clerk in the office of the circuit clerk, told him “there was no deed on record,” and they agreed to buy it together, and this other defendant advanced the fee to the sheriff for serving the writ on the corporation, the apparent or record owner. Held, that both defendants were, under the circumstances, put upon such inquiry as would have disclosed to them that plaintiff was in fact the owner of the lands by duly executed conveyances, and, therefore, they took no title or interest in the lands by reason of the sheriff’s deed to them.</p> <p>4. -: -: -: Notice to Collector. The collector was advised that plaintiff was the owner of the land, and plaintiff corresponded with him for the purpose of ascertaining the amount of taxes and to make provision for the payment of the same; nevertheless, he brought suit against the record owner, and did not inform plaintiff that he had done so. Held, that it was the duty of the collector to have brought the suit against plaintiff, under section 9303, Revised Statutes 1899, which requires the suit to be brought “against the owner of the property.”</p> <p>5. -: -: -: Due Process of Law. To permit purchasers at a sheriff’s sale under a judgment and suit against the record or apparent owner for taxes, to recover the land, when they had been told prior to the sale that plaintiff was the actual owner, and when the collector was notified before 'the tax suit was brought that he was the owner, would be to deprive the plaintiff of his property without due process of law, and would be in direct violation of the statutory provision requiring him as owner of the land to be notified when the suit for taxes was brought.</p>

Mandamus. (1) Criminal costs are “such claims as are expressly required by law to be audited and settled by other officers or persons. ’ ’ Secs. 2845, 2847, 2856,10389, E. S. 1899. The judge and prosecuting attorney are expressly required to adjudicate all the law and all the facts relative to the validity of costs in criminal cases. State ex rel. v. Oliver, 50 Mo. App. 217.

Henry G. Riley, Judge. (1) False imprisonment is an unlawful physical restraint- by one of another’s liberty. Bishop, Non-Contract Law, sec. 206. (2) If an officer or private person, assuming to act by command or permission of the law, detains one without its authorization in fact, whether believing himself to have the authority or not, he must answer to the arrested, person for false imprisonment. Bishop, Non-Contract Law, sec. 209.

— Hon. ■ Jas. E. Hasell, Judge. (1) The court erred in refusing to sustain defendant’s objection to the introduction of any evidence. The petition is fatally defective. It states no act of negligence against defendant. General averments of negligence will not meet the requirements of the law.

