Volume 144 — Missouri Reports

— Hon. A. M. Woodson, Judge. (1) That the deed was a forgery and the partition decree obtained by fraud was a good defense, and defendant was entitled to it under the general denial. Defendant was in court by their fraud, not by their summons. The fraud was practiced first upon defendant, then upon the court, because they concealed the fact that they had deceived defendant. Dunn v. Miller, 96 Mo. 324; Lazarus v. McGuirk, 8 So. Rep. 253; Ellis v. Kelly, 8 Bush. 621.

A.ppeal from Daviess Circuit Court. — Hon. E. J. Broaddtjs, Judge. (1) The tender made at Gallatin on the twelfth of April, 1895, was not sufficient and did not make invalid the sale by trustee Selby that followed on the •thirteenth of May afterward. Bowen v. Julius, 40 N. E. Rep. 700; Ábshire v. Corey, 15 N. E. Rep. 685; Moore v. Kime, 43 Neb. 517. (2) Under the law and the evidence the sale by trustee was properly made in bulk instead of in parcels.

— Hón. L. B. Woodside, Judge. (1) Defendant, in his motion in arrest of judgment, questions the sufficiency of the indictment; it is drawn according to the long adopted and approved formula of this court. The objection's without merit. State v. Henley, 30 Mo. 509; Kelley’s Crim. Law, sec. 609; 2 Russell on Crimes, p. 26.

<p>1. Criminal Law: change of venue: affidavit of two citizens. The right of defendant in a criminal case to a change of venue is purely statutory, and in order to entitle him to it he must comply with the terms of the statute governing the change. So that if he applies for a change of venue on the ground that the people of the county are prejudiced against him, he must support the application by the affidavits of two creditable citizens, and if he fails to do this the application should be denied.</p> <p>2. -: disqualifying sheriff: elisors. Compliance with a motion to disqualify the sheriff and his deputies and to appoint an elisor to take charge of the jury, is largely in the discretion of the trial judge, and in the absence of some fact in the record showing that this discretion was unwisely exercised, the appellate court will not interfere. In this ease the sheriff was a witness, the defendant having made a confession to him, and the motion was denied.</p> <p>3. -: indictment: two COUNTS: motion to eleot. Where both counts in an indictment charge the same offense, but allege that it was done with different instruments, the same - evidence being permissible under either count, the motion to compel the State to elect is properly overruled. In this case the first count alleged that the murder was committed by striking and wounding the deceased upon the head with a weapon, a description of which was to the jurors unknown; and the second count charged that it was done by cutting and stabbing her in and upon the lower part of her body with a certain knife.</p>

— Hon. Dorsey W. Shackleford, Judge. (1) The court erred in allowing the confessions of appellant made to the officers having him in charge to be admitted in evidence, because obtained through fear and by threats and inducements; in short, they were not free and voluntary confessions as required by the law. 1 Greenl. on Ev. [14 Ed.], sec. 214, p. 275, and note; sec. 219, p. 281; sec. 223, p. 288; sec. 222, p. 287; Wharton’s Crim.

. — Hon. O. B. McAfee, Judge. (1) Before such check was'admissible for any purpose it devolved on the State to show that it was forged. 8 Am. and Eng. Ency. of Law, 531; State v. Saunders, 68 Iowa, 370; State v; Roberts, 33 Mo. App. 524.

<p>1. Criminal Law: assault: intent: evidence. No better evidence can be induced of defendant’s intent to kill at the time he fired the shot from a deadly weapon, than the fact that it entered a vital part and the serious consequences of such shot. From such shooting, in the absence of countervailing testimony, the law presumes intent to kill.</p> <p>2. -: -: -: indictment: shooting “at.” And it is of no consequence, in the face of such results, that the indictment charged defendant with shooting at the prosecuting witness, with intent to kill him, instead of shooting or wounding him with such weapon.</p> <p>3. -: -: -: -: drunken habits: impeachment. The prosecuting witness testified that defendant was under the influence of liquor at the time of the assault, and this defendant denied, and on cross-examination the State was permitted to examine him as to his custom and habit with respect to taking whiskey home with him when he went to town. Meld, that this cross-examination was not material to the issues of the case, and’ should not have been permitted. Meld, also that, as the cross-examination was concerning an immaterial matter, it could not be permitted for the purpose of laying a foundation for impeaching defendant’s testimony.</p> <p>4. -: evidence: impeachment. Where the facts detailed in the question asked defendant for the purposes of impeachment, differ so slightly from the real facts as told by the impeaching witness that they can not be prejudicial to him, no error has been committed.</p> <p>5. -: -:--: former conviction. Evidence that defendant had been convicted of the unlawful sale of liquor is not permissible for the purpose of discrediting his testimony, even when elicited from a cross-examination of defendant’s witnesses. It follows that a statement that he was about to be arrested for that offense was not permissible.</p> <p>6. -:--: good character. An attempt by the State to prove the good character and reputation for peace of the prosecuting witness, when it had not been attacked, is not error, if done without the objection of defendant.</p> <p>7...-t-: practice: remarks op attorney. Improper remarks of the State’s attorney can not be considered by this court on appeal unless they are preserved in the bill of exceptions. A statement of them in the bill of exceptions is not sufficient.</p> <p>8. —--: assault in vital part: instruction. This instruction was held proper in the face of an objection that it does not state that the shot.must have been intentionally fired at a vital part: “The court instructs the jury that the law presumes that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that the defendant assaulted with a deadly weapon, a loaded pistol, David Cook, in a vital part of the body, the law presumes that defendant intended to kill him.”</p> <p>9. -: -: malice: aforethought. Where an indictment is drawn under section 3489, Revised Statutes 1889, charging “assault with intent to kill on purpose and of malice aforethought,” the defendant may be eonvicted under section 3490, for assault with intent to kill without malice. And an instruction which permitted a conviction of an assault with intent to kill, without requiring the jury to find that it was maliciously done, was not error.</p>

