Volume 93 — Missouri Reports

— Hon. Jas. B. Gantt, Judge. Admitting that the petitions were all insufficient, the court erred in refusing to allow the plaintiff to file his petition, because three petitions had not been adjudged bad on demurrer or motion to strike out. A practice has been introduced of demurring to the introduction of evidence when the petition is defective, which should not be allowed. That should not count in this case.

— Hon. J. L. Thomas, Judge. (1) The actions and proceedings of James C. Thompson, as executor of Richard Thompson, deceased, would and could not estop the heirs-at-law of Lucinda R. Thompson, the widow of Richard Thompson, at her ■death, from claiming the homestead, which, under the laws of 1865, descended to her in fee-simple, there being no minor heirs, and which at her death descended to her heirs-at-law.

Louis Court of Appeals„ Tlie trial was by tlie court in this case, the facts were not in dispute, and the court could not have reached its conclusion, without determining, as a matter of law, that, on the facts, the appellant was not entitled to recover. Walter v. Ford, 74 Mo. 195 ; Silvey v. Summer, 61 Mo. 253 ; Wood v. Williams,. 61 Mo. 65 ; Willi v. Dry den, 52 Mo. 319 ; Gambs v. Insurance Co., 50 Mo. 44; Wad-dell v. Williams, 50 Mo. 216.

Louis Court of Appeals. (1) These proceedings being in invitum, no presumptions of jurisdiction are made. Every fact necessary to jurisdiction must affirmatively appear. The circuit court (in such proceedings as these) is regarded as a court of special and limited jurisdiction. The petition must hence disclose all the facts which the city charter or public law renders necessary as preliminary to this proceeding. Railroad v. Campbell, 62 Mo. 585; Cole v. Cole, 3 Mo.

— Hon. IT. S. Kelley, Judge. (1) The indictment contains two counts. The appellant was found guilty under the second count, which is drawn under section 1264, Revised Statutes. State q. Vansant, 71 Mo. 541. (2) The order permitting the two attorneys to prosecute, in the absence of the1 prosecuting attorney was a sufficient compliance with section 518, Revised. Statu tes.

— Hon. E. M. Black, Judge. (1) The court should not have admitted the evidence offered by defendants to show that they were innocent purchasers without notice of plaintiff’s equities. No equitable defence was pleaded. Northup ». Ins. Co., 47 Mo. 443 ; Greenway r. James, 34 Mo. 326 ; Newham is. Kenton, 79 Mo. 382. (2) So the facts constituting an equitable estoppel, testified to by the witness, King, were improperly admitted.

— How. Titeo. Brace, Judge. (1) The court erred in refusing to credit the estate of Wm. Booker, late executor of Grrove, with the amount charged on the inventory on account of the Pogue note.

Louis City Circuit Court. — How. E. B. Adams, Judge. All actions in tax suits are required to be prosecuted against the owners of the property. R. S., sec. 6837. When the tax suit was brought the parties made defendant are the heirs of Mary O. Smith. It was alleged they were her heirs by descent.

— Hon. E. L. Edwards, Judge. (1) The indictment charges clearly and explicitly that defendant was, at the time of the commission of the arson, then and there a convict confined in the penitentiary. This complies with the requirements of the-statute making convicts subject to indictment and punishment for crimes committed while undergoing imprisonment for a former offence, and is sufficient. R. S., 1879, sec. 1668.

. Appeal from Livingston Circuit Court. — Hon. James- • M. Davis, Judge. (1) Plaintiff cannot recover because the derrick was-placed in the centre of the train. He knew its position and voluntarily proceeded on the journey after such knowledge. Hayden v. Manufacturing Co., 29 Conn: 1548; Hudleston v. Lowell, 102 Mass. 585; Kroyn v. Railroad, 32 la. 361; JDevitt v. Railroad, 50 Mo. 305 ; Smith v. Railroad, 69 Mo. 32.

— Hon. John E. Ryland, Judge. (1) The indictment is sufficient. It not only charges the offence in the language of the statute, but it describes the instrument according to its tenor. . R. S., sect. 1386. It was not necessary to charge an intent on the part of defendant to defraud any particular person, State v. Terger, 86 Mo. 33 ; State ■». Phillips, 78 Mo. 49 ; State v. Scott, 48 Mo. 422.

