Volume 96 — Missouri Reports

Mandamus. (1) The registration books and registration lists of the voters of St. Louis, being required by law to be made up and kept, are public documents. State ex rel. v. HoblitzeTle, 85 Mo. 620 ; 1 Rap. & Lawr. Law Die. “Documents,” 406; 1 Whart. Ev., secs. 640, 642 ; 1 Best Ev. [Ed. 1875] 407. (2) Documents of a public nature are open to the inspection (a) of every citizen.

— Hon. Elijah Robinson, Judge. Plaintiff’s title rests exclusively upon the fact that the lots in'question were conveyed by John F. Turner on the fifth day of June, 1861, to his wife, Sarah Ann Turner, and that she died intestate without ever having made a valid conveyance of her title to any one. Upon the face of this whole case it is apparent that this was a family arrangement growing out of the peculiar condition of the country and the times.

— Hon. Gr. H. Burgess, Judge. (1) The constitution of Missouri of 1865 and the general laws passed pursuant thereto authorized the making of the contract of subscription, provided two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, should assent thereto. Const. 1865, sec. 14, art. 11 ; 1 Wag. Stat., sec. 17, art. 11. And mandamus is the proper remedy to enforce contracts made thereunder. 1 Wag.

— Hon. G. W. Dunn, Judge. (1) There is no pretense that an effort was made at any time to agree with appellant for a relinquishment of' the right of way. This was a jurisdictional fact which should at least have been alleged in the report of the road commissioner; and in the absence of such allegation the county court liad no jurisdiction to appoint a jury to assess the damages, nor to make the order establishing the road.

Habeas corpus. (1) The provisions of this act contravene section twenty-five, article two, of the bill of rights of the state of Missouri, which provides “that excessive bail shall not be required… Held: that a fine of two thousand dollars and imprisonment for thirty days and thereafter, until the fine and costs are paid, is not excessive punishment.” Cooley’s Const. Lim. (2 Ed.) 328-330.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. A municipal corporation is not liable ior negligence in the performance of a public duty cast upon it by a general law. Hill v. Boston, 122 Mass. 344; Eastman v. Meredith, 36 N. H. 284; Bigelow v. Randolph, 14 Gray, 541; County v. Mighel, 7 Ohio St. 109; Swineford v. County, 73 Mo. 279 ; Armstrong ?;. Brunswick, 79 Mo. 319.

Prohibition. The supersedeas in this case, which was a chancery-suit, has the effect, under the statutes of Missouri, of removing the whole case to the supreme court for a trial de novo upon the testimony taken below. It leaves the judgment of the court below in full force except that no proceeding can be had under it. See R. S., secs. 3713, 3717, 3718, 3728, 3776 ; Banlc v. Lewis, 76 Mo. 370 ; 2 Story’s Eq. Jur. 58 ; City v. Gas.

Mandamus. (1) If inspections are only to be made of oils contained in wooden barrels, or packages of similar construction, and only such barrels and packages are to be gauged and branded, then, under the law, it is illegal to sell the oils in or from other kinds of packages. There is nothing in the statute to indicate such intention.

— Hon. G-. D. Burgess, Judge. (1) The plaintiff’s declaration• of law number one should have been given. ■ Plaintiff’s evidence and the agreed statement shows that plaintiff had made out a prima-facie case, and defendant’s defense and evidence were immaterial and constituted no defense thereto. Acts 1867, sec. 8, p. 162 ; R. S., 1879, sec. 6832 ;• State ex rel. v. Harper, 83 Mo. 670.

— Hon. J. D. Poster, Judge. (1) The respondents, as city officers, had the exclusive power to grant appellants a license to operate a ferry. Laws 1872, p. 834, sec. 39. (2) Where the power of granting a license is conferred upon particular ^officers, and they refuse to grant the same, the writ of mandamus will go. High’s Extra. Leg. Rem. [2 Ed.] *70, 71; People v. Perry, 13 Barb. 206.

— TIon. J. P. Strother, Judge. (1) Whatever defense a defendant intends relying on, he must set out in his answer. Kersey v. Carton, 77 Mo. 645 ; Korthrup v. Mississippi, 47 Mo. 435 ; Bliss on Code Pleading, sec. 352. The court, therefore, committed error in refusing to give instructions numbered six, seven, eight, nine and ten, as asked by plaintiff. (2) The court also erred in giving instruction number one for defendant.

Louis City Circuit Court. — IIon. W. TI. Hornee, Judge. (1) The motion in arrest of judgment should have been sustained, as the petition does not state facts sufficient to constitute a cause of action. Stewart v. Railroad, 14 A. & E. R. R. Cas. 679 ; Bell v. Railroad, 72 Mo. 50; Cooley on Torts, 606. (2) The demurrer to the evidence should have been sustained.

Louis City Circuit Court. — Hon. Elmer 13. Adams, Judge.J (1) The circuit court erred in taking the case from the jury. The evidence of plaintiff tends to sustain the cause of action alleged in the petition. (2) If it be held that, as to this case, White was a fellow-servant with plaintiff, there was evidence tending to show that he was ignorant and incompetent for the work of blasting assigned him, and in doing which he hurt the plaintiff.

