Volume 168 — Missouri Reports

Certiorari. This court has ample jurisdiction to hear and determine the question in issue in this controversy, and certiorari is the proper proceeding where, as in this instance, a Federal question is involved, and where the appellate court has refused to transfer the cause to this court.

— Hon. J. L. Fort, Judge. (1) The plaintiffs possession claimed to be adverse was arrested and the running of the statue of limitations in his favor suspended when the action of ejectment was commenced August 20, 1886, continued to be suspended up to the date of the judgment June 19, 1888, and continued suspended during the life of the judgment, and when defendant took possession it related to the institution of that suit.

— Hon. J. L. Fort, Judge. (1) The note, which was the basis of the original suit herein, was executed with the mutual understanding between the parties that it was to satisfy and pay off the account theretofore run by appellant at the store of respondents, and it had that effect. Jackson v. Bowles, 67 Mo. 609; E-iggs v. Goodrich, 74 Mo. 108 ; Eice y. Dudley, 34 Mo. App. 383; O’Bryan v. Jones, 38 Mo. App. 90.

— Hon. J. L. Fort, Judge. (1) The attorney for plaintiffs informed the probate judge that he desired to contest the settlement of Davidson prior to the filing thereof, and was informed by said judge that, when the settlement was filed, if it was fair on its face, he would approve it, and the heirs could appeal from his judgment.

Louis City Circuit Court. — Hon. H. D. Woodj Judge. (1) When the condemning corporation, after having put the landowner to expense, abandons the proceeding, the latter may recover all costs, expenses and damages occasioned by the proceeding. Railroad v. Railroad, 138 Mo. 591; Railroad v. Lackland, 25 Mo. 515; Railroad v. Reynal, 25 Mo. 534; St. Joseph v. Hamilton, 43 Mo. 281; Leisse v. Railroad, 2 Mo. App. 105; s. c., 72 Mo. 561; Gibbons v. Railroad, 40 Mo.

— Hon. H. J. Broaddus, Judge. (1) The fact that justice Case discharged the plaintiff on the charge of forgery after hearing the evidence proves the want of probable cause for the prosecution. Brant v. Higgins, 10 Mo. 734; Casperon v. Sproule, 39 Mo. 40; Eugate v. Miller, 109 Mo. 285; Ray v. Goings, 112 111. 65-6.

<p>1. Right of Way Deed: forfeiture: unnamed condition. A deed of right of way can not be forfeited upon a condition not mentioned therein.</p> <p>2. -: -: -; ABANDONMENT OF ENTERPRISE: COMPLIANCE with conditions. A deed granting a right of way to a railway company provided for the construction and maintenance of a-railroad to be operated by electricity, and provided for a forfeiture “upon the failure or abandonment of said enterprise.” The company ' built the road and had it in operation within the time specified in the deed, and was operating it at the time of the trial. Held, that a slight deflection from the route as specified, and a failure to occupy a few feet of the specified land so granted, was not an abandonment of the enterprise, and that failure not having been mentioned as a ground of forfeiture can not be so considered.</p> <p>3. -: -: CONSTRUCTION ACCORDING TO DISTANCES: ELECTION and acquiescence. The acquiescence by the grantor in a right of way deed in the construction of the railroad according to the distances made in the deed, the only mistake being in the courses, and the election by the grantee to so construct, and the operation of the-road for years, amount to a practical construction according to the deed.</p> <p>4. Suit To Set Aside Deed: proof. To sustain a suit to set aside-a deed and divest title to real estate out of the grantee, for the-breach of a condition subsequent, the evidence should be clear, cogent and convincing.</p> <p>5. -:-: right of wav: deed. Plaintiff knew exactly where-the railroad was to run. It had been surveyed and marked out before he made his deed. No fraud was practiced. He saw the company spend its money in constructing the track, and did not intimate-that it was not done in accordance with the deed. Three years later he employed a surveyor to ascertain if the road was constructed exactly on the route surveyed, and found that 1,300 feet of the route-was, and 300 feet possibly was not, and the doubt as to this distance grew out of an ambiguous description in the deed. Held, that the decree setting aside the deed should be reversed because not supported by the evidence.</p>

— Hon. Nat. M. Shelton, ■ Judge. (1) Tbe alleged deposition was not evidence and could not be made sucb, or used on tbe trial, and defendants were not attempting to use it. Sec. 2904:, R. S. 1899. Unless the deposition is regularly taken and filed in the cause, it does not waive competency of the witness. Borgess Oo. v. Vette, 142 Mo. 142. Plaintiff at the trial was only examined in relation to things concerning which the statute makes her incompetent.

