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er or not they did so is a question of fact, to be determined by the jury. [14, 15] The proof shows that defendants issued a letter of instructions March 10, 1912, to the foreman and guards in charge of the workhouse, forbidding them to whip or brutally treat prisoners, or use intoxicating liquors, or to permit the prisoners to drink, and that frequently defendant Duncan visited the workhouse and made inquiry after the condition of the immates, and failed to ascertain any of the practices set forth in this opinion, and other facts in defense of the charges made against them. It was a question for the determination. Of the jury aS to whether they exercised due care in the performance of their duty toward deceased. The issuance of the letter, the report of the grand jury, the visit to the workhouse by defendant Duncan, did not constitute an absolute defense to this suit. All of these things might have been discredited by the jury, and the jury might have concluded that the notorious Cruelties and barbarities in COnStant practice at the Workhouse, as detailed by plaintiff’s Witnesses, were entitled to more weight than the testimony just referred to. It should be plain that the jury was within its rights in finding that defendants should have known of this notorious practice, notwithstanding their testimony that they did not know. The evidence permitted to go to the jury of the mistreatment of other prisOners, and Of the conduct Of the foreman and guards With respect to them, Was competent for the purpose of showing the constant, general, and notorious practice of beating prisoners, in order to show the neglect of defendants Hale and Duncan in not ascertaining the truth. There is no evidence of a ratification by them, and the request to the trial judge to charge upon this subject WaS properly denied, because the question does not arise. [16, 17] In the progress of the trial in the circuit court, plaintiff introduced defendant Duncan and asked him a few questions which Were not at all material to his defense. Defendants’ Counsel thereupon proposed to cross-examine the Witness as plaintiff's witness. This was not permitted. The defendants offered a special request to the trial judge, to be given in charge to the jury, to the effect that defendant Duncan was plaintiff's witness, and his credibility was vouched for by plaintiff. This request was denied, and the circuit judge held that Duncan was not plaintiff’s witness, and plaintiff could contradict Statements which he made in his OWn defense. Plaintiff did contradict him in

material matters, by proving that he made statements out of court which he denied in COUlrt. We are COnStrained to hold that this is reversible error. The question Was gone OVer by this court in the case of Sands v. Southern Ry. Co., 108 Tenn. 1, 64 S. W. 478, and the authorities, both English and American, reviewed. The court adopted the English rule to the effect that, if a party calls a witness and examines him upon a single point, the other party is then at liberty to cross-examine him generally, and, of course, it has never been doubted that, when a litigant tenders a witness to testify in his behalf, he thereby vouches for his credibility. This extends to the whole case. In Cooley V. Galyon, 109 Tenn. (1 Cates) 1, 70 S. W. 607, 60 L. R. A. 139, 97 Am. St. Rep. 823, the case of Sands V. Railway Co. was expreSSly approved, and in that case it was held that CrOSS-examination is Only limited by the relevancy and competency of the evidence Sought to be introduced.

[18-20] There remains one more point for discussion. The original declaration failed to aver that deceased left next Of kin. This point Was raised by defendants On motion in arrest of judgment, after the motion for new trial was made and overruled. The point was met by plaintiff by Offering to amend the declaration, so as to aver the existence of next of kin. The trial judge permitted the amendment, Whereupon defendants offered a plea to the amendment, by which they sought to put in issue the averment of next of kin. The trial judge declined to permit the plea, or permit proof under the plea. We think this Was error. We cannot consider, of course, the evidence in the record to the effect that deceased did leave next of kin, because no issue was made at the time this evidence Was introduced. There must be next of kin before a recovery can be had for a Wrongful death, and the Sum recovered inures to the benefit Of the next Of kin. This is a material part of plaintiff’s case, and it is necessary for plaintiff to both aver and prove the existence of next of kin. The deceased was a vagrant negro in the city of Memphis, and this fact strengthens the claim of defendants set forth in their plea. We think the trial judge erred in declining to allow defendants to traVerSe the amended deClaration. We do not think the amendment came too late, but, on the contrary, we think the action of the trial judge was proper in this respect; but it introduced in the case a new issue which defendants had a right to COntest.

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(140 Tenn. 205) WEBB et al. v. STATE, (Supreme Court of Tennessee. June 1, 1918.)

