Volume 90 — Missouri Reports

— Hon. P. M. Black, Judge. (1) It was a condition precedent to confer jurisdiction upon the common council of the defendant city, under the charter in question, to order grading done at the expense of the property holders along said May street, that a majority of the real estate owners in front feet, on such street, and residents of said city, shall petition said counsel to have such street graded.

Louis City Circuit Court. — Hon. Amos M. Thayek, Judge. By section five of the charter (2R. S., p. 1590), an appointed officer may be removed by the mayor or council for cause. By section eight (2 R. S., p. 1591), an appointed officer is subject to removal by a majority of the elected members of the council. Nothing in this section limits the right of removal to a case where cause shall exist for the same. The right to remove is absolute.

<p>Appeal from, Johnson Circuit Court. — Hon. Noaii M. Gtvan, Judge.</p>

— Hon. Gf. H. Burokhartt, Judge. (1) The court erred in overruling the motion in arrest of judgment. R. S., secs. 1262, 1263, 1264, 1265, 1654,1655,1927,1968 ; Slater. Msher, 1 West. Rep. 560 ; Quest r. State, 19 Ark. 405. (2). The court erred in re-, fusing to give the sixth instruction asked by defendant. (3) The court erred in giving the instructions for the state. The instruction on reasonable doubt is erroneous. Stater. Owen, 79 Mo. 620 ; State r. Smith, 21 Mo. App. 595.

— Hon. Elijah Robinson, Judge. (1) The indictment should charge a complete ■offence against Ann Crockett as principal, and before starting to allege an offence against the accessories should conclude with the phrase “against the peace and dignity of the state.” No venue and time is laid in the indictment against the accessories.

— Hon. T. A. Gill, Judge. (1) The statute provides two modes by which deeds of trust, in the nature of mortgages, may be foreclosed: (a) In the same manner, in all respects, as in case of mortgages ; (5) by the trustee according to the terms of the deed of trust; but if the property is bought in at-trustee’s sale by the cestui que trust, his assignee or any other person for them, or either of them, it shall be subject to redemption by-the grantor within one year from date of…

— Hon. John E. Ryland, Judge. (1) The court erred in allowing Mrs. Tallent to testify to what deceased said to her in the cornfield after he was shot. What he said was not a dying declaration and not admissible as such. 1 Gfreenlf. on Ev., (13 Ed.) sec. 1569; State v. Jefferson, 77 Mo. 136. It was not part of the res gestae.

— Hon. Ben. E. Turner, Judge. (1) Jeremiah. Taylor was, at the time the voluntary deed to the plaintiffs was made, indebted to the extent of insolvency, and the conveyance is void. Bump on Fraud. Con. (3 Ed.) 281, and authorities cited. (2) If his failing circumstances resulted in insolvency the deed is void. Authorities, stcpra.

— Hon. O. H. S. Goodman, Judge. (1) The court below erred in rejecting the judgment recovered by the plaintiffs, France & Hunter, against Isaac W. Salisbury, when offered in evidence by them as the foundation of the garnishment proceedings.

— Hon H. S. Kelley, Judge. (1) The entry of the land by Thompson was simply a contract between him and the United States government by which the land was segregated from the public domain and which the United States agreed to convey to Thompson by its patent.

— Hon. John L. Thomas, Judge. (1) The’ motion for new trial should have been sustained. (2) An improper finding was occasioned by plaintiff s testimony. ■ (3) Defendant had a just defence. His testimony and that of Malone, Delf, Moore and Pulse shows the hog to have been his property. R. S.r sec. 3704. (4) The motion in arrest of j udgment should have been sustained.

— Hon. B. E. Turnee, Judge. (1) The court erred in sustaining the motion to quash the indictment. The indictment, though inártificially drawn, is sufficient. (2) It is not uncertain and repugnant as to time and place. (3) It sufficiently and clearly alleges the authority of the court to try the cause in which the perjury is alleged to have been committed.

Eh'ror to Morgcm Circuit Court. — Hon. E. L. Edwaeds, Judge. (1) The tax sale of the block in dispute was made under the act of March 30, 1872, Laws of Missouri, 1872, page 80. Adj. Ses. 26th Glen. Assembly. The tax deed is absolutely void on its face. (2) It does not recite that the sale was made between the hours of 10 a. m. .and 4 p. M. (Acts 1872, supra, sec. 199, p. 124), and is otherwise defective.

— Hon. Ben. E. Turner, Judge. (1) The theory of the trial court was, that appellant was not only liablé as a common carrier, but also that its liability was that of a carrier of inanimate freight, and that it was bound to furnish, under the contract in evidence, a place of storage for the animals, as well as of delivery. .This theory, we respectfully submit, is untenable under the testimony in this case, as well as under the special contract of shipment.

Appeal ^rom Iron Circuit Court. (1) The record does not show that either the plaintiff or defendant is a resident of Iron county. One of the parties must reside in the county to give the justice jurisdiction. R. S., sec. 2839. No presumption is indulged in favor of the latter (McCloon ■». Beattie, 46 Mo. 391), and it must be shown by the whole record. Brown v. Woody, 64 Mo. 547; Haggard •». Railroad, 63 Mo. 303 ; Matson n. Railroad, 80 Mo. 229.

