Volume 74 — Missouri Reports

<p>1. Master and Servant: dangerous machinery: youth and inexperience op servant. Where a servant, engaged in operating machinery, by reason of his youth and inexperience is not aware of the danger to which he is exposed, it is the duty of his master to warn him if he himself knows of it, and this notwithstanding the existence of that which renders the machinery dangerous is known to the servant.</p> <p>2. -: vice-principal. A foreman in charge of a distinct piece of work in an extensive foundry, and having under him laborers bound to obey his orders, is, as to them, a vice-principal to their employer, and not their fellow-servant, and this although another may be general foreman of the entire establishment, with authority over him.</p> <p>3. Negligence: pleading. The plaintiff was not confined by the pleadings in this case to proof that defendant’s machinery was defective, but was entitled to prove, as a dictinct act of negligence, the failure of defendant to warn him of the risk he ran in using it.</p>

— Hon. W. E. Geiger, Judge. The fact that the statutes say the books shall be made to conform to the adoption “ as speedily as practicable ” does not leave it to the mere whim of the directors whether they shall be made to conform or not, and thus empower them to nullify the law. The duty is not a discretionary-one in the sense that mandamus will not lie to compel its performance. The duty is imperative.

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

Appeal, from Barry Circuit Court. — Hon. W. E. Geiger, Judge. The statute prescribes the manner of enforcing the payment of alimony by security, and provides that when it is in gross the judgment shall be a general lien on the realty of defendant; (R. S. 1879, §§ 2179, 2180;) and no court has power to render any other or different judgment, or to provide or authorize any other mode of enforcing payment of alimony.

— Hon. R. W. Eyan, Judge. The offense alleged in the indictment is not a felony at common law, and relying for its existence upon a statute which is an innovation on the common law, and highly penal, should be strictly construed, and the crime should not be brought within it by implication, but should be there by express enactment. Bishop Stat.

<p>1. Mechanic’s Lien: contractor not agent for owner: measure of value of materials. The Mechanic’s Lien Law does not establish the relation of principal and agent between the owner and contractor. Prices agreed upon between the latter and a material man are, therefore, not binding upon the owner. As against him only the market value of the materials can be recovered. The agreed prices will, however, be received as prima facie evidence of the market value.</p> <p>2. -: -: declarations of contractor. For the same reason, declarations of the contractor, (e. g. that materials purchased by him were used in a particular building,) are not evidence against the owner. Overruling Morrison v. Hancock, 40 Mo. 564.</p> <p>S. -. A lien cannot be enforced against a building for materials furnished to the contractor but not put into the building.</p>

<p>Mortgage: attachment. An attaching creditor cannot maintain an action to redeem land covered by his attachment from a mortgage executed by the debtor.</p>

<p> Error to St. Louis Court of Appeals. </p>

<p>Appeal from Webster Circuit Court. — Hon. R. W. Eyan, J udge.</p> <p>cited 1 Bishop Mar. "Worn., §§ 849, 352, 353; 6 Ala.. 873; Hoots v. Graham, 23 111. 81; Smith v. Smith, 13 Ala. 329; Sharpley v. Jones, 5 Harr. 373 ; Moore v. Gilliam, 5 Mumf.. 346; Collins v. Warren, 29 Mo. 236; Spencer v. Weston, 1 Dev. & Bat. 214; Grimes v. Wilson, 4 Blackf. 331.</p>

<p>Eailroads; double damages por killing cattle : pleading. To authorize a judgment against a railroad company for double the value of an animal killed on its track, the petition must aver, either directly or inferentially, that the killing was occasioned by the failure of the company to erect and maintain fences as required by section 809, Eevised Statutes 1879.</p>

— Hon. H. S. Kelley, Judge. On the 5th day of October, 1865, defendant Curry mortgaged the premises in controversy, situated in Worth county, to plaintiffs Geo. W. Lewis and Samuel A Eichardson.

<p>The preponderance of the evidence in this case acquits the respondent of the frauds charged iu the petition as ground of relief. The judgment is, therefore, affirmed.</p>

<p>Taxes. The City of Jefferson, though it has no lien, may recover an ordinary money judgment for its taxes.</p>

— Hon. D. L. Hawkins, Judge. Eor the report of this case when it was in the Supreme Court before, see 70 Mo. 290. The circuit court erred, in allowing Allen to file an amended answer in 1880. Bryan v. Berry, 8 Cal. 130; MeGlaughlin v. O'Rourke, 12 Iowa 459; Levi v. Karrick, 15 Iowa 444; Suggs v. Suggs, 1 Overt. (Term.) 2; Furber v. Carter,2 Sneed 1; Helm v. Boone, 6 J. J. Marsh. 351; State v. Judge? 11 La.

<p>Uailroads: double damages eob killing stock : pleading. The petition in an action brought under the 43rd section of the railroad law for the killing of stock, must show that the killing occurred at a place where the company was required by law to fence its track, and was occasioned by failure of the company to comply with the law. A mere statement that ‘ ‘ the railroad was not fenced and there was no crossing” at the place, is insufficient.</p>

<p>Taxes. The owner of real estate is not personally liable for taxes as* sessed against another as owner.</p>

Louis Court of Appeals. — This case is reported in 6 Mo. App. 323. 1. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up. 51 Mo. 449. 2. In order to estop appellant, it must appear that he did or said something that influenced respondent’s grantor to locate or continue his improvements where they are. 72 Mo. 503; Eitelgeorge v. The Mut. H. R. Asso’n, 69 Mo. 52; Hill v. Epley, 31 Pa.

