Volume 71 — Missouri Reports

<p> Appeal from St. Louis Court of Appeals. </p>

<p> Appeal from St. .Louis Court of Appeals. </p>

<p>Equity: assignment fob the benefit of creditors : misjoinder of actions. The petition stated that one of the defendants executed a deed of assignment to the other defendants for the benefit of all his creditors, including the plaintiffs; that the trustees entered upon the discharge of their trust, but gave no bond, appointed no day nor gave notice thereof, as required by statute ; that plaintiffs had, therefore, never presented their demands; that the debtor and one of the trustees afterward entered into an agreement in writing with plaintiffs, who were induced to enter into the same by fraudulent representations on the part of defendants, whereby plaintiff’s stipulated for the retention and exclusive control by the debtor of , the assets formerly assigned and for other engagements on the part of the defendants, and they, in consideration thereof, agreed to forego their rights under the assignment, and that in case of any violation by the debtor of the terms of the agreement, it should become void. The petition then alleged breaches of this agreement and non-complianóe with the representations inducing the same; that the debtor had conveyed to one of the trustees several tracts of land, and that the defendants had failed and refused to exhibit, on oath, a statement of the accounts of their trust to the circuit court. It prayed a rescission of the agreement on account of the fraud alleged, that the deed of conveyance should be set aside as fraudu- ■ lent, and that the trustees might be required to make to the court a full and detailed statement of their trust. Held, that the trial court properly refused to permit plaintiffs to introduce any evidence under their petition; because,</p> <p>1 st, The observance of a stipulation in an agreement between a debtor and part of his creditors, that he should have the exclusive possession and control of goods formerly assigned by him for the benefit of all his creditors, would be fraudulent and avoid the assignment. .</p> <p>' 2nd, If a debtor, who has previously conveyed to trustees for the benefit of his creditors, afterward conveys to one of the trustees the same land, such trustee would take subject to the assignment» and the creditors would not be prejudiced thereby.</p> <p>3rd, A suit to set aside, on the ground of fraud, a conveyance by a debtor of land not included in-his assignment for the benefit of creditors, should not be joined with a suit for an accounting under the assignment.</p> <p>4th, If trustees in a deed of assignment for the benefit of creditors fail to discharge their duties, they may be removed by a proceeding at law and others placed in their stead.</p> <p>5th, Where there was an agreement between a debtor and some of Ms creditors whereby they were to forego the benefits of an assignment by Mm for the benefit of all his creditors, Reid, that, if such agreement was valid and he had so violated it as to absolve the other parties from their obligation, they could claim under the assignment with the other creditors, and there would be no occasion for an equitable proceeding to vacate the agreement.</p>

<p>1. City of Kansas: ordinances: city marshal: fees. The common council of the City of Kansas, pursuant to the powers conferred by charter, provided by ordinance that the city officers should receive as full compensation for performing the duties of their respective offices, per annum, to be paid in quarterly installments, in warrants drawn on the city treasurer, as follows : “ The city mar-shall $100, and for making an arrest, $1; for serving a subpoena, twenty-five cents ; for summoning a jury, $1; for serving an attachment, $1.50; and for serving a notice in condemnation cases, twenty-five cents.” “Section 2. The officers entitled to fees by the-preceding section will be entitled to receive the same when paid.” Held, that these provisions did not mean that the marshal could in no case look to the city for the payment of the fee allowed him for making an arrest unless the fee was taxed as cost and paid by the' party arrested to the city; that if such had been the intention it ought to have been clearly expressed in the ordinance; and that as without the modification made by the second section, he could only have received his compensation for arrests quarterly, this section was intended to authorize him to receive, in case of arrest, conviction and payment, by the party arrested, of the fine -and costs, his compensation for the arrest at the time these costs were thus paid; but that his right to receive from the city the $1 fee for each arrest was absolute and unconditional.</p> <p>2. -; -: -: -. Under an ordinance providing compensation only for making arrests, serving subpoenas, summoning jurors, and serving attachments and notices in condemnation cases, the city marshal was not entitled to compensation for serving notices to appear before the board of equalization.</p> <p>3. -: -: -: -. An ordinance provided for the killing of all dogs, not muzzled, 'found running at large contrary to the orders of the city physician; and authorized the mayor to appoint a person to kill such dogs, who should receive for each dog killed the sum of twenty-five cents. It appeared from the evidence that it was not the intention of the mayor to make such an appointment, but he instructed the marshal to kill the dogs, and to use the police force of the city for this purpose, and that the marshal issued to the police, each night, rations of poisoned meat, and that he cooked and cut up the meat and put poison in it, but the city paid therefor, and the police force distributed it. Held, that the police force was to be regarded as an agency of the city and not of the marshal, and that the marshal had not been appointed under the ordinance and was not entitled to receive the fees thereby provided, hut a reasonable compensation, only, for his services.</p>

The case was tried before W. G-. McGregor, Esq., sitting as Special Judge. The defendant was indicted for assault with intent to kill, but before trial the indictment was stolen from the clerk’s office. A new indictment was then found by the grand jury upon which he was tried and convicted. Erom this conviction he took this appeal.

<p>Procedure in Municipal Court: criminal law. Under.the charter and ordinances of the city of Missouri City, the recorder has no power to issue a warrant of arrest or a summons against one charged with an offense, and no jurisdiction to try him for the offense, until a written or printed statement of the charge has been filed.</p>

<p>Railroad Crossing: failure to ring or whistle : negligence. A switch-crossing provided by a railroad company across its own ground for ingress to and egress from its depot, is not a “traveled public road ” within the meaning of section 38, of the railroad act> (Wag. Stat., 310). Failure of a train approaching such crossing to ring a bell or sound a whistle does not, therefore, constitute a violation of that section; but whether it may not constitute negligence on the part of the company depends upon the circumstances of the case, and is a question of fact for the jury. (Following Bauer v. K. P. By. Co., 69 Mo. 219.)</p>

<p>Municipal Corporation: liability fob damage to adjoining pbo- - pbietor in bbconstbuction of sewebs. The charter of the city of St. Louis conferred upon the city exclusive control over its own • sewers. The general, law authorized any railroad company to con- ' struct its road along any street of any city in the State, provided the assent of the city vas first obtained. The city of St. Louis, by ordinance, gave its assent to the construction of a subterranean railroad along and under one of its streets, but reserved the right, in case it became necessary in the progress of the work to remove any sewer, to supervise and control the work of removal and reconstruction. It did become necessary to remove one of the sewers, which was accordingly removed and reconstructed outside the line of • . the tunnel which was built for the use of the railroad. Owing to the negligence of the company’s contractor in the reconstruction of this sewer, the foundation of a house fronting on the street gave way and the house was greatly damaged. In an action against the city to recover damages for the injury; Held, that the city was liable; and the fact that its officers failed to exercise any supervision or control over the work was no defense. It was their duty to have done so.</p>

<p>Landlord and Tenant: covenant foe renewal : covenant to pay double kent : holding ovek : tenant’s status. A lease for a term of years contained a covenant for the payment of double rent for every day the tenant might hold over after the expiration of the term, with a further covenant that after such expiration the tenant should have the privilege of renewal for a further term at the same rent as that reserved for the first. The tenant held over for a number of years, paying rent at the old rate. No new lease was executed, neither party requiring it. Held, that inasmuch as the tenant had paid the single and not the double rent, he must be taken to have hold over under the covenant for renewal, and his liability was the same as if a new lease had actually been executed.</p>

<p>1. Liability of Public Officers on Illegal Contracts Executed on behalf of the Public. Where the officers of a public or municipal corporation acting officially enter into a contract under an innocent mistake of law, in which the other contracting party equally participates, with equal opportunities of knowledge, neither party at the time looking to personal liability, the officers are not personally liable; and the same rule applies to the officers of a public body which is not a corporation.</p> <p>.4. Case Adjudged. Defendant executed a note as director of a public school district, for the benefit of the district, in good faith believing himself authorized to bind the district, and intending to bind it and not himself. The other parties to the note, before it was executed, concluded from an examination of the school law, that the district could be so bound. This proving to be an erroneous conclusion, this action was brought to charge the defendant as maker. Held, that he was not bound.</p>

