Volume 148 — Missouri Reports

<p>Appeal from Jackson Circuit Court. — Horr. J. H. Sloveb, Judge.</p> <p>(1) The defendant should have been permitted to open and close the case. St. Louis Tow. Co. v. Ins. Co., 52 Mo. 529; Eeithmuller v. Eire Ass’n, 88 Mo. App. 129; Hazell v. Bank, 95 Mo. 60; Gaus v. Magee, 42 Mo. App. 307; Porter v. Jones, 52 Mo. 399; Harvey v. Sullen, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307; Bates v. Eorcht, 89 Mo. 121; Mo-Hale v. Oertel, 15 Mo. App. 583; Cravens v. Eaulkner, 28 Mo. 19. (2) The evidence offered to prove that defendant had not required prompt payment of earlier assessments should have been excluded. The purpose of this evidence was to show that plaintiff had waived prompt payment of the earlier assessments, and therefore should not be permitted to insist on prompt payment of the June call. Under given conditions such “course of conduct” might create an estoppel (or waiver), but whether estoppel or waiver was thereby created, facts relied upon sbould have been pleaded. Murphy v. Ins. Co., 70 Mo. App. Y8; MeNees v. Ins. Co., 61 Mo. App. 341; Kyle v. Ins. Co., 11 Mo. 291; Russell v. Ins. Co., 55 Mo. 593; McCullough v. Ins. Co., 113 Mo. 606; Bayse v. Ambrose, 32 Mo. 484; Pier v. Heinriehoffen, 52 Mo. 333; Travis v. Ins. Co., 32 Mo. App. 198; Roy v. Boteler, 40 Mo. App. 213; Obey v. Ins. Co., 29 Mo. App. 110; Lanitz v. King, 93 Mo. 518; Nichols v. Larkin, 79 MÍo. 271; Bank v. Hatch, 78 Mo. 24; Mahoney v. Reed, 40 Mo. App. 99; Bray v. Marshall, 75 Mo. 327; Hanley v. Ass’n, 4 Mo.’App. 253. (3) The acts shown do not establish, or tend to establish waiver. If they tend to establish anything (and this we deny), they tend to establish estoppel, and estoppel (i. e., the facts constituting estoppel), if relied on, must be pleaded. Miller v. Anderson, 19 Mo. App. 71; Weise v. Moore, 22 Mo. App. 530; Hammerslough v. Cheat-ham, 84 Mo. 13; Bray v. Marshall, 75 Mo. 327; Stones v. Richmond, 21 Mo. App. 17; Noble V. Blount, 77 Mo. 235; Meyer v. Knickerbocker, 73 N. T. 516; Ins. Co. v. Tullidge, 39 Ohio St. 240; Ins. Co. v. Pattker, 33 Ohio St. 459; Meyer v. Ins. Co., 73 N. T. 516; Day v. Ins. Co., 45 Conn. 480. (4) It was clearly shown that the June payment was not paid oi* tendered until after the time limited for payment (i. e. June 30), had expired, and the demurrer to the evidence should have been sustained, or the case reversed on appeal. Reichenbach v. Ellerbe, 115 Mo. 588; Gaterman v. Ins. Co., 1 Mo. App. 300; Survick v. Valley Ass’n, 25 Ins. L. J. 380; Scheele v. Society, 63 Mo. App. 277; Klein v. Ins. Co., 104 U. S. 88; Wheeler v. Ins. Co., 82 N. T. 543; Yoe v. Ass’n, 63 Md. 86; Hawkshaw v. Kofh, 29 Eed. Rep. 770; Sup. Lodge v. Keener, 26 Ins. L. J.. 413; Ins. Co. v. Strathorng, 3 U. S. 24; Am. Br. Co. v. Talbot, 141 Mo. 674. (a) The evidence offered to show waiver of prompt payment "of assessments (even if admissible under the pleadings) was wholly insufficient to establish waiver, even if defendant were chargeable with the knowledge and acts of those not shown to be its agents. Eeichen-bach v. Ellerbe, 115 Mo. 588; Eichards v. Ins. Co., 68 Mo. App. 585; Ohadwiclc v. Triple Alliance, 56 Mo. App. 463; French v. Hartford L. & A. Co., 21 Ins. L. J. 331; Harvey v. Grand Lodge, 50 Mo. App. 412; Grossman v. Mass. Ben. Co., 143 Mass. 435; State ex rel. v. Ben. Soc., 42 Mo. App. 489; Scheele v. Society, 63 Mo. App. 277; Gaterman v. Ins.. Co., 1 Mo. App. 300; Borgraffe v. Snp. Lodge, 22 Mo. App. 140; Smith v. New England Co., 63 Eed. Eep. 772; Barnes v. Continental, 30 Mo. App. 539; Easely v. Yalley Ass’n, 91 Ya. 162. (b) The acts relied on were not acts of the defendant — the agency of Eames and Miss Dewey was not shown; the extent of their authority was not shown; per contra they were shown not to be defendant’s agents and their authority, if any had been shown, was limited by the contract. Lyon v. Soc., 153 Mass. 83; Smith v. New England Co., 63 Fed. Eep. 772; Swett v. Ins. Co., 78 Me. 541; Williams v. Ins. Co., 89 Me. 165; West End Co. v. F. I. Co., 25 Ins. L. • J. 857; Sullivan v. Ins. Co., 25 Ins. L. J. 412; Jenkins v. Ins. Co., 58 Mo. App. 212; McOullom v. Ins. Co., 65 Mo. App. 304; Ins. Co. v. Wolff, 95 U. S. 326; Burbank v. Ass’n, 144 Mass. 437; McCoy v. Ins. Co., 152 Mass. 272. (c) The evidence of plaintiff and of witness Larimer, as to payments to and conversations with the elder Eames and Miss Dewey, should have been withdrawn from the jury by instruction. Ins. Co. v. Garzbac, 48 Neb. 827; Ins. Co. v. Humphrey, 62 Ark. 348; Furnas v. Franklin, 6 Neb.