Volume 87 — Missouri Reports

Louis Court of Appeals. (1) The errors in the petition which would be reached by a motion to strike out parts of the answer,. when treated as a demurrer, must be such as a plea to the merits cannot waive or verdict cure. Bliss on Code Pleading, 417, 423 ; 1 Chitty’s. Pleading^ ■668 and notes. No such errors appear in the- petition. It is good as a motion for execution. (2) The petition was good as an original suit. R. S.,'sec. 745.

Appeal from St. Louis Court of Appeals. (1) The presumption in favor of innocence holds in all civil cases in which it comes collaterally in question. Case v. Case, 17 Cal. 598; Bradish v. Bliss, 35 Yt. 326; Klein v. Landmari, 29 Mo. 259; Mtorray v. Murray, 6 Ore. 17; Spears v. Burton, 31 Miss. 547; Lockhart v. White, 18 Tex. 102; Sharp v. Johnson, 22 Ark. 75.

T. A. Gill, Judge. (1) The demurrer to the evidence should have been sustained. Waldhier v. Ry., 71 Mo. 514 ; 2 Thompson on Neg. 1008. (2) The first instruction given for plaintiff changed the issue of the track being permitted to remain out of repair, as made in the petition, to that of negligence in its construction. Such a change of issue was erroneous.

— IIon. Gr. H. Burokhartt, Judge. (1) Defendant’s answer is insufficient, uncertain, inconsistent and indefinite, and plaintiff ’ s motion to strike out parts of it should have been sustained. Defendant neither avers nor denies the truth of the charges so as to make an issue of that fact before the jury.

— IIon. Elijah Robinson, Judge. (1) The court erred in excluding tke evidence offered to show tke general notoriety of tke suits against Humphrey and of the general report and belief amongst Carson’s neighbors as to Humphrey’s purpose in incumbering his property. Benoist v. Derby, 12 Mo. 196 ; Dickerson v. Chrisman, 28-Mo. 139; Conover v. Berdine, 69 Mo. 125. (2) The court should have admitted the petition in Hall v. Humphrey. Bump on Fraud. Convey. 565.

— Hon. E. L. Edwards, Judge. (1) The assignment of the policy was improperly .admitted in evidence. There was no proof of the authenticity of the signatures of the agents purporting to have consented to the assignment, and no proof that they had any authority to consent for the company to -the assignment, or that the company ever consented -thereto. It devolved on the plaintiff to prove by competent testimony, that Lord, and Howell were the “ regular agents” of the defendant.

— Hon. E. L. Edwards, Judge. (1) The petition does not state a canse of action-Not one single or aggressive act upon the part of any one toward the respondent is charged in the petition, no assault, no attempt or effort to make an assault and no imminent danger or peril of an assault.

— Hon. T. A. Hill,. Judge. This was an action under Revised Statutes, section 809, for double damages for the killing of a horse of respondent byvdéfehdant’s train. The plaintiff testified as follows: “I own the horse-that was killed. It was killed just below the fire prairie-bridge in Port Osage township, Jackson county, state of Missouri.

Louis Court of Appeals. (1) The plaintiff had no title whatever. The assessment was void and the sale was void, as all of the taxes on the land had been paid. Gross. Statutes, 1871, sec. 249, p. 621; same, sec. 22, p. 576. (2) The statute in question, section 15, p. 575, Gross. Statutes, is a local statute only, and has no extra-territorial force.

— Hon. E. M. Black, Judge. (lj The court erred in permitting the German Building Association to become a party to the action. No motion was filed to that effect, no reasons were .specified and no time or opportunity given plaintiff • in error to contest the propriety of the proceeding and there was no waiver as to it on plaintiff’s part. R. S., secs. 2244, 3357 and 3358.

— Hon. F. M. Black, Judge. (1) The decision of this court, when this cause was here before (69 Mo. 103), should be overruled. It is in direct conflict with the settled rule of this court and elsewhere, that a city is not liable for the failure of its officers to exercise powers which are conferred upon it or its officers for the good of the public, and not for its corporate gain or private advantage.

Louis Court of Appeals. The indictment is sufficient under General Statutes, ■section 7, page 778 (2 Wag. Stat., sec. 7, chap. 42, art. 2.) now section 1288, Revised Statutes. The defendant attempted, without a design to effect death, to produce :an abortion, and the death of the woman ensued from such attempt. This was murder at the common law. 1 Hale’s Pleas Cr. (1 Am. Ed.) secs. 429, 430; Reg. v. Gaylor, 7 CoxCr. C. 253 ; 1 Whar. on Cr.

0. GK Burton, Judge. (1) 44 A petition stating, without any specification of facts, that plaintiff was injured in consequence of. the negligence of the railroad company in using defective machinery, and in running and managing its railway and cars, would be fatally defective, and when such allegations are' used in connection with a specific statement of a cause of aotiony they -do not' enable the plaintiff t'or recover on any cause of action except that specifically stated.”…

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

Louis Oourt of Appeals. (1) The third count of the petition does not state a good cause of action. Me Williams v. Allan, 45 Mo. 573. This objection can be raised for the first time in the Supreme Court. Slate ex rel. v. Griffith, 63 Mo. 547; Beliz v. Eichele, 62 Mo. 171. (2) The cause was not a proper one for reference. Dooley v. Barlcer, 2 Mo. App. 325.