— Hon. G-. W. Miller, Judge. The indictment in this case was based upon section 1, page 342, of the statutes of 1877, and charged that defendant “on or about the 1st day of November, 1877, at, etc., being then and there a druggist and dealer in drugs and medicines, did unlawfully sell intoxicating liquor in less quantity than one gallon, to-wit: one pint of whisky * * without taking out a license as a dramshop keeper, the same not being then and there sold for medicinal or…

<p>Appeal jsom, Nodaway Circuit Court.—Hon. H. S. Kelley, Judge.</p>

<p>1. Interpleader. Where,-without objection, an order to interplead has been made, and the interplea heard upon its merits, the question as to whether the chancellor might have required an affidavit before making the order, is unimportant.</p> <p>2. Corporation: transfer of stock. In the absence of a legislative enactment restricting the transfer of stock to any particular mode, the transfer is complete on delivery of the certificate with power to transfer, and payment of the purchase money, not only between vendor and vendee, but when the corporation has unjustifiably refused to make the transfer on its books, against a creditor of the vendor, who, without notice of the transfer, attaches the stock.</p> <p>3. Pleading. The doctrine of a negative pregnant is not recognized in Missouri.</p> <p>4. -: departure. Where the petition alleges that plaintiff owns the stock, and the reply sets up a special ownership as pledgee, this is not a departure, the action being for damages against a corporation for refusing to transfer the stock on its books.*</p>

— Hon. H. S. Kelley, • Judge. The petition alleged the sale of a threshing machine to two persons, jointly, and their joint undertaking to pay for the same, and asked judgment against one of them personally, and also against him as the administrator of the other party. His answer was a general denial. There was evidence that the machine was to be paid for in notes.

Louis Court of Appeals. The case is reported in 6 Mo. App. 247. The information was as follows : “ The State of Missouri, The City of St. Louis, ss.

— Hon. H. S. Kelley, Judge. The petition stated the running against and over plaintiff’s mare by the locomotive and cars of the defendant; that the place where this occurred was open prairie and not near any crossing ; and that defendant had neglected and failed to fence its railroad, although it had been built more than three months.

— Hon. Noah M. Givan, Judge. Under the statute, (R. S. 1879, § 1253,) it is necessary to charge that the person upon whom the supposed rape is alleged to have been committed, was a woman; the name, Mary, does not necessarily mean a woman or a female. Names of many things, and especially of persons, are purely arbitrary and meaningless. State v. Boss, 25 Mo. 426. The court erred in allowing the prosecuting witness to be asked what she told her husband.

Louis Court of Appeals. The case is reported in 6 Mo. App. 185. Louis ’Wolff died leaving a will, by which he devised the residue of his estate, after the payment of specified legacies, to his widow, Dorothea. On the 25th of July, 1872, Christian Staehlin qualified as executor, giving a bond in the sum of $60,000, with Henry B. Berning and others as sureties, and immediately took into his possession assets of the estate to the value of $45,993.89.

<p>Appeal from Adair Circuit Court. — Hon. J. "W. Henry, Judge.</p>

<p>Appeal from Lafayette Circuit Court. — Hon. W. T. Wood, J udge.</p>

— Hon. Gk EL Burckhartt, Judge. This was an action of replevin for a piano, brought in the Moberly court of common pleas against defendants Franklin and Williams. A. J. Yiele, the original owner, sold the piano to Mrs. Grillis, taking her note for the purchase money. Mrs. Grillis gave it to her daughter, who sold it' to the plaintiff Haworth. Yiele transferred the note to Joseph Shippen, who sued and obtained a judgment upon it.

<p>1. Judgment Liens: change of statute. While the lien of a judgment was yet alive, the law was changed so as to reduce the duration of judgment liens from five years to three. Without deciding whether the new law applied to this judgment, or not; Held, that if it did, the three years must be counted, not from the date of the judgment, but from the time when the new law took effect. See Sess. Acts 1863, p. 24; Gen. St. 1865, p. 636, § 3.</p> <p>2. -: execution. The levy of an execution before the expiration of the lien of the judgment, will continue the lien beyond the statutory period of its existence and until the sale.</p> <p>3. Judgment: when discharged by acceptance of note. Acceptance, by a judgment creditor, of a note to the full amount of his judgment does not operate to satisfy or discharge the judgment, unless it is expressly so agreed.</p>

<p>Appeal from Moberly Court of Common Pleas. — Hon. G-. H. Burckhartt, Judge.</p>

<p>Appeal from Atchison Circuit Court. — Hon. H. S. Kelley, Judge.</p> <p>The petition is fatally defective, and cannot support the judgment. Parish v. M., K. T. R. R. Co., 63 Mo. 284; Aylesworth v. Chicago, etc., R. R. Co., 30 Iowa 459; Cecil v. Pacific R. R. Co., 47 Mo. 246; Witthouse v. Pacific R. R. Co., 64 Mo. 523; LucJcie v. R. R. Co., 67 Mo. 245; Davis v. R. R. Co., 65 Mo. 441; 70 Mo. 202.</p>

Louis Court of Appeals. argued that the right to appeal from the money judgment for alimony could not be questioned, that the plaintiff’s right to have any alimony at all depended upon her right to have a divorce, and that in contesting the judgment for alimony, defendant had the right to go to the full extent of showing that plaintiff’ was not entitled to the divorce. argued that there was no right of appeal; that that clause of section 12, article 6 of the constitution…

<p>.1. Common Carrier: bill of lading : evidence. If a shipper receives a bill of lading at the time the shipment is made, and does not object to its terms either then or at any time before it is too late to reclaim the property, dn the absence of fraud or mistake, he is bound by it; and it does not matter that he did not read it or know its contents. It was his duty to have informed himself. In such case evidence of a prior verbal agreement as to the transportation is inadmissible.</p> <p>2. - : principal and agent : evidence. Statements of the master of a steamboat made after the transaction to which they relate is at an end, are not evidence against the owner.</p>

— Hon. John E. Ryland, Judge. The testimony showed that the body of the deceased was found on Saturday night, the 23rd day of April, 1881, about 300 yards from the house occupied by Charles L. Wood and family; that Wood and defendant were together at the house on that night; that deceased was heard by them calling cows; that shortly afterward, Wood went into another room leaving one of his children with defendant; that, a few minutes afterward, the child came in and said…

<p>Appeal from Moberly Court of Common Pleas. — Hon. Gf. H. Burckhartt, Judge.</p> <p>cited 56 Mo. 558 ; Flanagan v. Alexander, 50 Mo. 50 ; 59 Mo. 258 ; Rogers v. Batchelor, 12 Pet. 221; Caldwell v. Scott, 54 N. H. 414; Todd v. Lorah, 75 Pa. St. 155; Stegall v. Coney, 49 Miss. 761.</p>

— Hon. GI-. Porter, Judge. The following diagram represents the plaintiff’s and defendant’s lands and the fences in question in the case: a b represents the dividing line between the lands of plaintiff and defendant; cd e represents defendant’s fence; f g represents plaintiff’s fence; d g represents the connecting fence.

