Volume 212 — Missouri Reports

— Hon. Jno. P. Butler, Judge. Section 1085, Revised.Statutes 1899, upon which the suit is based, is unconstitutional and void. Railroad v. Campbell, 61 Kan. 439'; Railroad v. Smith, 173 U. S. 684; State v. Loomis, 115 Mo1. 307; State v. Julow, 129 Mo. 168. The State has power by legislation to fix maximum rates of charges for railroad companies for the transportation of persons and property, but such rates must be just and reasonable to the carrier and the public.

<p>1. NEGLIGENCE: Pleading: Criminally and Negligently Done: Inconsistent and Repugnant: Waiver. A petition which charges that “defendant’s conductor, whilst in charge of its car as its driver and conductor, negligently and with criminal intent” beat and shot plaintiff’s husband, as he being a passenger was about to alight from said car, charges two causes of action in the same count, one of negligence and one of assault and battery, and on demurrer or proper motion would be vulnerable to the charge of redundancy or the commingling of two causes in one count, but it is not under the statute a felo de se, and no such motion or demurrer being filed, the objection was waived, and if the evidence supports either charge, the petition will support the verdict.</p> <p>2. WITNESS: Testimony Read from Transcript: When Permissible. The transcript of the testimony of a witness who testified at a former trial of the case cannot be read in evidence, over objection, unless he is shown not to be a resident of the county. It can be read on the same conditions that a deposition can be read, one of which is that deponent is not a resident of the county. Nor will it be presumed, because the first trial took place in St. Louis and the witness testified thereat, and afterwards a change of venue was taken to St. Louis county, where the transcript of his evidence was offered to be read, that he was not a resident of St. Louis county. [VALLIANT, J., dissenting,]</p> <p>3. NEGLIGENCE: Assault of Passenger: Bringing on Difficulty. It is not the law that, if the passenger brought on the ■ difficulty which resulted in his being shot by the conductor, the plaintiff cannot under any circumstances recover.</p>

— Hon. B. J. Casteel, Special Judge. (1) Tbe information attempts to charge false and fraudulent representations in two things: First, that tbe defendant bad no title to tbe land traded to tbe prosecuting witness.

— Hon. B. H. Eby, Judge. (1) The information, which was filed before the justice of the peace, is sufficient in form and substance. R S. 189£>, sec. 3045. (2) The statute is constitutional. State v. Wheelock, 95 Iowa 584; State v. Norton, 67 Iowa 642; State v. Heinemann, 80’ Wis. 256; State v. Forcier, 65 N. H. 42; Smith v. Alabama, 124 U. S. 465; Ex parte Lucas, 160 Mo. 232; Board v. Fowler, 50 La. Ann. 1373; State v. Davis, 194 Mo. 485.

<p>Habeas Corpus.</p>

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) The court should have sustained the demurrer offered hy the defense at the close of the State’s case. The only evidence, if any, against the defendants to connect them in any way with the crime charged, was the fact that one chicken, which was identified by the prosecuting witness, Archie Perkins, as one of those stolen, was found in the loft of the stable owned and controlled by the uncle of the defendants.

— Row. J. W. Alexander, Judge. Section 28 is void for the reason that it does not •intelligently describe any offense. The attempt to make it unlawful to suffer or permit certain, substances to escape or flow into a creek was evidently intended by the Legislature to prohibit a citizen from placing, putting or draining such substances into the creek or from permitting the same to be done from the premises over which he has control, but the statute does not do either of these.

Jackson Criminal Court.— Hon. J. H. Slover, Special Judge. (1) The court, in compelling defendant to go to trial without his witnesses, committed error. Defendant had taken all legal steps to get his witnesses, even to an attachment, and all of said witnesses not appearing were important and necessary by which defendant could have proven facts that he could not prove by any other witnesses.

