Volume 91 — Missouri Reports

— Hon. Noah M. Givan, Special Judge. (1) The testimony is uncontradicted that the plaintiffs were in possession of tlie surface of the land up to the “line shaft,” which covers and includes the disputed strip, hence an action of ejectment would not lie, and the only adequate remedy for plaintiffs was by injunction.

(1) The court erred in refusing to allow the defendant to testify as to his reason and motive for striking the deceased. (2) The court erred in refusing to allow defendant to prove that the deceased was a fierce, turbulent and violent man. State v. Hicks, 27 Mo. 588. The court erred in refusing to allow defendant to prove that Allen Heaston, a witness for the state, had made a proposition to leave the state and not testify against him, for one hundred dollars.

— Hon. Elijah Robinson, Judge. (1) The court did not acquire jurisdiction in the original proceedings in the county court, because of the want of a notice of the intended application. The notice was not signed by any one, nor did it purport to have been given by authority. R. S. sec. 6936. A notice, required by the statute to be in writing, is insufficient when it is not signed. Eaton v. Supervisors, 42 Wis. 317; Towner v. Hemic, 19 Mo.

<p>1. Railroads: negligence : violation op obdinange. In an action against a railroad company for negligently killing plaintiff’s son, where the petition only charges the violation of an ordinance of the city of St. Louis, requiring the bell of the locomotive to be rung when moving within the city limits, and a man to be stationed on the end of the car farthest from the engine, when backing cars, and freight trains to be well manned by experienced brakemen when moving within the city limits, a case is not made out where the evidence shows that the injury was caused by the dropping of two box cars, without an engine attached, down an inclined track in the company’s yard, where they were coupled with others standing thereon, and the coupled cars then striking another car on such track, jarring it and knocking plaintiff’s son off the same, when he was killed by being run over by the trucks of the car, and fails to show that such cars were not well manned, or that the brakeman having them in charge was not experienced.</p> <p>2. -: -:-. Such box cars, when coupled to the others on the side track, did not constitute a backing train, within the meaning of the ordinance.</p> <p>3. - : -:-. Where a railroad company used a portion of the levee, with no cross streets over it, exclusively for storing and distributing cars and freight, it will be assumed that it had a right to so use it, in the absence of evidence to the contrary.</p> <p>4. -: -: -. The ordinance in question, requiring a man to be stationed on a backing train to give danger signals, does not apply where the employes are simply engaged in setting cars in a car yard.</p>

— Hon. J. B. Gantt, Judge. The evidence clearly and conclusively establishes the facts to be substantially as stated in the petition, and from these facts a resulting trust arises in favor of appellant, which entitles him to the relief prayed for. A resulting trust may be proved by parol testimony. Groves v. Fulsome, 16 Mo. 543 ; Cason v. Cason, 28 Mo. 47 ; Johnson v. Quarles, 46 Mo. 423. Such testimony is admissible after the death of the nominal purchaser.

Louis City Circuit Court. — IIoN. Gr. W. Ltjbkb, Judge. (1) The two counts were properly united in the petition. R. S.. sec. 3512 ; Henderson v. Dickey, 50 Mo. 161; Jones v. Hickman, 42 Mo. 413. (2) The trust, attempted to be created by the will, being so vague and uncertain that the cestui . que trust cannot be defined and accurately determined, the bequest must fail and the property revert to the next of kin. Schmucker v. Reel, 61 Mo. 599 ; Heiss ■».

— Hon. M. Gr. McG-kegor, Judge. An act against the person of another, done with a ( felonious intent, is equally criminal whether it affects f the person intended or another. State v. Payton, 90/ Mo. 220; State t>. Henson, 81 Mo. 384; 1 Bish. Crim.j Law [5 Ed.] sec. 326, et seq.

— How. H. S. Kelley, Judge. Instruction number three should not have been given, because of the submission thereby to the jury of the-question of public use, and even. if that question was rightly submitted, the instructions given by the court erroneously stated the law to the jury.

Francois Circuit Court. — Hon. J. I). Pox, Judge. Tbe plaintiff was introduced as a witness, and stated, among other things, that at tbe point where tbe heifer got on tbe track there was a strip of land not fenced that bad once been cultivated ; “I did not see the heifer myself after she was killed; the section foreman told me she was killed about the nineteenth of September, 1888.

— Hon. Elijah Robinson, Judge. (1) A homestead exemption is a privilege — a mere matter of grace or favor extended to the debtor, and is not a “vested right.” Harris v. Glenn, 56 Gra. 94; Allen v. Harley, 3 S. C. (N. S.) 412. (2) The legislature can, by a subsequent act, reduce the quantity and value of the homestead exemption and expose any portion of a homestead that has been set apart to the payment of debts contracted while a former law was in force.

— Hon N. M. Givan, Judge. The court will readily perceive that the road and lands in controversy in this case are the same as those involved in the case of Anderson v. Pemberton, 89 Mo.' 61. This court, in its opinion in that’ case, holds that the proceedings locating the road were void, and that Mrs. Rose was the owner of the tract claimed by her and her husband.

