Volume 99 — Missouri Reports

— Ros. C. EL S. Goodman, Judge. If the judgment against Graves and Ewart was void, and if these plaintiffs were not parties to that suit, and if the legal title to the lands is in plaintiffs as alleged in the petition, then they have no standing in a court of equity to set aside this judgment or the sheriff’s deed, or any of the mesne conveyances mentioned in the petition. Fontaine v. Hudson, 93 Mo. 62; Bear v. Toungman, 19 Mo.

— Hon. John P. Strother, Judge. , (1) The plaintiff is entitled to dower in all lands of which Robt. M. Renick was seized of an estate of inheritance to the use of Charles S. Rannells. R. S., 1879, sec. 2186. (2) The land .was held by Robt. M. Renick as curator of Charles S. Rannells.

— Hon. B. E. Turner, Judge. (1) The ninth section of the charter of the Alexandria and Bloomfield Railroad Company, exempting the property of that company from taxation for twenty years after completion, constituted a contract between that corporation and the state within the meaning of that clause of the constitution of the United States which declares that no state “shall pass any law impairing the obligation of contracts.” Trustees of Dartmouth College ®.

— Hon. W. F. Geiger, Judge. This is an action of ejectment. The conflicting titles trace to Dempsy Summers as the common source. The trial court excluded a sheriff’s deed offered by plaintiff, as part of his chain of conveyances, thereby compelling him to take a nonsuit with leave. After the usual steps he brings error.

— Hon. G. D. Burgess, Judge. (1) The provisions of the policies, sued on in this, case in respect of immediate notice in Writing to the defendant of loss, and also of the rendition of proofs of snch loss and the time within which they were to be rendered, constituted warranties, conditions precedent, within the meaning of the law, applicable to such contracts.

<p>Appeal from Gasconade Circuit Court. — Hon. Rudolph Hirzel, J udge.</p> <p>The tenth, instruction given by the court is as follows :</p> <p>“The court instructs the jury that in this case the state attempts to convict the defendant upon circumstantial evidence, and that, before the jury can find defendant guilty, they must believe from the evidence that the facts and circumstances proved by the state are inconsistent with any other reasonable or rational theory, and, if after considering the evidence there is a reasonable doubt in the minds of the jury as to defendant’s guilt, they should give him the benefit of the doubt, and find him not guilty.’5</p> <p>(1) The evidence is not sufficient to support a conviction. (2) The court erred in refusing to give the instructions asked by defendant. (3) The court erred in giving instructions. (4) The court omitted to give instructions it ought to have given.</p> <p>(1) The instructions given upon the trial, with the exception of instruction number 10, are copies of instructions given in the former trial of this cause, and approved by this court in the case of State v. Jackson, 95 Mo. 623. (2) The record shows that instruction number 10 was especially asked for by defendant’s counsel, and was given at their request. The instruction announces the correct rule, and corrects the error of the instruction on that question in the former trial. State v. Jackson, supra.</p>

— Hon. John E. Wait, Special Judge. This is an action of partition to divide one hundred and eighty acres of land in Caldwell county among the heirs of John Yan Winkle, deceased. The parties are his children and grand children.

— Hon. W. I. Wallace, Judge. (1) Tlie court erred, in overruling the objections of the defendant and admitting evidence on part of the state, for that the indictment alleged that the offense was committed on the fourth of November, 1886, and that the fourth of November, 1886, had not arrived. (2) The court erred in permitting the witness to answer the question, as to whether he had seen any persons on the streets some nights before.

Cross-Appeal from Shannon Circuit Court. — Hon. John R. Woodside, Judge. (1) The circuit court properly held that the sheriff’s deed to S. I. K. Barksdale and John M. Daugherty was void. Said deed was executed on a general judgment against, 'and sale of the property of, a deceased person, and is, therefore, void. R. S. 1879, sec. 2360; Hardin v. McCanse, 53 Mo. 255; Wernecke v. Wood, 58 Mo. 352; Brown v. Woody, AdmW, 64 Mo. 547; Wernecke v. Kenyans, Adm’r, 66 Mo. 275.

<p>1. Jurisdiction: practice. Courts of general jurisdiction, when engaged in the exercise of special and limited statutory powers are confined strictly to the authority given; and jurisdiction must appear upon the face of their proceedings.</p> <p>2. -:---. Before the Jackson circuit court can acquire jurisdiction of an appeal from the mayor’s court of Kansas City in a street condemnation case, it must appear that a verdict was rendered in the mayor's court, and an appeal taken therefrom.</p>

<p> Certified from St. Louis Court of Appeals on Division of Opinion. </p>

— Hon. jos. P. v Grubb, Judge. The trustee’s deed from McLean to L. Y. Fleming conveyed no' title, for three reasons: (1) It failed to recite any fact which would authorize it to be made. (2) At the building company’s sale, R. B. Fleming bought his own paper,, or, in other words, discharged his obligations, secured by the deed of trust, by paying $375, thus cancelling the deed under, which the trustee’s sale was made.

— Hon. Noah M. G-ivan, . Judge. Ti-ie action is based on three demands, stated as separate counts, two of which are upon promissory notes made by defendant to a bank, and the third is upon an account for merchandise sold, all alleged to have been regularly transferred to plaintiff. The proceedings began by attachment based on several grounds. There were two trials; the first, on the defendant’s plea denying the grounds of attachment, the second, on the merits.

