Volume 76 — Missouri Reports

. Appeal from Jasper Court of Common Fleas.—Hon. E. O. Brown, Judge. This was an action of ejectment for' a forty acre tract of swamp land. Defendant claimed under one Geo. E. Ward.

<p>Avveal from Madison Circuit Court.—Hon. J. H. Nicholson, • Judge.</p>

¡Error to Buchanan Circuit Court.—Hon. Joseph P. Grubb, Judge. This was a suit by Sarah E. Hale and Benjamin F. Hale against Wm. P. Stuart.

—Hon. John T. Eedd, Judge. 1. John 0. Wood was a necessary party co-plaintiff, [Edmonson v. Phillips, 73 Mo. 60,) and as such party he was a competent witness. Steffen v. Bauer, 70 Mo. 399, p. 404. He had a substantial interest as a party litigating for a tenancy by the curtesy initiate, [PTaerle v. Kreihn, 65 Mo. 202; Joice v. Branson, 73 Mo. 28,) and the court erred in excluding him from the witness stand. Fugate v. Pierce, 49 Mo. 441. 2.

<p>1. Murder: pleading. An indictment for murder need not specify the particular part of the body upon which the mortal wound was inflicted.</p> <p>2. -: evidence. Where an indictment for murder charges the infliction of one mortal wound, it is no error to admit evidence of several wounds, one of which was mortal.</p> <p>3. -: -. Immediately after defendant had committed a homicide, he was seized by a by-stander, whom he attempted to stab in order to escape. Upon a trial for the homicide; Held, that proof of the attempt to stab was admissible.</p> <p>4. Criminal Law: defendant as Á witness. If the defendant in a criminal case testifies in his own behalf, his relation to the case may be considered by the jury as affecting his credibility.</p> <p>5. A remark of the judge of the trial court in relation to the evidence, made in the presence of the jury; Held, not to be such as to call for a reversal.</p>

<p>1. Ejectment: pleading. Defendant in ejectment may setup in his answer any and all equitable defenses he may have.</p> <p>2. Bes Judicata. Where the defendant pleaded res judicata, and the plaintiff, in order to avoid the effect of the plea, insisted that the facts relied upon by him for recovery were not sufficiently pleaded, and, therefore, were not admissible in defense of the former suit, but it appeared that that question was raised in that suit and was decided in favor of the admission of the evidence and it was admitted; Held, that the plaintiff could not raise it again.</p> <p>8. -. The doctrine of res judicata applies as well to judgments of courts of last resort as to those of nisi priús courts. If the same subject matter comes in question in a second action before a court of last resort, it is bound by its own former decision.</p>

<p>Pleading, Criminal: medical practitioner. An indictment for practicing medicine in violation of law, need not state the name of the person upon whom or in whose family the defendant practiced.</p>

<p>1. Practice: refusal of continuance. Where it appeared that the trial which succeeded a refused application for a continuance was a mis-trial, and that at the subsequent trial which resulted in defendant’s conviction, the witnesses, on account of whose absence the continuance had before been prayed, were present and testified, and that defendant at that trial offered testimony to the contrary of that testified to by the State’s witnesses; Reid, that if there was any error in refusing the continuance, it afforded no reason for reversing the judgment.</p> <p>2. Practice, Criminal: special judge. Under the act of 1877, (Sess. Acts, p. 357, § 1,) to entitle the defendant in a criminal case to be tried by a special judge, it was necessary that the affidavit of prejudice on the part of the regular judge should be supported by the affidavits of two reputable persons.</p> <p>2. Jury. Where objections are not made and exceptions saved at the proper time, to the manner of summoning a jury, the point will not be regarded in the Supreme Court.</p>

<p>Practice, Criminal. Under the act of 1877 in relation to misdemeanors, (Sess. Acts, p. 855, § 6,) no prosecution founded upon an affidavit alone could be sustained. It was necessary that there should be an information by the prosecuting attorney based upon the affidavit.</p>

—Hon. J. H. Nicholson, Judge. The indictment charged that defendant, being a druggist, did unlawfully “ sell and give away ” intoxicating liquors in less quantities than one gallon, without having a dramshop keeper’s license. It was founded on section 1, page 166, Session Acts 1879, which makes it an offense to “sell or give away,” etc. Defendant demurred to the indictment, as charging two distinct offenses, and being, therefore, bad for duplicity.

<p>County Warrant—on Internal Improvement Fund. The holder of a county warrant payable out of a fund created alone by the bounty of the governments of the United States and the State, and which the county authorities have no power either to créate or replenish, by taxation or otherwise, (such as the Internal Improvement Fund,) can look only to that fund for payment of his warrant. He has no claim upon the county revenues proper.</p>

<p>1. Statute of Limitations: adverse possession. Upon a plea of the statute of limitations, the only evidence given of possession during the first year of .the statutory period was that defendant’s grantor went once upon the land, set up two stakes at what he was told were corners, tried to ascertain the boundaries,' and afterward paid the taxes for the year. Held, that this did not amount to possession, and the plea was not sustained.</p> <p>2. Trust for Benefit of Married Woman: direction to trustee to convey : wild. A deed in trust for the use of a married woman made it the duty of the trustee to convey the premises to such person as she might at any time designate in writing. By her last will she made her husband her residuary devisee. The trust property had never .been conveyed in her lifetime, and was not otherwise disposed of by the will. After her death the trustee conveyed to her husband. Held, that this conveyance was a nullity, but the title passed by virtue of the residuary clause of the will.</p> <p>3. Foreign Probate of Will, as Evidence. The probate of a will in another state is a judicial proceeding, to the record of which full faith and credit is to be given, when authenticated as required by the act of Congress: and it is not necessary to the admission of such will with the probate thereof in evidence that they shall have been recorded in this State. Following Lewis v. St. Louis, 69 Mo. 595.</p>

<p>Error to Morgan Circuit Court.—Hon. Q-. W. Miller, Judge.</p>

<p>Appeal from Laclede Circuit Court.—The case was tried before J. M. Herndon, Esq., sitting as Special Judge.</p>

<p>1. Principal and Surety: notice to sue. A surety cannot base a claim to be released from bis obligation on a verbal notice to the creditor to proceed against tbe principal debtor. To be available the notice must be in writing.</p> <p>;2. -: extension op time. Part payment of a note after maturity is no valid consideration for an extension of time.</p>

—Hon. Joseph Cravens, Judge. The evidence of custom should have been received. It was the law of the contract. Soutier v. Kellerman, 18 Mo. 509; Southwestern F. § C. P. Co. v. Stanard, 44 Mo. 71; Kimball v. Brawner, 47 Mo. 398. It is generally admissible in these cases. Ewell on Fix., 63,109, 307. The engine and boiler were personal property and as such passed to defendant.