— Hon. J. L. ■ Thomas, Judge. (1) The court did not err in restricting the number -of qualified jurors, from which the panel was to be selected, to twenty-four. The punishment for mayhem is not exceeding twenty-five years imprisonment in the penitentiary. R. S., sec. 1261. In felonies, where the maximum term of imprisonment is stated in the statute, the defendant is entitled to eight and the state to four' peremptory [challenges. R. S., secs. 1900 and 1902.

Louis Cotonty Circioit Court. — Hon. W. W. Edwards, Judge. (1) Upon argument and submission of the demurrer, it was not competent for the court to do more than pass upon the demurrer itself, either sustaining or overruling it.

ISrror to Scott Circuit Court. — Hon. J. D. Eosteií, Judge. The indictment is drawn upon section 1335, Revised Statutes.

Loicis Criminal Court. — TIon. Gf. S. Van Wagoner, Judge. (1) The court erred in allowing one Tracy to testify as to conversations with defendant concerning the ownership of the property alleged to have been stolen. State v. Turner, 76 Mo. 350; State v. Martin, 74 Mo. 549 ; State v. Beams, 71 Mo. 419 ; State v. King, 78 Mo. 555; State v. Cox, 67 Mo. 392. (2) The instruction as to an alibi was intended to mislead, and did mislead, the jury.

— Hon. Andrew Ellison, J udge. (1) The deed from the coal company to Tompkins expresses on its face the estate granted and the estate and privileges reserved. It reserves the coal and the right to mine and remove the same, and also to sink air shafts if necessary in working said coal. This is a limitation upon the nse of the surface to the uses specified. 2 Wait’s Actions & Defences, 676; Suffield v. Brown, 4 DeG., J. & S. 185; Johnson v. Jordan, 2 Met. 234.

— Hon. N. M. G-ivan, Judge. (1) The general denial of notice charged in the petition was insufficient to base the defence of innocent purchaser for value without notice upon. The charge should have been specially denied, and the answer affirmatively •alleged that he was such purchaser. Frost v. Beckman, 1 Johns. Ch. 288; Murray v. Ballou, 1 Johns. Ch. 566; Murray v. Finster, 2 Johns. Ch. 155; Jewellv. Palmer, 7 Johns. Ch. 65; Falsee v. Halsee, 8 Mo. 303.

— Hon. H. S. Kelley, Judge. To entitle appellant to a review of the testimony, the record should show that he made objections and saved exceptions to its admission or exclusion during the progress of the trial. This was not done. R. S., ■sec. 1921; State v. Bamsey, 82 Mo. 133; State v. Lett, 85 Mo. 52 ; State v. McDonald, 85 Mo. 539. The information is drawn upon section 5462, Revised Statutes, the offence having been committed prior to the amendment of said section in 1883.

— Hon. A. J. Seay, Judge. (1) In this case appellant filed an answer to respondent’s amended petition, to which answer respondent declined to reply. Upon the pleadings, then, the judgment should have been for appellant instead of respondent, if appellant’s answer stated facts sufficient to constitute a defence. R. S., sec. 3525.

- — Hour. T. A. Gill, Judge. (1) The great preponderance of the evidence in the case shows that the respondent refused to return the appellant’s securities of the value of ninety thousand dollars, when lawfully demanded, which securities were a pledge for the same debt herein sued for, to-wit, appellant’s note for $3,770.42, of which the note sued on for $5,305.37 is only a renewal. (2) The claims of appellant are matters of equitable setoff.

Louis City Circuit Court. — IIon. W. EL Horner, Judge. Held: that, in such cases, the instrument must be drawn so as to constitute an instrument, which, by the rules of the common law, would be sufficient to transfer the title of the former owner. Yankee v. Thompson, 51 Mo. 234 ; Einstein v. Gay, 45 Mo. 62 ; Blackwell on Tax Titles, sec. 5, p. 406.

<p>Practice : appeal, when dismissed. Where the record shows that no order, granting an appeal, was ever made, and that the affidavit for an appeal was not made until in vacation, after the adjournment of the term of court at which final judgment was entered, the cause will be stricken from the docket of the Supreme Court.</p>

— L. M. Lloyd, Esq., Special Judge. (1) The application for a change of venue, on account of the prejudice cf the judge, was not supported by affidavits, as required by law, and was properly overruled. R. S., sec. 1877. A change of trial judges, on account oí alleged prejudice, can only be made-by complying with, tlie provisions of section 1877, supra. State v. Brownfield, 83 Mo. 448. (2) The court did not err in refusing to permit appellant to withdraw his plea, of guilty.