— Hon. B. E. Turner, Judge. (1) The court erred in overruling defendant’s motion to strike out plaintiff’s amended affidavit. A party asking to amend must have someting to amend. Brosius v. Strode, 46 Mo. 221; Bray v. McClurg, 55 Mo. 128 ; Oioens v. Johns, 59 Mo. 89. (2) The court erred in overruling defendant’smotion to dismiss. The note was not due until after the rendition of the judgment. R. S., sec. 399 ; Hamilton v. McLelland, 33 Mo. 315.

<p>1. Criminal Law: capacity of infant to commit crime : presumf tion : practice. An infant under seven years of age is incapable of the commission of crime. Between the ages of seven and fourteen lie is prima facie incapable of committing a crime, and this prima facie incapacity must be overcome, by the state, by evidence strong and clear, beyond all doubt and contradiction, before it can establish his criminal capacity.</p> <p>2. Practice: instruction. An instruction should not be given where there is no evidence upon which to base it.</p>

— Hon. Jos. P. GtRtjbb, J udge. The tax bills make a prima facie case. Ess v. Bouton, 64 Mo. 105 ; Menan v. Smith, 60 Mo. 294. The power to compel property or lot owners to macadamize is a continuing one, and extends to compelling to repair when required by the municipal authorities. 2 Dillon on Mun.

— Hon. J. D. Poster, Judge. (1) The testimony of all the witnesses, including plaintiff himself, was that the damage to the mule was sixty dollars and no more. The testimony on this point was unvarying and concurrent. And yet the verdict was for one hundred dollars. The verdict was in utter disregard of the evidence. There is no evidence to support it, and for this reason alone the case must be reversed. Kendrick v. Railroad, 81 Mo. 521; Hacker v. Brown, 81 Mo. 68.

Louis Court of Appeals. (1) The indictment charges no crime. It does not sufficiently inform the defendant of the nature of the offence of which he is accused. It does not comply with the rules of criminal pleading at common law, nor with the requirements of section 1561, Revised Statutes. State v. Helm, 6 Mo. 263; State v. Boss, 25 Mo. 426 ; State v. Boers, 49 Mo. 542. It is better, under the statute, to state of what the false pretense, or trick, consisted.

— Hon. J. D. Foster, Judge. (1) The objection of the .defendant to the introduction of any evidence, for the reason that the statement, of the plaintiff failed to allege a cause of action, should have been sustained. The statement does not state a cause of action under the provisions of section 809 of the Revised Statutes.

Louis Court of Appeals. (1) Tbe appraisers in tbe present case awarded to the owners of the property sued for, without reference to the projected improvement, the sum of $1,325. The phrase here employed, “without reference to the projected improvement,” means the widening of Jefferson avenue, and has no reference to the building situated on the ground taken for Jefferson avenue. And the sum awarded is the value of the ground and building standing thereon.

— Hon. H. P. White, Judge. ■ (1) When the indictment charges the larceny of more than one article of personal property, the value of each separately must be set forth in the indictment, and so proved. State v. Longbottoms, 11 Humph. (Tenn.) 39 ; State v. Clark, 8 Ired. 226 ; State v. Goodrich, 46 N. H. 186; Sheppard v. State, 42 Ala. 531; Com. v. Smith, 1 Mass. 245; Morgan v. State, 13 Fla. 671; State v. Merrill, 44 N. H. 624; Hope v. Com., 9 Mete.

— Hon. Ben. E. Turner, Judge. Where the defendant in an action of replevin has a special interest in the property, the jury or court should assess the value of that interest. Dilworth v. McKelvey, 30 Mo. 149; Boutell v. Warne, 62 Mo. 350; Jones v. Evans, 62 Mo. 375; Dougherty v. Cooper, 77 Mo. 535, 536. Plaintiff’s evidence offered to show that the debt for which the property had been attached had been reduced by a sale of part of the property should have been admitted.

— Hon. M. GP McGregor, Judge. The court erred in not quashing the indictment. If' it charged a breaking it did not charge the manner of it, nor how the entry was effected. Kelley’s Crina. Law, sec. 562, and authorities cited. The indictment should have been quashed for the reason that the names of no' witnesses were indorsed on it. State v. Hoy, 83 Mo. 268. The presumption -in such case is that the indictment was found without evidence and should be quashed.

— Hon. M. G„ Me Oregon, Judge. (1) The indictment is sufficient. (2) Mere extraneous matter, constituting no part of the instrument charged to have been forged, need not be set forth in the indictment. 1 Whar. Crim. Law (8 Ed.) 733; 2 Bishop Crim. Proc. (3 Ed.) secs. 403, 407; Buckland v. Corn,., 8 Leigh (Ya.) 732 ; Com. v. Bailey, 1 Mass. 62; Com. v. Ward, 2 Mass. 397; Hess v. State, 5 Ohio, 5.

<p>Appeal from, G-reene Circuit Court. — How. W. F. Geiger, Judge.</p>

— Hon. J. D. Foster, Judge. Error was committed in quashing the indictment. It complies with the substantial requirements of the statute on which it is based, and states all the essential elements of the offence charge 1. This is all that is required. R. S., sec. 1312; State v. Hall, 85 Mo. 669.

— Hon. Chas. H. S.. • Goodman, Judge. (1) Under section 6880 of the Revised Statutes of Missouri, levies for building purposes could not lawfully be included in fixing the average rate of taxation for school purposes upon, the property ■ of defendant in Gentry county for the 'y 1882. R. S., sec. 6880, p. 1354; Sess. Acts 1885, p. 229 ; State ex rel. Brown v. Railroad, 83 Mo. 395. (2) The defendant was exempt from road taxes upon its property located in the village óf McFall.