— Hon. S. H. Woodson, Judge. Ejectment for lots in Kansas City. Plaintiff gave in evidence a deed of trust from Jay Adams, dated March 24th, 1871, conveying the lots in dispute to R. W. Stover, to secure Geo.

— Hon. Geo. W. Dunn, Judge. Such damages as result from getting wet, catching cold or being made sick, are too remote to be allowed in an action on contract like this. Hobbs v. R’y Co., L. R., 10 Q. B. Ill; P. P. Car Co. v. Barker, 4 Col. 344; s. c., 34 Am. Rep. 89; Francis v. Transfer Co., 5 Mo. App. 7.

Louis Court of Appeals. Louis Wolff died leaving a will, by which he devised the residue of his estate, after the payment of specified legacies, to his widow, Dorothea. On the 25th of July, 1872, Christian Staehlin qualified as executor, giving a bond in the sum of $60,000, with Henry B. Berning and others as sureties, and immediately took into his possession assets of the estate to the value of $45,993.89.

— Hón. GL H. Burckhartt, Judge. It would have been a misjoinder to have made either the M., K. & T. R’y Co., or its receiver, a party to this action. Hoagland v. R. R. Co., 39 Mo. 451. The receiver was only liable over his own line of road. Coates v. Express Co., 45 Mo. 238.

— IIon. Q-. H. Burck-HARTT, Judge. The Moberly Board of Education had power to hold the special election, as held, for the purposes set out in the petition. Sess. Held: for the purposes set out in the petition. Sess. Acts 1872, pp. 177,178, §§ 2, 8; Sess. Acts 1870, §§ 6, 8, 9, pp. 129,180. Prior to July 1st, 1877, it was not intended that the present constitution should affect any laws in force which could be enforced subject to the limitations in the constitution.

<p>1. Proof of Custom: insurance. Proof that there was a custom observed by ten or twelve insurance companies to insert a particular clause in their policies; Held, not admissible to establish a similar custom on the part of another company.</p> <p>2. Custom: insurance : evidence. Where the insured refused to accept the policy issued to him and declined to pay his premium note on the sole ground that the policy did not contain a clause which he alleged the company’s agent had agreed it should contain; Held, that when sued upon the note he could not give evidence of a custom on the part of insurance companies to insert such a clause in their policies.</p> <p>3. Insurance: application : rejection oe policy tendered : parol, evidence. Where the application for insurance does not attempt to set forth all the provisions to be contained in the policy, and the' agent of the company, with or without authority, represents that it will contain certain stipulations, which are not unlawful, the applicant may refuse to accept the policy, when issued, if it does not contain them; but he must make his election and notify the company without delay; otherwise he will be deemed to have accepted it. In such case, when sued upon his premium note he may make parol proof of the agent’s representations.</p>

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

<p>Appeal from Cass Circuit Court. — Hon. Noah M. G-ivan, Judge.</p>

— JIon. Jos. P. Grubb, Judge. The discretion of the trial court as to granting or refusing the continuance, was unsoundly exercised, to the prejudice of the appellant. Carpenter v. Meyers, 32 Mo. 213; State v. Shreve, 39 Mo. 90; State v. Klinger, 43 Mo. 127; Frederick v. Rice, 46 Mo. 24. There was a failure of consideration for the notes. Appellant got neither title nor possession of the land for which they were given.

<p>Error to DeKalb Circuit Court. — Hon. Joseph P. Grubb, Judge.</p>

<p>1. Defective Deed, as Color of Title. A deed described the land conveyed as “ a part of northeast quarter of southeast quarter of section 26, township 51, range 9.” Held, that though not good to pass the title because of the indefiniteness of the description, it was admissible as color of title, when offered in connection with other evidence tending to show that the grantor had previously conveyed part of the said northeast quarter of southeast quarter, and that the remainder was known in the neighborhood by the description given in the 'deed.</p> <p>2. Ejectment: section 3225, bevised statutes 1879, construed. One who enters into the possession of land, not as a mere intruder or trespasser, but in good faitb, and erects valuable improvements thereon, is in the lawful possession thereof within the meaning of section 8225, Revised Statutes 1879, and may invoke the provisions of that section to defeat recovery in an action of ejectment brought moré than one year after February 27th, 1874, by one holding a patent from the United States issued more than ten years prior to that date, but who for more than thirty years prior to that date had not been in the actual possession of the land either by himself or by others, and during all that period had paid no taxes thereon.</p>

— Hon. J. P. Grubb, Judge. The application for a continuance, was as follows: ásCome now the above named plaintiffs and move the court to grant a continuance of this cause till the next term of this court on account of the absence of a material witness, and in support of such motion the plaintiff, Ernst Langener, being duly sworn on his oath deposeth and saith, he cannot safely go to trial at this time on account of the absence of Fred.

Louis Court of Appeals. If a trustee retains balances in bis bands, which be should invest, or delays to invest for an unreasonable time, or mingles trust money with, his own, or uses it in bis private business, or deposits it in bis own name, or that of his firm, or neglects to settle bis account for a long time, or to distribute or pay over money when be ought to do so, he will be liable to pay simple interest at the rate established by law as the legal rate in the absence…

<p>Costs, when Amount Eeeovered is Below Jurisdiction of the COUrt : JUDGMENTS, CONCLUSIVENESS, AND PRESUMPTIONS IN FAVOR of. In an action to recover $500 damages for breach of contract, the circuit court rendered judgment in favor of plaintiff for $1 damages, and $264.50 costs. Held, that it would be presumed in favor of the judgment, that the court was of opinion that the plaintiff had, at the commencement of the action, reason to believe that he was justly entitled to recover a sum within the jurisdiction of the court, as otherwise, under section 996 of the Revised Statutes of 1879, the costs should have been adjudged against the plaintiff. Held, further, that the judgment was conclusive evidence of a finding by the court that such was its opinion, and that it had no power to set aside such judgment at the succeeding term.</p>

— Hon. H. S. Kelley, Judge. There is no distinction between a donation causa mortis and any other parol gift in respect to the necessity of actual delivery. Harris v. Clark, 8 N. Y. 93, 113, 106; Champney v. Blanchard, 39 N. Y. 116. The transaction in the present case was an executory gift to take effect upon the death of the donor, and, as such, was void, because not authorized by statute. 2 Wag. Stat., p. 1367, § 21. The probate court had jurisdiction. Sess.

