Volume 262 — Missouri Reports

— Hon. H. L. McGune, Judge. (1) The court erred in setting aside the verdict and judgment in this case in favor of the defendant and granting the plaintiff a new trial. • The statute of Kansas, not vesting the cause of action absolutely in the widow, but the right to sue passing to the administrator or personal representatives of the deceased, the widow could not maintain the action, as the probate court, alone, would have jurisdiction to determine her property right and its…

— Hon. David H. Harris/ Judge. (1) The court erred in holding that Amanda Bra-shears had only a life interest in the rents and profits of the real estate in question and described in the petition of plaintiffs. This question depends upon the construction to be given the deed from McHenry Barkwell et al, to George W. Henderson, trustee for Amanda Brashears (a married woman), for her sole and separate use, and the will of Gilbert Akers, deceased.

— Hon. Alex. H. Waller, Judge. (1) Plaintiff’s action was bottomed on Sec. 5426, R. S. 1909, known as the compensatory section of the Damage Act, and not on section 5425 of said act, as the latter section has application only in those cases where death is occasioned “by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car or train of cars.” The right of action given under Sec.…

— Hon. B. H. Dyer, Judge. (1) The court erred in entering a decree against appellant: First: Because she was not-a party to the contract with George W. Jacobs. Held: mean in every case that each party must have the. same remedy for a breach by the other, but only that the contract is enforcible on both sides in some manner, not necessarily by specific performance in each instance. 26 Am. & Eng. Ency. Law (2 Ed.), p. 32.

— Hon. William T. Ragland, Judge. (1) It has uniformly been held by this court that it is its province to examine the record of the evidence in a will case to see if there is any substantial evidence to support the verdict or authorize the submission of the cause to the jury. Winn v. Grier, 217 Mo. 447; Archambault v. Blanchard, 198 Mo. 425; McFadin v. Catron, 138 Mo. 227; Hamon v. ITamon, 180 Mo. 685; Crossan v. Crossan, 169 Mo; 631.

— Hon. Alfred Page, Judge. (1) The motion to abate and dismiss the action should have been sustained. The statute requires publication for four weeks consecutively. E. S. 1909, sec. 9263. The affidavit made by the publisher was that the notice was published two times, “the first insertion on Dec. 11,1909, second insertion Jan. 10,1911.” The court had no authority to appoint commissioners without the notice required by the statute having been given. E. S. 1909, sec. 9264.

— Hon. Nat. M. Shelton, Judge. (1) The defendant’s demurrer to the State’s evidence should have been sustained and the defendant discharged. R. S. 1909, sec. 5231; State v. Clark, 147 Mo. 36; State v. Anslinger, 171 Mo. 600. (2) Instruction number 1 given on behalf of the State; defining grand larceny, is not applicable to this case; is misleading, prejudicial to the defendant and not a correct definition of the offense charged.

<p>Appeal from Stoddard Circuit Court. — Eon. W. 8. C. Walker, Judge.</p>

— Hon. David H. Harris, Judge. (1) The State’s instruction number 1 is erroneous, because: (a) It omits the all important part of the definition of larceny, to-wit the words “with a felonious intent.” In case where the defendant was tried for stealing a steer, these words were termed “the chief ingredient of grand larceny,” and a conviction was set aside on account of the failure to use said words in the State’s instruction. State v. Weatherman, 202 Mo. 9.

<p>Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p>

— Hon. J. G. Slate, Judge. (1) Tbe court erred in overruling defendant’s motion for new trial and of defendant’s motion to exclude Juror J. S. Lumpkin'from the panel. R. S. 1909, sec. 7283.