Louis Court of Appeals. (1) Ejectment, in this state, does not determine -the ultimate title to the land,-but onl-y the present right of possession. HoffThomphins, 66 Mo. 225;. Miller v. Bledsoe, 61 Mo. 96. (2) In the land owned by the wife, where the deed does not create a separate-estate, the husband has a well defined and valuable interest.

Louis Court of Appeals. (1) The court erred in excluding the .evidence of title offered by appellants, as the statute specifically required them to set forth their estate, showing that it was: at least an unexpired term of ten years, and they could not have recovered without evidence of possession -.and' title to that extent. Von Phul' v. Pehn, 31 Mo. 333 ;■ Campbell v. Allen, 61 Mo. 581; Bredell v. Alexander, S Mo. App. 110; Brown v. Matthews, 117 Mass. 506.

— Hon John Lr Thomas, Judge. The court erred in its instructions to the jury, and in refusing to instruct the jury as requested by defendant. Walthers n. Ry., 18 Mo. 671; Morris v. Ry., 79' Mo. 371 ; Rowland v. Ry., 73 Mo. 619 ; Edwards v. II & St. J. Ry., 66 Mo. 567; Green v. Ry., 60 Mo. 405; Cousin 1). Ry., 66 Mo. 567; Elliott v. Ry., 66 Mo. 683;. Campbell «. Ry., 78 Mo. 642.

..Appeal from St. Louis Criminal Court. — Hon. Gr.. S- -■ Yah Wagoner, Judge. u ■: (1) The court erred in failing to instruct for manslaughter in the fourth degree. State v. Brans letter, 65 Mo. 149 ; State v. Edwards, 70 Mo. 480 ; Little v. The State, Horrigan' & Thompson Self Defence, 487. And this although not requested to do so by defendant.

Louis Court of Anoveals. (1) The contract shown in evidence was not a 'bought and sold note. Wharton on Agency, sec. 719. Thorne was not the agent of appellant for any purpose,- and the contract offered in evidence and all the facts in the record show that he was acting for respondent in making and delivering the said contract. (2) The uncontradicted testimony shows that Thorne sold the rails in controversy to defendant.

Louis Court of Appeals. (1) The defendant company was exempted, by the act of the general assembly of 1869, from repairing the streets as claimed by respondent. The municipal assembly of the city of St. Louis, under its present charter, has no power to pass ordinances inconsistent with the laws of the state. St. Louis By. v. Bailway, 72 Mo. 67; St. Louis By. v. Bailway, 69 Mo. 65 ; City Charter, 2 R. S., 1879, p. 1585.

Louis Court of Appeals. The relator’s term of office was for four years and -until his successor shall have been duly appointed and .qualified. The constitution provides that: “The compensation or fees of no state, county, or municipal- ■ officer, shall be increased during his term of office.” The city charter of St. Louis provides that the salary of no officer shall be changed during the term for which he he is elected or appointed. R. S., p. 1587, par. 8.

— Hon. Henry P. White, Judge. (1) The court erred in admitting, the testimony of the witness, Straly, in regard to acts done by the parties at Harlem in Clay county, Missouri. When an enterprise is at an end, by accomplishment or by abandonment, either voluntary or involuntary, no one of the conspirators can, by subsequent declarations of his own, affect the others. Staten. Duncan, 64 Mo. 268; 80 Vt. 100.; 1 Gfreenlf Evid. 233; 1 Phillips Evid. 168.

B. E. Tcjjrneb, Judge, (1) Every corporate act requiring express authority from the board of directors of the bank from the date -of its organization up to 1880, having been executed by Chambers, president of the bank, without that express authority, there is a plain ratification by the bank and its stockholders and directors of all the acts, including the deed in question, or an estoppel against the denial of ratification. Pollock on Cont. (Ed. Wald.) 516; Carroll n. Med.

Louis Court of Appeals. (1) Tbe deed to Feazel, trustee,- created a life estate-in the wife, with a use to the husband, and the remainder in fee to the children. Balter v. Nall, 59 Mo. 265; Roberts v. Mosely, 51 Mo. 282. This being the case the deed of Mrs. Hardy could not convey the interest of -the-children. 1 Washb. on R. P. (2 Ed.) 90. (2) The deed recites that the money of the children, as well as that of Mrs. Hardy, paid for the land.

Louis Court of Appeals. (1) Mrs. Way’s legacy was to be paid in á certain way, i. e., by satisfaction out of notes that she might select, and in order to make such legacy available it was necessary that she should make the selection as provided in the will.' This she never did.

— Hon. B. E. Teener, Judge. (1) A writ of attachment can, under our statute, be issued in aid of an equitable action. Frank v. Siegel, 9 Mo. App. 467 ; 55 Iowa, 318; R. S., sec. 410. (2) A motion to dissolve was not the proper remedy. If the petition was defective, the defects could be reached only by answer or demurrer. Reugger v. Lindenberg, 58 Mo. 365 ; Butler v. Lawson, 72 Mo. 227.

Certified from Kansas City Court of Appeals. ' (1) Instruction number two given for respondents did not properly declare the law. (2) Instruction number three also given for respondents is likewise erroneous. If there was no fraud at the time the mortgage was originally made the property immediately vested in the mortgagee and could not be divested by any subsequent fraudulent agreement- between the parties. Shep. Touchstone, 66, 240; Klap v. SMr7c, 13 Pa.