— Hon. John A. Hockaday, Judge. (1) The indictment is defective and bad for the reason that no definite time is fixed when the alleged offense was committed; this is necessary, especially when the only defense is an alibi. Ewen v. State, 13 Mo. 306.; State v. Hayes, 24 Mo. 358; 1 Chit. Crim. Law, 179; 1 Arch. Crim. PI. 83; Wharton’s Crim. PL & Pr. [8 Ed.], sec. 123; Clark v. State, 34 Ind. 436; Kelley’s Crim. Law, sec. 182; 1 Bishop on Crim. Proc., sec. 386.

Appeal .from Johnson Circuit Court. — Hon. W. W. Wood, Judge. (1) The insanity is determined by the Governor instead of by the county court. Upon the order of the Governor transferring the insane criminal to the asylum it is imperative upon the officers of the asylum to receive and keep such insane person in the asylum until he is restored to reason. R. S. 1889, sec. 506; G. S. 1865, p. 321, sec. 47.

<p>1. Punishments: conflict in statutes. It is unconstitutional to punish the violation of a public or general law by one species of punishment in one locality and by a different or more heavy punishment in other localities of the State. (Overruling State esc rel. Maggard v. Pond, 93 Mo. 606, in which Gantt, P. J., does not concur.)</p> <p>2.--:--: remedial statute. But, although one statute (R. S. 1889, see. 3547) provides a punishment “by imprisonment in the county jail not exceeding one year” and another statute says a party convicted in the St. Louis Court of Criminal Correction “shall, in* stead of being sentenced to imprisonment in the county jail, be sentenced to imprisonment in the workhouse” for a period not longer “than six months for any cause,” and although these statutes are irreconcilable, yet their uneonstitutionality may be ignored and a sentence to one year’s confinement in the workhouse by said court may be sustained by reason of a subsequent statute (R. S. 1889, sec. 4266) providing that whenever any person shall be subject to imprisonment in a county jail he may at the discretion of said court be confined to the workhouse for the same length of time.</p>

<p>1. Practice: newly discovered evidence : affidavit. A motion for new trial on the ground of newly discovered evidence must be supported by the affidavit of the defendant, setting forth the evidence, when it first came to his knowledge, and the name of the witness by whom he could prove it, and, also, by the affidavit of the witness, setting forth the facts that he would testify to on another trial.</p> <p>2. -: number of instructions. As few instructions as possible to cover every feature of the case should be given.</p> <p>3. -: murder in second degree: insanity. Where the defendant is clearly guilty of murder in the first degree or of no offense at all, no instruction for murder in the second degree should be given. Where the only defense is insanity, no instruction for murder in the second degree should be given.</p> <p>4. Appellate Practice: remarks of prosecuting attorney. An assignment of error that the court did not instruct the jury to disregard improper remarks of the prosecuting attorney, can not be considered by the appellate court unless it can be ascertained from the bill of exceptions or otherwise what the remarks were, and that such an instruction was asked at the proper time.</p> <p>5. _: juror: challenge. A statement in the motion for a new trial that the court erred in refusing to sustain defendant’s challenge to a juror whose name is not given in the motion, will be disregarded on appeal.</p> <p>6. Murder: insanity: conflicting evidence. Where the evidence, although very conflicting, is amply sufficient to support a verdict that defendant was sane and knew the nature of the crime which he does not deny having committed, the judgment will not be reversed on the ground that it is contrary to the evidence.</p>

— Hon. L. B. Woodside, Judge. (1) The court erred in permitting witness James Buckner to testify to alleged declarations of Chas. Pruett (the father of defendant) for the reason the same' was hearsay and not made under the oath of Chas. Pruett. Dunn v. Altman, 50 Mo. App. 231; Dwilap v. Elks Club, 25 Mo. App. 181; State v. Grate, 105 Mo. 121; State v. Rider, 90 Mo. 54. (2) Evidence that the defendant remained silent while being charged with a crime is not admissible on trial.

— Hon. E. M. Hughes, Judge. (1) The letter of Dobyns to the defendant is conclusive that his certificate had lapsed and was not in force at the time of his death. The correct doctrine is that statements made by the insured as to the cause of his suspension are competent evidence to prove the fact of the suspension. Bacon’s Ben. Soc. and Life Ins., sec. 460; Life Ass’n v. Winn, 33 S. W. Rep. 1045; Chartrand v. Brace, 16 Col. 19; Aihenv. Mass. Ben.

— Alois. Rudolph Hiezel, Judge. (1) The court erred in refusing to give instructions asked by appellants at the close of respondents’ ease, and instruction asked by appellants at the close of all the evidence in the case. There is no evidence in this case that the respondents, or any one of them, ever acquired the land in dispute by adverse possession under color of title.

<p>Appeal from Randolph Circuit Court. — Hon. John A. Hockaday, Judge.</p>

— Hon. E. M. Hughes, Judge. (1) The court erred in ruling out the main issue of the case when counsel stated: “That shows the condition of his mind.” The judge replied: “That is not in issue at all. The condition of his mind is not in issue.” This declaration is not sanctioned by the law. Meyers v. Haugher, 98 Mo. 433. (2) The court erred in refusing to allow the evidence to show that Wm. C. West died believing that Jno. J. Steele was his executor.

