Volume 97 — Missouri Reports

— Hon. John G-. Wear, Judge. The theory of the defense is that the trust deed was fraudulent, and therefore the sale under it was fraudulent. It was proper to set up the circumstances constituting the fraud.- Estes v. Fry, 94 Mo. 266. If proper to allege the facts, it was competent to prove them. Ib. And the trial court erred in excluding defendant’s evidence to the effect that the notes and deed of trust securing them were obtained by fraud. Goff v. Roberts, 72 Mo. 572.

— Hon. W. I. Wallace, Judge. (1) The court erred in overruling the defendant’sobjections to the testimony of witnesses, M. C. Wheeler and Shade Lacy, relative to what transpired in the morning and immediately after noon. The shooting for which defendant was indicted occurred between sundown and dark, and the testimony objected to had no connection with the shooting, and was not a part of the res gestae.

Louis City Circuit Court. The state of Missouri has jurisdiction and the laws of the state have their operation over the whole Mississippi river, from bank to bank thereof,- so far as the same forms a common boundary between said state and the state of Illinois. Swearingen v. Steamboat, 13 Mo. 519. (1) The Illinois enabling act, April 18, 1818, gives “the middle of the Mississippi” as its western boundary.

Louis Criminal Court. — Hon. G. S. Y an Waggoner, Judge. (1) The court erred iu the instructions given of its own motion. (2) The court erred, in refusing to instruct the jury upon the question of cooling time. “ Whether there has been cooling time is eminently a question of fact, varying. with the particular case and with the condition of the party.” 1 Whart. Crim.

— Hon. Cuas. G-. Burton, Judge. (1) The sale was September 15, 1883; full tender and demand to redeem was made about October 15, 1883 ; the statutory bond was given and approved November 28, 1883. This was in time. The statute does not limit the time in which the bond shall be given. R. S. sec. 3299 ; Johnson v. Atchison, 90 Mo. 48. The premature execution of the deed by the trustee did not impair the right to redeem. Jones on Mort.

Louis Qity Qireuit Qourt. — Hon. W. H. Horner, Judge. (1) The finding of the referee was erroneous. (2) The assignment by White and the transfer of the stock on the books of the corporation, vested the title to the stock in Harding, as trustee for the bank, and fixed and determined the relations of White, assignor, and Harding, the assignee, to the corporation.

<p>Appeal from St. Louis City Circuit Court. — Hon. G. W. Lubke, Judge.</p> <p>Tbanseeebed to St. Louis Couet oe Appeals.</p>

— Hon. T. A. Gill, Judge. Every person who furnishes any materials for any building, erection or improvement upon land, under any contract with the owner or proprietor thereof, or with the contractor with such owner or proprietor, to construct such building, erection or improvement, which materials are actually used in -sutíh building, erection or improvement, and who has complied with the provisions of article 1, chapter 47 of the Revised Statutes, 1879, has a lien upon…

— Hon. J. P. Strother, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. The statute (Laws 1881, p. 165) only applies to persons descending into or ascending out of. a shaft and not one who was working down in the shaft.

<p>1. Appellate Jurisdiction: supreme court. The supreme court has no appellate jurisdiction in a common-law action for damages in the sum of one hundred dollars, where the petition alleges the delivery of certain goods to the defendant for shipment, as a common carrier, to another state, the subsequent loss thereof and defendant’s failure to deliver to plaintiff at their destination, and the answer alleges a contract of shipment to the end of defendant’s line within the state, and to forward the goods by connecting lines, and avers full performance on its part, the record not disclosing the grounds upon which the trial court based its finding.</p> <p>3. Practice: issues not made by pleadings. In an action for damages, an issue not made by the pleadings, or in some other appropriate way, cannot be thrust into the cause by instructions asked by a party.</p> <p>3.--:-. A question not passed upon at the trial cannot afterward be injected into the cause by motion for new trial in the lower court, or by assignment or brief in the appellate court, nor by a motion to transfer the cause from one court to another.</p>

— Hon. G-. I). Burgess, Judge. (1) The homestead right provided by Revised Statutes, 1879, section 2693, became an absolute and vested right upon the death of the husband, unaffected by Revised Statutes, 1879, section 2199. It is a right that the statute places beyond the power of the testator to affect by will, and requires no'actof election or renunciation on the part of plaintiff. R. S. 1879 sec. 2693; Gregg v. Gregg, 65 Mo. 343 ; Kaess v. Gross, 92 Mo. 647.