<p>1. Hegligenee: railroad : rate of speed. Aside from statutory or municipal regulation, no rate of speed at -which a railroad train may be run is negligence per se.</p> <p>2. -: CONTRIBUTORY NEGLIGENCE ! COURT, WHEN BOUND TO INSTRUCT for defendant. In an action grounded upon allegations of negligence, if the undisputed facts show that notwithstanding the defendant’s negligence th^ plaintiff would not have sustained the injuries complained of but for his own negligence directly tending to produce them, it is the duty of the court to direct the jury to find ■ for defendant.</p> <p>8. --: case adjudged. Judgment for plaintiff reversed because the evidence in the record shows he was nipt entitled to recover.</p>

—Hon. Noah M. Givan, Judge. This was an action for damages for the loss of an arm by being run over by defendant’s locomotive and tender. The diagram on the next page represents the locality at which the accident occurred.

<p>Appeal from Caldwell Circuit Court.—Hon. E. J. Broaudus, J udge.</p>

—Hon. Andrew Ellison, Judge. In 1873 the relators brought this suit on the bond of Lewis R. Burns, surviving partner and administrator of the partnership estate of the firm of Burns & McDaniel. Judgment was rendered at the August term, 1874, against respondent Grant as surety on said bond, for the penalty, and execution was awarded December 24th, 1874, during vacation.

—Hon. J. E. Ryland, Judge.. The indictment charged that the defendant “on the 1st day of January, 1882, being then and there pregnant and big with a female child, was then and there delivered of said female child, and being so delivered of the said female child, did, on the said 1st day of January, 1882, at, etc., unlawfully, feloniously, knowingly and willfully endeavor privately to conceal the birth of said female child by secretly exposing and subjecting the body of the…

<p>1. Practice, Criminal: change of venue. A change of venue for prejudice of the inhabitants may be awarded in a criminal case, without previous arraignment of the prisoner.</p> <p>2. -: two indictments foe same offense. The fact that two indictments have been found against the prisoner for the same offense, will be no bar to his trial upon one of them, if the other is dismissed before the trial takes place.</p> <p>3. -: continuance. If no attachment has been taken out for a witness who has been duly subpoenaed, a continuance cannot be granted on account of his absence.</p> <p>4. Murder: “deliberately:” “coon state of the blood.” The court again approves the definitions heretofore given of these terms.</p> <p>5. -. The evidence in this case warranted the trial court in giving instructions as to murder in the second degree.</p> <p>6. -: “heat of passion.” The courts should not use this expres sion in instructions without explaining its technical meaning;</p>

<p>Appeal from Bates Circuit Court.—Hon. F. P. Wright, Judge.</p> <p>The tax deed relied upon by defendant was acknowledged before a notary public.</p>

<p>1. Felonious Wounding. In a prosecution under section 1264, Revised Statutes 1879, for a felonious wounding, it is not error to instruct the jury that if they believe defendant did unlawfully assault and shoot his victim and thereby inflict great bodily harm, they should find defendant guilty. It is not necessary to define the term “ unlawfully.”</p> <p>2. Evidence. An instruction that “all the evidence produced and admitted in the cause is legal evidence, and whether it is credible or worthy of credit is a matter for the jury to determine from all the facts and circumstances in proof,” is clearly not a comment on the evidence.</p>

—Hon. Geo. W. Miller, Judge. Defendant had the right to remove the depot. Although the proceedings for condemnation were irregular and void, and the company did not acquire plaintiff’s title to the lot, still the depot was placed there in good faith, and without objection from plaintiff, and it did not thereby become part of the realty. Eeitrich v. Murdock, 42 Mo. 279; North. Cent. My Co.v. Canton Co., 30 Md. 347; s. c., 8 Am. Law Reg.

<p>J Ippeal from Clay Circuit Court.—Hon. George ~W. Dtjnn, Judge.</p>

—Hon. Joseph P. Grubb, Judge. This was an action of ejectment for land in DeKalb county. Plaintiff claimed title through a tax deed, made in pursuance of a sale for the taxes of 1872. To show that this deed was invalid, the defendant gave in evidence the following: 1. The general record book of the county court, m which appeared the following entry : “ G. B. Atterberry, ex parte.

Mandamus. The information was filed and the alternative writ awarded November 13th, 1882, and the writ was served November 15th, 1882. 1. It is claimed in this case that the court has no jurisdiction, because the canvassers have performed their duty, and the matter has passed beyond their jurisdiction.

<p>Error to Johnson Circuit Court.—Hon. Noah M. Givan, Judge.</p>

—Hon. James B. G-antt, Judge. This was a suit brought before a justice of the peace of Beuton county by N. B. Petts as collector of that county against John R. Staley and the unknown heirs of John M. Staley, deceased, to enforce the State’s lien for taxes due upon certain lots in the town of Warsaw.

—Hon. G-. H. Burckhartt, Judge. 1. The statute does not prescribe the manner of service, and the rule is, that in such cases, there must be actual, personal service. Allen v. Manfg Co., 72 Mo. 326; Carney v. Tulley, 74 111. 375 ; Railroad Co. v. Cauble, 85 111. 555; People v. R. R. Co., N. Y. Sup. Ct. 211. A corporation can only be notified in the way pointed out by statute. Cosgrove v. It. It. Co., 54 Mo. 499. There is no provision authorizing service on an agent.

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

—IIon. S. II. Woodson, Judge. Indictment for unlawfully and feloniously obtaining from one Calvin Morris the sum of $100, as the indictment alleged “ by means and by use of a cheat%nd a fraud, and a false and fraudulent representation, and false pretense, and confidence game, and a false and bogus check and instrument or bond ” with intent to cheat and defraud said Morris.