<p>Appeal from Jackson Criminal Court. — Hon. Hen by P. White, Judge.</p> <p>(1) The jury was separated during the trial of the cause, and, for this reason, the cause should be reversed. State V. Murray, 91 Mo. 95; State v. Collins, 81 Mo. 652, and R. S. 1879, sec. 1909. (2) The court erred in refusing to give the instruction asked by defendant taken from the case of State v. Pagels, 92 Mo. 300, and also instruction asked by defendant to the effect that insanity once proven is presumed to continue. Slate v. Lowe, 93 Mo. 570.</p> <p>(1) Objections to the sufficiency of an indictment cannot be taken by objecting ore tenus to the introduction of evidence. State v. Risley, 72 Mo. 609. The indictment need not charge that the jurors were empanelled, sworn or charged. State v. Vincent, 91 Mo. 662: The charge in the second count that the wound was inflicted with a certain iron weapon and means, which they-, the said Charles Meyers and John Bogard, then and there had and held in their hands, was sufficient. State v. Dalton, 27 Mo. 14; State v. Blaii, 69 Mo. 317. The second count in the indictment in other respects correctly charges the offense of- murder in the first degree, committed in the attempt, and in execution of said attempt, to rob. Laws, 1885, p. 138 ; State ¶. Hoplcirk, 84 Mo. 278. (2) The objection to the state introducing witnesses whose names were not endorsed on the indictment is without merit. State v. Pagels, 92 Mo. 300. (3) The declarations of defendant and his confederate, the night of and just prior to the murder, was admissible to prove that they had no money, as a circumstance in proof of the motive of defendant, and tending to establish the charge in the second count in the indictment. Whar. Crim. Ev. [9 Ed.] sec. 24, and note. (4) The order of the admission of testimony is in the discretion of the trial court. Stale v. Linney, 52 Mo. 40. There was, therefore, no error committed in overruling defendant’s objection to the state recalling and re-examining1 witness Ross. (5) Had the testimony of witness Bert Girard, objected to (rec. 191), been inadmissible, it established nothing to the prejudice of defendant, and would not constitute grounds for a reversal. (6) The confession of defendant was not induced or extorted by means of any promises or threats, or other influences 'calculated to excite his hopes or his fears. The evidence of the confession was properly admitted. State v. HopMrlt, 84 Mo. 278; Whar. Crim. Ev. [9 Ed.] secs. 672, 673 ; Green. Ev., sec. 223; 1 Roscoe’s Crim. Ev., p. 68. (7) It was competent to prove the statement of defendant that he was guilty, made at a previous term of court when the indictment was read over to him, as .testified to by witnesses Ward and McClannahan. Whether it be considered as judicial or an extra-judicial confession, it was a voluntary confession of guilt, and admissible. State «. Briggs, 27 N. W. Rep. 358 ; State v. Rice, 22 Tex. App. 654; State v. Giles, 23 Tex. App. 281; United States v. Kirltwood, 13 Pac. Rep. 234; State v. Lamb, 28 Mo. 218 ; State v. German, 54 Mo. 526 ; Roscoe’s Crim. Ev. *40; Whar. Crim. Ev. [9 Ed.] secs. 664, 667 ; Green. Ev., secs. 216, 227; l.Bish. Crim. Proc., sec. 1255. (8) Questions when asked an expert should be stated hypothetically, embracing the facts testified to on the trial, upon which his opinion is required. When the. facts are doubtful or disputed, it is improper to ask an expert, who has heard the evidence, what his opinion is upon the case on trial. The questions asked Dr. Punton were incomplete, and otherwise objectionable in form. State «. Klinger, 46 Mo. 224; Green Ev., secs. 440; Whar. Crim. Ev. [9 Ed.] sec. 4180; 1 Roscoe’s Crim. Ev., p. 2240. And the same can be said of questions asked Dr. Field. (9) .Persons who are not experts are permitted to give their opinions based upon their observation of, and association with, the person alleged to be insane. See authorities, supra. The evidence of witness Chadburn objected to was, therefore, admissible. (10) Defendant saved no exceptions during the progress of the trial to the giving or refusal of the instructions, and they are not now subject to review. State v. McDonald, 85 Mo. 539, and authorities cited.</p>

<p>1. Constitution: appropriation op money. A reappropriation by the legislature of the unexpended balance of a former appropriation stands upon the same footing as the original appropriation, as to the necessity of stating the object for which such appropriation is made. (Constitution, 1875, art. 10, sec. 19.)</p> <p>3. --: ■--. The object of the reappropriation must be determined by the terms 6f the act making it, and resort cannot be had for that purpose to the first act.</p> <p>3.--: -— : contract. M'oney reappropriated by the legislature for the payment of such balance as was due under a contract authorized by an original appropriation cannot be used in payment of services performed under a contract, made after the lapse of such original appropriation, notwithstanding there was authority under the first appropriation act for entering into the last contract.</p>

— Hon. C. A. • Anthony, Judge. (1) The tax deeds were in the form prescribed by the statute, and made a prima facie case of title in plaintiff, and judgment should have been for him for possession of the land. Acts, 1872, pp. 128,129, 130.

— Hon. James M. Davis Judge. The evidence discloses a clear case of abandonment of the homestead. (a) The case is squarely within the decision of the Missouri supreme court, in Smith v. Bunn, 75 Mo. 560, and the other leading cases on the subject. Danis v. Andrews, 30 Vt. 679; Matter of PhelandC s Estate, 16 Wis. 80; Jarvis v. Moe, 38 Wis. 440.

— Hon. Silas Woodson, Judge. Defendant was tried upon an indictment containing three counts, the first two for assault with intent to kill, and the third for an assault with a knife and a felonious maiming, wounding, etc.,' of the injured party. Defendant was convicted under the third count, and, after the usual motions, appealed.

— Hon. James R. Vaughn,'Judge. (1) Where there is not sufficient evidence to support a judgment for plaintiff, the court should so declare the law. Avery v. Fitzgerald, 94 Mo. 207; Wilson v. Albert, 89 Mo. 587; Hunt v. Railroad, 89 Mo. 607; Garrett v, Greenwelt, 92 Mo. 120; BanJc v. Armstrong, 92 Mo. 265; Hipsley ». Railroad, 88 Mo. 348; Spohn v. Railroad, 87 Mo. 74. (2) On the undisputed evidence in this case, the fence built by A. 0.

Habeas Oorpios. (1) A receiver can only be called to account by the court appointing him; and is not subject to the orders of any other jurisdiction. Henry v. Kaufman, 24 Md. 1; Oonkling v. Butler, 4 Bissell, 22; Walker v. Morris, 14 Georgia, 323. (2) And only the court which appointed him can divest him of the trust which it imposed upon him. Galster v. Syracuse Savings Bank, 29 Hun. 594.

— Hon. James B. Gantt, Judge. (1) The city had the power to erect and maintain scales, and to appoint a weighmaster to take charge of' them. R. S. 1879, sec. 4940; 1 Dillon, Mnn. Corp. [2 Ed.] secs'. 323, 324;.Savannah v. Cullins, 38 Gra. 334; 95 Amer. Dec. 398; Stolees v. City of New Torle, 14 Wend. 87. (2) The city is liable for the negligent use of its own property the same as private corporations. Cao’o-ioigton v. St. Louis, 89 Mo. (208) 215; 1 Dillon, Mun.

— Hon. Geo. W. Dunn, Judge. (1) The lower court erred in remarking from the bench, while deciding upon the objections of plaintiffs to the competency of the question asked by James D. Ish, by his attorneys, to Dr. Henderson, his witness, as to the reputation and standing of Dr. Joseph M. Wood as a physician and surgeon, whose deposition, taken by said James D. Ish, was.on file in this cause, that “Dr. Wood’s character and standing, as an eminent physician} was part of the…

Louis City Circuit Court. — I-Ioh. A. M. Thayer, Judge. (1) It is not intended in this case to controvert the general proposition that a conviction in the lower court •is conclusive evidence of the existence of probable cause, even though the conviction be afterwards set aside on appeal.

— Hon. E. M. Hughes, Judge. This is an action of ejectment to recover four-fifths of a tract of land. Plaintiff claims title by virtue of a sheriff’s deed under a judgment against Henry A. Forgey, and a sale in March, 1884. His other evidence tended to show that the latter lived on the land in 1882-3; rented it to tenants in 1884 and 1885, claiming it as his own and offering to sell it; and that he made a deed of trust for it in 1884 to secure a debt.

