Volume 95 — Missouri Reports

— Hon. G..IT Burokhartt, Judge. Execution sales of- land under the back-tax law of 1877 stand on the same ground as ordinary execution sales of land; and the purchaser acquires only the title or interest of the defendant in execution and nothing .more. Acts 1877, pp. 384-5-6-7, secs. 6, 7, 8; Watt v. Donnell, 80 Mo. 195; Vance v. Corrigan, 78 Mo. 94; Jasper Co. v. Wadlow, 82 Mo. 172-78 ; Caswell v. Gray, 85 Mo. 169 ; Payne «. Lott, 80 Mo. 676.

— Hon. Elijah . Robinson, Judge. (1) It has been said that “tenant in dower is so much favored as that it is the common by-word of the law that the law favors three things, life, liberty, and dower.” 1 Wash. Real Prop., sec. 147; Schouler Dom. Rel. 183. Limitation of actions is a statutory provision and should be closely construed. Unless the statute in specific terms limits the action for dower the courts will not presume such actions were intended to be barred.

— Hon. R. P. Owen, Judge. (1) It was error for the state to prove by the witness, Andrew Mizell, that Dixie Glover was dead, the indictment containing no such allegation. It is a fundamental principle in criminal trials, that the evidence ■should not proceed beyond the charge, and that every element entering into the charge, or which affects the punishment, must be clearly set forth in the indictment. Bill of Rights, sec. 22; 1 Bish. Crim. Proc.

— Hon. Theodore Brace, Judge. ' (1) If one partner pays the debts of his firm with his individual money or property, he to that extent becomes a creditor of his firm, and is entitled to be paid as such. Kendall v. Eider] 35 Barb. 100; Morris v. Morris, 4 Gfratt. 293; Aver ell v. Louclcs, 6 Barb. 477: Bisby v. Lawrence, 11 Paige, 387; Adams v. Sturgis, 55 111. 468.

Louis City Circuit Coiort. — How. G-. W. Ltjlkjí, Judge. (1) It is a settled rule of American as well as English law, that when the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift.

Louis City Circuit Cotort. — Hon. L. B. Valliant, Judge. (1) The law of 1857 is constitutional. It is the-exercise of the right of local option, a familiar • feature • in American law, and one the validity of which is not open to question. Looted s Appeal, 72 Pa. St. 491 Croesch v. State, 42 Ind. 547; Cooley Const. Lim. [5 Ed.], 147-8.

— Hon. E. L. Edwards, Judge. (1) The trial court erred in permitting the bank to enquire of the witness Reeves, whether any steps were taken by the assignors, two or three days after the assignment, to compromise, with their creditors. No-participation of the assignee in said compromise was shown. Crow v. Beardsley, 68 Mo. 435; Byrne v„ Becker, 42 Mo. 269 ; State v. Benoist, 37 Mo. 500 ; Gates v. Lebaume, 19 Mo. 25; JIarcourt v. Halcomb, 89 Ind„ 104.