<p>Appeal : BOARD OF HEALTH OF ST. LOUIS : STATE OFFICERS : PROHIBITION : constitution. The members of the board of health of the city of St. Louis are not state officers within the meaning of section 12, of article 6, of the constitution, and an appeal will not lie to the Supreme Court from a judgment of the St. Louis Court 'of Appeals upon an application for a writ of prohibition to prevent the board of health from abating a nuisance which it had declared detrimental to the public health.</p>

<p>1. Criminal Law : assault with intent to kill : assaulting person not intended. One who threw a stone at another and struck a third person not intended, held rightly convicted of assault with intent to kill the latter.</p> <p>2. Practice: instructions. It is not error to refuse instructions where those already given correctly declare the whole law applicable to the case.</p>

— Hon. Elijah Robinson, Judge. (1) A sale of land for partition is a judicial sale. Rorer on Judicial Sales, sec. 33; Williams’ case, 3 Bland, 215; Beauregard r. JSFeio Orleans, 18 How. 497; Insurance Co. r, F. & M. Bank, 57 Pa. St. 394. -The sale when complete is the act of the parties to the suit. Pentz v. Kuester, 41 Mo. 450; Strawbridge v. Clark, 52 Mo. 21. (2) A judicial sale is, in contemplation of law, a sale pendente lite; a sale in court and the court is the vendor.

— Hon. Joseph P. Grubb, Judge. (1) The petition charges defendant with the violation of a ministerial duty he owed to the plaintiff and clearly states a good cause of action. Amy v. Supervisors, 11 Wall. 188 ; Ciarle v. Miller, 54 N. Y. 528 ; McCutchen v. Windsor, 55 Mo. 153; People v. Solomon, 54 111. 39 ; Hoover v. Barlehoof, 44 N. Y. 113; Sedg. on Dam. [6 Ed.] 633, sidep. 506 ; Adsit v. Brady, 4 Hill, 630 ; 1 Suth. on Dam. 246-7; Cooley on Torts, 398; 20 Cent.

Ben. E. Turner, Judge. (1) The court erred in admitting any evidence under the answer over plaintiff’s objections. Mrs. Sherman being a married woman was not competent to make the oral agreement set up in the answer. Story on Bailments, secs. 50, 162 and 302 [4 Ed.] ; Danis n Smith, 75 Mo. 219. (2) The answer did not state facts sufficient to constitute a defence to the action.

Louis Court of Appeals. The non-suit was suffered on the twenty-seventh day of May, 1872, the day of its actual rendition in the circuit court, and more than one year before the present action •was brought, and not on the twentieth of April, 1874,, when the judgment of the Supreme Court was rendered affirming the judgment .of the circuit court.

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

— Hon. Benjamin V. Alton, Judge. (1) Improvements and disbursements made for the benefit of joint owners are a lien on the property. Story’s Eq. Jur., sec. 1234. “The property of corporations is held in trust for the creditors, and may be pursued by them into whosesoever hands it' may come, as well after as before dissolution, unless it may have come to the hands of a bona fide purchaser.

— Hon. Turner A. GrILL, Judge. (1) The finding and judgment of a court should be responsive to the issues made by the pleadings ; and in an action at law, equitable relief cannot be granted. The citation of authorities to support these two propositions would seem to be unnecessary. Holden «. Vaughan, 64 Mo. 590. The interposition of an . equitable defence would not convert an action at law into a proceeding in equity. Wolff v. Schaeffer, 4 Mo, App. 367.

<p>City of St. Louis: contract, construction on: rents from market. Under the provisions of ,an ordinance of the city council of St. Louis, enacted August 1, 1854, “ to open Fifth street north of Biddle street, and to establish the city market,” and the contract entered into thereunder by the mayor of said city and the Harney estate, whereby the trustee of said estate was to receive a part of the rents from a market provided for by said ordinance after the city had been reimbursed for the expense of its erection, the trustee is not entitled to any part of the rents until the city has been fully reimbursed from the rents of the “market house” alone without taking into account the rents for market stands and market wagons in the streets adjacent to the market house and constituting part of the market place.</p>

— Hon. W. F. Geiger, Judge. (1) The record does not show that the indictment was returned by the foreman of the grand jury in the presence of the jury, as required by section 1797 of the Revised Statutes of 1879. (2) The indictment is absurd and inconsistent in this : that it charges that one mortal wound produced the death of the deceased, and that said mortal wound was given by both of the defendants with two different guns.

Prohibition. (1) The defendant, Henry F. Harrington, in the court below, was, and now is, the sheriff of the city of St. Louis, Missouri, and in Ms answer admits that he was such sheriff, and that he was in possession of the-goods replevied in his said official capacity, and is a state officer. State ex rel. Ally. Gen. v. McKee, 69 Mo. 504 (s. p. 5081; Stateexrél. r>. Finn, 4 Mo. App. 347 (s. p.. 353). .

— Hon. R. P. Owen, Judge. The accused had the right to be confronted with this witnesses. Bill of Rights of Constitution, section 22. In the case of the State v. Davis, 66 Mo. 684, this court, in language most apt and terse, denounces such offers as this record discloses ; and these decisions are in accord with, not only right reason, but with the fundamental law — the theory of standard text-writers, and the adjudication of the courts of fast resort in sister states.