Habeas Corpus. (1) “ All persons charged with the commission of crime should be admitted to bail, except in capital cases, where the proof is evident or the presumption great.” State Const., Bill of Rights, sec. 24.

Louis City Circuit Court. — Hon, Gíeo. W. Lubke, Judge. (1) The city of St. Louis is liable for interest from the date plaintiff demanded payment. Mickey «. Philadelphia, 68 Pa. 48; City v. Dyer, 5 Wright, 463; Chicago v. Wheeler, 25 111. 478; R. S. 1879, secs. 2723, 2725.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) Conceding that the common title begins in the will of M. J. Gannon, deceased, it is submitted that the deed of E. J. Gannon to M. J. Gannon, “his wife,” did not vest title of E. J. Gannon in the M. J. Gannon, grantor of respondent; and appellants’ objection to this deed and evidence of E. J. Gannon, respecting it, should have been sustained, and demurrer to evidence should have been sustained, even conceding (for…

Prohibition. (1) The supreme court has a general superintending control over all inferior courts. It also has the power to issue all original remedial writs, and to hear and determine the same. Const., art. 6, sec. 3. (2) The court of appeals had no authority to attach a condition to the exercise of its appellate power, requiring the petitioner .to comply with an order not before the court.

Louis Gity Gireuil Court.— Hon. L. B. Valliant, Judge. (1) The circuit court had jurisdiction to hear and determine this case and to grant the injunction. R. S. 1879, sec. 2722; Overall v. JRuenzi, 67 Mo. 207; Lamsohroeder v. Thias, 51 Mo. 104; Miller v. Lowry, 5 Phila. 202; Kerr v. Trego, 47 Pa. St. 292; Ewing v. Thompson, 43 Pa.

<p>1. Homestead. Two contiguous tracts of land, both constituting one farm or plantation-, will be regarded as a .homestead although only one tract is occupied as a residence.</p> <p>3, -: lien. Where the real estate of the judgment debtor is not subject to levy and sale to satisfy the judgment, no lien attaches thereon by reason of the judgment.</p> <p>3, -: power op disposal. One may sell, mortgage or give awaj Ms homestead.</p>

— Hon. John E. Ryland, Judge. (1) The indictment is wholly insufficient. It fails to charge the homicidal act, itself, was done feloniously, etc. State v. Herrell, 97 Mo. 107. See also State v. Sundheimer, 93 Mo. 313. (2) The court erred in giving state’s instruction number 1, in defining mal ice, and in not discriminating' between the counts of indictment.

— IIon. John L. Thomas, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action. Whitehead v. Railroad, 22 Mo. App. 60; Snyder v. Railroad, 60 Mo. 413; Baton v. Railroad, 57 N. Y. 382; s. o., note of Red field, J., 13 .Am. L. Reg. 665, 672. (2) The court erred in the instruction given to the jury on its own motion.

— Hon. E. L. Edwards, Judge. This is an action of ejectment, originally against, defendant Aehle only, to recover possession of a lot and; building in the city of Boonville. The petition is in the usual form. The answer of Aehle denied the allegations of the' petition. Afterwards the court permitted Sauter, on his own motion, to be made a party defendant. He answered, denying the allegations of the petition, and affirmatively stating that he was the owner of the property.

Louis City Circuit Court. — Hon. Geo. W. Lttbke, Judge. (1) The institution of the attachment suits of H. B. Claffin & Co. and Jacob Friedman & Bro., against Leubrie Bros, was fraudulent and void, there being no . ground for an attachment even if the debts due them were bona fide. It was a transfer of property to defraud creditors. Henderson v. Henderson, 55 Mo. 534; Johnson v. Sullivan, 23 Mo. 474.

— Hon. C. 0. Bland, Judge. (1) The instructions given for the state were erroneous, (a) There is no venue laid in them. It was error to convict the defendant, unless the offense was committed in Dent county, which fact was disregarded in all of the state’s instructions, and the record is silent as to where offense was committed. State v. Inman, 76 Mo. 548; State v. McGrath, 73 Mo. 181; State v. Hughes, 71 Mo. 633; State v. Wheeler, 79 Mo. 366; State v. Hughes, 82 Mo. 86.

Mandamus. (1) Relator was duly elected marshal, and it is the mere ministerial duty of the recorder of voters to issue to him a certificate of election; failing to perform such duty, as an officer, mandamus is the only remedy of relator. State ex rel. v. Steers, 44 Mo. 224; State ex rel. v. Berg, 76 Mo. 147; State ex rel. v. Harrison, 38 Mo. 544; State ex rel. v. ATbin, 44 Mo. 346.

— Hon. Joseph P. GtRtjbb, Judge, (1) The court erred in refusing to permit plaintiff to proceed with his case, and refusing to allow plaintiff to introduce his testimony. Such action was arbitrary, oppressive and without precedent. The former action culminating in the degree was to set aside a conveyance of land, a necessary prerequisite, before he could maintain ejectment. Land passes by grant, and as long as a grant was outstanding ejectment could not be maintained.

— Hon. J. M. Sanduskp, Judge. The court erred in overruling the demurrer to the evidence. There was no showing that the crdssing waa not good and sufficient. (2) The court erred in giving to the jury the first instruction asked by plaintiffs. The proof, without conflict, showed a good and sufficient crossing, reasonably safe to persons using ordinary care, while passing over it. It was error to submit that question to the jury on that proof.

— Hon. E. M. Hughes, Judge. (1) The debts contracted by Elizabeth Mourning-for support, etc., and allowed against her estate, -were, by the will of Thomas Mourning, a charge and lien on the land. Hay dell v. Herick, 72 Mo. 253; Horst v. Bauer, 24 N. W. Rep. [Minn.] 924. The expense of last sickness is in such a case a charge upon the land. Harbison v. James, 90 Mo. 411.

— Hon. J. M. Davis, Judge. (1) The deed of trust from Chinn to Winfrey, and deed of the sheriff (as successor to Winfrey in the trust deed) to plaintiff, and admission of possession by defendant at date of suit, and that the monthly rents were five dollars, made the prima facie case for plaintiffs. Alexander v. Campbell, 74 Mo. 146. (2) Defendant did not acquire the legal title under the sale of the land by Winfrey as trustee.