— Hon. Benj. J. Casteel, Judge. A venire of forty-seven jurors should have been qualified by the court before requiring defendant to announce his challenges.

Mandamus. ■ Mandamus is the proper remedy in a case of this kind. State ex rel. v. Myers, 80 Mo. 601; Bean v. Barton Co., 33 Mo. App. 635; State ex rel. v. Baker, 33 Mo. App. 98. It was proper for one of the judges of the Court of Appeals, in vacation, to issue the alternative writ. State ex rel. v. Weeks, 93 Mo. 199.

— Hon. J. D. Perkins, Judge. (1) Section 5854, Eevised Statutes 1899, if intended to apply to demands arising ex delicto, is in conflict with article 2, section 10, Constitution of Missouri.

Louis City Circuit Court, — Hon. Leroy B. Valliant, Judge. The money value of the injunctive relief asked by appellant is not susceptible of definite ascertainment, but as the petition alleges that appellant will “suffer damages ... in excess of ten thousand dollars” if the respondents are permitted to do the acts sought to be enjoined, and as the evidence tends strongly to sustain such allegation, this court has jurisdiction to determine this case upon appeal.

<p>1. Insurance: premiums: waiver: proof. Proof of waiver of the terms of a contract of insurance can he admitted without a special plea of waiver. It is admissible under the general allegation of performance. The doctrine of waiver applies to all companies and persons alike, but as to insurance contracts the waiver may be proved without being pleaded.</p> <p>2. -: -: -: -: fourteenth amendment: discrimination. The practice of admitting proof of waiver of the terms of an insurance policy without special plea of waiver, does not deny the insurance companies the equal protection of the laws, and, hence, is not in violation of the fourteenth amendment to the Constitution of the United States, for that doctrine of waiver is applied to all persons and companies alike; and, besides, the 'objection that such proof is permitted to be shown without waiver being pleaded, is a question of practice and not of -right.</p> <p>3. -: WAIVER: PLEADING: FEDERAL CONSTITUTION: DISCRIMINATION : general .applicability. Laws of States are not obnoxious to the fourteenth amendment to the Federal Constitution if. all persons subject to them are treated alike under similar ciriim'stances and conditions, in respect to both the privileges conferred and liabilities imposed. The practice of permitting proof of waiver without specially pleading waiver obtains as to all insurance companies, and, hence, is not obnoxious to that constitutional amendment.</p> <p>4. -: -: INSURANCE CONTRACTS: CLASSIFICATION. Owing to the nature of insurance companies and the character of their contracts, they naturally and properly belong to a class unto themselves and must be governed by laws that would be wholly inappropriate , to any other company or to .any other contracts.</p> <p>5. -: -: evidence: matter for jury. Where there is some substantial evidence of such a course of business on the part of the insurance company as amounts to a waiver of a literal performance of the terms of a policy as to the payment of premiums, the appellate court will not interfere with the finding of the jury to whom the question of waiver was submitted under proper instructions.</p> <p>6. -: -: MATTER in evidence. A policy stipulated that a failure to pay premiums when due should work a forfeiture, and that if payment were made after the required time it could only be reinstated with the approval of the medical director and president. Some premiums were paid before they were due, some at maturity, and some at different times after they were due. When the last one fell due on November 22nd and was unpaid, the company wrote to the assured on December 8th urging her to pay it. Before this letter was received, the company received the payment on December 12th. It did not refuse to take it, neither did it mark the policy lapsed or forfeited. It at no time objected to keeping the money and did not offer to return it for more than a month after 'she was dead. Held, that these facts establish a waiver of the conditions.</p> <p>7. -: -: -: CONDITIONAL REVIVAL: snare. The fact that on receipt of the money the company had mailed the assured a receipt containing a conditional revival, to-wit, that the policy was not to be understood as revived by the payment of the premium unless the assured was in good health and free from all diseases or injuries and that the acceptance of that receipt was a warranty that such was the case, and that if it was not true the policy should be null and void, was itself a snare, the company being under legal obligation to take one horn or the other of the dilemma, either to have returned the money and declared void the policy, or it must now be held to have waived any objection to the deferred payment.</p> <p>8. -: pleading: waiver OE objection. If no objection is made in the lower court that the petition does not allege performance of the term of an insurance policy and that, hence, there could be no waiver, or proof of such waiver, no such objection can be urged on appeal.</p> <p>9. -: necessary parties: decease of beneficiaries. An insurance policy named assured’s mother and son as beneficiaries, and provided that in case of their death it 'should be paid to her legal representatives. Held, that the beneficial interests were several, and the administrator of the mother, who died before the assured, was not a necessary party to the suit, but that the mother’s interest on her death passed to the estate of the -assured, and the suit was properly brought by the executor of the assured and her son.</p> <p>10. ————: -: estoppel. Where an insurance company has advised that at the death of a beneficiary her interest reverted to the assured’s estate, and required the claim to be made by her executor, it will not, after time for proof of loss has expired, be permitted to urge that the claim is not payable to such executor.</p>