<p>Appeal from Cooper Circuit Court. — IIon. E. L. Edwards, Judge.</p> <p>(1) Mrs. Harriet G. O’Bryan was incompetent as a witness. Holman v. Backus, 73 Mo. 49; Willis v. Gammill, 67 Mo. 730 ; Moore v. Wingate, 53 Mo. 398 ; Moore v. Moore, 51 Mo. 118. (2) Henry M. Thomson was not a competent witness. Hunifer v. Jecho, 87 Mo. 282 ; Bell v. Railroad, 86 Mo. 599 ; Wood v. Broadley, 76 Mo. 23; Joice «. Branson, 73 Mo. 28; Haerle v. KreMn, 65 Mo.' 202; Paul v. Leavitt, 53 Mo. 595. (3) The petitions in partition were competent evidence. Anderson v. McPihe, 86 Mo. 293 ; Dowzelot v. Rawlings, 58 Mo. 75. (4) The court erred in not permitting the witnesses to testify, who had been placed under the rule excluding the witnesses. Keith v. Wilson, 6 Mo. 435; Parher v. Me William, 6 Bing. 683; State v. Sparrow, 3 Murph. 487 ; State v. Br'oohshire, 2 Ala. 303. (5) The general reputation in the community, as to the ownership of the farm, was competent evidence. Gordon v. Ritenour, 87 Mo. 54; Conover v. Berdine, 69 Mo. 125; Dicker son v. Chrisman, 28 Mo. 134; Benoist v. Darby, 12 Mo. 196. (6) To establish a trust in lands, the evidence must be so cogent as to leave no room for doubt. Rogers v. Rogers, 87 Mo.' 257; Modrell v. Riddle, 82 Mo. 31; Forrester v. Moore, 77 Mo. 651; Kennedy v. Kennedy, 57 Mo. 73 ; Ringo v. Richardson, 53 Mo. 385; Forrester v. Scoville, 51 Mo, 268; Woodford v. Stephens, 51 Mo. 443 ; Johnson v. Quarles, 46 Mo. 423. And the same rule prev ails in cases of specific performance. Berry v. Hartzetl, 91 Mo. 132. (7) The' proof in this case consists of loose declarations of Henry Bell, deceased, and are entitled to but small weight. Modrell v. Riddle, 82 Mo. 31; Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 385; Hugus v. Walker, 12 Pa. St. 173; Dragoó v. Dragoo, 50 Mich. 573. (8) To take a case out of the statute of frauds, nothing is to be considered as a part performance which does not put the party in such a condition that a failure to perform would be a fraud on him. Dickerson v. Chrisman, 28 Mo. 134 ; White v. Watkins, 23 Mo. 423 ; Chambers v. Lecompte, 9 Mo. 575; Lodge v. Leverton, 42 Tex. 18; 3 Pom. Eq. Jur., sec. 1409; 1 Story Eq. Jur. [9 Ed.] secs. 759, 761; Fry. on Spec. Perf. [2 Am. Ed.] sec. 388; Lester v. Foxcroft, 1 Lead. Cas. in Eq. [3 Am. Ed.] 723. (9) There was no change in the condition in life of Noah Bell. West v. Bundy, 78 Mo. 407 ; Sitton v. Shipp, 65 Mo. 297. (10) The-evidence in this- cáse is not sufficient to support the decree. Dragoo v. Dragoo, 50 Mich. 573 ; Wright v. Wright, 31 Mich. 380; Foward v. Armstead, 12 Ala. 124; Echert v. Mace, 3 Pa: 364; Eason v. Eason, 61 Tex. 225; Waterman on Spec. Perf., sec. 285; Eugus v. Walker, 12 Pa. St. 173 ; Poorman v. Kilgore, 26 Pa. St. 365; Shell-hammer v. Asbaugh, 83 Pa. St. 24 ; Aclcerman v. Fisher, 57 Pa. St. 457; Moore v. Small, 19 Pa. St, 461; Jones v. Tyler, 6 Mich. 364.</p> <p>(1) The sole object of this suit was to have the dower of the widow of Noah Bell assigned. The prayer that the title should be vested in the heirs of Noah Bell was simply to have the record show to whom the land in controversy belonged — to remove the obstacles existing in the way of the relief sought. There was no misjoinder of causes of action. McClurg v. Phillips, 49 Mo. 315 ; Qrady v. McCorlde, 57 Mo. 172; State ex rel. v. Sappington, 64 Mo. 20; Hale v. Stuart, 76 Mo. 20; Savings Institution v. Cdllonious, 63 Mo. 290; Henderson v. Diclcey, 50 Mo. 161; Devorse v. Snider, 60 Mo. 235 ; Dameron v. Jamison, 4 Mo. App. 299 ; McOlothlin, Adrrlr, v. Hennery, 44 Mo. 350; 1 Story’s Eq. Jur. [12 Ed.) sec. 624, and notes; Smith v. Smith, 1 Wins. (N. C.) No. 2 Eq. 30. . (2) The plaintiff, Harriet G-. O’Bryan, was a competent witness. She was not “one of the original parties to the contract, or cause of action, in issue and on trial.” The parties to that contract were Noah D. Bell and Henry Bell, both now dead. This suit is between Harriet Gf. O’Bryan, as widow of Noah D. Bell, and the defendants as heirs of Henry Bell. Chapman v. Dougherty, 87 Mo. 617. She did not attempt “to testify to any admissions or conversations of her husband, whether made to herself or third persons.” She was a competent witness as to the matter about which she testified. Moore v. Wingate, 35 Mo. 398; Rude v. Ashbrook, 51 Mo. 539. (3) The defendant, Henry M. Thomson, was a competent witness. He had a substantial interest in the controversy as the husband of Clara B. Thomson, a co-defendant, who is an heir of Henry Bell and also of Noah Bell, and has an interest in said lands, in which her said husband by right of his marriage has also an interest. McKee v. Cottle, 6 Mo. App. 416; Steffen v. Bauer, 70 Mo. 399; Cooper v. Ord, 60 Mo. 420; Bledsue v. Simmons, 53 Mo. 305; Fugate d. Pierce, 49 Mo. 441; Wilson v. Garaghty, 70 Mo. 517; Kanaga n. Railroad, 76 Mo. 207; Stephens v. Hume, 25 Mo. 346 ; Steffen v. Bauer, 70 Mo. 405. Thomson is entitled to .curtesy in his wife’s.interest in said land, although she may never have had actual possession thereof. Reaume v. Chambers, 22 Mo. 36; Stephens v. Hume, 25 Mo. 349. (4) The evidence in this case clearly proves all of the allegations contained in plaintiffs’ petition, and entitles them to the relief asked. Anderson r>. Shockley, 82 Mo. 250; West n. Bundy, 78 Mo. 407; Halsa v. Halsa, 8 Mo. 303; Peters v. Jones, 35 Iowa, 512; Burkholder v. Ludlam, 30 Gfratt. (Ya.) 255; Hardesty v. Richardson, 44 Md. 617; Langston v. Bates, 84 111. 524; Story v. Black, 5 Montana, 26. The widow in suit for assignment of dower is not held to strict proof of her husband’s title. Gentry n. Wood-son, 10 Mo. 224; 1 Scribner on Bower, 237 ; 2 lb. 199. The plaintiffs’ case is made out with reasonable certainty which is all that is required. Any other degree of certainty in a case of this kind is unattainable. Neale Neale, 9 Wall. (U. S.) 1. (5) The removal of Noah Bell with his famity from Mississippi, where he was located, and where his wife’s family and friends resided, was a very great change in his condition, and was a sufficient consideration to support the promise of his father to ■ give him the land in controversy. HalsaHalsa, 8 Mo. 303; West »„ Bundy, 78 Mo. 407. (6)' The trial court committed no error in refusing to allow defendants’ witnesses, who had been excluded from the courtroom during the trial, and who had violated said rule, to testify. It was a matter of discretion with the court whether disobedient witnesses were examined or not. State v. Fitzsimmons, 30 Mo. 239; State -0. Hughes, 71 Mo. 633; Gfreenl. on Evid., sec. 432. (7) The general reputation in the community as to the ownership of the farm in controversy was incompetent evidence, and the trial court did not err in refusing to permit witnesses to testify to same.</p>