<p>1. APPEAL: Criminal Case: No Brief. Although appellant in a criminal case has filed no brief, still the Supreme Court under the statute must review the complete record.</p> <p>2. INDICTMENT: Venue: Stated in Margin. It is sufficient that the venue be named in the margin or cantion of an indictment.</p> <p>3. --: Time: Not of Essence of Offense: Killing Animal With intent to Steal it. Time is not of the essence of the offense of wilfully killing an animal with intent to steal it, and therefore an indictment is not invalid that fails to state the time when an alleged offense of that kind was committed.</p> <p>4. OBJECTIONS TO EVIDENCE: Exceptions: Appeal. To avail upon appeal an objection to the admission of evidence must assign a reason or ground why the evidence is objected to, and an exception must be saved to the court’s 'action in overruling the objection.</p> <p>5. VERDICT: Supported by Evidence: Appeal. Before the Supreme Court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of the evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice, or partiality.</p> <p>6. -: -: -: Wilfully Killing Hog with Intent to Steal It. Although in a trial for wilfully killing a hog with intent to steal it, there is no direct evidence that defendant shot the hog with such intent, yet, in view of the fact . that the wound in the head of the animal was about the size of a silver dollar and contained portions of paper wadding, almost entirely discrediting plaintiff’s statement that, thinking the hog a squirrel, he fired a shotgun at it while he was thirty or forty feet from it, and of the further facts that soon after the shooting he answered, “Nothing, nothing,” 'to a question from a person on the place as to what he was doing, and told the constable on the night of his arrest that “he had killed the hog, he did not aim to let his family starve,” it is held that the evidence is sufficient to support a verdict of guilt.</p>

— Hon. Ralph S. Latshmv, Judge. (1) The information in this case is sufficient in form and substance; it contains every essential element to constitute the crime charged and follows the forms approved by this court. Sec. 4538, R. S. 1909, as amended by Laws 1911, p. 194; Kelly’s- Crim. L. & P., sec. 667, p. 596; State v. Williams, 54 Mo. 170; State v. DeWitt, 152 Mo. 79; State v. James, 194 Mo. 270.

— Hon. David H. Harris, Judge. There is no substantial testimony to support the verdict. Therefore the court committed error in re- • fusing to give the demurrer asked by the appellant at the close of the State’s case. This was a special demurrer and went only to the sufficiency of the testimony to support the charge of robbery.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) The court erred in permitting the introduc-' tion of illegal testimony and evidence against the defendant. , Sec. 6331, R. S. 1909; Sec. 905, U. S. Law, Appendix Mo. Stat. 1909; Barton v. Steel, 65 Mo. 611; Paca v. Dutton, 4 Mo. 371; Moyer v. Lyon, 38 Mo. App. 635.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) Defendant’s requested instruction should have been given, or, if the court deemed it improper in form, should have been treated as a request for proper instruction covering the subject-matter and it became and was the duty of the court to comply with the same.

— Mon. Frank Kelly, Judge. (1) When an instruction is desired on a particular subject, the trial court’s attention should be directed specifically to its failure to instruct thereon. State v. Groves, 194 Mo. 458; State v. McCarver, 194 Mo. 742; State v. Conway, 241 Mo. 288. (2) This court cannot review instructions if no exception is saved at the time by the defendant to action of the trial court in overruling his motion for a new trial.

<p>1. ELECTION: Coalition of Parties: Printing Names on Different Tickets. The Act of 1913, prohibiting party fusion and denying to a candidate of one political party the right to' have his name also printed on the party ticket of another political party as its candidate for the same office, having been held unconstitutional (261 Mo. 515), the county clerk has no power to refuse to print the name of a candidate for Representative upon the tickets of two political parties, where he has been nominated at a primary election by one of such parties, and substituted by the county committee of the other in the stead' of its own candidate for the same office who has resigned. The statutes as they now stand do not prohibit a man from being the candidate of two political parties.</p> <p>Held, by GRAVES, J., dissenting, with whom WOODSON, J., concurs, that the Act of 1913 prohibiting fusion of political parties, is not unconstitutional, as held in State ex rel. Schmoll v. Drabelle, and whether it received the number of votes required by the Constitution was a question for ■ the legislative body to determine, and that act being valid the peremptory writ of mandamus should be denied.</p> <p>2. -: -: -: Sec. 5848, R. S. 1909: Not Question for County Clerk. It is not for the county clerk to determine that the attempted substitution upon its party ticket of a candidate of another party for the same office, by the county committee, in the stead of its own nominee who has resigned, is in violation of Sec. 5848, R. S. 1909, providing that “no committee shall have the power to substitute, to fill any vacancy, the name of any person who is not known to be of the same political belief and party as the person for whom he is substituted.” That section lays a duty upon the party committee, but it lays none on the county clerk, and it does not authorize him to exercise the judicial function of saying that the person substituted is known not to be of the same political belief and party as the person for whom he is substituted.</p> <p>3. --: Candidates: Payment of Filing Fee. Held, by BROWN, J., that a county clerk cannot refuse to print the name of a candidate for office on the party ticket on, the sole ground that he had not paid the filing fee to the committee treasurer required by Sec. 5879, R. S. 1909. Said requirement is violative of the constitutional provision (Art. 2, sec. 9) ordaining that “all elections shall he free and open.” That provision applies to both candidates and voters. Such a statute is against sound public policy.</p>