— How. J. D. Pozy Judge. (1) The circuit court erred in its refusal of defendant’s motion to require the plaintiff to elect on which: cause of action stated in Ms complaint he would proceed to trial; that is to say, whether for a failure on the part of defendant to erect and maintain lawful fences on the sides of its railroad, or a failure to erect and maintain proper cattle guards.

— Hox. W. F. Geiger, Judge. (1) In issues triable by the court, “the court may take the opinion of a jury upon any specific question of fact involved therein by an issue made up therein for that purpose.” R. S., sec. 3601.

IíoN. Theo. Brace, Judge. (1) By the fifth section of the act of the General Assembly, entitled “an act to amend and reduce into one act the several acts incorporating the city of Hannibal,” approved February 14, 1851 (Sess.

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

Louis Court of Appeals. (1) Error was committed in permitting the cross-examination of defendant as to matters not testified to by him in his examination in chief. It is not only the right, but the duty, of the jury to carefully examine, and weigh the evidence which the court permits to come before them, and it must be expected that they will do so : and, if there is error in the submitting of evidence, the presumption is that there will be error in the verdict.

— Hon. J. P„ (xrubb, Judge. The petition does not state facts sufficient to constitute a cause of action. The deceased was killed April 15, 1879, and the suit was begun April 9, 1880. The' right of action under the statute (R. tí., sec. 2121) only remains in tlie wife absolutely for six months and if she fails to sue within that time, then the suit is to be brought by the minor child or children of the deceased.

Louis County Circuit Court. — Host. W. W. Edwards,- Judge. The court gave the following instruction on its own motion: “The indictment in this case alleges the crime of murder in the first degree against the prisoner, Nickolas Murray, and the jurors are instructed, that, before there can be a conviction, it must be proven, beyond a reasonable doubt, that, at the state of Missouri, and county of St. Louis, and prior to the finding of the indictment, the prisoner, Nickolas…

— Hon. Cr. D. Burgess, Judge. (1) This court will review the evidence and findings of the referee, as the suit is of an equitable character, to settle the co-partnership affairs. Hodges v. Black, 76 Mo. 537; Holt v. Simmons, 16 Mo. App. 97.

— Hon. B. E. Turner, Judge. (1) TJnder tlie plea of non est factum, the testimony-offered to show the consideration of the note was clearly inadmissible in evidence. The doctrine is now well established that, a negotiable note in the hands of an innocent holder for value is protected from all inquiry into its consideration. Bennettv. Torbina, 56 Mo. 309; Merrick v. Phillips, 58 Mo. 436; Hamilton v. Marks,' 63 Mo. 167 ; Durkee ».

— Hon. Noah M. G-ivam, JucUje. (1) The land of a decedent cannot be sold, except •when the personal estate is insufficient to pay debts existing at the time of his decease. ' Aubuchon v. Lory, 23 Mo. 99; Farrar v. Dean, 24 Mo. 16; Wright v. Chambers, 24 Mo. 482; Trustees v. McElhaney, 61 Mo. 541; Rithey v. Withers, 72 Mo. 556; Bollinger r>. Kelly., 85 Mo. 561; Ferguson, Adm’r, v. Carson’s Adm’r, 86 Mo. 673.

— Hon. J. B. Gantt, Judge. (1) Defendant went into possession of the land in controversy under parol contract of sale in October, 1878; made improvements, and paid out money for said Baskin, prior to Ms death. This was sufficient to take the case out of the statute of frauds. Adair n. Adair. 78 Mo. 633 ; West ». Bundy, 78 Mo. 407, 410 ; Wood on Frauds, p. 826, sec. 488, and cas. cit.; Tatum v. Broolcs, 51 Mo. 148.

Louis Oily Circuit Court. — ITon. W. H. Horner, Judge. (1) The indictment of witness, Engelke, some eight years before, in the United States court, should not have been admitted in evidence. It was not the record of the conviction of an infamous crime; it was, at best, but a method of proving a specific charge. Seymour v. Farrell, 51 Mo. 97; State v. Breeden, 58 Mo. 507 ; State v. Shields, 18 Mo. 236.

— Hoist. H. S. Kelley, Judge. (1) The case should have been given to the jury if There was any evidence (a) of the contract alleged, (b) of its breach, and (c) that the agent had authority to make it., or that plaintiff had reason to believe and did believe that he had such authority. Brown r. Mnerson, 18 Mo. 103 ; Owenr. O’ Reilly, 20 Mo. 603 ; 3 Parsons on «Contracts [5 Ed.] 117, 118 : 1 Sedgwick on the Meas, of 3>ani. [7 Ed.] top p. 200, side p. 108.

— Hqh. Geo. W. I) URN, Judge. (1) After tlie execution of tlie deeds of gift to liis' children, Anthony Harsel was insolvent, and his deeds were fraudulent as to existing creditors. The solvency required by the law, as essential to protect a voluntary conveyance, consists not only in the present ability of the debtor to pay his debts, but in such a condition of his means that payment can be enforced by law.” State ex rel.