<p>Appeal from Jackson Circuit Court.—Hon. S. IT. Woodson, Judge.</p> <p>If there are peculiar benefits, which defendants’ land derives from the road, then certainly they should be considered, although some of his neighbors, whose lands are also taken, should likewise be benefited; and the rule is thus explained by the first instruction asked for by plaintiff, and which the court refused to give. Garnett v. St. Louis, 25 Mo. 505 ; L.$F. P. P. Co. v. Pickett, 25 Mo. 535; Newby v. Platte Co., 25 Mo. 258; Pacific P. P. Co. v. Chrystall, 25 Mo. 544; Lee v. P. P. Co., 53 Mo. 178. The defendants having no permanent or substantial right to the pass-way crossed by plaintiff’’s railroad, were, therefore, not entitled to any damages on this account, and plaintiff’s second instruction should have been given. Bachelder v. Wakefield, 8 Cush. 243, 251; Midford v. Prcdt, 4 Pick. 222; Gayetty v. Bethaum, 14 Mass. 50; Ticket v. Brown, 4 Ad. & E. 369; Hall v. McLeod, 2 Mete. (Ky.) 98 ; Polly v. McCall, 37 Ala. 20; Lodge v. McClintock, 47 N. H. 387 ; Holdane v. Cold-spring, 23 Barb. 103 ; People v. Jackson, 7 Mich. 432 ; People v. Tilman, 12 Mich. 400 ; Fuhr v. Lean, 26 Mo. 116; Washburn on Easements, (3 Ed.) 5, 6, 24, 133, 182. A licensee can maintain no action, and is entitled to no damages because his enjoyment is interfered with by a third party. Commissioners v. Wood, 10 Pa. St. 97 ; Ottawa Gas Co. v. Thompson, 39 111. 598; Hill v. Tupper, 2 H. & Colt. 121; Ackroyd v. Smith, 10 C. B. 164; Washburn on Easements, 688. The court should have permitted witness Massie to testify as to the admissions of the defendant as to what the defendant considered he was damaged by the railroad, and in what his damages consisted. Massie was not trying to effect a compromise. Ashlock v.. Linder, 50 111. 169; Springfield v. Schmook, 68 Mo. 394.</p> <p>The instructions given by the count cover the whole ease, and correctly declare the settled law of this State on that subject. Newby v. Platte Co., 25 Mo. 258, 505, 515 ; Lee v. R. B. Co., 53 Mo. 178; Hannibal Bridge Co. v. Schaubacker, 57 Mo. 583; Mississippi Bridge Co. v. Rung, 58 Mo. 491. The testimony of Massie, offered to prove the statements of Joseph Earrell made at the time Massie was trying to effect a compromise between the appellant and respondents as to the right of way, was inadmissible generally, and especially against the respondent Celia Farrell, the owner of an undivided half of the farm. 2 Whar. Ev., § 1090 ; Ferry v. Taylor, 33 Mo. 323. Appellant’s second instruction is not the law, and if it were, there is no evidence in the case to support it. All of the witnesses testified that the lane or passage-way had been, by consent of all the owners of property adjoining it, open to, and used by the public since 1860, and hence is a public highway. State v. Wells, 70 Mo. 637; State v. Culver, 65 Mo. 607; State v. Walters, 69 Mo. 463.</p>

<p>Appeal from Hannibal Court of Common Pleas.—Hon. John T. Redd, Judge.</p>

—Hon. Geo. W. Miller, Judge. Action by Maty G. Neef, a married woman, and Her-' man, her husband. argued that Mrs. Neef, being a married woman, could make no contract for the purchase ,of real property, which bound her at law; and as the one she-made did not bind her, it could not bind Hazell and take away his power to make another contract for the sale of the property with a person capable of contracting. cited, as to the obligation of the contract, .Ivory v. Murphy, 36 Mo.…

Louis Court of Appeals. This was an appeal taken by Samuel N. Holliday, administrator of the estate of John S. McCune, deceased, from an order of payment made by the probate court of the city of St. Louis.

—Hon. S. H. Woodson, Judge. The'plaintiff husband, being thus entitled to the possession, {Bryan v. Wear, 4 Mo. 112,) was the only proper party to bring ejectment. Beal v. Harmon, 38 Mo. 438; Allen v. Hanson, 44 Mo. 263 ; Tyler on Ejectment, 168; Jackson v. McConnell, 9 Wend. 175; Jackson v. Leek, 19 Wend. 339; Chambers v. Handley, 3 J. J. Marsh. 98; Bledsoe v. Simms, 53 Mo. 305, 308; Wilson v. Garaghty, 70 Mo. 517.

<p>1. Guardian, etc., Defiling Infant Female. It is fio defense to a charge against a guardian, etc., of carnally knowing a female under the age of eighteen years confided to his care, to show that such carnal knowledge was had with her consent.</p> <p>2. New Trial: newdy discovered evidence The Supreme Court will not reverse a judgment for refusal of the trial court to grant a • new trial asked on the ground of newly discovered evidence, when such evidence is merely cumulative and only tends to impeach.</p>

<p>Appeal from Pettis Circuit Court.—Hon. William T. Wood, Judge.</p>

It was gross error to render judgment for the value of the improvements, and attempt to enforce it by execution. The law only contemplates a stay of execution until the prevailing plaintiff pays for the improvements. Russell v. Defrance, 39 Mo. 506; Malone v. Stretch, 69 Mo. 25. And there must be an independent proceeding. R. S., §§ 2259, 2260, 2261. 1.

Habeas Corpus. At common law, the examination of witnesses was ore terms, and no deposition could be taken, save by consent or through the slow, tedious and expensive process of a bill in chancery. 2 Black. Com., (Cooley Ed.) bk. 3, § 383; 2 Sto. Eq. Jur., (11 Ed.) 389, § 1514; 1 Dan. Ch. Plead. & Prac., (5 Ed.) § 933. As a graft from equity it is to be strictly construed.

—Hon. H. P. White,-. Judge. Defendant, a negro, was indicted for the murder of Patrick Jones, a policeman of Kansas City.

—Hon. John T. Redd, Judge. The Trader’s Bank of St. Louis held a note made by Leiper Bowling & Co., and indorsed by Abraham McPike. Abraham McPike died, and Henry C. McPike qualified as administrator of his estate, in the probate court of Ralls county. The note being unpaid was duly protested, and the bank brought suit on it in the circuit court of St. Louis county against Leiper Bowling & Co. and Henry C. McPike, administrator.