Louis Court of Appeals. (1) The application for a receiver and injunction should have been dismissed at the preliminary hearing, because the petition admitted that the trustee was then in possession of the mortgaged property, and did not state one specific act of illegality or fraud on the part of the trustee. High on Receivers; Gabanne v. Liza, 1 Mo. 682; Jenny v. Spedden, 38 Mo. 295; Bispham’s Pr. of Equity, 459; Southwestern Ry.

— Hon. E. L. Edwards, Judge. Tbe leading cases on the question presented are, Warfield r>. Lxndell, 30 Mo. 272, and the same case, 38-Mo. 561; Lapeyre v. Paul, 47 Mo. 586. The common law and American authorities are examined in these cases.

— Hon. F. M, . Black, Judge. ! ' The provisions of the city- charter and ordinances are unconstitutional and invalid, in that they permit an assessment against, property without notice to the owner.

Louis Court of Appeals. (1) The fraud spoken of in the bankrupt act involves, it is true, moral turpitude, but it need not amount to a crime. It is a fraud of the same character as would entitle the party defrauded to rescind a contract on account of it. Stewart v. Emerson, 52 N. H. 301; In re Devoe, 2 Bank Reg. 27 ; Hamer v. Spelman, 78 111. 206; Morse v. Hutchins, 102 Mass. 439.

— Hon. H. S. Kelley, Judge. (1) The instructions numbered one and two, asked by the appellants' and refused by the court should have-been given. The record of the partition suit was conclusive against the plaintiff, Mary Tates. All her right, title and interest in the land was set up and adjudicated in that suit. The court had j imsdiction to settle the-title and conflicting rights of all the parties.

— Hon. Gf. H, Burokhartt, Judge. The only issue presented by the pleadings in this case, is whether or not the devisees of Alexander Dudgeon, Sr., plaintiffs in this cause, can sell any greater or other interest than that devised in the will of the said Alexander Dudgeon, Sr., to Alexander Dudgeon, Jr.,-in the two hundred and sixty-seven acres, described in the will.

<p>Tnj unction: costs. Where one is enjoined from prosecuting nis business, dispossessed of his property; and a receiver appointed to take charge, at the plaintiff’s'instance, the compensation for the receiver’s services is taxable as costs against the plaintifE, the losing party. *</p>

<p>Costs: ADMINISTRATION : attorney’s fees : receiver. Fees paid by a receiver to his attorney for professional service and advice in regard to the management .of the property impounded, are part of the costs of administration, and are not taxable as costs in the litigation, against the losing party. *</p>

■ Appeal from, Moberly Court of Common Pleas.— How 0. EL Bubokecaett, Judge. (1) There was such a part performance of the contract as to take it out of the statute of frauds. Farrar v. Patton, 20 Mo. 81; 2 Story’s Eq. Jur. (3 Ed.) sec. 744; ’Willard’s Equity, 284; Rhodes, v. Rhodes, 3 Sandf. 279 ; Button v. Hayden, 62 Mo. 101. (2) There was no such laches as to preclude plaintiff from having relief. (1) The evidence in this case is not sufficient to warrant the relief sought.

<p>limitations : dower. The statute of limitations will not begin to run against the heirs so long as the widow has the right to the possession of land.</p>

—A, L. Thomas, Esq., Special Judge. (1) The statute prescribes the time when and manner of taking an appeal, and granting bond to stay execution. Where the statutory requirements are not complied with, and the bond is not filed within the time prescribed by the statute and approved by the court, it is a nullity.

— Hon. G. W. Bunn, Judge. As the order of publication is intended to perform the office of the service of summons and a copy., of the petition, it ought to contain all of the requisites of these two instruments, so that, should the defendant see and read the order as published (and the law presumes that he does) he could safely conclude that it was or was not necessary for him to defend the action.

— Hon. Gr. W. Dunn, Judge. ■ (1) The court erred in overruling defendant’s objection to the evidence. The petition oh. its face showed that the taxes sued for were taxes other than “the state tax, and tax necessary to pay the funded or bonded debt, •of the state, the tax for current county expenditures and for schools.” R. S., sec. 6798. The petition was certainly bad and did not state facts sufficient to constitute a cause of action. R. S., sec. 6799.

— Host. R. W. Evan, Judge. “No county * * * shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified voters thereof, voting at an election to be held for that purpose.” Section twelve, article ten, of the constitution of the state of Missouri, simply means that the income and revenue for that year may be expended the same year, and…

<p>Contribution: probate court. Courts of law have adopted the equitable doctrine of contribution, and relief will be awarded in the probate court to one surety who has paid more than his proportionate share of the debt.</p>

— I-Ion. I-Í. S. Kelley, Judge. (1) The power of the county court to alter, repair, or build any county buildings which, have been erected, is expressly conferred by statute. R. S., sec. 5337 ^ Wallcer v. Linn Co72 Mo. 650. The proviso in Revised Statutes, section 5370, does not make any warrants illegal, but is a simple direction of the order of their payment where all the warrants to which it refers are issued in conformity to law and within the powers of the court.

— Hon. James M. Davis, Judge. (1) Appellant seek's to redeem the land sued for by reason of the fraud practiced upon him by plaintiff. In such case this court will review the evidence. Gill«. Clark, 54 Mo. 418 ; Gillespie v. Stone, 70 Mo. 505. (2) Fraud is defined to be a surprise, trick, cunning, dissembling and unfairness used to cheat another.

it Qourt. — Hon. B. E. Turner, Judge. (1) Upon the reversal of a judgment, after a sale has been made under execution to a stranger to the suit, the plaintiff is only bound to pay to the defendant the amount for which the property sold, with interest from date of sale. Freeman on Executions, sec. 446 ; 8Melds v. Powers, 29 Mo. 315; Gott v. Powell, 41 Mo. 416.