— Eon. James D. Barnett, Judge. (1) The evidence as to declarations by Harriet McFarland concerning the consideration for the deed in… Held: owned and enjoyed by her during her natural life with full power to sell and dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon sale or other disposition of any or all of mjr said property, hereby expressing the fullest confidence in my said wife in…

— Hon. Joseph D. Perkins, Judge. (1) The arrangement between Tobias and Ringolsxy, outlined in the contract of July 10, 1905, created a partnership between the parties named. This being true, Tobias could not, at the expense of Ringolsky, make any contract with Gundling whereby Gundling, the owner of the property being purchased by the partnership, should pay to Tobias, a member of the partnership, a part of the purchase price received by Gundling.

Prohibition. (1) The supreme lodge in taking possession of the property of the subordinate lodge through its agents, as it did, was within its rights, was proceeding regularly as prescribed by the laws of the order, and the law of the land will not intervene at this juncture to arrest such possession and give the property back to the subordinate lodge. State ex rel. v.' Grand Lodge, 8 Mo. App. 154; Colman v. Supreme Lodge, 18 Mo. App. 189; Mulroy v. Knights of Honor, 28 Mo.

— Hon Henry G. Riley, Judge. (1) The case was one of mutual fault, to say the least of it, and the law will not cast all the consequences on the defendant, nor will it attempt any apportionment of it. Zumault v. Eailroad, 175 Mo. 288. In this case Zumault at night, while waiting for a train, sat down on the platform and went to sleep, and was struck by a train. .

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) A failing or insolvent debtor lias the right to prefer one creditor over another, even though the effect of the preference is to hinder and delay other creditors, and even though the creditor has knowledge that the debtor intended to hinder, delay or defraud his creditors.

<p>IMPLIED EASEMENT: Obstruction: Injunction. For the reason stated in Bussmeyer v. Jablonsky, 241 Mo. 681, the judgment in this case in which plaintiff wishes to enforce an implied easement conferred upon one piece of property by the owner of the adjoining piece, and to enjoin the defendants from obstructing the entrance to a three-foot passageway upon a lot owned by defendants, is reversed, the facts and issues being the same.</p>

— Hon. Haywood Scott, Judge. STATEMENT. This suit was decided by the Springfield Court of Appeals by the affirmance of the judgment for plaintiff on the second count of his petition and the reversal and remanding of his judgment on the fourth count of his petition.

<p>Appeal from Gasconade Circuit Court, — Hon. John W. Booth, Judge.</p>

— Hon. Nat. M. Shelton, Judge. The court erred in sustaining the demurrer to plaintiffs’ petition. It states a good cause of action in equity.

Court. — Hon. James T. Neville, Judge. The court erred in overruling defendant’s demurrer to the evidence: (1) The negligence alleged was leading “a wild and unruly mule” in a “careless and negligent manner. ’ ’ There was a total failure of proof. The mule was quite gentle. A careless manner of leading a gentle mule is not alleged. In order to recover plaintiff was obliged to prove that the mule was wild and that defendant knew it. Cathorn v. Walsh, 7 Mo.

Henry G. Riley, Judge. (1) The dedication was in substantial compliance with the statute and is a good statutory dedication. Buschmann v. St. Louis, 121 Mo. 523; Price v. Breckenridge, 77 Mo. 447; Reid v. Board, 73 Mo. 295; Otter-ville v. Bente, 240 Mo. 291. (2) (a) But if we concede that the plat was insufficient as a statutory dedication, it was good as a common-law dedication when accepted by the city by opening and improving the streets as platted.