Louis Court of Appeals. (1) The resident plaintiff and the one acting for all the others was lulled into security by the promise of Vogel to take a quit-claim deed to the land in full settlement of the note. (2) The price paid for the property was grossly inadequate. Besides, the seven distinct houses were sold as one.

— Hon. John L. Thomas, Judge. The insanity and wardship of Mrs. Boyer, which, appear from the testimony, notwithstanding the exclusion of the order of the county court, render it unnecessary to inquire how far the requirements of section 7, chapter 2, statutes, 43 Eliz., imposing the duty of maintenance of “poor, blind, lame, and impotent persons,” upon their children, obtain in this state, under our statute adopting the common law, and to what extent if any, such…

Louis Court of Appeals. (1) The city of St. Louis had full authority under act of the legislature of 1865 (Laws, p. 439) to dispose of Exchange square. The square is no longer needed for public use and the consent of the heirs of the dedicators is to be obtained. (2) The respondent has no such personal or private interest in the maintenance of Exchange square as a common forever as to entitle him to, an injunction.

Louis Court of Appeals. The judgment here enjoined is a regular judgment obtained in due course of law and in compliance with all the provisions of the statutes of the state, and wholly without haste or concealment, and after a delay' of nearly five years from the commencement of the suit. The title claimed by the plaintiff here was in the defendant in the suit when it was commenced. On the face of the case, as made by plaintiff, there is no ground for an injunction.

— Hon. H. S. Kelley, Judge. Defendant’s agent, Bryan, at the time he delivered, to plaintiff the policy of insurance, and at each subsequent payment of the premium by plaintiff, agreed byparol with plaintiff that his policy should not expire, but that said agent should keep the same renewed from year to year, which agreement was not within the statute of frauds, but binding on defendant, and should have been submitted for the decision of the jury. Barbie v. Ins.

— How. Turwer A. GrILL, Judge. (1) It is the policy of the law, at the present day, to uphold tax titles. “The time has gone by,” says Judge Cooley, “when the proceedings of taxing officers are to be criticised with microscopic nicety, and the exact time and method of every step examined to detect a departure from the law, however insignificant or unintentional.” Stockle v. Silsbee, 41 Mich. 615; Rdby v. Quinn, 76 Mo. 263; 1 Flippan (6 U. S. Cir.) 472 ; Cooley on Taxation,…

— Hon. T. A. Hill, Judge. ■ (1) The petition failed to state a cause of action and the court erred in overruling defendant’s objection to the hearing of evidence under it. It does not state any case of wilful or wanton injury, or of interference with the rightful use by individuals of any public place, or any fact whatever, except that the defendant’s premises and its use of them for blowing off its boilers was dangerous, and that the child was injured.

— How. J. D. Foster, Judge. The petition is radically defective. It fails to state facts sufficient to constitute a cause of action in this, that it does not allege that it was the statutory duty of defendant to erect and maintain a fence, and that it had failed to do so at the point where plaintiff s stock strayed on to said railway track.

Ekror to Gape Girardeau Circuit Court.— ELon. J. D. Foster, Judge. (1) The circuit court had absolutely no jurisdiction of the judgment. The record shows that the cause, at the time of these proceedings in the circuit court, was pending in the Supreme Court, without bond or supersedeas. Brill v. Meek, 20 Mo. 358 ; Ladd v. Cousins, 35 Mo. 513; Stewart Stringer, 41 Mo. 400; DeKalb Co. r. Ilixon, 44 Mo. 341 ; Jones v. Lister anee Co., 55 Mo. 342.

— Hon. Chas. JEL S. Goodman, Judge. The statute upon which this indictment is based Is not in conflict with, or repugnant to, the second article of the amendments to the federal constitution, or the seventeenth section of article 2, of the constitution of this state. The law prohibiting the wearing of concealed weapons, or while in a state of intoxication, is a police regulation for the protection of society, and not an infringement of the constitutional right to bear arms.

Louis Court of Appeals, (1) Tie deed of Glasgow, in 1858, of tie land to Jones and wife, created tlem tenants of tie entirety, and as our statute then was, tie survivor took tie whole. Garner v. Jones, 52 Mo. 71. Upon familiar principles of equity, tie money arising from tie land goes to whomever tie land would lave gone. (2) Wien the object of tie trust fails by reason of lapse or otherwise, or by death of tie donee, tie property reverts to tie donor.

Louis Court of Appeals. (1) The demurrer to the evidence at the close of plaintiff ’ s case should have been sustained. There was no evidence tending to connect, in any way, the death of deceased with any negligence on the part of defendant. Holman ¶. Railroad, 62 Mo. 562 ; Kelley v. Railroad, 75 Mo. 142; Powell v. Railroad, 76 Mo. 83; Lenox v. Railroad, 76 Mo. 86. (2) There Was no evidence to support the verdict.

Louis Court of Appeals. (1) There was an utter failure to prove the allegations of fraud, so as to sustain an action for deceit. Limn v. White, 63 Mo. 181, and cas. cit. ; Joliffe v. Collins, 21 Mo. 333. (2) The first count is an action for deceit, and nothing else.

— Hon. Theo. Brace, Judge. The objection to the introduction of evidence made by the defendant, ought to have been sustained, inasmuch as the defendant was indicted for obstructons to a public road, in April, 1883, under the law as it stood in the revision of 1879. . This law was repealed in 1883. See Session Acts, 1883, p. 170, sec. 60.