<p>1. Master and Servant: their respective duties touching machinery FURNISHED BY MASTER TO SERVANT : DEFECTS, LATENT : DEFECTS, patent. A brakeman, while engaged in coupling cars at night, stepped into a hole under a tie, by which his foot was caught and he was thrown under the moving car which passed over his legs? causing serious and permanent injuries. The defect in the road was not patent, but required inspection to discover it, and he bad never worked on this portion of the track before. His attention had been. called to the generally unsafe and dangerous condition of the track, but not to the specific defect causing his injuries. He was ignorant of its existence, and the attention of the servants of the railroad company, whose duty it was to attend to the track, had more than once been called to its dangerous condition, but they had taken no steps to repair it. In an action brought by him to recover damages for the injuries sustained; Held, ‘that the following rules are well settled:</p> <p>1. A master is not an insurer of the safety of his servant, and is under no absolute obligation to provide for him safe machinery and implements, or to keep these in good order and condition; but it is his duty to use reasonable caré and precaution for these purposes.</p> <p>2. If there are defects in the machinery or implements, known to the servant, and he will, notwithstanding, enter into the master’s service, he takes upon himself the risk incident to such defects.</p> <p>3. It is not incumbent upon the servant to search for latent defects in machinery or implements furnished him by his employer, but he has, without any investigation, the right to assume that they are safe and sufficient for the purpose.</p> <p>4’. In case of a patent defect, or such as the servant, if ordinarily observant, would have discovered by his ordinary use of the machinery or implement, his opportunity to know would be held arknowledge, whether in fact he knew of the defect or not.</p> <p>5. If the servant of a railroad company appointed to keep the track in repair, knows, or by the proper discharge of his duty might know of its condition, then hjs knowledge, or that which he might have acquired, is imputable to the company.</p> <p>2. -: -. Although a servant may have had equal means with his master of ascertaining defects in machinery or implements provided by his master, this will not necessarily preclude him from recovering damages from his master for injuries received by him consequent upon such defects,' if, in fact, he was ignorant of their, existence, and they were ndt .patent, or such as would have been disclosed to him, if ordinarily observant, by his actual and ordinary , use of such machinery or implements. He has a right to assume that the machinery and implements furnished him by his master are safe and suitable for the business, and he is not, while the master is, required to examine them for that purpose.</p> <p>3. Damages, Mental Pain and Anguish, as Elements of. In actions under statutes giving a right of action to the relatives of a deceased person for his death, the damages recoverable are only such as are pecuniary and actual, or fixed in amount by the statute; but in actions brought by the parties injured themselves, mental pain and anguish are also proper elements of the damages, although no malice or wantonness be charged.</p> <p>4. Damages, not Excessive. There were three verdicts in this cause — the first for $10,000, the second for $12,000, and the third for $10,000; Held, that this court could, with no propriety, say that the latter verdict was excessive.</p>

<p> Appeal from St. Louis Court of Appeals. </p>

Error 'to Cole Circuit Court. — Hon. G. W. Miller, Judge. At the January term, 1878j of the Col.e circuit court, a special judgment was rendered in favor of the City of Jefferson and against the defendant, Curry,for certain taxes due on two lots of ground. The taxes were adjudged to be a lien on the lots. On the 11th day of March, 1878, a special execution was issued, made returnable to the next May term of court.

<p>Principal and. Ancillary Administration: liability of administrator. Where the same person conducts the principal administration of an estate in another State, and ancillary administration here, he. will not be liable upon his ancillary bond for the proceeds of land sold in the other State, though the money is brought into this State.</p>

<p>Appeal from Stoddard Circuit Court. — Hon. R. P. Owen, Judge.</p>

<p>Appeal from Clay Circuit Court. — Hon. Geo. W. Dunn, Judge.</p>

<p>Guaranty: notice : promissory note. A guarantor of a promissory note is not entitled to notice before suit of demand upon the maker and refusal by him to pay.</p>

<p> Appeal from St. Louis Court of Appeals. </p>

— Hon. S. A. Richardson, Judge. Defendant gave evidence tending to show that his purchase of the possession from the widow Harman was made for the benefit of himself alone. argued that no title passed by the trustee’s deed, and that appellant had acquired the exclusive right to the possession by this purchase from the widow Harman. argued that Givens and Venable were joint purchasers under the deed executed by the sheriff as trustee, and the presumption is that the…

<p> Appeal from St. Louis Court of Appeals. </p>

<p> Appeal from St. Louis Court of Appeals. </p>

Louis Court of Appeals. The plaintiffs filed a petition in behalf of themselves and all other citizens and taxpayers of the city of St. Louis charging that the city was a municipal corporation, whose corporate powers were defined by its charter; that plaintiff's were resident citizens and taxpayers of the city; that the defendants are respectively the city, its auditor, its comptroller, its treasurer and the Times Company of St. Louis;, that by the charter of the city the…

<p>(Negligence: a case of contributory negligence on the part of plaintiff’s intestate defeating recovery. In an action against a railroad company to recover damages for the killing of plaintiff’s husband, the evidence showed the circumstances of his death to have been as follows: Deceased was a repairer of cars, of some years experience, in the service of another company, and was familiar with defendant’s freight yard, and knew that the work of switching and making up trains was constantly going on there. He also knew the customary mode of doing this work. Defendant had in its yard a repair track, and separate from it, a track known as a transfer track, which was specially set apart for cars whose contents were to be transferred to other roads. On the day of the accident defendant’s car repairer was engaged in inspecting a car standing on this transfer track, when deceased happened to pass by. He called to deceased to look at some work that had been done upon the car. Deceased was in the act of complying with this request, and was probably standing or stooping on the track at one end of the car, when another car switched down the track from the opposite direction in the usual manner, struck the first and sent it forward several feet, running over him and inflicting the injuries of which he died. Defendant’s car repairer, (who was the only eyewitness,) testified that the accident happened almost the instant he spoke to deceased. The evidence tended strongly to show that there was a brakeman in charge of the colliding car, but that it would have been impossible for him, if he was on the look-out, to see deceased. Held, that plaintiff was not entitled to recover.</p>

<p>Equity: county court’s control over collector. The county court having accepted from the county collector abend and mortgage to secure a delinquency in his accounts, afterward surrendered and canceled them without receiving payment of the debt. This action being brought by the county to set aside the order of surrender and cancellation as having been illegally and fraudulently made, and to reinstate the bond and mortgage; Held, that there was no ground ■ for the interposition of a court of equity.</p>

<p>1. Lease of an Organ: sale by lessee passes no titie. One E received an organ from plaintiff under a written lease, conditioned for the payment of rent monthly, and further conditioned that E should have the privilege of purchasing at any time during the continuance of the lease at a price fixed, in which event all previous payments of' rent should be deducted. The title was expressly reserved to plaintiff. E, without purchasing, sold and delivered the organ to defendant, representing it to be his own. Defendant bought in good faith, without notice of the lease, and paid full price; Held, that he, nevertheless, got no title ; and it was immaterial that the lease was.not proved or acknowledged and recorded.</p> <p>2. Defect of Parties: practice. It is too late to raise the objection of defect of parties after verdict.</p>

<p>Appeal from- Macon Circuit Court. — Hon. John W. Henry, Judge.</p>

— IIon. Geo. IT. Burckiiartt, Judge. The circuit court decreed that arr account be had and taken between plaintiffs and defendants, as partners, each party to be held responsible in proportion to stock subscribed to the articles of association.