— Hon. B. J. Casteel, J udge. (.1) Tbe indictment is bad for tbe reason that section 1838, Eevised Statutes 1899, upon which it is based, is unconstitutional in that it deprives the accused of the right of trial by jury, as guaranteed by section 28, article 2, Constitution of Missouri.

— Hon. A. M. Woodson, Judge. (1) The manner of constructing the sidewalk was not an issue in the case, but whether the city was negligent in permitting the snow and ice to accumulate and remain on the sidewalk in such quantity and shape as to amount to an obstruction or to render it unsafe and dangerous. Instructions should be confined to the issues and to the law and evidence tending to prove the question at issue. Morse v. Maddox, 19 Mo. 451.

— -Ron. D. II. Eby, Judge* (1) James E. King being indebted to his brother, Joseph L. King, at the time of the death of 'the latter in a sum largely in excess of what would, have been his share of the estate of his deceased brother, had no interest in the real estate and other property and effects owned by the deceased, and plaintiff did not acquire any interest therein by his alleged levy, sale and purchase. Ford v. Talmage, 36-Mo. App. 72; Eord, Admr. v. O’Donnell, 40 Mo.

<p>The companion case of Ayres v. King, ante, page 244, is followed and the judgment in this case affirmed on the authority of that.</p>

— Hon. E. M. Hughes, Judge. The contention that partition can not be, maintained pending the administration of the estate and before the final settlement, is without merit.

— Hon. A. D. Bwrnes, Judge. (1) The judgment from which the plaintiff appeals is based upon the action of the lower court on the separate demurrers of Katharina Marr, Henry Kolb and Conrad Kochan. It did not so much as purport to affect the seven other defendants, who had filed no demurrers in the case.

— Hon. F. P. Gates, Judge. The court erred in sustaining the demurrer to the evidence and in overruling the motion to set aside the nonsuit. The defendant was guilty of negligence.

Circuit Court. — Hon. Jno. P. Butter, Judge. (1) Every fact pleaded in plaintiffs’ petition was admitted by the demurrer to be true, hence, the only question is,, did the petition state sufficient facts, which,, if true, would entitle plaintiffs to the relief prayed. Dodson v. Lomax, 113 Mo. 555; McKinzie v. Matthews, 59 Mo. 99; Butler v. Lawson, 72 Mo. 227.

— Hon. E. P. Gates, Judge. (1) The attempt to transfer all the property of the Eranldin Investment Company, of any value, to James L. and B. Lombard, wbo owned all of tbe stock of tbe company and controlled it absolutely, was prima facie fraudulent, and tbe burden of proving its fairness was on tbe grantees. State ex rel. v. Mfg. Co., 149 Mo. 181; Sbufeldt v. Smith, 131 Mo. 280.

