Volume 98 — Missouri Reports

<p>Appeal from St. Louis City Circuit Court. — Hon. Geo. W. Luukk, Judge.</p> <p>The demurrer to the evidence should have been sustained. Woods v. School District, 44 Iowa, 27; Railroad v. Henigh, 23 Kan. 347 ; Railroad v. Connell, 88 Pa. St. 520 ; Railroad v. McLaughlin, 47 111. 265; Lehey v. Railroad, 3 Rob. (N. Y.) 204; State v. Railroad, 24 Md. 84; Bannon 0. Railroad, 24 Mo. 108 ; Railroad 0. Sinclair, 62 Ind. 301; Railroad 0. Hull, 72 111. 222 ; Railroad v. Ward, 4 Col. 30 ; Oanley v. Railroad, 2 A. & E. R. R.' Cases, 4; Hoag 0. Railroad, 85 Pa. St. 293 ; Lewis v. Railroad, 18 A. & E. R. R. Cases, 263 ; Blake v. Newfield, 68 Me. 365 ; Poeppers 0. Railroad, 67 Mo. 725.</p> <p>Whether or not the plaintiff (respondent) was guilty of contributory negligence, such as to exonerate the appellant from liability, was a question of fact for the jury to determine, after receiving from the court proper directions as to how they should apply these facts. Frick 0. Railroad, 75 Mo. 595; Scoville 0. Railroad, 81 Mo. 434 ; Donohoe 0. Railroad, 83 Mo. 543 ; Petty 0, Railroad, 88 Mo. 306; Keim 0. Railroad, 90 Mo. 314. Contributory negligence is not set up as a defense in the case, and hence can only avail the defendant by way of deduction or inference from plaintiff’s evidence. Buesching 0. Gas Light Co., 73 Mo. 219 ; Stephens 0. City of Macon, 83 Mo. 345. The demurrer to the evidence was properly denied;</p>

— Hon. J. P. Grubb, Judge. Plaintiee is the owner of certain vacant lots fronting on Fifth street in St. Joseph, Missouri. He brings this action to recover for damages sustained by the erection of an embankment on which defendant’s railway track is located in that street in front of plaintiff’s lots. Plaintiff became non-suited in the circuit court by reason of the giving of an instruction that he could not recover.

— How. G-. D. Burgess, Judge (1) The entire series of declarations asked by plaintiff should have been given, (a) The first embraces every fact essential to plaintiff’s case. The fact of possession by defendant was admitted, so that the only question was as to the title acquired by plaintiff under the trustee’s deed.

— Hon. Jos. P. Grubb, Judge. (1) A recovery of five thousand dollars is only authorized in a case falling within the provisions of section 2121, Revised Statutes, 1879. That section does not authorize the recovery of any such penalty in the case of a citizen who is killed while driving along the public road in consequence of the failure of the railroad company to construct and maintain a crossing over its track. R. S. 1879, sec. 2121.

— Hon. B. J. Casteel, Special Judge. (1) The court erred in the admission of evidence. (2) The court erred in the giving of instructions, especially the third. There was no evidence that Henry Houk promised the defendant, Catharine Morgan, that if she and her husband would settle upon the land, they or either of them might have it for their own.

Louis City Circuit Court. — Hon. Gr. W. Ltjbke, Judge. (1) The first instruction given for plaintiff was erroneous. Sullivan v. Railroad, 88 Mo. 169. This is a general .instruction, and warrants a recovery for plaintiff, if the jury find the facts upon which it is hypothecated ; but it completely ignores the defense of the statute of limitations set up by answer and in support of which there was ample evidence.

— Hon. Vinton Pike, Special Judge. (1) Barker was a trespasser on the defendant’s track. R: S. 1879, sec. 809. The company does not owe the duty to trespassers, to watch out for them, and protect them while they are trespassing on its enclosed track, at a point in the country not frequented by the public, and remote from highway crossings. McAllister v. By. Go., 64 la. 395 ; Mas ser v. By. Go., 68 la. 602 ; Scheffler v. By.

— Hon, C. H. S. Goodman, Judge. (1) The court erred in admitting the tax deed to Bryant in evidence, for the reason that it is not in the form prescribed by law. The form of deed prescribed by statute contemplates but one tract of land in each deed, and the numbers to be written out in full.

— Hon. Gr. D. Buegkess, Judge. (1) The demurrer to tbe case made by the plaintiff ’s evidence should have been sustained, and the first of-defendant’s refused instructions should have been given, (a) Because there was not a scintilla of evidence tending to show negligence in the particular specified in the petition. Railroad v. Jones, 95 U. S. 439 ; Kilteringham v. Railroad, 62 la. 285 ; JDungan v. Qharwplain Co., 56 N. Y. 1; Odell v. Solomon, 29 JST. Y. 685.

— Hon. J. P. Geubb, Judge. Plaintike' is the widow of Levi Tetherow deceased. She sues to recover damages under the statute, for the death of her husband, charging that it was caused by defendant’s negligence in failing to provide a good and sufficient crossing over its tracks on Fourteenth street in St. Joseph, Missouri.