<p>1. DEFENDANT UNDER SENTENCE: Trial and Conviction. A defendant, who was at one term tried and convicted of a felony and sentenced, cannot be held in jail until the next term of court and then be tried and convicted of another felony. If the prosecuting attorney desires to prosecute him under separate informations each charging a felony, both prosecutions must taire place at the same term, and if the defendant be found guilty in one, the sentence in that must be postponed until after trial and conviction in the other, or a conviction in such other cannot stand.</p> <p>2. -: -: No Objection. If it is apparent from an ex- . amination of the records in the two separate cases that defendant was tried and convicted in one while he was under sentence in the other, the Supreme Court, notwithstanding no objection was made by him at the trial to such prior conviction and sentence, will reverse the judgment.</p>

— Now. J. C. Sheppard, Judge. (1) The information properly charges murder in the second degree, and is sufficient; it supports the verdict of manslaughter in the second degree. Sec. 1816, R. S. 1899'; State v. Lowe, 93 Mo. 547; sec. 2369, R. S. 18991; Kelley, Crim. Law & Prac., sec. 503, p. 328. (2) At the trial, defendant objected to the giving of all the instructions and saved his exceptions.

— Eon. Wm. E. Martin, Judge. (1) An information in a felony case should allege that defendant had been accorded the right to a preliminary examination. Washburn v. P'eople, 10 Mich. 383; State v. Barnett, 3 Kan. 255'; Ex parte O’Brian, 127 Mo. 477; People v. Cassels, 5 Hill 164. Jurisdiction in the court is the power to hear and determine the particular case involved.

Louis City Circuit Court. — 'Row. Moses N. Sale, Judge. (1) The court committed reversible error in permitting witness Thomas Gleason to testify to the matters set out in the record. Held: repeatedly, that, whenever the facts constituting the guilt are undisputed, the trial court is justified in directing a verdict of guilty. IT.

Lonis City Circuit Court. — ífo». D. D. Fisher, Judge. (1) In several instances, defendant objected to certain evidence, but bis objections were properly overruled. Held: and correctly, too, was inadmissible. State v. Evans, 158 Mo. 609'; State v. Welsor, 117 Mo. 580; State v. Bulla, 89 Mo. 599. (b) Twice during the trial the State’s objection to some of the defendant’s evidence was sustained.

— Eon. Chas. A. Denton, Judge. (1) The information, which was accompanied by the affidavit of ITenry Cahill, is sufficient in form and substance. Kelley’s Crim. Law, sec. 535; State v. PIoux, 109 Mo. 658; State v. Burris, 126 Mo. 566; R. S. 1899, sec. 1837. (2) The bill of exceptions was not filed within the time required by the order of the circuit court; hence, there is nothing before this court except the record proper.

— Hon. Wm. H. Wallace, Judge. (1) Certain papers were taken from the person of the accused after lie was arrested and the court permitted the State to introduce them in evidence against him.

— Now. D. H. Eby, Judge. (1) The indictment is sufficient in form and substance. State v. James, 194 Mo. 269; State v. Watson, 141 Mo. 338; Kelley’s Crim. Law, sec. 609; R. S. 1899', sec. 1891. (2) In their motion for a new trial, the defendants do not assign as error the admission of improper evidence, nor the refusal to admit proper evidence. So the matter of the admission and exclusion of evidence is not before this court for review. State v. Yandell, 201 Mo. 646.

Louis City Circuit Court .- — Hon. Hugo Muench, Judge. To warrant a conviction upon an information for an assault with, intent to commit a rape, the evidence must show that defendant’s intention was, if it became necessary, to force compliance with his desires at all events and regardless of any resistance the woman might make. State v. Priestly, 74 Mo. 24; State v. Owsley, 102 Mo. 687; State v. Scholl, 130- Mo. 396; State v. Hayden, 141 Mo. 311.

— Row. Chas. D. Stewart, Judge. (1) The application for continuance speaks for itself. It shows the utmost diligence to obtain the evidence, and the materiality of it.

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

— How. Hermann Brumback, Judge. (1) There was substantial evidence that testator was of unsound mind at the time of the execution of the will in question, and that he did not have mental capacity to execute said will, and this case should have gone to the jury upon that issue.