— Hon. Ben Smith, Special Judge. (1) Tbe county is primarily liable for support of an insane person only where he has no estate, or there is no person bound to support him and of sufficient ability to do so. R. S. 1899, secs. 3696 and 3697. (2) A waiver of any legal right at the request of another would be sufficient to support promise by defendant. Given v. Corse, 20 Mo. App. 132; Vogel v. Meyer, 23 Mo. App. 127.

— Hon. Jno. P. Butter, Judge. (1) The homestead exemption to the extent of the statutory limit is to all intents and purposes forbidden ground, upon which the attaching or execution creditor can not enter as against the homesteader or his vendee. Grimes v. PorL man, 99 Mo. 229; Macke v. Byrd, 131 Mo. 682;. Stewart v. Stewart, 65 Mo. App. 663.

— Hon. A. D. Bwrnes, Judge. (1) The court correctly found from the evidence that the transfer was made with the intention on the part of Schuster to hinder, delay and defraud his creditors. The court refused to find that the grantees participated in that intention and for that reason dismissed appellant’s bill. In this the chancellor erTed.

Louis City Circuit Court. — Ron. Leroy B.Vallianl, Judge. (1) Defendant Baker is liable. 1. (a) Eor tbe negligence of bis servant in dropping tbe bricks from tbe wheelbarrow upon tbe plaintiff. Sbepard v. Creamer, 160 Mass. 196; Rose v. St. Louis, 152 Mo. 602; Dohn v. Dawson, 90 Hun 271; 157 N. T. 686. (b) Eor negligence in not placing sufficient planking on the joists where his servants were at work to prevent bricks from falling on the men below them. 2.

Louis City Circuit Court. — Hon. D. D. Fishert Judge. (1) In an action at law tbe report of tbe referee is considered as equivalent to a special verdict by tbe jury, and in appeals in such cases the appellate court will look entirely to the ultimate facts as found by the referee, and give the judgment of the appellate court accordingly. O’Reilly v. Oleary, 8 Mo, App. 188; Gamble v. Gibson, 83 Mo. 290; Singer Mfg. Co. v. Givens, 35 Mo. App 602.

— Hon. Argus Oox, Judge. (1) The petition fails to state a cause of action. Knoop v. Kelsey, 121 Mo. 646; Jopling v. Walton, 138 Mo. 489; Hardwick v. Hamilton, 121 Mo. 467. (2) Gross inadequacy of price is not sufficient to justify the setting aside of a sale. Knoop v. Kelsey, 121 Mo. 648; Walters v. Herman, 99 Mo. 530; Briant v. Jackson, 99 Mo. 598; Keith v. Browning, 139 Mo. 196; Hardwick v. Hamilton, 121 Mo. 475; Harlin v. Nation, 126 Mo. 102; Routt v. Milner, 57 Mo.

— Hon. James Gibson,. Judge. (1) Section 6109, Revised Statutes 1889 (R. S. 1899,, sec. 4201), requires that every original contractor, within six: months, . . . and every other person . . . within four months, shall file with the clerk of the circuit court a just and true account of the demand due him or them. . . . . . and a true description of the property . . . . which shall in all cases be verified by the oath of himself or some credible person for him.

Louis City Circuit Court. — Hon. H. D. Wood> Judge. (1) The Act or March 20, 1897, offends the organic law, in this, that it is a “local law” “indirectly” enacted “by the partial repeal of a general law.” Sec. 53, art. 4, Constitution; State v. Buchardt, 144 Mo. 84; Cooley, Const. Lim. (6 Ed.), 482; State v. Hill, 147 Mo. 68; Holden v. James, 11 Mass. 396; Lewis v. Webb, 3 Me.'326; Wally’s Heirs v. Kennedy, 2 Yerg.

— Hon. E. J. Broaddus, Judge. (1) Appellants contend that in order to increase the rate of taxation for school purposes above forty cents on the $100 valuation, the board must first determine the rate necessary and submit the proposition to the voters of the district, and said proposed rate must be adopted by a majority of the voters voting upon said proposition. Both the board and the voters have failed to comply with these requirements and hence the increase is void.