<p>1. Practice: special judge by agreement, powers oe. Where the regular judge of the circuit is disqualified to sit in a civil cause, the parties may agree upon a special judge to try it (R. S. sec. 1111), who upon qualifying becomes the judge of the court for all the purposes of that suit, and his powers will not cease until the final determination of the cause.</p> <p>2. --:--, The powers of the special judge, in such case, do not cease upon the expiration of the term, of the disqualified judge of the circuit and the qualification of his successor ; in that event either the special judge or the newly qualified judge of the circuit may proceed to hear and determine the cause.</p> <p>3. -:--. The fact that the plaintiffs filed an amended petition and sued out an alias writ of summons, after the qualification of the special judge, does not affect his jurisdiction ; this proceeding only resulted in bringing in the heirs of deceased plaintiffs and the suit remained the same.</p>

Prohibition. The taking of the bond was a judicial act. Blake v. Kimball’s Est., 22 Yt. 632. Supersedeas followed ipso facto from the filing of the bond. Ex parte Floyd, 40 Ala. 117.

— Host. W. B. Hubbabd, Judge. (1) Witnesses Graves and Newton were jointly indicted with defendant for tbe same offense and were therefore incompetent. 1 Greenl. Ev., sec. 863-379; State v. Underwood, 57 Mo. 40 ; State v. Clump, 16 Mo. 385; State v. Chyo Chiaglc, 92 Mo. 395 ; State v. Looney, 82 Mo. 82; State v. Roberts, 15 Mo. 29 ; State v. Hunt, 91 Mo. 491.

— Trial before Hon. M. Gf. McGregor, Judge of Fifteenth' Judicial Circuit. (1) The court erred in overruling the application of the defendant for a change of venue as against the' sheriff and coroner of Christian county. R. S., secs. 1038, 3594; Acts, 1883, p. 57 ; State v. Smith, 90 Mo. 37. (2) The court erred in overruling the objections to the jurors.

— Hon. W. D. Hubbard, Judge. (1) The court erred in admitting evidence tending to show that after the killing, and some three hundred, yards away from the scene, the defendant attempted to shoot and kill old man Greene. This was not a part of the res gestae, but was evidence of a distinct and independent crime, and was highly prejudical to defendant. State v. Rainsbarger, 31 N. W. Eep. 865 ; People v. Hamblin, 7 Orim.

<p>Appeal from Christian Circuit Court. — How. W. D. Hubbard, Judge.</p>

— Hon. Thos. H. Bacon, Judge. (1) The court should have excluded the testimony of Dr. Moore and John W. Taylor,.detailing the supposed dying declarations of the deceased, as it does not appear that the deceased at the time was expecting an impending and almost immediate death, and it does not appear that the deceased had no hope whatever, but on the contrary, the declarations of the deceased show that he had not given up all hope, and when told that he was going to die, he…

— Hon. E. L. Edwards, Judge. (1) The court committed error in refusing to quash the indictment for failure of foreman of grand jury to endorse on said indictment the words, “a true bill,” and for failure to endorse on said indictment, after his name, the word “foreman.” Statutes of 1879, secs. 1795, 1798; State ■». Bruce, 77 Mo. 193 ; State v. Burgess, 24 Mo. 381; State v. Murphy, 47 Mo. 274.

— Hon. Elijah Robinson, Judge. (1) Had the trustee’s deed been valid and passed the entire fee to Marshall S. Allen, the grantee, Marshall S. Allen, as life tenant, would have taken the fee for the benefit of the remaindermen. To take it for his own benefit ‘ ‘ would have been such a fraud upon them as the law will not tolerate.” Keith v. Keith, 80 Mo. 129; Whitney, AdmJr, v. Salter, 86 Minn. 103.

— Hon. John Gr Wear, Judge. The only question presented by this record is oné of pleading. The petition declared upon the coupon without reference to the bond from which it was detached. It is good pleading.

— Hon. J. B. Gantt, Judge. (1) Tlie demurrer to tlie evidence should have been sustained. Plaintiff’s own undisputed evidence shows that he was guilty of contributory negligence, directly tending to produce the accident. After he had safely alighted from the train, and while passing from one train to another, he walked into the creek with his own lighted lantern in his hand. Having been safely landed from his train, he was bound to look where he went.

— Hon. W. X>. Hujbjbard, Judge. (1) The court below erred in overruling the motion for a continuance, thereby forcing defendant to trial in the absence of material and important evidence in this case. State v. Klinger, 43 Mo. 127; State v. Berkley, 92 Mo. 41; State v. Hickman, 75 Mo. 416.

— Vinton Pike, Esq., Special Judge. The action is for personal injuries sustained by plaintiff at the crossing of a public highway by a collision with an engine on defendant’s railroad. The engine struck the wagon on which plaintiff was driving and threw him out.

— Hon. Judge. J. P. Hale, (1) The court erred in permitting the clerk of the Douglas circuit court to attach his certificate to the transcript after it had been placed on file in the office of the circuit clerk of Ozark county, and should have sustained defendant’s motion to strike said transcript from the files. R. S., secs. 1869, 1870. (2) The court erred in overruling defendant’s motion to quash the indictment. R. S., secs. 1394, 2107, 2108, 2118.

<p>Practice: judgment. A judgment in a suit begun and prosecuted against a dead man is void as to him and those claiming under bim.</p>

— Hon. W. I. Wallace, Judge. (1) The court erred in admitting in evidence, as color of title, the collectors’ and sheriff’s deeds to Wm. Dollarhide. (2) The court erred in refusing plaintiffs’ instructions numbers 2, 7 and 21. (3) The court erred in admitting in evidence the entry of abstract in book “E,” page 138, of the records of Hickory county for the purpose of showing that interlineations and erasures had been made in deed offered by the plaintiff.