Louis County Circuit Court. — Non. W. W. Edwards, Judge. (1) Bridgeton Academy is a private corporation and the act of March 16, 1870, authorizing the board of trustees of the town of Bridgeton to levy a tax for its support is in contravention of section 3, article 10, of the constitution of the state, which says : “Taxes may be levied and collected for public purposes only.” Allen v. McKeen, 1 Sumner, 314; College v. Woodward, 4 Wheat. 518; Cleveland v. Stewart, 3 Georgia,…

<p>Appeal from Lafayette Circuit Court. — Hon. J. P. Strother, Judge.</p> <p>This was a suit by Hannah W. Waddell, widow of John J. Waddell, against James White Waddell, Hannah L. Groves and her husband, Prank S. Groves, and John P. Waddell, Robert L. Waddell, Alonzo W. Waddell, Arthur K. Waddell and Mattie E. Waddell, minor children of James William Waddell (son of John J. Waddell, deceased), for partition of certain lands held by defendant’s ancestor, John J. Waddell, under a deed from John Waddell, senior, dated June 6, 1847, conveying to said ancestor a life-estate, and, on his death, “the title in fee simple to go and vest in the children and heirs at law of the said John J. Waddell equally, to be divided among them as tenants in common.”</p> <p>To the petition, the defendants, Hannah L. Groves with her husband, Prank S. Groves, and James White Waddell, interposed separate demurrers. The reasons stated in them were, in substance, as follows:</p> <p>(1) That the petition does not state facts sufficient to constitute a cause of action, for the reason that the operation of the deed of John Waddell, senior, was to create remainders in persons who could not be ascertained until the death of John J. Waddell, which occurrence alone would resolve the uncertainty as to who they should be; and that any interest which Mary Ellen Moore, Edward A. Waddell and Prank C. Waddell may have had in the premises by virtue of said deed, whether vested or contingent, was necessarily defeated by their predecease in the lifetime of their father, John J. Waddell, and could not, therefore, be transmitted to the plaintiff by devise or inheritance.</p> <p>(2) That the petition is multifarious for the reason that, although claiming that the plaintiff is a tenant in common with each of the defendants, it shows that the defendants are not tenants in common with each other; the said James White Waddell having no interest in one hundred and thirty acres of land, and Hannah Groves having no interest in the remaining northwest quarter of the northeast quarter of section twenty-two (22), and the northeast quarter of the northwest quarter of section twenty-three (23), township fifty (50), range twenty-seven (27), in which James White Waddell has an interest.</p> <p>The guardian ad liiem for the other defendants, who are minors, also filed a demurrer, for the reason that the petition does not state facts sufficient to constitute a cause of action.</p> <p>The trial court sustained the demurrers, and the plaintiff refusing to further plead, and electing to stand upon her petition, the court rendered final judgment against her, and she appealed.</p> <p>(1) The children of John J. Waddell had a vested remainder in the land in controversy. “ Whenever the preceding estate is limited, so as to determine on an event which certainly must happen, and the remainder is so limited to a person in esse and ascertained, that the preceding estate may by any means determine before the expiration of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding estate is limited so as to determine only on an event which is uncertain and may never hapjien, or wherever the remainder is limited to a person not in esse, or not ascertained, or wherever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate and duration of the estate limited in the remainder to give it capacity of taking effect, then the remainder is contingent. Fearne on Remainders, 217 ; 4 Kent, 201, 205. (2) At the death of two of the children, their estate passed to their mother. “ Where the devise is to the mother for life, and then to the children, the right to the remainder vests in the children as they are born, and if any of them die before the determining of the life-estate, their interests vest in [their heirs. 14 B. Mon. 176. See Jones o. Waters, 17 Mo. 587 ; Aubuchon «. Bender, 44 Mo. 560. (2) The petition is not multifarious. A just and equal partition cannot be made unless the entire tract and all interests are before the court, and it makes no difference that other parties have acquired interests from some of the children.</p> <p>(1) The words “children and heirs at law” in the deed of John Waddell, senior, are predicated in respect to persons who shall be living at the time of the death of John J. Waddell, and can therefore be applicable to none of his children except such as shall be living and in existence at that time. Such surviving children would be heirs and .would constitute a class which is contained in the general term “ heirs at law,” as a part is contained in the whole, and as terms which are general and universal, when used in conjunction with their component parts, embrace and contain such partitives, the phrase is equivalent to the, general term, “heirs at law.” Omne majus irahet ad se quod est minus. Helassus• ». Gatewood, 71 Mo. 371; Emison v. Whittlesey, 55 Mo. 254; Thompson n. Haddington, 104 Mass. 193 ; Olney v. Hull, 21 Pick. 311; 2 Jarman on Wills [5 Am. Ed. 1880] 429 ; Bingham on Descents, 125, 222, 233 ; Williamson v. Williamson, 18 B. Mon. 329 ; 2 Wash, on Real Estate [4 Ed.] sec. 16 ; Tud. Lead. Cas. 496 ; Clark v. Mosely, 1 Richardson’s Eq. R. 396 ; Co. Litt. 436 ; 19 Yin. Abr. 379 ; Jenk. Cent. 208 ; Crecelius v. Horst, 78'Mo. 566. (2) The petition is clearly multifarious. Martha G. Waddell, at the commencement of the suit, was not seized as a tenant in common in eighty acres of the land. She possessed no interest therein as is shown by the petition; and her . daughter, the defendant, Hannah L. Groves has never been entitled to any interest therein. Stalcup v. Garner, 26 Mo. 74; Doan v. Holly, 25 Mo. 357; Rogers v. Miller, 48 Mo. 378 ; Lambert n. Blumenthal, 26 Mo. 471.</p>

<p>Personal Injuries: damages. One cannot, in an action for personal injuries, recover for expenses incurred “for professional services of physicians and nurses and for drugs,” in the absence of evidence showing the amount of such expenses, or that any were ever paid, or any liability incurred therefor.</p>

Mandamus. Kansas City had the power, in view of the general legislation on the subject of grading, enlarging and. improving streets, to provide a method or plan of its own for the improvement of its streets and public highways and for the assessment of benefits and damages, done to private property arising therefrom. The charter of Kansas City does not supersede the-acts of the legislature on the subject of grading, enlarging and improving streets.

The petition sets forth facts sufficient to constitute a cause of action, if there is any liability on the contractor and his bondsmen, by reason of the execution of the contract, set forth in plaintiff’s petition, and for the breach of the following conditions therein plaintiff sues: “That the said party of the first part shall be responsible for all unlawful damages to persons or property from negligence or carelessness in doing said work.” See definition of responsible.

— Hon. Richard H. Pield, Judge. (1) Both, by the terms of Revised Statutes, 1879, 'section 5838, and by the general rules of law in reference to the matter, the date of the first appointment fixed the beginning of the term of office. Haight n. Lone, 39 N. J. Law, 476. The expression, “term of office,” refers to the office, and not to the person holding it. The right to hold over does not extend the term, as applied to the office, but is merely a personal right.