-429; Mechem on Agency, sec. 186; Hamilton v. Ins. Co., 15 Mo. App. 59; Stavinow v. Ins. Co., 43 Mo. App. 517; McOullom v. Ins. Co., 65 Mo. App. 310; Titus v. Eailroad, 46 N. J. Law, 393. (5) The court should have given the defendant a new trial upon the showing made in the affidavits filed in support of its motion therefor. Mayor v. Burns, 114 Mo. 426; Eickroad v. Martin, 43 Mo. App. 597; James v. Hicks, 58 Mo. App. 521.</p> <p>(1) Tbe law does not favor forfeitures, and slight circumstances are enough to show a waiver. Hawthorn v. Ins. Co., 5 Mo. App. 73. (2) It was not necessary to plead the waiver in this case. Ins. Co. v. Kyle, 11 Mo. 27; McCullough v. Ins. Co., 113 Mo. 616; Schmidt v. Ins. Co., 2 Mo. App. 339; Stewart v. Supreme Council, 36 Mo. App. 319. The rule applies to cases like the present, where the waiver applies to matters occurring before the loss as in this case, as well as when it applies to matters subsequent to the loss, like furnishing proof of loss. Thompson v. Ins. Co., 62 Mo. 469; ITanley v. Ins. Co., 69 Mo. 382. (3) The allegation of the petition that “defendant waived all further payments of premiums” is not denied. Hoffman v. Ins. Co.,. 56 Mo. App. 309; LaEorce v. Ins. Co., 43 Mo. App. 519. (4) Notice to the agent is notice to the company. Bacon on Ben. Soc. and Life Ins., secs. 426 and 433; May on Ins.. (3 Ed.), sec. 136; Richards on Ins. (2 Ed.), pp. 21 and 22. Knowledge of the agent of matters within the scope of his employment is in this as in other matters the knowledge of the company. 11 Am. and Eng. Ency. of Law, 338, 339 and note 2. (5) Defendant contends that all evidence as to conversation had between plaintiff and the elder Eames, should have been stricken out. "W"e contend that it should hot have been stricken out. Eirst, because it was competent; second, because the objection to it came too late; and third; because defendant expressly asked plaintiff on cross-examination for these conversations, and after getting-them and finding them not satisfactory moved to have them stricken out. 1 Am. and Eng. Ency. of Law, 432, and note. (6) In view of the instruction given and the theory on which the case was submitted to the jury, the conversations between the two Eames and the plaintiff were immaterial,. and the refusal to strike them out, if error, was harmless. (7) The granting a new trial because of the affidavit made and filed by attorneys for defendant is: Eirst, a matter peculiarly in the discretion of the trial court; second, the affidavit was not such as the law requires; because it did not state that the verdict was unjust, as expressly required in Culberson v. Hill, 87 Mo. 556, and third, it did not state that it was not cumulative merely (State v. McLaughin, 27 Mo. 112), while as a matter of fact it was merely cumulative. (8) In reply to constitutional question first suggested at ¿he argument in this court we wish only to say: Eirst, the question not having been raised below can not be raised here; second, this is not in the nature of class legislation. It does not apply only to insurance companies. It applies 'to a particular class of instruments, and not to a particular class of persons. State v. Stone, 118 Mo. 388; Henning v. Ins. Co., 47 Mo. 432.</p> <p>(1) The question of unconstitutionality was raised in the lower court; by defendant objecting to the instruction which submitted the question of waiver to the jury; also by defendant objecting to the testimony when offered, and moving to strike it out when received and by renewing the objection in the motion for new trial. This course necessarily raised every point respecting waiver, constitutional and otherwise in the lower court. State ex rel. v. Smith, 141 Mo. 1; Kaukauna Co. v. (3-reen Bay & Canal Co., 142 IT. S. 254. (2) To say that thfe rule applies to a particular class of instruments and not to a particular class of persons, and is therefore not class legislation, is a lame defense of this unreasonable rule. It is the persons who issue insurance policies that are affected by this vicious rule. Can this rule, thus laid down, in the case of McCullough v. Ins. Co., ■113 Mo. 616, “That waiver must be pleaded in regard to all kinds of actions except on policies of insurance, as the case at bar,” be defended at all? Has it any rational basis whatever? Such a classification is plainly unreasonable and wholly unjustifiable. It is classification run mad. If the rule were embodied in a statute, would it not be a violation not only of the Constitution of Missouri but also of the 14th amendment to the Constitution of the United States ? State v. Hays, 81 Mo. 5Y4; Railroad v. Ellis, 165 U. S. 155.</p>