<p>.Larceny-: dwelling-house: statute. On a trial for larceny, the evidence showed that the defendant stole the prox>erty from a hotel kept by one O. ; that the hotel was owned by, and the license to keep the same was issued to, one D. ; that the room from which the in’operty was taken was the office of the hotel in which O. kept cigars, oranges, etc., for sale under a merchant’s license ; . held, that the larceny was committed in a dwelling-house within the meaning of Revised Statutes, section 1309.</p>

— Hon. Silas Woodson, Judge. (1) The statute as to the settling, signing, and sealing of bills of exception in civil cases (R. S., secs. 3635, 3643) is also applicable to criminal cases. R. S., sec, 1921.

Louis Criminal Court. — Hon. ITenby D. Laugiixin, Judge. (1) It was error to refuse a new trial on account of the separation of the jury. State v. Murray, 91 Mo. 95 ; State v. Collins, 81 Mo. 657. (2) The action of the judge of the nineteenth judicial circuit in sentencing appellant was coram non judice. High op, Extra. Leg. Rem. [2 Ed.] sec. 235; State v. Greenwade, 72 Mo. 303; State' v. Hayes, 81 Mo. 580; Cunningham v. Railroad, 61 Mo. 33; Haggard v. Railroad, 63 Mo. 302.

Louis Criminal Court. — Hon. James C. Nobmile, Judge. - (1) The law is well settled by numerous decisions, and has the support of the best jurists, that the defendant will not be guilty of murder, if the wound was not mortal, and that the maltreatment of the wound or the medicine administered to the patient and not the wound itself, was the causé of death. This proposition should have been presented to the jury.

Louis City Circuit Court. — ITon. W. IT.. Horner, Judge. (1) There is no proof adduced by plaintiff that defendant and others were copartners trading under the name and style of the Missouri Zinc Company, and as such liable for the debt sued for. (2) The Missouri Zinc Company was a lawfully organized corporation under the act of February 20, 1865 (Sess. Acts 1864-5, pp. 268, 269, 270), and its individual members are, therefore, not chargeable with its debts.

Louis City Circuit Court. — Hon. Geo. W. Lubke, Judge. (1) A garnishment proceeding cannot be used as a bill in equity for the purpose of setting aside a garnishment proceeding and of winding up a partnership estate and stating an account between them. Epstein v. Block, 10 Mo. App. 352; Birtwhistle v. Woodward, 17 Mo. App. 277.

.Appeal from St. Louis City Circuit Court. — IIon. ‘ Amos M. Tiiayer, Judge. , (1) The defence of the statute of limitations is waived by the answer, as inconsistent with the equitable defence and prayer for deed. Adair v. Adair, 78 Mo. 630, 635. (2) There cannot be color of title to land, except by deed or writing.

— Hon. M. G. McGregor, Judge. ■ (1) The instructions fully and clearly declared the law and were all that the evidence justified the court in giving. R. S., sec. 1374. (2) Where affidavits are filed for and against a motion for a new trial, the discretion of the trial court will not be interfered with unless defendant is prejudiced. State v. Griffith, 63 Mo. 545. (3) . Statutes prohibiting separating of jurors should be reasonably construed.

Louis City Circuit Court.. — Hon. Geo. W. Lubke, Judge. (1) Under the finding of facts by the court below, the deed of trust from the H. S. Palter Manufacturing Company to the plaintiff, as trustee for the Pifth National Bank, was fraudulent and void as against the appellants. Reed v. Pelletier, 28 Mo. 177; Weber v. Armstrong, 70 Mo. 217.

— Ros. R. P. Owen, Judge. (1) The inability to get Dr. McCowen created an emergency which called upon the agent to exercise his judgment as to the' necessity of procuring some other physician, which he did, and we have the right to assume he' used good, sound discretion in the employment of plaintiff — at least, the jury should have been allowed to passon that question. 1 Wait’s Actions and Defences, p. 232, sec. 12, and cases there cited; 2 Gf-reenl.

— TIon. I). P. Stratton, Judge. (1) The court below erred in giving instruction numbered two for the state. White x. Maxey, 64 Mo. 552.

— Hon. Elijah Robinson, Judge. (1) The court erred in sustaining the motion and setting aside the sale and cancelling defendant’s deed. The sheriff had full power and authority under the school fund mortgage, and the order of the county court, to levy upon, advertise, and sell the land set forth in the school fund mortgage. R. S., 1879, secs. 7113, 3310, 3307 ; Kelly v. Hurt, 61 Mo. 463 ; Hurt v. Kelly, 43 Mo. 238.