<p>Mon-survival of Action for Personal Injuries: practice. An action for personal injuries cannot, after the death of the defendant, be revived in the name of his' administrator. (R. S. 187&, secs. 96, 97).</p>

Louis City Circuit Court. — IIon. Daniel Dillon, Judge. (1) The action of ejectment being purely a possessory one, the verdict against Badeau is clearly wrong, there being no proof whatever that he was in possession, and positive evidence by La Riviére that he was not. True, by the statute of ejectment, Badeau in right of his wife could claim to be made a co-defendant.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. The plaintiffs in this case were not entitled to recover. The damages suffered by them from the obstruction of West Jefferson avenue were not peculiar to the plaintiffs, nor did they differ in kind from those sustained by other members of the community, and the obstruction complained of was located at a point three hundred and fifty feet north of plaintiffs’ property. Rude v. St. Louis, 93 Mo. 408.

— Hon. W. H. Brownlee, Special Judge. A husband, under the common law, could waive the assertion of his marital rights to personal property owned by his wife at the marriage, or which might come to or be acquired by her thereafter, and it was competent for the married woman to hold and own the personal property, absolutely, that came to her by gift or otherwise, separate and apart from her husband’s property and for herself, as well under the common law as since under the…

Louis City Circuit Court, — Hon. Shepard Barclay, Judge. The plaintiffs in this case were not entitled to recover. The damages suffered by them from the obstruction of West Jefferson avenue were not peculiar to the plaintiffs, nor did they differ in kind from those sustained by other members of the community, and the obstruction complained of was located at a point one hundred and thirty feet south of plaintiffs ’ property. Rude v. St. Louis, 93 Mo. 408.

— Hon. A. J. Seay, Judge. This suit was brought for the purpose of divesting plaintiff in error, Caroline Buschmeyer, of the title to one hundred and twenty acres of land in Gasconade county and for general relief.

— Hon. J. D. Foster, Judge. The foreclosure proceeding was irregular and void as to plaintiff since neither he nor his trustee Nalle were made a party thereto. Stafford v. Fizer, 82 Mo. 393 ; 20 Mo, 133; R. S. 1879, secs. 3297, 3308; 2 Jones on Mort. (3 Ed.) sec. 1394 Th q fieri facias, under which the property was sold on April 11, 1865, was issued February 10, 1864.

<p>Partition: pendency op another suit : practice. In the trial of a partition suit, when it appears that there is another suit pending between the same parties, with reference to the same land and involving adverse claims of title thereto, all proceedings should be suspended until the determination of the prior suit.</p>

— Hon. W. D. Hubbard, Judge. (1) The motion to quash the indictment should have been sustained. The indictment does not charge that the wounding which produced the death was wilful, deliberate and premeditated. A cursory inspection even, of the indictment will reveal this defect. State v. Realcey, 1 Mo. App. 3; State v. Snell, 78 Mo. 241 State v. Emerich, 87 Mo. 110 ; State v. Feaster, 25 Mo. 324.

— Hon. J. H. Slover, Judge. (1) The defendant’s objection to the introduction of any evidence, under the petition, should have been sustained.

Louis City Circuit Court. — Hon. G. W. Lubke, Judge. The publication of judicial proceedings is a qualified privilege, and if plaintiff can prove that the publication was not made bona fide, but that defendant availed himself of the privileged occasion to wilfully defame the plaintiff, damages will be allowed in spite of the privilege. Odgers on Libel, marg. pp. 184, 186, 194; Stevens v. Sampson, 5 Exch. D. 53; Salmon v. Isaac, 20 L. T. 885.

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

Louis City Circuit Court. — Hon. W. H. Horner, Judge. The husband’s curtesy in his wife’s lands, not held to her sole and separate use, is a property right, the sale of which for back taxes, under the revenue law of 1877, conveys a valuable and tangible interest in the land.

Louis City Circuit Court.— Hon. W. H. Horner, Judge. An expert cannot be called upon for an opinion, where its expression operates merely to substitute the expert for the jury. The opinions of witnesses should not be received as evidence, where all the facts upon which such opinions are founded can be ascertained and made intelligible to the court or jury. City v. McGiven, 78 Ill. 347.

fouls City Circuit Court. — Hon. Shepard Barclay, Judge. (1) » Upon the death of Francis Donohoe his brother Terence became his heir, so far as his real estate was concerned, to the exelusion of his sister Margaret Reilly and his brother John Donohoe, ancestor of plaintiff, as they were alien§. (2) The sister Margaret and the brother John were, however, entitled to a distributive share of the personal estate of Francis. Greenia v. Greenia, 14 Mo. 526.