— Hon. M. G. MoGregor, Judge. Appellant made no objections at the time and saved no exceptions to the admission or éxclusion of evidence, or the giving or refusing of instructions, except an instruction in the nature of a demurrer to the evidence, and the court will not examine anything but the record proper and the demurrer to the evidence. State v. McDonald, 85 Mo. 539, and cases cited. The demurrer to the evidence was properly overruled.

— Hon. Gh D. Burgess, Judge. (1) There being no written contract between J orclan and Maybee, and no possession taken under the verbal arrangement made with Jordan’s agent, there was no valid and binding contract. Adair ». Adair, 68 Mo. 680, and cases cited. And even if defendant, Moore, knew of the condition of the transaction as it then stood, he had a right to buy the land if he could first complete his purchase and procure a conveyance.

— Hon. W. F. Geig-eb, Judge. It is contended by the appellant that, if the allegations in his petition are true, as stated, which by the pleadings are confessed, no title passed, and that Charles Carlton, nor his grantees, are, or could be, in any way affected by the statute of limitations, and they, or any one of them, could not be charged with laches if the , appellant, or his grantors, through long lapse of time had failed to assert his title.

— Hon. W. F. ‘Geiger, Judge. (1) By the terms of sections 2420, article 1, chapter 33, and 2509, chapter 35, Revised Statutes, there can be a peaceable disseisin, raising, by implication, a sort of • tenancy at will, until impugned by the landlord, by & written notice to quit, such seisin being, we may suppose, the lowest class of leases, as all tenancies in the nature of leases grow out of contract, express or implied.

— Hon. Ben. Y, Alton, Judge. (1)The testimony of Sarah Steele and Mrs. Chasteen was improperly admitted. They testified to no admissions, confessions or declaration against interest. (2) The court erred in admitting the testimony of William Elliott and Anna Eidson, taken before the justice of the peace, -the witnesses having since died.

— S. P. Ho us ton,, Esq., Special Judge. (1) The contract of a married woman for goods sold- and delivered is not a present lien on her separate estate, but is only made so by decree to that effect-Kelley on Contracts of Married Women, p. 238, p. 250, note 1, p. 284, note 1, p. 285 ; Com. Exchange v. Babcock, 42 N. Y. 613 ; Armstrong v. Boss, 20 N. J. Eq. 109 ; 12 Cent. Law Jour. 289 ; Davis v. Smith, 75 Mo. 225 ; Klenke v. Koeltze, 75 Mo. 239 ; Freeman on Judg. 196.

— Hon. J. D. Foster, Judge. (1) The mortgage of H. C. McGruder to Ms sister, the respondent, on his stock of goods, was a conveyance to the use of the grantor, and was void as to prior and subsequent creditors; not as a matter of law, but as a matter of fact, in the light of undisputed evidence. ■Greeley v. Reading, 74 Mo. 309; Weber v. Armstrong, 70 Mo. 217; Cator v. Collins, 2 Mo. App. 225.

Louis Criminal Court. — Hon. Gr. S. Van Wagoner, Judge, Charles P. Johnson, John L. Johnson and C. C. 'The eighth instruction, given by the court for the-state, and which told the jury that the defendant at the time of the homicide was not a deputy constable under the laws of the state, was erroneous. R. S., sec. 652. The statute requiring the appointment of a deputy constable to be registered, is only directory, and. does not affect the validity of his acts.

— Hon. Robert L. Wilson, Judge. Fraud and damage will give a party relief in any court, either of law or equity. The malicious prosecution of a civil action, without reasonable or probable cause, is a good cause of action against the party prosecuting such suit. Alexander v. Harrison, 38 Mo. 258 ; Brady v. Ervin, 48 Mo. 533. A municipal corporation is liable in damages for injuries to the citizen. The nature of the injuries is not the test of liability.

— Hon. W. F. Geiger, Judge. (1) Section 2507, Revised Statutes, lias no application at all to tlie facts of this case. Spencer was but an assignee under the state law for the benefit of creditors, made so by the voluntary deed of Fallis & Lichliter, and held the goods in controversy only as such assignee. He stood in the place of Fallis & Lichliter, and had no higher or other right than they would have.

— Hon. R. P. Owen, Judge. (1) The evidence received to prove, as an element for damag’es in this common-law action, the destruction of plaintiff’s crop by cattle and other stock, consequent upon the negligent burning of the plaintiff’s fence, was incompetent and illegal, and the court erred in permitting proof of the same. Turner v. Gibbs, 50 Mo. 556 ; Waters v. Brown, 44 Mo. 302; Clemens v. Railroad, 53 Mo. 370; Peoppus v. Railroad, 67 Mo. 725 ; Ciarle v..

— Hon. Charles Gr. Burton, Judge. When a school district is, at an annual meeting, formed out of two other districts, and an enumeration .of scholars has been made residing in the two old districts the year previous, then should such new district receive that proportion of the public school fund distributed under Revised Statutes, section 7122, represented by the number of scholars in such new district who had resided in and been enumerated with the •scholars of said old…

— Hon. Elijah Robinson, Judge. (1) At common law recovery of rents and profits . by way of damages in an ejectment suit was -not authorizecl. Sedgwick & Wait on Trial of Title to Land, sec. 647; Tyler on Ejectment, 838. (2) After recovery in ejectment, trespass for mesne rents and profits was the-remedy.