. J.. R_. Woodside, Judge.. (1) There is no evidence to show that' the defendant,, by act or word, sought, brought on, or voluntarily entered into, the difficulty which resulted in the death of deceased. • (2) The instructions based on the doctrine-of self-defence did not rightly state the' law. State v. Shultz, 24 Mo. 128 ; State v. Starr, 38 Mo. 270 ; State Brown, 63 Mo. 439 ; State v. Culler, 82 Mo. 138; Stale v. Partlow, 90 Mo. 608.

Louis City Circuit Court. — Hon. L. B. V allí ant, Judge. (1) The statutes require that the votes shall be counted, and that the certificate of election shall be given in accordance with the returns. Scheme and Charter, art. 2, sec. 18; Session Acts, 1881, p. 55, secs. 21, 22; Session Acts, 1883, p. 46, sec. 26. (2) Difference in name is prima-facie evidence of difference in person, and words readily distinguishable in sound are not idem sonans.

— Hon. C. C. Bland, Judge. An accessory before the fact is, under our statute, a principal. R. S., 1879, sec. 1649. One may be charged in one county of an indictment as a principal and in another as present, aiding and abetting. State v. Anderson,, 89 Mo. 312 ; State v. Miller, 67 Mo. 604.

— Hon. M. G. McGregor, Judge. (1) The indictment properly charges a felonious assault under section 1263, Revised Statutes. (2) No exceptions were saved at the time to the ruling of the trial court on the testimony, and it will not be reviewed here. State v. Burke, 89 Mo. 635; State v. McDonald, 85 Mo. 539. (3) The instructions given properly declared the law apiolicable to the case under the evidence. Instructions asked by the defendant were, therefore, properly refused.

— Hon. J. P0 Strother, Judge. (1) Appellant’s application for an order directing the plaintiff to be examined by medical experts was timely and reasonable and should have been sustained. Schroeder r. Railroad, 47 la. 379 ; White. v. Railroad, 61 Wis. 536 ; Hatfield v. Railroad, 33 Minn. 130; Railroad v. Thiol, 29 Kas. 466 ; Shepard v: Railroad, 85 Mo. 629. (2) The court committed, error in its rulings on the evidence, Mrs. Owens was not competent to testify as an expert.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in admitting evidence of the fact fhat loans were made in New Mexico at larger rates of interest than permitted by statute. (2) The removal of the funds of the ward’s estate is not a matter of strict' right, but one addressing itself solely and entirely to the sound discretion of the court. R. S., secs. 2597, 2598, 2609 ; Bari v. Dresser, 30 Ind. 11; Marts n. Brown, 56 Ind. 386.

Louis City Ciroibit Court. — Hon.. G-eorge W. Lubee, Judge. (1) Upon the question of damages or benefits done or accruing to real property by the opening or widening of streets expert testimony is competent. Eyermann v. Sheehan, 52 Mo. 221; Cantling v. Railroad, 54 Mo. 385 ; Hosher v. Railroad, 60 Mo. 303 ; Crow v. Peters, 63 Mo. 429; Tate o. Railroad, 64 Mo. 149; Brown ®.

Mandamus. (1) When the constitutionality of a statute is to be determined, resort should not be made to mere verbal criticisms, subtile distinctions, abstract reasoning, or nice differences in the meaning of words. It will be presumed to be constitutional till the contrary plainly appears, and it is only when it manifestly infringes some provision of the constitution that it can be declared void.

— Hon. M. Gr. McGregor, Judge. (1) Defendant’s motion to quash the indictment should have been sustained; the description of the money therein was not sufficient. State ®. Kroeger, 47 Mo. 530, and cases therein cited.

— Hon. E. L. Edwards, Judge. (1) The plaintiff is entitled to have the deeds of release cancelled and its lien against the land enforced. Wenger and the other creditors of Good having abandoned part of the agreement, it should be rescinded in toto. Life Ass’n v. Cravens, 60 Mo. 388; Estes v. Reynolds, 75 Mo. 563. (2) The creditors did not carry out the agreement.

— Hon. GK W. Dunn, Judge. (1) Tlie petition failed to state a cause of action in that it did not state that Wilmarth used the judgment in payment of his bid at the sale oí the land under the-execution. Hacker v. Brown, 81 Mo. 68. (2) The court erred in giving plaintiff’s instruction numbered one. There was no evidence on which to predicate it: There-was no evidence that “Wilmarth used the judgment in payment of his purchase” of the land at the execution-sale.

— Hon. J. P. Strother, Judge. (1) The case, as made by respondents, if sustained by evidence, is a resulting trust; and the law governing-resulting trusts must determine the rights of these parties. Jackson v. Wood, 88 Mo. 77 ; McNew v. Booth, 42 Mo. 192: .Faust v. Hass, 73 Pa. St. 295; Christy v. Sill, 95 Pa. St. 382; 1 Lomax Dig. 200; 2 Story’s Eq. [12 Ed.] sec. 1265.

Louis Court of Appeals. (1) The St. Louis court of appeals was clearly in error as to instruction number eight. (2) The modification of said instruction, as made by the trial court, was necessary to make it harmonize with instruction number two given for the plaintiff, which was the precise law.

— Hon. John Gr. Wear, Judge. . (1) It is well settled that where the intent with which an act is done is material, the defendant may testify as to the intent with which he did the act. State v. Palmer, 88 Mo. 568, 573; State v. Banks, 73 Mo. 592; Vansielcle v. Brown, 68 Mo. 634; State v. Tate, 12 Mo. App. 327; Thaeher v. Phinney, 7 Allen (Mass.) 146 ; Wharton on Crim. Evid., sec. 431; Thurston v. Cornell, 38 N. Y. 281, 287.