Louis Gity Circuit Court. — TIcxn. A. M. Tiiayer, Judge. (1) Section 253, Revised Statutes, does not apply. Provision for refunding is there made only in cases where legacies or distributions have been paid. (2) The petition shows that all of 'the defendants are non-residents. The ten days notice, provided for in section 254, Revised Statutes, even if the probate court has jurisdiction, could not be given. Such a notice sent to another state is good for nothing.

Habeas Corpus. (1) The petitioner was first sentenced in case number 1307, the last one in which he was convicted, and then sentenced in the other two cases. The statute (R. S.! sec. 1659) was not followed, and the sentences, so far as’ they are successive ones, are illegal, as declared in Ex parte Meyers, 44 Mo. 279.

— Hon. J. E. ■ Ryland, Judge. (1) Unless Graham was eligible to the office of city engineer, his offer to bribe Rickman to appoint him to it could have effected nothing, and so there could have been no mischief. The indictment charged no offense. State v. Busier, 90 Mo. 514; Wharton’s C. L. [7 Ed.] sec. 2686.

— Hon. M. Gr. McGtKegob, Judge. “ If the tax be paid before the sale, the lien of the state is discharged, and the right to sell no longer exists. When the owner has performed all his duties to the government, no court would sanction, under any circumstances, the forfeiture of his rights of property.” Black.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) When the relator was appointed administrator of the firm of Hill & Brown and took charge of the property in controversy as owner, exercising acts of dominion over it, the title vested in him by relation from the time of their delivery, on the principle of ratification. 1 Will.

— Hon. John P. Strother, Judge. (1) It was error to sustain tlie plaintiff’s motion for judgment on tbe answer. The answer set up a good defense to plaintiff’s petition. (2) The wages were exempt, under either Revised Statutes, section 2346, or section 2519. State v. Bearner, 73 Mo. 37. (3) It was the duty of the constable to protect the exemption rights of the defendant Mitchell, both as to property levied upon and debt garnished.

— Hon. W. H. Brownlee, Special Judge. (1) Neither Cummins nor the defendant who claims under him can question the validity of the conveyance from Cummins and wife to Crampton, and from Cramp-ton to Eliza Cummins, on the ground of fraud or want of consideration. As to them these conveyances are valid. Jacobs s. Smith, 89 Mo. 673; Larimore s. Tyler, 88 Mo. 661, 668 ; Bump on Fraud. Conv. 444, 446, 533.

Prohibition. The case is within the jurisdiction of the supreme court. Moshier n. S hear, 100 111. 469; Capen v. Desteiger, 105 111. 190. The rule announced in the case of Kerr v. Simmonds, 82 Mo. 269, is more favorable to respondents than to appellant, for by an inspection of the whole case, it will appear that the matter in dispute is the item of $3446.75. The other cases cited by appellant are without application.

Louis Court of Appeals. (1) A purchase made of property actually in litigation, pendente lite, for a valuable consideration, and without any express or implied notice of the suit, affects the purchaser in the same manner as if he had notice; and he will be bound by the decree in the suit. The alienee comes before the court in exactly the same plight as the former party. Story Eq. Plead., pars. 353,156, 342, 343 ; Milford & Ty.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The relation was good as against the several causes alleged in the demurrer of defendant, and the demurrer should have been overruled, and the judgment thereon should not have been for the defendant but for the plaintiff.

— How. W. P. Geiger, Judge. The transcript discloses no ruling as to the evidence prejudicial to defendant. Errors not prejudicial will not warrant reversal. State v. O' Qorman, 68 Mo. 179. The instructions given by the court fairly and fully presented the law of the case under the evidence, and instructions asked by defendant were therefore properly refused. State v. Smith, 80 Mo. 516.

— Hon. W. P. Geiger, Judge. The petition does not state a cause of action in that it fails to allege that defendant had notice of the obstruction that caused the injury, or to allege facts or circumstances from which notice might be legally inferred. Weightman v. Corporation, 1 Black, 52; Turner v. City, 97 Ind. 51, reported in 7 Am. and Eng. Corp. Oases, and authorities cited in note to that case, p. 162. The defective petition is not cured by the verdict and judgment.

Louis City Circuit Court. — Hon. 6r. W. Lubke, Judge. ■ (1) Article 2 of the corporation law is a part of the charter of the St. Lonis County Railroad, as much so, in fact, as if all its provisions were incorporated in its articles of association. 1 Wag. Stat., sec. 1, p. 296 ; R. S. 1879, secs. 764, 824.

<p>Appeal from Knox Circuit Court.- — Hon. B. E. Turner, Judge.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Upon the evidence the plaintiff failed to show title as against the defendant and the court should have given the instruction asked by defendant.