J. D. Poster, Judge. (1) There is error apparent upon the face of the record in that the statement does not allege that the plaintiff’s animals got upon the defendant’s railroad track at a point where it was, by law, required to erect and maintain a fence, nor does it allege that plaintiff’s said animals got on defendant’s railroad track where the same passes through, along, or adjoining inclosed or cultivated fields, or that the killing took place at any such point.

— Hon. Ben. Y. Alton, Judge. (1) If proper charges had been made and credits given and commissions allowed, Alsup would not have appeared as a defaulter on either bond. Held: and should pay a penalty of ten per cent. R. S., sec. 6782.

Louis Oily Circuit Court. — Hon. G-. W. LubkEj Judge. (1) Tbe special fund of ten thousand dollars, deposited, by the Life Association of America, with the treasurer of Virginia, was a necessary pre-requisite to its doing business in that state, and the said amount constituted a trust fund, to protect the Virginia policy holders upon any liabilities that might arise, on the part of said company.

— How. Johw L. Thomas, Judge. The inducement which caused the defendant to give Ms note to John O’Fallon was only a collateral issue. The main and only question of fact in the case, viz: what was the consideration of the note, remains undisputed, and is embodied in the declarations of law asked by defendant. The law should have been declared as asked by defendant and judgment rendered for him. Edwards on Bills and Notes [3 Ed.] secs. 451, 467.

Louis City Circuit Court.- — Hour. Gf. W. Lubice, Judge. (1) Notice of the protest and non-payment of the note in question was not given to this defendant. (2) The court erred in giving plaintiff ’ s third instruction. Participation in the profits of a co-partnership firm does not necessarily constitute a person a partner therein. Wiggins v. Graham, 51 Mo. 18; Campbell v. Dent, 54 Mo. 325 ; Phillips v. Samuel, 76 Mo. 657; Gill v. Periss, 82 Mo. 156, 167.

— How. Noah M. GtvaN, Judge. (1) A corporation cannot make an assignment for the benefit of creditors, without the consent of the stockholders. Such an act is ultra vires, and void. Epp-right v. Nickerson, 78 Mo. 482; Bank of Commerce v. Bank, 1 Harr. Ch. [Mich.] 106; Field on Corp., sec. 151; Abbott v. Hard Rubber Co., 83 Barb. 520; Brice v. Insurance Co., 3 Mo. App. 159; Buford v. H. Line Backet Co., 3 Mo. App. 262.

<p>Constitution: STATE OFFICER: JURISDICTION of supreme court. A sheriff is not a state officer within the meaning of the constitution conferring on the Supreme Court jurisdiction of appeals and writs of error in cases where a state officer is a party (Affirming State ex rel. Holmes v. Dillon, 90 Mo. 229).</p>

Louis Court of Appeals. Tlie court of appeals erred in reversing the judgment of the circuit court. (1) Because the instruction on which the court reversed the judgment stated the law.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) It is a favorite doctrine of the American courts that the property of a corporation is to be deemed a trust fund for the payment of the debts of the corporation, so that the creditors have a lien on it in preference to any of the stockholders of the corporation. Thomp. Stock., sec. 10 and cit.

Petition for Habeas Corpus. (1) It is believed that this is the first instance in the judicial history of this state that a conrt has issued a writ of habeas coopios ad testificandum against the warden of the state penitentiary, commanding that officer to produce the person of a convict confined in prison, before the court for the purpose of testifying.

— Hon. Jos. P. Grubb, Judge. (1) Whatever interest or right W. S. Pike may have had in the premises, it was simply that of a trustee for the benefit of the banking firm of Pike Brothers & Company. Therefore, plaintiffs have no interest in the subject matter of this suit as heirs at law of W. S. Pike, and the decree rendered by the circuit court was not warranted by the evidence and should be reversed.

— Hoe. Noah M. GriVAH, Judge. (1) Tlie witness, Carradus, was incompetent to testify to contents of Strange’s letter, in reply to Crowley’s of November 2, 1882; he did not possess the necessary qualifications ; he had never seen Strange write, nor had he seen specimens of his hand-writing, and, afterwards, personally communicated with him respecting it. Bey-burn v. Belloti, 10 Mo. 597 ; Slate ■».

— Hon. Ben. V. Alton, Judge. (1) There was positively no evidence to support the finding of the court in this case. No witness knew or even ventured an opinion as to how, when or where the animal was killed. It was found a quarter of a mile distant from the track and bore no marks indicative of a collision with the rolling stock of a railroad.

Habeas Corpus. (1) Habeas corpus is the proper remedy where one is convicted and imprisoned under an unconstitutional law, or where the trial court had no jurisdiction; the process is void. Ex parte Rollins, 20 Ya. Rep. 765; Cooley’s Const. Lim. [4 Ed.] 431, 348, see note 1; Ex-parte Snyder, 64 Mo. 58; “ The Kuldux^ Cases, 4 Sup. Ct. Rep. 153; People ex rel. v. Warden, 2 N. E. Rep. 870; In re Wong Yung Quy, 6 Sawyer, 237.