— Hon. J. L. Fort, Judge. (1) The information is not sufficient in that it fails to state that “Drysdale-Ulen Hardware Co.” is a natural or artificial person. State v. Patterson, 159 Mo. 98; Revis v. Lamme, 2 Mo. 207. (2) Defendant has been deprived of his liberty “without probable cause,” supported by oath or affirmation reduced to writing. Constitution 'of Missouri, art. 2, sec. 11; Constitution of United States, fourth amendment.

Louis City Circuit Court. — Hon. FranJdin Ferris, Judge. The ease of State v. Shelley, 166 Mo. 616, is decisive of this case. The judgment should be reversed and the cause remanded. The case of State v. Shelley, 166 Mo. 616, was reversed, the court holding the instruction given was erroneous. Since this case contains the same instruction, it should also be reversed.

Louis City Circuit Court. — Mon. M. D. Wood, Judge. (1) The first cause set out in the motion for a new trial is: “Because the verdict is against the evidence and the weight of the evidence.” ' The record discloses ample evidence upon which to base a verdict of guilty by the jury. As long as there is some evidence showing guilt, the verdict will not be disturbed. (2) “Because the verdict is against the law,” constitutes the second cause for a new trial.

— Hon. J. L. Fort, Judge. (1) Title to real property may be acquired by conveyances, limitation with adverse possession of part with color of title to the whole, and prescription, and the period of limitation and prescription in this State is ten years, both the same.

— Hon. L. B. Woodside, Judge. (1) It is difficult to determine by the record in'this case just where the appellant found fault with the rulings of the trial court. The record seems to be clear of error. (2) The witness, Pat Moore, stated that he heard one of them say to Daugherty, “put him out” (meaning Martin), and stated that he did not know which one it was. It will be noticed defendant’s objection comes too late even though it were a meritorious one.

— Hon. J. W. Alexander, Judge. The issues on the plea in bar should have been submitted to a jury. There is no record entry of an express waiver of that right, and defendant will not be held to have waived his right by implication. State v. Huffman, 136 Mo. 58; State v. Hatcher, 136 Mo. 641. In all the eases in our State which appear to hold the contrary, the question passed on by the court is raised by demurrer, and goes to the sufficiency of the plea.

— Hon. Jno. W. WoffordJudge. The only error in indictment No. 2123 is what is known as a clerical error, and is cured, by statute. State v. Craig-head, 32 Mo. 561; Comm. v. Hunt, 21 Mass. 252; State v. MeCuniff, 70 Iowa 217; Harn v. State, 39 Md. 552; Comm, v. Eandall, 70 Mass. 36. An erroneous allegation as to the name of the man killed in indictment for manslaughter is cured by statute. State v. Windal, 95 Iowa 470.

— Hon. H. G. Riley, Judge. The testimony in this ease is not enough to show that the plaintiffs had the legal title, and, hence, they can not recover, as the plaintiff in such cases must recover upon the strength of his own title. ■ The testimony shows enough for the court, who tried the case, to infer the common source of title; and if there is a common source of title, all of appellants’ objections are fully met, for one who derives title from the same deed can not…

Charles Circuit- Court. — Hon. E. M. Hughes,. Judge! (1) The testimony of Ben Walker (witness for the-State) that he saw a man coming along the lane from the-house of Woods, the prosecuting witness, to the public road, just previous to the difficulty, was improperly admitted over-defendant’s objections.' There was nothing in the testimony tending to show that it was the defendant.

<p>Certiorari: writ quashed before return. A writ of certiorari issued by .the Supreme Court may, on motion made in such court, be quashed, although no return to the writ has been made (Following State ex rel. Walbridge v. Yalliant, 123 Mo. 524).</p>

Louis City Circuit Court. — Son. Franldin Ferris, Judge. The court gave among other instructions the following: “You are further instructed that one whose name is duly registered on the register and poll-boohs of a voting precinct is presumed, until the contrary is shown, to be a duly qualified elector and entitled to vote.” The case of State v. Shelly, 166 Mo. 619, is decisive of this case. The judgment should be reversed and the cause remanded.