<p>1. APPELLATE JURISDICTION: Errors Corrected Sua Sponte: Retransfer After Motion Overruled. The Supreme Court is a court of errors, and the power to correct its own errors is self-evidently an integral part and parcel of its powers to correct the errors of other courts, and the duty to correct them in the same case at the first opportunity is always present where a ruling is sharply wrong and unsettles correct practice of the law. And especially is this true of so vital a question as jurisdiction — a question always obtruding itself sua sponte in any case in any court. So that where a case has been transferred to the Supreme Court by the Court of Appeals, on the ground that the amount in dispute exceeds $7500, and a motion to retransfer on the ground of lack of jurisdiction has been overruled, although the court could undoubtedly take the question as foreclose^ once for all, yet if upon further examination it appears that the motion was improvidently overruled, the case will he retransferred.</p> <p>2. -: Contest Between Guardians: Amount in Dispute. The Supreme Court does not have appellate jurisdiction of an appeal from a judgment of a court of equity decreeing that an Iowa guardian of an insane person whose domicile is in that State is not entitled to have the administration of the Missouri guardian closed and all the assets turned over to him, where the value of her estate in this State amounts to only $10,000. Neither guardian owns the fund in his own right; both are trustees, and she is the beneficial owner; the value of the right to the custody of the fund, in either, depends upon the perquisites, emoluments and fees of his trusteeship falling to him in administering the estate, and the value of those things is “the amount in dispute” between them, and that value cannot by any legal estimate amount to $7500, where the assets are worth only $10,000.</p>

James D. Barnett, Judge. (1) The two tests adopted in this State to determine whether a second petition is an amendment or the substitution of a new cause of action are: first, that the same evidence will support both petitions; second, that the same measure of damages or recovery will apply to both'petitions. Scovill v. Glasner, 79 Mo. 449; Walker v. Railroad, 193 Mo. 477; Ross v. Land Co., 162 Mo. 317.

Louis City Circuit Court. — Eon. G. G. Allen, Judge. (1) The trial court found for the defendant not only against the weight of the evidence, but in direct opposition to all of the evidence in the cause, and the court therefore erred in overruling plaintiff’s motion for a new trial. Doering v. Sauna, 56 Mo. 480; Ittner v. Hughes, 133 Mo. 680. Dower is not within the Statute of Limitations, unless made so expressly. Dyer v. Witler, 89 Mo. 95.

— Ron. N. D. Thurmond, Judge. The judgment of the court was not warranted by tbe pleadings or the evidence: (1) The only reason alleged and the only reason shown by the evidence for setting aside the sale was the inadequacy of the price. Inadequacy of price aloné is not sufficient to set aside a sale. Holdsworth v. Shannon, 113 Mo. 508; Davis v. McCann, 143 Mo. 172; Hanson v. Neal, 215 Mo. 256.

— Eon. Walter A. Powell, Judge. (1) The court erred in giving at request of respondent, oyer the objection of appellant, instruction A, because it required tbe jury to assess the cost of fences as a distinct item of damage and it also contains overlapping provisions. ' Railroad v. MurpMne, 4 Wa'sh. 448; Glendenning’ v. Stahley, 173 Ind. 681; Farmers Co. v. Cooper, 54 Colo. 409; Newgass v. Railroad, 54 Ark. 145; Pittsburg v. McCloskey, 110 Pa.

<p>1. PLEADING: Proof: Surplusage. Proof is required of those allegations only that are necessary to a recovery, and those unnecessary to that end may be eliminated as surplusage.</p> <p>2. -: -: -: Action for Ravishing Unconscious Female: Cause of Unconscious State: Not an Issue: Instructions. Where the petition in an action for damages for ravishment alleged that the defendant, a physician, administered medicine to the plaintiff while she was sick in bed, and she having become unconscious under the influence of the medicine, the defendant had sexual intercourse with her, the cause of the plaintiff’s unconsciousness was not an issue, and the giving of an instruction requiring a finding that it resulted from the medicine was reversible error.</p> <p>5. ACTION FOR RAVISHMENT: Female’s After-agreement to Keep Silent: Her Testimony. Where there is reversible error in an instruction, a verdict for the defendant in an action for damages for ravishment will not be affirmed on the ground- that the testimony of the plaintiff, who had agreed to keep silent in consideration of a payment to be made to her by the defendant, was unworthy of belief.</p>