— How. N. M. GtvaN, Judge. (1) It was essential to the jurisdiction of the circuit, as well as the county court, that three of the petitioners should have been, at the time of the presentation of the petition, of the immediate neighborhood of the proposed road. Laws 1883, sec. 5, p. 153; W7iitely v. Platte Co., 73 Mo. 30; Jefferson Co. v. Cowan, 54 Mo. 234; Colville v. Judy, 76 Mo. 654; Anderson v. Pem-berton, 89 Mo. 61.

<p> Quo Warranto. </p> <p>(1) A corporation organized under the present law's for insuring against loss by fire, upon the mutual plan, cannot lawfully issue policies of insurance of the character and number complained of in the information. A mutual company has certain well-defined features and limitations, and its nature and characteristics, as distinguished from other companies, has been judicially considered. The principle lying at the foundation of such companies is their mutuality; neither in their organization i or practice is any direct profit contemplated or realized. Insurance Co. ». Boeclder, 19 Mo. 139 ; Commonwealth ®. Insurance Co., 112 Mass. 116 ; Lycoming Insurance •Co.- ». Commonwealth, 10 Weekly Notes Oases, 328, [ Slip. Ot. Pa.]; Insurance Company v. Perrine, 7 W. ■& S. 348; Wood on Fire Insurance, sec. 538 ; May on Insurance [2 Ed.] p. 838, sec. 548; Angelí on Insurance, sec. 413, p. 413. (2) From the petition it ■appears that the major portion of the business of respondent consists in the issuing* of policies, for definite •sums in cash, to persons who enter into no contract with ■the company, are not members thereof, have no relation thereto, except as purchasers of insurance, do not participate in the management of the company, have no concern in its losses, and owe it no duty. It is obvious that such a course of business has nothing in common with mutual insurance. If such business can be conducted by a mutual company, such permission must be found in the statutes, which is not' the case. The statutes havé for their obvious purpose the establishment and preservation of the mutual character of such companies. (3) A joint stock insurance company is a business corporation engaged in vending insurance, its object, a profit to the stockholders. Its responsibility lies in its capital. The assured has no relation to the company, save as the purchaser and holder of its promise to pay upon certain contingencies. The facts * show that respondent has assumed (his attitude with respect to the larger part of its business and is engaged in a general insurance business upon the stock plan. (4) There are a number of cases wherein it has been held that the payment of a cash premium is not in itself inconsistent with the mutuality requisite in mutual companies. These cases all proceed upon the theory that the cash is a mere substitute for a premium note, and that in all other respects the cash policy-holder stands in the same relation and has the same rights, -duties, and burdens with respect to the company and Ms co-members, as have those who make premium notes. See Mygatt ¶. New York Prof. Go., 51N. T. 156 ; Union Insurance Go. x>. Hoge, 21 How. 35; Insurance Co. v. Marietta Woolen Mills, 8 Ohio St. 348.</p> <p>(1) To lawfully do the business of fire or marine insurance in this state, in any form, by association of individuals, implies the grant of a franchise. R. S., sec. 601 6b, as enacted in acts of 1881, p. 151, sec. 2; State v. Citizens, 6 Mo. App. 167. In this, our state has adopted she policy of New York. People v. Utica Insurance Go., 15 Johns. 358. (2) When the General Assembly of this state in 1869, placed the business of insurance under state supervision, it saw fit, in granting a franchise for the transaction of fire and marine insurance business, to divide the companies engaged in it into two classes. First, stock companies ; second, mutual companies. See Acts 1869, p. 45, sec. 2 ; also, 1 W. S., sec. 2, p. 760. And by the same section it was provided that “ it shall be unlawful for any corporation so formed to do business on any other plan than that upon which it is organized, and * * mutual companies shall not issue policies known as stock policies, or do business as joint stock companies, or upon the joint stock plan.” Thus a wall was erected by the legislature, separating che two kinds of business, in' so far as related to companies incorporated under the general law. This was a departure from the previous policy of the state, as shown in che multitude of private charters theretofore granted to insurance companies. By many of these charters, companies were permitted to do both : to have capital stock, and stockholders, and thus issue stock policies, and also to carry on business on the mutual insurance plan, that is, to have a set of members not stockholders, but joint insurers, mutual insurers, who were not liable as stockholders, and who had no recourse on the capital stock proper, or on its owners, the stockholders, and whose premiums were payable, sometimes in all cash, and sometimes in cash and assessable notes. See Acts 1845-6, pi 197; Acts 1865, p. 201; Acts 1857, p. 477. (3) The rule, namely, that the “mutual plan,” “mutual policies,” “joint stock plan,” “joint stock policies” did not depend on the manner in which the premiums were paid, whether by cash or by assessable notes, or part each, was announced in Ohio in the case of the Insurance Oo. v. Woolen Factory, 3 Ohio St. 348. This case is fully noticed in the New Yorlc case, supra. So, too, it is held in Union Insurance Go. v. Hoge, 21 How. 35, also cited in the New York case, and to which we call especial attention, as it is in point on other branches of this case. ' To the same effect is the case of ScMmpfv. Insurance Co., 86 Pa. St. 373, and the ease of Spurance n. Insurance Go., 10 Pac. Rep.; also Qarle-ton v. Insurance Go., 72 Ga. 371, at pp. 400 and 403. (4) It is the unmistakable policy of the law, and the clear duty of the company to so manage its affairs that the burden of losses and expenses shall be borne ratably and in just proportion by all its members, whether they acquired that relation by paying premiums in cash or by note. The fund of the company is made up of cash and assessable notes, and in making an assessment upon the latter to pay losses and expenses, due consideration must be given to the proportionate amount of cash contributed by the policy-holders, and the assessment adjusted accordingly, so that each would pay his proportionate and equitable share. Scldrnpf r>. Fire Insurance Go., supra; •Union Insurance Go. ». Hoge, supra.</p> <p>The information is insufficient because (1) It fails to allege that the Superintendent of Insurance has not issued to respondent Ms certificate of authority to transact business during the current year, 1886. (2) It fails to show that respondent has violated the statute, but on the contrary shows that it has complied with the insurance law in all its regards. (3) It fails to show that the respondent is either insolvent or unable to meet all its engagements at maturity.</p>