<p>Appeal from Clark Circuit Court. — Hon. Jno. C. Anderson, Judge.</p>

<p> Appeal from St. Louis Court of Appeals. </p> <p>1. The evidence of defendant’s prior mistreatment of deceased should not have been admitted. U. S. v. Armstrong, 2 Curtis O. C. 446; U. S. v. Mingo, 2 Curtis C. C. 1; Com. v. Hawkins, 3 Gray 463 ; Green v. State, 13. Mo. 382; State v. Sehoenwald, 31 Mo. 147; State v. Foster, 61 .Mo.'552; State v. Underwood, 57 Mo. 45; State v.' Lane, 64 Mo. 322.; Stale v. Goetz, 34 Mo. 91; State v. Harrold, 38 Mo. 498; Farrer v. State, 2 Ohio St. 75 ; Barton v. State, 18 Ohio 224; Beg. v. Oddy, 1 Den. & Pearce Brit. Crown Cas. 266; Beg. v. Butler, 2 Car. & Kir. 221; State v. Daubert, 42 Mo. 246; Walker v. Com., 1 Leigh (Ya.) 574; Shaffner v. Com., 72 Pa. St. 65 ; Kinchelow v. State, 5 Iiumph. 9 ; State v. Shuford, 69 N. C. 486 ; Wiley v. State, 3 Coldw. 372; Light-foot v. People, 16 Mich. 507; Mason v. State, 42 Ala. 533; s. c., 42 Ala. 543; U. S. v. Mitchell, 2 Dallas 357; Wharton Cr. Law, §§ 631, 632, 633, 634, 635, 650 ; State v.Boberts, 62 Mo.. 388; Dyson v. State, 26 Miss. 385; Hudson v. State, 3 Coldw. 361; State v. Creson, 38 Mo. 373; 3 Greenleaf Ev., §§ 25, 53; Com.v. Webster, & Cush. 325; People v. White, 14 Wend. Ill; People v. Stout, 4 Park. Crim. R. 127; Beg. o. Dossett, 2 Car. & Kir. 306; 1 Phillips Evidence, (Cow. & Hill Ed.) 644; Roscoe Crim. Ev., 92-; State v. Keene, 50 Mo. 360 ; State v. Sloan, 47 Mo. 611; Bex v. Birdseye, 4 C. & P. 386; Starkie Evidence, 379; State c. Braunschweig, 38 Mo. 589; State v. Dominique, 30 Mo. 585; Beg. v. Voke, 1 R. & R. (Brit. Cr. Cas.) 531; 3 Russell Crimes, (9 Ed.) *289; Beg. v. Bailey, 2 Cox C. C. 311; Bex v. Mogg, 4 C. & P. 364; ■ State v. Bash, 12 Ired. 383; Stone v. State, A Humph. 27; Johnson v. State, 17 Ala. 619; People v. McCann, 3 Park. Cr. R. 272; People v. Williams, 3 Park. Cr. R. 84; 1 Chitty Cr. Law, § 564.</p> <p>2. The court should have instructed the jury that the evidence of prior acts was admitted only for the purpose of proving intent. Com. v. Shepard, 1 Allen 575; Stout v. People, 4 Park. Cr. R. 132. State v. Watkins, 9 Conn. 47; Shajfnerl v. State, 72 Pa. St. Rep. 63; State v. Hart, 66 Mo. 215; Leonard v. Smith, 11 Met. 332; King v. Grant, 3 Neville & Manning’s Rep. 106; McTavish v. Carrol, 13 Md. 440; O'Brien v. Hilburn,22 Texas 616; State v. Wadsworth, 30 Conn. 56; State u. Neville, 6 Jones 432; Henry v. Everts, 29 Cal. 610 ; King o. Faber, 51 Pa. St. 387; Johnson v. Mar-shall, 34 Ala. 522.</p> <p>3. The defendant should have been apprised, before the trial, of the names of-the State’s witnesses. Pay v. State, 1 Greene 316; Holbrook v. Nichol, 36 111. 161; Peers v. Davis, 29 Mo. 190 ; Graham & Wat. on New Trials, p. 952; Queen’s case, 2 Brod. & Bing. 312; Ware. v. Ware, 8 Me. 54; Wilson v. Clarke, 27 Miss. 270; Todd v. State, 25 Ind. 220; Keller v. Blasdel, 2 Nev. 162; Knox v. Bigelow, 15 Wis. 415 ; Morrow v. Hatfield, 6 Ilumph. 108; Stewart v. Durrelt, 3 Monr. 113; Vannerson v. Pendleton, 8 S. & M. 452; Donnallen v. Lennox, 6 Dana 89; Price o. Ford, 7 Monroe 399: 18 Eng. L. & Eq., 105 ; Holmes v. McKinney, 4 Monr. 5.</p> <p>4. The court erred in refusing and failing to instruct the jury as to the effect of a reasonable doubt as to the existence of deliberation or premeditation. Com. v. McKie, 1 Gray 61; State v. McCluer, 5 Nev. 132; Com. v. Kimball, 24 Pick. 366; West v. State, 1 Wis. 209 ; Henderson v. State, 14 Texas 514.</p> <p>5. Evidence of defendant’s good character was admitted; it was, therefore, the duty of the court to have instructed as to its legal effect. State v. Alexander, 66 Mo. 161; U. S. v. Poudenbush, 1 Baldwin 514 ; .State v. McMurphy, 52 Mo. 251; State v. Matthews, 20 Mo. 55; 1 Wharton Cr. Law, § 643; 2 Starkie Ev., 472.</p> <p>6. Defendant’s motion for a discharge should have been granted. Pobinson v. State, 12 Mo. 595 ; State v. Luting, 21 Mo. 475; Com. y. Sheriff, 16 Serg. & R. 304; Com. v. Phillips, 16 Mass. 423. Peg. v. Fuller, 9 C. & P. 35; Ex piarle Stanley, 4 Nev. 113 ; Campbell v. State, 11 Ga. 365 ; Cooley Const. Lim., 311; Pex v. Beardmore, 7 C. & P. 497; Reg. v. Bridgman, 1 Car. & Marsh. 153 ; Com. v. Prophet, 1 Browne 135.</p> <p>1. The defendant was not entitled to be discharged. Nixon v. State, 2 Sm. & Marsh. 497; Ex parte Stanley, 4 Nev. 116; Ex parte Donaldson, 44 Mo. 149.</p> <p>2. The evidence of defendant’s abuse of deceased, and of his previous attempts to kill her, was properly admitted. Wharton Grim. Law, §§ 635,636, 639,640,. 647, 647a; Wharton Horn., §§ 701, 725 ; 2 Russell Crimes, (9 Ed.) 288, 289 ; Rex. v. Voke, Russ. & R. 531; Reg. v. Weeks, Leigh & Cave 18; Reg. v. Roebuck, 36 Eng. L. & Eq. 631 ; Com. v. Bradford, 126 Mass. 42; State v. Rash, 12 Ired. 382; Johnson v. State, 17 Ala. 618; McCann, v. People, 3 Park. Cr. R. 272 ; Stone p. State, 4 Humph. 27 ; People v. Stout, 4 Park. Cr. R. 71; Dunn o. State, 2 Ark. 229 ; State v. Watkins, 9 Conn. 47 ; State p. Green, 35 Conn. 203; Bottomley v. U. S., 1 Story C. C. 135 ; State v. Raymond, 20 Iowa 582.</p> <p>3. There was no surprise. State v. Rogers, 37 Mo. 367; Matthews p. Allaire, 11 N. J. L. 242; R. R. Co. v. Vosburgh, 45 111. 311; Peers v. Davis. 29 Mo. 184; Boyce v. Mooney, 40 Mo. 104 ; 3 Gra. & Wat. NewTr., 875, 876, 877.</p>

<p>Error to Cedar Circuit Court. — Iíon. Jno. D. Parkinson, Judge.</p>

.Louis Court of Appeals. cited Gaylord Manufacturing Go. v. Allen, 53 N. Y. 515; Dutchess Co. v. Harding, 49 N.' Y. 321; Stevens v. Mackay, 40 Mo. 224; Graff v. Foster, 67 Mo. 512. McCullough was but a special agent. The acts of a special agent must be strictly within the scope of his agency. Story Agency, (3 Ed.) § 126, p. 144; Rossiter v. Rossiter, 8 Wend. 494; Fast India Co. v. Hensley, 1 Esp. Ill; Rursley v. Morrison, 7 Ind. 356.

<p>1. Proceedings by Administrator de bonis non to Compel former Administrator to Account: practice: notice. It was necessary to the validity of a proceeding in the probate court instituted by an administrator de bonis non under section 67 of article 1 of the administration law, (1 "Wag. Stat., 81,) to recover assets not accounted for by the former administrator, that he, as well as his sureties, should be notified ; but if, after appeal, the administrator entered his appearance in the circuit court, that authorized the rendition of a judgment there against both him and the sureties.</p> <p>2. Administrator’s Bond. It is not essential to the validity of an administrator’s bond that it shall have been approved by the probate court.</p> <p>3. -: delivery : erasure op names of sureties. An administrator’s bond, after being signed, was placed by the administrator in a pigeon-hole of a desk where other probate papers were kept, and at which business of a probate nature was transacted, and which was in the office of the judge of probate and under control of himself and his clerk; and, thereupon, the administrator entered upon the discharge of his duties; Held, that these facts sufficiently proved delivery and acceptance of the bond. Held, further, that the subsequent erasure of the names of the sureties would not release them from liability.</p>

<p>Municipal Corporation: liability for flooding property by constrüction of a street. A city is liable in damages for the flooding of private property caused by the construction of a street in pursuance of a plan prescribed by ordinance, only when the injury is the result of negligent execution of the plan, not when it is the result of a defect in the plan itself.</p>

<p>Appeal from Jackson Circuit Court. — Hon. S. H. Woodson, Judge.</p>

<p>An Order of Court held not Ees Adjudicata. A court of bankruptcy ordered the assignee of a railroad company, which had appropriated plaintiff’s land to its own use, to pay him $200 for his damages upon receiving from him a deed to the land. Plaintiff was a party to the bankruptcy proceedings, but he declined to take the, money or make the deed. In an action by him against one claiming under the company to recover for the land; Held, that the order of the bankruptcy court was no judgment and no bar to his recovery.</p>

— Hon. J. B. Robinson, Judge. The eleventh instruction given for plaintiff authorized the jury to treat tbe acts and negligence of one William Madge toward deceased as tbe acts and negligence of defendant, and to bold the defendant liable accordingly, provided tbey should find that said Madge, at the time of tbe accident, which occasioned this suit, “ was acting for and in the employ of defendant in. the yard at Belmont, and that his duties were to direct and control,…

Original Mandamus. This was an application for a mandamus against Judges Lewis, Bakewell and Hayden, the judges of the St. Louis court of appeals, to compel them to entertain an application made to that court for the approval of an appeal bond, and, if the bond should be found sufficient, the granting of a supersedeas. The relator had already applied for, and the court had allowed, an appeal to the-Supreme Court.