— Jonas J. Clark, Esq., Special Judge. (1) The court erred in admitting evidence tending to show that deceased was intoxicated, and that he had obtained his liquor of defendant. Nichols ©. Winfrey, 79 Mo. 553. (2) The court erred iu giving plaintiffs’ first, second, third, fourth, fifth, sixth, eighth and ninth instructions. All these instructions ignore defendant’s “right to protect his dominion over his own house.” Nichols x>. Winfrey, supra.

<p>1. Chattels: possession evidence op title. That a man deposits money in the bank in his own name and draws it out on his personal check is prima facie evidence that the money is his.</p> <p>2. Fraudulent Conveyances. An insolvent person may make a voluntary conveyance of property to his wife which will be good as against subsequent creditors, unless it is made with the intent to hinder, delay or defraud them.</p> <p>8. Instructions. It is error to instruct the jury upon a hypothesis not warranted by the evidence.</p> <p>4. Evidence. A jury cannot find the existence of a fact merely because a discredited witness has testified to the non-existence thereof.*</p>

Hon. R. E. Cowan, Judge. (1) Complainant’s exceptions to the testimony contained in the depositions of the witnesses for defendant Anderson should have been sustained, and the evidence excluded, on the grounds set out in the complainant’s motions. (2) Complainant herein is the proper party to bring suit for the estate of his testator. R. S., sec. 3463; 43 Ind. 203.

Louis Court of Appeals. (1) It was tlie duty of the justice of the peace to try the case on its merits. The landlord and tenant act not only creates a right, but provides a remedy therefor, and a forum for the enforcement of such remedy. In such case the remedy and forum are exclusive, and nowhere in such statute is any provision made for certifying a case from the justice of the peace to the circuit court.

<p>1. Voluntary Conveyance : fraud. The question whether a voluntary conveyance is fraudulent must be determined from all the circumstances.</p> <p>2. -:-: practice. In order to set aside a prior voluntary-conveyance at the suit of a subsequent creditor, actual fraud must be proved.</p> <p>8.--: equity of redemption : practice. A voluntary conveyance of an equity of redemption in premises so covered by prior encumbrances, as that no benefit could possibly inure to a subsequent creditor, will not, in the absence of proof of actual fraud, be eet aside at the suit of such a creditor. *</p>

— Hon. Benjamin E. Turner, Judge. (1) The jury should have been instructed to find for defendant. To render defendant liable in this action there must have been some causal connection shown between the height of the gate and the injury. If the gate had been four and a half feet high and had been blown •open the stock would have been killed just the same. Holman v. Railroad, 62 Mo. 562; Alexander v. Rail•road, 76 Mo. 494; Wallace v. Railroad, 74 Mo. 594; Braxton r>.

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

— Hon. J. D. Poster, Judge. (1) No testimony ought to have been heard upon the petition, as it does not state facts sufficient to constitute a cause of action.

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

— Hon. Ben. E. Turner, Judge. The greatest mistake made by the court below was in allowing the introduction of the memorandum book as evidence. It is admitted that the account books of deceased persons are admissible upon certain conditions to prove matters of debit and credit therein. But (1) they must be books of original entry. (2) The accounts must have been kept'in the regular course of business and be regular upon their face.

'Appeal from, Scotland Circuit Court. — Hon. Ben. E. . Turner, Judge. (1) The interplea does not state a cause of action. (2) The court should have given instruction numbered one asked by Burkett. (3) The court erred in giving the instruction to the jury to find for the interpleader. (4) The court erred in admitting the deed of assignment in evidence over the objection of Burkett.

Louis Criminal Court. — Hon. G. S. Van Wagoner, Judge. A careful examination of the testimony discloses no •error that will justify a reversal. The first instruction properly defines murder in the first degree. State v. Snell, 78 Mo. 240; State v. Thomas, 78 Mo. 327; State r>. Wisdom, 84 Mo. 177. The second correctly defines the words constituting the elements of the crime charged.

— Hon. F. M. Black, Judge. Inasmuch as no question had been raised as to the title to the strip in suit for more than ten years, under purchase of June, 1870, and defendant all the while claiming and intending to own to the fence between enclosures, the title had vested in defendant, Richards, and having so vested, a subsequent dispute, if any, between plaintiffs and the defendant, could not divest defendant of his title. Gray v. Yates, 67 Mo. 601.

— Hon. J. D. Foster, Judge. (1) The evidence shows conclusively that Nathan Vanhorn died in California, and that there had been no administration upon his estate. The record fails to show affirmatively, as it should, that an administration had been had, or all debts paid, before an order of distribution could go as to the interest of said Vanhorn. R. S., sec. 3380.

— How. James R. Yaug-haw, Judge. The appellant was indicted for and convicted of murder in the first degree for the killing of Ella Bowe on the eighth day of July, 1886. The evidence on the part of the state showed that in July, 1886, appellant was staying at the house of J. J. White, a farmer, in Barry ■county. Mrs. Yassar, White’s housekeeper, her fourteen year old son, and Ella Bowe, the deceased, about •seventeen years of age, were also staying at White’s house.

— Hon. J. L. Thomas, Judge. The trial court erred in sustaining the demurrer. The indictment charges the crime in the substantial language of the statute, and is sufficient.

— Hour. Joseph P. G-bubb, Judge. (1) Tlie contract as pleaded, is an entirety, and is an absolute contract to cure. The employment, as alleged, is “to reduce and set the bone; to attend, to cure, and heal the same that defendant undertook and entered upon said employment, and promised carefully and skillfully to perform the said services.