— Hon. James D. Fox, Judge. The matters relied on by the appellant, on the trial of this case, as shown by the record now here, are exactly tlie same matters set up in Ms answer in Chadwick v. Bilis & Preston, and then relied on to defeat Chadwick in Ms action, and which were, in that case, decided against the appellant here, and are now res adjudícala, and he cannot now be permitted to set them up, even if his pleadings were in a form to justify evidence of these equities,…

— Hon. T. A. Gill, Judge. (1) Defendant’s instruction, in the nature of a de- > murrer to the evidence, should have been given. The., only covenant alleged to have been broken, is that of, seisin.

Louis Court of Appeals. The court, at plaintiff’s request, gave the following; instructions: “1.

Louis Court of Appeals. (1) The court of appeals erred in holding that the circuit court erred in giving instructions numbered two, six and seven, asked by the interpleader, and in refusing instruction number nine asked by the plaintiffs or respondents. Leabo v. Qoode, 67 Mo. 134; 1 R. S. of Mo., sec. 449.

Louis Court of Appeals. (1) The court below committed error in refusing to-sustain the demurrer to tlie evidence at the close of plaintiff’s testimony, Harlan v. Railroad, 65 Mo. 22; Henze v. Railroad, 71 Mo. 636; Purlv. Railroad, 72 Mo. 168; Johnson v. Railroad, 77 Mo. 551; Turner v. Railroad, 74 Mo. 602 ; Hixon v. Railroad, 80 Mo. 335 ; Oarlin v. Railroad, 37 Iowa, 316 ; O’ Keefe v. Railroad, 32 Iowa, 467. (2) The court erred in giving the instructions asked by plaintiff.

Louis Court of Appeals. (1) The directors of a corporation have not the power to make an assignment of its property for the benefit of creditors, without the consent, or against the will, of its stockholders. City of St. Louis v. St. Louis Gas Light Co., 70 Mo. 98; Eppright v. Nielcerson, 78 Mo. 482; Field on Corporations, sect. 151; Buford v. KeoTcuh N. L. PJct. Co., 3 Mo. App. 159; s. o., 69 Mo. 611.

- — Hon. Jos. P. GtRubb, Judge. (1) Had the party intended as defendant been before the court, he must have pleaded the misnomer, or he would be bound by a judgment rendered against him in the name by which he was sued, otherwise the “ court will take care that he is not prejudiced by any misnomer of his adversary.” Wateirbury ■». Myther, 16 Wend. 811; Entrelcin v. C hambers, 11 Kan. 368.

— Hon. J. B. G-antt, Judge. (1) Is not plaintiff entitled, under the law and the facts, to a decree vesting full title in him, with damages and writ of possession 'i This calls for a review and reversal of the decision of this case when here before,, which we can hardly hope, yet we respectfully submit it, and refer to Sproull v. Atchison National Banlc, 22 Kas. 336.

— Hon. E. L. Ed-wakds, Judge. (1) The secretary of state, auditor, and register of lands, shall he ex officio commissioners of public printing. R. S., sec. 6595. The commissioners shall receive proposals for the same. R. S., sec. 6594. “ They shall, on careful examination and computation, award the contract to the lowest responsible bidder therefor.” R. S., sec. 6595.

— Hon. E. L. Edwards, Judge. (1) The injunction was granted without warrant of law. The cause of action of defendant, Ewing, existed at the time the plaintiff, Berry, acquired the alleged homestead.

— Hon. W. F. Geiger, Judge. (1) The petition in this case alleges that the plaintiff made a demand, through a check drawn on defendant, for the sum of two hundred dollars, the amount sued for.