— How. W. N. EvaNS, Judge. (1) A certificate may be subject to bargain and sale, yet tbe United States can take care tbat the conveyance shall be to him who is in good faith its vendee. The reception of tbe certificate of purchase as evidence of title may be regular and convenient as a rule of business, but it has not been adjudged to forbid or exclude proofs of tbe real and just rights of claimants. Irvin v. Marshall, 20 How. 555.

!Appeal from Vernon Circuit Court.- — HoN. D. P. Strattou, Judge. (1) If land be bought with the money of one and the title is taken in the name of another in fraud of the creditors of the first, a trust results which is the subject of sale on execution. (2) The fact that all the personal property and stock was assessed against Josiah’s father up until the time the father undertook to cheat his creditors, shows that Josiah did not claim to be the owner of the property.

— HoN. D. P. SteattoN, Judge. (1) A school board, bas no authority to certify an estimate to the county clerk wherein the rate of taxation exceeds the annual rate of forty cents on the $100 valuation until a majority of the qualified voters of such school district vote in favor of such increase. Art. 10, sec. 11, Constitution; R. S. 1889, sec. 8005.

— How. W. N. EvaNS, Judge. (1) The treasurer has no legal right to pay out the funds of one year for the indebtedness of a different year,, and ordinarily can not be required to do so. Nor has ho the right to pay out funds of one class on the indebtedness of another class. R. S. 1889, sec. 7665.

— I-IoN. BENJAMIN E. TueNee, Judge. (1) Where the court has acquired jurisdiction of the subject-matter and of the persons, during the lifetime of the party, a judgment rendered against him after his death is, although erroneous and liable to be set aside, not void or open to collateral attack. Black on Judgments, sec. 200; Coleman v. McAnulty, 16 Mo. 173; Reid v. Holmes, 127 Mass. 326; Myers v. McRay, 114 Mo. 377.

— IIoN. JohN A. TIocKaday, Judge. (1) On tlie merits tbe judgment of the court below was wrong. First. The defendant is entitled to equitable relief, because tbe judgment sought to be enjoined is without foundation, is unjust, inequitable, unconscionable and void. Eears, against whom judgment was rendered, was not a party, directly or indirectly, to the publicafion of the alleged libel; was unknown to Laura Eiley, and she to him.

— Host. H. C. Riley, Judge. (1) Tbe court erred in giving instruction number 1 for plaintiff. Tbis instruction was vague and ambiguous and calculated to mislead tbe jury. Under tbis instruction tbe jury might bave found all tbe facts therein stated to be true and although they might bave further believed that plaintiff was injured by jumping from tbe car, as defendant’s witnesses testified, still tbis instruction would bave required them*to find for tbe plaintiff.

<p>1. Trusts: EXPRESS: how proved. Express trusts must be manifested, and proved by some writing signed by tbe party to be charged.</p> <p>2. -: IMPLIED: wnAT PROOF Neoessary. The evidence to establish an implied or resulting trust must be clear, strong, unequivocal and so definite and positive as to leave no room for doubt in the mind of the chancellor. There is no such proof in this case.</p> <p>3. -: -: -: ADMISSIONS. Admissions and verbal statements of deceased persons are entitled to small weight in establishing an implied or resulting trust.</p> <p>4. —=-: deed to wife: presumption. Where a husband purchases land and has it deeded to his wife, the presumption, prima facie, is, that he intended it as a provision for her. Such presumption may be overcome by parol testimony.</p> <p>5. -: evidence: one party deceased. In a suit by a husband against his deceased wife’s heirs, to impress certain real estate with a trust, on the ground that it had been paid for almost entirely by his money, but deeded to his deceased wife, plaintiff was permitted to contradict statements and admissions attributed to1 him by living witnesses. Held, that he was not a competent witness in the case for any purpose.</p> <p>®. Husband and Wife: IMPROVEMENTS: compensation. A husband C,an not claim any compensation for improvements put on his wife’s land by him during coverture.</p>

Louis City Circuit Court. — Hon. ThoMas A. Bussell, Judge. (1) In an action for damages for deceit the plaintiff must allege and show: First. That the representation was untrue. Second. That it was known by the defendant to be untrue. Third. That it was calculated to induce the act of plaintiff. Fourth. That plaintiff, believing it, was induced to act to his detriment. Bullitt v. Farrar, 6 L. E. A. 149.

— IioN. E. J. Broaddus, Judge. (1) This an equitable partition suit. Courts of equity have concurrent jurisdiction with courts of law of all matters of account between tenants in common or other cotenants. Either cotenant may invoke the assistance of equity to compel an accounting, upon showing a necessity therefor, and can not be deprived of this assistance merely because he has an adequate legal remedy by an action of account. Ereeman on Coten. and Par.

'Appeal from Jachson Circuit Court. — HoN. O. L. Dobson, Judge. (1) If, upon the pleadings and evidence, the plaintiff should not recover, then no error on the trial of the case can be ground for a new trial, and the order granting a new trial must be set aside and judgment entered for defendant upon the verdict. Homuth v. Eailroad, 129 Mo. 642; Yogg v. Eailroad, 138 Mo. 180. (2) There was no negligence on the part of defendant.