<p>Injunction: collection of notes : restraining enforcement of DEED OF TRUST: APPELLATE JURISDICTION. The Supreme Court has no appellate jurisdiction in a suit to enjoin the collection of promissory notes and restrain the enforcement of a deed of trust securing the same, where the amount in dispute does not exceed twenty-five hundred dollars; title to real estate is not involved in the determination of the cause.</p>

Louis Gity Girouit Court. — Hon. A. M. Thayer, Judge. The plaintiff was entitled to a verdict upon the pleadings and evidence. The verdict against him should have been set aside as against the evidence and the law as declared by the court. Lionberger v. Pohlman, 16 Mo. App. 392; Whitsett v. Pans on, 79 Mo. 258; Bpohn v. Railroad, 87 Mo. 74 ; Garrett v. Greenwell, 92 Mo. 120.

The demurrer should have been sustained and the bill dismissed. It was the duty of the defendant below under Revised Statutes, section 5626, to collect all fees due the clerk by whomsoever and whensoever earned, and to report such collections to the county court in ■which is vested supervisory power over the trust.

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

— Hon. John E. Ryland, Judge. (1) The evidence offered by the state showed that the killing of Dodson by defendant was in defense of defendant’s person from an assault made upon and danger threatened to defendant by one Dick Green, while deceased was holding defendant; and it was the duty of the court to have directed the jury, at the close of the state’s evidence, to return a verdict of not guilty, as requested by defendant.

— Hon. Q-. W. Dunn, J udge. (1) The demurrer to the evidence should have been sustained. The risk to plaintiff was an obvious one. Keegan v, Cavanaugh, 62 Mo. 232; McDermott v. Railroad, 87 Mo. 285; Klynnv. Railroad, 78 Mo. 195 ; Porter v. Railroad, 71 Mo. 67 ; Dowling v. Allen, 88 Mo. 293. (2) All the testimony shows plaintiff was guilty of such negligence as to preclude his recovery.

Louis City Circuit Court. — IIon. A. M. Tiiater, Judge. (1) A judgment is a lien on property fraudulently conveyed prior to its rendition. In most states where such property can be levied upon and sold under execution it is so held and the weight of authority establishes this view. Bump on Fraud. Con. [3 Ed.] 474.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. , (1) The widow is entitled to have such part of the lands set out to her as dower as will produce an income equal to one-third part of the income which the whole estate would produce if no improvements had been made upon it since it was conveyed by the husband.

Chas. Gr, Burton, Judge. The defendant is in the same position as if the land had belonged to some other person. Bonghan bought it to keep it from falling into some one’s hands who would have acquired a good title as against defendant. It makes no difference that there was only the costs of the tax suit against the land. He was required to ratify Boughan’s act within a reasonable time after being notified of the purchase in order to recover it back.

— Trial before Hon. C. C. Bland, Judge of the Eighteenth Judicial Circuit. The errors complained of are : (1) The re-investure of jurisdiction by Judge Wallace after jurisdiction had passed from him by order of court, changing th# venue to Judge Bland: (a) In receiving and permitting to be filed a second indictment for the same offense, after he had granted defendant a change of venue.

— Hon. Elijah Robinson, Judge. (1) The lease in litigation is binding on the plaintiffs, notwithstanding the lessee was a married woman. Lloyd n. Underkofler, 13 Phila. 160;'Woodfall’s Land, and Ten. 71; 1 Taylor on Land, and Ten. (8 Ed.) secs. 105, 107 ; 1 Bishop on Married Women (1 Ed.) sec. 530, p. 364, note 2. (2) There is no such idadequacy of consideration as will, in the absence of imposition or undue influence, warrant the cancellation of the lease.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) There is a fatal variance between the allegations of the petition and the proof. WaldMer v. Railroad, 71 Mo. 514 ; Schneider v. Railroad, 75 Mo. 295. (2) The demurrer to the evidence should have been sustained. The court erred in refusing to give the instruction asked at the close of plaintiff’s case, to the effect that on the evidence under the pleadings plaintiff could not recover.

— Hon. W. P. Geig-eb, Judge. (1) The only restitution to which John P. and Delila A. Cates, defendants in Oreen v. Cates, 73 Mo. 115, were entitled upon the reversal of the judgment was of so much of the land in controversy in that suit as still remained, at the date of reversal, in the possession of Nancy M. Green. Qott v. Powell, 41 Mo. 416.

WoodsidEj Judge. -Hon. J. B. (1) The deceased was a trespasser, or was at least where he had no right to be, and there is no evidence that any agent, servant or employe of defendant saw the boy at all or knew that he was in any danger. 'Halligan v. Railroad, 71 Mo. 113; Henry v. Railroad, 76 Mo. 288; McAlister «. Railroad, 19 A. & E. R. R. Cas. 108 ; Schlefflin v. Railroad, 19 A. & E. R. R. Cas. 173 ; Duff v. Railroad, 2 A. .

— EEon. T. A. Gill, Judge. A reversal of this judgment is asked because of the refusal of the court to give the instructions asked by defendant, for its refusal to grant a new trial, and because the verdict and judgment are so grossly against the weight of evidence as to shock the moral sense and to show that the court below could not have come to the conclusion except from oversight, partiality or prejudice.