<p>1. Insanity as a Defense to Homicide. To entitle a defendant charged with homicide to acquittal on the plea of insanity, it must appear, to the reasonable satisfaction to the jury, that his mental faculties were, at the time the act was committed, so perverted and deranged as to render him incapable of distinguishing between right and wrong in respect to that particular act.</p> <p>2. Murder in the Second Degree. There can oe no murder in the second degree without premeditation.</p> <p>3. Insanity: opinion oe non-expert. A witness who is not an expert will be allowed to give an opinion upon a question of insanity, only-in connection with a statement of the facts which form the basis of his judgment.</p> <p>4 Certain remarks of the prosecuting attorney in his closing address to the jury; Held, not objectionable.</p>

<p>1. Statements Admitted as Testimony of Absent Witness: continuance. Where a party, for the sake of avoiding a continuance, admits that an absent witness, if present, would swear to certain statements, these statements are as much a part of the evidence in the cause as if the witness were present at the trial and testified to them before the jury, and should he so considered by the jury in making up their verdict.</p> <p>2. Manslaughter: “ reasonable provocation.” The term “ reasonable” may properly be used in an instruction as descriptive of the kind of provocation which will reduce homicide from murder to manslaughter.</p> <p>3. Homicide: passion, as fixing the grade of the offense. The passion which will reduce homicide to the grade of manslaughter is an excited state of mind produced by some lawful provocation, e. g., a blow. That which will reduce it to murder in the second degree is the same state of mind produced by some just cause of provocation short of lawful provocation, e. g., grievous and degrading words of reproach.</p> <p>4. -: -: questions of law and fact. What words of reproach and attendant circumstances will he deemed a just cause of provocation, and constitute the homicide murder in the second degree is in every case a question of law for the court. Whether the |fate of mind necessary to make the killing the lowest grade of murder was, in fact, superinduced by such provocation and actually existed at the time of the killing, is a question of fact for the jury.</p> <p>5. -: instructions. It is for the court to determine what gradp or grades of homicide the evidence tends to establish, and it is the duty of the court in instructing the jury to confine itself to such grade or grades.</p> <p>6. -: deliberation. Only such murders are deliberate as proceed from deep malignity of heart or are prompted by motives of revenge or gain.</p> <p>7. -: instructions, harmless error. This court will not reverse a judgment in a case of homicide because the trial court gave instructions as to murder in the second degree, when the act, if not done in self-defense, must have been murder in the first degree, if the j ury have found that it was the latter; and it does not matter that the instructions incorrectly defined the offense of murder in the second degree. The error could not have been prejudicial to the appellant.</p> <p>-: premeditation. In defining the term “ premeditatedly,” 8. the trial court said: “ It means thought of in the sense of thought over.” Held, an erroneous definition, because it gave to premeditation an element of deliberation which does not belong to it.</p>

<p>1. Murder : passion. The passion which will deprive a homicide < the element of deliberation, and thereby reduce it below the gr of murder of the first degree, may result from some cause shu. what is known as lawful provocation. See The State v. Charles El arde., 207.</p> <p>2. -: premeditation. Premeditation is an essential element of murder in the second degree.</p> <p>3. Continuance. Under the circumstances of this case, the trial court committed error in refusing the continuance prayed by defendant. Sherwood C. J., and Norton, J., dissenting.</p>

— Hon. W. E. Geiser, Judge. The bonds and coupons on wMeh Davis obtained judgment were void. State ex rel. v. Garroutte, 67 Mo. 445} State ex rel. v. Dallas Co., 71 Mo. 329. The judgment is void for want of jurisdiction in the Federal court. Baker v. Johnson, 41 Me. 15, 24; Weil v. Greene Co., 69 Mo. 281; Beers v. Uaughton, 9 Pet. 329. Greene county can only be sued in the circuit court of Greene county. Wag. Stat., 408, § 4.

— Hon. Geo. W. Dunn, Judge. Indictment for burglariously entering tbe house oí Hugh Scudder, in Clay county, with intent to kill Scudder.

<p>1. The Test of Insanity in Criminal Cases. The insanity which will constitute a valid defense to a criminal charge is such only as disabled the defendant from knowing the right from the wrong of the particular act which is the subject of the charge.</p> <p>2. Deliberation: premeditation. The court restates the definitions of these terms, and the distinctions between them.</p> <p>3. Murder: heat op passion. A homicide committed in a heat of passion engendered, not by what was legal provocation at common law to reduce the offense from murder to manslaughter, but by opprobrious epithets or other insults sufficient to arouse the same heat of passion that would be caused by a technical legal provocation, is murder in the second degree. The rejection of her suitor by a young woman cannot be regarded as just cause for such heat of passion.</p> <p>4. -: “ reasonable provocation.” An instruction is erroneous, which gives the jury to understand that the only provocation which can produce that heat of passion which will divest a homicide of the element of deliberation is “ reasonable ” provocation; for “ reasonable” is equivalent to “lawful” or “adequate” provocation. In a case where there is evidence of such just provocation as will reduce murder to the second degree, the error would be fatal; but where there is no evidence of any provocation, it would be harmless and . the judgment should not be reversed for it.</p>