— Hon. J., R. Wood-side, Judge. There is no proof of the partnership or the assignment described by the record. One partner may bring a suit in his own name, on a partnership account, when it has been assigned to him, but he must establish, by-proof, the assignment. Abbott’s Trial Evid., p. 1Q2^ secs. 2, 3; O’ Neil v. Railroad, 60 N. Y. 142 ; Washoe v. Fire Ins. Co., 7 Humph. 75; Loelcridge r>. Wilson, 7' Mo. 279.

— Hon. J. B„ Gantt, Judge. (1) The verdict is against the evidence, especially is this so as to defendant, Nannettie Stair. (2) The verdict is against the law as declared in instruction number three given by the court, for the evidence !ails to show that the wound on the back of the neck was made with a hatchet. (3) The court erred in permitting the paper, claimed to have been written by Henry Stair, to be read in evidence.

<p>1. Ejectment: boundaries : practice. What are the boundaries of land conveyed by deed is a question of law ; where the boundaries are is a question of fact.</p> <p>2. -: practice. It is error to instruct a jury to disregard surveys, properly in evidence, in determining the position of boundary lines mentioned in the deed in suit.</p> <p>8. -: boundaries. That partitiouers place certain stones that ■ mark boundary lines upon land adjoining their own, does not have the effect of changing the boundary lines,</p> <p>4. -: evidence. Under a claim that a certain street marks a boundary line, it is error to admit in evidence proceedings to open such street, the judgment in which had been, vacated for want of jurisdiction.</p> <p>5. - : practice. The circuit court may entertain a motion to vacate a judgment in a street opening proceeding, filed more than four years after the judgment, and may sustain the motion at the subsequent term.</p> <p>6.: evidence : deed. A deed, made by one of the parties twelve years before the deed in suit was made, is incompetent to show that the former deed was made under the survey adopted in the latter deed. *</p>

— Hon. J. D. Poster, Judge. The complaint alleged that on the ninth of August,. 1882, at Sylvania township, defendant ran one of its engines and cars against one milch cow, the property of plaintiff, and of the value of twenty-five dollars, and killed the same ; that “said cow having got on the track of the said railroad by the neglect of the defendant to-erect and maintain a good and sufficient fence to prevent said cow from getting on said railroad track; that, the-said…

— Hon. J. D. Foster, Judge. (1) The court committed error in permitting any evidence to be introduced by plaintiffs in support of tbeir account after tbeir admission tbat tbey were bus-band and wife. (2) Tbe court erred in permitting tbe deposition of plaintiff, Lulu A. Dunifer, to be read to the jury, in behalf of plaintiffs, against the objection of defendant. Sloan v. Terry, 78 Mo. 625; Gault v. Safin,. 44 Pa.

— Hon. Gf, W. Bunn, Judge. (1) The statement attributable to Goodwin, that A‘ Dawson was not a good railroad man any way,” was inadmissible for any purpose. It was not admissible to prove Dawson’s incompetency. It was an opinion. Lawson’s Expert Ev. 507, 520 ; Koons v. Iron, Mt. By. Co., 65 Mo. 597; Ganeth v. Pacific By. Co., 49 Mo. 274; New England Glass Co. v. Lovell, 7 Cush. 319; White ®. Balloio, 8 Allen 408.

— Hon. A. J. Seay,' Judge. (1) The plaintiff was not entitled to recover. He had no title to the land sued for; certainly, no legal title;.the evidence excludes a recovery upon the theory of a previous possession of the land; and the defendant had the title to the same.

Louis Court of Appeals. The proper measure of damage in the case is the value of the property in question, lost to plaintiffs by the unlawful official act of defendant, Finn. A sheriff is liable for damages resulting from the making of a false return of process, similar to the one involved in this case.

— Hon. A. J. ■Seay, Judge. That a sheriff’s return is, under many circumstances, and for many purposes conclusive, we admit, but the logic of the position taken by respondent and the trial court seems to be that such a return is of so cast-iron a nature that in this case, not only is the execution satisfied by the sale of property of execution creditor, but he is also made liable in damages to the execution .debtor for the sale of property in which such debtor had .no…

Louis Court of Appeals. (1) The court erred in giving plaintiff ’ s instructions one and two. These instructions directed the jury to find for the plaintiff, if they believed from the evidence that the wall’s falling was caused, either by the removal of machinery, iron and lateral supports, or by the damage done by the fire. We insist that such is not the law.

— Hon. John CU Howell, Judge. (1) When title to real estate has been vested in a-grantee by a deed which has been lost or destroyed without being recorded, equity will establish the title in the grantee. Wright v. Christy, 39 Mo. 125 ; Wynnv,Cox, 43 Mo. 304. (2) A quit-claim deed passes only' such title as the grantor has. May v. LeClare, 11 Wall. (U. S.) 217; Ridgway v. Holliday, 59 Mo. 444 Stivers v. Horn, 62 Mo. 473 ; Mann v. Best, 62 Mo. 491.