- — Hon. Joseph P. G-bubb, Judge. (1) Appellant having paid off the mortgage t© the St. Joseph Building Company at the request of respondent Lindsay, and pursuant to an express understanding with… Held: in equity, to relate back to its date which, is concurrent with the first act in the negotiation which led to its complete execution by delivery. Jaclcson v. Ramsey, 15 Am. Dec. 242, and note.

Lottis City Circuit Court. — Hon. Amos M. Thayer, Judge. (1) The court erred in overruling the demurrer to the evidence. There was a fatal variance between the allegations and the proof. Neilon v. Railroad, 85 Mo. 599. (2) The court erred in refusing to give the first instruction asked by defendant. Daubert v. Pickle, 4 Mo. App. 591; Hamilton n. Railroad, 4 Mo. App. 564 ; Wegerv.

— How. J. M. Davis,, • Judge. (1) The plaintiff, an employe of defendant, riding on a construction train across the bridge to and from his work, while so riding ivas an employe and not .a passenger.

Louis City Circuit Court. — ITon. Shepard-Barclay, Judge. (1) The court erred in refusing to instruct the jury as requested by defendant at the close of plaintiff’s case, as well as at the close of the defendant’s case, that plaintiff could not recover. Lenix x. Railroad, 76 Mo. 86; Brain x. Railroad, 10 Mo. App. 531; O'1 Bonnet x.' Railroad, 7 Mo.

Louis City Circuit Court'. — IIon. Shepard Barclay, Judge. (1) Plaintiff5 s testimony failed to make out a primafacie case. Under the allegations of the petition the demurrer to the evidence should have been sustained. Pine r>. Railroad, 88 Mo. 400;. Yarnall r. Railroad, 75 Mo. 583 ; Maker v. Railroad, 64 Mo. 267; Zimmerman r>. Railroad, 71 Mo. 477; Railroad v. Brinson, 10 Gfa. 207; Railroad v. Hall, 72 111. 222.

— Hon. H. S. ! Kelley, Judge. (1) There was not sufficient evidence in the circumstances of this case to prove the delivery of the deed. N or did the grantor, Maggie R. Scott, make it in the form in which it now appears and in which it was recorded. Under ordinary circumstances, after proof of the execution of a deed, the delivery will be presumed from the possession of it by 'the grantee. 2 Greenl. .Evid. [Redf. Ed.] sec. 297; Yarnall’s Adm’rv. Yarnall, 6 Mo. 326-9.

<p>Appeal fo'om Moniteau Circuit Court. — IIon. E. L. Edwards, Judge.</p> <p>(1) The court committed error in giving the fifth instruction asked by the state. Chaffee n. United Slates, 18 Wall. 516, 545; State v. Fowler, 52 Iowa, 103; People v. Coughlin, 32 N. W. Rep. 905; Nichols v. Winfrey, 79 Mo. 544; Jones v. State, 13 Tex. App. 1; State *. Wingo, 66 Mo. 181; Dubose v. State, 10 Tex. App. 230 ; Stokes v. People, 53 N. Y. 164; Commonwealth v. McEie, 1 Gray, 61; Stale v. Porter, 34 Iowa, 139 ; Rains v. Railroad, 71 Mo. 164, 169; Anderson v. McPike, 86 Mo. 293, 299 ; State x. Ellis, 74 Mo. 207, 219 ; Morgan v. Durfree, 69 Mo. 469; Goetz v. Railroad, 50 Mo..472 ;. State ». Simms, 68 Mo. 305; Singer Mfg Co. v. HudsonT 4 Mo. App. 145 ; State v. Foley, 12 Mo. App. 431; State v. McNally, 87 Mo. 644. (2) The court committed error in giving the fourth instruction for the state. Nichols x. Winfrey, 79 Mo. 544; State x. Palmer, 88 Mo. 568; Slate x. Sloan, 47 Mo. 604; Runyan x. State, 57 Ind. 80. (3) The eighth instruction for the state was erroneous. State x. Curtis, 70 Mo. 594, 598 ; State x. Seward, 42 Mo. 206; State x. Sands, 77 Mo. 118; State x. McNally, 87 Mo. 644; State x. Ellis, 74 Mo. 207, 219; Morgan x. Durfee, 69 Mo. 469 ; Rains x. Railroad, 71 Mo. 164; Stale x. Stewart, 29 Mo. 419. (4) The ninth instruction, under the evidence in this case, was misleading. It was-in conflict with the third instruction given for defendants. State x. Par flow, 90 Mo. 608. (5) The tenth instruction for the state ought not to have been given. It was directed against the defendant, Samuel Hickam, and prejudiced the jury against him. Such an instruction should not be given in ordinary jury trials, simply because of a conflict in the testimony. White x. Maxey, 64 Mo. 559; Bank x. Murdock, 62 Mo. 70; State x.. Palmer, 88 Mo. 568. (6) TJb.e court erred in refusing the fourth instruction asked by defendants.</p> <p>The trial court, at the instance of the state, gave ten instructions. The first is a formal instruction under the indictment, and prescribes the punishment provided for by section 1262, Revised Statutes. The second defines the technical words necessary to properly charge an assault under section 1262, Revised Statutes. The third explained to the jury that the actual perpetrator of the assault, and those present aiding, etc., were equally guilty, or all principals (R. S., secs. 1649,1655), and prescribed the punishment provided for by section 1263, Revised Statutes. The fourth explained the limit of self-defence, and correctly declared the law. The fifth is to the effect that if the jury believe that the defendant, Samuel Hickam, assaulted Davenport with a deadly weapon, the jury will find him (Hickam) guilty, unless he explains such assault to the satisfaction of the jury. The sixth is the usual instruction as to defendants testifying in their own behalf. State r. Jones, 86 Mo. 625; State v. Cook, 84 Mo. 40 ; State v. Wisdom, 84 Mo. 190; State v. McGinnis, 76 Mo. 328 ; State r>. Zorn, 71 Mo. 415. The seventh is as to reasonable doubt. State v. Payton, 90 Mo. 220. The eighth is as to the legal presumption arising from the use of a' deadly weapon. State v. Wisdom, 84 Mo. 188: State v. Dickson, 78 Mo. 440; Stale ». - Thomas, 78 Mo. 337 ; State ». Curtis, 70 Mo. 594. The ninth further defines and explains the doctrine of self-defence as a law of necessity. State v. Thomas, supra. The tenth tells the jury that if any witness has knowingly testified falsely they will disregard such witness’ testimony. This instruction was proper, and there was sufficient basis for its being given. State v. Palmer, 88 Mo. 472, and cases cited.</p>