Transferred from St. Louis Court of Appeals. Applicant’s petition showed that he was entitled to letters of administration as asked and. was first so entitled: Because he was an heir and distributee; because there was no widow;' because all the other .heirs entitled to administer having recommended him, his was the sole right; because he had applied in due form of law within thirty days of the death of the former administrator; because he possessed all of the qualifications…

— Now. John P. Butter, Judge. (1) The law conclusively presumes for the purposes of this action that deceased was a trespasser and therefore the court committed, error in admitting evidence over defendant’s objection tending to show that he was a bare licensee.

— Hon. Henry M. Barney, Judge. (1) Penney was negligent in voluntarily taking a position of peril and remaining there. Such negligence directly contributed to his injury and bars a recovery. He knew the cars would likely be moved and he was not in a position to see when the signal to move was given, nor was he where his danger was known to the other men of the crew. Defendant’s demurrer to the evidence should have been given.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Instruction 1, given at the request of plaintiff, is erroneous because it authorized tbe jury to return a verdict for plaintiff, if they found that there was any negligence on the part of defendant, instead of limiting them to the particular act of negligence counted on in the petition.

Hugh Dabbs, Judge. (1) The court erred in referring the case to the referee. Both the right and remedy arose by reason of the relation of the parties to each other at the time the contract was made, and that is held by our courts to be that of a partnership, and the suit should have been brought in a court of equity instead of one at law. Snyder v. Burnham, 77 Mo. 52; Plumber v. Frost, 81 Mo. 425; Brownlee v. Allen, 21 Mo. 125; Priest v. Choteau, 12 Mo.

— Hon. Jas. D. Barnett, Judge. (1) When the judgment defendant fails to give notice of appeal until after a sale of property under the judgment and the judgment plaintiff becomes the purchaser he is entitled to the same protection as any other bona fide purchaser, if the judgment is after-wards reversed, and upon the case being remanded, he again recovers. Frazier v. Crafts, 40 Iowa 110'; Gossam v. Donaldson, 68 Am.

— Hon. G. A. Mosman, Judge. (1) It is tbe duty of a master to see that a minor employed by him to operate dangerous machinery knows not only of the dangers hut the extent of the dangers of such machinery. Wood’s Law of Master and Servant (2 Ed.), sec. 349, and notes, and sec. 350, and notes; Grizzle v. Frost, 3 Fost. & Findl. 622; Combs v. New Bedford Cordage Co., 102 Mass. 572; Dowling v. Allen, 74 Mo. 13; Yanesler v. Box Co., 108 Mo.

— Hon. F. G. Johnston, Judge. (1) The report of the commissioners afforded no standard for measurement of damages by .the jury, but defendant is entitled to… Held: in tbis State, to be competent only as affecting tbe market value, of tbe land, and defendant’s instructions on tbis element of damage were far more favorable to her than tbe law allowed. R. S. 1899, sec. 1111; Railroad v. Mendonsa, 193 Mo. 525; Railroad v. Donovan, 149 Mo. 93; Railroad v. North, 31 Mo. App. 345.

Louis City Circuit Court.— Hon. Jos. R. Kinealy, Judge. (1) 1. The facts disclosed by the record show such a meagre conception of equity by the plaintiff that no chancellor should seriously consider her bill. She is unwilling to do equity and hence should receive no aid in chancery. Ruppel v. Mo. Guarantee S. & B. Asso., 158 Mo. 613; Corby v. Bean, 44 Mo. 379; Kline v. Vogel, 90 Mq. 239; Woodard v. Mastin, 106 Mo. 324. 2.

— Now. John A. Eoclcaday, Judge. Section 2873, Revised Statutes 1899, provides: “That every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad, by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence, contributing as a proximate cause…

— Eon. G. A. Denton, Judge. (1) The court erred in admitting evidence, viz., Louisa Tinkle: (a) Hearsay, conversation with one of Hess’s men. (b) Conversation with Hess, it not being shown that Pless had authority to bind defendant.

Mandamus. STATEMENT BY THE REPORTER. This is a suit hy mandamus, brought in this court, to compel the Secretary of State to file two nomination papers in behalf of the relator, who' is a candidate for the Republican nomination for State Treasurer. ■ The petition was presented in open court on May 19th, and the Attorney-General, who appeared for respondent, waived the issuance of the writ, and agreed that the petition might be considered as and for the writ.