— Hon. E. L. Edwards, Judge. (1) The first instruction given for the defence, con- ' sidered in the light of the evidence, was erroneous. It puts the case upon the ground that, if defendant notified plaintiff that he could not, or would not, comply with his promise, the defendant was liable. The mutual consent to a rescission need not be expressed by words, being valid if implied. Wheeden v, Eiske, 50 N. EL J25 ; Fine v. Rogers, 15 Mo. 315 ; Jones n. Neale, 2 Pat. ,& EL 339.

Louis County Circuit Court. — Hoh. W. W. Edwards, Judge. (1) The instructions given by tlie court did not cover all the law in the case. This they should have done. R. tí., sec. 1908; State v. Banks, 73 Mo. 592; State v. Brady, 87 Mo. 142. The jury were not told that to constitute rape there must be the utmost reluctance, and the utmost resistance on the part of the prosecu-trix. State v. Burgdorf, 53 Mo. 65.

Louis Qity Circuit Court. — Hon. W. H. Horner, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action against defendants, Leete & Harrison, as endorsers of a negotiable note. R. S,. sec. 547; Jaccard v. Anderson, 32 Mo. 188; Simmons v. Belt, 35 Mo. 461; Lindsay v. Parsons, 34 Mo. 422; Townsend v. Dry Goods Qo., 85 Mo. 503. (2) So the petition fails to state a cause of action against said defendants as endorsers of a non-negotiablenote.

— Hon E. L. Edwards, Judge. (1) The court permitted the state to offer evidence to support the reputation of the prosecutrix, when it liad not been attacked, which, was error. (2) The instructions on the part of the state, objected to by defendant, ought to have been refused, {a) The first instruction is too general, and is not founded on sufficient evidence. R. S., sec. 1912. There was absolutely no •corroborating evidence of a legal character.

— Hon. J. B. Gantt, Judge. (1) There cannot be in this state two sets of lawful administrators at the same time on the same estate. Held: in a collateral proceeding, that a judgment against an administrator of an estate who was appointed while the same was being administered on by an executor who had been duly qualified, was a nullity, and a sale made under such a j udgment was utterly void. Kane v. Paul, 14 Peters, 82.

<p>Negligence : passengeb : alighting from train. In an action by a woman in good health, sixty-five years old, and weighing one hundred and seventy pounds, and who was a passenger on defend-^ ant’s train, to’recover damages for personal injuries caused by starting the train while she was in the act of alighting, the jury may take into consideration the “age, sex, and physical condition” of the plaintiff in determining whether the train stopped sufficiently long to enable her to get off, and whether she in so doing acted with ordinary care and diligence.</p>

Louis Court of Appeals. (1) A general instruction as to reasonable doubt is applicable to all the evidence. It is not necessary to .give a special instruction as to reasonable doubt following an instruction for alibi. Evidence of alibi is only-ordinary evidence in rebuttal, and it is to be treated, in instructions, as other similar evidence. State v. Roclcett, :87 Mo. 666; State ». Jennings, 81 Mo. 190 ; 1 Bish. Crim. Proc. [3 Ed.] sec. 1092.

Mandamus. (1) It is settled without controversy, that mere ■canvassers possess no judicial or discretionary powers, and cannot go behind the returns.' Hudmon v. Slaioghter, 70 Ala. 551; Olay v, McKenzie, 7 Bush [Ky.] 523; Kister v. Qameron, 39 Ind. 488; State v. Steers, 44 Mo. 223 ; Cooley’s Const. Lim. [4 Ed.] 784-5; High on Extra. Rem., secs. 56, 160.

— How. J. D. Foster, Judge. (1) The holders of said bonds having obtained judgments in the federal circuit court, against the municipal authorities of Cape Girardeau county, on coupons detached from said bonds, the state circuit court will not be allowed, by injunction, to paralyze the process of said federal courts, issued in aid of, and to give effect to, said judgments. High’s Extra. Leg.

— Host. Gf, H. Burckhaktt, Judge. (1) The court erred in refusing instruction number seven, asked by plaintiff. There was no evidence upon which the court could find for the defendants on the ground of estoppel. The evidence in the case does not show a single element of estoppel. Acton v. Dooley, 74 Mo. 63 ; Donaldson v. Hibner, 55 Mo. 492 ; Bigelow on Estop. “525, 526, 521, 524; Kincaid v. Dormey, 51 Mo. 552 ; Bales v. Perry, 51 Mo. 453 ; Ormsby v. Ihm-sen, 34 Pa.

— Hon. E. J. Robinson, Judge. The court erred in the trial of the cause: (1) In allowing the introduction of illegal testimony by the defendant; (2) by giving declarations of law on the part of the defendant not warranted by the evidence ; (3) by giving on the part of defendant declarations of law inconsistent with those given on the part, of plaintiff; (4) by refusing proper and pertinent declarations of law on the part of plaintiff; (5) by giving judgment for the…

— W. A. Love, Esq., Special Judge. (1) Defendant was forced to trial, and witnesses sworn against Mm whose names were not endorsed on the indictment, and of whom he had no knowledge until they were put upon the stand when, of course, he had no opportunity to procure rebutting testimony. (2) The principal point relied on is that the court erred in permitting the identity of the stolen goods to be proven without their having been traced to the possession of defendant.