— Hon. Henry P. White, Judge. (1) The table and gambling devices, to-wit: “Chips or checks, commonly called poker chips, and cards, commonly called playing cards,” mentioned in the indictment, do not fall within the act under which appellant was indicted, for the reason that they are not named in the act, and they cannot be brought within the meaning of the act, under the general words “or any kind of gambling table or gambling device,” because where a statute enumerates…

— Hon. J. H. Slover, Judge. (1) Condemnation proceedings, upon appeal, are to be tried as other cases, the same rules of evidence apply, and in awarding damages and assessing benefits the jury should no more be instructed to be “guided by their own judgment,” than in the trial of ordinary cases where similar questions are involved. City Charter, art. 7, sec. 6 ; County Ct. v. Griswold, 58 Mo. 199 ; Redf. on Railways (2 Ed.) p. 143, sec. 12.

— Hon. Thos. H. Bacon, Judge. This appeal is from a conviction of defendant under an indictment charging that he, being “lawfully-imprisoned,” etc., upon a certain date, “did feloniously break the said county jail and prison by cutting and sawing an iron bar, parcel thereof, and by cutting and removing a large stone, parcel thereof, escape therefrom,” etc. Defendant, testifying as a witness on his own behalf, admitted his escape from jail but asserted that he merely availed…

— Hon. Tuenee A. G-ill, Judge. The defect of parties should have been suggested in the circuit court, and this not having been done, the same was waived. A judgment rendered without notice is void. Anderson ». Brown, 9 Mo. 640; Roach n. Burnes, 83 Mo. 319. And advantage may be taken of such judgment under collateral proceedings. Abbott t>. Sheppard, 44 Mo. 273; Higgins v. Peltzer, 49 Mo. 152; Napton v. Leaton, 71 Mo. 358.

— Hon. Citas. Gr. Burton, Judge. The affidavit filed with the petition was sufficient. It alleged “that to the best of affiant’s knowledge and belief the above named defendant, Lewis McKibben, is a non-resident of the state of Missouri.” Before the court could acquire jurisdiction to make the order for publication of notice, it was essential that a petition be filed containing a description of the real estate to be affected by the proceeding.

— Hon. M. G. McGregor, Judge. (1) The trial court committed error in permitting the plaintiff’s witness, John Small, against defendant’s objection, to answer the question: “State whether or not that crossing is dangerous for a stranger crossing there ? ” Hurt v. Railroad, 94 Mo. 255 ; Road v. Leonhardt, 5 Atl. Rep. 346 ; Maur ». State,' 3 S. Rep. 207; Belch v. Railroad, 18 Mo. App. 80; Kennedy v. Holliday, 25 Mo.

Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The court erred in permitting Presley N. Jones to make the opening statement to the jury and conduct the prosecution, the circuit attorney and his assistant not being interested and not having been of counsel for defendant or the prosecuting witness, and neither being absent or sick. R. S. 1879, secs. 513, 518, 519, 522 and 1908; County v. Clay, 4 Mo. 562; State v. Honig, 78 Mo. 249.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. Transferred to st. loots court of appeals. Plaintiff is assignee of an account against defendant, made by a firm ( L. A. & Co.) for moneys alleged to have been expended for defendant with interest on each of such items from its date. Defendant denied the claim generally. The trial resulted in judgment for defendant. Plaintiff appealed.

— Hon. J. D. Poster, Judge. The testimony in this cause cannot be reconciled with the bonaft des of the purchase by the Purcell boys of the lands in controversy.

Prohibition. Plaintiff is. surety on a bond filed in the circuit court on the making of a temporary restraining order in the suit of Nolan, Adm’r, v. Jones. The principal in the bond is Nolan as administrator, plaintiff in that proceeding. The temporary injunction was dissolved. Defendant Jones then filed a motion for an assessment of damages upon the bond (sustained by reason of the restraining order) in pursuance of the Missouri statute.

— How. W. P. Geiger, Judge. By the answer and replication, this suit was converted into an equitable proceeding for the specific performance of a contract for the conveyance of the real estate in controversy. Green-Myers Mo. Pleading and Practice, sec. 158. If the defendant asks for the enforcement of the title-bond contract, he must tender performance on his part. Delassus v. Poston, 19 Mo. 425; O’ Fallon ®. Kennedy, 45 Mo. 129; Deichmann v. Deichmann, 49 Mo. 109.

Certified from St. Louis Court of Appeals on Division of Opinion. Plaintiff regularly recovered judgment in Greene county for damages for deforcement of her dower there. That judgment was ordered certified to the probate court of Christian county for allowance against the defendant estate of A. Woody, deceased. It was accordingly allowed and placed in the fifth class. On appeal, that ruling was affirmed. Brown v. Woody, Adttir, 64 Mo. 547.

B. E. Turnee, Judge. (Í) An administrator must use that measure of oare, diligence and caution in the management, collection and protection of the estate that a prudent and careful business man would use in the care and management of his own business. If he neglect so to do and the estate is injured thereby he is chargeable with the amount lost. Merrit r>. Merrit, 62 Mo. 157 ; Julian v. Abbott, 73 Mo. 580; 6k 8. 1865, p. 507, secs. 17, 18, 19; Gamble v. Gibson, 59 Mo. 585.