— Hon. E. M. Hughes, Judge. (1) A court of equity will not restrain or annul a void judgment, at law. In the case at bar the judgment is either void for want of service, or valid. St. Louis v. Flynn, 128 Mo. 413. (2) There is proof that an execution was issued; there is no proof of a levy, or of any attempt at the service of the writs of execution. It will be presumed that a sheriff would refuse to execute a writ based upon a void judgment.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The default was during Haekmann’s first term of office; or at least not clearly proved to have been during his second term, hence plaintiff’s were not liable to replace the peculated funds. State ex rel. v. Branch, 126 Mo. 498; State ex rel. v. Branch, 134 Mo. 592; State to usev. Jones, 89 Mo. 470; State to use v. Atherton, 40 Mo. 210.

Mandamus. (1) A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers.

<p>1. Appellate Jurisdiction: court of appeals: unanimous opinion. Where a court of appeals are of the unanimous opinion that its decision is in conflict with the last previous rulings of this court, it is their duty to conform its judgment to the rulings of this court. And a cause transferred to this court in order that the Supreme Court may change its rulings which the court of appeals think are wrong, will be remanded to that court.</p> <p>2. -: -:--A case can not be transferred to the Supreme Court by a court of appeals simply because the judges of the latter court deem the case important and are not satisfied as to the previous rulings of this court on the same propositions.</p> <p>3. -: -:-: case stated. The St. Louis Court of Appeals, by a unanimous opinion, reversed the judgment of the circuit court, but made an order that the case should be certified to this court upon the ground that its decision was “seemingly opposed to the decision of the Supreme Court in Morris v. Mailroad, 58 Mo. 78,” and because this court in that case “did not have in mind the danger to trainmen which would result from cattle-guards across the main and side tracks. ’ ’ Meld, that this court had no jurisdiction of the cause, and that a ease can not be sent to this court by one of the courts of appeals with a view of having this court to recede from a doctrine it has previously laid down.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) The decree finds that “the intervenors, the German-American Bank et al., are the owners of two hundred and thirty-one of said third mortgage bonds,” although said ownership is not alleged in the petition, nor admitted by the answer, and the decree affirmatively shows that there was not any evidence heard in the cause.

— Hon. H. M. Ramey, J udge. (1) Plaintiff must show the deed was fraudulent —this is admitted. But all that is required to show this, is to present to a court of equity a state of facts that satisfies the judicial conscience that the conveyance was not tona fide. Plaintiff insists this does appear: First■ From the transfer of $1,500 worth of property by the insolvent father to the daughter for an alleged consideration of $1,100. Second.

— Hon. Reuben F. Roy, Judge. (1) All the beneficiaries should have been made parties. Eddie v. Parke, Ex’r, 31 Mo. 513; Rogers v. Dively, Adm’r, 51 Mo. 193; Garland v. Smith, 127 Mo. 580. (2) Berkley Wells should have been represented by a guardian ad litem. Neenan v. St. Joseph, 126 Mo. 89. (3) In this case the judgment was against Berkley Wells a minor defendant, who appeared neither by attorney nor guardian ad litem.

<p>1. Appellate Jurisdiction : title to real estate. Before appeals can be entertained by this court on the ground that title to real estate is involved, it must appear that the title to the real estate will in some way be directly affected by the judgment to be rendered in the case. Though the title may be incidentally, collaterally, or necessarily inquired into at the trial, for the purpose of settling the issues involved, yet if the judgment rendered by the trial court can be satisfied by the payment of money without affecting the title to the real estate, the appeal is to one of the courts of appeals. (Again overruling Gray v. Worst, 129 Mo. 122.)</p> <p>2. -: --• : deed of trust: sale by trustee. Where'a trustee under a deed of trust, given to secure a debt of $250, sells the property for $1,400 after the sale has been advertised for twenty-four .days, although the trust deed required thirty days notice, and receives only enough cash to pay the debt and costs, and the mortgagor sues him for the balance and obtains judgment-for the amount, the title to real estate is not so involved as to give defendant an appeal to this court, although the purchaser is in possession of the land, and in his answer defendant pleads that the effect of the sale, because of the insufficiency of the notice, was to transfer the mortgage to the purchaser, and that the equity of redemption still remained in the mortgagor.</p> <p>3. Deeds of Trust: duties of trustee: proceeds of sale. Where a deed of trust requires the trustee, in the event of sale, to apply the proceeds to the payment of the expenses of the trust and the debt; and to turn over the surplus to the mortgagor or his heirs, the heirs of the mortgagor, after his death, may recover judgment against the trustee for such surplus of the full amount bid, although at the sale he only received enough cash to pay the debt and costs, but made and delivered a deed to the purchaser.</p> <p>4. -: -: -: defenses. And although such sale by the trustee, without having given notice thereof for the length of time required by the deed of trust, could be set aside in a proper pro. eeeding and the transaction treated as a mere assignment of the mortgage to the purchaser, yet such defense is not available to the trustee in a suit by the minor heirs for the surplus.</p> <p>5. -: -: -: liability of trustee. The trustee is liable to the mortgagor for the surplus after paying the debt and costs, whether he receives it or not, if he makes a deed to the purchaser for the amount of his bid.</p> <p>6. -:--: -: -: suit by minors. And a suit by the minor heirs of the mortgagor for such surplus, can be maintained by next friend, and a judgment for them in no wise interferes with the doctrine announced in Kerr v. Bell, 44 Mo. 120.</p>

E. J. Broaddus, Judge. (1) The jury awarded the plaintiffs $3,500 damages for the grading above referred to, and this, we think, was clearly excessive, and the result of passion and prejudice, and contrary to the overwhelming weight of the credible testimony in case. (2) Plaintiff’s instruction number 1 was erroneous. The word community, as used in this instruction is improper.