<p>1. False Pretenses: unconstitutional statute. An indictment for obtaining money'under false pretenses “by means and by the use of a trick and deception, and false and fraudulent representation, and false and fraudulent statement and pretense,” is insufficient, though in the language of Revised Statutes 1889, section 3826, since such act violates the constitutional provision that the accused shall be informed of the nature and cause of the accusation.</p> <p>2. Indictment: words to introduce hew count. The words, “the jurors aforesaid, on their oath aforesaid, do further present," in an indictment, should be used only to introduce a new count.</p> <p>3. -: venue: crime committed in several counties. An indictment for obtaining money under false pretenses, alleging a crime consisting of a series of acts committed in several counties, but constituting only one attempt, must distinguish by apt averments between the different venues, since the crime is dispunishable in either of the counties where not enough is done in one county to amount to a completed and punishable crime.</p> <p>4.-: venue of federal court: judicial notice. A State court will take judicial notice of the county of the State in which a federal circuit court sits.</p> <p>5.-: venue: asportation: false pretense. The common-law doctrine of asportation does not apply to prosecutions for obtaining money under false pretenses.</p> <p>6.-: FALSE PRETENSE: BY DROWNING. An indictment for obtaining money from an insurance company under false pretenses by the insured (defendant) pretending to have been drowned must allege to whom the pretense was made.</p> <p>7. --:-:-: LIFE INSURANCE: FALLING IN RIVER: MEANS of fraud. The allegation that defendant, whose life was insured, pretended to fall, and fell, into a certain river in a specified county, does not constitute the offense of obtaining money under false pretenses in such county, where it is not alleged that the insured intended that his pretended drowning should be used as a means of obtaining the money on the policy.</p> <p>8. -: -:-:--:-: PAYMENT TO EXECUTOR: "instigated" by defendant. One whose life was insured, and who pretended to be drowned, whereby his executor was enabled to collect the insurance, can not be convicted under an allegation that tha false- pretenses as to his death were made by the executor through the procurement of defendant, unless defendant “instigated” the executor to make such pretenses, which is not shown merely by his prior acts in obtaining the policy, pretending to drown, and his subsequent disappearance and concealment.</p> <p>9.-: --•:-:-: -: -: judgment by agreement. A judgment by agreement, obtained without false pretenses, by the executor of the insured against the insurer on a policy, will not support a charge of obtaining money under false pretenses against the insured, who had only pretended to be dead.</p>

— Hour. HeNry C. Biley, Judge. (1) In view of all tbe circumstances and facts in tbe case, tbe verdict of tbe jury was against tbe evidence, taking tbe evidence in its most damaging features against the defendant; and if no errors had been committed bjr the court in the trial of the cause, he should have been convicted of murder in the second degree only.

<p>4-Ppellate Practice: criminal law: record: no bill op exceptions. Where the record contains no bill of exceptions, and discloses no error, the judgment will be affirmed.</p>

Transferred from St. Louis Court of Appeals. (1) All tbe correspondence between Porter and tbe W. 0. Little Bond Company concerning tbe negotiation and sale of those bonds, while be was plaintiff’s cashier, is competent evidence on those issues, and should have been admitted.

<p>1. Murder: express malice: self-defense. One who hills another in self-defense is not guilty of murder, though he hore express malice towards deceased.</p> <p>2. Self-defense: right op attack. It is not generally true that the right of self-defense does not imply the right of attach. One who has reasonable ground to believe that another intends to do him great bodily harm, and that such design will be accomplished, need not wait until his adversary gets advantage overhimj but may immediately hill the latter, if necessary to avoid the danger.</p> <p>3. -: when inviting attack. The fact that one puts himself in the way of being assaulted by another, though he expects the latter Will attach him, does not preclude him from setting up self-defense.</p> <p>4. Manslaughter: killing one destroying pence. Though one is not justified in hilling another who is tearing down and carrying away a fence belonging to the former, such hilling is nothing more than manslaughter in the fourth degree, if done in a heat of passion engendered by the removal of the fence.</p> <p>5. -: -: instructions. Where defendant shot deceased while the latter was removing the former’s fence, an instruction that such fact did not justify defendant is misleading, as it should also state that, if the hilling was done in the heat of passion, it would be only manslaughter.</p> <p>6. -: -: -: right to defense op self-defense. The fact that defendant claims that the hilling was done in self-defense does not destroy the right to an instruction based on the claim that . the hilling was manslaughter.</p>

HoN. AlexANdee Ross, Judge. (1) Tbe trial court erred in not sustaining appellant’s objection to the introductions of any evidence in behalf of' plaintiff. The petition did not state a cause of action, and said action was prematurely brought, being brought within four months after the taxes became delinquent. The charter- and ordinance of plaintiff requires that no suit for delinquent taxes should be brought within twelve months after they became delinquent. R. S. Ord.

— HoN. D. W. , Shacexeeobd, Special Judge. An examination of tbe authorities regarding tbe sufficiency of tbe count in tbe indictment upon wbicb tbe defendant was convicted will disclose nothing irregular or illegal. It is in due form and has been frequently approved by this court., State v. Myers, 82 Mo. 562; State v. Wammack, 70 Mo. 410; State v. Ward, 74 ,Mo. 253; State v. Riley, 100 Mo. 494;. State v. Smith, 80 Mo. 516; State v. Nelson, 101 Mo. 477;.

<p>Forgery: instructions: verdict of jury. The second count in an indictment charged defendant with selling a forged check, and the third with having in his possession such a cheek with intent to pass it. The court instructed that, if the jury found that defendant had in his possession a forged cheek with intent to pass it, they would find him guilty under the second count. The verdict was guilty as charged in the second count. Meld, that giving the instruction was reversible error.</p>

S,ois. H .M. Ramey, Judge. (1) It was error to affirm part and reject part of tbe commissioners’ report. Railroad v. King, 58 Mo. 491. Tbe award allows $173.30 as value of tbe defendant’s property taken, damages at $100 and charged him with benefits at $183.30. Tbe evidence shows tbe value of tbe property taken at over $2,000, while tbe damages were about as much as tbe benefit. (2) Defendant was entitled to a jury of twelve men.

— HoN. W. W. Wood, Judge. (1) Tbe indictment having been returned by tbe .grand jury on a legal holiday was not sufficient to base a charge on against the defendant. (2) More than half of the panel of forty jurors had formed and expressed opinions as to defendant’s guilt, and so stated on their examination. The jury was not fair and impartial. (3) The court erred in admitting the letters in evidence.