— Hon. John L. Thomas, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action. State ex ret. v. Carroll, 63 Mo. 156 ; Field v. Railroad, 76 Mo. 614 ; Price v. Railroad, 72 Mo. 414. (1) The petition states a cause of action. (2) The court did right in overruling defendant’s demurrer to plaintiff’s testimony. O’ Connor v. Railroad, 94 Mo. 150; Buesehi-ng v. Gas Light Go., 73 Mo. 219 ; Step v. Railroad,, 85 Mo. 229 ; Petty «.

— Hon. Andrew Ellison, Judge. The executive department of the United States had no right or authority to cancel the patent issued to the state of Missouri and issue one in lieu thereof to Nancy A. Brandon.

— Hon. John E. Rtland, Judge. The stealing of property from the person of anyone in a dwelling house, where the property is under the care and protection of the person and not of the house, does not constitute the crime of larceny from a dwelling house. 1 Russell on Crimes, 854-5-6; 1 Bish. Crim. Law, 263, et seq.; 2 Bish. on Crim. Law, 888-889 ; Commonwealth v. Lester, 129 Mass. 101; Commonwealth v. Hartnett, 3 Gray, 450 ; Rex v. Oioen, 2 Leach (4 Ed.) 572; Commonwealth r>.

— Hon. H. S. Kelley, Judge. (1) The effect of the quitclaim deed from Ham to Irvine would be to satisfy and discharge Irvine’s deed of trust and debt secured thereby, if that was the intention of Ham in making, and Irvine in taking, it. 1 Jones on Mort., sec. 855; Champony v. Coope, 34 Barb. 539. And as to what their intentions were, was purely a question of fact for the jury, to be determined by them from all the evidence, facts and circumstances in proof in the case.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) Ward & Poster saw fit to make Ralph R. Poster their sole agent to protect their interests. They conld have selected some one else, but having selected him they are bound by his acts and by his knowledge and by his intent. The employment of Mr. Ryan does not help the matter as he was the attorney of Ralph R. Poster. Buggies v. Co. of Washington, 3 Mo. 496 Carson v. Cummings, 69 Mo. 331; Veazie v. Williams, 8 How.

— Hon. T. A. Gill, Judge. (1) The second instruction given for the plaintiff totally ignored the defense and the evidence adduced in support of it. The case was presented in a one-sided aspect.

<p>Appeal from Jackson Circuit Court. — Hon. T. A. GrILL, Judge.</p>

— Hon. Noaii M. Ctvan, Judge. (1) The court erred in admitting testimony of the witnesses for the plaintiff as to the general reputation of O’Neal as being an incompetent and unskilful servant. (2) The court erred in admitting isolated acts of negligence on the part of said O’Neal. Railroad r>. Gilbert, 2 Am. & Eng. R. R. Cases, 233. (3) The court erred in admitting the ordinances of the City of Kansas in evidence.

— IIon. Henry P. White, Judge. (1) The evidence does not sustain the conviction. State v. Bird, 1 Mo. 585 ; State v. Mansfield, 41 Mo. 470 ; State v. Jaeger, 66 Mo. 173. (2) The court erred in. giving verbal instructions to the jury. R. S., sec. 1920 ; State v. Cooper, 45 Mo. 64 ; Stale v. Thompson, 83 Mo. 257. (3) The court erred in not instructing the jury as to the presumption of innocence the law raises in favor of every one charged with crime.

<p>Appeal from Boone Circuit Court. — IIon. Gr. H. Burckiiartt, Judge.</p> <p>(1) The deed from E. P. Ellis to Wm. O. and P. H. Ellis was absolute on its face, and parol evidence was inadmissible to show a trust. Declarations of trust in land can only be manifested and proved by some writing signed by the party who is enabled to declare such trust. R. S. 1879, sec. 2511; Green v. Cates, 73 Mo. 122 ; Lane ¶. Ewing, 31 Mo. 75; Peacoctc v. Nelson, 50 Mo. 201 ; Bingo v. Richardson, 53 Mo. 396. (2) The giving and acceptance of the notes and cash by the respective parties constituted payment for the land. Appleton v. Kennon, 19 Mo. 637; Wiles v. Robinson, 80 Mo. 52, and cas. cit. (3) The instruction asked by-defendants should have been given. Under the pleadings and evidence the court should have found for defendants. A judgment should be responsive to the issues presented in the pleadings. Ross v. Ross, 81 Mo. 84; Dougherty v. Adkins, 81 Mo. 411; Newham v. Kenton, 79 Mo. 382 ; Muenks v. Bunch, 90 Mo: 500. (4) Defendants’ objections to plaintiffs’ witnesses, Nichols, Babb, Johnson and Murry, should have been sustained. This testimony was irrelevant, incompetent and not admissible under the pleadings and did not tend to prove the cause of action stated in the petition. Mays v. Bryce, 95 Mo. 613 ; Boyd ®. Jones, 60 Mo. 470, and cas. cit.; Albert ®. Beset, 88 Mo. 154, and cas. cit. (5) It is well settled that a debtor has a right to prefer one creditor over another. Sexton ®. Anderson, 95 Mo. 379; Sibley ». Nood, 3 Mo. 290; Cason r>. Murray, 15 Mo. 378; Sellers ®. Baity, 29 Mo. App. 174.</p> <p>There is some conflict in the testimony of the witnesses, but not more than is usual in such cases and the defendants’ witnesses were strongly contradicted by plaintiffs’ witnesses, some of whom did not appear to have any interest in the controversy. But the witnesses were all before the court which tried the cause and that court was therefore better able than this court to determine the credit to which such witnesses were respectively entitled. Judy v. Bank, 81 Mo. 404,</p>

— Non. J. N. Slover, Judge. Objections Laving been made to tlie introduction of the deed of Ragan and wife, on the ground that the grantee named therein was neither a natural nor artificial personage known to the laws of the state of Missouri, it was the duty of the parties offering said deed to prove that the grantee therein had a legal existence.