<p>Appeal from Jefferson Circuit Court.—Eon. Frank R. Bearing, Judge.</p> <p>(1) The evidence disclosed a clear case of contributory negligence on the part of deceased, which precludes plaintiff’s recovery. Hayden v. Eailroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 374; Hook v. Railroad, 162 Mo. 569; Turner v. Railroad, 74 Mo. 607; Hickman v. Railroad, 47 Mo. App. 74; Lane v. Railroad, 132 Mo. 16; Jones v. Railroad, 63 Mo. App. 508; Payne v. Railroad, 136 Mo. 581; Guyer v. Railroad, 174 Mo. 344. (2) There is no evidence that either deceased or the driver of the wagon looked .or listened for approaching trains, and no presumption can be indulged that did. Jones v. Railroad,, supra; Hook v. Railroad, supra; Beach, Cont. Neg. (2 Ed.), see. 182; Myers v. Railroad, 24 Atl. 747; Turner v. Railroad, supra; Lynn v. Railroad, 79 Mo. App. 478;'Hickman v. Railroad, supra; Lockwood v. Railroad, 65 N. W. 866; Morris v. Railroad, 26 Fed. 22; Mackowitz v. Railroad, 186 Mo. 350. (3) The photographs show that when the train was from two hundred to four hundred and twenty-five feet south of the crossing it could be seen by those in the wagon, from twenty-five to sixty-eight feet west of the crossing. Physical facts cannot be ignored. Kries v. Railroad, 148 Mo. 330; Barrie v. Railroad, 102 Mo. App. 91; Lane v. Railroad, 132 Mo. 17; Lien v. Railroad, 79 Mo. App. 479 ; Payne v. Railroad, 136 Mo. 583.</p> <p>(1) This case ought to be dismissed and stricken from the docket because appellant has wholly failed to comply with rules 11 and 13 of this court in the following particulars, to-wit: Appellant has not filed in this court an abstract of the record, setting forth so much of the record as is necessary to a full and complete understanding of the questions presented in this court for decision, nor has he served the respondent with a copy of the abstract of the record within thirty days before the day on which the case is set for hearing, nor has he served such copy to this date. Butler County v. Graddy, 152 Mo. 443; Warehouse Co. v. Glasner, 150 Mo. 426; Lawson v. Mills, 150 Mo. 428; Hughes v. Henderson, 95 Mo. App. 312; St. Oharles v. Deemar, 174 Mo.122; Walser v. Wear, 128 Mo. 652; Bailey' v, McWilliams, 111 Mo. App. 37; Rule 16; Machine Co. v. Crawford, 98 Mo. App. 323; Brand v. Cannon, 118 Mo. 595; Halstead v. Stone, 147 Mo. 649. (2) Where a party crossing a railroad track cannot see an approaching train because the view is obstructed and there is nothing to prevent his hearing a train, he is not as a matter of law required to stop before going on the track. Even if he could not see an approaching train but had heard the rumbling of a train in the distance and did not hear a bell or whistle, he would have been warranted in assuming that the train was more than eighty rods from the crossing and that he could cross the track in safety. Riska v. Railroad, 180' Mo. 189; Petty v. Railroad, 88 Mo. 306; Crumpley v. Railroad, 111 Mo. 152; Hutchinson v. Railroad, 161 Mo. 246; sec. 1102, R. S. 1899; Johnson v. Railroad, 77 Mo. 546; Donahue v. Railroad, 91 Mo. 359; Elliott v. Railroad, 80 S. W. 270. Where the traveler was in a position to have heard the whistle or bell, he is not required to stop his team and go forward on foot to see whether •a train is coming. Elliot v. Railroad, 80 S. W. 270; Russell v. Receiver, 70 Mo. App. 95; Kenney v. Railroad, 105 Mo. 270. (3) Appellant cites certain cases as to when it is proper to give a peremptory instruction. We submit the following propositions as the correct rule as to sustaining a demurrer to the evidence: In passing on a demurrer to the evidence not only the truth of the facts shown, but every inference of fact which the evidence warrants and which the jury with propriety might make, must -be made in favor of the plaintiff. Twohey v. Pruin, 96 Mo. 109. (4) The court in passing on such demurrer is not at liberty to make inference of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of facts in favor of the plaintiff. That would be clearly usurping the province of the jury. The presumption of due care is always indulged in favor of the plaintiff in an action to recover damages for negligence, unless it conclusively appears from the evidence adduced by plaintiff, either by direct or cross-examination, that plaintiff was guilty of contributory negligence. Crumpley v. Railroad, 111 Mo. 152; Petty v. Railroad, 88 Mo. 306; Weller v. Railroad, 164 Mo. 199. And when plaintiff makes a prima facie case, although defendant’s evidence is not contradicted, it is still the duty of the court to refuse a peremptory instruction, as it is the province of the jury to pass on the evidence. Because, as provided by the Constitution: “The right of trial as heretofore enjoyed shall remain inviolate.” Gannon v. Gas Co., 145 Mo. 516. (5) Appellant contends that certain photographs are of themselves independent and primary evidence. Photographs are secondary evidence, like maps and drawings, and their probative force is to be determined by the jury. Baustian v. Young, 152 • Mo. 323. (6) Ordinary care at a railroad crossing requires the traveler to look both ways and listen for coming trains. That rule is relaxed where the circumstances are so complicated as to deceive the traveler and throw him' off his guard, and it is a question for the jury to say whether he used ordinary care. Baker v. Railroad, 122 Mo. 533, 147 Mo. 140.-</p>

— Hon. W. B. Teasdale, Judge. (1) The ordinance is unreasonable and operates to deprive the appellant of his property without just compensation. McQuillin, Municipal Ordinances, sec. 550; Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493; Morse v. Westport, 136 Mo. 276; Armstrong v. St. Louis, 3 Mo. App. 151; Hernán v. Handlan, 59 Mo. App. 490; Skinker v. Hernán, 64 Mo.

<p>Appeal from Jackson Circuit Court.—Ho». W. B. Teasdale, Judge.</p>

— Hon. Jas. E. Hassell, Judge. The assessment sued on against the Bank of Tipton was void and the judgment of the court below should be reversed. The Bank of Tipton is a corporation and the assessment should have been against its shareholders.