<p>1. Continuance. Whether to grant a continuance is a matter resting largely in the sound discretion of the trial court.</p> <p>2. Indictment for Homicide: variance. Upon a trial for homicide, proof that the death occurred twelve hours after the wound was inflicted and on the same day, will support an indictment which charges that defendant inflicted the wound on a day named, and that of said wound the deceased “did then and there instantly die.”</p> <p>3. -: -. Even if there be a variance between the time of a homicide alleged and that proved, it will be no ground for acquitting the defendant or reversing the judgment, unless there is a finding by the trial court that the variance is material to the merits of the case and prejudicial to the defendant’s defense.</p> <p>4. Practice, Criminal: objections to the jury. To avail himself of any error or irregularity in the selection and empaneling of the jury, the defendant must make timely objection. If he delay till after verdict it will be too late. Even when taken in time, such objections will be disregarded, unless it appear that defendant has suffered some prejudice.</p> <p>5. --: instructions, harmless error. If there is no evidence of any sort of provocation, the giving of an instruction which erroneously defines the provocation which will produce that heated state of the blood which the law calls “passiov,” will not entitle the defendant in a murder case to a reversal of a judgment of conviction.</p> <p>6. Insanity. The evidence in this case furnishes no basis whatever for an instruction in relation to insanity.</p>

<p>1. Elections: form of ballot : township organization restraining swine. Ballots cast at a general election for State, county and township officers contained, in addition to the names of the candidates and the offices to be filled, a clause for and a clause against township organization, and a clause for and a clause against restraining swine from running at large. As a caption to these clauses were printed the words, “ Erase the clause you do not favor.” Held, that this caption did not invalidate the ballot either as to township organization or the restraining of swine, or as to the candidates voted for. Construing Revised Statutes 1879, sections 5493, 7429, 7430, 7407, 7408, 7410.</p> <p>2. -: --: circuit Ci.erk. A ballot containing the words “for circuit clerk and recorder,” sufficiently indicates that the office to be filled is that of the clerk of the circuit court.</p> <p>3. -: notice of contest. A notice of contest on the ground that voters were improperly influenced in casting their votes must give the names of the persons alleged to have been so influenced.</p> <p>4. Misrepresentations by a candidate to the voters as to the legal effect of their ballots, whereby they are misled into voting for him, constitute no ground for contesting the election.</p>

— Hon. J. R. Woodside, Judge. A mortgage for the purchase money of land, and the vendor’s lien, can and do exist separately and independently of each other. The taking of the mortgage doés not merge or extinguish the lien of the vendor. The changing of a mortgage from one party to another for the same debt, and on the same land or property, does not affect or defeat the original lien, and more especially where such mortgage is to secure the purchase money of land.

— Hon. G-. H. Burckhartt, Judge. The instructions referred to in the opinion, are the following: 11. Defendant asks the court to instruct the jury, that if they believe from the whole evidence in the cause that the act of shooting was done by defendant with deliberation, then he is not guilty of murder in the second degree. 12.

— IIon. Jos. P. Grubb, Judge. 1. The officers of plaintiff could not make themselves creditors of the plaintiff corporation by voluntary payment of the corporate debts. If they, being also stockholders, paid at all, it was upon their obligation to do so as stockholders. 11 Am. Law Reg., 530 ; Blanchard v. Association, 59 Me. 202 ; Anderson v. Blattau, 43 Mo. 42; Kritzer v. Woodson, 19 Mo. 327.

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

— Hon. A. J. Seay, Judge. Plaintiff relied for recovery on the case of Lewis v. R. R. Co., 59 Mo. 495. The decision in that case, when made, was in conflict with the decisions of this and other states, and ought now to be overruled or so modified as to harmonize with the legal principles governing the universal lawT of master and servant.

— Hon. E. J. Broaddus, J udge. This was an information for obstructing a public road, originally drawn in two counts. There was a nol. pros, as to the second count.

<p>County Warrants: road and cañad fund. A county is not liable generally upon a warrant drawn upon a fund which has become exhausted and which the county court has no power to replenish by taxation or otherwise, as for instance, the road and canal fund.</p>

<p>Possession of Debtor’s Property by Creditor: void mortgage. If a creditor in good faith takes possession of a stock of goods belonging to his debtor, under an agreement with the latter that he is to hold possession until his debt is paid, his title will be good as against a subsequent attachment-by another creditor; and the fact that he has taken a mortgage on the same goods, which is for any reason void as against the attachment, will not impair the rights acquired by possession.</p>

<p>Appeal from Hannibal Common Pleas Court.^-Hon. T. Brace, Judge.</p>

<p>Quit-claim Deed: recording or deeds. As against an unrecorded deed, a subsequent quit-claim deed from the same grantor will pass the title, provided the grantee takes for value and without notice of the former deed.</p>

— Hon. Geo. W. Dunn, Judge. The evidence, on behalf of plaintiff, was that his daughter, at the time of the alleged seduction, was about seventeen years of age; that she had always lived with him, except during part of the summer of 1873, when she was hired out by her mother at $2 per week; that she returned home in August, 1873, and there performed domestic duties; that she was the oldest of nine children; that her mother was living; that defendant waited upon his daughter…

— Hon. E. J. Broaddus, Judge. In tbe case at bar, we have the concurring elements of old age, physical and mental weakness and want of consideration, without any apparent reasons for the transaction, m connection with something stronger than mere suspicion that actual fraud and undue influence existed. All the cases agree that such a bargain cannot stand.

— Hon. Jos. Cravens, Judge. After the change of venue was granted by the Lawrence circuit court to Barton county, that court was divested of all jurisdiction which immediately attached to the circuit court of the latter county. State v. Hopper, 71 Mo. 425; Henderson v. Henderson, 55 Mo. 534; State v. Daniels, 66 Mo. 192; State v. Worrell, 25 Mo. 205; Frazier v. Fortenberry, 4 Ark. 162; Campbell v. Thompson, 4 Greene (Iowa) 415; Fish v. Railroad Co., 41 How.

Mandamus. The act of February 20th, 1865, (Sess. Acts 1865, p. 84,) wben accepted by the company and the bonds issued thereunder, and delivered to the trustees and sold by them and the proceeds thereof paid into the State treasury, converted the act into a contract to convey the lien of the State to the trustees. Ketchum v. Pacific R. R. Go., 4 Dill. 79.