— Hon. J. B. Gantt, Judge. (1) Section 447, Revised Statutes, 1879, did not authorize the circuit court to fix the rights and priorities of the different attaching creditors of Brenneisen, and of the partnership firm of Brenneisen & Goff. The •defendants were not the same.

Hon. R. L. Wilson, Judge. This action is for personal injuries sustained by plaintiff by the alleged negligence of defendant in excavating a cut through a public highway at Jackson, Missouri, in the course of the construction of its railroad, and in leaving the cut unguarded and unprotected, in consequence of which plaintiff, while travelling the highway after dark in a buggy, fell in.

— Hon. Andrew Ellison, Judge. (1) This was an action against Surber and Walker to recover back money obtained by them from the plaintiff by fraud and deceit. It is an action of tort. Plaintiff must recover, if at all, upon the cause of action stated in his petition. He cannot allege one cause and recover on another.

<p>Constitution of 1875: executive department: state board of equalization : COMPENSATION OF its members. Under the state constitution of 1875, and the statutes enacted thereunder, officers of the executive department are entitled to compensation for services rendered by them as members of the state board of equalization. (State ex rel. v. Holladay, 67 Mo. 64, overruled).</p>

Louis City Circuit Court. '— Hon. G-. W. Lubke, Judge. (1) It was error to permit Dr. Miller, James Keating, Maggie Keating, and each of them, to testify to statements and declarations made by James O’Neil after he had been carried into Keating’s house.

<p>Appeal from, JacJcson Circuit Court.— IIon. T. A. GrILL, Judge.</p> <p>Transferred to Kansas City Court of Appeals.</p>

Louis City Circuit Court. — I-Ion. L. B. Valliant, Judge. (1) The amount of damages- allowed to appellant is inadequate and insufficient compensation for the loss of his property.

— Hon. T. A. Gill, Judge. (1) The will in this case gave the widow at least an equitable life estate in the homestead and thus “ passed” real estate to her. 1 Shars. Blackst., book 2, note 1, * 16 ; Bass v. Scott, 2 Leigh, 356; Wusthoff v. Dracourt, 3 Watts, 240; Collins v. Carmen, 5 Md. 503. (2) The writing of the widow herself, renouncing the will and electing to take half the estate, is a nullity. Rannels v. Cerner, 80 Mr. 474.

Certified from Kansas City Court of Appeals on Division of Opinion in that Court. The defect in the transcript, which made the occasion for certifying the case, was not known by counsel on either side till after the hearing of the appeal, and after the opinion of the majority reversing the judgment was written, filed and published. It was unknown by that majority until after the opinion was written.

— Hon. T. A. Gill, Judge. (1) The deed from J. B. Moore and wife, dated August 31, 1876, is not to the church corporation, nor is it expressed therein to have been made for the money of the corporation, but to the trustees of said church, and expresses upon its face that it was so made in consideration of money paid by its said trustees ; they (and not the corporation ) are therefore the grantees in such deed. Draper v. Minor, 36 Mo. 290.

— Hon. J. n. Slover, Judge. At the trial, Ellen McCarty, one of the defendants, testified : That she was the widow of John McCarty, deceased, and had been living on the land now in controversy, for the last twelve years ; that she knew of the dealings of her husband with the Missouri Pacific Railroad Company; that he was employed in 1870-71 and 1872, as a car-repairer by the Missouri Pacific Company, as she always understood, and that while in the employ of that company, he…

— Hon. J. P. Strother, Judge. (1) The executor’s deed was erroneously admitted in evidence. It should have been recorded in this state. (2) The very same (and only the same) faith and, credit must be given this alleged will, probate thereof, and executor’s deed as would be given thereto in a Kentucky court. Pennoyer v. Neff, 95 U. S. 723.

— Non. J. P. Grubb, Judge. (1) The intention of the grantor was clear and unmistakable in delivering the deed to Dick, the depositary for his infant son. The deed was executed and delivered in pursuance of an often expressed design, formed years before, after the maturest deliberation, a,nd after taking legal counsel as the nature and effect of the deed.