<p>1. Demurrer to Evidence : dependant’s evidence. A defendant, by introducing its evidence after its demurrer to plaintiff’s evidence has been overruled, takes the chances of supplying any defect in plaintiff’s case.</p> <p>g.--:--. It does not, however, entirely waive the right of having the ruling of the trial court reviewed, as the supreme court on appeal will review all the evidence in the case and determine it therefrom.</p> <p>3. Practice of Supreme Court : conflicting evidence. . The supreme court will not determine disputed questions of fact on conflicting evidence; that is a matter for the trier of the facts.</p> <p>4. Negligence : railroad : city ordinance. A violation of a city ordinance by a railroad is negligence per se.</p> <p>5. --:--- :-: presumption. Persons on a public street in a municipality have the right to presume that the railroad will obey the municipal ordinances regulating the speed and management of trains, and have the right to act on such presumption.</p> <p>6. --: boy. The care required of a boy is that which may be fairly and reasonably expected from one of his age and capacity, and whether he did use such care is a question for the jury.</p> <p>7. --: ---: instruction. A boy between eleven and twelve years of age was killed while coasting by colliding with defendant’s train on a public street in the city of St. Louis. The court instructed that if the deceased did not possess the discretion of an adult, at the time of the accident, the jury should consider the fact in determining whether or not he was guilty of contributory negligence. Held error.</p> <p>8. -:--:--. The instruction should have further told the jury that the deceased was required to use the care and caution which might be expected of one of his age.</p> <p>9. -:-:-. An instruction in a case like this is properly refused which directs the jury that unless the company’s seiwants failed to make use of the means and appliances in thsir power to avert the accident after they became aware of the danger of deceased, the finding should be for the defendant.</p> <p>10. -:-:-. Such instruction is proper whei'e the person injured is a trespasser on a railroad track and the circumstances are such that the company has both the right to have and the right to expect a clear track.</p> <p>11. Railroad : public streets : mutual duty op company and traveler. Where both the railroad and the public have a right to use the street, the duty of the company to look out for persons on the track is just as great as the duty of a traveler to look out for the trains ; the difference being that an individual must give way to a train which, in the nature of things, cannot be stopped instantly.</p>

<p>Criminal Practice: continuance. The state cannot deprive a defendant of her right to a continuance, by consenting that she may read on the trial the matter set out in the affidavit for continuance as the testimony of the absent witness. (State v. Berkley, 93 Mo. 41, affirmed).</p>

Louis City Circuit Court. — Hon. W. • H. Horner, Judge. (1) The motion in arrest of judgment should have been sustained. The petition does not state a cause of action. Snyder v. Railroad, 60 Mo. 419; Cousins v. Railroad, 66 Mo. 576; Flower n. Railroad, 69 Pa. St. 210; Welden v. Railroad, 5‘ Bosw. 576; Mitchell v. Crassweller, 13 C. B. 237; Shearman and Bedf. on Neg., sec. 63 ; Qarretzen v. Duenekel, 50 Mo.

— Hon. E. L. Edwards, Judge. (1) The lower court should have sustained motion of plaintiff in error, that the .mistake as to the revival of the cause against Hannah Kiso as executrix be corrected, and that she, as administratrix of John C. Kiso, be substituted as a party, and that the cause be revived against her as said administratrix. Williams v. Englebrecht, 38 Ohio St. 97;, Black v. Hill, 29 Ohio St. 88; 2 Tidd’s Pra'c. 1163 ; R. S. secs. 3766, 3767.

— Hon. Noah M. Gtivan, Judge. (1) The defenses in the answer are inconsistent and the motion to compel an election should have been sustained. (2) The court admitted evidence over plaintiff’s objection to show an agreement made by plaintiff and the county court in addition to that shown by the county court record. This is error. What the court did can only be shown by the record and is so shown. County ©. Bishop, 46 Mo. 68; Hippy v. County, 47 Mo. 66; Johnson ©.

Louis City Circuit Court. — Hon. *Elmeb B. Adams, Judge. (1) Courts of equity will grant relief against a former decree where the same has been obtained by fraud and imposition. Hill, on Inj. [ 3 Ed.] p. 211, sec. 36 ; Story’s Eq. PL, [9 Ed.] sec. 426 ; Adam’sEq., 794 ; 1 High on Inj. secs. 47, 114, 116, 190, 203; Davis v. Taleston, 6 How. [U. S.] 120; Hubbard v. Hobson, 1 Breese [111.] 190; Wingate v. Haywood, 40 N. H. 441; State ex rel. v. Engelman, 86 Mo. 551.

— Hon. E. L. Edwards, Judge. (1) The petition does not affirmatively allege that the injury complained of was occasioned by a hidden defect in the hammer, which was known to defendant, or could have been discovered by the exercise of reasonable care.

■ Appeal from Jaclcson Circuit Court. — Hon. J. H. Slover, Judge.

<p>Appeal from Saline Criminal Court. — Hon. John E. Ryland, Judge.</p> <p>The demurrer to the evidence should have been sustained. Slate v. Daubert, 42 Mo. 245.</p>

— Hon. J. P. Strother, Judge. In order to declare a resulting trust, the evidence must be free from doubt, and satisfy the mind of the chancellor clearly,, that the circumstances of , ,the purchase of the’property constituted such trust, Jphnson. v.-Qitarles, 46 Mó, 423 ;' Riñgo' Richardson, 53 Mo. 385 Worley Dry den, '57 Mo. 231; Gillespie v. Stone, 70 Mo.' 505 ; Forrester V. Moore, 77 Mo! 651, 662.