<p> Habeas Corpus. </p>

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

<p>Appeal from Crawford Circuit Court.—Hon. Y. B. Hill, Judge.</p>

—Hon. Andrew Ellison, Judge. 1. There was a judgment rendered by the county court for the amount of taxes found due, and this judgment recites that due notice had been given, and by the positive declarations of the statute, (2 Wag. Stat., p. 1199, § 193,) this judgment “ has the same force and 'effect as judgments of the circuit courts and other inferior courts of this State.” Such judgments are conclusive and can’t be attacked collaterally.

<p>Appeal from Madison Circuit Court.—Hon. J. H. Nicholson, Judge.</p>

<p>1. Where the defense of contributory negligence is pleaded it should not be omitted from the instructions.</p> <p>2. Carrier of Passengers—not an Insurer. A carrier of passengers is not an insurer but is held only to the utmost care and diligence of a cautious person. An instruction, therefore, that a carrier was liable for an injury to a passenger from a defect in his vehicle unless he had used the “ greatest possible care and diligence that was necessary,” is erroneous.</p>

—Thomas Shackleeord, Esq., Special Judge. 1. An injured passenger is without remedy, unless the injury could have been avoided by the exercise of ordinary care on his part, after becoming aware of the danger to which be was exposed. As to passengers projecting their arms and elbows from windows, see Todd v. R. R. Co. 3 Allen 18; Pittsburg & C. R. R. Co. v. Andrews, 39 Md 329; s. c, 17 Am. Rep. 568; Pittsburg, etc., R. R. Co. v. McClurg, 56 Pa.

Louis Court of Appeals. The estate was not of that character mentioned or • contemplated by the law, which the law authorizes the public administrator to take charge of. Wag. Stat., 122, § 8. It is but a chose in action, a proceeding in equity by which it is sought to recover a judgment against the estate of Catharine O. Long, for conversion of property alleged to have belonged to Maynard. The law never meant to apply to a case of this kind.

<p>A Public Administrator who has unlawfully taken charge of an estate cannot maintain an action to recover assets of the estate.</p>

<p>1, Evidence. It is error to admit evidence upon a matter not put in issue by the pleadings.</p> <p>2. Mechanic’s Lien : practice. It is error for the court to establish a mechanic’s lien without a finding by the jury that the plaintiff is entitled to the lien. - ■</p>

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

<p>Appeal from Carroll Circuit Court.—Hon. E. J. Broaddus, Judge.</p>

<p>Murder. An instruction that if the defendant maliciously shot and killed deceased with a rifle, the law presumes the killing to be murder in the second degree unless it is shown to have been justifiable on the ground of self-defense or within some other degree of homicide, Held, error.</p>

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

<p>Appeal from Jackson Special Law and Equity Court.—Hon. R. E. Cowan, Judge.</p>

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

<p>Pleading, Criminal: larceny. The description of the property need not he as particular in an indictment for an attempt to commit a ’arceny as in one for an .accomplished larceny.</p>

<p>Appeal from Madison Circuit Court.—Hon. J. H. Nicholson, Judge.</p>

<p>1. Murder: deliberation : instructions, harmless error in. An instruction in a murder case defining the word deliberately to mean, “ done in a cool state of the blood—that is, not in a heated state of the blood caused by lawful provocationHeld, error; but the record in the case disclosing no evidence of provocation either by words or acts of the deceased, or of the existence of such passion on the part of defendant as would mitigate the homicide ; Held, that the error was immaterial.</p> <p>2. Witnesses. Instructions as to credibility approved.</p> <p>3. -: cross-examination of the accused. When the defendant, in a criminal case, testifies in his own behalf, the jury, in weighing his testimony, have a right to take into consideration his interest in the' result.</p> <p>4. Venue in Criminal Cases. While it is necessary in criminal cases to prove the venue as laid in the indictment, it is not ne™ ssary that the evidence should be direct, express or positive. Circumstantial evidence may be sufficient.</p>

—-Hon. E. E. Cowan, Judge. By dismissing her action, the widow and all others were placed in the same condition that they would have been had no action been brought. Shepard v. St. Louis, Iron Mountain § Southern B’y Co., 3 Mo. App. 550, is not an authority in this case. There the case was dismissed because the plaintiff failed to appear and prosecute. She went out of court involuntarily, while in the case at bar the plaintiff went out of court of her own motion.

—Hon. Hamilton G. Wilson, Judge. This was a suit for the value of professional services rendered by the plaintiff, as attorney, to the defendants, in certain suits brought against them by one Dougherty, The first suit was brought to set aside and annul certain deeds conveying the site of defendants’ college, the site of a Catholic church and a farm near the town of Cape Girardeau.

<p>Municipal Corporation: negligence. The plaintiff, a woman, while walking slowly and carefully in the night on a sidewalk in the City of Kansas, slipped and fell into a gully close to the walk, of which she knew nothing, but which had existed for several years. Held, that the city was liable.</p>

—Hon. Henry P. White, Judge. Burgtary and larceny are, at common law, and under the statute, distinct offenses. The conviction of petit larceny was no bar to a subsequent prosecution for a burglary committed at the time of the larceny. Wilson v. State, 24 Conn. 57. Evidence necessary to convict of the charge of petit larceny would .not sustain the charge of burglary, of which defendant was convicted, and the plea of autrefois convict is not a good plea in bar.

<p>Appeal from Jefferson Circuit Court —Hon. L. E. Dinning, Judge.</p>

<p> Appeal from St. Louis Court of Appeals. </p> <p>Ejectment. The case will be found fully reported in 64 Mo. 218.</p>

Louis Court of Appeals. The defendant, McGinnis, having recovered of the plaintiff's a certain lot in ejectment, the plaintiffs brought this suit under the statute, (R. S., § 2259,) to recover the value of improvements made on the lot in good faith, and also to enjoin the defendant from taking possession under his judgment in ejectment until the value of the improvements should be ascertained. Plaintiffs had judgment in the circuit court and in the court of appeals.

<p>Appeal from Ad'air Circuit Court.—Hon. Andrew Ellison, Judge.</p>

<p>Appeal from Daviess Circuit Court.—Hon. S. A.’ Richardson,. Judge.</p>

—Hon. G. H. Burck-HARTT, Judge. This was an indictment for assault with, intent to kill one Bass, a special policeman. Tbe assault took place in Matthews’ saloon in the city of Moberly. Against the defendant’s objection, the State was permitted to show that an hour previous to the assault the defendant had had a difficulty at the same place with another person and that Bass had interfered and quelled the disturbance.