— Hon. N. M. Gtvan, Judge. (1) Taxes shall be uniform upon the same class o^ subjects within the territorial limits of the authority-levying the taxes. Const, of Mo., art. 10, sec. 3. According to the agreed statement, it was a plain case of duplicate taxation. Cooley on Tax. 104. (2) The judicial power of the state, as to matters of law and equity, is vested in the ^Supreme Court, courts of appeal, criminal, probate, county, and municipal corporation courts.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) John Dwyer, as administrator of Margaret Dwyer, had no authority to sell the noté in controversy to the respondent, and his attempted sale passed no title. 1 Wagner’s Statutes, sec. 10; R. S., sec. 212; Wolff v. Berning, 74 Mo. 96. (2) As the respondent acquired no title to the note in controversy, and the agreed facts show that he converted it to his own use, the appellant is entitled to maintain the present action.

— Hon. F. M. ■ Black, Judge. (1) Taking the whole transaction together, it amounts to this substantially: To induce Poe to make a large subscription, nearly one-third of the capital stock, Coates agreed to take one hundred and ten shares of it at par, if Poe was unable to pay the balance of his subscription. Poe’s inability is shown beyond controversy and Coates’ liability is absolute.

.Appeal from St. Louis Criminal Court. — Hon. Gr. S. Yan Wagoner, Judge. (1) There is a fatal variance between the allegations in the indictment and the proof. The indictment does not state the name of the victim or person alleged to have been defrauded, or the name of the defendant. State v. Evers, 49 Mo. 542; State v. Boss, 25 Mo. 426; State v. McOhesney, 90 Mo. 120 ; State v. Eancher, 71 Mo. 461; Morton v. People, 47 111. 468.

Louis Criminal Court. — Hon. Gr. S. Yan Wagoner, Judge. It was error to permit the state to introduce in evidence the petition for divorce .filed by deceased against the defendant. Such evidence falls within that prohibited by our state constitution, and the numerous decisions construing the same.

<p>1. Administration: limitations : exhibition op demands. Under the statute, unmatured demands running to certain maturity are barred, unless they are exhibited to the administrator within two years after the publication of notice of the grant of letters,</p> <p>3. -: corporations : stockholders. The claim of a creditor ' of a corporation against a stockholder for unpaid stock matures on dissolution of the corporation, and must be exhibited within two years.</p> <p>8. --: -:--. The liability of a stockholder to a creditor of the corporation for unpaid stock becomes fixed by the insolvency and dissolution of the corporation, and then becomes a primary liability.*</p>

Louis City Circuit Court. — Hon. W. H. Horner, Judge. (1) The claim of Joseph Hunot was properly, in due time, filed before the board of commissioners, created by the act of March 2, 1805 (vol. 2, p. 325), as appears by the record of said board.

<p>1. Sheriff’s Deed: presumption : seal : acknowledgment : evideuce. A certificate of acknowledgment of the clerk of the circuit court, indorsed on a sheriff’s deed, stated that it was given under his hand and seal of office, and it was otherwise formal, except that the seal of the court was not attached to the certificate of acknowledgment, as should have been done. The deed was fifty years old, and the defendants, and those under whom they claimed, had been in possession of the land in suit for forty years. The certified copy of the deed offered in evidence was made ten years before suit was brought, and indicated that the record shows a seal. Held, that the court should have presumed that the clerk did’ attach the seal, and this, although the seal used by him was a metallic one, and although two expert witnesses gave it as their opinion that the seal was not attached.</p> <p>2. -: -. Presumptions are constantly made in support of the official acts of public officers.</p>

— Hon. Andrew Ellison, Judge. (1) The plaintiff in failing to register and record his mortgage was guilty of negligence so gross as to constitute fraud upon those subsequently dealing with and acquiring said property, and neither law nor equity will aid him as against such subsequent owners.

Louis City Circuit Court. — Hon. G.. W. Lubke, Judge. The plaintiff acquired a lien by virtue of the proceedings in garnishment. Renneker r. Laris, 10 Rich. Eq. 289; Wilder r. Weatherhead, 32 Yt. 765; In re Peck, 16 Nat. Bank Reg. 43. (1) The demurrer was properly sustained, and the judgment was right.