1. CRIMINAL LAW &=824(9)—INSTRUCTIONSREQUESTS-CIRCUMSTANTIAL EVIDENCE. - In prosecution for murder, where the only incriminating evidence is circumstantial, it is fundamental error to fail to instruct on the nature of circumstantial evidence and the general rules of law governing it, though the defendant tenders no special request. 2. CRIMINAL LAW 3:552(1) — EVIDENCE “CIRCUMSTANTIAL EVIDENCE.” Circumstantial evidence differs from direct evidence and consists of proof of collateral facts and circumstances from which the existence of the main fact may be deduced according to reason and common experience of mankind. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Circumstantial Evidence.]

Appeal from Circuit Court, Gibson County; Thos. E. Harwood, Judge.

Annie Webb and another were convicted of murder and they appeal. Reversed as to Annie Webb, and remanded for new trial.

L. H. Tyree, W. W. Herron, and Clark & Landrum, all of Trenton, for appellants. W. H. SWiggart, Jr., ASSt. Atty. Gen., for the State.

WILLIAMS, J. [1] In the prosecution of a murder case, where the Only incriminating evidence against the accused is circumstantial, is it reversible error for the trial judge to fail to instruct the jury upon the nature Of circumstantial evidence and upon the general rules Of law governing it, no special request being tendered by defendant? Yes. Principle: In Such a case the main fact —the factum probandum—is the fatal stroke, and if there be no direct testimony connect

ing the accused With the main fact, as the slayer, and the sole evidence is circumstantial, it is error not to instruct the jury as to the rules applicable to that kind of evidence. The error is of a class denominated fundamental. It goes eSSentially to the basis of the accused’s theory for defense. [2] “Circumstantial evidence” differs from direct evidence, and consists of proof of collateral facts and Circumstances from Which the existence of the main fact may be deduced according to reason and common experience Of mankind. The force and the Weight of Such proof have well-defined recognition in rules of law, and judges should not deny the aCCuSed their Safeguard. Precedent: As to the fundamental character of such evidence, fair analogy is found in cases involving failure to charge on reaSonable doubt, in which event, without request made, there is reversible error. FraZier V. State, 117 Tenn. 430,455, 100 S. W. 94. In Smith V. State, 2 Tenn. CaS. 621, it was held that in such case if an additional inStruction upon circumstantial evidence be requested, it is reversible error to refuse it; and in Barnards v. State, 88 Tenn. 183, 236, 12 S. W. 431, the rule we declare was recognized; the charge upon the doctrine of reasonable doubt not superseding the necessity Of giving to the jury the rules applicable to circumstantial evidence. However, the direct question here involved was not presented in either of those cases; but it has been Solved as above indicated by Several text-Writers and in many decisions. Michie on Homicide, 1398; Underhill Crim. Ev. § 6; 12 Cyc. 633, and cases cited. Reversed as to appellant Annie Webb, with remand for a new trial.

6: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

STATE ex rel. MISSOURI POULTRY &
GAME CO. V. NOLTE et al.
(No. 19805.)

(Supreme Court of Missouri. • May 17, 1918.)

1. EXECUTION <>179—THIRD PARTY CLAIMs. In view of Const. art. 9, § 25, giving the Legislature power to supplant the provisions of the St. Louis charter and the special laws applicable to the city, by general laws, and Laws 1877, P. 187, providing for application to the city of general laws, as well as special laws applicable to St. Louis county, relating to sheriffs, etc., the general law (Rev. St. 1909, § 2204) rather than the special law applicable to St. Louis county (Rev. St. 1899, p. 2551), controls as to requirements of third party claims to property levied on by the sheriff of the city under writ of execution. (Per Williams, Woodson, and Blair, J.J.; Graves, C. J., and Faris, J., expressly dissenting.) 2. SHERIFFS AND CONSTABLES @:114—LEVY oE EXECUTION-INCUMBERED PROPERTY—RELEASE. Where a third party claim to property levied upon by sheriff in execution showed that the claimant was the mortgagee or pledgee of the property in possession after maturity of the debt, the sheriff was not required to release the interest of the claimant as mortgagee and sell the equity of redemption, which was in the execution creditor, for such equity was not an interest subject to execution, but a mere chose in action. (Per Williams, Woodson, and Blair, JJ.) 3. SHERIFFS AND CONSTABLES @:158 – LIABILITY ON BOND-LEVYING EXECUTION. Where sheriff acts in good faith without negligence or willful conduct in handling an execution, his failure to sell goods levied upon does not render him and his bondsman liable for the full amount of the creditor's judgment, but at most for the real value of the goods levied upon. (Per Graves, C. J., and Faris, J.) Graves, C. J., and Faris, J., dissenting in part. Walker and Bond, J.J., dissenting.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Suit by the State of Missouri on the relation of the Missouri Potiltry & Game Company against Louis Nolte and United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendants appeal. ReVersed and remanded.