The trial court erred in following the original opinion in the attempt to adjust rights of those under aad through whom Crowder claimed- title, as they were not parties to the suit. See per curiam opinion on rehearing. Mason v. Blaclc, 87 Mo. 347-8.

<p>1. Pleading, Criminal: indictment : ownership. An indictment for burglary which alleges that the defendant “ did feloniously and burglariously break into and enter a certain building of one Neal Barman, * * * the same being used and occupied by the said Neal Barman as a saloon,” sufficiently charges the ownership of the building, and it is unnecessary to specify the ownership of the goods which it is alleged the accused intended to steal.</p> <p>3. -:-:-: practice. The gist of the offense is the breaking and entering the house with intent to steal, and although the ownership of the property is laid in a certain person, it is immaterial if, upon the trial, the property is shown to belong to another.</p>

— Hon. M. GL McGeegoe, Judge. The oral testimony, admitted by the court, was calculated to do nothing less than to vary, contradict, control, affect, diminish, emasculate and render barren the written contract of the parties.

— Hon. John GL Wear, Judge. (1) Tlie lands embraced in the contention here were granted by the United States to this state by act of congress. 9 U. S. Stat. At Large, p. 519. The trust, thus created, is a personal trust reposed in the public faith of the state, and is not a property trust fastened by the terms of the grant upon the land itself. Dunklin County v. District Court, 23 Mo. 449.

— Eon. E. E. Turnee, Judge. (1) The motion to quash the indictment should have been sustained. It fails to allege that Maggie Huffman agreed to marry defendant, or that she relied on the mutual promise so made and subsisting at the time she was seduced; nor that any time was ever agreed upon to be married ; nor any facts from which the law wTould imply a reasonable time. State v. Helm, 6 Mo. 263; State v. Rose, 25 Mo. 426; State v. EmericTi, 87 Mo. 110.

— Hon. C. H. S. Goodman, Judge. (1) There is no merit in appellant’s complaint that the act of March 29, 1883, amendatory of the act of March 26, 1881, is nnconstitntional because the amendatory act does not set forth, in full, the act amended. Acts, 18S3, p. 89 ; Acts, 1881, p. 130. Any section of a statute may be amended provided it be fully set forth. Sec. 34, art. 4, Const. 1875; State v. Thruslon, 92 Mo. 325.

— Hon. Jab. M. Davis, Judge. (1) Plaintiff’s first instruction is error because it virtually strikes out tffe defenses and directs a verdict without regard to defenses pleaded or the testimony for defendant. Beauchamp v. Higgins, 3 West Rep. 200; Hackman v. McGuire, 2 West Rep. 441; Thomas r>. Babb, 45 Mo. 384; Goelz-v. Railroad, 50 Mo. 472; Railroad v. Harwood, 80 111. 91 ; Sullivan v. Railroad, 88 Mo. 160.

Certified from the Kansas City Court of Appeals. (1) Under the statute of Missouri, advancements can be brought into the hotchpot in partition only, whether in realty or personalty ; and the probate court, in ordering the distribution of the estate in the hands of the administrator cannot consider such advancements. R. S. 1879, sec. 2166; Stewartv.

— Hon. J. D. Poster, J udge. (1) The judgment is in effect a special judgment against each tract for the amount of the taxes charged against it, and not open to the objection urged against it. The execution is special and follows the judgment. The court erred in quashing the execution and setting aside the judgment.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. (1) The instructions do not correspond with the pleadings. There is nothing in the plaintiff 5s reply that justifies the giving of the first instruction for plaintiff. “ Courts do not possess the power to change by instructions the issues which the pleadings present.” Bank v. Murdock, 62 Mo. 70. (2) An erroneous instruction given to one party is not cured by a proper one given to the other. State v. Laune, 1 Mo. App. 371.

— Hon. John Gr. Wear, Judge. The verdict of the jury is insufficient in law to sustain the judgment. Revised Statutes, 1879, section 1234, is a mandatory provision and requires the jury to specify in their verdict of which of the degrees of the offense they find the defendant guilty. Bishop Crim. Pr. and Pro. 595; Whart. Crim. PI. (8 Ed.) sec. 541 ; Whart. Crim.

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

— Hon. Rioiiakd Field, Judge. The answer in the case standing as it does on a defense purely equitable in its nature and asking for relief of which only a court of equity can take cognizance, brings this case on the equity side of the court. Estes v. Ery, 94 Mo. 271.

<p>Church. Corporation: beneficiary of trust: case adjudged. The evidence in a contest between two church corporations examined and held that defendant is shown to have equitably the better right to recognition as the beneficiary in an ancient con veyance under which both claim title.</p>

— Hon. D. A. DeArmond, Judge. (1) There is not a particle of testimony in the case tending to implicate defendant Robert Royston in the difficulty, or… Held: this court will not disturb the verdict of the jury on the ground that it is against the weight of evidence, unless it appears that the jury acted from prejudice or passion. State v. Lowe, 93 Mo. 547; State v. Coolc, 58 Mo. 548; State ». Musióle, 71 Mo. 401; State v. Warner, 74 Mo. 38; State v. Hammond, 77 Mo. 159.