<p>COUNTY TREASURERS: Eligibility. Under the Act of 1907 county treasurers in office at the time the act was passed, whether serving their first or second term, are eligible to reelection, at the general election in November, 1908, for a term of four years beginning the following January.</p>

— Now. A. D. Burnes, Judge. (1) Plaintiff had an interest in all the lands in question, notwithstanding the fact that she had been granted a divorce from the defendant, Oliver Gr. Mills. The decree of divorce did not bar her dower. R. S. 1899, see. 2947; White v. Ingraham, 110 Mo. 483; Blandy v. Asher, 72 Mo-. 27; Turner v. Bennett, 70 111. 263. (2) The deed from Mills to Eldn was absolutely void, under section 3616, Revised Statutes 1899'.

Louis City Circuit Court — Ho». Warwick Hough, Judge. (1) The agreement by the hank to pay $24,406.50 when the Pacific Railroad had laid its tracks to Concordia; and to pay $24,406.50 when the tracks were laid to Lexington, was not in writing, and, therefore, was affected by the five-year Statute of Limitations.

— Hon. Howard Gray, Judge. (1) The court erred in giving instruction 3 on behalf of plaintiff. The question for the jury was whether the condition was such that a reasonably prudent man would have refused to obey the order. If so, plaintiff was guilty of contributory negligence although the danger of the timbers falling was not so manifest or glaring as to threaten immediate injury. Bradley v. Railroad, 138 Mo. 309; Halliburton v. Railroad, 58 Mo.

Henry G. Riley, Judge. (1) The devise to Ella Wall Rodney and Louis L. Rodney vested title in them in fee simple. (2) The provision that the premises devised were “to be used by them in common in connection with the realty herein devised to them, and adjoining same on the north,” is merely precatory or declaratory, and does not amount to a restriction or a condition subsequent, because: (a) So construed it would be repugnant to and inconsistent with the grant of a fee.

— Hon. N. M. Bradley, Judge. (1) The rule for interpretation of a statute is to ascertain the legislative intent. The intention expressed, technical rules should he rejected. It is not a question, can all purposes of the law he carried . out? but what was the legislative intention in the enactment? Bowerman v. Min. Co., 98 Mo. App. 312; Stubbs v. Mulholland, 168 Mo. 73; Walsh v. Walsh, 15 Mo. 519; State ex rel. v. CorMns, 123 Mo. 67; Grimes v. Reynolds, 94 Mo.

— Hon. Wm. H. Martin, Judge. (1) After Judge Davis acquired jurisdiction to try this case, he could not be divested of jurisdiction by the subsequent action of Judge Martin, and, under the repeated rulings of this court, Judge Davis’s jurisdiction continued until the final determination of the case. State v. Moberly, 121 Mo. 608; Bank v. Graham, 147 Mo. 250; State v. Davidson, 69 Mo. 509; Rawlins v. Timons, 80 Mo.

— Eon. N. M. Bradley, Judge. (1) The redemption bond-filed by appellant was, under the facts in evidence, filed within a reasonable time, as prescribed by statute, and the court erred in decreeing it null and void. E. S. 1899, secs. 4343 and 4344; Ins. Co. v. Eogers, 155 Mo. 307; Sheridan v. Nation, 159 Mo. 27.

— Hon. J. L. Fort, Judge. (1) The court erred in overruling defendant’s objection to the introduction of any evidence on the ground that plaintiff’s petition did not state facts sufficient to constitute under the law any cause of action, which objection was interposed at the beginning of the trial.

Transferred from St. Louis Court of Appeals. (1) Aside from the Act of 1891, it is well settled in this State that, although a note or bond secured by mortgage or deed of trust may be barred so that no action can be maintained thereon, yet the deed of trust or mortgage may be enforced against the land by trustee’s sale or foreclosure.