— Hon. W. F. Geiger, Judge. A judgment for or against a garnishee in attachment by one creditor is not binding on any other creditor in his suit, because there is no identity or privity of parties. If not binding on the creditor, it cannot be binding on the garnishee. Freeman on Judgments (2 Ed.) sec. 167 $ Wheeled' v. Aldrich, 13 Gray, 51.

Hon. John D. Foster, Judge. (1) The petition does not state facts sufficient to ■constitute a cause of action. R. S., secs. 2511-13, 3937. (21 If the facts were as stated in the petition concerning plaintiff’s confidence in defendant, and their parol agreement in relation to this'realty, then the statute of frauds ^affects it, and plaintiff has no standing in a court of ■equity. R. S., p. 421, secs. 2511-13.

— Hon. J. D. Foster, Judge. (1) The record ' does not show that there was any appeal legally taken • from the judgment of the probate court. R. S., sec. 293. The jurisdictional fact must appear on the face of the record. Stale n. Metzger, 26 Mo. 65; Hansherger n. Railroad Co., 43 Mo. 196 ; Schell n. Leland, 45 Mo. 289. The record does not show this fact, and it may be taken advantage of at any time. Henderson v. Henderson, 55 Mo. 534; Cranes n. McHugh, 58 Mo. 499.

<p>Cheek : payee : drawer. Where the payee to 'whom a check is delivered by the drawer, receives it in the same place where the bank on which it is drawn is located, he may preserve recourse against the drawer by presenting it for payment at any time before the . close of banking hours on the next day, and if in the meantime the bank fails the loss will be the drawer’s.</p>

— A. Comingo, Esq., Special Judge. The contract of partnership which is the basis of this suit is as follows : “Articles of agreement made and entered into this tenth day of March A. D., 1874, between Thomas Corrigan, party of the first part, and Amos Green, ’party of the second part, witnesseth that said party of the second part having obtained for said party of the first part, a contract with the National Water Works Company, for all work in the construction of water works…

Mandamus. (1) The statute does not require such motions to be in writing. R. S., sec. 736. (2) The motion for judgment is not filed for the purpose of reviewing the proceedings of the circuit court in rendering judgment against the B. & D. Bank in favor of Kohn, and is different in every essential part from a motion for a new trial.

— Hon. John P» Strother, Judge. (1) Chilton made the loan understanding it to be to Courtney individually and not to or for the trust estate]. He did not even loan the money for the purpose of paying off,Moore’s lien, although Houston, his agent, claims that he knew that Courtney intended to use it for that purpose. Still, if Chilton had made the loan for that express purpose, he would not be entitled to the relief given by the court below.

— Hon. Jno. P. Strother, Judge. (1) The largest discretionary power as to the management of the property was conferred upon Courtney by the will. If a power to mortgage can be conferred by general terms, ■ the will in this case would seem to be sufficient for that purpose, for the will declares that •Courtney shall have the same power as the testator himself would have if living.

— How. J. H, . Slov.ee, Judge. (1) The act of the general assembly in question (Laws 1885, p. 63), is a special and local law, and as such is prohibited by the constitution. Davis v. Clark (Pa.) Reporter,Nov. 9, 1884; People v. Chautauqua, 43 N. Y. 10; Brown v. Denver, 7 Col. 305.

— Hon. W. P. Geiger, Judge. (1) The court below erred in admitting in evidence the portions of the depositions of the witnesses in which it is stated they took possession of the logs. A witness can only state facts — not give an opinion. Laytham v. Agnew, 70 Mo. 48 ; Rosenheim v. Ins. Có., S3 Mo. 230.

— Hon. R. P. Owen, Judge. (1) It was error to receive in evidence, over the objections of defendant, the dying declarations of the deceased. There is nothing to establish that the deceased, at the time he made them, believed death impending. State v. Simon, 50 Mo. 370; 1 Grreenleaf’s-Ev., sec. 158; Starkey n. The People, 17 111. 17.

— Hon. W.' F„ Geiger, Judge. (1) The court below erred in admitting evidence-offered by defendant as to what the contract foment was, and that the appellant had promised not to require respondent to pay rent that year, and that respondent when he went to Kansas left property in this state. R. S., sec. 3091; Eluen v. Vineyard, 38 Mo. 447. The-evidence must correspond with the allegations, and be confined to the point in issue.

— How. J. D. Foster, Judge. The indictment in this case is drawn upon section 1418, Revised Statutes, and follows the requirements of section 1424, Revised Statutes.

— Hon. W. F. Geiger, Judge. ,(1) The county court of Greene county tad ¿he power to make the contracts put in evidence between skid county and appellants. Laws of Mo. 1878, p. 18, sec. 5. (2) The decision of this court in case of State of Missouri ex ret.

— Hon.. R. P. Owen, Judge. . .. (1) There is nó substantial conflict in the evidence in this case, and the court should, as a question of. law, have declared to the jury that the plaintiff could not recover, as requested to do by defendant at the close of plaintiff’s evidence and of the whole case. Powell v. Mo. Pac. By. Co., 76 Mo. 80 ; Henry v. St. Loiois, K. C. & N. By. 'Co., 76 Mo! 293; Mali v. Lord, 39 N. Y'. 381; Edwards t>. London, etc., By.

— Hon. R. P. Owen, ‘ . Judge. (1) On the pleading, the judgment, in this case -should have been for defendant. Cooksey v. Railroad ■Co':, 74 Mo. 477; Freeman on Judgments, sec. 215.; Blake n. Downey, 51 Mo. 437. (2) The. burden, of proof, to Sustain--the allegation of thfe replication’ was on the plaintiff, and as there was no evidence at the trial to sustain the replication, the judgment should have been for the defendant.