<p>Appeal from Randolph Circuit Court.—Hon. G-. H. Burckeartt, Judge.</p>

—Hon. S. A. Richardson, Judge. The bond was not a statutory bond, for it lacked the most essential condition by omitting the words “ or order or decree of any court having-jurisdiction.” But even if it were a valid statutory bond the scire facias should recite that demand had been made upon the executor in order to authorize the execution against the executor. These jurisdictional facts being absent from the sci.fa. render it fatally deficient.

<p>1. Infants: death penalty. Section 1668, Revised Statutes, exempts persons who commit crime under the age of eighteen years from imprisonment in the penitentiary, but not from the death penalty.</p> <p>2. Homicide: evidence op conditional threats. On a trial for homicide evidence of conditional threats made by the prisoner is admissible; and it may be no objection that they were-made two months before the homicide.</p> <p>3. -: criminal capacity op inpants. An infant between the ages of seven and fourteen is presumed to be incapable of committing crime, and the onus is on the State to prove his criminal capacity.</p>

—Hon. R. E. Cowan, Judge. The condition of the bond sued on is for the faithful performance by Porter of his duties “ as marshal.” The obligation of sureties cannot be extended by implication. Blair v. Ins.

—ITon. Andrew Ellison, J udge. 1. The omission of the word “ beforehand ” in the definition of premeditation, is fatal. Premeditation is an element of murder in the second degree, and the prisoner was entitled to have it properly defined. State v. Kotovshy, 74 Mo. 247; State v. Curtis, 70 Mo. 594; State v. Sharp, 71 Mo. 218 ; State v. Ellis, 74 Mo. 207. The definition given does not explain but obscures; it is the definition of a different word. 2.

Louis Court of Appeals. This was an action of ejectment brought by plaintiffs-as heirs of Ernest Koester. Defendants claimed title-through a sale and conveyance made by Schulenberg as administrator of Koester, at which sale defendants’ ancestor, Trusten Polk, purchased.

<p>Railroad: action fob killing stock: common law action: evidence. A statement of claim against a railroad company for killing the plaintiff’s cow, set out that the defendant “ so carelessly and negligently, rapidly and heedlessly ran and managed its said locomotive engine and cars without ringing its bell or using its steam-cock, or giving any other alarm, that the same ran against and over” the cow. Held, that this was a statement of a cause of action at common law and not under the statute, and that evidence to show the speed of the train, and when and at what place the whistle was sounded, was admissible.</p>

Prohibition. Application for a writ of .prohibition at the relation of the Laclede Bank to restrain Hons. Edward A. Lewis, Robert A. Bakewell and Seymour D. Thompson, judges of the St. Louis court 'of appeals, Joseph F. Baier, clerk of said court, and the St. Louis court of appeals, from issu? ing or causing to be issued any peremptory writ.of mandamus. The petition for a prohibition may be made by a party or a stranger to the record. Green & Meyer Mo.

Louis Court of Appeals. This was a proceeding against defendant, Gerard B. Allen, by motion, under the statute, (1 Wag. Stat., p. 291, § 13,) as a stockholder of the Illinois & St. Louis Bridge Company. As to the time when the liability of the stockholder became fixed, see Nixon v. Green, 11 Ex. 550; MeClaren v. Francis cus, 43 Mo. 453; Miller v. Great Republic, 50 Mo. 55.

Louis Court of Appeals. The city charter of March 4th, 1870, was in force in February, 1874, and continued in force until October 21st, 1876, when it was superseded by the present charter of the city. Under the charter of March 4th, 1870, the city council was not authorized to vacate or abolish a street or highway, nor to do any act, nor to grant any privilege, which would operate as such vacation or abolition. Laws of 1870, p. 464, § 1, art. 3.

<p>Will: suit to set aside : evidenoe. In. a suit to set aside a will executed in 1866, on the ground of undue influence exerted on the testator by his wife, evidence was offered tending to show that prior to their marriage in 1855 she had such influence, but there was no offer to show that it continued down to 1866; Held, that it was too remote and was properly rejected.</p>

<p>Appeal from Washington Circuit Court.—Hon. L. F. Dinning, Judge.</p>

<p>Appeal from Daviess Circuit Court.—Hon. S. A. Richardson, Judge.</p>

<p>1. Municipal Ordinances: bulbs of construction. The charter ' and ordinances oí a city stand in the same relation to each other as the constitution and statutes of a state, and the rules applicable in deciding questions of conflict between the latter may be resorted to to determine similar questions between the former.</p> <p>2. -: -: pay of officers of blection. Where a city charter provided that judges of election should receive no pay, and repealed all existing ordinances inconsistent with its provisions; Held, that an ordinance then in force providing for the pay of judges and clerks of election was repealed only so far as it related to the judges, and the clerks were entitled to pay at the rate fixed by the ordinance.</p>

<p>Appeal from Benton Circuit Court.—Hon. James B. Gantt, Judge;</p>

<p>1. Practice in Appellate Courts: failure to prosecute appeal. If motions are filed or cause shown in the St. Louis court of appeals against the affirmance of a judgment for want of prosecution, they should be preserved by bill of exceptions; otherwise they will not be examined in this court.</p> <p>2. -: -. Upon appeal from a judgment of the court of appeals affirming a judgment of the circuit court for want of prosecution, this court will inquire only whether there was a failure to prosecute. It will not go into the merits of the case.</p> <p>3. -:-: damages. Ten per cent damages should be awarded by the appellate courts in those cases only where the record is examined and the appeal found to be without merit; not in cases of affirmance for want of prosecution.</p>

—Hon. J. D. Parkinson, Judge. This was an action for the claim and delivery of personal property. Plaintiff claimed part of the property as legatee under the will of her deceased husband. At the trial she gave evidence showing that after the commencement of the suit proof of the execution of the will was taken by the clerk of the probate court in vacation.