<p>Appeal from Jaclcson Circuit Court. — Hon. J. H. Sloven, Judge.</p> <p>(1) At the time of filing the plat of McGee’s addition to the City of Kansas, Holmes and McGee were in possession of the land platted, claiming to own the same in fee simple; and the plat of said addition, being duly acknowledged by Holmes and McGee as the proprietors of said addition, duly certified and deposited for record with the recorder of Jackson county, in which the City of Kansas is situate, vested as to Holmes and McGee, and all persons claiming by, through or under them, the fee of all the streets, alleys and parcels of ground in said addition, intended for public use, as parks, in said city, in trust for public use as therein intended. 2 R. S. 1855, chap. 158, secs. 1, 8 and 9, pp. 1535, 1536; The City of Hannibal v. Draper, 15 Mo. 634; Reid v. Board of Education, 73 Mo. 295 ; City of California v. Howard, 78 Mo. 88; McShane v. The City of Moberly, 79 Mo. 41; Ragan v. McCoy, 29 Mo. 356; City of Hannibal v. Draper, 36 Mo. 332 ; Morgan v. Railroad, 96 U. S. —. This square having been dedicated on the plat thereof as a park, and a park being a public use, the reservation by Holmes and McGee of this park from public use, being inconsistent with the dedication and repugnant to the purposes of the grant, such reservation is void, and the City of Kansas takes the park in trust for the uses and purposes intended by th.e dedication. Wood v. Water Works Co., 33 Kas. 590; Price v. Plainfield, 40 N. J. L. 608; 2 R. S. 1855, sec. 8, p. 1536. (2) The square of ground in controversy was not subdivided into lots or numbered as a lot intended for sale, but was designated on the recorded plat as a park; and the lots surrounding it being platted with special reference to this square as a park, and all of said lots having been sold by the proprietors and bought with special reference to such ground as a park, and built upon on the faith that the square was a park, constitute a dedication of such ground as a park, and Holmes and McGee and their heirs and assigns became bound thereby, and are estopped from denying that such a square was dedicated to the public as a park. City of Bayonne v. Ford, 43 N. J. L. 292; Bayless v. Board of Supervisors, 5 Dillon C. C. 549; Ruch v. City of Rock Island, 5 Bisse'll C. C. 95; Price v. Town of Breckenridge, 92 Mo. 378; Angelí on Highways [Choate’s Ed.] sec. 149, and cases cited. (3) The land in which the park in question is situate, being within the corporate limits of the City of Kansas, at the time the said addition was platted, in the year 1857, and laid out in lots, parks, streets and alleys; and the City of Kansas having accepted the same by improving the streets and alleys in said addition and preparing an official map of the city, on which the square in controversy is designated as a public park, and exempting the same from taxation until 1870, the dedication thereof as such park became thereby complete and binding on the proprietors of said addition, their heirs and assigns, and all persons claiming under them. Gamble v. City of St. Louis, 12 Mo. 617; Taylor ©. City of St. Louis, 14 Mo. 20 ; Rose v. City of St. Charles, 49 Mo. 509; Price v. Town of Breclcenridge, 92 Mo. 378; Derby ¶. Town of Ailing, 40 Conn. 410; Abbott v. ■ Cottage City, 143 Mass. 521. (4) Holmes and McGree, as the proprietors of McGree’s addition to Kansas City, having designated on the plat thereof the square of ground, in controversy, as a “park,” and platted the lots surrounding the same with reference thereto, and conveyed said lots as platted, with the representations that this square of ground was a park, they became thereby bound to the grantees of such lots not to sell or use said square for any other purpose than a park, although the same may have been expressed on said plat as reserved from public use, and the title kept in said proprietors. Lenning ®. Ass’n, 41 N. J. Eq. 606 ; City of Bayonne v. Ford, 43 N. J. L. [14 Vr.] 292 ; Maywood v. Tillage of Mayioood, 118 111. 61; Zearing v. Raber, 74 111. 409; Rowan’s Ex’r v. Portland, 8 B. Monr. [Ky.] 232; Schreider ©. Jacobs [Ky. 1887] 5 S. W. Rep. 350; City of Dubuque v. Maloney, 9 Iowa, 450; Chapin v. Brown, 15 R. I. 579; Tillage of Weeping Water v. Reed, 21 Neb. 261; Grogan o. Town of Hayward, 6 Sawyer C. C. 498; San Le Andró n. LeBreton, 72 Cal. 170; Commissioners of Franklin v. Lathrop, 9 Kas. 453; Commissioners of Wyandotte v. Presbyterian Church, 30 Kas. 620; Methodist C hureh v. Hoboken, 33 N. J. L. 13; 2 Dillon on Mun. Corp. [3 Ed.] sec. 640, and cases cited. (5) Mrs. Campbell, after the dedication by Holmes and McGree of this square as a park by the recorded plat of McGee’s addition, in 1857, having sold and conveyed to the purchasers from Holmes and McGee all her right, title and interest in lots in the addition, and surrounding this square, for a valuable consideration, with special reference to said recorded plat, and having required of her grantees a release of all covenants or warranties of title in their conveyances from Holmes and McGee, thereby adopted and ratified said plat and dedication, and became bound to her grantees to maintain such square as a park, as expressed and intended in said dedication, in like manner as Holmes and McGee were bound, and to the same extent as though she had originally made such dedication herself as the proprietor of said addition. Rector v. Hart, 8 Mo. 448 ; Dold v. Vodicka, 49 Mo. 100; Kairne v. Harty, 73 Mo. 316; Brown v. Manning, 6 Ohio, 298; Carter v. City of Portland, 4 Oregon, 339 ; Clark v. City of Elizabeth, 40 N. J. L. 172; Brooks v. City of Topeka, 34 Kas..277; Fulton v. Town of Dover, 6 At. Rep. [Del. Ch. 1879] 633 ; Herman on Estoppel, secs. 1145, 1147, pp. 1282, 1284, and cases cited;- 2 Dill. Corp. [3 Ed.] sec. 640, and cases cited. (6) Respondents purchased the ground respectively claimed by them, in the square of ground in controversy, with knowledge of the dedication of the same as a park, and their titles are based or derived from quitclaim deeds thereto, executed by Mrs. Campbell to the heirs of Holmes and the grantee of the heirs of McGee. Respondents, therefore, are equally and effectually bound by the dedication of said square, as a park, as Mrs. Campbell and the heirs of Holmes and McGee. Hannibal v. Draper, 15 Mo. 634; Ridgeway v. Holliday, 59 Mo. 444; Campbell v. Cas Light Co., 84 Mo. 352. (7) It is not necessary that the legal title should pass out of the proprietors, nor that there should be any grant of the use or