— HoN. James T. Neville, Judge. (1) A wife is bound to follow tbe fortunes of ber bus-band and to live where he chooses to live, and in the style which he may adopt until death part. Messenger v. Messenger, 56 Mo. 329; Easter v. Kaster, 43 Mo. App. 118; Thompson on Homesteads (1 Ed.), sec. 14; Schouler v. Dom. Rel. 293. (2) Injunction will not lie. R. S. 1889, sec. 5510. Injunction will not lie to restrain a trespasser unless he is insolvent or the injury is irreparable.

Louis Oily Circuit Court. — HoN. P. B. Elitceaet, Judge. (1) Tbe court should have instructed tbe jury upon tbe third degree of manslaughter, as defined in section 3471, B,evised Statutes 1889.

— Hon. J. H. Slover, Judge. (1) Tbe nncontradicted evidence establishes every fact which the given instructions declare entitles plaintiff to recover.

— LIoN. Raéis C. Stepp, - Judge. (1) Tbe indictment is not sufficient in tbis, that it does not charge that the giving of the wound was felonious or deliberate. State v. Eeaster, 25 Mo. 324; State v. Em-eriche, 87 Mo. 110; State v. Deffenbaeher, 51 Mo. 26; State v. Herrell, 97 Mo. 108; State v. Clayton, 100 Mo. 519; State v. Eairlambs, 121 Mo. 154. Indictments for murder require great strictness. State v. Sides, 64 Mo. 383; State v. Lakey, 65 Mo. 217.

'Appeal from St. Louis City Oircuit Gourt. — HoN. William j Zaci-ieitz, Judge.

Transferred from Kansas Oily Gourt of Appeals. (1) When mortgaged property is sold, the vendee assuming the incumbrance, the mortgagor’s obligation as principal debtor can not be changed to that of a surety, without the consent of the mortgagee. Conn. Ins. Oo. v. Mayer, 8 Mo.

'Appeal from, St. Louis Gounty Circuit Court. — HoN. Rudolph IIiezel, Judge. (1) The identification of the defendant by the prosecuting witnesses being imperfect, and some six or more witnesses discrediting the dubious identification and absolutely without contradiction or conflict towards each other, and they being of apparently substantial standing, and no impeachment of any of them, the court should have set the verdict aside.

Louis Gity Oircuit Oourt. — Horn Jacob KleiN, Judge. (1) The court granted the defendant’s prayer for a ■special jury. It was at the time proceeding under the law of the State of Missouri with reference to special juries. In fact it did not try the case with a special jury, and for that matter it did not even try it with a common jury.

Transferred from Kansas Gity Oourt of Appeals. (1) Tbe statute under consideration asserts a broad equity. It was enacted to afford persons wbo, to enable tbe State to collect its revenue, purchased lands at tax sales, a remedy to be reimbursed tbe money paid to relieve tbe delinquent land from its burdens of taxation. It was made for just sucb oases as tbis. Tbe lands of defendants unquestionably were subject to taxation.

— Host. JóhN M. Wood, Special Judge. (1) There was no evidence authorizing a submission of this- case to the jury, and the instructions in the nature of demurrers, asked by defendant, ought to have been given. In none of the eases cited below do the facts show such recklessness upon the part of the injured person as is disclosed in this case, and in all of them it was held that the contributory negligence of the injured person prevented a recovery.

Transferred from St. Louis Gourt of Appeals. (1) If the appellant wishes to have his supposed grievances passed upon and adjudicated by this court, it is his duty to have all the necessary papers and facts before the court as provided by the statutes, the rules of court and the law, and for neglect or failure to do so, he must suffer the penalty of having the judgment against him affirmed or his appeal dismissed.

Louis Oity Circuit Court.- — HoN. Leeoy B. .ValliaNT, Judge. (1) The evidence conclusively establishes the fact that the property described in petition was conveyed to Marcus A. Wolff as a security for a debt, and that appellant has the right to redeem.

Transferred from St. Louis Gourt of Appeals, (1) Tlie ordinance is unreasonable and oppressive,, as entailing upon plaintiff a great and unecessary expense, and is therefore void.

— HoN. Eichaed Eield, Judge. (1) Under tbe facts stated in the agreed statement of facts, tlie lower court erred in holding that the plaintiff was entitled to a preference over the general creditors of the Slater Savings Bajik in. tbe funds in tbe bands of tbe as-signee. Tbe relation existing between tbe plaintiff bank and tbe Slater Savings Bank was simply that of debtor and creditor.

<p>1. Appeals: bills'of exceptions: signed by judge: public road. Bills of exceptions must be signed by the judge, and unless so signed there is nothing before the appellate court for review except the record proper, which, in a suit to establish a public road, consists of the petition, notice, order appointing commissioners, their report, order of county court approving the same, the order directing the road to be opened, and the judgment of the circuit court to which the ease was taken by appeal.</p> <p>2. -: -: -: clerk’s recital. A recital by the clerk at the close of what purports to be a bill of exception, to the effect that it is signed by the judge, when in fact his signature does not appear thereto, will not meet the statutory requirement that “the person composing the court shall, if such bill be true, sign the same.”</p>

— HoN. J. D. PeeeiNS, Judge. (1) Tbe court abused its discretion in permitting attorney T B. Haugbawout to appear for tbe State. On tbis question tbe wife of Mr. Haugbawout was permitted to testify as a witness, over tbe objection of defendant. Tbis was error. R. S. 1889, sec. 8922. (2) Tbe gist of robbery is tbe taping (or attempting to take) property from another by force, by putting bim in fear, and against bis will.