<p>1. CONSTITUTIONAL LAW: Delegation of Legislative Power: Fixing Fees. A law which authorizes the Board of Railroad and Warehouse Commissioners to fix the fees for inspecting and weighing grain at such sums as will pay the inspectors and weighers for their services, is not an unconstitutional delegation of legislative power to fix fees. And the Act of 1907, when read in connection with section 7658, R. S. 1899, which was not repealed by the Act of 1907 and which said, “Which charges shall be regulated in such manner as will, in the judgment of the commissioners, produce sufficient revenue to meet the necessary expenses of the service of inspection, andnomore,” did not grant an unregulated power to the commissioners to fix fees.</p> <p>2. -: -: Roving Commission to Enforce. The Grain-Weighing and Grain-Inspection Act of 1907, Laws 1907, p. 285, declaring that “the Board of Railroad and Warehouse Commissioners are hereby authorized to establish State inspection and weighing of grain at such places or in such territory within the State as in their opinion may be necessary,” and that “all buildings, elevators or warehouses located in any territory wherever State grain inspection and weighing may be established by the State Board of Railroad and Warehouse Commissioners .....are hereby declared public warehouses,” etc., and that “all grain arriving in any territory where State grain inspection may be established by this article .... shall be inspected and graded by a duly authorized State Inspector,” gives to the commissioners the vital power to capriciously say, as their opinion serves, to what places, in what territory and at what times the statute shall apply, or whether or not it shall be in force at any time in any place, and is void of any certain intendment of the legislative mind, beyond the mere grant of power, and the power granted in its essence partakes of simple despotism. It does not in any wise define or classify warehouses or elevators or the territory upon which it is to operate; it does not confine itself to warehouses of a certain given capacity or devoted by their owners to a defined, quasi-public, commercial use; it does not confine itself to cities of a given size or class, nor to places, territories or markets having elevators or warehouses defined in the statute by their use, character, or capacity; it gives the commissioners the capricious power to say to what elevators it shall apply, and when and when not. It is, therefore, void.</p> <p>3. -: -: -: Legislative in Character. Such act is not legislative in character. It is not a rule of conduct prescribed by the supreme power, the law-making body, which is the General Assembly. The power to bind and loose, to inaugurate or suspend the operation of a law, to say when and where it is law, is of necessity an inherent and integral part of the law-making power, not to be delegated to any commission, to be used when in its “opinion” it “may be” considered “necessary.”</p> <p>4. -: -: -: Power of Legislature. The General Assembly cannot delegate legislative power. The law-making power must remain where the Constitution places it.</p> <p>5. -: -: Police Power: Exercise. The question to be considered in passing on the constitutionality of the Grain-Weighing and Grain-Inspection Act of 1907 is one of delegation of police power, and not the exercise of it by the General Assembly. Therefore, the case of State ex inf. v. Goffee, 192 Mo. 689, holding that such a statute is within the constitutional authority of the General Assembly, exercising the State’s police power, is not in point. The doctrine of that case is affirmed, but there is a wide difference between the delegation of police power to a commission, and its proper exercise by the Legislature.</p> <p>6. -: -: -: -: Rights. No man holds his property or rights subject to the unregulated discretion of another.</p> <p>7. -: Equitable Relief: Multiplicity of Suits. A petition for injunctive relief against an unconstitutional act, which alleges that defendants are about to annoy plaintiffs and their employees with a multitude of vexatious suits for failure to observe such act, without pleading the character of the threatened suits, whether criminal or civil, does not state a cause of action for equitable relief on the ground of multiplicity of suits.</p> <p>8. -: -: Irreparable Injury. But a petition charging that irreparable injury to plaintiffs’ business would result from the enforcement of an unconstitutional law, states a ground for equitable relief. And a petition which shows that plaintiffs’ business of grain-weighing and certification is a valuable asset and property in grain dealing, that it has been built up and nurtured through many years in connection with their business of dealing in grain, and that it is about to be struck down and ruined and their grain markets ruined, in ways pointed out, hy the enforcement of an unconstitutional law authorizing weighing by State weigh-masters, is such a petition.</p> <p>9. -: -: -: Demurrer. An unconstitutional law is the same as no law at all; and, on demurrer to a petition sufficiently charging that irreparable injury will result to plaintiffs’ business by the enforcement of such a law, it will be assumed that the allegations of irreparable injury in the ways specified in the petition, are true.</p> <p>10. -: -: Against the State. The Board of Railroad and Warehouse Commissioners are plain ministerial officers, and not the State of Missouri; and, therefore, when it is charged that they are about to do irreparable injury to the business of citizens of the State, equitable relief will not be denied on the theory that the State cannot be sued.</p>