— Hon O. A. Anthony, Judge. (1) Appellants earnestly contend that the board of aldermen of the city of Albany had no authority whatever to appoint commissioners to assess the damages sustained by the appellants by the appropriation and sequestration of this land for street purposes.

— Hon. C. A. Anthony, Judge. (1) The report of the commissioners appointed to assess damages, signed by a majority of them was legal and valid. Sess, Acts 1893, p. 223, sec. 3; R. S. 1889., sec. 6570; Moore v. Wingate, 53 Mo. 398; Johnson v. Beasley, 65 Mo. 250; Quayle v. Railroad, 63 Mo. 473.

— Hon. Edward C. Crow, Judge. (1) The parties to the partition in the probate court acquiescing and each taking possession thereof thereunder made it a good partition in equity and said partition is binding on their creditors and grantees and plaintiff would only be entitled to a decree confirming the partition. Sutton v. Porter, 119 Mo. 102; Smith v. Patterson, 95 Mo. 529; Nave v. Smith, 95 Mo. 600; Pasen v. Barnett, 50 Mo. 507.

Circuit Court. — Hon. E. M. Hughes, Judge. (1) The court erred in refusing to enter the judgment nunc pro tunc. The record in all its parts, together with all the official memoranda in the case, shows a clear mistake on the part of the clerk, and furnishes convincing proof that the judgment should have been entered on December 21 instead of December 19. The motion for new trial was in time if we exclude Sunday and Christmas day.

— Hon. W. W. Rucker, Judge. (1) The defendant having set up his ownership of the Hodge note and deed of trust as an equitable defense to the ejectment suit, and a trial of such equitable defense being had, and judgment rendered thereon against the defendant, such equitable defense became res adjuclicata.

— Hon. Reuben P. Roy, Judge. (1) It devolves upon respondents to show that the law creating the Industrial Home is unconstitutional. State v. Addington, 77 Mo. 110. (2) The legislature has the right under the police power of the State to create eleemosynary institutions; to protect society and to regulate the morals of infant criminals and make them better men and women — just as it has the right to maintain penitentiaries, jails and almshouses.

Mandamus. (1) The right of the relator to a certificate from the board of police commissioners is in no way dependent upon an appropriation by the municipal assembly to pay any warrant which may be drawn for the same by the city auditor.

— Hon. E. M. Hughes, Judge. (1) The deed from John E. Diggs to Lewis P. Miller and Thomas Kemble for the benefit of the citizens of High Hill, an unincorporated town, passed no title. Bouthitt v. Stinson, 63 Mo. 268; Arthur v. Weston, 22 Mo. 379; Beinhard v. Lead Mining Co., 107 Mo. 624; German Land Ass’n v. Scholler, 10 Minn. 338.

<p>Appeal from Newton Circuit Court. — Hon. J. 0. Lamson, Judge.</p>

— Hon. John W. Wofford, Judge. (1) There is no testimony to support instruction number 4, given by the court, and it did not properly define murder in the second degree. State v. Wieners, 66 Mo. 20; State v. Curtis, 70 Mo. 594; Fitch v. State, 36 S. W. Eep. (Tex.) 584. (2) Instruction number 6 is erroneous. Using the words “did by a blow of his fist kill David Eitzgerald involuntarily” was commenting upon the evidence, and furthermore it was confusing and misleading.

— Hon. Reuben F. Roy, Judge. (1) The indictment given and the verdict as found by the jury showed the defendant to be convicted of embezzlement and not larceny of the money; there being absolutely no evidence in support of a finding for larceny. The question then arises will an indictment of this character support such a finding, and were instructions on the question of embezzlement warranted ?

— Hon. Andrew Ellison, Judge. (1) The evidence in this case is wholly insufficient to sustain a conviction under the indictment or any of the counts thereof. State v. Fox, 136 Mo. 139, and cases cited. (2) The purpose for which the body of deceased Mary J. Williamson, was disinterred must be shown as clearly as any other material fact proven in evidence and this the State wholly fails to do.

— Hon. E: L. Scarritt, Judge. (T) An assignment of the property of said'corporation could only be made by the direction of the board of directors. Hutchinson v. Green, 91 Mo. 367; R. S. 1889, sec. 2510; 1 Morawetz on Corp., [2 Ed.], 511; Burrill v. Bank, 2 Met. 163; Bank v. Mich.

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The motion for new trial should have been sustained on the ground of the newly discovered evidence. Held: and the defendant can not complain of it here. State v. Sharp, 106 Mo. 106; State v. Ballard, 104 Mo. 634; State v. Sharp, 71 Mo. 281. (2) The defendant can not complain of the introduction of the evidence for the further reason that no harm has resulted to him therefrom.

— Hon. James H. Lay, Judge. (1) The remainder interest, or the interest of the heirs of Harrison McReynolds, subject to the life estate of his widow, Elizabeth McReynolds, is subject to partition. R. S. 1889, sec. 7132; Reinders v. Koppelmann, 68 Mo. 482; Preston v. Brant, 96 Mo. 552; Atkinson v. Brady, 114 Mo. 200; Gadman v. Simmons, 113 Mo. 122; Sikemeier v. Galvin, 124 Mo. 368. (2) The petition fully meets the requirements of the statute. R. S. 1889, sec. 7134. .