Francois Circuit Court. — Hon. J. D. Fox, Judge. (1) The combination of circumstances and influences, under which appellant gave the quit-claim deed to respondent, made that, conveyance a fraud on his rights.

<p>1. Practice in Supreme Court: demurrer to evidence. A defendant who offers evidence on his own behalf after his demurrer to the plaintiff’s evidence has been overruled, thereby waives objection to the action of the trial court on said .demurrer, except that the supreme court may consider the same in connection with all the evidence in the case.</p> <p>2. - Railroad : defective roadbed : evidence. In an action against a railroad for negligence in not providing sufficient culverts for the escape of water collected and accumulated by its embankments and excavations, by reason of which a portion of its roadbed suddenly gave way, evidence of a non-expert witness, who had lived in the neighborhood] all his life, was competent as to the capacity of the culvert to carry away accumulated water in time of freshets.</p> <p>3. --: -- — :--. His evidence was also competent as to whether the traces of a storm which caused the roadbed to give way, found the morning after the accident, showed the storm to have been greater than previous ones.</p> <p>4. --- : -: -. In such action, it is not reversible error to exclude evidence that the engineer, under whose supervision the road was constructed, was competent and skillful, it appearing that other witnesses had testified that the railroad was, in all respects, properly constructed.</p> <p>5. Megligenee : railroad : construction of roadbed. A railroad company, in constructing its roadbed, is not bound to provide against an unprecedented flood, but is bound to provide sufficient culverts or other means for the escape of water collected and accumulated by its embankments and excavations in any storm or rain not extraordinary in character and violence.</p> <p>G. Action by Infant for Death, of Parent: measure of damages. In an action by infants for the death of their father caused by the defendant’s negligence, a fair and reasonable compensation to the infant plaintiffs for .the loss of their father’s services as a means of support during their minority is a correct measure of damages.</p> <p>7. Practice: oral remarks to jury after they hate retired. It is not error for a trial court, upon the communication of a retired jury that they are unable to agree, to have them brought into court, and, after an unsuccessful search for defendant’s counsel, address them orally to the effect that their conference should be held in a spirit of fair investigation of the cause, with a view to reaching a verdict, but that no juryman was expected to surrender his honest convictions merely to reach an agreement.</p>

— Hon. N. M. G-ivan, Judge. The petition in this case, an action of ejectment, was in the usual form. In his answer defendant admitted his possession of the property, but denied all other allegations of the petition.

Prohibition. The appeal in the case should have been taken from the Madison circuit court to the supreme court, and not to the court of appeals, or having been erroneously taken there, it should (under the provisions of the act of 1885, p. 121) have been transferred to the supreme court, for four reasons: (a) The amount in controversy exceeds twenty-five hundred dollars.

Louis City Cireuit Court. — IIon. Shepaed Baeclay, Judge. (1) The deposition of the plaintiff in this ease was inadmissible while she was present. Priest v. Way, 87 Mo. 16. (2) The court erred in not giving the defendant s instructions without modification and in giving modified instructions on the question of a conditional promise of marriage.

<p>1. Appellate Jurisdiction : amount involved. The prayer of the petition is not the only guide to determine the amount in dispute on a plaintiff’s appeal where the damages, for which plaintiff asks compensation, are definitely ascertainable from instruments or accounts and plaintiff’s evidence tends to show the exact extent thereof. When the supreme court is advised by the record of the real amount, the prayer of the petition will not be considered .as determining it.</p> <p>53.---:--: case adjudged. Plaintiff sued for twenty-eight hundred dollars; his evidence showed him entitled to about eighteen hundred dollars ; there was a finding for defendant and plaintiff appealed. Held the case was within the appellate jurisdiction of the court of appeals.</p>

Louis City Circuit Court. — IIon. A. M. Thayer, Judge. The court below committed error in not allowing the defendant as damages on the defendant’s counterclaims the sum of $2,640.88, which was proven to be the true difference between the contract price and the market price which the defendant had to pay in order to fill its orders for fence-wire, the rule of law being well settled that the measure of damages in cases of this kind is the difference between the contract price…

— Hon. C. H. S. Goodman, Judge.' (1) The assessment of eight mills for railroad interest by the county court, in 1880, on all property in said county was not void, but was only illegally and erroneously levied and the court had the right to correct said levy in 1881 or any subsequent year. R. S. 1879, sec. 6879. (2) The court erred in refusing the instruction asked for by plaintiff and giving those on behalf of defendant.