—-Row. Jno. P. Butler, Judge. (1) The court erred in its construction of the eighth clause of the will. This bequest creates a trust fund to be invested in a homestead for Mrs. G-raves, with title in her for life and remainder to her children and their descendants; and the judgment of the trial court directing the plaintiff to pay this trust fund to her is contrary to the plain terms of the will.

—Eon. D. E. Eby, Judge. (1) The bridge in question comes under both classes of structure made taxable by section 7755 Revised Statutes 1889, to-wit: (a) A bridge owned by joint stock company; and (b) a bridge where a charge is made for crossing the same, namely a toll bridge. That this particular bridge is owned and controlled by a joint stock company, within the meaning o£ the statute, was determined and adjudicated by this court in State ex rel. v. Bridge Co., 109 Mo. 257.

Louis City Circuit Court. — Hon. Daniel 0. Taylor, Judge. (1) The plaintiff need not prove malice or want of probable cause to entitle him to recover in this cause. It is sufficient to show that he unlawfully was restrained of his liberty against his will, at the instance and request of the defendant. Boerger v. Langenberg, 97 Mo. 390, cited in 110 Mo. 306; Taafe v. Slevin, 11 Mo. App. 507, cited in 16 Mo. App. 16; Ahern v. Collins, 39 Mo. 150.

—Hon. A. M. Woodson, Judge. (1) The second instruction given for defendant which told the jury that defendant had a right to operate its trains at ten miles per hour was erroneous, (a) Because the ten-mile ordinance on its face does not purport to cover that portion of the track where plaintiff received his injuries.

<p>1. NEGLIGENCE: Contributory: Child: Matter for Jury. The court may say as a matter of law that the conduct of a man of mature years was, under certain given circumstances, negligent. But under like circumstances when it is a child whose act is in question, the question of contributory negligence is generally one for the jury. Sometimes the age of the child is such that the court may say, as a matter of law, the child was incapable of negligence. But where the question of the child’s contributory negligence was submitted to the jury, it is unnecessary on defendant’s appeal to so hold, for that was as much as defendant could ask.</p> <p>2. -: Negligent Speed of Car: Child: Obstructed View: Erroneous Instruction for Defendant. Plaintiffs’ evidence was that the motorman had an unobstructed view of the track where the child six years old was attempting to cross the tracks, and according to defendant’s the child was behind a wagon and suddenly emerged and got on the track before the motorman could stop the car after seeing him. Held, that an instruction which told the jury, in effect, that the motorman was not to be held guilty of negligence even though he ran the car at a high rate of speed at a public crossing, on which he knew persons were liable to be, when his view was so obstructed that he could not see whether or not the crossing was clear, was exceedingly favorable to the defendant, but as the verdict was for plaintiffs, the defendant cannot complain,.for it is proper to assume that the jury believed plaintiffs’ testimony that the view was not obstructed.</p> <p>3. -: Unfinished Instruction: Not Applied to Facts: NonPrejudicial. The petition alleged, among other acts of negligence, failure to sound the gong, and plaintiffs’ instruction told the jury that it was the duty of the motorman to give a signal by bell of the car’s approach, if the jury should believe from the evidence ordinary prudence under the circumstances required such a signal. Held, that the instruction is unfinished, and should have itself instructed the jury how to apply the fact, if found, unless, there are other instructions directing the jury as to the application of the facts found to exist;. hut in this case the sounding of the gong was of small consequence, for the child injured was only six years old, on whose movements the sounding of the hell could have had little or no influence, and the verdict being clearly for the right party, it will not, because of the unfinished instruction, he reversed. Besides, in this case there was another instruction which told the jury how to apply that act of negligence, if found.</p> <p>4. -: Contributory: Child: Instruction: Looking and Listening. Where the person injured by the street car was a child six years old, trying to cross the tracks at a public crossing, the court should not instruct the jury that if the child neither looked nor listened for the approaching street car, plaintiffs cannot recover. The most the defendant can ask is a direction that it was the child’s duty “to exercise the ordinary care of a person of his age and discretion to look and listen.”</p> <p>5. -: Casualty. Whether the motorman’s view was obstructed or not, it is his duty to approach with caution a public crossing where persons are liable to be; and if he approaches it with great speed, and a child is injured, the defendant cannot he excused on the ground that the injury was a mere casualty.</p> <p>6. -: Evidence: Impeachment of Witness: Material Fact. The location of a wagon which defendant contends obstructed the motorman’s view, was a material though not a very important fact, where the child killed at a public crossing was only six years old and the ear was being run at a high rate of speed. And it was not error, in such case, to permit plaintiffs to show that a witness for defendant had made contradictory statements about the location of the wagon.</p>