Louis Criminal Court. — Hon. J. C. Normile, Judge. The statements made by Carroll, the prosecuting witness, to one Herbert as to how he (Carroll) held a pistol when he took it from defendant, was not proper evidence to impeach Carroll, and was properly excluded by the court. It is the duty of the trial court to see that the evidence is admissible, whether objections are made or not.

— Hon. ,T. A. Gill, Judge. ' .... (1) There is no connection between the alleged negligent acts of defendant and the plaintiff’s injuries,- and • his own evidence shows that they.were not the proximate cause thereof, and the demurrer to-' the evidence-should have been sustained. MatMason v. Mayer, 90 Mo. 585 ; Stepp v. Railroad, 85 Mo. 229 ; Harlan ».

—Trial before Hon. C. A. Anthony, Judge of the Twenty-Ninth Judicial Circuit.

— Hon. Elijah Robinson, Judge. (1) The deed from Pearson, introduced by plaintiff as part of his chain of title, showed title in Elizabeth Mansfield and her chil dren, if not as joint tenants, then as tenants in common, and to her for her life only. Hall v. Stevens, 65 Mo. 670 ; Kinney v. Mathews, 69 Mo. 520 ; Smith v: Shell, 82 Mo. 215. (2) A deed is to be given effect according to the intent apparent from the whole instrument. The intent governs. And that is clear.

— Hon. John P. Strother, Judge. (1) The bill of exceptions in the case was the best evidence of Asbury, the deceased witness’ testimony on the former trial. It purported to contain all the testimony and it was error to permit the witness Grantt to testify orally as to it. Coughlin v. Haeusler, 50 Mo. 126 ; Franklin v. Gummersel, 11 Mo. App. 307; Halsey r. Sinsebaugh, 15 N. Y. App. 486 ; Fisher v. Kile; 27 Mich. 454; 1 Greenl. Ev., secs. 163, 166; Corby v. Wright, 9 Mo.

— Hon. John A. Lacy, Special Judge. The possession of one who goes in simply and solely under a purchase of land possessed at a tax-sale, and before he receives a deed therefor and before the expiration of the time for redemption has expired is not adverse possession. Pease v. Lawson, 33 Mo. 35; DeQraw v. Taylor, 37 Mo. 310 ; Tyler on Eject. [1 Ed.] 876, 877, 878, and cas. cit. ; Jackson v. Thomas, 16 Johns. 292; Jackson v. Frost, 5 Cowen, 346; Hoytv.

— Hon. Gr. D. Buegess, Judge. (1) The tax-deed is almost in the exact language of the form prescribed in the statute. Acts 1872, sec. 217, p. 128; W. S. 1872, sec. 217, ch. 118, p. 1205. It was admitted and proved at the trial that Joel H. Shelly, who executed the tax-deed, was at the time treasurer and ex-officio collector of Mercer county; that Mercer county had adopted and was then acting under the township organization law. The deed is valid on its face.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) There wa.s no actionable negligence on the part of defendants shown. If there was inadvertence that does not constitute culpable negligence. Brown v. Railroad, 50 Mo. 461 ; Barton v. Railroad, 52 Mo. 253. (2) Where in an action founded on the negligence of defendant, plaintiff’s evidence shows that his own negligence directly contributed to produce the injury, he disproves the case alleged, and cannot recover.

Court. — Hon. J. M. I)avis, Judge. (1) Under the first instruction, the jury were not confined to the damages which plaintiff may have sustained by reason of any breach of the alleged contract of marriage. The damage must result from ■defendant’s breach of contract. Clark v. Fairley, 24 Mo. App. 429 ; Brown v. Boad Company, 89 Mo. 152 ; Luckie v. Bailroojd, 67 Mo. 245; Cunningham *. Bailroad, 70 Mo. 202.

— Hon. T. A. Gill, Judge. (1) The record of the paper purporting to be a sheriff ’s deed, dated December 13, 1865, showed no seal and none will be presumed to the original paper. Hamilton v. Boggess, 63 Mo. 233; Switzer v. Knapp, 10 Iowa, 72 ; Williams v. Bass, 22 Vt. 354; Shepherd v. BurJchalter, 13 Ga. 443; Frost v. BecTcham, 1 Johns. Ch. 300; Griffin v. Sheffield, 38 Miss. 359; Heddon v. Overton, 4 Bibb, 406; Sneed v. Ward, 5 Dana, 187.

— Hon. E. L. Edwards, Judge. (1) The indictment is not good. It describes no offense. If it charges anything, it is that the assault was made in the attempt to break jail and escape therefrom, which is a misdemeanor and not a felony. R. S. 1879, sec. 1457. (2) The record shows that the offense attempted was actually perpetrated at the time the assault charged in the indictment was made, and, even if the indictment were good, no conviction can be had for the assault.