— Hon. W. I. Wallace; Judge. (1) The tax was unconstitutional. No levy for county purposes in excess of fifty cents on the one hundred dollars valuation could have been made, unless there existed at the time á valid subsisting indebtedness.- Under the undisputed evidence the tax was not levied under such a state of facts, and was therefore void. Const, of Mo. art. 10, secs. 11, 12.

Anneal from Morgan Circuit Court. — Hon. E. L. Edwards, Judge. (1) Contested elections are triable by tbe court in a summary manner without formal pleadings. A jury trial cannot be demanded. R. S. 1879, sec. 5532 ; Pedigo v. Grimes, 11. West. Rep. 341, and cas. cit. In such, cases, parties are not required to ask declarations of law. The whole case will be reviewed by the appellate court.

— IIon. J. P. Strother, Judge. A man who is convicted and while serving a term in the penitentiary for felony cannot execute a mortgage, as was done in this case, and such mortgage is void. The second declaration should have been given. R. S. sec. 1767 ; Presburry v. Hull, 34 Mo. 29 ; Plainer n. Sherwood, 6 Johns. Ch. 118.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) Where a party has agreed to perform certain work for a consideration paid and the thing to be done (as in this instance the shaft to be sunk) has no certain or ascertainable value, the measure of damages is the cost of doing the thing contracted tó be done. Carli v. Seymour, 26 Minn. 276; Frost v. Fair, 53 Ind. 390; Roberts v. Cole, 82 N. C. 293 ; Fisher v. Goebel, 40 Mo. 475; Ellison v. Dore, 8 Black.

Mandamus. (1) This court has superintending control over the courts of appeals by 'mandamus, etc..; Amend. Const, sec. 8 ; Acts 1883, p. 216.

<p>Cross-Appeals from Lafayette Circuit Court. — Hon. J. P. Strother, Judge.</p> <p>(1) The bridge in question was part of defendant’s railroad. Railroad v. Hall, 91 U. S. 342 ; Bridge Proprietors v. Hoboken Co., 1 Wall. 116 ; Mohawk Bridge Co. v. Railroad, 6 Paige; Thompson v. Railroad, 3 Sand. 625; McRea v. Railroad, 2 Jones, 186. (2) The principal use of the bridge is its railroad nse, and therefore, it is taxable as railroad property. Railroad v. Supervisors, 48 Wis. 666; Anderson v. Railroad, 117 111. 26. (3) Unless the bridge was such property as fell within the description of property which could be taxed locally, then it must be taxed as general railroad property. See Railroad v. City of Davenport, 51 Iowa.</p> <p>(1) The state’board of equalization, being composed of persons designated by the constitution of 1875 (sec. 18, art. 10) and the laws to assess and fix the value of the property in controversy and of all railroads and their property, their valuation is conclusive and final, and the courts cannot examine the mode of reasoning or basis adopted by them to ascertain the value pf the bridge. Const, of Mo. 1875, sec. 18, art. 10 ; R. S., articles 8 and 9, chap. 145; Ins. Co. v. Polloclc, 75 111. 292; State R. R. Tax Cases, 92 U. S. 575; Cooley on Tax. (1 Ed.) 291. ( 2 ) And what is true as to assessing and fixing of values is equally true as to every other act within the function ottli'e state board, including the ascertainment, of property subject to assessment and valuation,, and apportionment. The jurisdiction of the state board, within its function, is not only exclusive but it is original. Neither the circuit, supreme, nor any other court or.tribunal in Missouri has that jurisdiction or any part of it. The law invests the state board with power to assess and value toll-bridges, and, as a necessary incident of that power, the duty and power- to find out what bridges are toll-bridges. No •other tribunal has the power to find out what bridges are toll-bridges ^or to assess them. To permit an inquiry as to the values fixed by the state board, or other matters decided by it within its functions, would be not only contrary to law, but against all public policy. It would enormously delay the state in collecting its revenue. Cases cited supra. (3) The state board, in the discharge of its function, possesses both ministerial and judicial powers. It is compelled to construe the revenue law at every step and pass on many grave legal and constitutional questions. It must, also, by law (R. S. sec. 6874) keep a fair and full record of its proceedings. It is a court. The supreme court of Missouri, in case of Railroad «.* State Board of Equalization, 64 Mo. 308, says: “The board was required by law to keep a full record of its proceedings and decisions, but not of the evidence. That is no part of the record and proceedings of a court in any case until made so by a bill of exceptions, or otherwise provided by law.” It is, therefore, needless to cite authorities to show that, when acting within its function, every presumption is in favor of the legality of its action. But see Cooley on Tax. (lEd.) 550, 552; Hilliard on Tax. (1 Ed.) 338, sec. 99. (4) The right to charge and take toll is a franchise, and may arise from prescription or grant from the legislature. It is an incorporeal hereditament and is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same. The test is, in this or in any case, — Does the owner of a franchise charge another for the use of it? If so, the charge or compensation is toll, no matter when, or where, or how, collected. 2 Blacks. 13, ch. 2, Chitty’s Am. Ed. 1860 ; Jacobs’ Law Dictionary, word, Toll; Termes De La Ley, word, Toll; 3 Kent, note a, p. 601; State n. Haight, 30 N. J. 447-8; Bouvier’s Law Die., word, Toll; Bridge Co. v. Patterson, 74 N. Y. 365-70; Rapalje and Lawrence’s Law Dictionary, word, Toll; Webster’s Unabridged Dictionary, word Toll.</p>