<p> Appeal from St. Louis Court of Appeals. </p>

Louis Court of Appeals. 1. To be estopped, Boecke must have intended to influence the conduct of the party invoking the estoppel. Bezel v. Odell-, Devereux v. Burgioyn, 5 Ired. Eq. 855 ; Welland Canal Co. v. Hathaway, 8 Wend. 488; Howard v. Hudson, 2 El. & Bl. 1; Blumer v. Lord, 9 Allen 458; Audenried v. Betteley, 5 Allen 385; Pickard v. Sears, 6 Ad. & El. 474; Copeland v. Copeland, 28 Me. 539; Califf v. Hillhouse, 3 Minn. 315; Reynolds v. Lounsbury, 6 Hill 536; Rig.

<p>Injunction: irreparable damase. A petition which shows that defendants are about to open a road through plaintiff’s premises and for that purpose are about to cut' plaintiff’s timber and hedges and remove his fences, thereby exposing his crops and fruit trees, and his meadow and pasture lands to. the depredations of stock, states a good cause for injunction. It is" not necessary to aver and prove in addition that the defendants are insolvent. Such injuries would be irreparable in a legal.s§nse. '</p>

<p> Appeal from Butler Circuit Court. </p>

<p>'Master and Servant: personal injury through' incompetency op fellow servant : burden of proof. Proof that a servant was incompetent does not devolve upon his master when sued for injuries occurring to a fellow servant through such incompetency, the burden of proving that the master used ordinary care and prudence in the selection of the servant.</p>

Louis Court of Appeals. 1. It was the duty of defendant to deliver the machines to the persons named in the bills of lading.

<p>Appeal from Butler Circuit Court. — Hon. R. P. Owen, Judge!</p>

<p>1. Murder; deliberation. The trial court, in defining the crime of murder in the first degree, charged that, ‘‘ deliberately means intentionally, purposely, considerately; therefore, if the defendant formed a design to kill, and was conscious of such purpose, it was deliberate.” Held, error.</p> <p>Varianee. A variance between the true name of the deceased 2. and the name as given in an indictment for his murder, .will not prevent conviction unless the trial court finds it to be material to the merits of the case and prejudicial to the defense.</p>

— Hon. G-. H. Burckhartt, Judge. Mary O. Thornton and AmosB. Thornton sued Bragg by attachment, and among others garnished the National Exchange Bank as tbe holder of a note for $4,744.50 made by one Lamkin.

Habeas Corpus. On the 29th day December, 1879, the petitioner, Bur-rill Claunch, killed William T. Brownlee, by shooting him with a shot-gun. On the next day he surrendered himself to T. B. Murray, a justice of the peace, before whom an affidavit was made charging him with the homicide. Thereupon Murray issued a warrant to constable Ramsey, under which Ramsey took Claunch into custody.

<p>Appeal from Jackson Circuit Court. — Hon. S. H. Woodson, Judge.</p>

— Hon. John ~W. Henry, Judge. This was an action of replevin.

Original Quo Warranto. The respondent, Mead, having been appointed by the county court of Livingston county to fill a vacancy in the office of recorder of deeds of that county, the attorney general instituted this proceeding to vacate the appointment.

<p>Negligence, A ease of, Defeating Recovery on the part of the Plaintiff. In an action against a street railway company to recover damages for the killing of plaintiff’s child by defendant’s car, the facts appeared, by the testimony of plaintiff’s witness, to be as follows: The car was moving at a moderate rate of speed on a slightly down grade, and witness was standing beside the driver, when he heard the driver shout, “ look out,” “ hold on,” or “ stop.” Turning, he saw plaintiff’s child, (a boy three years old,) about six feet ahead of the car-mules and four feet from the track, and run* ning toward the track. The driver, with his right hand on the brakes and his left pulling on the lines with such force that the tongue went up over the heads of the mules, was doing his best to stop the car. The child ran to the middle of the track, where he was overtaken and crushed by the car. The whole transaction seemed to the witness to have occurred “in a moment.” There was no positive proof that the driver saw the boy at all before he hallooed; Held, that on this state of facts the plaintiff was not entitled to recover.</p>

— Hon. G. H. Burckhartt, Judge. At the date of the sale by McOorkle, trustee, R. Gr. Maupin was the owner of the note for $386.25, secured by the deed of trust.

<p>Appeal from Jackson Criminal Court. — Hon. H. P. White, Judge.</p>

— Hon. E. J. Broaddus, Judge. The record allows that there was a democratic State and. county ticket and a greenback county ticket upon which no names appeared as candidates for treasurer and prosecuting attorney. The names of two gentlemen who were independent candidates for those offices were printed upon the ballots in question, with the word “ independent” opposite each name.

<p>1. Competency of Juror who has formed an Opinion. One of the persons summoned as jurors, on his examination on the roir dire, said: “I have heard the case talked about a good deal. I have read the publications in the St. Charles papers with reference to the case, and from what I have heard about the matter, I have formed and still retain an opinion as to the guilt or innocence of the defendant. I have not talked with any of the witnesses or any one who pretended to know the facts in the case. I formed my opinion from what I read in the newspapers and conversations I’ve had with others about the case. I can hear the evidence and render a fair and impartial verdict in the case regardless of such opinion. I have at this time no bias or prejudice against the prisoner, from what I have read or heard, which would prevent my giving Mm a fair and impartial trial after having heard the evidence.” He further said that “ It would take evidence to remove the opinion thus formed.” Held, that he had not such a fixed opinion as disqualified him to serve as a juror on the trial of the case. (Following State v. Core, 70 Mo. 491, and o.ther cases.) Henry and Hough, JJ., dissenting. ■</p> <p>2. Criminal Law: punishment op youth under sixteen. Section 15, article 9 of the statute concerning crimes and punishments, pro* vides: “ Whenever any person under the age of sixteen years shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail, not exceeding one year, instead of imprisonment in the penitentiary, as prescribed by the preceding provisions of this law.” Held, that this section makes imprisonment in the county jail a substitute for imprisonment in the penitentiary only, not for the death penalty.</p>

Louis Court of Appeals. argued, inter alia, that the relation of master and servant did not exist between the railroad company and Merry, citing Stevens v. Armstrong, 6 N. Y. 435; Wood v. Cobb, 13 Allen (Mass.) 58; Hill v. Morey, 26 Yt. 17-8; Vanderpool v. Husson, 28 Barb. 196; Cincinnati v. Stone, 5 Ohio St. 38; Samyn v. McClosky, 2 Ohio St. 536; Wood on Master & Servant, p. 537, § 281, and note; lb., p. 508, §§ 304, 306; lb., p. 585, § 306; lb., p. 630, § 217; lb., pp.…

<p>Appeal from Linn Circuit Court. — Hon. G. D. Burgess, Judge.</p>

— Hon. W. F. Geiger, Judge. The plaintiff filed a petition in the circuit court of Greene county which was substantially as follows : That plaintiff is a corporation duly incorporated and organized under the general laws of the State of Missouri; that on the 26th day of October, 1870, Harriet Bailey made and published her last will, as follows : * * Second.

<p>ZPraud: evidence of, between intimates. Transactions between persons occupying intimate and confidential relations are subject to a more jealous scrutiny than those occurring between mere strangers, and the parties are held to fuller and stricter proof of the consideration and fairness of such transactions, when they conflict with the rights of others.</p>

<p>1. " Will: evidence. To deprive one of land devised to him, on the ground that the testator, after making the will, conveyed the land to another person bjr a deed which was lost without ever being recorded, thé evidence in support of the deed ought to he clear. The sworn statement of the person claiming as grantee, unsupported by other evidence, is not sufficient.</p> <p>2. Foreign Judgment may be Impeached for want of Hotice. The record of a judgment rendered in another State may be impeached in a collateral proceeding by evidence showing that the defendant had no notice of the action and never authorized any one to appear for him, even though the record affirmatively states the contrary.</p> <p>3. Former Judgment: no estoppel. In a proceeding brought in Tennessee for the settlement of an estate in which the present plaintiff had an interest, to which proceeding she was not made a party, it was adjudged that certain land now claimed by her belonged to another, who, however, was required to account for its value, whereby the distributive share of the present plaintiff was increased and she received a portion of her share in money on that basis. Beld, that these facts did not preclude the plaintiff from asserting her claim in this action.</p> <p>4. Ho Laches. Until two years before this suit was brought plaintiff had no knowledge of any title in herself to the land sued for. For many years previous her aunt had represented herself to be owner, and had exercised acts of ownership without objection from plaintiff, who during the whole time had labored under the disability either of infancy or coverture ; Held, that her acquiescence did not amount to laches, so as to bar the assertion of her claim.</p> <p>5. Plaintiff in Ejectment, not Required to Refund Taxes. The plaintiff in ejectment cannot be compelled, before recovering, to refund to the defendant taxes paid by him under a claim of ownership but without title or color or title.</p>

— Hon. I). L. Hawkins, Judge. Ejectment by Lydia DeLassus, claiming as heir of William A. DeLassus, ber deceased son, against Robert E. Gatewood.