— Son. Frank B. Searing, Judge. * (1) The third count of the indictment is good. The rule is that it is permissible to allege in the indictment that the name of the person or a fact necessary to be stated is unknown, when that name or fact is unknown and could not by the exercise of ordinary diligence have become known by the grand jury. State v. Stowe, 132 Mo. 199; State v. Thompson, 137 Mo. 623; Wharton’s Crim.

— Hon. Frank B. Bearing, Judge. (1) The evidence shows deceased to have been shot down in cold blood. The most surprising feature of the case is that the jury did not convict him of murder in the first degree. (2) In the case of State v. Bowman, 161 Mo. 88, the court held that the weight of the evidence is for the jury, and where the evidence, if believed by the jury is sufficient to sustain the verdict, the Supreme Court will not interfere.

Louis City Circuit Court. — No». N. D. Wood, Judge. (1) The newly-discovered evidence was not cumulative, no evidence of threats having been produced at the trial, coming to defendant after the trial, ¿nd no failure of diligence of defendant appearing. Even if it be doubtful how such evidence would affect the result in a new trial, the motion should be granted. State v. Bailey, 94 Mo. 311; State v. Murray, 91 Mo. 104; State v. Downs, 91 Mo. 19; Wharton Crim. Evid. sec. 757.

<p>1. Criminal Daw: appeal: bill op exceptions: authentication. Where the transcript on an appeal is sent in two sections, one supposably intended for the bill of exceptions, without any preliminary heading or authentication, and the other containing an undated statement that a bill of exceptions was filed in the cause, but not identifying or authenticating the other section as such bill, such papers can not be considered.</p> <p>2. -: -: -: DENIAL OP MOTION EOB NEW TBIAL: NO exceptions. Where the bill of exceptions does not show that an exception was saved to the ruling of the court denying a motion for new trial, no examination can be had of trial error, though the record proper contains a recital that defendant excepted to the ruling.</p>

— Hon. E. J. Broaddus, Judge. (1) The debts sued for in this case were fraudulently contracted by reason of tbe misrepresentations and concealments of his financial condition by the defendant. Bank v. Phillips, 22 Mo. 85; Blackwell v. Fry, 49 Mo. App. 638.

Transferred from St. Louis Court of Appeals. The court erred in permitting the first witness for the State, Alfred Frey, to state, over the objection of the defendants, that a boy named Binder told him that he, the said Binder, and other boys had stolen the property in question and had sold it to the defendants, and that defendants had requested them to steal it and other property and bring it to them, and had furnished means for stealing the property, etc.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. In addition to tbe prima facie proof that plaintiff signed the deed of conveyance to Zeller, which is afforded by the certificate of her acknowledgment of that deed, the weight of the evidence goes to establish the fact- that she did actually sign it. There is nothing to the contrary save her own testimony that she did not sign, corroborated to some extent by evidence to prove that she could not write.

— Hon. E. P. Gates, Judge. The question before this court is a question of law, pure and simple. It is not a question, therefore, where this court will in any way defer to the finding of the court below. It is as if this court were passing on the effect of plaintiff’s testimony considered as a written instrument, and considered as such it is certainly not sufficient.

Circuit Court. — Hon. E. 'P. Gates, Judge. (1) If, upon the testimony, the plaintiff was not entitled to recover, no error at the trial could justify a new trial. Homuth y. Railroad, 129 Mo. 642;. Vogg v. Railroad, 138 Mo. 181; Bartley v. Railroad, 148 Mo. 142. (2) Plaintiff wholly failed to make a case. He was required to show •by proof that he was in a position of danger long enough for the defendant’s gripman to have known thereof and avoided the injury.

— No». Jno. P. Butler, Judge. (1) A void judgment is in legal effect no judgment. By it no rights are divested. Erom it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars. Ereeman on Judgments (3 Ed.), p. 112, par. 117, and notes.

— Hon. W. K. James, Judge. (1) The owner of property, mentally capable and of his own will and act as an incident to ownership, may exercise absolute dominion in the disposition of such property. He may give it away to charity or to strangers, to the exclusion of relatives or he may prefer one relative to another of equal grade and no one, except creditors, can question the transaction.