easement to take the fee, to constitute a valid dedication of this square of ground as a park. The reservation, therefore, by Holmes and McGee of the title to this park to themselves, even if valid, as expressed on the plat, did not operate to prevent the dedication of this square from taking effect as a park as intended by them. City of Dubuque ¶. Maloney, 9 Iowa, 450; New Orleans v. United States, 10 Pet. [U. ¡á.] 662; City of Cincinnati v. White's Lessees, 6 Pet. [Ü. S.]431; Kelsey v. King, 33 How. Pr. [N. Y.] 39; Cummings r>. City of St. Louis, 93 Mo. 259; 2 Dillon, Mun. Corp. [3 Ed.] secs. 629, 633, and cases cited. (8) The square in controversy having been dedicated as a park by Holmes and McGee in 1857, and the lots surrounding the same sold and conveyed by them with reference to the square as a public park; and Mrs. Campbell thereafter, in 1869, 1870 and 1871, having expressly ratified said conveyances by releasing to the purchasers of said lots all her right, title and interest therein as appeared from the recorded plat of said addition, and the City of Kansas having accepted said plat by improving the streets designated therein, and preparing, in 1870, an official map of the city, on which the square in controversy is designated as a park, the same became thereby public grounds; and the action of the city authorities xn taxing said ground thereafter, and in attempting to condemn the same to public use as private property, did not change the character of the square from public ground, nor operate to divest the rights 'which had vested in such purchasers to have said square kept and maintained as a park. Lemon v. Hayden, 13 Wis. 159 ; Chicago b. Wright, 69 111. 318; McKee v. City of St. Louis, 17 Mo. 184 ; City of Hannibal b. Draper, 36 Mo. 337; Moses v. Dock Co., 84 Mo. 242. (9) The possession of Holmes and McGee and their grantees of the lots and parcels of ground included in McGee’s addition, claiming under the title of Holmes and McGee, and under the recorded plat of said addition, was adverse to Mrs. Campbell’s claim to the entire tract included in the addition, and such possession and claim, being acquiesced in by lier for more than ten years after her husband’s death, operated to transfer the title to the lots to Holmes and McOee and their assigns, and to vest in the City of Kansas the fee-simple title to the streets and parks in the entire addition, as designated on said plat, and to bar Mrs. Campbell from any claim of right or title to any part of such addition. R. S. 1865, secs. 3219, 3223, pp. 543, 544; Barclay v. Howell's Lessees, 6 Pet. [U. S.] 500; 2 Dillon, Mun. Corp. [3 Ed.] sec. 637, and cases cited ; Price v. Town of BrecJcenridge, 92 Mo. 378; Slade r>. Walters, 69 Mo. 463. And it is not necessary to bar Mrs. Campbell of her right that the park should be actually enclosed. Schultz v. Lindell, 30 Mo. 310; Bradley v. West, 60 Mo. 59.</p> <p>There are three reasons why this land was not dedicated : (1) Because the plat shows that not only was there no intent so to do by the makers thereof, but that they feared it might be so construed if they left it unmarked. “ This park is reserved from public use, and title kept in proprietors E. M. McG-ee, N. Holmes.” Even in their acknowledgment, they declared the plat to be their free act and'deed, “adhering, however, to reservation made in the specification as to parks.” The plat declares this ground private property; it may be that they were not compelled so to do, but, so declaring, can it be possible, that this court will erase it and write on it a contrary declaration ? McGfee and Holmes are dead. They cannot explain the random talk attributed to them, from fifteen to twenty years, before this trial. But if titles to land can be divested thereby which we deny (Cornet v. Bertelsmann; 61 Mo. 127), then we say it amounts to nothing more than this, that they intended to dedicate if certain things were done. “To establish a common-law dedication there must first be an intention to do it on part of the owner. And this must be unequivocally and satisfactorily proved.” Washburn on Easements, 209; Brinde v. Collier, 56 Mo. 164; Landis v. Hamilton, 77 Mo. 560 ; McShane v. City, 79 Mo. 45; The City v. University, 88 Mo. 158. (2) A second reason is, there was no acceptance by the city. The owners could not force the city to take it. It must be time, that stronger evidence is called for to show this, in case of a park than of a street. There may be a necessity apparent for the latter; it costs but little to improve it, and the expense' can be assessed against abutting owners; it grows into a thoroughfare by use. None of these reasons apply to a park. Quinn v. Anderson, 70 Cal. 457; Onstott v. Murray, 20 la. 469; Balter v. Johnson, 21 Mich. 340. (3) For a third reason we say there was no dedication, as the random talk of McG-ee and Holmes was not joint but separate. There is no claim that either knew what the other had said. It is well settled that a co-tenant cannot make a valid dedication. Washburn on Easements [4 Ed.] 208; Scott v. Cheatham, 12 Heisk. 713; City v. Cas Light Co., 96 Mo. 197.</p> <p>(1) The fact, that lots may have been sold in this addition by McGee or Holmes fronting toward this square to parties believing, on account of verbal declarations made by the sellers, that this block was or would be a park, will not have the effect to constitute a dedication as against the recorded plat. Schuman v. Homestead, 111 Pa. .St. 48. (2) A dedication of land to public use is not to be presumed. The acts relied on to establish it must be inconsistent and irreconcilable with any other construction. Landis v. Hamilton, 77 Mo. 554; Scott v. I)es Moines, 64 Iowa, 438; Irwin v. Dixon, 9 Howard, 10; Eastland v. Fargo, 58 - Wis. 274; Creamer v. MeCune, 7 Mo. App. 91. (3) McGee and Holmes, exercising whatever of right and power over this square they possessed, refused by their plat, filed and recorded, to dedicate the land in controversy to public use by writing across the block, and within the lines bounding the block, on the plat, the words, “this park is reserved from public use, and title kept in the proprietors, E. M. McGee and N. Holmes.” Grant v. City of Davenport, 18 Iowa, 179; Eastland v. Fargo, 58 Wis. 274. (4) So far as the rights of plaintiff and defendants are affected by the acts of McGee and Holmes, the plat filed, and in evidence, is of greater weight and controlling influence than the verbal declarations of the makers of said plat. Laws, 1885, pp. 135-137.</p>