— Ron. James D. Barnett, Judge. (1) It is a principle established beyond controversy that “the negotiation of sales of goods that are in another State for the purpose of introducing them into the State in which the negotiation is made is interstate commerce” and is protected from local interference, burdens, or tax, by clause 3, section 8, of article 1, Constitution of the United States, which pro-, vides, that, “Congress shall have power1 — to regulate commerce with foreign…

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. A complaint will be regarded as stating but one cause of action although it may pray for many and various forms of relief where they are all germane to the vindication of a single primary right.” Kelly v. Hurt, 61 Mo. 463; Lincoln v. Rowe, 51 Mo. 571. “Since a bill is single and does not misjoin different causes, so long as its object is the complete enforcement of one general right, the fact that different defendants…

<p>Appeal from St. Lonis City Circuit Court. — Hon. George G. Hitchcock, Judge.</p>

— Eon. John P. Butler, Judge. (1) The contract sued on required the plaintiff to furnish an abstract to his land showing a good title in him; this requires him to have a record title, one that can be shown by an abstract, and requires him to furnish an abstract showing that he has such title. Thompson v. Dickerson, 68 Mo. App. 535; Birge v. Bock, 44 Mo. App. 69; Bruce v. Williams, 102 Mo.

Louis City Circuit Court. — Hon. Chas. Glaflin Allen, Judge. (1) The instruction allowing’ for the expense of future medical services was erroneous, for, (a) There was no evidence to support it. Duke v. Railroad, 99 Mo. 347; Slaughter v. Railroad, 116 Mo. 269; Gribler v. Terminal Assn., 203 Mo.. 208.

— Eon. A. E. Waller, Judge. (1) The petition does not state a canse of action and the court erred in overruling defendant’s objection to the introduction of any evidence thereunder. The petition disclosed that defendant was engaged in interstate commerce and decedent employed in such commerce, therefore the only cause of action that could have arisen was by virtue of the Federal Employers Liability Act and there could be no action maintained under Sec. 5425, R. S. 1909.

— Hon. D. E. Blair, Judge. (1) The court erred in admitting the land tax book of Jasper county for the years 1906 and 1907, which evidence shows a different valuation from that certified to by the clerk of the board of equalization on the city tax books. The city officers of Carterville had a right to rely upon the assessment appearing on the city tax book in making their levy. Sec. 5941, R. S. 1899; Sec. 9347, R. S. 1909.

Mandamus. (1) Section 8396, discriminating by one-balf in passenger fares in favor of tbe organized militia of the State, is arbitrary and capricious, and violates the express command of section 14 of article 12, Constitution of the State, which makes it the duty of the General Assembly to enact laws to prevent unjust discrimination in passenger tariffs on the different railroads of the State.

Certiorari. The Springfield Court of Appeals in its opinion admits “that the dimensions and material of the sewer must have been prescribed by an ordinance,” but contends that the contractor’s bid and acceptance of the same by ordinance meets the requirements.

— Hon. Charles D. Stewart, Judge. The board of supervisors alone has power to locate the ditch. R. S. 1909, sec. 5512. Held: until they have carried out their plans, judging the future by the past. (1) All motions which have formed a basis of exceptions must be set out in the bill of exceptions, or where it appears in the record proper (as here) a call must he made in the hill for the motion itself. Martin v. Ést. of Nichols, 63 Mo.