<p>Appeal from Johnson Circuit Court. — Hon. E. P. Wright, Judge.</p>

— Hon. Geo. W. Dunn, ' Judge. This was an action under the 43rd section of the railroad law to recover double damages for the killing of a mare belonging to plaintiff. The railroad company had made a farm crossing over its road for one Elliott Miller, who owned land on both sides of the road. Instead of gates with latches or hooks for a fastening the company had provided sliding panels in the fences. These panels, Miller testified, were satisfactory to Mm.

<p>Vendor’s Lien in favor of Vendor’s Assignee. The assignee of a note given for the purchase money of land may enforce a vendor’s lien against the land in the hands of the vendee, the same as the vendor himself could.</p>

<p>Appeal from Cape Girardeau Circuit Court. — Hon. D. L. Hawkins, Judge.</p>

<p>1. Parties to Action. One of two joint owners of goods cannot sue alone for their conversion.</p> <p>2. Rule that Plea in bar Waives Dilatory Pleas, Changed by Statute: non-joinder of parties. Sections 4 and 13, article 5 of the practice act, (Wag. Stat., pp- 1014,1016; R. S. 1879, §§ 3513, 3522,) have had the effect of doing away with the common law rule that a plea in bar waives all dilatory pleas, or pleas not going to the merits. A plea of non-joinder of parties plaintiff, therefore, may now be united in the same answer with matter in bar of the action. (Overruling Rippstein % Insurance Company, 57 Mo. 86, and Fordyce v. Hathorn, 57 Mo. 120.)</p>

<p>1. Municipal Corporation: liability for permitting obstruction of streets. I£ a municipal corporation, after notice that one of its streets or highways has been obstructed, fails to have the obstruction removed, it will be liable in damages to any one who may sustain any special injury by reason of the obstruction. If there be no injury except such as is common to the whole public, the only remedy is by indictment against the obstructor.</p> <p>2. --: DUTY TO KEEP STREETS UNOBSTRUCTED : USER. A municipal corporation is as much bound to keep a street or highway free from obstruction when the title has been acquired by user as when acquired by grant or condemnation.</p> <p>3. -: evidence oe establishment of streets. Parol evidence is not admissible to prove the establishment of a public street; the record should be produced.</p> <p>4. —-. Semble, that a municipal corporation cannot escape liability for permitting the obstruction of a street, by showing that it has established another which the plaintiff might use.</p> <p>5. Governor’s Veto: computation of time. In computing the ten days allowed by the constitution to the governor within which to return a bill with his veto, the rule of excluding the first and including the last day should be applied.</p>

— Hon. Vm. S. Shirk, Judge. The statement in the justice’s docket that “ the plaintiff made proof of his cause of action,” does not mean that evidence was heard on the question whether the garnishee was indebted to Cooper, but that plaintiff introduced evidence to show that he had a judgment against Cooper which had never been satisfied.

<p>Appeal from Miller Circuit Court — Hon. G. W. Miller, Judge.</p>

<p>1. Criminal Law: practice in supreme court. The Supreme Court will not reverse a judgment in a criminal case on the ground that ■ the verdict is against the evidence, unless there is a total absence of evidence, or it fails so completely to support the verdict that the necessary inference is that the jury must have acted from prejudice or partiality. (State v. Cook, 58 Mo. 548.)</p> <p>2. Evidence. That a number of witnesses testify to a given state of facts exceeding the number who testify to the contrary, does not necessarily constitute a preponderance of evidence.</p>

— Hon. E. P. Wright, Judge. The affidavit to the petition was as follows : “ Plaintiff makes oath and says the above petition and the matters therein as stated, he believes to be true. A. R. Conklin.” 1. The sheriff’s deed conveyed no title, because the attachment proceedings were null and void ; and this, (a) because the petition showed upon its face that it was not verified by plaintiff, nor by his agent or attorney, as required by the practice act then in force.

<p>1. Heir, when not Proper Party to Suit. The heir is neither a necessary nor proper party to be joined with the administrator in an action to recover a demand due the decedent. (Brueggerrwn v. Jurgensen, 24 Mo. 87.)</p> <p>2. Remedy of Heir, when administrator fails to enforce claim due ms intestate from another estate. If the administrator of an individual estate permits the partnership estate of a firm of which his intestate was a member to he finally settled, without procuring the allowance and payment of a demand due the intestate from the firm, the remedy of the heir is against the administrator and the sureties in his official bond, and, if they are solvent, he has no remedy against the surviving partner, or his assignee holding property of the firm, with knowledge of the facts.</p>

<p>1. Guarantor cannot be Sued Jointly with Principal Debtor. The undertaking of a guarantor is his own separate and independent contract, distinct from that of the principal debtor. They cannot, therefore, be jointly sued.</p> <p>2. Justice’s Court: appeal : waiver. If the appellant, in a case begun before a justice of the peace, fails to give notice of appeal before the second term of the circuit court held after the appeal is taken, it is the duty of that court, on motion, to affirm the judg. ment; but, if the court refuses to affirm, and afterward the appellee engages in the trial, he thereby waives the error.</p>

— Hon. D. L. Hawkins, Judge. Defendant, as marshal of the Cape Girardeau common pleas court, held an execution in favor of one Meyers-and against the present plaintiff. The latter was a practicing lawyer, and owned a library of law books worth $3,000, besides other personal property worth $700. Defendant being about to make a levy, Drown wrote him a letter, in which he gave a list of his books and claimed exemption for all of them, as well as his other property.

<p>Error to Cass Circuit Court. — Hon. E. P. Wright, Judge.</p>

<p>Appeal from Gasconade Circuit Court. — Hon. A. J. Seat, Judge.</p>

<p> Appeal from St. Louis Circuit Court. </p>

<p>Appeal from Audrain Circuit Court. — Hon. G. Porter, Judge. ^</p>

<p>Administration: action for waste after final settlement. A petition in an action brought against an administrator by a distributee, after final settlement, to charge him for waste and mismanagement of the estate, is fatally defective, if it fails to state that there are no creditors, and that the property alleged to have been wasted was not applicable to the payment of debts. (Wag. Stat., p.118,2 6.)</p>

— Hon. ¥m. T. Wood, Judge. This was a suit for rent against defendant Blackburn. Flynn was joined as co-defendant. The petition averred that he had purchased of Blackburn the crop raised on the demised premises; that the purchase was made with full knowledge that it had been so raised, and that plaintiff’s rent was not paid, and that plaintiff was, therefore, entitled to a landlord’s lien upon the crop.