- — Hon. B. E. Turner, Judge. (1) The deed from Margaret Gorman, by register of lands, to John Langford is void upon its face and conveyed no title, for the reason that it recites that the register of lands advertised the real estate described in the deed for sale according to law. Spurgeon x. Allen, 49 Mo. 178; Large x. Fisher, 49 Mo. 307.

— Hon. J. D. Postee, Judge. The failure to insert the name of a grantee was merely a clerical omission, which did not render the deed void.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) Where the contract is waived and the suit based upon a quantum, meruit, the price specified in the contract is not evidence sufficient on which to base a recovery for the reasonable value, and a finding by the referee on the quantum meruit without any evidence as to the reasonableness of the charges, except as shown by the contract price, is erroneous.

— Hon. G. II. Bueckhaett, Judge. (1) In this conveyance, there is no condition of defeasance, but by it Henderson absolutely appropriated all of his property, except his exemptions, to the payment of the debts named, and delivered the immediate possession to Harrison, to sell and raise a fund with which to pay said debts. “ It does not purport to be a security-for a debt, with power to sell if the debt be not paid when due.

— Hon. A. J. Seat, Judge. (1) Tire court committed error • in sustaining the demurrer to the evidence. Every inference of fact must be drawn against the party asking the- demurrer. And if there is any evidence to support a verdict it is error for the court to take the case away from the jury. In this case, there was sufficient evidence to support a verdict on each count in the petition.

— Hon. H. K. White, Special Judge. (1) The court erred in finding for respondent. The evidence is conclusive that defendant never paid or agreed to pay any consideration whatever for said land. Defendant obtained said deed from the administrator by fraud and deception. Elizabeth Hawkins never had any claim against said estate ; neither did William Hawkins nor Graham. (2). The order of sale, not being at a time when an annual settlement is due, is void.

— Hon. J. H. Foster, Judge. (1) The sheriff’s deed was regular, and was primafacie evidence of the facts there instated, and the circuit court committed error in excluding the same. Carpenter d. King, 42 Mo. 219 ; Perkins v. Quigley, 62 Mo. 498 ; Waddeln. Williams, 50 Mo. 216. (2) The transcript of the judgment, and the record thereof, were both competent and relevant testimony, and the court erred in excluding them.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The court erred in admitting in evidence the deed of assignment from Spiro to Levy, because the affidavit to the deed was not in accordance with the statute. (2) It was for the jury to determine, under proper and cautionary instructions from the court, whether the fraudulent purpose on the assignor’s part existed, and sufficient facts appeared to put the assignee upon the inquiry.

Louis City Circuit Cotort. This is a suit to enjpin the enforcement of a demand allowed and classified in the probate court. The facts disclosed by the petition (so far as need be recited for,the purposes of the decision) are as follows : An action was brought, in 1863, in the St. Louis circuit court by Robt. Ober and others against John B. Carson to recover the price of thirty-four bales of cotton alleged to have been sold and delivered to Carson.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The trial court erred in admitting the certificates of marriage, death and burial. They were not supported by sufficient proof. (2) The trial court erred in excluding the partition proceedings and the deeds thereunder vesting the title in defendant Baum. (3) The court erred in admitting the will of Julia A. Rodney over the objection of defendants.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (lj The court, by plaintiff’s instructions numbered four and five, instructed the jury that to support the plea of justification of the charge, that the plaintiff did have carnal intercourse with her brother, the same proof must be adduced as would be necessary to convict the plaintiff upon an indictment for the crime of incest, and if the jury entertained a reasonable doubt of the plaintiff’s guilt of the crime charged…