Transferred from St. Louis Court of Appeals. (1) Under the will, Junius Jacobs could not dispose of his interest in the rents and profits, in advance of their being paid over to him by the trustee; and his. assignment of the same is void. Lougal v. Fryer, 3 Mo. 40 ; Glamorgan v. Lane, 9 Mo. 447; Langdon v. Ingram, 28 Ind. 360 ; Stewart v. Bradley, 3 Bush, 623 ; Stewart v. Barrow, 7 Bush, 368; 1 Wash.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The clause contained in tlie will of Jobn Cavender, wliereby Robert S. Cavender is sought to be restrained from the power to sell or alienate the income of the estate by way of anticipation, is not valid, or of force to defeat the rights of creditors. Parsons v. Spencer, 83 Ky. 305 ; Rudd v: Van der Hagen, 5 S. W. Rep. 416 ; Marshall v. Rash, 7 S. W. Rep. 879 ; Smith v. Towers, 14 Atl. Rep. 497.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) A man cannot tie up his own property or the proceeds thereof to his own use so that his creditors cannot reach it. Mcl trainer. Smith, 42 Mo. 45 ; Potter v. Merrill, 9 N. E. Rep. 572. (2) The debtor or fraudulent alienee cannot compel the creditor to elect which method of procedure or class of property he will pursue. Wait on Fraud. Convey. 102; Gray r. Chase, 57 Me. 558; Vasse r-.

Louis City Circuit Court. — Hon.. Shepard Barclay, Judge. The plaintiff’s right to recover was not impeached. The original judgment was not paid nor satisfied. It is in full force and effect. The plaintiff had a lawful right to purchase the judgment. The amount paid by him for it is not material. It is sufficient that he is the lawful owner of it. The defendants have presented no grounds excusing them from liability on the appeal bond.

<p>1. Tax Sale: publication : error in name : judgment. A sale of the land of Daniel Troyer for taxes, under a judgment in a tax suit in which notice by publication was directed against Daniel Tragar, was a nullity, notwithstanding Daniel Troyer’s name was entered upon the record of his deed as Daniel Tragar.</p> <p>2. -:--: ——:-. Such judgmentwas a nullity as to Daniel Troyer and his heirs, he not being a party to the suit, nor in privity in estate or otherwise with the defendant thereto.</p>

— Hon. W. F. G-eiger, Judge. (1) The taxes against the land were a lien thereon, not the debt of its owner ; and the assessment, suit and publication against the land and its “apparent owner,” designated as “M. B. Miller,” charged the owner with notice and gave the court jurisdiction to pronounce decree and pass title to the land, because the public records, to which resort must be had under the law to ascertain who was its owner, fixed that name as the proper designation of…

— Hon. B. E. Turner, Judge. (1) The demurrer to plaintiff’s petition should have been sustained : “Where there is an improper joinder of causes of action the statute makes it' a ground of demurrer.

— Hon. A. J. Seat, Judge. (1) Helm having bought at “the tax sale, under a contract with plaintiff, whereby he undertook to protect plaintiff’s interests in the land by buying it in, and holding the title that should pass to him as security for the purchase money, and as security for the money plaintiff then owed him, took the title that passed by the sheriff’s deed, in trust for plaintiff.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) The court erred in admitting improper and illegal testimony. It was incompetent to go into the question whether the widening of Eighteenth street was a public necessity which justified the passage of an ordinance therefor. (2) The circuit court erred in refusing plaintiff’s instruction. . .

Louis City Circuit Court. — I-Ion. W. H. Horner, Judge. The following are the instructions discussed in the opinion : “The jury are instructed that if they believe from the evidence, that on or about the twenty-sixth day of November, 1884, the plaintiff one Anton Schlereth were husband and wife and that said Anton died on or about the day aforesaid and left the plaintiff surviving him as his widow, and that on or about said day, the defendant, by its officers, agents,…

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) The antagonism between the metropolitan and the municipal systems is such that they cannot coexist. (2) The mayor, though a member of the board, is not a commissioner. State ex rel. v. Police Commissioners, 5 Abb. Pr. 241.

— Hon. Noah M. Givan, Judge. (1) Real estate acquired by the wife during coverture, with the means of the husband, when sold, the proceeds become the property of the husband, and is not within the protection of the statute. R. S. sec. 3295 ; Tilman «. Tilman, 50 Mo. 40; Sumner v. McCray, 60 Mo. 493 ; Terry v. Wilson, 63 Mo. 498 ; Sloan v. Torry, 78 Mo. 623 ; Emerson v. Cutler, 14 Pick. 108 ; Kesner v. Tregg, 98 U. S. 50-54; Humphries ».

— Hon. N. M. G-ivan, Judge. (1) The court below found that appellant Sadie E. Powell was the owner of the property in controversy, as her ordinary legal estate ; that Kyle bought with notice of that fact; and that Wooldridge bought from Kyle. The undisputed evidence shows that Mrs. Powell received no part of the one hundred dollars paid her husband by plaintiffs for the property.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. (1) The action of the court in June, 1873, in vacating the judgment theretofore entered, was right. The judgment of the court was irregular and subject to correction. Stacies v. Cooper, 25 Mo. 403. (2) The final judgment dissolving the injunction was right. No appeal has been taken from said judgment and it is binding on the parties thereto.