<p>1. PURCHASE OF GOODS: Place: C. O. D. Shipment. The place of sale of goods, made upon an order by a private citizen, to ship him designated goods by express C. O. D„ is the place of shipment, and not the place of delivery, unless there is an express contract to the contrary between the shipper and consignee.</p> <p>2. -: -: -: Local Option Law. Morton, a resident of Webster county, ordered a gallon of whiskey, from defendant’s company in Kansas City, and it was sent in a package marked C. O. D., and Morton paid the express agent the price thereof at the time it was delivered to him, and the agent sent the money to defendant’s office in Kansas City. Held, that Kansas City was the place of the sale, that the sale was complete when the liquor was shipped there, and defendant did not violate the Local Option Law then in force in Webster county. [Overruling obiter dicta in State v. Wingfield, 115 Mo. 428, and Canton v. McDaniel, 188 Mo. 207.]</p>

— lion. N. M. Bradley, Judge. (1) Acts of the Legislature are to he presumed constitutional until the contrary is clearly shown; and it is only when they manifestly infringe on some provision of the Constitution that they can he declared void for that reason. In case of doubt, every possible presumption not directly and clearly inconsistent with the language and subject-matter is to be made in favor of the constitutionality of the act.

Mandamus. (1) “It is well-settled law that the court to which an appeal must go is determined solely by the record of the case made in the trial court.” State ex rel. v. Smith, 176 Mo. 448. No new judgment having been entered by the circuit court, the appeal was necessarily from the judgment rendered on the 14th day of April, 1906, for §5,500, which was in excess of the jurisdiction of the Court of Appeals.