— Hon. Joseph P. Grubb, Judge. The defendant had no right to disregard the instructions of plaintiff by unloading and delaying the transporting of the cattle. 2 Redffeld on Railways, (5 Ed.) 15; Streeter v. Horlock, 7 Moore 283; s. c., 1 Bing. 34. Defendant forcibly unloaded the cattle and thus committed the offense for which the prosecution was instituted against plaintiff. Wag. Stat., 251, §§ 1, 2.

— Hon. W. T. Wood, Judge. Contributory negligence on the part of the plaintiff, that is, the plea that plaintiff caused his own damages, cannot, in any case where damages are sued for, be considered as irrelevant or redundant.

Louis Court of Appeals. — The case is reported in 6 Mo. App. 205. The statute in question, on any of the questions involved, has never been construed by this court. Schulenburg v. R. R. Go., 67 Mo. 442, was a case arising under another statute, and in St. Louis Bridge ‡ Construction Co. v. R. R. Co., 72 Mo. 664, none of these questions were in controversy.

_Appeal from Lafayette Circuit Court. — Hon. W. T. Wood, Judge. The filing of a statement of facts constituting the cause' of action before process is issued is directory merely, and at most did not prevent the defendant from waiving the filing-of such statement. 5 Mo. 516. If any acts of a defendant can operate to waive the filing of a statement with a justice of the peace, the acts of defendant in this case-should be held to have this effect.

'Louis Court of Appeals. The court erred in instructing the jury that the appellant was guilty of incest if he had carnal knowledge of the girl, whether with or without her consent. People v. Harriden, 1 Parker Or. R. 344; Croghan v. State, 22 Wis. 444; DeOroat v. People, 39 Mich. 124; State v. Thomas, 53 Iowa 214. Rape is the higher crime (being a capital offense) and is not merged in incest.

<p>1. Pleading: inconsistent defenses. In a suit by an administrator de bonis non to recover the balance of a deposit with defendant by the decedent, the answer set up, first, payment of the entire amount deposited to the former administrator in his representative capacity and a subsequent deposit by him of such amount to his individual account; second, payment in divers sums, to the amount deposited, upon the order of the former administrator in his representative capacity. Held, that these defenses were inconsistent, and that the defendant was properly required to elect on which of them he would rely.</p> <p>2. Practice in Supreme Court: pleading. Although the record states that defendant elected to stand on one of two inconsistent defenses, yet, if it appear from the evidence and instructions that the issue tendered in the other defense was the one really tried, this court will treat the case as involving that issue only.</p> <p>3. -: instructions. This court will not reverse on the ground of erroneous instructions, where the appellant asked and obtained instructions involving the same error.</p>

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

— Hois. Joseph Cravens,. Judge. A statement of facts constituting a cause of action is as essential in this, as in other cases; the warrant for arrest could constitute no part of such statement. Inhabitants of Memphis v. O’Conner, 53 Mo. 469; 2 Wag. Stat., p-. 1317, § 11, p. 1318, § 16; St. Louis v. Smith, 10 Mo. 439; St. Louis v. Life Association, 53 Mo. 466; 1 Dillon Munic. Corp., § 346.

Habeas Corpus. The offense charged is an offense against the laws of 'the State. The proceeding to enforce the penalty for such offense must be criminal, and conform to the requirements of the constitution and laws of the State. Gilmore v. Dawson, 64 Mo. 310; Const, of Mo., art. 6, § 38, art. 1, §§ 12, 16, 30, 31; City v. Fitz, 53 Mo. 588.

— Hon. W. T. Wood,. Judge. Tbe statute and constitution are in harmony. People-ex rel. Brennan v. Cotton, 14 111. 414; Ex parte Jiardy, (Sup-Ct. of Ala.) 13 C. L. J. 50; Moore v. Green, 73 N. C. 894- This suit was a civil action for $25 damages. It contained no reference to the Trespass Act in terms or by necessary inference. It was not to recover the penalty and the damages. To be under that act for the penalty, it must be in the name of the State.

<p> Quo Warranto. </p>

J /'peal from Mississippi Circuit Court. — ITon. D. L. Hawkins, Judge. Upon principle and considerations of public policy, a ■custodian of public funds can only absolve liimself and his ■sureties from liability by showing that he disbursed the same according to law, or by producing the same. 67 Mo. 895 ; 8 How. 578.

— Hon. S. H. Woodson, Judge As tbe proceeding to foreclose the liens of the special tax bills is purely statutory, and that, too, in a court of limited and purely statutory jurisdiction, the remedy cannot be extended beyond the provisions of the charter.

<p>1. Collector of Taxes: authority to institute suits. Collectors; of taxes were not authorized by sections 1 and 2 of the act of March 20th, 1872, (Acts 1872, p. 72, ?§ 1, 2,) to institute suits for taxes against railroad companies after the expiration of their terms of' office, but were only authorized to continue the prosecution of such as had been commenced while they were in office.</p> <p>2. --, compensation op. Collectors of taxes are not entitled to-compensation for ineffectual efforts made by them to collect the revenue, their compensation being fixed by law at a certain per cent on collections actually made by them.</p>

— Hon. G-. H. Burcichartt, Judge. The mere fact that it was inconvenient for the trustee •to sell on the particular day or week requested, does not ;amount to a refusal to sell. He could have made the desired sale the next week or the next month. There must ■be an absolute refusal on the part of the trustee chosen :by 'both parties, before the contingency arises which authorizes the sheriff to execute the trust.

— PIon. JohnR. Robinson, Judge. The following is the statement filed with-the justice: “Plaintiff states that the defendant is a corporation duly-organized and existing as such under the above corporate-name a.nd style, by virtue of the general and special laws of the State of Missouri, and that as such corporation, it is the owner of that certain railroad known as the St. Louis- & Iron Mountain Railroad which passes through the township of St Michael, in the county of…

— Hon. G. II. Burckhartt, Judge, presiding in the case. The onus was on plaintiff to sustain the allegations of the petition as to the illegality of the tax sought to be restrained, and to show that their property was outside of the school district.