This is a suit on the bond of the sheriff Of the city of St. Louis to recover damages for the failure to sell goods of an execution debtor levied on under execution, and for the failure Of Such Sheriff to make a return of said execution. There Was a judgment for the plaintiff for $2,161.37, the amount of the judgment, together with interest, amounting in all to $2,565.35. The Sheriff, in pursuance of the execution, levied On 98 Shares of the capital stock of the Joplin Mercantile Company of the par value of $250 per share as the property of Joseph Filler, the execution defendant. Thereafter, and in due time, Pessie Filler, in compliance with section 2204, R. S. 1909, filed her claim to the property on which the levy had been made, and the Sheriff fully complied with that section by delivering a copy of such claim to the execution Creditor. Such creditor failed to give to the Sheriff the

En Banc.

bond required by that section, and the sheriff released the property. The sheriff failed to return the Writ of execution at the return term thereof. The claim so made by Pessie Filler did not comply with section 3 of article 20 of the laws specially applicable to the city of St. Louis, as it appears in R. S. 1899, p. 2551. The trial court held that it was necesSary that Such third party claim should conform to the requirements of the latter section, and that it failed to so conform. It accordingly rendered judgment for the plaintiff for the full amount demanded. On appeal the St. Louis Court of Appeals unanimously affirmed the judgment of the trial court, but On a motion for rehearing Reynolds, P. J., dissented from the majority opinion overruling said motion, and held that the majority Opinion was in conflict with the case of Metzner v. Graham, 66 Mo. 653, and the appeal Was accordingly certified to this court.

For opinion in Court of Appeals, see 187 S. W. S96.

Edward A. Raithel and Charles A. Houts, both of St. Louis, for appellants. Chas. B. Stark, of St. Louis, for respondent.

ROY, C. (after stating the facts as above). The sole question to be decided here is as to Which Of the tWO Sections above mentioned is the controlling one. Said section 3 of article 20 of the laws specially applicable to St. Louis originated in the “Sheriff's and Marshal's Act” of 1855 (Laws 1854–55, p. 464). It reads as follows:

“No claim made to any personal property levied on as aforesaid, shall be valid or lawful as against such officer, unless such claimant or his agent shall set forth his claim in writing, verified by the affidavit of such claimant or his agent, describing the property claimed and stating his interest therein, and whether it is in the whole or only part thereof, and stating also that he is in good faith the lawful owner of the interest claimed by him in said property; that the defendant in such execution or attachment has no right or title directly or indirectly in the interest in said property claimed by said claimant, and that such claim is not made in collusion, with said defendant for the purpose of vexing, hindering or delaying the plaintiff in obtaining his just rights.”

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a copy of such written claim to the execution creditor or his attorney of record.” The opinion of Williams, J., in the case of State, upon information of Barker, Attorney General, v. Koeln (decided by this court in banc on February 13, 1913) 270 Mo. 174, 192 S. W. 748, is conclusive of this case. It was there held as a preliminary proposition that there was no reason why the collector of the revenue of the city of St. Louis should not be elected under the Same general law under Which the CollectOrS Of the revenue in the Various COunties are elected. So we hold that there is no reason why the general law of the State (said section 2204) in reference to the claim by a third party to the personal property levied on under execution should not apply to St. Louis. It Was held in the Case above mentioned that Section 25 of article 9 of

our state Constitution gave the Legislature ||

the power to supplant the provisions of the St. Louis scheme and charter and the special laws applicable to said city by general laws applicable to the Whole state. That case also held that the general law of 1905 in reference to the election Of CollectOrS Of the revenue in the Various Counties applied to the city of St. Louis. The reasoning in that case applies pari passu in this case, and We hold that the amendatory act of 1877 (Laws 1877, p. 251), with the amendment thereto in the revision of 1879 (R. S. 1879, § 2366), being the present Section 2204, Was intended to supplant, and did supplant, the law which had theretofore been specially applicable to the city of St. Louis.