<p>1. APPEAL: Reference to Transcript: Abstract. Tbe rules of tbe Supreme Court require a printed abstract, and tbe court -will not bunt tbrougb a long transcript in long form in a civil case to decide disputes in evidence, tbougb referred thereto by-counsel; but appellant having filed a printed abstract, and no counter abstract being filed thereto by respondent or complaint made, appellant’s abstract will be conclusively presumed to contain all the record essential to a just determination of tbe case on appeal.</p> <p>2. INJUNCTION: Threatened Trespass: Right to Possession. Although tbe issue is one of tbe fact of possession and there is evidence that it was a “scrambling possession” at tbe very time defendant is alleged to have broken plaintiff’s close and committed trespass on the land, yet if defendant is threatening to continue such wrongful acts, injunction is a proper remedy, though the suit in the end resolves itself into one for quieting title.</p> <p>3. -: -: Multiplicity of Suits. In the absence of a showing that a railroad company and the men who personally directed the tearing down of plaintiff’s fences were insolvent, he would have a remedy at law for damages for the trespass already committed. But to put a stop to defendant’s trespasses and to its threats to tear down the fences as often as they are erected and to avoid a multiplicity of suits, plaintiff is entitled to equitable relief, by the writ of injunction.</p> <p>4. PURCHASE OF LAND: Verbal Contract: Statute of Frauds: Performance. Where the vendee pays the full purchase price and takes possession with the consent of the vendor, the case is taken out of the Statute of Frauds, and the vendee is entitled to a decree vesting the title in him.</p> <p>5. -: -: -: This Case. A triangle of plaintiff’s land, about one acre in size, was bounded along its long side by the right of way of a railroad company and on the other two sides by public roads. It jutted up against the station yards, and between it and the station house a switch track was laid. Plaintiff was willing to sell, and removed his fences, and for a time it was unoccupied. Then a grain dealer proposed establishing a warehouse on it and the right of way, but was not willing to build unless the railroad company acquired the triangle. He and the road’s superintendent and an agent to obtain rights of way appeared at the station, and it was ascertained that plaintiff would sell for $50, and the three pooled what cash they had in hand and the superintendent gave the amount to plaintiff, who received it, and the railroad company reimbursed them. Thereupon, the company closed an agreement with the grain dealer granting him a permit in the nature of a lease to build and operate a grain warehouse, located in part on the triangle and in part on the right of way, and he at once erected the warehouse, and later another grain dealer built another warehouse under like conditions, and they began and continued the business of handling grain, using the triangle, and thenceforward it was used for necessary shipping purposes in loading and unloading wagons and cars of- freight and in storing heavy freight, and was otherwise devoted by the railroad company to commercial uses. These facts plaintiff knew, and acquiesced in them, and bought the warehouses, which were not fixtures, from the grain dealers, took possession and engaged in handling and shipping grain himself, and dealt in corn and built some corn pens on the triangle, erected some fences inclosing the pens and connected them with the warehouses, and as time went on he gave visible signs of ignoring the right of the railroad company to the triangle. The building of the fences being without the consent of the company, and in an assertion of plaintiff’s right as absolute owner, the company caused the fences to be torn down and when he rebuilt them it tore them down again, and then plaintiff brought this suit to enjoin further trespasses. There was evidence that he claimed damages for stock killed, and other injury done, and that he claimed the $50 paid was a credit on his claim for these damages, and that he would make a deed when the damages and the price of the land were paid, and there is nothing to indicate that his claim was discussed at the time the money was paid. The verbal contract was made with the superintendent in 1894, who was dead at the time of the trial, and for that reason defendant objected to plaintiff’s testifying as to the terms of the contract. After the money was paid the president of the road insisted that a deed be obtained and asked plaintiff to make a deed, but he flatly refused and stated that he would not do so until the company paid his claims. Nothing was done towards obtaining a decree vesting title in defendant until this suit was brought in 1903. Held, that the possession taken by the railroad company with plaintiff’s consent, fortified by the prior payment of the purchase price in compliance with the verbal contract ipso facto and eo instanti vested the paramount equitable title in the company, and thereafter plaintiff held only the mere naked legal title seized to the use of the company, and defendant was entitled to specific performance in a strict sense if the pleadings had been drawn on that theory. They were not so drawn, but as the answer states a good case under section 650 for ascertaining and determining the title, that is done, and it is decreed to be in defendant.</p> <p>Held, by Valliant, J., dissenting, first, that the evidence of the existence of defendant’s oral contract was not that cogent, clear and convincing proof which a court of equity requires when it is called upon to enforce a contract in the face of the Statute of Frauds; and, second, defendant has slept too long on its rights, even if its rights to such a decree were shown in 1894, when it claims the oral contract was made.</p> <p>6. TRESPASS: Injunction: Quieting Title. Where plaintiff brings suit to enjoin defendant from further trespassing on his land, and the answer denies the allegations of the petition, and by way of affirmative matter alleges defendant owns the land and claims title thereto, and prays the court to try, ascertain and determine the title, and plaintiff replies denying that defendant ’ has any title or interest, and the evidence shows that defendant bought and paid for the land under a verbal contract and took possession with plaintiff’s knowledge and consent, the plaintiff is not entitled to a decree enjoining defendant from entering upon the land, but the injunction should be dissolved, and the title decreed to he in defendant.</p> <p>7. TESTIMONY: Other Party Dead. Where defendant’s superintendent, who made the contract in its behalf for the purchase of the land, is dead, it is not error to permit plaintiff to deny the testimony of a living witness as to where the contract was made and where the money was paid.</p>

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. ■Defendant’s motion to discharge, made at the close of plaintiff’s case, should have been sustained, because of the variance between the allegations and the proof. The complaint is based' upon section 18 of ordinance No. 20808, and defendants are charged with selling milk in violation of said section. That said section fixes the standard for whole milk no one will question.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The motion to qnash the indictment should have been sustained: (a) Because it does not allege in said indictment that appellant was not Fred Fink, and because it does not allege that appellant voted “by” impersonating Fred Fink, but it alleges that he did impersonate Fred Fink “and” voted, (b) Because count one of. said indictment charges more than one offense.