Volume 172 — Missouri Reports

'Appeal from Linn Circuit Court . — Hon. John P. Butler, Judge. (1) The hoard can speak only by its record. A record of its proceedings must, therefore, be kept. • A secretary is one who writes orders, letters, dispatches or records. He is a clerk and the secretary of a county board is its clerk. He is that officer whose duty it is to record its proceedings. He it is who performs the manual act of adjusting the tax books in accordance with the orders of the board.

<p>1. After-Acquired Interest in Land: snERurff’s deed. A sheriff’s deed does not pass an after-acquired interest of the defendant in the execution. Only such interest in the property as such defendant had therein at the time of the sale passes by the sale and sheriff’s deed.</p> <p>2. -: -: tax suit. If none of the defendants at the time a judgment was rendered had any title in the land, the purchaser at the execution sale and the grantee in his deed acquired none, even though one of the defendants had previously been made the grantee in a warranty deed from a grantor who had prior to the deed to her conveyed to another, and which other after the tax sale conveyed it back to her original grantor.</p>

— Ron. R. C. Riley, Judge. , (1) As neither dower nor homestead was ever assigned or set off to the widow, she was entitled to remain in and.enjoy the mansion house under section 2954, Revised Statutes 1899, until dower was assigned. (2) The widow could sell and assign her quarantine right under the statute, as she did do to co-defendants, the Smith brothers. Jones v. Manly, 58 Mo. 559; Smith v. Stephens, 164 Mo. 415.

— No». E. ilA Hughes, Judge. • The notes are not payable certain. The payees, have not presented the unpaid notes for allowance against the estate of the maker. They instituted this partition suit, and the trial court on hearing finds the present value of the notes, and forces payment of the same before maturity. This is in direct violation of the contract.

— Hon. Jas. T. Ne-ville, Judge. (1) From the facts and circumstances in evidence in this case there is no doubt that the defendant was induced to enter into the possession of the land and make the improvements thereon, relying upon the promise ■of his father to deed it to him, and having changed his condition, incurred liabilities, expended money and labor on account of that understanding and performed three years previous labor in building a house for his father on another…

<p>1. Time for Pleading: striking out untimely answer: rule or COURT: no exception. Where the rule of court requires “all pleadings to be filed within the time prescribed by law, unless leave of court be obtained to file the same out of time, which leave must be obtained before the time for pleading has expired,” exceptions should he saved to the order of the court refusing to grant defendant in ejectment leave to file his answer after the time had gone by within which it was due by the statute, and even if so saved the appellate court will not interfere with the action of the trial court unless there is something in the case to indicate that it abused its. discretion in the matter. Such a rule is reasonable.</p> <p>2. Practice: filing answer: motion for new trial. Where, previous to the trial, an application for leave to file an answer is denied, and no exception is then taken but after the trial a motion for a new trial is filed, one of the grounds assigned being the refusal of leave to file the answer, an exception to the overruling of that motion is not an exception to the refusal of leave to file the answer, because a motion for a new trial properly covers only that which occurred during the trial.</p> <p>3. -: -: striking answer from files. After leave to file the answer had been refused by the court, the action of the defendants and of the clerk in filing it was in disobedience to the court’s order, and the least the court could do was to strike it from the files.</p> <p>4. -: RULE OF court. When a rule of practice is adopted by the court and becomes known to the bar, it is the duty of the court to enforce it.</p>

— Hon. James Gibson, Judge. Tké court rightfully sustained the demurrer to plaintiff’s evidence, and committed' error in setting aside the nonsuit and granting plaintiff a new trial for the following reasons: (1) Before plaintiff can recover in this case, he must not only show that he was injured but that the’ injury was caused by the negligence of the defendant, charged in plaintiff’s petition.