Louis City Circuit Court. — Hon. Gr. W. Lubke, Judge. (1) The demurrer to the evidence at the close of plaintiff’s case should have been sustained, and the court committed error in overruling the same. Harlan v. Railroad, 64 Mo. 482; Maher v. Railroad, 64 Mo. 260; Zimmerman v. Railroad, 72 Mo. 476; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80; Railroad v. Heilman, 49 Pa. St. 60; Railroad v. Beale, 73 Pa.

— Hon. J. H. Sloveb, Judge.1 (1) Tbe petition does not state a cause of action, because it does not show in what the negligence consisted. Qurley v. Railroad 93 Mo. 455; Peltz v. Michele, 62 Mo. 171. (2) The demurrer to the testimony introduced by plaintiff should have been sustained.

Court. — ITok. J. M. Steotheb, Judge. (1) The court erred in admitting the testimony of both Mr. and Mrs. Henry, the respondents, they being husband and wife, as to conversations had between themselves, or by them in connection with Shobe. Holman no. Bachus, 73 Mo. 50; Moore no. Moore, 51 Mo. 118; Spradling no. Conway, 51 Mo. 53 ; Block no. Ash-brook, 51 Mo. 540; Willis v. Tommell, 67 Mo. 731; Moore no..

<p>Appeal from Boone Circuit Court. — Hon. G. H. Burckhartt, Judge.</p> <p>(1) The court below erred, in overruling objection number 2. The inventory shows a note due the estate for twenty thousand dollars, and considerable interest. Eleven thousand dollars thereof is charged to the executrix. The balance must be so charged, or satisfactorily accounted for, with interest. This is self-evident, and needs neither authorities nor argument. 73 Mo. 580; 10 Mo. App. 232. (2) The court erred in overruling objection number 17, because a number of these claims accrued during the lifetime of the decedent, and have not been allowed by any court, as required by law. Because other items were for taxes paid for which the estate was never liable. R. S., sec. 230; 73 Mo. 580; 62 Mo. 450 and 460; 61 Mo. 540. (3) The court below erred in overruling objection number 18 to defendant’s second annual settlement, because the items embraced in the objection were not allowed by any court, Because vouchers 16, 17 and 19 were for taxes for which the estate was not liable. Because voucher 23 was for double commissions, charged by Gfuitar, and also chai’ged by the executrix. (4) The court below erred in passing the final settlement. Because, if the final settlement is based on the annual settlements, and if they are wrong, the final settlement cannot be correct, and objection number 19 should have been sustained. 62 Mo. 417.</p> <p>(1) The court did not err in overruling the exception as to the Caulfield note. Schouler on Executors, secs. 386, 315; Merritt v. Merritt, 62 Mo. 150. Mrs. Caulfield’s real estate in the deed of trust was released by the extension of time given on the note by the testator. Rucker v. Robinson, 38 Mo. 154; Wilcox v. Todd, 64 Mo. 388. (2) The item of $1,302.86 in exception 17 was properly allowed. (3) The commissions of Guitar, Carpenter and Edwin Jacobs as brokerage for their services in selling real estate were properly allowed as part of the expense of administration. Gamble ». Gibson, 39 Mo. 585; Rey v. Goleman, 30 N. J. Eq. 259; Tucker v. Tucker, 59 N. J. Eq. 286; Henderson v. Simmons, 33 Ala. 291; Schonler’s Executors, sec. 342; 2 Perry on Trusts, sec. 912; 3 Williams on Executors, p. 1860.</p>

Appeal .from, Yernon Circuit Court. — Hon. Chas. Gr. '.Burton, Judge. (1) Plaintiffs’ petition does not statc^facts sufficient to constitute any cause of action agains\ defendants, and the trial court erred in admitting, on the.trial, over the objections of defendants, any evidence whatever, and in overruling defendants’ motion in arrest of judgment. When a case is constituted of frauds, it must be fully stated of what the fraud consisted, and how it was affected.

— Hon. John L. Thomas, Judge. (1) Plaintiff having faithfully and fully performed the conditions of the contract on his part, it became absolute and rests upon the same footing for all purposes as if it had been originally made, positively, and without reference to any contingency. Fry on Specific Performance [New Ed.] sec. 654, p. 386; Laning v. Cole, 3 Green’s Ch. (N. J.) 229.

Louis City Circuit Court. — Hon. Amos M. Thax.ee, Judge. (1) Notorious and exclusive possession of realty by a third, party,' when known to a purchaser, puts him upon inquiry, and, in the absence of evidence showing a proper but ineffectual inquiry, the presumption or conclusion charging such purchaser with actual notice of the rights of the occupant becomes absolute.

— Hon. W. I. . Wallace, Judge. (1) The verdict did not specify the number of years the defendant was' to be imprisoned in the penitentiary, as provided by law. The jury assessed his punishment in the penitentiary during his natural life. The law evidently intended that verdicts should specify the number of years, so that convicts could have benefit of three-fourths rate, as provided by section 6533, Revised Statutes, 1879.

Louis Court of Criminal Correction. Hon. E. A. Noonan, Judge. The defendant was prosecuted in one of the police courts of St. Louis for violating an ordinance of the city by refusing to connect certain premises with the adjacent sewer, pursuant to the order of the health commissioner to that effect. The case was tried before a jury. The defendant was acquitted. The plaintiff appealed to the St. Louis court of criminal correction.

- — Hon. Theodore Brace, Judge. (1) The principles applicable to this case are not longer open to contention in this state. STiarlcey t¡. McDermott, 91 Mo. 647; Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37. (2) It is understood that the objection to the enforceability of the contract in equity has been, that during the life of Mr. McCormick it wanted mutuality of remedy as against Dr. Campbell and plaintiff.

Habeas Corpus. (1) Respondent, J. W. Marley, by contract and agreement. relinquished Ms parental control over the child Louise, and surrendered the same to the petitioners herein. That such contract is valid and binding on J. W. Marley, especially as he permitted petitioners for years to discharge the obligations of parents and permitted the affections of the child to become attached and a current given to her life.

Loicis City Circuit Court. (1) The judgment was prematurely rendered. It should have been preceded by an order on appellants to bring in new parties, if any such were necessary. Hayden v. Marmaduke, 19 Mo. 403. (2) The petition shows a good cause of action and should have been sustained. Drury v. Cross, 74 U. S. 299; Railroad v. Howard, 74 U. S. 392. (3) Plaintiffs have a legal capacity to sue and the court erred in holding the contrary.

— Non. T. A. Gtll, Judge. (1) Defendant’s demurrer ought to have been sustained. (a) There is no evidence that the servants of defendant saw or could have seen plaintiff in time to stop train and avoid injury- Wood’s Railway Law, pp. 1275, 1276, 1277 and 1278; Jaclcson v‘ Hardin, 83 Mo. 186; Landis n. Hamilton, 77 Mo. 554; Powell r>. Railroad, 76 Mo. 84; Boland n. Railroad, 36 Mo. 484.

— Hon. A. J. Seay, Judge. The sale and conveyance under the deed of trust would have made an apparent better title in the purchaser, which, though no title in fact, could only have been defended against by proof of matter dehors. the deed. This being so the sale and conveyance would liave oast a cloud on appellant’s title, and therefore the court erred in sustaining the demurrer to plaintiff’s petition, and should have made the injunction perpetual as prayed for.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) There is equity in the bill, and it states a cause of action, (a) Because of the appointment of the collector’ s attorney as the guardian ad litem of appellants in the tax suit against them. Sargent v. Rowsey, 89 Mo. 617. (5) Because of the gross inadequacy of selling price of the real estate. Eloepping r>. Stellmacher, 21 N. J. Eq. 328; Holmes v. Fresh, 9 Mo. 211; 2 Pomeroy Eq.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Evidence for defense irrelevant and illegal: Because not pertinent to the issue framed by the pleadings. Relating only to the trust and by the ruling of the court, denied to plaintiff unless the court should declare the charter expired. (2) No term declared in the charter, its duration was limited to twenty years. Code of 1845, p.' 122, Corporations, sec. 1, par. 1.

— How. Elijah Robinson, Judge. (1) The principal question presented for considera- - tion by the record in this case is whether the defendant has a homestead in the land in question notwithstanding her husband’s will. The homestead is excepted by act of the law of devises. The husband’s will must yield to the will of the legislature. The wife cannot be put aside by the will of her husband to her election of a homestead. She can take both under the will and under the law.