<p> Appeal from St. Louis Court of Appeals. </p> <p>Where land is conveyed under a special authority, that authority must be strictly pursued. Denning v. Smith, 8 Johns. Ch. 344; Young v. Keogh, 11 Ill. 642; Langdon v. Poor, 20 Vt. 15 ; Thatcher v. Powell, 6 Wheat. 127 ; Head v. Providence Ins. Co., 2 Cranch 127; Robert v. Casey, 25 Mo. 584; Strouse v. Drennan, 41 Mo. 298. In Dudley v. Mayhew, 3 N. Y. 9, and Almy v. Harris, 5 Johns. 175, it is decided that “where a statute which creates a right gives no remedy, a party may resort to the usual remedy.” By a parity of reasoning, where a statute which prescribes a duty fails to prescribe the method of the execution' of the duty, the duty must be executed in the usual manner; i. e., under the rules laid down in the general law for the performance of such duty. For instance, when the special act requires the guardian to execute a deed, and fails to specify what method of execution he shall follow, he of course must make his deed eonform to the requirements of the general law.</p> <p>The act of the legislature did not prescribe the form of the deed. The proceedings of the county court cannot be collaterally attacked. McVey v. McVey, 51 Mo. 406 ; Faitee v. Thomas, 58 Mo. 168; Overton v. Johnson, 17 Mo. 442; Higgins v. Peltzer, 49 Mo. 152; Fugle v. Webster, -55 Mo. 246 ; Carr v. Spannagel, 4 Mo. App. 284.</p>

Louis Court of Appeals. This was a bill in equity filed by John H. Bobb and Martrom D. Lewis, public ádministrator of the city of St. Louis, in charge of the estate of Charles L. Bobb, deceased, against Charles Bobb, Martha E. Bobb, William C. Jami-son,Jane R. Perker, George W. Cline, Thomas Howard, William H. Letcher, Marshall D. Lyle, August Jackman, Leicester Babcock, George R. Hincke, Peter W. Hincke, Levi L. Ashbrook, Frank R. McGinness, Joseph Tippett, Elizabeth V.…

<p>Appeal from Andrew Circuit Court.—IIon. H. S. Kelley, Judge.</p>

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

<p>Appeal from Jackson Special Law and Equity Court.—Hon. R. E. Cowan, Judge.</p>

Louis Court of Appeals. The charter of St. Louis authorizes the city government to license, tax and regulate hotels and boarding houses. 2 R. S., p. 1586, par. 5, § 26, art. 3. Ordinance 10,662 is a valid exercise of the power thus granted. Every point made in this case is settled against the appellant. St. Louis v. Sternberg, 6.9 Mo. 289; St. Louis v. Green, 70 Mo. 562; s. c., 6 Mo. App. 591; St. Louis, v. Bireher, 7 Mo. App. 169.

<p>1. Action against Sureties: pleading. In an action against the sureties in a bond conditioned to secure the faithful performance of a building covenant contained in a lease, averments in the petition of breaches of other covenants of the lease are properly stricken out.</p> <p>2. Objections to Evidence: the record. This court will not consider objections to evidence unless the record shows the specific grounds upon which they are based.</p> <p>3. Construction of a Pleading. In an action on a bond for breach of covenants of a lease, the lessee’s answer averred that after the lease had been signed and delivered and before he had secured possession of the premises, he learned of certain defects in the lease, and that he refused to receive the lease, and would have rescinded it, but plaintiffs agreed with him that if he would accept it, they would remedy the defects. Held, that these averments were susceptible of the construction that the lease was never accepted except upon the condition that the defects should be remedied.</p> <p>4. lew Trial for Variance. To obtain a new trial on the ground of variance between the pleadings and the proof, a party must show by affidavit not only that he was misled but also in what respect he was misled.</p>

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

Louis Court of Appeals. This is an action on a promissory note made by the defendant, Theodore Hunt, and indorsed by Charles L-Hunt. There is an allegation that the indorser waived demand and notice. As to this the jury found for the indorser, and as to his liability nothing more need be said.

Louis Court of Appeals. The court of appeals gave too broad a construction to the statute of Missouri relating to the competency of witnesses. It should have been strictly construed. Smith v. Moffat, 1 Barb. (N. Y.) 65; Dioelly v. Lioelly, 46 Me. 877; Young v. McKenzie, 3 Ga. 31; Dewey v. Goodenough, 56 Barb. (N. Y.) 54; State v. Clinton, 67 Mo. 380; Satterlee v. Bliss, 36 Cal. 489; Gower v. Emery, 18 Me. 79; Ilotaling v. Cronise, 2 Cal. 60; Warner v. Fowler, 8 Md. 25.

<p>Action for Real Estate: general denial : evidence. In an action involving title to real estate, the defense of adverse possession for the statutory period is admissible under a general denial of the plaintiff’s title.</p>

—The case was tried before Joseph G. Blair, Esq., sitting as Special Judge. This was an action commenced in a justice’s court for the price of a patent device to water stock alleged to have been purchased by the defendant of the plaintiff. In the justice’s court judgment was rendered for the defendant.

<p>'.Libel: publication actionable per se. The publication in a newspaper o£ a false statement that a person was convicted and sentenced to prison for libel, is actionable without proof of special damage.</p>

—Hon. G. H. BurcK' hartt, Judge. 1. The moneys received by Pierce, as special commissioner, were never turned over to Pierce, administrator of Cochran, by any act of said commissioner. Held: and not a dollar could pass into the jurisdiction of the probate court until after the jurisdiction of the circuit court was exhausted.

Louis Court of Appeals. The charter in so far as it permits “ benefits ” to be assessed by special tax-bills, in street opening proceedings, against the property of persons who have no notice of the proceedings, and no opportunity to be heard therein, is clearly unconstitutional and void. Charter, art. 6; 2 R. S. 1879, pp. 1606,1607, § 2 et seq; Stuart v. Palmer, 74 N. Y. 183; Mo. Const., art. 2. §§ 30, 21; State v. City, 67 Mo. 113 ; State v. Jersey City, 4 Zabr.

<p>Error to Pike Circuit Court.—Hon. G-. Porter, Judge</p>

Louis Court of Appeals.' This was an action brought by appellants in the circuit court of the county of St. Charles for damages for the breach of a contract, entered into on the part of the respondent by commissioners appointed under the statute of this State, approved March 3rd, 1869, and the amendatory act approved February 15th, 1873, entitled “An act to provide for the reclamation of swamp and. overflowed lands bordering on or situated near the river,” whereby appel-.…

—Hon. E. J. Broaddus, Judge. How else could respondent show that the killing was the result of - the failure to ring or blow, except by circumstances? The testimony as to the unusual rate of speed of the train, and that the steer was young, strong, active and healthy, were circumstances from which the jury could fairly and rationally conclude that the killing was the result of the failure to ring the bell or blow the whistle. Holman v. Railroad Co., 62 Mo. 562.