— Hon. J. P. Strother, Judge. (1) The court erred in admitting the alleged statements of Short to the defendant, as there was no proof that Short was the agent of plaintiff. Alexander v. Rollins, 14 Mo. App. 109; s. c., 84 Mo. 657; Pede v. Ritchey, 66 Mo. 114; Bummer v. Banders, 51 Mo. 89. (2) For the same reasons the court erred in refusing the first and second instructions asked by plaintiff.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The admitted,, undisturbed, peaceable, open and notorious possession and enjoyment of the premises in controversy by the appellant and those under whom it derives title in this suit, claiming title thereto for a period of forty-five years, not only gave the appellant perfect title thereto, but made it unlawful for the respondents to interfere with that possession by tearing down that part of the building projecting…

— Horr. C. C. Bland, Judge. This is a proceeding by information in the nature of quo warranto to oust defendants from their tenure of office as councilmen of the city of Rolla in Phelps county. The relator is the prosecuting attorney of that county, proceeding officially. Defendants were chosen councilmen of Rolla at an election otherwise valid but without any previous registration of the voters of that city. Rolla was incorporated by a special act, approved January 25, 1865.

— Hon. M. G. McGregor, Judge. A writ of error or appeal will not be heard in criminal cases when the party suing it out has escaped from the jurisdiction of the court. 1 Chit. Cr. L. 663 ; Whart. Cr. PI. and Pr. (8 Ed.) sec. 774a; State v. Rippon, 2 Bay.

— Hon. C. T. G-arner, Special Judge. (1) A jury must first determine, independent of the mental and physical conditions of the testator, the will and its provisions, whether undue influence was in fact used. It is only after determining this to their satisfaction that they may look into the mental and physical conditions of the testator, and the provisions of the will to determine whether the undue influence, found to have been used, was used with effect.

— Hon. Gr. D. Burgess, Judge. (1) The tenth instruction given on the part of the state is not warranted by the evidence and is calculated to mislead the. jury.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) The partitioning of property claimed by “devisees” under a will does not affect the rights of a third party, not a party to the action, who claims a title adverse to all the claimant parties under the will. Border v. Danis, 38 Mo. 107-117; Tapley n. MePilce, 50 Mo. 592.

Louis City Circuit Court. — Hon. Geo. W. Lubke, Judge. Under the facts and the law of this case, the collector of taxes of St. Louis was entitled to the order prayed for, directing the receiver of the Provident Savings Bank, to pay the tax bill for 1886. R. S. 1879, secs. 6716, 6751, 6754; Laws of 1881, p. 180; State v. Roiose, 49 Mo. 586; Trust Go. v. Railroad, 117 U. S. 434; Trust Go. v. Railroad, 13 Cent. Rep. 404.

— Hon. J. C. Normile, Judge. Hr. Lutz, who made the post mortem on the body of the deceased, testified to the wounds on the bead, which could have been made by a blunt instrument, such as a wooden club which was shown him, and that it was likely that death would result from such wounds almost instantly.

Certified from Kansas City Court of Appeals on Division of Opinion. (1) When two causes of action are joined in one petition, and a separate verdict returned on each, and a new trial is had of one cause, the plaintiff may dismiss as to this cause, and take judgment for the other. Mooney v. Kennett, 19 Mo. 551.

— Hon. Thos. H. Musiok, Special Judge. The action of E. B. Giffen in turning over the goods and making the bill of sale is binding on Sails & Son.

Louis Criminal Court. — Hon. Gr. S. Van Waggonee, Judge. The following are tlie instructions discussed in the opinion of the court: (1) The court instructs the jury that if they believe and find from the evidence in the cause that at any time within three years prior to the finding of this indictment, the McCormick Harvesting Machine Company, was doing business in the city of St. Louis, in the state of Missouri and was a corporation duly established, organized, existing and…

Louis Criminal Court. — Hon. Gr. S. Van Waggoner, Judge. (1) Where a person is charged with one crime, he cannot be proved guilty by evidence tending to prove that he is guilty of another though a similar crime. Cases cited in brief in State v. Pratt, ante, p. 482. (2) The court erred in refusing defendant’s seventh instruction. (3) The court erred in overruling the motion to quash the order for a special venire made at the request of the state.

Louis City Circuit Court. — How. A. M. Thayer, Judge. (1) The right of the city to discriminate between two owners, by casting the injury of its embankment from the northwest corner of the land of plaintiff, is denied. Possibly and probably the injury which but for the conduits or drains under Page (or Cook) avenue to the northwestern lot is, in the eye of law, damnum absque injuria.

— Hon. Gf. H. Burokhartt, Judge. Moberly was authorized by its charter to build and maintain a system of sewers for the drainage of its streets, etc., and for the maintenance of the public health. In 1885, under an ordinance to that effect, it constructed a number of sewers for the drainage of the city. These drains, when completed, discharged the sewage finally into a small running stream or branch, near plaintiffs’ residence within the city limits.