— IIon. J. L. Smith, Special Judge. This being an action at law, the parties had a constitutional right to a trial by jury, the finding of the referee was equivalent to the verdict of a jury, and the court had no further or greater authority over the report than it would have over a verdict. It might set aside the report and grant a new trial if not sustained by the evidence, but would have no right to substitute findings of its own.

Mandamus. (1) The purposes of the Lafayette Park Club are •of an educational nature, tending to promote literature and intellectual culture, and come directly within the provisions of the statute. R. S. 1889, secs. 2821-2, ■et seq. The state grants the right of incorporation where the associátion .is designed to promote literature, and this is one of the declared objects of the club.

Louis City Circuit Court. — Hon. George W. Lttbke, Judge. (1) The court erred in refusing plaintiff ’ s instruction number 10 (page 67 of transcript). There ivas no-conflict in the evidence as to the new contract between plaintiff and defendants extending the time of payment. This was a vital point in the case, and the-refusal of the court so to instruct the jury was-error, most prejudicial to the plaintiff’s case.

Certified from Kansas City Court of Appeals. (1) As the answer pleaded no tender, the evidence should have been confined to the issues. Gal-breath v. Moberly, 80 Mo. 484. (2) A party can only recover or defend on the case made by his pleadings. Moffatt n. Conldin, 35 Mo. 453; Glass v. Gelvin, 80 Mo. 297. (3) Defendants could not rescind without restoring consideration. Estes n. Reynolds, 75 Mo. 563. (4) Right of rescissions must be promptly exercised.

Plaintipp brought this action to recover for an alleged breach of the official bond of the former public administrator while in charge of the same estate. Defendants are the principal in that bond and his sureties. The defendant principal entered his appearance but made no defense.

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

— How. J. P. StrotheRj Judge. (1) There was no sufficient cause shown why the claim was not presented at the time it should have been under the notice, and the court erred in finding that there was such, R. S., sec. 373; Ellison v. Lindsley, 33 N. J. Equity, 258. (2) Plaintiff asks simply to be relieved from the effect of the carelessness of both himself and attorney. He cannot have such relief.

— Hon. Jas. B. Gantt, Judge. (I) Wken the defendant Jackson became the administrator of the estate of Jacob Fudge, deceased, the debt of Erwin, on which the judgment was rendered in his favor, under which the lands sought to be affected by this proceeding were sold, vested in him, in trust, for the use and benefit of those entitled thereto, under the laws of this state: First, the creditors; second, the-heirs-at-law.

Charles Circuit Court.- — Hon W. W. Edwards, Judge. (1) The judge having the authority to make the order on the back of the reporter’s notes, the filing of the bill of exceptions was in time. (2) The evidence does not support the verdict. (3) Instruction number 1, given by the court on its own motion, is erroneous. State v. Reeves, 97 Mo. 668. (4) The jury should have been told what constituted reasonable doubt. State v. Nueslin, 25 Mo.

— Hon. J. D. Poster, Judge. (1) The testimony shows conclusively that, at the time plaintiff surrendered the possession of the premises to Bollinger, he, and those under whom he claimed, had held open, notorious, adverse and continuous possession for more than ten years next before such surrender; and had he required the claimant to have brought his suit in ejectment, and thus given his grantor an opportunity to have defended said title, this defendant could have…

— How. C. W. Sloan, Judge. (1) Defendants are liable in this case jointly. Bliss on Code Pleadings, secs. 70, 73, 74 and 75 ; State ex rel. v. Thornton, 56 Mo. 325. (2) A minor is entitled to his estate on arriving at age, and he may sue his guardian before, final settlement. State ex rel. v. Rasswaag, 3 Mo. App. 11; State ex rel. •». Thornton, 56 Mo. 325 ; State ex rel. v. Roeper, 9 Mo. App. 21; s. c., 82 Mo. 57; State ex rel. IToshaw, 86 Mo. 193; Flach v. ‘Fassen, 3 Mo.

— Hon. Richard Field, Judge. (1) By the stipulation both parties must derive their title from the Cotton brothers and Margaret S. Watts successively, and, as their deeds refer to block six of Cotton Brothers’ addition, the plat of that block is as much a part of those deeds as though it were drawn and set forth on their face, and, therefore, neither party can deny the validity of the plat: and the plat of that block is in the same manner a part of the respective deeds of…

— Hon. Cr. W. Dunn, Judge. (1) At the time of the institution of this suit the note secured by the deed of trust alleged to have been •executed by defendant was long past due, the plaintiff had “a plain, adequate and complete remedy at law,” ■and the court erred in entertaining jurisdiction of the ■ cause. R. S., secs. 3217, 3208 and 3558; Biddle v. Ramsay, 52 Mo. 153; Railroad v. Reynolds, Sup. Ct. Mo., not yet reported; Odie v. Odie, 73 Mo. 289-294.

— Hon. James D. Pox, Judge. (1) The mortgage offered in evidence being a deed inter partes is not void for uncertainty of description.

— Hon. M. G. McGregor, Judge. (1) Statutes providing conditions upon, and means by, which constructive notice may be given defendants, in order to the exercise of a court’s jurisdiction, based thereon, are strictly construed, and must be strictly complied with, or no jurisdiction will be acquired. Schell v. Leland, 45 Mo. 293; Wade on Notice, sec. 1030 ; Morey v. Morey, 11 Reporter, 199 ; Settlemier v. Sullivan, 97 U. S. 444.

— Hon. T. A. Gtll, Judge. (1) The evidence showed that the bridge from which the respondent fell was only partially defective; that the entire structure was in a good and safe condition, except the west side thereof. On this evidence the appellant asked the court to instruct the jury in the words of the declaration of íaw heretofore sanctioned and approved by this court, instruction number 1 of appellant, which was refused. The judgment of the lower court must be reversed.

— Hon. E. M. Hughes, Judge. (1) The defendants were in charge of fireworks with which they were giving a pyrotechnic display, were in the heart of a populous part of the city, and the streets immediately surrounding them were thronged with men, women and children. The law, therefore, ■out of its regard for human life and safety, demanded great care of them. They were bound to exercise more than ordinary care.

— Hon. J. E. Ryland, Judge. (1) The court below erred in permitting the witness Wilson to testify as to what was said by one Craft in the presence of the defendant after he was arrested. Wharton's Criminal Evidence [8 Ed.] sec. 680; United States v. Brown, 4 Cranch (C. C.) 508; Com. v. Kinney, 12 Met. 235; Com. v. Walker, 13 Allen, 510; State r. Walker, 78 Mo. 388; Com. v. McDermott, 123 Mass. 470; Stater.

— Hon. D. A. DeArmond, Judge. (1) The court erred in refusing instruction number 4, asked by the plaintiff. The powers of an administrator are derived from the statute, and he holds the personalty of the estate in auter droit, and as trustee. It is his duty to collect the debts due the estate, and discharge its liabilities.