—Row. A. D. Burnes, Judge. (1) The court should have sustained plaintiffs’ motion to first take up and try the issue as to ownership of property. The Hannibal & St. Joseph Railroad Company was satisfied with the award. If it should have been declared the owner of the property (as it afterwards was by the Supreme Court), there would have been no expensive trial, no double appeals of the case to the Supreme Court, and the trial would have been simplified very much.

- Francois Circuit Court.—Hon. Robert A. Anthony, Judge. (1) The fact that a legatee was not served with personal notice of the presentation of the petition for an order for sale is no irregularity under the statute and can not in any way prevent the approval of the sale. R. S. 1899, see. 148. The statute indicates, by its proviso, that only heirs and devisees of the deceased party are within its terms.

—Hon. H. W. Johnson, Judge. (1) Tie trial court erred in tlie admission of illegal, incompetent and prejudicial testimony and documentary evidence offered on behalf of the plaintiffs during the development of their case in chief over the objections and exceptions of defendant’s counsel, and ■erred in other respects in the following particulars, viz.: (a) In the admission of a certified copy of the order of the county court of Pike county, adjudging Powhatan B. Levels, one of…

<p>1. ABSTRACT: Size of Type. The rules of this court require abstracts to be printed in “fair type.” That does not mean nonpareil.</p> <p>2. Confidential Relation: Fraud: Innocent Purchaser: Voluntary Conveyance: Laches. Hunt, claiming to be a lawyer and physician, sustained confidential relations with Whitwell, and secured from his wife $1,000, and from the devisees of Horner a deed to lands in Missouri and in Tennessee, under an agreement in writing that he was to hold the lands in trust to secure the repayment to her of the $1,000 after he had settled with Horner’s Tennessee heirs, who had been disinherited by the will and were contesting the same. He obtained a release from the Tennessee heirs of all claim to Horner’s lands there, and sold them for $500 and kept the money. He also obtained a release from them to the Missouri lands and dismissed the suit contesting the will, which judgment was afterwards at the suit of Horner’s devisees set aside as having been obtained through fraud and without the knowledge of the devisees, and the will established. Hunt paid nothing for the deed to him, but transferred the lands to Bedford who knew of his fraudulent schemes and shared in them, Bedford deeded them to Jackson, who also shared in Hunt’s fraudulent transactions and knew all about them, and he transferred them without consideration to his wife in 1891, while the suit in the Federal court to set aside the fraudulent judgment was still pending, and she now brings suit against the grantees of the devisees to ascertain, determine and quiet the title. Held, first, that she is not an innocent purchaser; second, that her claim is stale; and, third, that the trust deed should be dug up root and branch.</p>

—Eon. A. M. Woodson, Judge. (1) The court .erred in denying the petition of defendant railway company to remove this case to the circuit court of the United States, (a) Plaintiff’s petition upon its face presented a controversy between plaintiff and the defendant railway company which was wholly separable from the controversy between plaintiff and the defendant Galiagan. The engineer is liable solely because of his personal act in doing the wrong.

Louis City Circuit Court.—Ho». H. D. Wood, Judge. (1) A contract, if disaffirmed, must be disaffirmed in toto. Estes v. Reynolds, 75 Mo. 563. (2) If a shipper receives a bill of lading at the time the shipment is made and does not object to its terms, either then or at any time before it is too late to recall the property in the absence of fraud or mistake he is bound by it.

Louis City Circuit Court.—Now. D. D. Fisher, Judge. (1) Fraternal beneficiary associations, and the certificates issued by them to their members, do not come within the scope or meaning of the act of May 19,1879, known as the “Non-forfeiture Insurance Statute,” which, in an amended form, is now section 7897, Revised Statutes 1899.