— Hon. A. J. Seay9 Judge. ' (1) The decree is absolutely without evidence to support it. Fraud must be] proved, not conjectured. Priest v. Way, 87 Mo. 16. (2) The evidence shows that the deed irom George Bunch was made lor a valuable consideration, viz., the payment by them of the mortgage on the land and the support of the grantor and his wife. (3) The land being the homestead of George Bunch it could not be conveyed in fraud of his creditors.

— Hon. Elijah Robinson, Judge. (1) The indictment in this case is not such as is guaranteed by sections 12 and 22, article 2, of the Bill of Rights. It should be anindictment good in substance at common law. In re Slater, 72 Mo. 106; State v. Eelm, 79 Mo. 515; State v. Hayward, 83 Mo. 304.

— Hon. H. S. Kelley, Judge. The demurrer should have been sustained to the indictment. There is no allegation in the indictment that the prosecutrix was defiled by the defendant while she was, or remained in his care, custody or employment. The statute of 1879, the statute in force at the time of the alleged commission of the offence, amends the statute of 1865 by adding the words, “while she remains in his care, custody or employment.” SeeR.

— Hon. Jos. P. Grubb, Judge. (1) The court erred in refusing to instruct the jury to return a verdict for the defendant: First, because the evidence was insufficient to show that this animal escaped upon the track by reason of any defect, or insufficiency in the fence maintained by the railroad company; second, because there was no evidence that the animal was killed in Bloomington township.

— How. Jos. P„ G-rubb, Judge. (1) The city should not be allowed to levy and assess taxes upon this stock, first, because it has no inherent power to levy taxes, and no grant of power has been made permitting it to levy and collect taxes on such stock. Cooley on Taxation [2 Ed.] 678; E. S., secs. 4694, 4696; State r>. Shortridge, 56 Mo. 126, 130; Davis v. Swope, 47 Miss. 367; Valle v. Ziegler, 84 Mo. 214.

— Hon. E. L. Edwards, Judge. (1) The defendant was charged with having committed perjury, in swearing that he did not enter and drink intoxicating liquors in a certain tippling shop on Sunday, the twenty-fourth day of December, 1883. The testimony should have been confined to his acts upon that particular day, and the court ought not to have permitted any witness to say that the defendant entered or drank in said shop on the twenty-fourth day of December, 1882.

— Hon. Ben. V. Alton, Judge. The indictment employs the substantial language of the statute and is sufficient. R. S. 1879, sec. 1548 ; State v. Blade, 24 Mo. 378; State v. Charles, 24 Mo. 379; State v. Sutton, 24 Mo. 380. The rulings of this court in the cases above cited were under the statute of 1845, in which the section, making betting on games a misdemeanor, is identical with the law now in force on this, subject.

— Hon. Chables Gf. Bueton, Judge. (1) The court erred in refusing to admit evidence-of the agreement to arbitrate and the award made thereunder. Beattie v. David, 50 N. J. L. 102 ; Spencer v. Curtis, 57 Ind. 221; Excelsior Co. v. Potts, 36 N, J. L. 303 ; Newcomb v. Wood, 97 U. S. 581. (2) The court erred in refusing to render judgment in accordance with, the award made by the arbitrators. Buckman v. Davis, 28 Pa.

<p>Pleading : amendment : statute. On an appeal from a justice of the peace, in an action upon an account, the plaintiff may, under the statute (R. S., sec. 3060), amend his statement in the circuit court, after the evidence is all in, by the addition of another item.</p>

— Hon. James D. Fox, Judge. (1) The court erred in refusing to permit the introduction of the testimony of Fred. Huber, taken before the coroner. Hays v. Walker, 2 Mo. 222; Peck v. Richey, 66 Mo. 114; Pruitt «.

— Hon. H. S. Neeley, Judge. (1) In this case the relator cannot maintain the action. When the right is one of public concern only, and , one individual has no more right to have the act done than another, application must be made by a public officer (unless the proper prosecuting officer declines to appear). 4 Wait’s Actions and Defenses, 358, and cases cited; Angelí & Ames on Cor., sec. 719, note 9, and cases cited.

— Hon. W. F, GtEigee, Judge. The testimony of John Harris does not show that the statements of deceased in relation to the killing were made in articulo mortis. While deceased may have-had an apprehension of death, it does not appear that he expected this event to take place immediately, nor that he had abandoned all hope of recovery.

— Hon. W. P. Geiger, Judge. (1) The chattel mortgage on which respondents sought to recover the property in controversy, is fraudulent and void upon its face, for it expressly provides that the mortgageor shall remain in possession and sell. Lodge v. Samuels, 50 Mo. 204; White v. Graves, 68 Mo. 218, 223; Robinson v. Elliott, 22 Wall. 513 ; Pierce ■on Mortgages of Merchandise, sec. 68, and authorities •cited.

Louis Court of Appeals. (1) The plain purpose of the ante-nuptial contract was to completely sever the property interests of the parties. The word “ dower” was plainly used, not in a restricted technical sense, but in a broad and comprehensive sense.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. The petition stated a cause of action; the court erred in sustaining the demurrer. Addison on Torts, 302, 303, et seq.; Cooley on Torts, 589, and authorities cited. “Negligence is not actionable, unless it is the proximate cause of the injury complained of.” Sedg. Meas, of Dam. sec. 9; Harlan v. Railroad, 65 Mo. 25; Henry v. Railroad, 76 Mo. 293.