— HoN Best. V. Altoh, Judge. (1) The finding of the referees, was equivalent to the verdict of a jury. Western, etc., v. Kribben, 48 Mo. 37; Pendergast v. Eyermann, 16 Mo. App. 389. (2) The plaintiff consented to accept the referees as substitutes for a jury, but did not so consent as to the judge. Ken-ward v. Peck, 19 Mo. App. 342. (3) The action is one at law, being' determined as to its character by the petition, and plaintiff had a constitutional right to a jury.

<p>1. Practice in Supreme Court: change oe venue : disceetion oe trial court. The Supreme Court will not interfere with the action of the trial court in refusing a change of venue asked upon the ground of the prejudice of the inhabitants of the county against the defendant, where evidence was heard on both sides, unless it appear that palpable injustice has been done, or there has been an abuse of judicial discretion in refusing the application.</p> <p>2. -: reversal oe judgment. Where the verdict is wholly unsupported by the evidence, the Supreme Court will reverse the judgment.</p>

<p>Criminal Practice: co-dependant, competence op as witness, "Where the cause as to one defendant jointly indicted with another is disposed of by a plea of guilty, or by a verdict of conviction or acquittal, he is then a competent witness for the other.</p>

— Hon J. P. Strother, Judge. (1) Prior to the passage of section 3295, Revised Statutes, 1879, a tenant, by the curtesy, could, by conveying to another his interest as such tenant, create a particular estate in another, during the continuance of which the wife had no right of entry or of action. But the conveyance from Argillon Price, which was, also, signed and acknowledged by Lucy A. Price, was not intended to create any such particular estate, and did not create it.

Louis City Criminal Court. — Hon. G. S. Van Wagoher, Judge. (1) The court erred in refusing to allow defendant to sbtow tbe fact that deceased had been prejudiced against defendant, and that, in consequence of such prejudice, she desired to rid herself of him, thereby showing a motive for the attack made by her upon him, and thus corroborating defendant’s testimony. State v. Elkins, €3 Mo. 159. (2) The instruction of the court defining reasonable doubt was erroneous.

Louis Court of Appeals. (1) Plaintiff ’ s own testimony did not make a prima facie case, and the demurrer to the evidence should have been sustained. Wood' on Master and Servant, secs. 368, 419; Huffman n. Railroad, 78 Mo. 54.

— Hon. Nat. M. .Shelton, Special Judge. (1) The court erred in its declaration of law and in basing its judgment on the ground that' Mrs. Gray was married when she executed the note. She was unmarried when sued, and when the decree was taken, she was competent to defend. Yeoman v. Younger, 83 Mo. 424; Elate ex rel. v. Rainey, 74 Mo. 229 ; Bernecker v. Miller, 44 Mo. Ill; Reed^v. Vaughan, 15 Mo. 137 ; Wellshear «. Kelly, 69 Mo. 343.

— Hosn. C. G. Burton, Judge. (1) A cause cannot be tried and adjudicated upon its merits until the evidence is taken upon the whole case. Lewis v. BcJiwenn, 2 S. W. Rep. 392. (2) A false statement in the caption of a ballot, as to the political character of a candidate named thereunder for an office, vitiates the ballot, and it should not be counted. R. S., sec. 5493.

— Hon. J. P. Grubb, Judge. (1)The court erred in refusing the seventh instruction prayed- for by the plaintiff. At common law, any person whatever, if an affray be made to the breach of the peace, may, without a warrant from a magistrate, restrain any of the- offenders in order to preserve the peace. Phillip v. Trull, 11 Johns. 486; Baynes v. Brewster, 2 Q. B. 376; Price r. Suley, 10 A. & Tin. 39. (2) The court erred in refusing the eighth instruction-, asked by plaintiff.

— Hon. J. K. Sheley, Special Judge. (1) The special judge, who presided at the trial, was not elected as required by the statute, and had no authority to preside as judge, try and sentence the defendant. R. S., sec. 1879 ; Lacy v. Barret, 75 Mo. 469. (2) The failure of the court to instruct the jury as to manslaughter in the fourth degree was error. State ». Anderson, 86 Mo. 309; State v. Banks, 73 Mo. 597; State n. Robinson, 73 Mo. 308; State v. Hill, 69 Mo. 452.

— Hon. W. F. Geiger, Judge. (1)A verbal vendee remaining in possession after the agreement or the vendor’s liability to convey to him is ended is a tenant at will. Taylor’s Landlord and Tenant [6 Ed.] sec. 25, p. 20; Maclclot ©. DxCbreuil, 9 Mo. 487; Ash v. Holder, 86 Mo. 166; Willison ©. WatJcins, 3 Pet. 43; Galloway v. Finley, 12 Pet.' 464. The rule of the common law as to notice to quit to a strict tenant at will has been changed in Missouri.