— Hon. E. M. Hughes, Judge. (1) There was not a word of evidence that any of the defendants exercised any influence over testator in procuring the will.„ Berberet v. Berberet, 131 Mo. 399; JDoJierty v. Gilmore, 136 Mo. 415; Farmer v. Farmer, 129 Mo. 538; Carl v. Gabel, 120 Mo. 283; Norton v. Paxton, 110 Mo. 461; Jackson v. Hardin, 83 Mo. 184. (2) There was no evidence showing testator’s want of capacity to make the will, and the court should have so instructed the jury.

— Hon. Henby 0. Riley, Judge. (1) When money is placed in the hands of an agent to loan for a principal the act of the agent in handling the money is the act of the principal, and as Jo that money the relationship of debtor and creditor ■can not exist. 1 Am. and Eng. Ency. Law, 383; 'Hamilton v. Elkins, 46 Ind. 212; Jett v. Hempstead, 25 Ark. 462; Alexander v. Jones, 64 Iowa, 207; Conley v. Betts, 24 N. E. Rep. 203; Cockrell v. Kirkpatrick, 9' Mo. 697; Corder v. Primm, 52 Mo.

— Hon. William S. Herndon, Judge. (1) The evidence shows that the money with which the defendants purchased the land in suit was given Mrs. Mayr by her father; this under section 3296-of Revised Statutes 1889, became her separate property. Schouler on Dom. Rel. [4 Ed.], secs. 114 and 115; Owings v. Wiggins, 133 Mo. 633.

— Hon. Heney 0. Riley, Judge. (1) The defendant showed that the collector’s tax books for all the years named were not authenticated as required by law. R. S. 1889, sec. 7576. The failure of the county clerk to so certify the assessor’s book renders it of no official validity and has the further effect to make the collector’s report of delinquent list to the county court unauthorized and invalid, and the county court is without jurisdiction and powerless to act.

Louis City Circuit Court. — Hon. P. R. Flitcraet, Judge. (1) At common law mere choses in action, as bonds, bills and notes were not goods whereof larceny could be committed. State v. Porter, 75 Mo. 171; People v. Loomis, 4 Denio, 382; Wilsonv. State, 1 Porter, 120; State v. Steffins, 132 Mo. 332. (2) Our statute has not changed the common law in this respect except as to notes which have been delivered to the payee by the maker or indorser thereof.

Louis City Circuit Court. — Hon. P. R. Elitcraft, Judge. If the plaintiff and Thompson were not fellow-servants, and Thompson negligently caused the injury without negligence on the part of plaintiff, defendant is liable. If, on the other hand, they were fellow-servants, and Thompson injured plaintiff while obeying E. E. Sumner, there can be no question but that plaintiff can recover.

— Hon. H. C. Riley Judge. (1) The plaintiff purchased under the first deed of trust. The defendant purchased under the second. The question now to determine is which got the better title. Of course sale under the first deed of trust under which we purchased made the better title unless it was invalid as to the purchaser at the sale under the second deed of trust.

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

<p>1. Constitution: state officer: appellate jurisdiction. A member of the board of election commissioners of the City of St. Louis is not a State officer within the meaning of section 12, article VI, of the Constitution, conferring on the Supreme Court jurisdiction of appeals and writs of error in cases where a State officer is a party.</p> <p>2. -: -: definition. A State officer within the meaning of that section of the Constitution is one whose official duties and functions are coextensive with the boundaries of the State.</p>

Transferred from St. Louis Court of Appeals. (1) In the State of Maine a like statute was attacked, but was held to be constitutional. ■ Doblier v. Agl. Ins. Co., 67 Me. ,180. This seems to be the only case passing on the question. (2) Respondent claims the statute violates the constitutional protection of one’s property. In fact it is a wise provision protecting the 'policy holder in the right to recover his loss. It does not impair the obligation of the contract.

Transferred from Kansas City Court of Appeals. (1) A local agent of an insurance company, whose duties are to fix rates, countersign policies and collect premiums, and who is not shown to be authorized to adjust or settle losses, has no power to waive the furnishing of proofs of loss. Wood on Ins. [1 Ed.], p. 730; Wood on Ins. [2 Ed.], secs. 429 and447; Ostrander on Ins.,, p. 556, sec. 256; May on Ins. [3 Ed.], secs. 138, 465; Boivlin v. Ins. Go., 36 Minn. 433; Bush v. Ins.

— Hon. James T., Neville, Judge. (1) A letter press copy is only secondary evidence,, and no effort having been made to secure the original, the court clearly erred in admitting the same over plaintiff’s objection. Traber v. Hicks, 131 Mo. 189. (2) The power must be strictly followed. There was no power-under the evidence in this case for Leverett B. Sid-way to appoint Childers.

— Hon. D. ,W. Shackleford, Judge. (1) Appellants insist that the circuit court could not take the administration of this estate out of the hands of the probate court where the Constitution and the law placed it. (2) There could be no judgment for plaintiff to recover property devised to her, against Clark’s executors, until they had collected the property or got the same in their possession.

— Hon. Rudolph Hirzel, Judge. (1) The burden of proof to establish undue influence is on the party holding the affirmative of that issue. Dougherty v. Gilmore, 136 Mo. 414; Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 120. Mo.' 252; lb. 138 Mo. 197; Carl v. Gabel, 120 Mo. 283; Maddox v. Maddox, 114 Mo. 35; Jackson v. Bardin, 83 Mo. 175; Jones v. Roberts, 37 Mo.