— How. Riohaed Field, Judge. (1) A statute prescribing the duties of directors, though it declares no penalty, imposes a duty upon them, and a negligent or willful failure to perform such statutory duty lays the foundation for an action. 8 Thompson on Corps., see. 4104; Briggs v. Spaulding, 141 TJ. S. 152; Thompson v. Greeley, 107 Mo. 577; Thompson v. Swain, 107 Mo. 594; R. S. 1889, sec. 2758.

Louis Gity Gircuit Court. — Hok. Leeoy B* ValliaNt, Judge. (1) While the act contains no direct and positive provision for disposing of the fees of justices which may be collected by constables, the intent and meaning of the act clearly appeal’s when taken as an entirety, and its purposes are considered. It was evidently intended that the salary provided should be in lieu of fees, and that the fees should be paid to. the treasurer. The act takes the place of the general law.

<p>1. Recognizance: not signed in presence of officer. Under Revised Statutes 1889, section'4127, authorizing the officer “taking a recognizance” in a criminal ease to administer all necessary oaths, a recognizance not signed in the presence of the officer is void.</p> <p>2. -: -: CERTIFYING AND RETURNING TO CLERK. Under Revised Statutes 1889, section 4129, requiring every recognizance taken by an officer to be certified, and returned forthwith to the clerk for filing, a recognizance not certified, and not returned until after forfeiture thereon, and after the officer had gone out of office, is void.</p> <p>3. Bail in Vacation : indorsement of judge’s absence or order. Under Revised Statutes 1889, section 4124, requiring the court to fix the amount of accused’s bail if he is not in custody during the term of the indictment, which the clerk must indorse on the warrant, but authorizing the clerk to fix the bail if the judge is out of the ‘county, the indorsement by the clerk should show that the judge ordered it, or that he was absent.</p>

— Hoh. HeNRy C. Eilby, Judge. (1) The petition alleges no assessment against the railway companies. (2) The petition does not allege that either company had any property in Cape Girardeau county subject to taxation, at any time. (3) It is necessary to allege all the basic facts that would authorize a suit for the recovery of delinquent taxes, because if the taxes were illegally levied the State would have no right to sue for and recover them from the taxpayer.

— HoN. Hehby C. Eiley, Judge. (1) Judgment should be reversed because the evidence conclusively shows, without contradiction, that the proximate cause of the death of plaintiffs husband was occasioned by the negligence of the railway company; that no negligent act of this defendant was the proximate cause of his death.

— Hon. W. W. NucKer, Judge. (1) Tbe plaintiff, to be entitled to recover in this case, bad to sbow legal title in bimself to tbe strip of ground sued for. Kingman & Oo. v. Sievers, 143 Mo. 525; Olay y. Mayr, 144 Mo. 380; Cox v. Arnold, 129 Mo. 387; Eord y. Erencb, 72 Mo. 250; West y. Bretelle, 115 Mo. 661; Howard v. Tracy, 118 Mo. 639; E. S. 1889, sec. 4626. The quitclaim deed from the Pfeiffer heirs to the plaintiff conveyed nothing.

<p>Ejectment: boundary line: agreement. Adjoining owners of land may agree upon the division line between their premises, and each owns up to the agreed line as fully as if it were a natural boundary or their respective deeds called for it.</p> <p>2. -: -: —r-: shifting pence. And if such boundary has onee been fixed by the agreement and both sides have taken possession under it, the decay, removal or shifting of the fence has no effect on it.</p> <p>3. -: -: -: consideration. The concession that each makes to the other as to what the line shall be, the drawing of the line and the taking possession under that agreement, is the consideration.</p> <p>4. ■ — •—: -: -: evidence op tue agreement. Possession and use are evidence that there was an agreement to establish the line, and it is only necessary that such possession or use continue long enough to indicate what was the understanding of the adjacent landowners.</p> <p>5. -: -: -: limitations. But if the landowner relies on the statute of limitations to fix his boundary line, he must show that he has held possession up to the line for the statutory period, claiming it as his line against the world, without any agreement concerning the line, and disregardful of developments by subsequent surveys. But if he believed the line to be the true boundary, and claimed it as such but subject to correction if subsequent developments should show it to be erroneous, then he can acquire no title beyond the true line by his possession no matter how long he thus held it. And if both adjacent landowners occupied up to a line believing it to be the true line, but neither maintaining it against what might thereafter be discovered to be the true line, the possession of neither is adverse to the other.</p> <p>G. -: -: -: —-: interdependent defenses. The title by agreement to the disputed strip of land is not dependent on continuous possession, nor is title by limitation dependent on an agreement as its inception.</p> <p>7. -: description of land in verdict. It is not sufficient for the verdict in ejectment to refer to evidence whereby the sheriff may ascertain what the jury intended to find. The plaintiff is required to-give the jury such fixed monuments or official documentary data as will enable them to describe the land that they intend him to recover with so much certainty that the sheriff, without other evi. denee, may execute the writ.</p>

<p>Fraud: suit to have deed declared mortgage. A married woman inherited from her mother certain land, subject to an incumbrance of $666.25. Her husband’s father at the request of the husband, paid off the incumbrance. The husband and wife then conveyed the land, by warranty deed, to the husband’s father, who in turn conveyed it to a trustee, for the benefit of the husband and wife for life, with remainder in fee to their children. Held, that the husband and wife, having made the warranty deed with full knowledge of its object and purpose, can not have such deed reformed and declared a mortgage and themselves thus made the debtor of the husband’s father.</p>

— HoN. D. W. SliACKLEEORD, Judge. (1) The court erred in refusing to instruct the jury to return-a verdict for plaintiff. Wilson v. Purl, 133 Mo. 367; Nye v. Alfter, 127 Mo. 529. (2) The court erred in refusing to instruct the jury that defendant had no color of title to west half of the southwest quarter of section 13, and west half of the northwest quarter of section 24, and that he had failed to show the extent and boundary of his actual possession.