— Hon. Chas. G. Burton, Judge. (1) The tax proceeding and sheriff’s deed against “ R. O. Elting” is. void, as against “Richard O. Elting.” Skelton v. Sackett, 91 Mo. 377. (2) The patent issued to Elting in 1865 was void, because three of the four forties had been patented to William Gilfillan in 1859, and Elting had his right to reconvey the whole of the land to the government and have his money refunded.

— IIon. W. P. Geiger, Judge. McPeeley was not the real owner of the land, when the tax suit was begun, and was not then, and never was, the record owner.

<p>1. Criminal Law: practice: confessions. Where there is reason to believe that confessions of one accused of crime were obtained by the influence of hope or fear, .it becomes the duty of the judge trying the cause to hear the evidence and determine whether they shall go to the jury ; their admissibility is a preliminary question to be determined by the court.</p> <p>2. --:--:--. It is the duty of the court to hear all competent testimony bearing upon the question which the defendant may see ñt to offer ; and this is true, although the state may deny the use of any improper influences. And the defendant is a competent witness upon this preliminary issue.</p> <p>3. -: -: -. The error committed in refusing to hear evidence offered by the defendant upon this preliminary issue is not cured by submitting it to the jury upon the trial, although it is competent to go to the jury to aid them in determining what weight they will give to the confessions. But whether the confessions shall be admitted at all or not is a question for the court and not for the jury.</p>

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) Under tile Missouri statute governing partition, a remainderman or reversioner in fee of an undivided interest in land tenements or hereditaments held in joint tenancy, tenancy in common or coparcenary may maintain a suit for partition against the owners of the other undivided interest in the remainder, the whole premises being subject to a life estate unexpired.

Louis City Circuit Court. — Hon Shepard B arce at. Judge. ■ The court gave the following • instructions at the request of plaintiff: “The court instructs the jury that the only question herein is whether the transfer of the property in controversy to plaintiffs was valid ; the validity of no other transfer is at issue in this cause. “1. A debtor in failing circumstances bas a right to prefer one of his creditors to another, or any number of them to the exclusion of others.

— -Hon. Elijah Robinson, Judge. (1) In order to make the successive possessions of different persons operate as a bar there must have existed a privity between them. And the privity of estate required is such as arises from the relation of ancestor and heir, grantor and grantee, devisor and devisee. 3 Wait’s Acts. & Dei. 105. (2) Defendant’s instruction numbered two should not have been given. It assumes facts not in evidence.

<p>1. Practice: effect of filing motion for rehearing : continuance. The filing of a motion for rehearing after the adjournment of court for the term, under an order permitting it to be done, has the effect of continuing the cause to the ensuing term, and the opinion filed does not become the opiuion of the court until the motion is disposed of.</p> <p>2. --: TRANSFER OF CAUSE TO SUPREME COURT : CONSTITUTION : mandamus. Under section 6 of the amendment to the constitution concerning the judicial department, providing that when one of the courts of appeals “ shall render a decision which any one of the judges therein sitting shall deem contrary to any previous decision * * * of the supreme court,” such “ court of appeals must, of its own motion, pending the same term,” certify and transfer the cause to the supreme court which shall proceed with it as in a case where jurisdiction is obtained by ordinary appellate process, when it becomes the duty of the court of appeals, pending a term, to so certify a cause and it fails to do so, it cannot do so of-its own motion, after the term has expired; but mandamus will lie to compel the transfer after the expiration of the term.</p> <p>3. ---:-:--:-. It becomes the duty of the court of appeals to certify the cause to the supreme court only when one of the judges sitting in it gives it as his opinion that the decision is contrary to a previous decision, and his opinion must be communicated to the majority of the court by an explicit statement in the form of an opinion filed by him in the cause.</p>

'Appeal from Cass Circuit Court.— Hon. Noah M. Givan, Judge, The circuit court should have sustained the motion of R. A. Atkison for judgment of restoration at the July term, 1886, and thus given him such judgment without a trial at that time. This court by its opinion and judgment herein at April term, 1886 (89 Mo. 464), directed such judgment without a further trial. Aikison v. Dixon, 89 Mo. 464; Aikison v. Dixon, 70 Mo. 381; State ex ret. *.

— Hon. Noah M. G-ivan, Judge. Defendants are estopped by the judgment of the Bates circuit court when this ejectment was first tried and the rents fixed at eight dollars a month; since, though that judgment was reversed, as per 70 Mo. 381, yet Mrs. Dixon was directed to be made a party, and was in pursuance thereof so made, and then had judgment in her favor, without appellant being permitted to litigate with her (see 75 Mo. 516), and as she thus got advantage of the…

<p>1. 'Lease: buildings erected by lessee, not removed at end of term : not forfeited when. Where the terms of a lease permit the erection of houses on the leased premises by the lessee, with , the privilege of removing them, they become personal property, and the mere fact that they are suffered to remain on the premises after the expiration of tbe lease, and pending litigation between the parties for possession of the premises, will not work a forfeiture of the owner’s right in them.</p> <p>2. -:-:-- — : RENTS. The lessor’s right to the possession of the leased premises being established by such litigation, he will only be entitled to such per cent, of the whole rent collected after the expiration of the lease and pending the litigation as equals the ground rent, and the owner of the buildings will be entitled to the residue.</p>