— Hon. J. I) Fox, Judge. (1) A parol ante-nuptial agreement not to claim any interest in each, other’s property, acted upon by the parties after marriage, has been held to be binding upon them. 2 Story’s Equity (2 Ed.) sec. 987a, p. 187, note 3; Southerland v. Southerland, 5 Bush (Ky.) 591; Naill/o. Maurer, 25 Md. 532. -If this'be true, plaintiff is barred by the agreement from claiming any interest in the estate of her deceased husband.

— Hon. W.P. Geioks,. Judge. The demurrer to the petition should have been overruled. Shares in national banks are liable to assessment. Lionberger v. Rowse, 43 Mo. 67; First National Banlc v. Meredith, 44 Mo. 500 ; Curtis v. Ward, 58 Mo. 295. Under section 6693, Revised Statutes, 1879, it is the duty of the bank to pay the tax, and it may recover frornthe owners of the stock the amount so paid.

M, Davis, Judge. (1) The motion to conform the pleadings to the proof should have been sustained. R. S., secs. 3565, 6, 7; Bennett v. MoCause, 65 Mo. 194; Turner v. By., 51 Mo. 501; Fisher v. Max, 49 Mo. 404; Harleness v. Julian, 53 Mo. 238 ; Wells v. Sharp, 57 Mo, 56. (2) The court erred in its finding as to the amount of indebtedness from Carr to Moss.

R. E. Cowan, Judge. (1) The land described in the petition is identified by the evidence as a part of that described in the deed from Coffman and Gregory to Elizabeth Charles, and was during all the time well known in its vicinity by the descriptions applied to it in the deeds offered in evidence. This being so, the land was sufficiently described in all of said deeds, and the plat referred to in them became a part of said deeds.

— Hon. 0. G. Burton, Judge. (1) Brown was under no duty or obligation to buy the land for the benefit of the estate. Averill v. Williams, 4 Ben. 295; Beardsley to. Root, 11 Johns. 464; Botone?/ d. Gerrard, 3 Grant (Pa.) 65; Battery v. Bypher, 7 Wall. (U. S.) 157; Warren to.

Court. — Vinton Pike,. Esq., Special Judge. (1) The decree is not warranted by the evidence-The evidence does not show that appellants received the-deed from Bender without any consideration and with-knowledge that Bender held the title fraudulently., (3) The evidence shows'that Albin had more than suiii■cient property to pay the debt and, therefore, respondent’s suit cannot be maintained. Payne v. Sheldon, 63 Barb. 169; Jennings v. Howard, 80 Ind. 216.

— Hoar.' Theodore Brace, Judge. • (1) The court erred in giving defendants’ instruction which was in effect a demurrer to the evidence and a ruling that there was no evidence tending to show testamentary incapacity or undue influence. Buesching v. Gas Light Co., 73 Mo. 219 ; Frick v. Ry., 75 Mo. 601.

Prohibition. (1) The general assembly has made no provision for contesting elections to municipal offices. (2) If Revised Statutes, section 5528, was intended to apply to-contests for municipal offices in the city of St. Louis, it is unconstitutional. Const., art. 8, sec. 9. (3) Assuming that the office of mayor is a “county office,” still the circuit court cannot hear a contest of relator’s right to hold the office, as no sufficient notice of contest was served.

— A. McElhinney, Esq., Special Judge. (1) Appellant, by reason of tlie deeds and transfers of possession, is in privity of estate with his grantors in said deeds, and is entitled to the benefit of their possession of said land. It was not necessary, under the circumstances, that the deeds should have in terms purported to convey any part of the northwest quarter in order to pass the interest of the grantors in the land here in controversy. 3 Washburn on Real Prop.

— Hon. Elijah Robinson, Judge. (1) The judgment on the facts in evidence should have been for plaintiff on the equity count. (2) The sheriff’s deed to Harrison was valid and effectual to convey Fenton’s equitable title of the premises to Harrison. Although the judgment was obtained in 1840, the statute of 1849 authorized the issuance of execution thereon. Laws 1849, p. 92, art. 18, secs. 1 and 2; Bolton n. Landsdown, 21 Mo. 399.

Clair Circuit Court. — Hon. Chas. G. Burton, Judge. A forcible and cogent .reason indicating that the legislature intended that courts of record should exercise jurisdiction in back tax suits is found in the repeal of sections 194, 204 and 219, of the revenue act of 1872, and the adoption of section 6837, Revised Statutes, 1879, •which requires the action tobe brought, against the owner of the land.

Prohibition. (1) The office of the writ of prohibition is to keep inferior courts within the limits of their proper jurisdiction, and when they get out of their jurisdiction or act without authority, or usurp or assume authority, a superior court, in the exercise of its superintending control by the means of this writ, will restrain the action of such courts. 8 Black.

— How. P. M. Black, Judge. The court made the following declarations of law at the instance and request of defendant: “1.