Louis County Circuit Court. — Hon. WW. Edwakds, Judge. (1) The assessment or tax list, or books, must be authenticated. The assessment or listing is essential to the validity of a tax title.

Louis City Circuit Court. — ITon. Geo. W. Lubke, Judge. (1) The trust deed creating the trust out of which this note springs confers upon the trustees full power and authority in the trustees to change the character of the fund.

— Hon. John G. Wear, Judge. Section 1923, Revised Statutes, was intended to operate to discharge a defendant only where the state had shown laches for three successive terms after the finding of the indictment. State v. Huling, 21 Mo. 464, 471. The record does not show that the state was guilty of such laches as to authorize the trial court to sustain the motion to'discharge the defendant.

— Hon. W. I). Hubbard, Judge. The indictment is insufficient at common law, because it does not set forth with particularity the cheat, fraud, etc., practiced by defendant, and does not suf'fioiently inform him of the nature of the accusation • against him. State v. Hayward, 83 Mo. 299 ; State v. MeChesney, 90 Mo. 120. It does not set forth facts sufficient to bring the accused within the statutory provision.

— Hon. B. E. Turner, Judge. (1) Pretermitted heirs can sue by ejectment. McCouriney v. Mather, 47 Mo. 533; Pounds v. Dale, 48 Mo. 270; McCracken ®. McCracken, 67 Mo. 590. (2) As the defendants were in possession under their father until his death, and as they claimed title under a verbal contract or a will to Isaac after his death, they had no possession which could be considered as adverse to plaintiffs until after the death of their father in 1879.

— Hon. Silas Woodson, Judge. (1) The general statutes of this state (R. S., secs. '6060, 6061, 6062), making provision for the taxation of the amount of business done annually by foreign insurance companies, do not violate the constitution of the state (art. 10, sec. 4), requiring all property to be taxed in proportion to its value. The tax is not on property, but on the amount of premiums received for the privilege of doing business.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. ' (1) The court erred in admitting incompetent and illegal evidence offered by plaintiff. (2) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence offered at the close of plaintiff’s case. Moore v. Railroad, 85 Mo..588; Hoke v. Railroad, 88 Mo. 369 ; Railroad v. Smith, 9 Lea, 685 ; s. o., 15 Am. & Eng. Ry. Cas. 224; McQueen v. Railroad, 15 Am. & Eng. Ry.

— Hon. Gr. H. , Burckiiartt, Judge, (1) The answer to the amended interplea avers that at the time of the conveyance to Elisha Sexton and Bush, by the firm, of their stock in trade, etc., the firm was insolvent, and that such insolvency was known to the grantees ; and that the sale was made by the firm, and accepted by Elisha Sexton, in contemplation of such insolvency, and with the intention of' hindering, delaying, and defrauding, the other creditors of the firm in the…

— Hon. W. F. G-eig-eb, Judge. (1) A resulting trust requires no writing, but an express trust not put in writing is void, i. e., may not be proved. R. S., secs. 2511-12. (2) Two things are required to create a valid express trust: first, a consideration ; second, a written declaration of use in some form.

— How. H. P. ' White, Judge. The indictment under which the defendant was convicted charges him with “ obtaining of and from Mary Eskens and Peter Eskens her, his, and their property, to-wit, certain real and personal property.” There is no further description of the property charged to have been taken contained in the indictment.

— Hon. G. H. Burokhartt, Judge. (1) Defendants’ motion to require plaintiff to elect on which, count he would offer evidence on the trial should have been sustained. If plaintiff have any he has one complete cause of action. It consists in the fraud in deeding lands to his wife, no matter when, if sine© the date of his debts, or who were the grantors in the deeds, or how many. Laine v. Francis, 14 Mo.