<p>Error to Scotland Circuit Court.—Hon. John 0. Anderson, Judge. *</p>

—Hon. W. E. Geiger, Judge. . William 0. Babb was indicted for burglary in the second degree and larceny.

<p> Appeal from St. Louis Court of Appeals. </p> <p>Defendant was indicted under the name of Charles Kelsoe alias McCarty.</p>

—Hon. D. T. Hawkins, J udge. A conveyance to a fictitious grantee is void. Douthitt v. Stinson, 63 Mo. 268 ; Arthur v. Weston, 22 Mo. 383; Jackson v. Cory, 8 Johns. 385 ; German Land Asso. v.- Scholler, 10 Minn. 338.

<p>Error to Cole Circuit Court—Hon. E. L. Edwards, Judge.</p>

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

— Hon. G. Porter, Judge. Contracts like the one in question are both wise and lawful, and when made should be upheld and enforced. Mice v. B’y Co., 63 Mo. 314; Clark v. B’y Co., 64 Mo. 440; Sturgeon v. B’y Co., 65 Mo. 569 ; Oxley v. B’y Co., 65 Mo. 629 ; Harvey v. B. B. Co., 74 Mo. 538; Pleas v. St. L., K. C. It is well settled that common carriers cannot contract against their own negligence, and the jury have found the damages to be the result of defendant’s carelessness.

<p>Appeal from Tipton Common Pleas Court.—Hon. E. L. Edwards, Judge.</p>

—Hon. Jos. P. Grubb, Judge. 1. The court erred in striking out tbe new matter contained in the answer. The practice act, (1 R. S., p. 60S,) requires the answer to contain, 1st, A general or special denial of the material allegations of the petition, and 2nd, A statement of any new matter. To apprise the plaintiff of its reliance upon an extraordinary storm, it was necessary for defendant to state that fact in an appropriate manner in its answer. Northrop v. Mo. Val.

Louis Gourt of Appeals. On the 8th day of May, 1868, Adolph Renard, Sr.,, died, seized, among other property, of a certain tract of land in St. Louis county.

Louis Court of Appeals. This action was brought on the following instrument: “ St. Louis, July 25th, 1878.

<p>Criminal Law: venue. Where there is no evidence in the record that the venue of the crime was proved or the question of venue was submitted to the jury, a judgment of conviction will be reversed.</p>

<p>Action by third party on Contract made for his Benefit. Where a debtor abandons his contract and the owner, being indebted to the contractor for work done, pays the laborers, deducting what they owe A., then pays A., deducting what he owes B., all parties thus paid acceding to the arrangement, there is an implied undertaking on the part of the owner to pay B. the amounts thus retained, and B. has a right of action therefor upon the implied promise thus made for his benefit.*</p>

<p>Appeal from Platte Circuit Court.—Hon. George "W. Dunn,, Judge.</p>

<p>Appeal from Clinton Circuit Court.—Hon. George "W. Bunn, Judge.</p>

Louis Court of Appeals. On August 27th, 1875, the St. Louis Brokerage Company gave its promissory note to William Bagnell for $7,590, payable in thirty days, and as collateral security delivered to him certain county and. railroad bonds and coupons of the face value of $23,000.

<p>1. Taxes; execution against several lots. Under the revenue act of 1877 every parcel of land is liable for its own taxes, and no parcel is liable for the taxes of any other. Where, therefore, an execution ran against several lots, and at the sale a portion of them brought enough to pay the taxes on all; Held, that this did not make it the duty of the sheriff to stop the sale. He had no power to apply any part of the proceeds of the lots sold to the payment of the taxes due on the remainder and it made no difference that all the lots belonged to the same owners.</p> <p>2. -. There is no question of the constitutionality of that provision of the revenue act of 1877 which authorizes the enforcement of a lien against the land without any personal judgment against the owner.</p>

—Hon. C. C. Bland, Judge. The following instructions were given for the State: 1.

Habeas Corpus. The testimony proves beyond cavil the following facts: 1st, That the little girl, Berenice, has a great affection for and is very much attached to the petitioner, her father, and his wife. 2nd, That Berenice’s father, the petitioner, and his wife, are devotedly attached to this little child; and are very much grieved and pained because of the circumstances which deprive them of her society and affection; and that they are willing, desirous and exceedingly…

Louis Court of Appeals. 1. On general principles of equity it would seem that & loss which had accrued before the company was dissolved, land was entitled to full payment, even if the company in paying it exhausted all its assets, should have priority in judgment, and, in the absence of a statute, was, at com-non law, entitled to priority as a debt of higher dignity han simple contract debts. Toller Execs., 258; Woodworth v. Paine, 1 Ill.

Mandamus. 1. After breach of condition the mortgagee in a chattel mortgage, or deed of trust, becomes the absolute owner of the property. Robertson v. Campbell, 8 Mo. 365, 615 ; Williams v. Rover, 7 Mo. 556 ; Lacey v. Giboney, 36 Mo. 320; Lean v. Davis, 12 Mo. 112; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26; McCandless v. Moore, 50 Mo. 511. 2. The lien of defendant did not amount to a title to the property. Burgess v. Kattleman, 41 Mo. 480. 3.

Appeal Jrom Platte Circuit Court.—Hon. Geo. W. Dunn, Judge. When the plaintiff’s right is founded upon an obligation of law, or an obligation on the part of the defendant to observe some particular duty, the declaration must state concisely the circumstances which give rise to the defendant’s particular duty or liability.