— TIon. William T. Wood,. Judge. Under the statute, a failure to fence its road does not create an absolute liability against the railroad company. It is only when such failure to fence has “occasioned” or caused the damage. This fact is jurisdictional. It must be alleged in the complaint, and there must be some' evidence tending to prove it. Holman v. R. R. Co., 62 Mo. 562.

Louis Court of Appeals. It is a matter of public history, that for years corporations, created by the laws of states and countries foreign to Missouri, have been permitted to transact business herewith its people, with almost or quite the same facility as private individuals. They have been protected in all their-rights of property by its laws to the same extent as its-own citizens, and enjoyed all their immunities.

<p>Taxation, Exemption from: charitable institution. A hospital building is not excluded from the benefits of a statute exempting from taxation property used for “purposes purely charitable,” merely because certain patients therein pay for what they receive, where it appears that any profit derived therefrom is applied exclusively to the charitable purposes of the institution.*</p>

<p>Appeal from Holt Circuit Court. — Hon. H. S. Kelley, Judge.</p> <p>Plaintiff’s evidence as to bis dismissal of tbe suit before tbe justice, was incompetent. Wynne v. Aubuchon, 23 Mo. 30; Montgomery v. Farley, 5 Mo. 233; Bailey v. Mc-Ginniss, 57 Mo. 362; Jeffries v. Wright, 51 Mo. 215; Johnson v. Beazley, 65 Mo. 250; Bumfelt v. O’Brien, 57 Mo. 569. Tbe judgment obtained by plaintiff before tbe justice merged his cause of action, and he had none when he instituted this suit in the circuit court. Blake v. Doioney, 51 Mo. 437.</p>

— Hon. G. Porter, Judge. If the ground of this action was positive misfeasance on the part of the corporation, its officers or servants in doing an act which caused the street to he in a dangerous condition, no other notice to the corporation of the condition of the street would be essential to its liability, and the action of the court in leaving out of consideration the question of notice would not be error.

Louis Court of Appeals. This was a suit brought by Lazelle E. Alexander, as receiver of the Columbia Life Insurance Company, an insolvent corporation, against the Life Association of America, against… Held: and the amendments adopted. One of these amendments changed the name of the company from the St. Louis Life Insurance Company to the Columbia Life Insurance Company, the change to take effect on the 1st day of March, 1876.

Francois Circuit Court. — IIon. W. N. Nalle, Judge. The cause of action against defendant was not assignable. The allegation of the petition is a wrongful conversion of the ties by defendant, and the action is one of trover. This action is one that sounds in tort, and does not arise out of contract. Cooley on Torts, 441; Hill.

<p>•Criminal Law: concubinags. To constitute concubinage within the meaning of section 1257, Revised Statutes 1879, which makes it an offense to carry off any female under the age of eighteen years for the purpose of concubinage, it is not necessary that the illicit intercourse should continue for an indefinite or considerable length of time. A single act is sufficient.</p>

<p>Measure of Damages. The owner of an animal maimed by a railroad train may recover of the company without surrendering the animal to the company, but he will be entitled to recover not the full value, but only to the extent of the injury sustained.</p>

— Hon. E. L. Hawkins, Judge. The law prohibiting the wearing of concealed weapons, is a police regulation for the protection of society and not an infringement of the constitutional right to bear arms. It does not prohibit the right to bear arms, but provides that they shall not be worn in a manner dangerous to the welfare of society. Nunn v. State, 1 Kelly (G-a.) 243; State v. Jumel, 13 La.

— Hon. G-. II. Burckhartt, Judge. Defendant’s affidavit for a continuance was as follows “ That he cannot safely proceed in the trial of said cause in the absence of the following witnesses, who are absent' without connivance, knowledge or consent, to-wit: Henry Baysinger, Mrs. Henry Baysinger, Buck Dareajzx and Caleb-Berry ; that Buck Dareaux resides in Montgomery county, Caleb Berry in Audrain county, and the others in Calla-way county, Missouri; that the indictment in…

— Hon. C. W. Miller, Judge. It is now well settled in this State that whatever may be the form of a note, it may be shown who received the money loaned, and who ought to pay it; and, without reference to the order of the names on a note, who is in fact the real principal in the debt. Garrett v. Ferguson, 9 Mo. 128; Scott v. Bailey, 23 Mo. 150; Coons v. Green, 9 Mo. 198; Mechanics’ Bank v. Wright, 53 Mo. 153.

Louis Court of Appeals. A common carrier cannot, by special contract, limit-his liability, so as to excuse himself from the consequences, of his own negligence. Held: and no action would have lain by respondent against him. Even assuming that Dickson was an agent, yet he had a beneficial interest in the performance of the contract, and a special property in the subject matter of the agreement, and was the party to sue. Porter v. Raymond, 53 N. H. 519.

<p>Appeal from Laclede Circuit Court. — TIon. R. W. Fyan, Judge.</p>

<p>'Pleading, Criminal: exceptions in statutes. When an exception is contained in a statute defining an offense and constitutes a part of the offense, an indictment for such offense must negative the exception ; hut when the statute contains a proviso exempting a class therein referred to from the operation of the statute, an indictment need not negative the proviso. The accused must make the exemption a ground of defense. So Held, in reference to the proviso to section 1 of the act of 1877 in relation to the practice of medicine and surgery. Sess. Acts 1877, p. 343.</p>

<p>Appeal from Livingston Circuit Court. — Hon. E. J.Broaddus, Judge.</p> <p>cited 2 Am. Lead. Cas., 310; Howell v. Sevier, 1 Lea 360; s. c., 27 Am. Rep. 771; Pyke v. Clark, 3 B. Mon. 262 ; Scott v. Hall, 6 B. Mon. 285; Graves v. Graves, 7 B. Mon. 213; Pucker v. Robinson, 38 Mo. 156; McCune v. Belt, 38 Mo. 290; Wiley v. TIight, 39 Mo. 132</p>

— Hon. E. J. Broaddus,. J udge. The deceased voluntarily placed himself in a hazardous position, and there can be no recovery for his death. Hallihan v. R. R. Co., 71 Mo. 113; Lake Shore R. R. Co. v. Hart, 87 111. 529. The evidence as to the statement made by the fireman was inadmissible. McDermott v. R.. R. Co., 73 Mo. 546; Garth v. Howard, 8 Bing. 451. cited Brownell v. R. R. Co., 47 Mo. 239; Harriman v. Stowe,. 57 Mo. 96; Hanover R. R.. Co. v. Coyle, 55 Pa.