<p>1. Ejectment: equitable defense. Wliere in an action of ejectment the answer interposes an equitable defense, such defense must be determined unfavorably to the defendant before plaintiff’s legal title can prevail, and, until such defense is determined, the case possesses all the attributes and features of a case in equity.</p> <p>3. Practice in Supreme Court; evidence : depositions. Where the evidence in a case is in the shape of depositions, so that the lower court is denied the advantage of observing the demeanor of the witnesses when testifying, an equal opportunity is afforded the supreme as to the lower court of determining what probative force to give to the testimony of the witnesses thus testifying.</p> <p>3. Presumption: partnership. The law presumes that business is conducted in the usual and ordinary way, and this presumption does not favor the existence of a firm when, neither in the promissory notes of its members nor in their muniments of title, mention is made of the alleged firm name.</p> <p>4. Partnership: new partner. The addition or subtraction of a member from a firm creates a new firm, and operates as a dissolution of the old one, even though the business be continued under the old firm name.</p> <p>5. Partnership, Expiration of; power of partner to bind. After the expiration of a partnership, no power lies in a former partner to bind it.</p> <p>6. Partnership : tenants in common. A deed to former partners, made after the dissolution of the partnership, will make them tenants in common. (R. S. 1879, sec. 3949).</p> <p>7. Resulting Trust: evidence. The evidence relied upon to establish a resulting trust and to change the primu-faeie operation and effect of a deed must be clear, strong and unequivocal; so definite and positive as to leave no room for doubt, in the mind of the chancellor, as to the existence of such a trust.</p>

Louis City Circuit Court. — Hon. W. H. Hobnee, Judge. (1) The alleged statement of taxes by the county clerk of Wayne county, under and by virtue of which the sale of the engine in controversy took place, was illegal and void and conferred no authority upon the collector of said county to sell the said engine, and the admission of the same evidence by the court below was erroneous, (a) Because section 3 of the act of April 14, 1877, was not enacted in accordance with section…

— Host. Noah M. Givan, Judge. The petition in this case which was against Story and other owners on the route of the road is as follows : “ The petition of the Kansas City, Clinton & Springfield Railroad Company respectfully shows: That it is a corporation created and existing under and by virtue of the laws of the state of Missouri; that your petitioner, in pursuance of the laws of said state, and of its charter, is about to construct, operate and maintain a standard or…

Louis Court of Criminal Correction. Hon. Chas. F. Cady, Judge. (1) A municipal corporation possesses and can exercise the following powers and no others: (a) Those granted in express words ; (5) those necessarily or fairly implied in or incident to the powers expressly granted ; (c) those essential to the declared objects and purposes of the corporation — not simply convenient but indispensable. 1 Dill. Mun. Corp. [3 Ed.] sec. 89.

Louis City Circuit Court. — Hon. Geo. W. Lubke, Judge. (1) The “ net income realized from the property as the rents,” was a subject of conveyance to secure payment of the mortgage debt. Rents to be acquired in the future,.as other future property, not yet in esse, but having a potential existence, are capable of being subject of agreement of sale and of mortgage.

— Hon. Henry P. White, Judge. The court erred in the definition of murder in the first degree and, particularly, in the definition of the word “deliberately,” when distinguishing between murder in the first degree and murder in the second degree. State v. Ellis, 74 Mo. 207 ; s. c., 11 Mo.

— Hon. J. B. Gantt, Judge. A sale under a mortgage or deed of trust may be enjoined on account of fraud. Before a mortgageor, or a grantor in a deed of trust, can avail himself of this remedy, his right to do so must be free from reasonable doubt; he must make out a strong and convincing case, by a clear preponderance of evidence, if the right is denied.

Louis City Gircidt Court. — Hojst. W. H. Hokhek, Judge. The paper was taken by Fitzgerald in payment of debt and in consideration of surrender of liens and the transfer was for value. Daniels Neg. Inst. [3 Ed.] sec. 827. •

Louis Criminal Court. — Trial before Hon. J. L. Thomas, Judge of tbe Twenty-Sixth Judicial Circuit. The defendant bad been appointed a deputy constable but bad not taken' the oath or filed bis appointment with tbe city register. His defense was that tbe homicide was justifiable, having been committed without resort to unnecessary force while attempting to arrest tbe deceased for a breach of tbe peace.

<p>Appeal, from St. Louis City Circuit Daniel Dillon, Judge. Court. — Hon.</p>

Louis City Circuit Court. — Hon. E. B. Adams, Judge. (1) The levy and sale of the stock of Langton and of Chambers, on the execution of Hill & Collins against Peter Curran, was null and void and passed no interest in the stock to the purchasers. Binmore on Sheriffs, secs. 102, 111, 112. (2) An execution against Peter Curran in 1877, cannot be levied upon bank stock duly registered on the stock-book of the bank in the names of Langton and of Chambers for six years, then past.