Louis Qity Circuit Court. — Hon. A. M. Thayer, Judge. The trial court erred in declaring the law to be that the defendant could not be held liable for the damages sustained, until he had notice of the defect, and then only for the subsequent damages which might or did ensue. Hylands v. Fletcher, L. R. 3.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. (1) The making of the order of December 7, 1880, was such a demand upon the sheriff as to put in force the operation of statute of limitations. State ex rel. v. Minor, 44 Mo. 376 ; Kirie v. Sportsman, 48 Mo. 383; State ex rel. v. Spencer, 79 Mo. 314; State ex rel. v. Lidwell, 11 Mo. App. 567.

Louis City Circuit Court. — Hon. Geo. W. Ltjbke, Judge. (1) It appears from the undisputed testimony that the share of the Atlantic Milling Company, in the acceptance, was represented by the note of the Victoria Flour Mill Company, whose solvency is not questioned, payable to Bain (the president of the Atlantic Milling Company), by whom the draft had to be drawn, as shown, and by him, Bain, immediately appropriated to the payment of the creditors to whom it had been…

— Hon. Henea P. White, Judge. (1) The principle of law, that no person shall be subject for the same offense to be twice put in jeopardy of life or limb, is too well established and too near an axiom in our system of jurisprudence, to be overridden by any court at its will. It is a principle characteristic of our laws and institutions, and one which distinguishes our system from that of the barbarous nations.

Louis City Criminal Court. — Hon. J. C. Normile, Judge. The case at bar does not come within the reasoning of the decisions of this court in State «. Stephens, 71 Mo. 535, and State v. Kring, 71 Mo. 551, inasmuch as it is not claimed that a severer or different punishment was assessed than that bargained for or expected in consideration of a plea of guilty. Here is presented simply a question of fact.

— Hon. J. R. Woodside, Judge. (1) Under the revenue laws of 1877 and. acts amendatory thereto, tax suits must be brought against the record owner. State ex rel. v. Saclc, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169 ; Evans v. Robberson, 92 Mo. 192.

— Hon. C. H. S. Goodman, Judge. Defendant was indicted, and duly tried for embezzlement. The trial resulted in a conviction and sentence to imprisonment for two years. Motions for new trial and in arrest were overruled at the April term, 1887, of the Daviess circuit court. At the same term defendant took an appeal to the supreme court and an order was entered extending the time to file bill of exceptions to the first day of the next (June) term.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) The deceased was not a fellow-servant with the negligent gripman, because his duties pertained only to guarding the track. A trackman has been repeatedly held by this court not to be a fellow-servant with men operating a train. Such has been the doctrine in this state continuously, since Lewis v. Bailroad, 59 Mo. 495, followed by Sail v. Bailroad, 74 Mo. 301.

<p>1. Practice, Criminal: powers op special judge: second INDICTMENT POR SAME OPPENSE : POWERS OP CIRCUIT JUDGE. Where a special judge has been agreed upon by counsel for the < state and the defendant, and the cause continued, and at a subsequent term, and after the election of a new circuit judge, a second indictment is returned against the defendant for the same offense as that charged in the first, the newly elected judge has power to receive the indictment, determine whether it is for the same oifense, quash the first indictment and take any other necessary steps to put the case in proper condition for trial.</p> <p>2. -:--: -: -. The special judge has jurisdiction to try the cause on the second indictment; but his powers and duties are confined to the trial.</p> <p>8. -: -: -: -. Whether or not the circuit judge erred in holding that the second indictment was for the,same offense as the first can only he reviewed on appeal or writ of error, for which the writ of habeas corpus cannot be made a substitute.</p>

— Hon. Richard Field, Judge. Plaintiffs are husband and wife. Their claim is for personal injuries to Mrs. Harrington caused by a ■ defective plank walk in a street in Sedalia. The defense-asserts her contributory negligence and that the place where the injury occurred was not part of the public highway. An addition to the city had been laid out by plat, approved by the municipal authorities and recorded by the land-owner.

<p>1. Criminal Law: practice: justices’ courts: arrest. A justice cf the peace could, under the act of March 31, 1885 (Laws, 1885, p. 145), amending sections 2025, 2026 and 2028 of the Revised Statutes of 1879, issue a warrant for the arrest of a person upon the filing of a complaint verified by some one competent to testify against him, charging him with the commission of an offense.</p> <p>.2- -: -: -. It was only necessary that an information be filed with a justice as soon as practicable, and before the accused was put upon trial or required to answer to the charge. If the information was filed before defendant entered his plea, the record, as a whole, would show a valid conviction.</p> <p>.8. -: -: -: evidence. Where the docket entries of the justice are silent as to whether the information was filed before the entry of a plea by the defendant, it is competent to show hy the oath of the justice when it was filed, and his failure to make a docket entry of the filing will not invalidate the judgment, where the filing was before plea entered.</p> <p>■4. -: -: -: -. Evidence of the justice that the plea was entered to the information and that it was read to him is no more than the record imports, where it is shown that the information was filed in due time, and such evidence constitutes no ground for reversal.</p>

— Hon. E. L. Edwards, Judge. The court erred in receiving in evidence the statements made by James Farris, a co-defendant, some two weeks after the steer named in the indictment was sold, and in the absence of this defendant. “ When the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own to affect the others.” State v. Boss, 29 Mo. 32; State v. Duncan, 64 Mo. 262;…

— Hon. E. L. Edwards, Judge. Plaintiff was tbe owner of a certain hotel which he exchanged for stock in an incorporated company. He claims that he was defrauded in the transaction. This suit was brought to rescind his deed and restore him to his antecedent position as owner of the property and for other appropriate relief. The answer denied the fraud alleged and set up an accord and satisfaction or settlement.