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.</p>

<p>1. NEGLIGENCE: Instruction: Legal Presumption of No Negligence: Modification. An instruction for defendant stating to the jury the legal presumption that the injury or accident was not “due to any fault or want of care on the part of defendant,” if it goes on to tell them to disregard the legal presumption if they believe the evidence introduced by plaintiff in support of her cause of action, but to find for defendant if they disbelieve it, or if they believe the weight of the evidence to be with defendant on the issue of negligence, or if the conflicting evidence simply creates an equilibrium of proof, is not erroneous.</p> <p>2. -: -: injured “In Any Other Way.” An instruction for defendant that tells the jury that plaintiff cannot recover if her husband was injured “in any other way” than as set forth in the allegations of specific negligence contained in the petition, is not error, even though there is evidence that he was injured by malarial fever, if other instructions require the jury in unmistakable terms to confine their attention toi the specific injuries alleged.</p> <p>3. -: -: Converse of Plaintiff’s. If plaintiff is given an instruction on the theory that if the street car started prematurely defendant was chargeable with his injury, defendant is entitled to one submitting the converse theory, namely, whether the car upon which plaintiff’s husband desired to embark stopped a reasonable time to permit him to do so with safety, even though there is no testimony that he “waited an unreasonable time before attempting to board the car.”</p> <p>4. REMARKS OF COUNSEL: No Exception. Appellant cannot complain if he did not except to the failure of the court to further reprimand counsel for stating as a fact something not shown by the evidence, where the court as soon as the statement was made contradicted it and said his contradiction was made in “correction of the statement of counsel.”</p> <p>5. JUROR: Friendliness to Defendant’s President. A juror who states on his voir dire that he has known defendant’s president for thirty-five years and that their relations are very friendly, but states that such friendship will not influence his verdict, and that he will be guided by the evidence and the instructions of the court, is not incompetent.</p> <p>6. NEGLIGENCE: Evidence: No Report of Injury. It was not reversible error to permit defendant’s claim-agent to testify that the custom and due course of business required a report of an accident or injury to a would-be passenger to be made by the street car conductor to defendant’s managing officers for their information, and that no such report of the injury to plaintiff’s husband was made. But the only relevancy of such testimony is to shed light upon the conduct of defendant in failing to take such steps as prudence would have suggested if it had been informed of the accident.</p>

Certiorari. (1) The right of the relators to invoke this remedy and the right of this court to issue its writ of certiorari is now fully determined, and cannot be questioned. Thomas v. Mead, 36 Mo. 232; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Broaddus, 245 Mo. 123; Curtis v. Sexton, 252 Mo. 221; State ex rel. v. Ellison, 256 Mo. 644.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The property in suit directly adjoining on the east other property of complainant, was in the .peaceable, undisputed and uninterrupted possession of complainant for some six years immediately preceding and up to the time it was dispossessed by defendant. November 21, 1910. The property is unimproved, neither paved nor in any manner fitted for wharf purposes and used by complainant as a lumber yard.

Louis City Circuit Court. — Eon. O’Neil Ryan, Judge. STATEMENT. There were two appeals in this case, both primarily to the St. Louis Court of Appeals. One was taken by the Merchants Exchange from that portion of a decree of the trial court which enjoined it from enforcing’ a resolution suspending plaintiff, C. H. Albers, for a definite period from any and all privileges of the Board of Trade conducted by the Merchants Exchange.

— lion. William G. Ellison, Judge. (1) The court erred in giving defendant’s instruction 1. This instruction is error, for it told the jury that the “Plaintiff approached the defendant and used violent and threatening language and in an angry and threatening manner,” and there was evidence that the plaintiff used any violent language or threatening language, or was even angry. Felver v. Bail-road, 216 Mo. 195; Dee v. Nachbar, 207 Mo. 680.

— Hon. W. N. Evans, Judge. (1) The sale of tlie property in question was by virtue of a judgment, and not by the collector by virtue of Ms officé. Wagner’s Statutes 1872, chap. 118, sec. 182, and following. (2) The judgment of the county court is not subject to collateral attack. Leonard v. Sparks, 117 Mo. 103; Yoeman v. Younger, 83 Mo. 424. (3) The collector’s deed in question was sufficient to convey a good title. Raley v. Guinn, 76 Mo. 263.

— Hon. Nat M. Shelton, Judge. (1) The court erred in sustaining the motion to quash, for the reason that all of the proceedings are in strict conformity to the requirements of the statute, and the statute is definite and certain. R. S. 1909, secs. 9258 to 9275. (2) The court erred in dismissing the case, for the reason that the proceedings being in strict conformity to the statute it was the duty of the court to proceed by a new inquest of damages. Statutes, supra.