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

<p>1. Slander: plea in mitigation. A plea in mitigation of damages in an action for slander, should not contain an averment of the truth of the alleged slanderous words.</p> <p>2. -: justification : evidence. Where a defendant in an action for slander pleads in justification, it is not error to exclude evidence that since the commencement of the suit he has repeated the alleged slanderous words.</p> <p>3. -: practice. It is no error to permit the defendant to read the plaintiff’s petition to the jury.</p> <p>4. -: statute of frauds : parol evidence. In an action for slander the petition charged that defendant said of plaintiff, “ You stole my rock.” Defendant pleaded in mitigation of damages that plaintiff had let a quarry to one M. who had quarried the rock and set it apart for defendant and had been paid for it by defendant, and that plaintiff, though he knew this, had taken the rock and converted it to his own use. At the trial parol evidence was admitted of the letting of the quarry to M. Held, no error.</p> <p>5. Instructions. The court censures the multiplication of instructions as tending to embarrass and confuse the jury.</p> <p>6. Slander. To sustain an action for slander it is necessary to prove the exact language alleged to have- been used by defendant, or enough of the exact language to constitute the charge. It is not sufficient to prove different words of similar import or equivalent in meaning.</p>

<p>1. Married Woman’s Promise to pay .Attorney’s fee for Divorce. A promise by a married woman to pay an attorney a fee for obtaining for her a divorce from her husband, is not binding on her, and, therefore, not on a subsequent husband; neither is her affirmation of such promise after the divorce has been obtained.</p> <p>2. Married Woman’s Promise: affirmation when discovert. The moral obligation resting upon a woman to make good her promise given during coverture, is not a sufficient consideration to uphold an affirmation of the promise made after she becomes discovert.</p> <p>3. -: abandonment. The abandonment of a married woman by her husband for a period of time sufficient to entitle her to a divorce, does not remove her disability to contract, unless he has gone beyond the limits of the State.</p>

<p>1. Motion Filed in Term: time: construction of statute. Section 3558, Revised Statutes, which, provides that “motions in a cause filed in term shall be filed at least one day.before they may be argued or determined,” is for the protection of the adverse party to a motion, and when he does not claim the benefit of it, the party filing it cannot.</p> <p>2. Continuance: requisites of affidavit. On an application for the continuance of the trial of an indictment for murder on the ground of the absence of witnesses, the affidavit failed to give the names of some of the witnesses, and failed to show the residence of those it did name, or state that they were unknown or that the facts which they were expected to prove were true. Held, that the application was properly refused.</p> <p>3. Conduct of Trial: indiscreet remarks of judge. An indiscreet remark made by the judge during the trial but immediately withdrawn, Held, not sufficient to justify interference with a judgment which the evidence supported, where it did not clearly appear that the prisoner was prejudiced.</p> <p>4. Officer in Charge of Jury: oath. The officer in charge of a jury is not required to take the oath prescribed by section 1910, Revised Statutes, until the arguments of counsel are closed.</p> <p>5. Character of Prisoner: weight of evidence. On a trial for murder, the defendant asked an instruction that in a doubtful case where the accused had established a good character the law presumed that he would not commit the offense charged. This was refused, and the jury told that they might take his character into consideration with all the other facts in determining his guilt or innocence. Held, correct.</p> <p>6. Continuance: “postponement.” To style an application for a continuance, an application for a postponement, does not change the legal requisites of the affidavit required to support it.</p> <p>7. Affidavits Filed on Appeal. In the Supreme Court certain affidavits in relation to a rule of the trial court as to putting cases at the foot of the docket, were filed with the briefs of counsel. Heidi that they could not be considered.</p>

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

—Hon. J. B. Robinson, Judge. 1. A court by an order nunc pro tunc will correct clerical errors which have occurred at the time (not before) the judgment was rendered whereby the clerk entered a different judgment from that actually rendered by the court.

<p>1. Verdict: WEIGHT OR evidence: PRACTICE IN supreme court. In a case submitted to the jury under proper instructions this court never disturbs the judgment on the ground that the verdict is against the weight of evidénce.</p> <p>2. Witness: diligence in procuring his attendance : new trial. A party relying upon the promise of a witness to attend and testify, failed to have him subpoenaed. He was present about the time the-case was called for trial, but afterward absented himself and a subpoena then issued could not be served because he could not be found. ^ Meld, that no diligence had been exercised to procure his. attendance, and his absence was no ground for a new trial.</p> <p>3. Hew Trial: cumulative evidence. A new trial will not be granted on the ground of failure to obtain evidence which is merely cumulative.</p>

—Hon. Noah M. Givan, Judge. Any use of property unauthorized by the true owner, which has caused damages, is a conversion. 18 Cent. Law Jour. 185,188; Neiswanger v. Squier, 73 Mo. 192 ; Williams v. Wall, 60 Mo. 818; Huxley v. Hartzell, 44 Mo. 370. And this is the case, although in its inception the defendant’s possession was lawful. 2 Wait’s Actions and Def., 164.

<p>1. Injunction: practice. In a suit to enjoin a judgment on the ground of surprise, the court, without setting aside the judgment, examined into the merits of the original case, and finding that there was no valid defense, refused the injunction. Held, a proper method of procedure. The complainant was not entitled to have the judgment first set aside and his defense then tried by a jury.</p> <p>2. Practice in Equity: instructions. Error in instructing the jury upon issues submitted to them in a proceeding in equity will not vitiate the judgment if the evidence warrants the finding.</p> <p>3. Partnership. An agreement to share profits is prima fade an agreement for a partnership ; but the contrary may be shown.</p>

Louis Court of Appeals. The following are the instructions referred to in tbe opinion: For the plaintiff: 7.

<p>1. Public Officers: their compensation. The right of a public officer to compensation for his services is derived from the statute. Unless that gives it he must perform his duties without compensation.</p> <p>2. Probate Judges: pees. Probate judges are not entitled to fees for entering orders opening and adjourning court.</p>

—Hon. Joseph Cravens, Judge. This was an action of ejectment to recover the west half of lot No. 2 of the northwest fractional quarter of section 1, township 26, range 25, and the northwest quarter, southwest quarter section 36, township 27, range 25, in Lawrence county. Plaintiff claimed as only son and heir of John A. Greene, who died in the year 1854, seized of these lands. On the 19th day of January, 1855, Wm.

<p>1. Juror: hale citizen. A person summoned as a juror had been living in the county about two months, having come thither from another state, with the intention of making it his permanent home ;■ Held, that under a statute which required every juror to be “a male citizen of the State and a resident of the county,” he was qualified to serve.</p> <p>'2. Homicide: wife’s infidelity. To reduce a homicide to manslaughter on the ground of illicit intercourse between the deceased and the wife of the defendant, the detection must have been in the very act, and the killing instant upon the detection.</p>