<p>1. Evidence: declarations of agents. Declarations of a servant are not competent evidence against a master, unless made while the former is transacting the business of the latter ; they must be co-incident with the events to which they relate, and not narra- ' tives of what has passed.</p> <p>2. Master and Servant: appliances furnished servant : defects in : duty of servant. A servant in the use of appliances furnished him by the master is bound to take notice of those dangerous defects, of which he has knowledge and which are obvious to his-senses, but he is not bound to investigate for himself a department of work with which he has nothing to do and to set up his judgment against that of his master as to the safety of such appliances!</p> <p>8. Railroad : defective track : engineer. An engineer of a rail- ; road, which is in general use, although having knowledge that the rails of the track were old, light and well worn, is not bound to pursue the inquiry and to determine for himself and at his own peril whether the road is or is not fit for use.</p> <p>•L -:-:--. The engineer was not bound to quit the service nor did he assume all risks from want of repair, unless the ' track was so far out of repair, to his knowledge, that it would be necessarily dangerous to the mind of a prudent person to run an engine over it.</p> <p>8. -:-. A railroad is not bound to furnish in such case a safe track, its duty in that respect being to use all reasonable care and precaution in placing and keeping it in good order and condition.</p> <p>6. -: reasonable care. What is such reasonable care depends on the surroundings and the dangers to be fairly apprehended and encountered by the servant in the use of the track.</p>

— D. M. Payne, Esq., Special Judge. ■ The petition alleges that “Defendant did at Christian county, Missouri, on the-day of March, A. D. 1882, maliciously destroy certain live stock, to-wit: one sorrel horse of the value of one hundred and twenty-five dollars, the separate personal property of the plaintiff, Mahala Culbertson, and .in her possession, by then and there shooting and killing said horse contrary to the provisions of section 3928 of chapter 67 of the Revised…

— IIon. James M. • . Davis, Judge. (1) After the sheriff’s sale his patents and deed could give John Middaugh no color of title. Hunter v. Ayres, 15 B. Monroe, 210 ; Mylar v. Hughes, 60 Mo. 111. Although an owner of real estate may suffer it to remain unoccupied for any number of years, yet his title •draws with it the possession until the adverse possession .begins. Douthitt v. Stinson, -63 Mo. 275; Turner v. Baker, 64 Mo. 218.

— IIon. R. L. Wilson, Judge. (1) The gist of the action of trespass is the injury ■done to the possession of plaintiff. Moore it. Perry, 61 Mo. 174; 2 Grreenl. Evid. (14 Ed.)' secs. 613, 614. And to maintain trespass plaintiff must be in possession, actual or constructive. Cochrane v. Whitesides, 34 Mo. 417; Moore v. Perry, 61 Mo. 174; Reed v. Price, 30 Mo. 446.

Mandamos* The constitution allows an appeal to the Supreme Court “in all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand and five hundred dollars.” Const., art. -6, sec. 12. The “amount in dispute,” means the amount of money that it would fake to settle the dispute, which is $2199$-90, the amount of the judgment recovered in the cause. Mosher r. Shear, 100 111. 469; Gray n. Blanchard, 7 Otto, 564; Tdntsman v. Bank, 10 Otto, 6.

— Hon. W. F. G-eiger, Judge. (1) The evidence of. Martin was admissible in chief •.as part of the res gesta. TompMns v. Saltmarsh, 14 Serg. and Rawle, 275 ; Boy den v. Moore, 11 Pick. 362'; Harriman v. Stowe, 57 Mo. 93 ; Ross v. Banlc, 15 Am. Dec. 669.

Louis Court of Appeals. (1) The deed of Castello, sheriff, to James M. Hughes and others, parties to this Cause, prior to suit in partition, could not establish an “outstanding title,” and fur-' nislied no defence in the cause; besides that deed was subsequent to deed of trust made by Sigerson.

, Appeal from, Lafayette Criminal Court. — Hon. - John E. Rxiand, Judge. (1) The first count in the indictment contains the .necessary ¡allegation to render it sufficient under Revised Statutes, section 1335. State v. Davis, 70 Mo. 467; State v. Anderson, 81 Mo. 78 ; Stale v. Madden, 81 Mo. 421. (2) Tbe gravamen of the offence consists in obtaining money or property by false pretenses.

<p>1. Pleading. A plaintiff need only allege in his petition what he ia bound to prove to make oiit his prima facie case.</p> <p>:3. Master and Servant: negligence : pleading. In an action by a servant against the master for negligence in furnishing improper appliances for the servant’s use in his work, whereby he was in_ jured, the petition need not aver either that plaintiff did not know, or could not have known, by the exercise of ordinary care, the dangerous and defective construction of the appliance.</p> <p>8. -:-:-. But in such action the petition must charge that the master either knew, or might have known, of the danger, ous and defective construction of the appliance, or it must contain an equivalent averment.</p> <p>4. -: -: -. An allegation that the defendant negligently furnished an appliance which was defective and unsafe, is an equivalent averment, and is sufficient.</p> <p>.6. Evidence : notoriety. Proof of the notoriety of a fact is competent to show notice or knowledge of .it by another.</p> <p>•£. -:-. Evidence to show that a car used by the defendant, a railroad, and known as the Baldwin locomotive car, because of its dangerous character, had been abandoned by the defendant, and- by railroads generally, is competent to show knowledge, on t-her part of defendant, of such dangerous character of the car.</p> <p>7. PTegligence: furnishing servant with dangerous appliance* The evidence in this case tended to show that the coupling of a-Baldwin locomotive car to a car of defendant, in consequence o£ the peculiar and unusual construction of the drawheads of thff former, was extra hazardous, dangerous and unsafe ; that to those acquainted with the Baldwin locomotive cars they were known as-“man killers;” that plaintiff was directed, on a dark'night, to couple one of these cars to one of defendant’s; that he had never before made'this coupling, and he had no knowledge of the dangerous, unsafe and unusual construction of the drawhead of the Baldwin locomotive car; that while, from the light of his lantern, he could see the place for the drawhead to enter, it did not apprise him of the dangerous character of the blocks attached to the draw- ' head, which caused his arm to be caught and crushed while attempting to put ia the pin to effect the coupling. Held, that the trial court properly overruled defendant’s demurrer to the evidence. .</p>

— Hon. P. M.i Black, Judge. (1) The rejection by the trial court of that portion of the deposition of Ur. U. P. Bigger, quoted under the?assignment of eirtirs,' was in itself such error as entitle^ the appellant to a -reversal of this cause.