Louis City Circuit Court. — Hon. Geo. W. Lubke, Judge. (1) An instruction which is calculated to mislead the jury, by withdrawing from their inquiry material facts, is improper, and it is good cause for reversing the judgment. Sigerson v. Pomeroy, 13 Mo. 620 ; Clark v. Hammerle, 27 Mo. 55 ; Mead v. Brotherton, 30 Mo. 201 ; Iron Mt. Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 70 ; Continental Improvement Co. v. Staid, 95 U. S. 161.

— Hon. J. P. Strother, Judge. The conveyances under which defendants claim are not fraudulent. Mrs. Combs’ title is founded upon a valuable and most meritorious consideration — one which strongly appeals to a court of equity. She had an inchoate right of dower in the 1,840 acres. She surrendered this to her husband’s creditors, and received the lands conveyed to her as a fair equivalent. This was a valuable consideration.

— Hon. M. Gr. McGtregor, Judge. (1) The circuit court decreed to respondent too large a proportion of the land and property of said Pierce City Real Estate Company. (2) Said court gave respondent a money judgment against defendants for notes taken by said Pierce City Real Estate Company for sale of land, which had not matured at the time of said judgment, and which said company had not collected.

— Hon. O. M. Spencer, Judge. (1) The constitution and laws of this state give to any railroad corporation the absolute and unqualified right to construct and operate a railroad between any points within this state, and to cross any other railroad. Const. Mo., art. 12, sec. 13; R. S., 1879, sec. 819. All railroads in this state are public highways. Const. Mo., art. 12, sec. 14.

Louis City Circuit Court. — Rem. Daniel Dillon, Judge.* (1) The finding and judgment of the court are against the law and are unsupported by the evidence. Malheny v. Mason, 73 Mo. 683 ; The Idaho Case, 93 U. S. 575; Bliven v. Railroad, 36 N.. Y. -403 ; Sweetman «. Prince, 26 N. Y. 232; Bordewell v. Colie, 1 Lansing, 141; King v. Richards, 6 Wheat. 418; Clafiin v. Railroad, 7 Allen, 344 ; Green v. C lark, 12 N. Y. 343 ; Potter v. Lansing, 1 Johns.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The proceeding in the case of Walker v. Bacon, read in evidence, gave color of title to the claim of Ann McCourtney, and the judgment gave her title to the entire tract described in the petition therein as against Groodwin and those holding under him.

— Hon. Richard Field, Judge. (1) The rate of taxation on railroad property for school purposes cannot exceed forty cents on the hundred dollars valuation. Nor can a tax for building purposes for any amount be levied under the constitution and laws of the state. Const, of Mo. art. 10, sec. 11; Acts 1881, p. 200, secs. 1, 2, 3 ; Acts 1883, p. 185. A . tax levied without such vote is void.

Habeas Corpus. (1) The statute under which relator is indicted is void, because unconstitutional. Revised Statutes, section 1253, so far as the penalty is concerned, reads: “Shall suffer death or be punished in the penitentiary for a period not'less than five years, in the discretion of the jury.” It will be seen that this section is a new departure. No such provision is found in any act of our legislature. The legislature has denounced no penalty against the crime of rape.

— Hon. Jas. M. Davis, Judge. The testimony of all the witnesses shows that Reeves was an infirm, weak old man, broken down by disease and age. While some of the witnesses testify that he was competent to attend to ordinary business, yet the testimony taken together shows almost conclusively that he was unable to attend to his affairs and did not do so, further than to talk about them, that Knappenberger was his agent and acted for him and attended to all his business affairs.

— Hon. Gr. H. Burckhartt, Judge. (1) All omissions and defects in the petition, if such, in fact exist, are cured by the answer. The latter avers expressly and in terms that deceased was not a passenger on defendant’s train ; that he was unlawfully and wrongfully thereon and was a trespasser. Plaintiff filed a general denial. Omission to state a material fact will be obviated if the other party, by his pleading, puts the matter in issue.