<p>1. The Indictment in this case is in one count, not two.</p> <p>2. Change of Venue: subpcena. From the time that a change of venue is ordered, the court to which the case is sent, has jurisdiction, and the clerk of that court alone can issue a subpoena for wit- ' nesses.</p> <p>3. • Practice, Criminal: attachment of witnesses. If the fact that a witness not duly subpoenaed, has been recognized to appear, is not shown by the record and is not otherwise made known to the trial court at the time an application is made for an attachment against him, the judgment will not he reversed for refusal to order the attachment; especially, where after the attachment is refused the defendant reads as the testimony of the absent witness what he states in an affidavit then made for a continuance the witness would testify to if present.</p> <p>4. ---: witnesses. It is a salutary practice, especially in criminal cases, to prohibit witnesses from communicating, during the trial, either with each other or with third persons concerning the case.</p> <p>5. -: harmless error in admitting evidence. Where evidence prejudicial to one of the defendants in a criminal cause is erroneously admitted, but that one is acquitted, the other cannot make that error ground for reversal of a judgment against him.</p> <p>6. -: withdrawing evidence by instruction. When evidence has been erroneously admitted in a criminal case, an instruction to the jury to disregard it, will not cure the error if the evidence is of a character to prejudice the defendant’s case; but it will suffice where it is apparent that it did not or was not calculated to have that effect.</p> <p>7. -: murder. A homicide Committed in the attempt to perpetrate robbery, is not necessarily murder in the first degree. (State v. Harnett, 70 Mo. 520.)</p> <p>8. Harmless Error in Instruction. If proper instructions are given in a criminal case, the judgment will not be reversed for the giving of others which are erroneous, if they are harmless.</p> <p>9. Instruction as to Admissions. Whether defendant has made any admissions or not, it is not error to give the jury a general instruetion that if they find he has made statements or admissions against his interest, such statements or admissions are evidence against him. It would lie different if the instruction contained the substance of a specific admission or statement.</p> <p>10. Instructions in Murder Cases: constitutional law: independence op the judiciary. Section 1234 of the Eevised Statutes of 1879, is not to be understood as requiring the trial courts, in murder cases, to instruct the jury as to murder in the second degree whether there is evidence to which the instruction could apply or not. If such were its meaning, it would be an invasion of the province of the judiciary. The legislature cannot prescribe what instructions the courts shall give, unless they have previously embodied into a legislative enactment, as the law of. the land, the substance of such instructions.</p> <p>11. Practice : jury. The fact that the jury deliberated on their verdict in a room in which was a set of Missouri reports, and that the bailiff in charge of them remained in the same room, will not vitiate a verdict if there was no improper conduct on the part either of the jurors or the bailiff.</p> <p>12. Prosecuting Attorney. The objections to a remark made by the prosecuting attorney in this case, Reid, frivolous.</p>

— Hon. Noah M. Givan, Judge. The plaintiff’s cause of action arose on the 11th day of June, 1877. in addition to other points presented in an elaborate brief, called special attention to the difference between section 5, article 9, constitution of 1865, which was in force when the-case of Barnett v. A. l¡¡ P. B. P. Co., 68 Mo. 56, arose, and section 8, article 11, constitution of 1875, which was in force when the present case arose, and argued that that case was not decisive…

<p>1. Willful Homicide: murder. A homicide committed willfully and without justification, but not deliberately or premeditatedly, is not murder in the second degree.</p> <p>2. Criminal Law: defendant as a witness. In a criminal proceeding the defendant’s status as a witness is the same as that of a party to a civil suit who becomes a witness for himself, but it cannot be declared, as a matter of law, that his testimony in his own behalf is entitled to the same credit as if he were testifying in a civil suit in his own behalf. (Criticising State v. Swain, 68 Mo. 608 )</p> <p>3. Evidence of Character: practice. Evidence in support of a witness’ character for truth and veracity offered before any impeaching testimony is introduced, is premature and should be excluded.</p>

<p>Indictment for Hog Stealing. The stealing of a hog being no longer grand larceny irrespective of value, (R. S. 1879, § 1307,) an indictment for stealing one should allege either that it was of the value of $30,. or more, or that it was under that value.</p>

<p>Error to Carroll Circuit Court. — Hon. E. J. Broaddus, Judge.</p> <p>cited 1 Green-leaf’s Ev., §§ 322, 323 ; Parsons v. Huff, 38 Me. 137; House v. Elliott, 6 Ohio St. 497; Merritt v. Yates, 71 111. 636 ; Ca-bell v. Grubbs, 48 Mo. 353.</p>

<p>1. Jury: waiver op statutory privilege. It is too late after conviction to object that the panel of jui-ors, from which the trial panel was selected, was insufficient in number. The right to have a number of qualified jurors equal to the number of peremptory challenges, and twelve in addition, before proceeding with the trial, is a statutory privilege, (Wag. Stat., 1102, § 7,) and is deemed waived if not claimed in time.</p> <p>2. Practice: judge’s control over the records op the court. If the record of a criminal case as made up by the clerk, erroneously fails to show that the defendant was present during the trial, the-judge may, at any time during the term, cause a proper entry to-be made showing his presence.</p>

<p>1. Municipal Corporation: liability foe flooding land by changing a stream. A city, in pursuance of power conferred by its charter, caused the waters of a creek running through its limits to be turned into a new channel. This channel proved so inadequate that the waters escaped and flooded plaintiff’s lot; Held, that the city was liable for the injury so inflicted.</p> <p>2. Implied Power of Agent. Authority given to an agent to open a new channel for the purpose of turning the course of a stream will include authority to erect a dam or break-water across the old bed of the stream as a means of expediting or accomplishing the work.</p>

<p>Appeal from Phelps Circuit Court.— Hon. V. B. Hill, Judge.</p> <p>The note sued on was for $132.87.</p>

<p>Appeal from'Moberly Common Pleas Court. — Hon. G. H. Eurckhartt, Judge.</p>

<p>Administration: mortgage: equity. -If in administrator sells land subject to'a mortgage, and afterward pays off the mortgage out of the general assets of the estate, he will have a clear equity against the purchaser for reimbursement out of the land. (Welton v. Hull, 50 Mo 296.)</p>

<p>1. Criminal Law: construction of statute. Where a criminal statute forbids several things in the alternative, it is to be construed as creating but one offense; and an indictment may charge the defendant with the commission of all the acts, using the conjunction and where the statute uses the disjunctive or.</p> <p>This rule applied to an indictment under the statute against obtaining money under false pretenses. (B. S. 1879, ? 1561.)</p> <p>2. Pleading, Criminal: indictment for false pretenses. An indictment under that statute charged that the money was obtained “ by means and by use of a cheat and a fraud, and a false and fraudulent representation and false pretense, and a false and bogus check and instrument, with intent,” &c.; Held, that it was not obj ectionable on the score of duplicity or multifariousness, or of the generality of the terms used.</p> <p>3. Constitutional Law: prisoner’s right to know nature and cause of accusation : false pretenses. The prisoner’s constitutional right to be informed of the nature and cause of the accusation is sufficiently assured to him if the indictment preserves the substance of - the offense. It is not necessary that it should descend to a minute detail of the facts and circumstances constituting the offense. On this principle the form of indictment for obtaining money by bogus checks, or other false pretenses, prescribed by section 1561, Revised Statutes 1879, is sufficient, and the section is constitutional.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Jos. P. Grubb, Judge.</p>

<p> Quo Warranto. </p>

— Hon. G-. D. Bursbss, Judge. Our statutes providing for an interplea, must mean something — be enacted to serve some' purpose; but if Clark can maintain this action, it is a mere pastime — concludes no one — simply lays the foundation for another suit; he interpleads to see whether he can maintain trespass. If the judgment on the interplea had been against Clark, it would have concluded him in this action.

<p>Appeal from Johnson Criminal Court. — Hon. W. H. H. Hill, Judge.</p>

<p>1. Negligence: contributory negligence not excused, unless. If the plaintiff in an action for personal injuries grounded on defendant’s negligence, has himself been guilty of negligence contributing to the injuries complained of, he cannot recover, though the defendant be likewise guilty, unless the defendant, at the time he com mitted his negligent act, was aware of the danger to which the plaintiff was exposed.</p> <p>2. Railroad.: failure to ring or whistle. While failure to ring the bell or sound the whistle, as the train approaches a street crossing, constitutes negligence per se on the part of the railroad company, it does not necessarily entitle the plaintiff to a verdict against the company in a case where he was himself guilty of negligence.</p> <p>S. - : duty to ring or whistle. The duty of ringing or whistling ata street crossing ceases as soon as the locomotive has passed the crossing. (R. S., § 800.)</p> <p>4. --: DUTY OF TRAVELER TO LOOK AND LISTEN FOR TRAIN AT CROSSING. It cannot be declared, as a matter of law, that a footman is bound, before crossing a railway track to stop, in order to look and listen for trains. That rule is applicable only to persons traveling in wagons or other vehicles which make a noise that would necessarily interfere with their hearing.</p> <p>5. -: -. Every person about to go upon a railway track, is bound first to use his senses of sight and hearing to ascertain whether a train is approaching.</p> <p>6. - : RIGHTS OF COMPANY AND THE PUBLIC IN PUBLIC STREETS. The rights of the public are not subordinate to those of the railroad company at the crossing of a public street; but where the track runs along the street, the rights of the public are subordinate, and persons walking on the track must keep out of the way of trains.</p> <p>7. Instructions, which group together facts which there is evidence to prove, and tell the jury the legal effect of those facts, if they find them to exist, are to be given in preference to such as deal in generalities.</p> <p>8. Contributory Negligence: case adjudged. Plaintiff, a man of mature years, in his right mind, with his eye-sight unimpaired, but deaf, without looking to see if a train was coming, went upon a railroad track and started down the track, when he was almost instantly struck and injured by a train approaching from behind. A short distance before reaching the track he passed a point where the train was in full view ; and a sidewalk for the use of pedestrians ran along-side the track; Held, a case of negligence precluding recovery against the railroad company for the injuries sustained.</p>

<p>Appeal from McDonald Circuit Court. — Hon. Jos. Cravens, Judge.</p> <p>cited Casey v. Clark, 2 Mo. 11; Davis v. M., K. T. Ry. Co., 65 Mo. 441; Brashears v.. Strode, 46 Mo. 221.</p>

<p>Municipal Corporation: special taxation eob street improvement. A city ordinance which, authorizes the cost of grading a section of a street to.be charged against, not only the property fronting on that section, but also property fronting on another section which has already been graded at the cost of that property exclusively, is so inequitable and unjust that it will not be sustained, unless the power to enact it is clearly given by the charter ; and even then it is doubtful if it could be upheld.</p>

— Hon. W. E. Geiger, Judge. In the year 1867 the board of directors of sub-district No. 3,'school township 13, range 22, employed plaintiff' to teach their district school and also rented a house from him for a school house.