Louis Criminal Court — Hon. G. S. Vah Wagoner, Judge. As the 'evidence for the state shows, affirmatively and conclusively, that the offence charged was not committed in the city of St. Louis, but at Sedalia, where the defendant resided and used the moneys in question, the indictment was improperly found in the city of St. Louis, and the cause should' be here dismissed. Ex parte Slater, 72 Mo. 105.

— Host. J. L. Thomas, Judge. (1) The indictment properly charges a felonious assault and is drawn upon section 1264, Revised Statutes. (2) Objections must be made and exceptions saved to errors occurring during the progress of the trial to entitle them toff review by this court. This rule is applicable in criminal as well as in civil cases. R. S., sec. 1921; Staten.

— Hov. W. F. Geiger, Judge. (1) The contract cannot be tortured into anything •other than a conditional release of the balance of the said ascertained indebtedness of Vam Every to Love, above what had been paid; and the release depended on defendant’s furnishing five hundred dollars to certain parties to buy plaintiff’s store and tie contract, and recognizing-said purchasers in plaintiff’s stead in said tie contract-'There is no pretense that these conditions were performed,…

— Host. H. S. Kelley, Judge. (1) The land in suit was not liable for the debt for which the levy of the execution and the sale of the land was made. Eppler, under whom the appellant claims, acquired a homestead in the lands in Atchison county in 1870, and merged the same in the land in suit in 1874, by exchanging his homestead with Walkup for it.

— Hon. E. L. Edwards, Judge. (1) The testimony of the witnesses shows that the lot in question was worth a thousand dollars, but it fails' to show any fraudulent act or purpose, or any collusion or irregularity of any kind whatever, nor is any charged in the bill. The case is entirely free from any such infirmity. . Hence the court erred in setting aside the sale.

—Hon. J. D. Foster, Judge. (1) The court erred in giving plaintiff the instruction numbered two. His petition shows that the action was brought under section 2240, Revised Statutes, and not under section 2241. Hence it was error to tell the jury that plaintiff had the better and paramount title. Plaintiff could only recover on his own legal title.

— Hon. W, P. Geigeb, Judge. (1) The affidavit- to the copy of the note did not meet the statutory requirement that the affiant had given credit to the estate for all payments and offsets to which the estate was entitled. R. S., sec. 195. (2) The statute of limitations had run against the demand. The acknowledgment contained in the letter, relied upon to avoid the bar of the statute, is coupled with remarks which preclude the presumption of a promise to pay.

—Hon. G. D. Burgess, Judge. (1) The testimony established plaintiffs’ title, and that the suit was commenced in time to avoid the bar of the two years statute of limitations, except as to one of the plaintiffs.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The submission in question in this case, having-been in writing, is within the statute concerning arbitra-tions, and section 829, Revised Statutes, which imposes-a duty on the arbitrators, and not on the parties, and. which, in plain terms, prohibits the former from proceeding without first qualifying under oath, was applicable to the case.

Louis Court of Appeals. The petition in the case avers, in substance, that the plaintiff was given by her mother, a widow, to Catherine McLaughlin, the wife of James McLaughlin; that this occurred in January, 1862, at which time plaintiff was an infant of four years ; that the arrangement between the adults, as to the care of the child, was, that she was to be legally adopted by them, and inherit their property ; that she continued to reside in the household of James and…

— Hoist. Tiieo. Brace, Judge. (1) The demurrer should have been overruled. Plaintiff, as trustee, had incurred expenses and assumed liabilities in consequence of the subscription; besides, defendant, as well as the other land owners, was personally interested in having the levee maintained and repaired, and the land protected from overflow. It was an undertaking for mutual benefits. The contract of subscription was valid and binding on defendant.

Louis Criminal Court. — Hon. G. S. Van Wagoner, Judge. (1) The indictment must state that the grand jury was “duly empanelled and charged to inquire within and for the body of the city of St. Louis,” and true presentment was made, etc. R. S., sec. 1774; Const. Mo., art. 2, sec. 12. (2) The instrument forged is a draft, not a check. The indictment does not follow the statute, and charges no offence against the laws of the state; State r>.

— Hon. J. D. Foster, Judge. (1) The statement fails to allege facts sufficient to constitute a cause of action. Rowland v. Railroad,, 73 Mo. 619 ; Bates v. Railroad, 74 Mo. 60; Schultz v. Railroad, 76 Mo. 324; Manz v. Railroad, 87 Mo. 278. (2) The evidence fails to show that plaintiff ’ s animal got on the defendant’s track at a point where it was bound, Ay law, and had failed, to maintain a lawful fence.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The property in question is not exempt from taxation.

Francois Circuit Court. — Hon. J. D. Fox, Judge. (1) The promissory note of Samuel 0. Orten for twenty-five hundred dollars, containing the “name of the payee,” “a promise of payment,” and the words “for value received,” is negotiable security under our statute. Stillwell». Craig, 58 Mo. 24. (2) The deposit of the note as collateral security in the hands of plaintiff before maturity, was a negotiation of the note. Logan v. Smith, 62 Mo. 455.