.Appeal from JaoJcson Circuit Court. — Hon. P. M. ... Black, Judge. (1) The petition does not state a cause of action. {a) Because it asks fora judgment for purchase money of real estate and yet does not tender a deed and fails to-allege that a deed had been tendered or delivered to defendants. Scudder ®. Waddingham, 7 Mo. App. 26, and cases cited. (5) A deed in escrow is not delivered. 3 Washburn Real Prop., side pages 585-6; Townsend ?;.

— Hon. W. F. GtEIOEK, Judge, (1) The record fails to show that the grand jury was chosen and selected according to law, and the judgment for this reason should be reversed. R. S., 1879, secs, 2784-5. (2) The names, of all the material witnesses for the state were not indorsed on the indictment. R. S.s 1879, p, 804, sec. 1802. (3) The trial court erred in not permitting the witness, Adolphus Hooper, to answer the several questions asked by defendant on cross-examination.

— IIon. Gr. D. Burgess, Judge. (1) In a suit in ejectment \>n petition and general denial, every deed in the chain of title not agreed to is a matter of controversy and litigation, and in this case plaintiffs’ title being claimed to be from defendant to-plaintiffs’ testator, Lucy A. Horsley, the only question in issue was whether the deed of Dougherty to Lucy A. Horsley was a valid contract of conveyance, and the evidence and instructions in the case, on both sides, were…

■Appeal from Greene Circuit Court. — Hon. M. G. .. MoGeegkxk, Judge. .....- (1) The lower court should have granted a new trial because one of the jurors had prejudged the case. State v. Burnside, 37 Mo. 343 ; State v. Wyatt, 50 Mo. 309 ; State ■».

— Hon. Andrew Ellison, Judge. (1) The recitals in the tax deed fail to show, a •compliance with the requirements of the statute. W. S., p, 1207, sec. 223. The deed nowhere recites a .sale to any one, nor does it state who issued the certificate of purchase, nor are its date or contents given, nor the substance of the order given- to Plines. These are fatal defects. Wiliams v. McClanahan, 67 Mo. 499.

<p>Evidence: identity of names. Identity of name of witness with. that contained in a record of a conviction of an offence creates a prima facie presumption of identity of person.</p>

— Hon. John E. Rveand, Judge. ■ The following instructions were asked by defendant and refused by the court: ct 8. The court instructs the jury that if they believe from the evidence that at the time of the shooting and killing of deceased, Washington 0.

' Appeal from Marion Circuit Court. — Hon. Theodore. Brace, . Judge. ■ (1) The purported transcript of judgment of the circuit court of Adams county, Illinois, was' not admissible in evidence. It is nowhere certified that Adams county is in the sixth judicial district, of which John H. Williams is judge. If the county of Adams is in the ■sixth judicial circuit of the state of Illinois that fact •could have been proved and made to appear from the rer •cord in this case.

Louis Qourt of Appeals. (1) The instruction as to a reasonable doubt covered the whole case, and the instruction as to an alibi was as-full, fair and complete as the evidence justified or the law warranted. The defence of an alibi is mere ordinary evidence in rebuttal, and it should be tested as other evidence. 1 Bish. Or. Pro. (3 Ed.) sec. 1062; Slate s. Jennings, 81 Mo. 190.

Louis Court of Appeals. (11 An involuntary delay created by no act of plaintiff in the execution, cannot operate to deprive him of the lien of his judgment. Bank of Missouri v. Wells, 12 Mo. 361; Wood v. Messerly, 46 Mo. 255; Durrett v. ITulse, 67 Mo. 201 ; Biggs v. Goodrich, 74 Mo. 111.

— Hon. J ohn T. Redd, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. (2) The city could not be held liable for any defect in the plan of the bridge. Detroit v. BeeJemzn,‘3i Mich. 125 ; Foster v. St. Louis,71 Mo. 157; Oarr «. Northern Liberties, 35 Pa. 324.

Louis Court of Appeals. (1) The relinquishment of Papin street by the Glasgows in 1854 gave the city the same control over it as in case of ordinary streets. (2) When city ordinance 1,752 was passed, and the Glasgows relinquished their land for street purposes, the city of St. Louis had full' charter power to “open and alter, abolish, widen, extend and establish” streets, lanes and alleys, and therefore power to abolish Papin street.

— Hon. Andrew Ellison, Judge. The court had no jurisdiction by the order'of publication made in this case to authorize the judgment. When the plaintiff took judgment for the sum of $6.18 there were no facts in the petition to support it. A judgment in excess of the relief asked renders the judgment void. The plaintiff cannot have other or different relief than that prayed for in the petition.