<p>1. Indictment for Stealing Corn. An indictment under section 72, page 465a, Wagner’s Statutes, for stealing corn, alleged that the owner of the land from which the corn was taken, was to the grand jurors unknown, but that it was in the possession and under the control of one R. The indictment being assailed on the ground that these averments were inconsistent. Held, that the objection was untenable.</p> <p>2. -: Such an indictment need not state who was the owner of the corn, or that the name of the owner was unknown to the jury.</p> <p>3. -. The land from which the corn -was taken was described in an indictment drawn under section 72, supra,_ as “lots 53, 54, 66, 67 and 68, in range H, of the city of Cape Girardeau.” Held, a sufficient description.</p>

— Hon. E. J. Broaddus,. Judge. This was a suit to compel the defendant to account for-profits on the purchase and sale of an undivided three-fifths interest in a tract of land. This interest belonged to-the plaintiffs, who were minors at the time of the sale; and it was sold under an order of court made in a suit for the partition of the land. Defendant was the purchaser at the sale.

<p>Appeal from Jasper Court of Common Pleas. — Hon. E. O. Brown, Judge.</p>

<p>Debtor and Creditor: principal and agent: payment under protest. If a debtor pays money to a third party as the agent of his creditor, and afterward, under protest, pays again to the creditor, he cannot recover of the creditor that which he paid the supposed agent; for if he was really the agent, it was but a payment of his debt; if he was not the agent, the creditor is of course not liable. The debtor’s cause of action, if' he has any, is for the money paid under protest.</p>

<p>Error to Eranklin Circuit Court. — Hon. A. J. Seat, Judge.</p>

<p>1. Action for Negligence : railroad : pleading. A petition in an action against a railroad company by an employee, stating, without arty specific facts, that the plaintiff was injured in consequence of the negligence of the company in using defective machinery and in running and managing its railroad, and cars, would he fatally defective ; and when such general allegations are used in connection with a specific statement of a cause of action, they will be treated as explanatory of that statement only, and will not enable the plaintiff to recover for any other cause of action.</p> <p>2. -: variance between allegata and probata. Where the allegation in a petition against a railroad company is that the plaintiff received the injuries complained of through the negligence of the company in having and using defective machinery, and in running and managing its railroad and cars, and the proof is that the injury was occasioned by a broken frog, the plaintiff cannot recover. (.Bvffvncjlon -o. A. & P. P. P. Co., 64 Mo. 246.)</p> <p>3. --: variance : failure of proof. In such a case as the foregoing the variance is not one which will he deemed immaterial unless it is shown to the court by the affidavit of the party that he has been misled and in what respect, (as provided by section 1, page 1033, Wagner’s Statutes,) but it is a case of entire failure of proof within the meaning of section 1, page 1058, Wagner’s Statutes.</p>

— The case was tried before. S. H. Owens, Esq., sitting as Special Judge. The particular description of the lot sought to be charged, which was stricken out of the petition by stipulation of the parties, was not found on the assessor’s list or the tax books. The description there was simply “Part of inlot numbered 331 on the plat of the city.”

<p>Replevin. To maintain replevin, the plaintiff must be entitled to the immediate and exclusive possession of the property. Hence the action will not lie where the plaintiff and defendant at the time of the caption were joint owners.</p>

<p>Adverse Possession : forcible entry and detainer. A forcible entry upon the actual adverse possession of another, followed by an unlawful detainer, does not-interrupt the adverse possession, if an action for the forcible entry and detainer is Commenced within a reasonable time and prosecuted to a successful termination. (Following Ferguson v. Bartholomew, 67 Mo. 212.)</p> <p>Appeal from Carroll Circuit Court — Hon. E. J. Broaddus, Judge. ' •</p>

Louis Court of Appeals. On the 5th day of June, 1864, Mrs. Anne L. Hunt became the owner of 400 shares of stock in the Masonic Hall Association of the par value of $8000. On the 5th day of June, 1869, the association issued its bonds to the amount of $60,000. The plaintiff becamethe owner of some of these bonds, and on the 1st day of April, 1876, sued and shortly afterward obtained judgment against the association upon them.

<p>Practice, Criminal: plea of guilty. If the defendant enteTS a plea of guilty under the belief induced by something said or done by the judge, that by so doing he will receive a punishment less severe . than the maximum allowed by law, he should not afterward be sentenced to the maximum, but should rather be permitted to withdraw his plea and file a plea of not guilty, if he so desires.</p>

<p>Appeal from Howell Circuit Court. — Iíox. J. R. "Woodside, Judge.</p>

<p>Appeal from, Webster Circuit Court. — IIon. R. W. Eyann, Judge.</p>

<p>Appeal from Randolph Circuit Gourt. — Hon. G. II. Burokhartt, Judge.</p>

<p>1. Criminal Law: plea of guilty under agreement as to sentence. If a defendant in a criminal case enters a plea of guilty in consequence of an agreement with the prosecuting officer, apparently sanctioned by the judge, as to the sentence, a more severe sentence should not be awarded. He should rather be allowed to withdraw his plea of guilty and file a plea of not guilty, if he desires.</p> <p>2. Bill of Exceptions after Judgment. A defendant who has received sentence upon a plea of guilty is entitled to have a bill of exceptions allowed showing the action of the court upon a motion to set aside the judgment.</p>

— Hon. A. J. Seay, Judge. This was an action brought by the sisters and brothers of Casper H. Bueggesick, deceased, to set aside his will. The defendant, Christine Bueggesick, was the sister-in-law and sole legatee, and defendant Hasten Buschmann was the executor of the will. as to the testamentary capacity of deceased, cited Horne v. Horne, 9 Ired. 99; Stevens v. Vamcleve, 4 Wash. C. C. 262; 3 Wash.

<p>1. Instructions in a Murder Case. It is error to instruct the jury as to murder in the second degree when,, under the facts shown by the evidence, if defendant committed the homicide at all, he is guilty of murder in the first degree, and of no other grade of homicide.</p> <p>2. Murder in the Second Degree. Malice is an ingredient in the crime of murder in the second degree.</p>

<p>1. Counter-claim: “transaction” defined. The term “transacaction” as used in the code definition of counter-claim, (R. S. 1879, 2 3522,) includes all the facts and circumstances out of which the injury complained of by plaintiff arose. If these facts and circumstances also furnish to the defendant aground of complaint, or cause of action against the plaintiff, the defendant will be entitled to present such cause of action as a counter-claim, showing by proper averments that it is a part of the same transaction which is made the foundation of plaintiff’s claim.</p> <p>2. -. Where the “ transaction ” originated in a contract, the defendant may plead a breach of the contract by way of counterclaim, though the plaintiff’s action is in tort.</p>

<p>Mistake: equity will not relieve against neligent mistake. Equity, ■will not relieve against mistake when the party complaining had within his reach the means of ascertaining the true state of facts, and, without being induced thereto by the other party, neglected to avail himself of his opportunities of information.</p>

— Hon. I). L. Hawkins, Judge. 1. The attachment suit was no bar to plaintiff's recovery in this action. Although our statute provides that the administrator of a party dying while proceedings in attachment are pending shall separately inventory the property, (Wag. Stat., p. 90, §§ 60, 61,) and says the lien is not lost; in the very next section it provides that the widow may have her dower in it, and the whole of it may be taken to pay first and second class claims.

— Hon. Jos. P. Grubb, Judge. 1. The defendant was entitled to be notified of the existence of the nuisance, if there was one, and to be requested to abate it, before being sued. PenruddocRs Case, 5 Coke 101; Slight v. Gutzlaff, 35 Wis. 677 ; Johnson v. Lewis, 13 Conn. 307; Pillshury v. Moore, 44 Me. 154 ; Mc-Donough v. Gilman, 3 Allen 264; Woodman v. Tufts, 9 N. II. 88; Pierson v. Glean, 2 Green (14 N. J. Law), 36; Huckenstine’s Appeal, 70 Penn.