— IIoN. I). W. SltACKLEKOEI), Judge. (1) Tbe mental faculties of William B. Groom were very mucb impaired. He was subject to tbe influence of tbe defendants and tbeir wives, wbo did not permit bim to escape tbeir watchful attention.

— Host. E. L. Scarritt, J udge. In a suit for damages for injuries received in a e sidewalk, proof of like accidents which occurred at tbe same place and while tbe sidewalk was in tbe same condition as when tbe plaintiff was injured, is admissible in his favor. District of Columbia v. Armes, 107 U. S. 519; Quinlan v. Etica, 11 Hun. 217; s. c., 74 N. Y. 603; Osborne v. Detroit, 32 Eed.

— Hon. J. H. Slover, Judge. (1) The character, condition and value of plaintiff’s saw mill building, its machinery, and its lumber, as well as the question as to the danger from sparks escaping from the Decker mill, were fully inquired into by both plaintiff and defendant during the progress of the trial. Defendant’s alleged newly discovered evidence bears upon these questions alone, and is therefore wholly cumulative, contradictory and impeaching in its tendency.

<p>Appeal from St. Louis Gity Circuit Gourt. — HoN. William Zacheitz, Judge.</p>

<p>1. Murder: self-defense: contrary to physical facts. In this case it is held that defendant’s testimony on self-defense is inconsistent with the physical facts surrounding the killing.</p> <p>2. -: viewing the place of murder. It is not error in this State for the trial court to refuse to send the jury to view the premises where the crime is alleged to have been committed.</p> <p>3.-: continuance: failure to'incorporate in bill of exceptions. Unless the application for a continuance is incorporated in the bill of exceptions, the question of its sufficiency is not open to review on appeal.</p>

<p>1. Juror: disqualified: evidence before coroner. When it is sought to disqualify a juror by reason of his having read the evidence before the coroner, it should appear that he read the evidence itself, not some garbled statement of it, nor a mere editorial or reportorial comment thereon.</p> <p>2. Evidence: verdict: result of passion or prejudice. If it appear from the whole evidence that a verdict for murder can be ascribed only to prej udiee, passion or partialty, the Supreme Court will set it aside. But none of these elements of unfairness is discoverable in this ease.</p> <p>3. -: murder: corpus delicti. The evidence in this case is reviewed at length, and is held to establish not only that deceased died from poison, but that the defendant was one of the agents in administering said poison.</p> <p>4. -: confession. A confession is voluntary where no threats are employed to extort it and no promises are held out by the officer to obtain it.</p>

— How. O. E. Smith, Special Judge. (1) Tbe court erred iu ruling and bolding that the patent from Chariton county, issued in 1890, under which defendant claims, was not the prior and better title, as against the patent issued by said county March 6, 1891, under which the plaintiff claims.

— How. JohN A. Hookaday, Judge. If there should be any question raised as to tbe jurisdiction of this court to entertain tbe appeal in tbis case, it is only necessary to refer to tbe following cases: Musick v. Railroad, 114 Mo. 309; State ex rel. v. Rombauer, 124 Mo. 598; and Gray v. Worst, 129 Mo. 122.

<p>The ease of Edwards v. M., K. & E. Railroad, ante, p. 513, followed and approved.</p>

- — HoN. W. S. Stookwell, Special Judge. (1) Tbe second count of tbe indictment is duplicitous distinct, inconsistent and repugnant offenses are charged therein. State v. Flint, 62 Mo. 393 ; State v. Huffman, 136 Mo. 65; State v. Shields, 8 Blackford (Ind.), 151; State v. Olavenger, 20 Mo. App. 628; State v. Bach, 25 Mo. App. ¡551; State v. Gibson, 111 Mo. 100; State v. Mah$n, 2 Ala. 340; King v. Stevens, 5 East 244; 1 Bishop on Grim. Proc..

Louis City Circuit Court. — HoN. P. R. Elitcraft, Judge. (1) Tbe agreement made no absolute contract for tbe sale of tbe machines. Tbe agreement made no absolute contract for tbe sale of tbe territory, or tbe use of tbe patents therein. Nothing was created by tbe agreement, more than an experimental option for one year, during which time, tbe defendant might experiment, at bis own expense, on tbe machines in tbe territory.

Louis County Ci/rovAt Cov/rt. — HoN. Budolph Hirzel, Judge. (1) The deed from Yeates to G-oodlett, was a conveyance to uses, and prior to the adoption of the statute of uses, a fee might be limited upon or after a fee in such a conveyance, though such a limitation would have been void if contained in a common law conveyance. 2 Kerr on Eeal Prop. (Ed. 1895), sec. 1635, 1655, 1659 and 1663; Spence’s Eq. Jur. (Ed. 1846), p. 455; 2 Pomeroy’s Eq. Jur.