Court, — Hon. 0, H. S. Goodman, Judge. (1) The indictment is drawn under section 1309, Revised Statutes, and properly charges a larceny from a dwelling-house. Under this section the offence- is complete without reference to the value of the property stolen. State v. Kennedy, 88 Mo. 341, and cases cited. (2) The slightest removal, with intent to convert to the taker’s own use, is sufficient to constitute a larcenous caption and asportation within the meaning of the statute.

Louis City Circuit Court. — Hon. Amos M. Thayer, Judge. (1) It was error to permit tlie dismissal of the suit as to John P. Slevin, the principal in the bond, for the reasons : (a) That the execution must issue first against the property of the principal in the bond, and only against the surety in the event of there not being sufficient property of the principal whereon to levy the amount.

— Hon. Henry P. White, Judge. (1) What Agnes Wartz said at the grocery-store and saloon, an hour before the difficulty, was incompetent. It was not a part of the res gestae. (2) The attempts of the prosecuting attorney to impeach the witness, Russell, by asking him concerning his arrest about some affair with the girl, and the people rocking him out of that part of the town, were improper and should not have been allowed.

— Hon. B. E. Turner, Judge. Tlie instructions given by the court, and referred to in the opinion, were as follows: “1. The jury are instructed that the defendant is charged with murder in the first degree, and that, under the evidence in the case, it is their duty to find him guilty of murder in the first degree or to acquit him.” “6.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. A kusband is not entitled to curtesy in tke real estate of tke wife, conveyed to lier sole and separate use, witk power of disposal, where she has exercised the power,, and disposed of the estate, by deed or will. Oooper v. MacDonald, 7 Law Rep. (Ch. Div.) 288; 38 Law Times (N. S.) 191; 47 Law Journal (N. S.) Ch. Div. 373; Appleton r>. Rowley, 8 Law Rep. (Eg.

— Hon. E. L. Edwards, Judge. (1) The indictment is properly drawn under section 1250, Revised Statutes, defining manslaughter in the fourth degree. It was held in the State v. Embry, 78 Mo. 77, that the shooting of a human being unintentionally, but through negligence in handling a firearm, such as to indicate carelessness or recklessness, incompatible with a proper regard for human life, is manslaughter in the fourth degree.

M'ror to Cole Circuit Court. — Hon. E. L. Edwards, Judge. The indictment did not sufficiently allege that defendant was lawfully confined in the . penitentiary. It does not set out the full name of defendant. It was not sufficient to use the initials of his given name without giving any reason why the full name was omitted. (1) [a] The crime of a breach of prison was a felony at the common law.

H. S. Kelley, • n >; Judge. :i; The general denial, filed as answer, was no return to alternative writ granted. Demurrer ought to have been sustained, and peremptory writ awarded. R. S., sec. 3254. Until a proper return to alternative writ was made by defendants, and reply by plaintiff, there was and could be no issue for trial.

Louis City Circuit Court.) (1) The life tenant is bound to pay, in so far as the-income from the property will enable him to do so, first, all general taxes and rates imposed upon the property for the purposes of government revenue; and, second, all interest on encumbrances resting on the property. Johnson v. Smith, 5 Bush (Ky.) 102; Wade v. Malloy, 16 Hun (N. Y.) 226; Pierce v. Burroughs, 58 N. H. 802; Ciarle v. Middlesworth, 82 Ind. 240; Newby n. Brownlee, 23 Fed.

Louis Court of Appeals. (1) Defendants cannot object to a want of demand before snit, unless they set up such defence in their answers, and make a tender. E. S., secs, 1018, 1009 ; Battel v. Crawford, 59 Mo. 215 ; Baithel v. Lezetter, 43 Mo. 145 ; Hard v. Milligan, 72 N. Y. 427; Ludwig v. Meyer, 5 Watts & S. [Pa.] 435.

— Hon. Theo. Brace, Judge. (1) The plaintiff, a water-boy and. tool-keeper for the construction train, being subject to the hiring and -discharge of the foreman of said construction train, the said foreman was the vice-principal of the defendant, and the defendant is liable to plaintiff for injuries sustained by the negligence of said foreman. Brothers v. Cartier, 52 Mo. 372; Gormly v. Iron Worlcs, 61 Mo. 492; Whalen ».