<p>-1. Practice: cause remanded with specific directions: judgment. Where a cause has been appealed to the Supreme Court, and remanded with specific directions to the trial court to enter up a certain judgment, that court has no power to enter any other judgment or to consider or determine any matters not included in the duty of entering the judgment as directed.</p> <p>■2. -: -: -: new pleadings. Consequently the trial court committed no error in refusing to allow new issues to, be brought into the ease by additional pleadings, and in holding the case to be res adjudieata.</p> <p>3. -: -: -: taxes: interest and costs. Where on a former appeal this court remanded a cause with directions to the trial court "to enter judgment for all taxes sued for,” the trial court does not commit error if the judgment for taxes also includes the statutory attorney’s commissions, collector’s fees and interest.</p> <p>•4. City Taxes: attorney’s fees: judgment. It is proper to include attorney’s fees in the judgment enforcing a lien against land for city taxes. Under the statute the judgment of the tax attorney for his commissions is not postponed until the judgment for taxes has been collected and paid into the city treasury, but his fees should be made a part of the judgment for taxes.</p>

— Hon. Richard Field, Judge. (1) There is but one question in this ease, and that is whether the deed to the defendant Wood can be sustained as a lien prior to the attachment of the plaintiff bank. It must be conceded that the plaintiff extended the time for the payment of its debts,' and thereby lost advantages, when it would not have done so, if it had known of the existence of the deed to Dr. Wood.

— Hon. James H. Slover, Judge. (1) Whether this be considered simply as a contract, based on a valuable consideration, passing from defendant to plaintiff, for a conveyance of lands; or whether it be considered as a jointure, providing a settlement for defendant, Matilda Saunders, as wife of plaintiff, in lieu of her dower right in plaintiff’s estate, upon either view, the plaintiff is entitled to the relief prayed for the following reasons: First.

Transferred from Kansas City Court of Appeals. (1) Though the deed from Clark to Cowling did not bind Cowling to pay plaintiff’s note, still if the defendant took a deed from Cowling in and by which he agreed to pay plaintiff’s debt, then defendant is legally bound and liable to plaintiff on such agreement, it having been made for plaintiff’s benefit. Dean v. Walker, 107 111. 540; Daub v. Kngleman, 109 111. 267; Brewer v. Maurer, 38 Ohio St. 543; Merriman v. Moore, 90 Pa.

<p>1. Negligence: damages: medical services. To entitle plaintiff, in a suit against a railroad for personal injuries, to recover for medical services rendered him, he must show either that he has paid for the services or is liable therefor. He can not recover for a loss he has never sustained, nor for money which he is not legally liable to pay.</p> <p>2. -: -: - gratuitously rendered. The evidence shows that Dr. Griffith had treated plaintiff without being called by him or by any one for him, and in answer to the question, “What is the amount of your bill?” Griffith said, “About $281; that is, if I was going to charge anything.” The trial court told the jury that in estimating plaintiff's damages they should take into consideration “all expenses paid or incurred by him for medicine and the services of Dr. Griffith.” Held, that under this evidence plaintiff was underno legal liability to pay the physician’s bill, and the instruction therefore was error, and the eause must be remanded for new trial. Nor will such judgment be permitted to stand on the claim that under all the testimony the verdict was for the right party.</p> <p>3. -: -: -: -: GENEROSITY to plaintiff. In this case the respondent contends that “the defendant in an action for ' personal injuries caused by its own negligence ought not to profit by the generosity, charity and indulgence extended to plaintiff by personal friends.” Held, that this is no answer to the denial of defendant that “plaintiff has been put to great expenses for medicine and the employment of medical assistance.”</p> <p>4. -:-: -: gratuitous services. Nor does the proof of gratuitous services meet the allegation of the petition that “plaintiff has been put to great expenses for medicine and doctor’s bills, and will be to great expense in the future.”</p>

<p>Appeal from Jackson Circuit Court. — Hon. John W. Henry, Judge.</p> <p>(1) Plaintiff chose the proper and only remedy. State ex rel. v. Bombauer, 46 Mo. 155; Trust Co. v. Home Lumber Go., 118 Mo. 447; State ex rel. v. St. Louis Paint Co., 21 Mo. App. 526; Watson v. Woody Ptg. Co., 56 Mo. App. 145; Withers v. Bank, 67 Mo. App. 115. (2) The court- committed error in granting respondent a new trial. Maddox v. Maddox, 114 Mo. 35; Bunker v. Eibler, 49 Mo. App. 536; Brown v. Morgan, 56 Mo. App. 382. (3) The court committed error in allowing respondent to offer evidence tending to impeach the final judgment of the probate court. Van Bibber v. Julian, 81 Mo. 618; Yeoman v. Younger, 83 Mo. 424; Nelson v. Barnett, 123 Mo. 564; Young v. Byrd, 124 Mo. 590; State ex rel. v. Gray, 106 Mo. 526. (4), If the defendant did issue to Fred C. Hey, January 7, 1892, a certificate for fifty shares of stock in defendant company, with the following indorsement on the face: “These shares are subject to a lien in favor of this company for an indebtedness due it from James Cargill amounting to $1,436.24 as shown by its books” — said. Hey had no right or authority to accept such a certificate. It was not binding on the estate and plaintiff did not have to tender to defendant the supposed certificate, when he made his demand that a certificate of stock should be issued to him as administrator. (5) As there was a final judgment by the probate court finding that Fred C. Hey had never received any money, property or effects belonging to the estate, such judgment was not subject to collateral attack, and could not be impeached by the testimony of Mr. Hey. Hutchinson v. Shelley, 133' Mo. 412.</p> <p>(1) The question herein for consideration by this court is whether on the evidence before the jury and the instructions given by the court, the verdict of the jury was properly set aside, and not whether the trial court committed error in instructions or in admitting or rejecting testimony. Thompson v. Railroad, 140 Mo. 125; Standard Milling Co. v. Transit Go., 122 Mo. 269; O’Meara v. Swanson, 62 Mo. App. 71. (2) Defendant company was under no legal duty to transfer the stock or issue new certificate therefor, until plaintiff delivered to defendant for cancellation the outstanding certificate. Morawetz, Priv. Corps., secs. 186 and 187; Cook on Stock, sec. 358; Beach on Priv. Corp., sec. 670; 23 Am. and Eng. Ency. of Law, 671, 672; Galveston City Co. v. Sibley, 56 Tex. 269. (3) The indorsement on the certificate did not vitiate or impair it, and at most was no excuse or ground for releasing plaintiff from his duty to deliver the outstanding certificate for cancellation. Keller v. Brick Machine Mfg. Co., 43 Mo. App. 84. (4) Hey, administrator, made no final settlement in probate court, and that court rendered no final judgment. E. S. 1889, secs. 231, 232. (5) Appellate courts will not ordinarily weigh evidence on appeal from an order granting a new trial on the ground that the verdict of the jury was against the evidence or the weight of evidence. Bank v. Armstrong, 92 Mo. 280; Bank v. Wood, 124 Mo. 76; Bunyan v. Railroad, 127 Mo. 22; Lawson v. Mills, 130 Mo. 171; Parker v. Cassingham, 130 Mo. 349; Lee v. Geo. Knapp é Go., 137 Mo. 385; Thompson v. Railroad, 140 Mo. 125.</p>