— Hon. James Gibson, Judge. ■ (1) The school law vests' in the county court the care and management of the school funds. Said court has the sole control of the same, and has the sole control and the care and custody of the bonds and mortgages given to secure loans. The county court is the trustee of said funds and the bonds representing them, and of the mortgages- securing them. It is a statutory trust.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) A railroad company which locates its track upon land without the consent of the owner thereof, acquires, by its adverse use thereof for more than ten years, only an easement in the property. Sugar Refining Co. v. Elevator Co., 82 Mo. 125; Const. 1875, art. 2, sec. 21; Hays v. Railroad, 62 Tex. 397.

<p>Appeal from St Louis City Circuit Court. — Hon. H. D. yVoodj Judge.</p>

- — Hon. Jno. A. Hockaday* Judge. (1) Elias Barnes, being a deaf mute, waá prima facie incompetent to make a contract, and tbe burden of showing his competency in this regard' was on the defendants. Collins ,v. Trotter, 81 Mo. 282; In re Perrine, 5 Atl. 579; 1 Greenleaf on Evidence, sec. 366. (2) The disposition of this case inyolves an examination of the evidence.

Louis City Circuit Court. — Mon. Jas. JE.. Withrow, Judge. (1) A special taxbill for tbe opening of a street is a lien, on the property charged. Art 6, sec. 5, of the Scheme and. Charter of the City of St. Louis, E. S. 1899. An action on a special taxbill is barred by the five years’ limitation. St. Louis v. Newman, 45 Mo. 138; Turner v. Burns, 42 Mo. App. 94.

— Hon. Samuel Davis, Judge. (1) It was error to strike out the answer setting up the parol contract between defendant and George W. Bull and John Bull. Fisher v. Stevens, 143 Mo. 181; Swope v. Weller, 119 Mo. 556; Bank v. Eeed, 131 Mo. 553; Carney v. Carney, 95 Mo. 353.

— Hon. John W. Henry, Judge. (1) The so-called “sale” or “surrender” of stock by defendant John McCoy to the company was ultra vires and void, and he remains liable to plaintiff as a creditor of the company; regardless of the fact that the transaction between McCoy and the company took place prior to the time when the claim on which plaintiff sues accrued. 1 Morawetz on Private Corp., sec. 109; vol. 2, sec. 824; 2 Thompson’s Com. on Law of Corporations, sec. 1151; Ins.

<p>1. Mew Liability: remedy: forum. Wfien an act creates a new liability or gives a right of action, and at the same time prescribes the means by which, and the court in which, the right is to be enforced, resort can not be had to any other means or court than that prescribed.</p> <p>2. Railroads: overcharges: interstate commerce act: forum. A shipper can not sue in a state court to recover damages from a railroad for charging-him rates for cars in excess of those permitted by the Interstate Commerce Act. The act itself provides another forum for the recovery of such overcharges.</p> <p>3. Appellate Jurisdiction: federar question: interstate commerce ACT: overcharges. A suit for damages for overcharges for cars used in shipping cattle, based on an averment that the rates prescribed by the Interstate Commerce Act were exceeded by a railroad when it charged for three narrow-gauged cars at the usual rate charged for two broad-gauged cars, does not so draw in question the validity of such act as to give the Supreme Court jurisdiction of the appeal.</p>

<p>Appeals: return term. Where the appeal has been granted and the bill of exceptions filed more than sixty days before the next term of the Supreme Court, it is returnable to such court, and in such case if the appellant fails, without excuse, to file in the Supreme Court, fifteen days before the first day of such return term, a perfect transcript or certified copy of the judgment and order of appeal, the judgment, on the motion of the respondent, will be affirmed.</p>

— lion. Richard Field, Judge. (1) The appellate court will look into all the facts in evidence, showing the situation of the testator, his family, and the condition of his property, and all the circumstances •surrounding him at the time of the execution of the will, in order to ascertain for whom he intended the devise contained in the fourth clause of said will.

— Hon. J. H. Slover, Judge. (1) The great weight of the testimony is to the effect that Bales simply said, “I don’t expect you to pay off that deed of trust;” “I will not bring it against the property unless it sells for enough to pay both;” “those notes should not be in the way, and that she need have no regard for them; that they would not be claimed against her unless the property sold for enough to pay the amount of money invested for her and the notes also.