<p>1. Ejectment: admissions in pleadings. A plaintiff in ejectment need not introduce in evidence the deeds constituting his chain of title where the same stand admitted on the pleadings.</p> <p>2. Practice in Supreme Court: objections to evidence. A party, on whose objection evidence has been excluded in the trial court, will, in the Supreme Court, be limited to the objection made in the lower court.</p>

Louis Criminal Court. — IIon. Gt. S. Yan Wagoner, Judge. (1) The indictment is fatally defective in that it does not conclude, “against the peace and dignity of the state,” as the constitution, expressly provides it shall. Const, of Mo., art. 6, sec. 38. (2) The indictment will not support 'a conviction for an assault with intent to kill, since it does not allege that the assault was made with intent to kill.

Loiois City Circuit Court. — Hon. Daniel Dillon, Judge. The decree should have been in favor of defendants, as, under the law, the will raised no trust in favor of either Paul or Sadie Noe. Corby v. Corby, 85 Mo. 371, 392, 393 ; Wright v. Adkins, 1 T. & R. 148; Wood v. Cox, 2 My. & Cr. 684; Webb v. Wolls, 2 Sim. [N. S.] 267; Knott v. Colton, 2 Phil. 192 ; Perry on Trusts, see. 116 ; 2 Story Eq.

Louis City Circuit Court. — Hon, Siiepaed Barclay, Judge. (1) [a] As to first count, tlie question of agency or purcliase should have been submitted to the jury. Clarice v. Ilammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 240; Paine v. Kohl, 14 Neb. 580; Moss v. Green, 41 Mo. 390; Philibert v. Burber, 4 Mo. App. 470.

Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The first instruction was fatally erroneous. By using the conjunctive “and” instead of the disjunctive “or,” as it appears in the statute, it assumes that it was incumbent upon the defendant, if he committed the abortion, to establish, not only that he acted by the advice of a physician, but also, and, in addition thereto, that it was necessary to preserve the mother’s life, and so the jury must have understood it.

— Hon. A. J.. Seay, Judge. (1) The suit for taxes due the town of' Hermann was properly brought by the collector in the name of the county. The legislature could change the mode of collection provided by the charter, and vest in the county collector the right to enforce the collection of the taxes. Dillon on Corp., sec. 30 ; Peoples. Morris, 13 Wend. 325; Bank v. Knoop, 16 How. [U. S.] 369; Sloan v. State, 8 Black! 361.

— Hon. Jos. P. G-bubb, Judge. (1) The court erred in refusing to require Mrs. Sidekum to submit to a physical examination by physicians and surgeons, upon proper conditions. Shepard v. Railroad, 85 Mo. 629; White v. Railroad, 20 Cent. Law Jour. 11; Hatfield r>. Railroad, 18 A. & E. Ry. Cases, 292 and note. (2) It was error to admit evidence to prove a bad condition of appellant’s track at other places than that of the accident.

Louis City Circioit Court. — Hon. A. M. Thayer, Judge. (1) The words, “taken or damaged,” employed in the constitution of 1875 (art. 11, sec. 21), do not give the persons whose property is taken or damaged any right of action which did not exist at common law, in cases where the work that wrought the injury was unauthorized by legislative enactment; or, to state the principle affirmatively, the word “damaged” gives to the party whose property is injured by authorized public…

<p>1. Confession of Judgment, Form of: statement. A statement intended to support a confession of judgment, which gives the amount due upon a bill of exchange and describes the saíne with great particularity, naming the drawer, drawee, payee, date of negotiation to the judgment creditor, and names the amount for which judgment may be entered, and gives authority to enter the same, is sufficient under Revised Statutes, section 3697, which provides that such statement must give the amount of the judg. ment, and if it be for money due or to become due, it must state concisely the facts out of which it arose.</p> <p>2. -: -. The statement as to the negotiation of the bill of exchange was a sufficient' averment that it was sold and delivered to the judgment creditor for the amount specified.</p> <p>C. -: -. The fact that a judgment was entered upon confession for the face value of a bill of exchange before its maturity, will not affect the validity of the judgment. This is authorized by the statute.</p>