Hon. R. G. Ranney, Special Judge. The sole point raised by appellant is his right to a homestead in his wife’s estate. The case of Keyte v. Perry, 26 Mo. App. 894, expressed an opinion contrary to the contention of appellant; but in- so far as that case seems to hold, that the homestead is for the wife and children or wife only, it is at variance with repeated decisions of this court, Bhorer v. Broclehage, 86 Mo. 545; Cañóle v. B/wrt, 78 Mo. 649.

— Hon. H. C. O’Bryan, Special Judge. (1) The court erred in giving its first and third instructions to the jury, which were given on its motion. These instructions assume, as a matter of law, and affirmatively assert that the hole was unsafe and dangerous, and its existence was negligence, instead of submitting the question for the determination of the jury as an issue of fact.

<p>1. Elections: judicial notice. This court takes judicial notice of such events as constitute a part of the political history of this country and State.</p> <p>2. -: corrupt practices act: fusion. The Corrupt Practices Act of March 31. 1893, does not prohibit fusion between political parties. So that a petition whose allegations are tantamount to a charge of fusion between the Democratic and Populist parties whereby one North withdrew as a Populist candidate for a public office, in consequence of a promise of the payment of money or the appointment to office of North, and whereby the name of one Bland, who was the Democratic candidate for the same office, was substituted on the Populist ticket in place of North's name, does not state a cause of action under the sections of said act prescribing a penalty for the bribery of voters.</p> <p>3. --: -: -: bribery of voters: cause of action. The alleged payment of money by Bland, the Democratic candidate for judge of an appellate court, to Cook, the chairman of the Democratic committee, to be used in securing the withdrawal of North, the Populist candidate for the same office; the alleged payment of money to the Populist committee to secure the substitution of Bland’s name in place of North’s on the Populist ticket; the alleged promise of Bland to North to appoint him reporter of the court if he would withdraw from said Populist ticket in his favor; and the alleged promise by Bland to Bond, another judge of the court, to permit him to appoint the other- officers of the court if Bond would aid him in having North appointed reporter and in otherwise carrying out his agreement with North, do not amount to a charge of a bribery of voters, and consequently a petition alleging these matters does not-state a cause of action under the Corrupt Practices Act of 1893. (Brace and Bobinson, JJ., dissenting).</p> <p>4. -: -: withdrawal of candidate. The Corrupt Practices Act of 1893 does not prohibit any person from inducing another to withdraw as a candidate for office in consideration of payment or promise of payment of money, and this court will not enlarge the act to include such things.</p> <p>5. -: -: SPENDING OF MONEY BY OTHERS AT ELECTIONS. The spending of money by others without the knowledge or consent of a candidate for office does not work a forfeiture of the office.</p> <p>6. -: -: PROOEEDING EX INFORMATIONS TO OUST OFFICER. Under the Corrupt Practices Act of 1893 the Attorney-General has no right or power ex officio of his own motion to institute a px-oceeding to oust one who has been elected to an office by a plurality of the votes of the district. Nor is such a proceeding, instituted by him on the application of the defeated candidate, who is required by the act to specify the charge, make affidavit thereto, and give bond, a quo warranto proceeding instituted by the Attorney-General ex officio, because when these preliminaries-are taken by the defeated candidate the Attorney-General must institute the action. Therefore a petition, founded on the Corrupt Practices Act, that alleges the defendant is usurping a public office, does not state a good cause of action under the rule that the Attorney-General has a constitutional right ex officio to institute a quo warranto proceeding to oust one who is usurping an . office without specifying the grounds on which he is illegally holding the same.</p> <p>7. -:-:- — : enabling statute. And the fact that section 11 of said act provides that the action thereunder shall be according to the rules prescribed by law for- an action against an usurper of an office, does not change the action from a proceeding under the statute to a common law proceeding by quo warranto.</p> <p>8. _: -: -: grounds op ouster: pleading. The Attorney-General in bringing an action to oust an officer under the Corrupt Practices Act, is limited to the charges of "violation of the laws concerning elections” preferred by the defeated applicant.</p> <p>9. Practice: petition: failure to state a cause of action. Where a petition fails to state a cause of action, it is immaterial whether the parties raise the question by demurrer or by answer or refuse to raise it at all.</p>

Quo Warranto. (1) The fundamental question is: Whether trust companies may receive money in mutuum. By the letter of the statutes they are empowered to receive money in exchange for their credit, thereby establishing the relation of debtor and creditor.