Lotus Criminal Court. — Hon. Henry I). Laughlin, Judge. (1) A defendant may, at any time before lie announces ready for trial, withdraw Ms plea of not guilty and move to quash the indictment. Nicholls v. State, 2 South. [N. J.] 539 ; Commonwealth v. Chapman, 11 Cush. 422 ;■ Rex v. Heane, 4 B. & S. 433 ; Rex v. Wilson, 6 Q. B. 620 ; Rex v. James, 12 Cox C. C. 127.

— Hon. Gr. IL Burckiiartt, Judge. (1) The judgment should be reversed, and a new trial awarded, because of the separation of the jurors. R. S., secs. 1909, 1910, 1966 ; State v. Murray, 91 Mo. 95; State v. Collins, 81 Mo. 652; McLean v. Slate, 8 Mo. 153. This was the rule at common law. McCann v. State, 9 Sm. & M. 465 ; People v. Bachus, 5 Cal. 275 Wood v. State, 34 Ark. 341; Boioan v. State, 30 Wis. 129.

— Hon. J. H. Slover, Judge. (1) Under the allegations of the original and amended and supplemental petitions, a court of equity has jurisdiction to prevent the enforcement of the illegal ordinance of the City of Kansas for the paving of Grand avenue in said city, and injunction is the appropriate remedy. State v. Saline County Court, 51 Mo. 350; 1Yewmeyer v. Railroad, 52 Mo. 81;. Mathis v. Town, 62 Mo. 504 ; Ranney v. Bader, 67 Mo. 476; Baltimore v. Radecke, 49 Md. 247 ;.

Gross-Appeals from Livingston Circuit Court. — Hon. James L. Davis, Judge. (1) The plaintiff’s petition is defective in improperly joining different-grounds of action in the same count. (2) The plaintiff, in his second amended petition, states that the sale did not take place at the court-house door, or at the door of a building used as such, and was, therefore, void.

— Hon. E. L. Edwards, Judge. (1) The court erred in giving tbe fourth, instruction asked by the state. It does not follow that the defendant was guilty of murder because he voluntarily entered into the combat in which the deceased was killed. State n. Partlow, 90 Mo. 608; State n. Berkley, 92 Mo. 41. (2) The court erred in giving the sixth instruction for the state.

— Hon. C. C. Bland, Judge. The motion to quash the indictment and in arrest of judgment should have been sustained on the ground that nine different offences could not be charged in the same count in the indictment. Kelley’s Prac. 102, 105 ; 42 Ind. 240; 3 Greenl. Evid. [Redf. Ed.] p. 21, sec. 22.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The suit was properly brought by the receiver. He was still in office and authorized to maintain the suit. 13 Mo. App. 561; Railroad v. Railroad, 46 Yt. 795 ; Jay v. DeGroat, 17 Abb. Pr. 36, note; Johnson v. Beazley, 65 Mo. 250; Newman v. Mills, 1 Hogan, 291; Beverly v. Broolces, 4 Gfratt. 220; Whiteside v. Pendergrast, 2 Barb. Oh- 472; Davis v. Gray, 16 Wall. 203.

— Hon. John TL Ryland, Judge. ' (1) The court should have instructed on- a lower-grade of homicide than murder in the first degree?. State v. Robinson, 73 Mo. 306; State v. Edwards, 70 Mo. 480 ; State v. Curtis, 70 Mo. 594; State v. Anderson,. 86 Mo. 309.

— Hon. J. IT. Slover, Judge. (1) Tbe county court may lawfully and rightfully do whatever is necessary to carry out and execute the trusts reposed in it. Railroad n. Marion Co., 36 Mo. 303; Walker r. Linn Co., 72 Mo. 653; Linnmlle v. BoTianan, 60 Mo. 554; Boggs v. Co., 28 Mo. 586; Gammon v. Co., 79 Mo. 223. (2) The county court has the authority to acquire land for the use of the county. R. S., sec. 1199.

— How. James B. Gantt, Judge. (1) The circuit court of Bates county is a court of general jurisdiction, and its decree cannot be attacked collaterally by a stranger under any circumstances. The decree recited and found its jurisdiction over the parties to it and of the subject-matter of the action, and such finding is conclusive in this case.

— Hon. W. I. Wallace, Judge. - (1) The demurrer interposed by the defendant to the evidence offered by the state should have been sustained. There was a total failure of evidence. It completely fails to support the verdict, so that the necessary inference is, that the jury acted from prejudice or partiality.

Louis City Circuit Court. — I-Ion. Amos M. Thayer, Judge. (1) The mere fact that plaintiff’s title is imperfect debars him from the remedy sought in this case, (a) The bargain was in fact made upon the basis of perfect title in the respondent.

Louis County Circuit Court. — TIon. W. W. Edwards, Judge. (1) In actions of ejectment, the plaintiff’s right of recovery is limited to the amount of property shown to ■be in the actual possession of the defendant.

— Hon. W. H. Letci-ier, Special Judge. Though, a landlord may be joined as a party defendant in an action of ejectment, the suit must also be brought against the actual occupant. Sibtton n. Caselleggi, 77 Mo. 407; Smith n. Benson, 9 Yert. 139; Ins. Co. v. Cummings, 90 Mo. 267; Clarlcson n. Stanchfleld, 57 Mo. 573.