<p>1. Practice: evidence: presumption. -It will be presumed that the action of the trial court in rejecting evidence was proper, where therb is nothing preserved in the record to show the contrary.</p> <p>3. -: -: damages. In an action for damages by a mother for the drowning of her son, it was not error to exclude evidence as to her financial condition, when she had already testified as to her circumstances and surroundings at the time of the accident.</p> <p>3.--: -:---. In an action for damages for the death of plaintiff’s son, based upon the alleged negligence of defendant, in not fencing on a line of his lot, which did not abut upon a street or highway, but on the private property of another, evidence of the impracticability of making such fence is admissible, as bearing upon tiie question of negligence, especially where the defendant had owned the lot but a short length of time.</p> <p>4. Land, Duty of Owner to Fence : negligence. An owner of land is under no obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public highway as to be dangerous, under ordinary circumstances, to persons passing upon the way, and using ordinary care to keep upon the proper path, in which case he must take reasonable precaution to prevent injuries happening therefrom to such persons.</p>

— I-Ion. J. R. Wood-side, Judge. (1) The judgment rendered by the justice of the peace, on which is based defendants’ claim of title in the proceeding to enforce the state’s lien for back taxes, is void, because said proceedings and judgment are against Henry Wheler and not Henry Whelen. The names Henry Wheler and Henry Whelen are not one and the same name. 55 Mo. 581.

— Hon. Theodore Brace, Judge. (1) The act of impelling a detached car over a thoroughfare crossing was, per se, quasi-criminal negligence. Brown *. New Yorlc, 32 N. Y. 597; 6 Am. and E. R. R. Cas. 125, foot.- And so likewise was the creation therein of a speed greater than the maximum prescribed by city ordinance; and the deceased being under no-duty to look out for such acts of negligence, could not be negligent in failing to discover same.

Louis City Circuit Court. — Hon., Si-iepard Barclay, Judge. (1) The court below erred in submitting to the jury and trying only one of the two issues raised and presented by the pleadings in the case. The petition states an action of ejectment. The answer sets up a general denial, and also an equitable defence, which raises a resulting trust in favor of defendant, as decided in Siébold v. Christman, 75 Mo. 308.

— Hon. N. M. Givan, Judge. (1) Tlie defendant’s demurrer to the evidence should have been sustained. There was no evidence of any negligence in causing the cars to collide with each other, nor any evidence that defendant, by any means or in any manner, caused the collision. (2) The court erred in giving plaintiff’s first instruction.

— Hon. N. M. Givan,, Judge. (1) The premises sued for constituted the homestead of James See, and his widow was entitled, after his death, and until her dower was assigned, to the possession of them, as against James See’s heirs and everyone else. Consequently, the statute of limitations did not begin to run until her death, which occurred in 1876.

— Hon. Silas Woodson, Judge. (1) The court erred in admitting any testimony in favor of plaintiffs. The petition upon its face showed that the only ground relied upon to make out the case of the plaintiffs was a sale of a tract of land in the state of Illinois, upon which there was a judgment lien and a warranty in the deed against incumbrances.

Quo Warranto. (1) Courts will take judicial notice of the population of cities as shown by census. State ex rel. t>. Herman, 75 Mo. 340 ; Bemne v. Ooolc, 84 111. 590; 1 Green! Evid., sec. 56. (2) Kansas City having a population of more than one hundred thousand inhabitants, the appointment of JohnC.

<p> Appeal from St. Louis Court of Ap>peals. </p>

Louis City Circuit Court. — How.. Shepard Barclay, Judge. (1) The source of the title of the city of St. Louis is the proceeding in partition. Unless the city has derived title from that proceeding, the city has no such title as will warrant a recovery in this suit. (2) [a] At the time this partition took place, the city of St. Louis did not embrace any of these lands within its charter limits.

— S. R. Beech, Esq., Special Judge. (1) The indictment is drawn under section 1445, Revised Statutes, making it a felony to furnish prisoners with implements for escape. It not only contains all that is required to properly charge the offence, under section 1445, supra, but sets out the particular felony each prisoner confined was charged with, and under what circumstances he was held.

Louis Court of Appeals. (1) H. Attaway was an incompetent witness. (2) The oral agreement set up by him was never made. Bat, if made, it was void. Atleev. Einlc, 75 Mo. 100; Oscarigon v. Arms Co., 103 U. S. 261; Meguire v. Corwin, 101 U. S. 107; Bliss v. Matteson, 45 N. Y. 22; Bollman v. Loomis, 41 Conn. 581; Cash v. Qerrish, 15 Pick. 49.

— Hon. N. M.. Gtvan, Judge. (1) Fraud need not be proved by positive evidence. Trivial facts and circumstances may afford satisfactory proof of fraudulent intent. Leavitt v. Laforce, 71 Mo. 253; Massey v. Young, 73 Mo. 260; Hopkins v. 8tewartr 58 Mo. 201; Burgerl v. Bor chert, 59 Mo. 80 ; King v. Moon, 42 Mo. 557; Frederick v. Allgaier, 88 Mo. 598.