Louis Court of Appeals. (1) The power to “ license and regulate ” is a police power for the purpose of regulation only, and cannot be used for the purpose of obtaining revenue, or as a basis for taxation. If the ordinances passed in pursuance of this authority are, in effect, revenue measures, they are illegal.

— Hon. Gr. H. Burcki-iaett, Judge. Mandamus. (1) The three points submitted in the cause for decision involve but one question, viz: a judicial construction of the word citizen, as used in the connection, “tax-payingcitizens,” in the dramshop act of March 34, 1883, pp. 86, 87 and 88. The word citizen in said act is used in its general sense and means one qualified to vote and hold public office. Beuvier’s Law Diet.; also Webster’s dictionary.

— Hon. N. MGtivan, Judge, (1) The third instruction for defendant should have been refused and the second for the plaintiffs given. The ancient common law rule that only the grantor or his heirs can enter for forfeiture of condition broken was abrogated by statute 32 Henry VIII., which is common law in this state. Coke on Litt. 215a; Hamilton n. Kneeland, .1 Nev. 40; 4 Kent’s Com., s. p. 126; 2 Cruise’s Dig., p. 4, sec. 16; 2 Scrib.

— Hon. Silas Woodson, Judge, (1) The declarations of a deceased person, made in articulo mortis, are competent and admissible. State v. McMillen, 18 Mo. 30; 1 Grreenleaf on Evidence, sec. 158. (2) Admission in evidence of threats made by a defendant against the life of a person a legal stranger to deceased is error. (3) Absence from the court room by the judge during the argument of the state’s attorney in a capital case is error.

— Hon. Robert L. Wilson, Judge. (1) Damages claimed because of an increase of the value of the lands are not general, but special. It was necessary, therefore, that the damages thus claimed should be alleged with particularity, in order to prevent surprise to the defendant. State ». Blackman, 51 Mo. 319 ; O' Leary n. Cowan, 31 Mo. 117; Lusk v. Briscoe, 65 Mo. 555.

Louis Court of Criminal Correction. — Hon. E. A. Noonan, Judge. The state law governing dramshop licenses provides that “no dramshop keeper shall keep such shop at more than one place at the same time.” 2 R, S., sec. 5436. It also provides that “applications for license as a dram-shop keeper, * * * shall state specifically where the dramshop is to be kept.” Section 5438, of the General Statutes, as amended by section 1, of the act of March 24, 1883, Laws of 1883, p. 86.

Appeal frovi St. Louis Court of Appeals. The objects for which the special session was convened, as stated by the mayor in his message, were the consideration of the appropriation bill, and the dram-shop and meat shop bills, and such other measures as the mayor should be satisfied the public interest required a hearing to be given to.

— Hon. M. G. McGregor, Judge. (1) The mortgage was fraudulent per se, because it purported to convey property thereafter to be acquired — property not then owned by… Held: but also held that the defect was cured by a subsequent delivery of possession. We concede that technical fraud, apparent on the face of an instrument, is cured by a delivery of possession. This was decided in Nash v. Norment, 5 Mo. App. 545. But in this case there was no subsequent delivery of possession.

Barton Circuit Court. —Hoh. Chas. Gv Burtoh, Judge. (1) Under our statute the power of an attorney at law is limited to authority to prosecute and defend a suit. R. S., sec. 3564. And the statute limits the power of dismissal in vacation to the plaintiff only R. S., sec. 3724. The unauthorized dismissal of the attorney is void in all cases where the right and not the remedy of the-plaintiff is dismissed.

Genevieve Circuit Court. — Hon. J. D. Foster, Judge. (1) Appellant alleges in his answer, and offered evidence tending to prove, “that said plaintiff paid to the defendant the said consideration of thirteen hundred dollars for said hides, tallow, and sheep-pelts after having counted and received delivery and having full knowledge of the number of said hides.” This stated a complete defence to plaintiff’s cause of action, for the reason: Said payment being made with a full…

— Hon. Ben. Y. Alton, Judge. (1) Plaintiff’s amended petition or statement of cause of action in this cause is insufficient. It fails to state facts sufficient to constitute any cause of action within section 2852, Revised Statutes. Casey v. Ciarle, 2 Mo. 12; Odie v. Ciarle, 2 Mo. 13; Wathen v. Farr, 8Mo. 324 ; Breshears v. Strode, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508 ; Iba v. Railroad, 45 Mo. 470 ; Butts v. Phelps, 79 Mo. 302.

— Hon. Andrew Ellison, Judge. (1) Tlie defendant in tlie back tax case was, when suit was brought, a resident of the state, and, if it be held that suit was rightly brought against him, the court did not acquire jurisdiction by the order of publication. Laws 1877, p. 384, sec. 6; 2 W. S. p. 1009, secs. 13, 14, 17. In order to render a valid judgment, the court in such cases must have jurisdiction both of the subject matter of the suit and of the defendant therein.

— Hon. Gh Hi Burckhartt, Judge. (1) The court erred in refusing to grant the injunction and in dismissing complainant’s bill. Our statutes make school districts corporations with limited powers, and in the formation of such statutory corporations the laws of their creation must be closely followed, and such acts strictly construed. Ohio, etc., v. The Treasurer of Lib.