Louis Court of Criminal Correction. Hon. E. A. Noonan, Judge. (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 of taxation. City ®. Ins. Co., 47 Mo. 150; City v. LaugTilin, 49 Mo. 559; Ins. Co. ». City, 66 Mo. 675. (2) The city charter of St. Louis does not authorize the taxation of a meat-shopman or butcher.

Louis City Circuit Court. — Hon.. Gr. W. Ltjbke, Judge. No demand was necessary in this case. It was- a suit in the circuit court where the pleadings were all required to be in writing. It was not set up by way of defence in the answer to plaintiff’s petition that no demand had been made. It was necessary that this should be done before the defendant could avail herself of the objection that no demand had been made. R. S., sec. 1018.

N. M. Q-ivan, J udge. (1) A married woman cannot make a valid contract for the conveyance of her title to real estate owned and held as her “ ordinary legal estate.” Hence, all testimony of defendant Dyer, and admissions in relation to snch contract, should have been excluded under the pleadings.

— IIon. John L. Thomas, Judge. The general statement that one not in possession cannot bring a bill in equity to remove a cloud from his title is too broad. This is doubtless the rule in cases when the complainant has the legal title, but when he has only an equitable title, and the legal title is in the defendant, the rule does not apply. In that case the complainant cannot sue at law because he has no legal title, and hence can only assert his right in a court of equity.

Louis Criminal Court. — lion. J. O'. Noemile, Judge. (1) The trial court committed no error in directing the sheriff to fill the panel by calling other jurors of the regular venire in the place of the absentees. It appears from the bill of exceptions that the two jurors thus ■ called were in every way qualified to sit in the cause— defendant did not challenge them, either peremptorily or for cause.

— Hon. J. P. Hale, Judge. -“For county purposes the annual rate on property, in counties having six million dollars or less, shall not, in the aggregate, exceed fifty cents on the one hundred dollars valuation; said restrictions, as to rates, shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now (then) existing, or bonds which may be issued in renewal of such indebtedness.” Const. 1875, sec. 11, art. 10.

—How. E. L. Edwards, Judge. (1) The court erred in refusing instruction number one, asked by defendant. Taylor v. Zepp, 14 Mo. 487. (2) The court also erred in refusing instruction number three, as asked by defendant. Blair v. Smith, 16 Mo. 281. (3) Defendant’s instruction, number eight, was improperly refused. Turner r>.

Louis City Circuit Court.— IIon. E. 13. Adams, Judge. (1) Appellant was qualified to fill the position of justice of the peace for the fifth district of the city of St. Louis at the date of his appointment; and in any event the trial court erred in attempting to pass upon the question of his title in this proceeding. R. S., 1879, secs. 2806, 2810, 3098; Hunter v. Chandler, 45 Mo. 452; State ex rel. v. John, 81 Mo. 13.

— Hon. C. W. Sloan, Judge. (1) The court erred in admitting the verbal evidence of J. W. Ruthven, foreman of the penitentiary, wha testified that defendant had been sent to the penitentiary from Vernon county under the name of Richard Clark, to his escape from the penitentiary, and his identity, which are all matters of record. Blondeau v. B7ieridanT 81 Mo. 545; R. S., secs. 6508, 6509.

— Hon. J. M.. Davis, Judge. (1) The law is well settled that a parol partition of lands by tenants in common, followed by exclusive, notorious, and adverse possession, is valid and binding between the parties, and title thus acquired is a legal and valid title.

— Hon. B. E. Turner, Judge. (1) The court improperly allowed witness Robert M. Wallace to testify against the facts to which he certified as notary public in his certificate of acknowledgment of the defendant Susan to the deed of trust given by defendants to Joseph J. Benson to secure the indebtedness of said Thomas Pryce to plaintiff on the town lots sued for, with other lands, against the objections of plaintiff. Such testimony is contrary to public policy.

Louis Criminal Court. — Hon. James-C. Nórmele, Judge. The presumption arising from possession of recently stolen property can be rebutted otherwise than by accounting for such possession. The defence made by appellant was alibi. Absence from the scene of the crime renders the commission of it impossible, but does not explain the possession of the fruits of the crime.

Louis Court of Criminal Correction. Hon. E. A. Noonan, Judge. (1) The offence charged is one cognizable under the laws of the state of Missouri. R. S., secs. 1374-5, 1609. (2) The city ordinance has no charter power to sustain it. (3) An offence punishable under the laws of the state cannot be made punishable under the ordinances of a municipality, unless clear and express authority to that effect is given, not in conflict with the constitution and laws of the state.

— Hon. Rudoplh Hirzel, Judge. (1) That part of Hartley’s testimony in wMcli lie says defendant admitted that he committed another crime in Ohio is inadmissible. To be admissible it must be a confession or part of the res gestae. It is not a confession. A confession must acknowledge doing some act which is a material fact in the criminal transaction on trial. Gabriel n. State, 40 Ala. 357 ; People v. • Williams, 2 Abb. App. Dec. (N. Y.) 596.

— Hon. E. M. Black, Judge. (1) A letter-press copy of a paper, being secondary evidence, is inadmissible in evidence. Chapen v. Siger, 4 McLean, 378 ; Foot v. Bently, 44 N. Y. 171; Ritchie v. Kinney, 46 Mo. 298; Blondeau, v. Sheridan, 81 Mo. 545. (2) A master, if otherwise without fault, is not responsible to a servant for the negligence of a fellow-servant.