— Hon. E. J. Broaddus, Judge. (1) The defendant, under the- laws of the State of Missouri, was entitled to a full panel of qualified jurors before he was required to make his peremptory challenges. State v. McGannon, 51 Mo. 27; State v. Waters, 62 Mo. 196; State v. Davis, 66 Mo. 684; Const., art. II, sec. 22; R. S. 1889, sec. 4197; Greenfield v. People, 74 N. Y. 277.

— Hon. J. V. C. Karnes, Special Judge. (1) Instruction numbered 1, given at request of plaintiffs, was erroneous. First. Because it told the jury that it was admitted that plaintiff, Lucinda H. Ragan, had the title. There was. no such admission in the evidence. Mather v. Walsh, 107 Mo. 121; WilJcerson v. Filers, 114 Mo. 245. Second.

<p>1. Criminal Law: change of venue. The ruling of the trial judge on defendant’s applioation for a change of venue will not be disturbed, unless the circumstances of the case are of such a nature as to indicate an abuse of his discretion.</p> <p>2. -: challenge of array. Where the venire facias is directed to the sheriff, it does not have to be in the hands of the deputies who assist the sheriff in summoning the number of jurors specified therein.</p> <p>3. -: statute: summoning jurors! The statute regulating the summoning of jurors is directory.</p> <p>4. -: challenging juror. The exact ground of the ineompeteney of a juror should be stated. The mere challenge “for cause” amounts to nothing. (Hollowing State v. Taylor, 134 Mo. 109.)</p> <p>5. -: instruction on all points. Unless the defendant at the time calls the court’s attention to the fact that it has not instructed on the issues involved, specifying them, an assertion in a motion for a new trial that the Court did not instruct on all questions of law involved in the ease, will avail nothing.</p> <p>6. -: threats: “dead or alive.” It is not a threat for one authorized to make arrests to state that he will take another charged with murder “dead or alive.”</p> <p>7. -: arrest by a private person. Where a private citizen without a warrant has good cause to arrest one charged with a felony, and such felon has been informed of his intention to do so, the private citizen has authority to make the arrest and if he is killed by the felon in the attempt, it is murder. And if such felon knows that the intention of the private citizen in coming to the house in which he is, is to arrest him, such private person has the right to break open the door and enter for the purpose of making the arrest.</p> <p>8. -: -: threats: self-defense: instructions. And if under such circumstances the private citizen is shot down by the felon no instruction should be given at his trial in reference to self-defense or threats, where the “threats” were a statement to a third party by the prosecuting attorney (who was the private citizen in this case) that he would come and arrest the defendant “dead or alive,” accompanied with a request to “tell him to come in and give himself up like a man.” Nor should any instructions be given for murder of a less degree than in the first.</p> <p>9. -: -: manslaughter. Where a private citizen has the right to*arrest a felon, no instruction should be given for manslaughter on the trial of the felon for killing such private citizen while attempting thp arrest, nor for any degree of murder less than murder in the first degree.</p> <p>10. ---: resisting arrest: hot blood. “Hot blood” or “heat of passion” can not be engendered in a felon by one making or attempting a lawful arrest of him.</p>

Habeas Corpus. (1) A person committed for contempt for disobeying an order, which the court committing him had no authority to make, may be released on habeas corpus. Ex parte Arnold, 128 Mo. 536; Ex parte Craig, 130 Mo. 590; R. S. 1889, sec. 5379.

— Hon. H. M. Ramey, Judge. (1) Plaintiffs’ claim for fees in Hamilton v. Armstrong was adjudicated in the allowance. The statute, section 7182, providing for the allowance of attorney’s fees in partition, does not contemplate that attorneys shall sue their clients for an additional sum if dissatisfied with an allowance made.

Transferred from Kansas City Court of Appeals. (1) The clause in the contract authorizing the city to apply any part of the contract price at any time to the payment of claims for work and labor and material, was perfectly legal and valid, and it gave the plaintiff an equitable lien upon the part of the contract price which the city had sequestered or set apart under that provision. Luthy v. Woods, 6 Mo. App. 67; St. Louis v. Keane, 27 Mo. App. 642; Casey v. Gunn, 29 Mo.

<p>Í. Husband and Wife; admissions by the husband. An admission by the husband that land on which he lived was his wife’s, is competent and original evidence against him and all claiming under him.</p> <p>2. -: WIFE’S PERSONAL PROPERTY: AT COMMON law. Although the money of the wife passed by the marriage to the husband at common law, yet that principle does not apply except to the wife’s own money. It does not apply to that which she holds as trustee. And where she sells a tract of land which belonged to her first husband and receives the money therefor, she holds such money and its increase as trustee for her children by such husband; and if she vests it in land and the title is taken in the name of her second husband, the title will be divested out of him and vested in such children.</p> <p>3. - — ■—:-—:--: waiver by husband. Although the money of the wife would pass by the marriage to the husband at common law, yet he waives whatever marital right he has thereto by permitting her to buy and sell and deal with it as she wishes.</p> <p>4. -:--: machinations OF husband : improvements. Where the money of the wife buys land, and through the machinations of her husband the title is taken in him, he can maintain no compensation for improvements made thereon, as against her legal representative.</p> <p>5. -:-: WIFE’S EQUITABLE LANDS: LIMITATIONS: JOINT OCCUPANCY. Where land is paid for by the wife’s money, and the title is by his machinations taken in him, and they jointly occupy the land, and he admits that the land is hers, such holding by him is not adverse to her, and the statute of limitations does not begin to run against her children by another marriage until her death.</p>