Louis Court of Appeals. (1) Where both parties claim under the same person, that person’s title is admitted. (2) The location of the New Madrid certificate in 1822 was lawfully made on land subject to such location, and thereby the equitable title to said land became vested in James Conway’s heirs and legal representatives, and can only be defeated by the owner of an earlier and superior title under the government vested in the defendant.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) Revised Statutes, section 3538, made it incumbent on the plaintiff below to file an amended petition, after the demurrer of the co-defendant was sustained.

— Hon. M. A. Reed, Special Judge. (1) (a) The act approved March 28, 1881 (Laws, 1881, p. 69), does not apportion the cost of constructing this sewer upon the adjoining property fronting upon the work done.

T. A. Hill, Judge. (1) The commissioner’s deed to Thomas J. Lock-ridge, the deed from said Lockridge to Nelson and from Nelson back to Lockridge, all purporting and undertaking to convey the entire interest in the land in controversy, and the deeds from said Lockridge to Parish and to Bartlett, conveying parts of the one hundred and sixty acres, together with the other acts of ownership, such as paying all taxes, making improvements, etc., by said Lockridge in his lifetime,…

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1). The compulsory reference of all the issues in this case to a referee against the objection of plaintiffs was error, and deprived plaintiffs of the right to a trial by court or jury of issues which could not legally be tried in any other way except by consent of parties. (2) This was a mechanic’s lien suit.

— Hon. J. H. ' Slover, Judge. (1) By the charter provision jurisdiction to entertain suits upon tax-bills is not conferred upon all justices of the peace in Kaw township, but only upon such of them as are justices in the City of Kansas. This city is not coextensive with Said township by half in its territorial limits, as the evidence in the record in this cause shows.

— Hon. G-eo. W. Dunn, Judge. (1) A careful reading of the petition will show first, that there is but one cause of action — a “bill to redeem.” (2) That this cause of action is not barred by the statute of limitations; because it accrued on the first of January, 1882, and suit ivas instituted on the fifth of October, 1885.

— Trial before Hon. Noah M. Givan,. Judge of the Seventh. Judicial Circuit. (1) Separate money of the wife paid to the husband or placed to his account by her authority or with her concurrence cannot be recalled by her. Smith’s Equity (Am.

Louis City Circuit Court.- — I-Ion. Daniel Dillon, Judge. (1) The representations made to induce the promise of Samuel Jacoby and on which he relied were material, were false and were so known to be when made, by the officer making them. (2) The correspondence between Bain, president, and Jacoby shows the representations by Bain that were false, and that Jacoby relied upon these representations, as he also asserts in his téstimony.

— Hon. N. M. Givan, Judge. (1) The order of sale and partition herein shows error on its face, in view of the fact found in the decree “that said John Holloway has held possession of said real estate since March 1, 1885, and has refused to allow said plaintiffs or T. P. Holloway to enter and hold or enjoy the same, or any portion thereof, and still holds the same * * * although demand has been made to jointly occupy the same with him.” Qravierv.

— I-Ion. J. P. Grubb, Judge. (1) The word, “provided,” in the dedication by Kemper, followed by what is to be done by the city or community, makes it a grant upon condition. 2 Wash, on Real Property, p. 3, sec. 3 ; Osgood v. Abbott, 58 Me. 73; 4 Kent, side p. 120, et seq. And as the one thousand dollars or more in improvements were to have been expended “within the time of .five years from this date,” it was clearly a condition subsequent. 2 Wash, on Real Property, p. 8, et…

Louis Gity Circuit Court. — Hon. Geo., W. Lubke, Judge. (1) The evidence shows the plain tin guilty of contributory negligence as pleaded in defendant’s answer. (2) The tenth instruction on the subject of contributory negligence given by the court, was error. Zimmerman v. Railroad, 71 Mo. 476-80; Harlan ». Railroad, 65 Mo. 22-25; Nelson v. Railroad, 68 Mo. 598 ; Cagney v. Railroad, 69 Mo. 416 ; Rains x>.

— Hon. G. H. Burckhartt, Judge. (1) The defendant was tried without arraignment or plea. There being no plea, there was no issue. A plea is indispensable. A verdict rendered in the absence of any such plea cannot stand. People r>. Heller, 2 Utah, 138 ; State v. Agee, 68 Mo. 264 ; State v. West, 84 Mo. 440 ; State v. Montgomery, 63 Mo. 296; State v. Barnett, 63 Mo. 300; State v. Barnes, 59 Mo. 154.

— Hon. T. H. Bacon, Judge. (1) The demurrer to the evidence should have been sustained. (2.) The seventh instruction asked by defendant should have been given.