— Hon. Francis H. Trimble, Judge. (1) The court erred in overruling plaintiffs’ demurrer to the new matter contained in defendant’s answer, “that under the law this estate cannot be partitioned and that the heirs of James M. Stockwell are necessary parties.” Robertson v. Brown, 187 Mo. 462. (2) The court erred in its finding and judgment that the estate described in plaintiffs’ petition could not be partitioned, and in dismissing plaintiffs’ petition and denying partition.

<p>1. EVIDENCE: Error in Exclusion: Cured by Cross-Examination. On a trial for embezzlement, error in sustaining an objection to a question whether the prosecuting witness had expected to marry the defendant was ’ cured by the fact that after such ruling the witness was fully cross-examined on that point and stated that there was a prospect that they might marry in the future.</p> <p>2. -: Theory of Defense: Embezzlement. While it is true that when the evidence in a- criminal case tends to establish a defense inconsistent with the testimony of the defendant, he is not bound by his testimony, but is entitled to instructions on the theory shown by the other evidence, yet he may not cause the court and adversary counsel to pursue a certain course and then at the outcome repudiate its legal validity; and accordingly, where a defendant on trial for embezzling $2000 testified that he never received the sum in question, and his attorneys at the trial said they did not claim it was borrowed money, the testimony of the prosecuting witness at the preliminary examination was properly admitted at the trial, although the examining court had refused to permit her to say whether she had received $50 for the use of $200 lent the defendant at another time, thus, the defendant asserts, denying him the right to a full cross-examination, and of the value of a fact, if the question had been affirmatively answered, from which the jury might have inferred that the $2000 was a loan also.</p> <p>3. -: Judge’s Comment at Preliminary Hearing: Incompetent at Trial: Harmless Error. Although comment on the evidence by a judge at a preliminary examination is not competent evidence' on the trial, yet where the evidence itself was before the jury and plearly bore out the judge’s comment, the admission of the. judge’s expression was harmless error.</p> <p>4. -: Impeaching Witness: Particular Instances of Misconduct. The character of a witness cannot be impeached by showing through other witnesses special instances of misconduct. .</p> <p>5. -: Admissibility: Embezzlement: Defendant Showing Possible Use of Money by Prosecutrix. Proof that the prosecuting witness, since deceased,, whose testimony at the preliminary hearing was read in evidence at the trial of the defendant for embezzlement, had been in trouble with the Federal officers and had hired lawyers to represent her, was not competent without a showing that the lawyers were paid the money the defendant was charged with embezzling.</p> <p>6. ORDER OF PROOF: Discretion of Court: Embezzlement. The order of testimony rests largely in the discretion of the trial court, and it is not error to admit in rebuttal testimony which might have been given in chief.</p> <p>7. ARGUMENT of Counsel: Epithets not Approved: Non-prejudicial Error. Epithets applied to a defendant by the State’s attorney in his argument to the jury are not approved, but where the court is satisfied that calling the defendant a “crook” did not influence the verdict there is no ground for reversal.</p> <p>8. -: Expressing Belief in Defendant’s Guilt: Non-prejudicial Error. An expression by the State’s attorney in his argument to the jury of his belief in the defendant’s guilt is not approved; but such misconduct of. counsel is not reversible error when the evidence clearly justified a conviction.</p>

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) Tbe action of tbe St. Louis Court of Appeals transferring tbis cause to this court was erroneous and unauthorized by law. Tbe reduction of plaintiff’s claim from $10,000 to $4500, before the appeal was taken, left the amount in controversy within the jurisdiction of the St. Louis Court of Appeals at the time the appeal was taken. State ex rel. v. Broaddus, 212 Mo. 689.

<p>1. NEGLIGENCE: Obstruction in Public Street:. Knowledge. Where a plaintiff, driving in a buggy, in broad daylight, along a public street, with actual knowledge of the existence of loose gas pipes and other temporary obstructions therein, is injured by the wheel of his buggy coming in contact therewith, he cannot recover for his resulting injuries, unless he exercised ordinary care to observe and avoid such obstructions. The rule that in driving along a public highway he had the right to assume (without looking) that said highway was free from obstructions, has no application where he had actual knowledge of such obstructions. Such actual knowledge required him to keep a diligent lookout for them.</p> <p>2. -: -: -: Protruding Gas Pipe: Failure to Look: Contributory Negligence. And though the defendant were negligent in permitting the end of a large gas pipe to protrude into that part of the street left open to public travel, that did not relieve the driver of a buggy along the part left open from the duty of keeping a lookout for temporary obstructions after he observed that the street was torn up for the purpose of laying gas pipes; and if, with such knowledge, he did not look out for such protruding end, and fails to show that he could not have driven around it if he had looked and seen, his injury must be held to be the direct result of his own negligence.</p>