The judgment is reversed and the cause remanded.

WHITE, C., concurs.

On Motion for Rehearing.

ROY, C. [1] Said motion insists that the opinion heretofore rendered herein is contrary to a long line of decisions and to the consensus of opinion of the bench and bar of St. Louis. That assertion deserves respectful consideration. The special law in regard to the claim of a third party to property levied on under attachment or execution, and the giving of bond by the creditor originated in the Laws of 1854–55, p. 464, and was then applied to the whole Of St. Louis county. By the Laws of 1858–59, p. 440, § 6, it was made to apply only to the county of St. Louis. The law now appears in R. S. 1899, p. 2550, art. 20. The general law on that subject was amended in 1865, and, as thus amended, is found in Gen. Stat. 1865, p. 643, §§ 28, 29. After some amendments not material to this discussion it now appears as sections 2204 and 2205 in the present revision. We will compare those two laws on points which will arise in this discussion. (1) The local law covers Writs of attachment and executions, while

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the general law covers only executions. (2) Both laws cover all Officers to Whom the Writs may come, whether sheriffs, coroners, constables, or marshalls. (3) The claim to the property required by the special law covers every point required by the general law as to such claim, and goes further. It States that it is made in good faith, and that the eXecution defendant has no right Or title in the interest in the property claimed. (4) The special law requires that the bond shall have two Sureties, and shall be conditioned to indemnify the claimant. The general law requires one or more Sureties residents of the County, and that the bond shall indemnify the sheriff and claimant. Respondent contends that the Special law was not repealed by the enactment of the general law in 1865. We will concede that no part of the special law was so repealed. The Constitution of 1875 provided for the Separation of the city of St. Louis from the county of that name by the Scheme and charter. After such Separation had been made, it was found that a condition of uncertainty existed as to what statutes Should apply to the city in its new relation to said county and to the state. Then followed the act shown in Laws 1877, p. 187, which provides: “Section 1. All general laws relating and applicable to the sheriffs, coroners and marshals of the several counties of this state, shall apply to the same officers in the city of St. Louis; and all special laws applicable to the same officers of St. Louis county as organized before the separation of the city and county of St. Louis by the adoption of the scheme of separation, and Thot in conflict with the provisions of the scheme and charter, shall still apply to the same officers in the city of St. Louis; and all acts and parts of acts providing for any legal process to be directed to any sheriff, coroner, or marshal of any county, shall be so construed as to mean the sheriff, coroner or marshall of the city of St. Louis, as if such officers were specifically named in such act.” “Sec. 4. All laws requiring any officer of any county to perform any duty, service or trust, under the laws of this state, shall include all corresponding city officers named in the charter and scheme of separation for the government of the city and county of St. Louis. “Sec. 5. By reason of the separation of the city from the county of St. Louis, there exists an emergency, requiring this act to take effect immediately; therefore, this act shall take effect and be in force from and after its passage.”

By that act the Legislature attempted to apply both the Special and general Statutes to the “sheriffs, coroners and marshals” of St. Louis, in its hurry overlooking the fact that the two laws did not in all respects agree, but differed in the particularS mentioned above. We must now decide whether the special or the general law is to be given the preference under the act of 1877, So far as it applies to the officers named in that act.