— Hon. James D. Fox, Judge. (1) That portion of section 1536, Revised Statutes, 1879, providing for indictment, prosecution, and conviction in the county in which the offender may be •apprehended, is violation of sections 22, 12, and 28, of article 2 of the constitution, (a) The constitution •guarantees the defendant an impartial trial by a jury of the county where the crime is charged to have been committed.

— Hon. James M. Davis, Judge. (1) The court should have granted appellant a change of venue. R. S., sec. 1856 ; State v. Wilson, 85 Mo. 134; People v. Yoolcum, 53 Cal. 566; Slade v. Ware, 69 Mo. 333; State v. Wisdom, 84 Mo. 177. (2) The court should have sustained appellant’s first application for a continuance, and especially the supplemental application, taken in connection with the first, over to regular term. R. S., sec. 1883.

Louis City Circuit Court. — Hon. Geo. W. Lubke, Judge. (1) Defendant’s grantor, in an action against the present plaintiff, in the circuit court of St. Louis, and the present plaintiff submitted to that court the question whether the deed of 1853, under which plaintiff - here claims title, operated to pass title, or was effective eo ipso to convey the property described therein.

— Hon. A, J. Seay, Judge.. The court erred in its location of the quarter-section corner in question. There was no error in the action of the court.

— IIon. Geo. L. . Hays, Special Judge. (1) The circuit court erred in sustaining this action by the plaintiffs, the fraudulent grantees, against the creditors and purchasers, Edwards and Tracy, and against Henry B. Lewis, the fraudulent grantor, because ■ the deed under which plaintiffs claim was utterly void as to Tracy and Edwards.

— Hon. Elijah Robinson, Judge. The court should have instructed the jury to find for the defendant. There is no evidence that Mr. Chouteau was engaged in the prosecution of Mr. Engelke. (1) The supreme court will have nothing to do with the weight of testimony; it is sufficient if both parties have introduced evidence tending to prove their respective allegations. Brown v. Railroad, 50 Mo. 641; Grove v. City of Kansas, 75 Mo. 672; Morton v. Moberly, 18 Mo. App. 457.

Louis City Circuit Court. — How. Geo. W. Lubke, Judge. This action is upon two benefit certificates for three thousand dollars, issued by the Supreme Lodge, Knights and Ladies of Honor, upon the life of Jacob Eisner, payable to his widow, the plaintiff, upon his death. The defense is that he misrepresented his age in the application upon which the . certificates were based..

— Hon. Turner A. G-ill, Judge. (1) On the principle that equity considers that as done which ought to have been done, it is well established that land directed to be sold and turned to money is to be regarded as personal property, and that it must be so considered in all questions arising with reference to its character, devolution and disposition. Two questions, then, present themselves in this case.

Louis City Circuit Court.— Hon. A. M. Thayer, Judge. (1) Although the plaintiff was negligent, yet if the defendant, by observing the ordinance, could have prevented the injury, the plaintiff is still entitled to recover. Kelly v. Railroad, 75 Mo. 139 ; Bergman v. Railroad, 88 Mo. 683; Scoville v. Railroad, 81 Mo. 440 ; Welch v. Railroad, 81 Mo. 472 ; Keim r>. Railroad, 90 Mo. 324; Dunlcman v. Railroad, 95 Mo. 244.

— Hon. HenktP. White, Judge. Dependant was indicted September 1.4, 1888, for murder in the first degree, and, after arraignment and plea of “not guilty,” was tried and convicted. The homicide, grew out of a dispute between ■deceased and defendant regarding an order for some wine. The former was a waiter at a variety theater, where the difficulty took place. The particulars of the sad tragedy need not be detailed in view of the questions presented on this appeal.

Louis City Circuit Court. —Hon. Daniel Dillon, Judge. (1) Instructions numbers C, D and E, given at the instance of defendant, were argumentative, misleading, confusing and illegal. (2) It was error to sustain objection of defendants to the offer of plaintiff to read certain parts of the testimony of W. H. Seudder as found in the report of the referee in the case of Ames v. Seudder. They were admissions of one of these defendants, and therefore competent.

Louis Oity Qireidt Qourt. — Hon. Shepabd Babclay, Judge. The plaintiff is not estopped, by reason of her deed to Peck,- from claiming her interest in the west half. The plaintiff, by her deed to Peck, ratified the partition and she is estopped from claiming any interest in the west half.

— Hon. M. Gf. MoGI-regoe, Judge. (1) Neither the application for a continuance, nor the evidence, motion for a new trial or in arrest are made part of the record by being incorporated in a bill of exceptions, and they cannot be noticed by this court. Mere references to them in the bill by citing the page on which they appear is not sufficient.

— Hon. J. D. Fox, Judge. (1) There was a special law regulating the sale of swamp lands in Bollinger county at the time of the sale to Judson Gardner, and the sale, made as it was under the general'law, to said Gardner was invalid and void. Acts, 1856-7, p. 239 ; State ex rel. n. McDowal, 38 Mo. 529 ; Smith v. Ciarle, 54 Mo. 58; State ex rel. v. Wesleyan, 11 Mo. App. 373; Potter’s Dwarris on Stat., p. 154, note 4; City of St. Louis v. Alexander, 23 Mo. 483.