<p>Appeal from Jasper Circuit Court. — Hon. Joseph Cravens, Judge.</p> <p>cited 1 Parsons Notes and Bills, 38, note k; Story Promissory Notes, §§ 33, 37> 38; Seay v. Bank, 3 Sneed (Teun.) 558; Gibson v. Minet, 1 H. BL 569, 608.</p> <p>cited 1 Daniel Negot. Instr., §§ 145,146, 175 ; Story on Bills, § 175 ; Brummel v. Binders, 18 G-.ratt. 895 ; Cruchley v. Clarance, 2 Maulé & Sel. 90.</p>

— Hon. E. J. Broaddus, Judge. This was an action for a trespass alleged to have been committed by defendant by entering upon plaintiff’s land and tearing down and removing his fence.

<p>Appeal from Jackson Circuit Court. — Hon. S. H. Woodson, Judge.</p>

<p>Impeachment of Witness. For the purpose of impeaching tlie testimony of a witness, it is competent to inquire concerning her general moral character and the state of her feelings toward the par" ties.</p>

<p>The judgment in this case is reversed because the evidence fails to identify the defendant as the guilty party. ,</p>

<p>Corporation: creditor’s remedy against stockholder: garnisiimjsnt. A. stockholder can only be made liable to an execution creditor of the corporation on garnishment when he is in default to the corporation for installments due on his stock, or for calls made by the directors. If his liability is not due according to the terms of his subscription, and no call has been made by the directors, the creditor’s remedy is by special execution awarded under section 13, page 291, Wagner’s Statutes. (Following Hannah v. Moberly Bank, 67 Mo. 678.)</p>

<p>Uninclosed Land: damage to trespassing stock. The owner of a horse which strays upon an uninclosed lot and there falls into a hole and is killed, cannot recover the loss of the owner of the lot.</p>

<p>Appeal from Lafayette Circuit Court. — Hon. Wm. T. Wood, Judge.</p>

— Hon. E. J. Broaddus, Judge. TMs was an action of ejectment in the ordinary form, brought by Martha J. Gamble and Permelia J. Leonard and Thomas Leonard, her husband. Before the ..trial, Martha J. Gamble died. No steps were taken to bring'in her successors in interest. At the April term, 1874, and on the 23rd of that month, the cause was tried, and the minute book of the clerk for that term shows the following entry: ‘‘ Gamble et al., v. Daugherty.

<p>1. Ejectment: certainty in description op land. A petition in ejectment should describe the land sued for in such terms that, in the event of plaintiff’s recovery, an-officer, charged with the execution of a writ of possession describing it in the same terms, will know from the writ what land it is his duty to put the plaintiff in possession of.</p> <p>2. -: -: practice: evidence. If the deed under which plaintiff in ejectment claims title is defective in description, his petition should give an adequate description, and then upon the trial it may be competent for him to supply the defect by parol evidence.</p>

<p>1. Execution Returnable at wrong Day, not Void. An execution issued out of a court of record and by mistake of the clerk made returnable before the time fixed by law, is not for that reason void, but continues in‘force until the time when by law it is returnable, and a levy may be made at any day before that time.</p> <p>Ü. Ejectment: evidence: practice. A defendant in ejectment will not be precluded from availing himself of evidence offered by the plaintiff tending to show title in the defendant, by reason of the fact that his answer sets up another and different title. Much more if the answer is a general denial, may he avail himself of such evidence.</p> <p>3. Possession, how Changed from Friendly to Adverse. If one buys land with borrowed money, talcing the title in the name of the lender, and goes into possession under an agreement with the lender that the title is to be conveyed to him whenever he repays the loan, his possession will not become adverse as against the lender until he has made an open and explicit disavowal of the lender’s title and assertion of title in himself, and such disavowal and assertion have been brought home to the .lender.</p>

<p>1. Contract, Written, Verbal. In the absence of fraud a written contract supersedes a prior verbal agreement concerning the same matter.</p> <p>2. Executory Promise by Parent to Child for Conveyance: specific performance. While a mere promise made by a parent to a child to give him an estate, supported by no other consideration than love, will not be enforced if the parent dies without having conveyed, a promise in writing declared in the instrument to be founded upon a valuable consideration and conditioned that the child shall enter and improve the land, followed by actual entry and improvement, will be binding; and specific performance will be enforced..</p>

<p>1. Forgery: proof of handwriting by comparison. Upon a trial for forgery an indorsement shown to be in the hand-writing of the defendant and otherwise competent as evidence in the case may he used by the State’s witness as a standard of comparison by which to determine the authorship of the alleged forged instrument.</p> <p>2. -: evidencio. To sustain an indictment under section 1379 of the Revised Statutes for forging a recorder’s certificate of record upon a deed of trust, the deed must be produced in evidence in order to show that it is such an instrument as by law may be re corded. So the notes secured by the deed and negotiated on the faith of the deed and the alleged forged certificate are properly introduced for the purjoose of showingjthat the forgery was committed with intent to defraud.</p> <p>g. -, of recorder’s certificate. A certificate of record falsely purporting to be made by the recorder, is none the less a forgery within the meaning of section 1379, Revised Statutes, because it fails to name the year in which the deed was deposited for record, as required by section 3817.</p> <p>4. Practice, Criminal: jury. In criminal cases the trial court may in its discretion permit the jury to take with them to their room the instructions and documentary evidence offered at the trial.</p> <p>5. Expert Witnesses. One who does not profess to be an expert in hand-writing, and whose avocation in life has not been such as to qualify him to judge of hand-writings, should not be permitted to testify as an expert.</p>

<p>1. Obligation for Payment of Money and Attorney’s Fee for Collection, not a Promissory Note. An obligation for the payment of money, otherwise in the usual form of a negotiable note, contained a stipulation that in case it was not paid when due, the makers should pay an attorney’s fee of 10 per cent for collection, and authorizing judgment to he entered for the fee along with the debt. Held, that it was no promissory note. (Following First National Bank v. Gay, 63 Mo. 33 ; Samstag v. Conley, 64 Mo. 476.)</p> <p>2. Practice. A judgment by default rendered before the expiration of the time allowed by law for pleading, is irregular, and should be set aside on motion of the party aggrieved.</p>

<p>1. Action by Legatee against Executor. If an executor has in his hands funds applicable to the payment of a legacy and sufficient for the purpose, the legatee has no concern with the collection of debts due the estate, and cannot maintain an action against the executor for failure to collect.</p> <p>2. Estoppel: will. A legatee is not estopped from claiming under a will by reason oi having contested the will.</p> <p>3. Will; statute op limitations: interest. In case of a contest over a will begun before the lapse of a year after its probate, the statute of limitations will not commence to run against a legatee until the contest is determined; neither will interest commence to run in his favor until then.</p>

<p>Appeal from Jasper Circuit Court. — Hon. Joseph Cravens, Judge.</p>

<p>Appeal from Henry Circuit Court. — Hon. E. P. Wrisht, Judge.</p>

<p>Appeal from Grundy Circuit Court. — Hon. G. D. Burgess, J udge.</p>

<p>Appeal from Cole Circuit Court. — Hon. E. L. Edwards, Judge.</p> <p>cited Sewell v. Board of Education, 29 Ohio St. 89; Spiller v. Woburn, 12 Allen 127; Burdick v. Babcock, 81 Iowa 562; Ferriter v. Tyler, 48 Vt. 444; Stephenson o. Hall, 14 Barb. 22á; Britt v. Snodgrass, 66 Mo. 286.</p> <p>cited Ex parte Frank, 52 Cal. 606; s. c., 7 Cent. Law Jour. 16; State ex rel. Kennedy x.-Union Merch. Exchange, 2 Mo. App. 96; s. e., 8 Cent. Law Jour. 290.</p>

<p> Appeal from St. Louis Court of Appeals. </p>

<p>Appeal from Henry Circuit Court. — Hon. P. P. Wright, Judge.</p>

<p>Appeal from Audrain Circuit Court. — PIon. G-. Porter, Judge.</p>

<p> Quo Warranto. </p>

— Hon. D. L. Hawkins, Judge. This was an action brought by Mary J. Gray, as guar■dian of Wm. Baldwin, against James H. Bethune, executor of George Whitcomb, deceased, James II, Bridges, and the heirs of said Whitcomb. The petition prayed, that a deed to certain real estate therein described, should be set aside as having been fraudulently obtained by the said Whitcomb from one Drakeford Gray, administrator of Samuel Baldwin, the father of the said William.