— Hon. Wm. N. Nalle,, Judge. This is an action instituted before a justice of the peace to recover double damages for certain animals alleged to have been killed by tbe defendant’s cars. The judgment must be reversed because the record fails to show that the jústice had jurisdiction. The statement filed before him is not in the transcript, and there is nothing else in the case to show the facts necessary to confer jurisdiction.

— Hon. Q-. W. Miller, Judge. This was a suit brought January 19th, 1874, to set aside a sheriff’s deed made upon a foreclosure of a school fund mortgage. The lands consisted of two forty acre tracts and two eighty acre tracts. The petition asked to set aside the sale and deed because the lands, though susceptible of division, were sold in mass, when it was unnecessary to sell the whole to pay the debt, in consequence of which, it was alleged, they were sacrificed.

<p>• 1. Practice, Criminal: defendant as a witness. Under section 1918, Revised Statutes 1879, a defendant in a criminal case testifying in his own behalf, can be cross-examined only as to those matters referred to by him in his examination in chief.</p> <p>2. -. evidence of former conviction. It is error to permit a witness to be asked if he has not been before convicted and sent to the penitentiary.</p> <p>3. Burglary and Larceny: evidence. To authorize a conviction of larceny under an indictment charging burglary and the larceny of particular property, the proof must show that the property named was taken. Proof of the taking of other property will not suffice.</p>

— Hon. R. W. Eyan, Judge. This was a suit brought by the heirs of John Mabary, deceased, against Joseph W. McClurg, Marshall W. Johnson and E. B. Torbert, to set aside an allowance of $10,925 made by the county court of Hickory county sitting in probate, in 1865, in favor of E. B. Torbert & Co., a firm composed of- the above named defendants, and against the estate of said Mabary, and to set aside and annul certain sales of real estate made to said McClurg under the orders…

<p>1. Indictment: indorsement of name of prosecutor. It is not required that the name of a prosecutor shall be indorsed upon an indictment for maiming, heating and torturing defendant’s own cow. The statute which makes this requirement applies only to indictments charging trespasses against the person or property of another. 2 Wag. Stal., 1084, £ 22.</p> <p>2. ---: maiming cattle. An indictment under the statute, (2 Wag. Stat., p. 506, 146,) for maiming, beating and torturing cattle, need not aver the mode in which or the means by which the offense was committed.</p>

— Hon. R. P. Owen, Judge. Action to recover single damages for killing and wounding plaintiff’s colts.

— Hon. Joseph P. Grubb, J udge. cited R. S. 1879, § 3671; Jordan v. Ping, 32 Iowa 64 ; Arnold v. Keyes, 37 N. Y. Superior Ct. (J. & S.) 135. The title of plaintiff'’s sister, Mrs. Duncan, was, at the time of the trial, a present subsisting and operative title, and is a bar to plaintiff’s recovery in this action. To-prevent a recovery, it was sufficient for this defendant to-show title out of plaintiff’, and it was not essential that he-should, establish his own title.

— Hon. P. P. Wright, Judge. The fact that Mrs. Lobaugh was under coverture was no defense to the sureties. 55 Mo. 93 ; 63 Mo. 486 ; Hicks v. Randolph, 3 Baxt. 352; s. c., -27 Am. Rep. 760 ; Unangst v. Fitter, 84 Pa. St. 135. The husband was, by virtue of the bond and order of delivery, deprived of the actual possession of the property, and the' same was wholly lost to him. The sureties, therefore, ought to he held liable.

— Hon. John T. Redd, Judge. The company had no control of the road, and is not liable. Pierce on Railways, 285 and notes. It was respondent’s duty, under the facts in this case, to stop and look and listen for approaching trains before going upon the crossing. Railroad Co. v. Beale, 73 Pa. St. 504; s. e.,. 13 Am. Rep. 753 ; Zimmerman v. Railroad Co., 71 Mo. 476; Henze v. Railroad Co., 71 Mo. 636.

— Hon. Noah M. Gtvan,, Judge. Instruction number two, given for defendant, is as follows : The burden of proof is upon relator to show that' prior to the time said mule was offered for sale by defendant Emmerson, relator claimed it as exempt from execution, and unless relator did so claim said property, and give notice of his claim to defendant Emmerson prior to the time said mule was offered for sale, the jury will find for defendants.

Louis Court of Appeals. Crimes are local, and must be prosecuted in the county where they .are committed; only in such, county can a grand jury inquire of them. 4 Black. Com., 303; Bish. Crim. Prac., § 49; Hughes v. State, 35 Ala. 357. When a county is divided, a criminal action, before the division, can be prosecuted only in the particular new county where is the place of the offense.

Appea„ from Greene Circuit Court. — Hois'. ~W. E. Geiser, Judge. The right of the widow’s quarantine and her grantees' is only a possessory right for the time being, and is subject to be defeated at any moment by thq assignment of dower. It is no estate in the lands, and hence there was no particular estate outstanding during the widow’s life, which in any manner interfered to stay the operation of the statute. Miller v. Talley, 48 Mo. 503.

— Hon. G-. Porter, Judge. Evidence of all the circumstances bearing on the case-should have been admitted. 2 Greenl. Ev., (10 Ed.) §§ 41, 42. Strangers should leave the husband and wife to their legal remedies against one another.; a somewhat milder rule obtains as to parents. Schouler’s Dom. Rel., pp. 57, 58 ; Bennett v. Smith, 21 Barb. 439; Barnes v. Allen, 30 Barb. 663. The instructions given for plaintiff and defendant are inconsistent with each other.