Maoidamus. (1) The Supreme Court has power to issue writs of habeas corpus, mandamus, and other remedial writs, and to hear and determine same. Const. Mo., art. 6, sec. 3. And any judge of the court may issue it in vacation. R. S. 1879, sec. 3254. And the merits of the matter, and the grounds upon which the remedy is sought, must appear in the petition. State v, St. Louis' Circuit Court, 1 Mo. App. 543; State v. Governor, 39 Mo. 388.

— Hon. Gr. H. Burokharrt, Judge. (1) The capital stock of a bank includes its money and property, and is a trust fund for all creditors who may do business with such bank. See Angelí and Ames on Corp., sec. 600 ;.Tkomp. on Liability of Stockholders. The decisions of all the states are uniform on this question, and have been in American courts since 1824, when the law was first declared by Chief Justice Story.

Louis City Circuit Court. — Hon. A. M. Thayee, Judge. (1) The time for the payment of the price was, by mutual consent, extended until respondent should remove the defect in his title, or ax>pellant consent to take a warranty deed with such defect.

Mandamus. The order for alimony pending the appeal is for alimony from month to month, and is clearly erroneous. Under the unwritten law continuing alimony was only from year to year. 2 Bish. on Mar. & Div., sec. 427. .Under the statute alimony should be from year to year. The order in this case is a final one and one from which an appeal lies. R. S., sec. 3710; Hecht v. Heeht, 28 Ark. 92; Mitchell r>. Mitchell, 20 Kan. 665; Lewis v. Lewis, 20 Mo.

Louis Oily Circuit Court. — Hon, Amos M. Thayer, Judge. (1) A void judgment can cast no cloud upon title nor can a sheriff’s deed thereunder. Hence, if the tax-judgment, sale and deeds complained of are void, as in the bill alleged, plaintiffs were not entitled to a decree. Holland x. Johnson, 80 Mo. 34-39 ; Railroad x. Reynolds, 89 Mo. 146; Janey x. Spedden, 38 Mo. 396.

— Hon. Ben. Y. Alton, Judge. (1) Appellant’s objection to the introduction of any evidence should have been sustained. The plaintiff had already filed three petitions, and defendant did not waive its right to the objection by having filed its answer. Beardslee v. Morgner, 73 Mo. 23; Wait v. Van Allen, 22 N. Y. 319; Ward v. Pine, 50 Mo. 39 ; Lotman v. Barnett, 62 ■ Mo. 159; Fields v. Maloney, 78 Mo. 172.

— Hon. Ben. E. Turner, Judge. Tlie court gave the following instructions, asked by the state: “1.

Louis Oily Circuit Court. — Hon, W. H. Horner, Judge. (1) The plea is not a good defence in form or substance. 81. Louis Gas Light Co. v. City of St. Louis, 11 Mo. App. 55 ; affirmed, .84 Mo. 202; Moody v. Deutsch, 85 Mo. 237. (2) The plea is bad, in that it avers no facts to show that upon appeal a supersedeas was effected under United States statutes.

Louis Court of Appeals. (1) The Webb purchase money was assets of the estate for which the sureties are liable. Dix v. Morris, 1 Mo. App. 95 ; s. o., 66 Mo. 518 ; Campbell v. Johnson, 65 Mo. 439; Boyer v. Allen, 76 Mo. 498; 3 Jarman, on Wills [5 Am. Ed.] 427. (2) If the Webb purchase money was not assets of the estate, then the administrator has improperly received credit for $7,316.65, paid on account of the land sold to Webb, and to clear title to same.

— Hon. P. M. Black, Judge. (1) Plaintiff did not show title in himself. (2) Plaintiff did not show that he and defendant claimed under the same common source of title, to-wit, Pry P. McGee. The evidence shows that defendant claims under a Kansas City tax deed, and he who claims under such deed claims under no man.

— How. Gr. D. Burg-ess, Judge. (1) The demurrer admits the facts set up and pleaded in the answer or return of defendants to the alternative writ of mandamus. McKenzie r>. Matthews, 59 Mo. 99; Plant Seed Co. v. Michel Seed Co., 23 Mo. App. 579; State to use 'o. Finn, 19 Mo. App. 560.