We call attention to the fact that the general law does not apply to proceedings in attachment, and the act of 1877 mentions only “sheriffs, coroners and marshals” and “officer of any county.” So that, for the purposes of this case, it may be conceded, without deciding, that the special law still applies to attachments and to the proceedings of COnStables under execution. We are COncerned now only as to the acts of “sheriffs, coroners and marshals” under writs of exeCution. I. We will now examine the long line Of cases cited by respondent. Dodd v. Thomas reported in 3 Mo. App. 589, and in Id., 69 Mo. 364, grew out of the levy of an attachment in St. Louis in 1875 prior to the said act of 1877. This court and the Court of Appeals therein held that the Special law Was not repealed by section 6, p. 897, of Wagner's Statutes, which were published in 1872. We have conceded that it was not repealed in any respect prior to 1877, and not repealed at all as to attachments. In Eichelmann V. Weiss, 7 MO. App. 87, the claim was made to property levied on under execution by a constable. It was there said that the special law was then still applicable to St. Louis. We agree to that So far as constables are concerned, but that language is obiter as to sheriffs. The same may be said of State, to use, v. Smit, 20 Mo. App. 50. Kreher V. Mason, 25 Mo. App. 291, involved proceedings under a writ of attachment, and hence is not in point here. In State, to use, V. Tonnelly, 9 MO. App. 519, and in State ex rel. v. Slayback, 90 Mo. App. 300, claims were made and bonds were given. Those bonds Were COnditioned to indemnify both sheriff and claimant, as required by the general law, the special law only requiring that it should indemnify the claimant. All parties and the court treated those two cases as falling under the special law. The court held that the provision as to indemnifying the sheriff could be treated as Surplusage, and that the bonds were good. Those bonds certainly Would have been held good in that reSpect under the general law also if the point had been made. Other cases cited are St. Louis Dairy Co. v. Sauer, 16 MO. App. 1; Clarkson v. Guernsey Furniture Company, 22 Mo. App. 109, and State, to use, v. Harrington, 38 MO. App. 303. NO point was made in either of those cases as to which statute controlled. So far as appears the liability would have been the Same under either Statute, State ex rel. V. Lumber Co., 77 MO. App. 538, was reversed and remanded, and finally reached this court, and is reported in 170 Mo. 7, 70 S. W. 121. That Opinion holds that the Sheriff's and Marshal’s Act above mentioned was not unconstitutional in the particulars therein discussed, and that it had not been repealed by certain laws there mentioned Other than the law noW under discussion. So far as we can discover, in every one of the cases cited, if counsel had tried to escape the special law by claiming that it had been repealed by the general law under the act of 1877, he would have merely “jumped from the frying pan into the fire.” His fate would have been the same under either law, because

the claims and the bonds, so far as appears, Satisfied both law S. A clear explanation of the reason Why there has never been heretofore a ControVerSy as to which of these laws controlS is furnished by respondent's brief in support of its motion. It says: “Furthermore, until the litigation in this case there has been practically unanimity of opinion at the St. Louis bar, as shown by the fact that in the hundreds of cases that have gone into the circuit court there has been no attempt to show that the Sheriff's and Marshal's Act is not a living law. Every member of the bar who has advised a constable, or a city marshal, or the sheriff of the city of St. Louis has advised him on the hypothesis of the continued existence of that statute, and this list includes my distinguished adversary in this case, and the distinguished lawyer who was the sheriff's attorney at the time of the release of the property levied on in this case, and who is the counsel of the present sheriff. This statement is made, not only from the writer's acquaintance with the matter by coming in contact with the members of the bar, but also because of the fact that the sheriff's office has in all these years kept blanks suitable to be used under the local act in case of claim for personal property by third parties and of indemnification bonds given in response to such claims. I am attaching to this brief copies of these blanks. It must be that the present sheriff's counsel, like all his predecessors, is advising the sheriff that the local act is still in force because the sheriff is still using the blanks, copies of which are attached to this brief. If the attorney who prepared the claim in this case had gone to the sheriff's office for a blank, as is the general custom With lawyers in St. Louis, he would have received a blank made up under the provisions of the local act, and would not have used a typewritten claim made up by himself under Section 2204.” We have compared those blanks with the laws. The blank for the claim fully complies with the special law, and, in doing SO, fully complies with the general law, for the reasons above given. The blank for the bond, as far as it goes, fully complies with the general law. It indemnifies both sheriff and claimant, though the Special law only required that it Shall indemnify the claimant. It recites that it is given in compliance with the Special law. A bond, good in all other reSpects under the general law, Would not be held invalid under that law becauSe Of Such recital. That recital could be treated as Surplusage. It is to the credit of the bar of St. Louis that they have hitherto, in preparing the claims and bonds, avoided a controversy as to these laws by complying With both, and the courts have not Ventured to decide questions not raised, except that in One or two instances the language of the Opinions was a little broader than the iSSue. AS the claim in this case complied With the general law, but not with the other, We are, for the first time, called on to Say which of these laws controls. We shall not go into a discussion of the question as to whether the special or the general statute or neither would have been the law to-day in St. Louis if the act of 1877 had not been passed. We feel confident in asserting that if the Special law had been

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