<p>■1. Insurance: when EXECUTED in this state : agreement in policy: Where payment of premiums during the life and good health of the insured, and delivery of the policy to him, are made conditions precedent for the completion of the policy’s execution, and the premiums are paid and the policy delivered to him in this State, it will he held that the policy was executed here, notwithstanding the insurance company is incorporated under the laws of another State, has its chief office there, and the policy and application provide that the contract contained therein shall be construed according to the laws of such other State, and that “the place of the contract is expressly agreed” to he in such other State.</p> <p>2. -: -: governed by laws op Missouri. Sueh a contract being executed here, is subject to the laws of Missouri, anything in the contract to the contrary notwithstanding.</p> <p>3. -: business by grace: must conform to laws. Foreign insurance companies which do business in this State, do so not by right but by grace, and must in doing so conform to its laws. Moreover the State may prescribe conditions upon which it will permit such companies to transact business within its borders or exclude them altogether, and in so doing violates no contractual rights of the company.</p> <p>4. -: statute: part op contract. A statute with respect to the-subject-matter in force at the time a contract is entered into within this State, becomes a part of the contract, as much so as if copied into it.</p> <p>5 -: -: rule as to what statute governs. The rule of law seems to be, that when no statute intervenes prohibiting it, a corporation doing business by permission in another State than that of its incorporation may by contract make the law of the State of its incorporation the applieatory law of the contract, but where the laws of the State in which it does business by license prohibits such corporation from making certain kind of contracts, it can act only in accordance therewith.</p> <p>6. Life Insurance: lapse: commutation: demand: paid-up policy or extension of time: statutes. The defendant issued its fifteen-year endowment policy for $10,000, and four annual premiums were paid, and default was made when the next annual payment became due in May, and the insured died in November following. The policy provided that, in case of non-payment of premiums, after it had been in force three years, "a paid-up policy will be issued on demand, made within six months after sueh lapse and surrender thereof, for an amount equal to as many fifteenth parts of the sum above insured as there shall have been completed annual premiums paid hereon, .and all right, claim or interest arising under statute to any other paid-up policy and to any other temporary insurance, whether provided for by statute or not, is hereby expressly waived and relinquished.” Held, first, that it was a condition precedent to the holder’s right to a paid-up policy, that demand be made therefor, with surrender of the policy, within six months after the policy lapsed, and no such demand could be waived by the company so as to affect the beneficiary’s rights; and as no demand was made and no surrender of the policy was offered, section 5986, Revised Statutes 1879, concerning “the unconditional commutation of the policy to non-forfeitable paid-up insurance,” does not apply. Held, second, that section 5983, providing that three-fourths of the net reserve of the policy should he applied as a single premium for the temporary extension of the entire policy and prescribing a rule for fixing the term for which such policy shall be in force, does apply, as also does section 5985, providing that in ease of the death of the insured within the term of temporary insurance so ascertained, the company shall be bound to pay the amount of the policy less the unpaid premiums with compound interest thereon; and, as the insured died within the term thus fixed or ascertained, the amount of the policy less such unpaid premiums and interest must be pai_d, notwithstanding the waiver of such statutory rights in the policy.</p>

'Appeal from St. Louis Gity Gircuit Court. — LIoN. James E. Withbow, Judge. (1) The- first proceedings in East St. Louis, here under review, disclose a substantial compliance with the statutes of Illinois, and is all that is necessary in such cases. Secs. 42 to 58, Ohap. 11, E. S. Ill. 1891; secs. 1 to 28, Ohap. 62, E. S. Ill. 1891.

626 Mandamus. (1) “A judge sitting in a case,” must be one to whom a case bas been submitted for decision; that is to say, for the application of the law to the facts, which are produced before him. Such application of law to facts may be made without either oral or written argument, and without consultation with any one.

<p>1. Appeals: issues made by brief. A constitutional question can not he injected into a case by the briefs and argument of counsel.</p> <p>2. _: -: jurisdiction. For jurisdiction of an appeal, the court will look to the record, and not to briefs of counsel; and unless the record shows that a question involving the construction of the Constitution was fairly and directly raised and passed upon in the trial court, the Supreme Court has no jurisdiction on that ground.</p> <p>2. -: -: -: case stated. The town of Kirkwood was incorporated by special act of the General Assembly in 1865, and afterwards enlarged its boundaries by ordinance to include defendant’s residence, and afterwards arrested him for keeping a dog without license contrary to one of its ordinances. -He was fined, and appealed to the circuit court, and there by an agreed statement it was agreed that if the enlargement of the corporate limits was legal 'the fine could be imposed. The court by declaration declared that “on the pleadings and evidence plaintiff can not recover.” The motion for a new trial did not raise a constitutional question. Held, that that question was not raised by the record and the appeal must be transferred to the proper court of appeals.</p>

Louis City Circuit Court. — HoN. Leeoy B, ValliaNT, Judge. (1) The circuit court was without jurisdiction in the matter. Constitution, art. YI, secs. 1 and 22; State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. McKee, 69 Mo. 504; St. Louis v. Laughlin, 49 Mo. 559; Ex parte Allis, 12 Ark. 101; State ex rel. v. Anthony, 65 Mo.

— HoN. Jakes H. Lay, Judge. (1) The law is that when a city makes a contract for public improvements, which under its charter it had authority to make, it must be held responsible for a breach of that contract on its part, although it has no power to incur a general debt for such purpose. Missouri: Eisher v. St. Louis, 44 Mo. 482; Chambers v. St. Joseph, 38 Mo. App. 536; Oster v. Jefferson City, 57 Mo. App. 485; Steffen v. St. Louis, 135 Mo. 44.

Louis Qity Circuit Court. — HoN. JohN M. Wood, Judge. (1) Tbe circuit court bad no jurisdiction of tbis cause. Tbe city of St. Louis can not confer appellate jurisdiction on tbe circuit court. Oonstitution, art. VI.

— Hon. J. IT. Slover, Judge. (1) The demurrer of appellant ought to have been sustained. There can be no abandonment without an intention so to do, and there is not a scintilla of evidence in the record tending to show an intention on the part of the appellant to abandon the premises.