<p>1. CITY ORDINANCE: In Conflict with Statute: Retrospective: Viaduct: Public Service Commission: Suspension of Judgment. A city ordinance requiring a railroad company to construct a viaduct or bridge over its tracks at a street crossing, at its own expense, is in conflict with the statute permitting the Public Service Commission to apportion the costs of the viaduct between the city and the railroad company; but the statute is a later enactment, and does not have a retrospective operation, and cannot be held to nullify a suit to enforce the provisions - of the ordinance prosecuted to judgment before the enactment of the statute.</p> <p>2. -: Suspension By Statute. Whatever rights have been acquired by a city, and whatever has been legally done under its charter and ordinances, prior to the enactment of a statute, are beyond the power of the General Assembly to disturb by such statute.</p> <p>3. -: -: Rights Acquired By Violation of Ordinance. If the city ordinance is valid and binding, the railroad company cannot gain any advantage by Violating it. Where it appears that, if the railroad company had obeyed the ordinance requiring it to build a viadúct in a street crossed by its tracks, the viaduct would have been almost completed before the suit was brought to compel it to obey it, the courts will not listen with patience to its prayer that, as no actual work has been done on the viaduct and the later enacted statute permits the Public Service Commission to apportion the costs between the city and the company, said apportionment should be made by the courts.</p> <p>4. VIADUCT OVER STREET: Overhead or Under Tracks: Option. Under the charter of the city of St. Louis the Missouri Pacific Railway Company does not possess an option to cause streets to pass over or under its tracks, and mandamus will lie to compel it to obey an ordinance requiring it to construct a viaduct over its tracks crossing a public street. In ordering the abolition of a grade crossing the city proceeds under the authority of its charter, which is an exception to the general statutes pertaining to the subject.</p> <p>5. ORDINANCE: Recital of Reasons for Its Enactment: Viaduct Over Street. A legislative body need not recite the reasons which move it to enact a law. The law when enacted furnishes its own reasons. A railroad company cannot refuse to obey an ordinance requiring it at its own expense to construct a steel viaduct over its tracks at a street crossing for that the ordinance does not declare the existing grade crossing a public nuisance, or that it is dangerous, or states no reason for' requiring a separation of grades at said crossing.</p> <p>6. VIADUCT AT STREET CROSSING: No Benefit District). A railroad company is not justified in refusing to obey an ordinance of the city of St. Louis requiring it to construct at its own expense a steel viaduct over its tracks at a certain street crossing, because certain statutes intended to apply to cities of- the first class require the establishment of a benefit district “to pay for the damages which may be caused to any property by reason of the construction of such subway or viaduct,” and no such benefit district has been established; for, said city is not of the category of cities of the first class, but is organized under a special freeholders’ charter authorized by the Constitution, and said statutes do not apply.</p> <p>7. -: Title of Street: Admitted in Return. The title to public streets is necessarily in the city; and if defendant in its return to the writ of mandamus, commanding it to construct a viaduct over its tracks at a certain street crossing, admits that the street was at all times a public street, it will not be heard to contend that the title to the street is in it.</p> <p>8. -: Unreasonable Ordinance: Must Be Pleaded. When a defendant wishes to avoid the provisions of an ordinance on the ground that they are unreasonable, the particular facts which render them invalid should be pleaded. A general allegation that the “ordinance is unreasonable upon its face, is unjust and oppressive, and was passed, without due consideration and without affording defendant an opportunity to be heard,” is not sufficient to authorize a court to hold that an ordinance requiring defendant to construct at its own expense a steel viaduct over its tracks at a street crossing is unreasonable.</p> <p>9. APPEAL: Grounds Not Mentioned In Motion for New Trial. Constitutional objections to an ordinance set up in tbe answer, but omitted from defendant’s motion for a new trial, will not be considered on appeal.</p>