— Hon. E: R. McKee, Judge. (1) In the petition of the plaintiff administrators in the subrogation proceeding instituted by them, it appears that plaintiff was not a party thereto, and it •stands admitted, by defendants that she was not a party thereto nor served with process; therefore the court did not acquire jurisdiction, of the pei'son of plaintiff, and did not have any power or authority to charge her lands with any lien in favor of the administrators in the subrogation…

Appeal' from Monroe Circuit Court. — Ho». David H. Eby, Judge. (1) The defendant’s objections to the admission of the deed of dedication of the town of Holliday and' the plat of the town should have been sustained. Neither of these 'papers sufficiently identified the- location of the town or of the lot in question and no parol testimony was introduced to aid (if it could have been aided) the deed and the plat. 4 Am. and Eng.

<p>1. Pleading: general denial: striking out. Any fact the effect of which is to show that an essential statement in the petition is untrue, may be proven under a general denial, and therefore should not be specially pleaded, and if pleaded should be stricken out as redundant.</p> <p>2. -: -: -: exception. Alleged error in striking out a part of the answer is not reviewable on appeal unless exception was saved to the ruling.</p> <p>3. Negligence: shipping stock: accompanied by owner: contract. The contract for shipping stock and furniture stipulated that the shipper was to ássume all risk and expense of feeding, watering, bedding and otherwise caring for the stock, and plaintiff was to' accompany the car on the train to perform these duties and to remain in the caboose while the train was in motion, and that whenever he should leave the caboose or pass over or along the cars or track he should do so at his own risk of personal injury from any cause whatever. After the car reached a town on the main line it was placed on a side track, and when a freight train arrived plaintiff asked the station agent if that was the train' that was to take his car, and being informed that it was, he got into the car, and while there another car loaded with ties was bumped against it with such violence as to knock a cow through a partition against a horse, knocking both down. Plaintiff looked out, saw the train did not have hold of the tie ear, then helped the horse and cow on to their feet, then came another bump harder than before, the horse, cow and plaintiff all went down together, the cow falling on plaintiff’s leg, breaking it. Between the first and second bump, the conductor came to the car and inquired how everything was, but did not warn plaintiff to get out of the ear. Held, first, that, in the light of the contract, plaintiff at the time of his injury was at his place of duty; second, even if he was in a place of danger or where under the contract he had no right to be, defendant can not be excused in view of the conduct of defendant’s conductor, under the circumstances.</p> <p>4. -: -: —:-: -: custom. Custom can not alter a contract. Hence, where a shipping contract was that the person accompanying the stock was not permitted to ride in the car with the stock, evidence of a custom showing that it was the rule for such persons to ride in the ear, is immaterial in a case where plaintiff was injured in the car at a time when it was not under way.</p> <p>5. -: damages: excessive. Both bones of plaintiff’s lower leg were broken, and the flesh lacerated by one of the bones protruding. At the trial, fifteen months after the accident, the larger bone had not united, and he could walk very little without a crutch. He was a farmer, thirty-five years old, and no longer able to pursue his vocation. The surgeon was of the opinion that the bone would . finally unite, but could not speak with confidence. Held, that an award of $9,000 damages is not so excessive as to authorize a setting aside of the verdict.</p>

<p>Appeal from Barton Circuit Court. — Hon. H. G. Timmonds, Judge.</p> <p>(1) Defendant’s demurrer to the evidence should have been sustained. Worlds v. Railroad (Ga.), 25 S. W. 464; Ferguson v. Cotton Mills (Tenn.), 61 S. W. 53; Cagney v. Railroad, 69 Mo. 424; Dunlap v.Mfg. Co. (Mass.), 18 N. E. 599; Railroad, v. Rogers, 57 Fed. 378; Railroad v. Drake, 53 Kan. 1; Railroad v. Moore; 49 Kan. 617; Walsh v. Railroad (Minn.), 8 N. W. 145;. Fremont Brewing Co. v.* Hansen (Neb.), 91 N. W. 279; Steinhanser v. Spranl, 127 Mo. 541; Watson v. Coal Co., 52 Mo. App. 371; Keegan v. Kavanaugh, 62 Mo. 232; Railroad v. Mitchell, 18 S. E. 290; Ames v. Railroad (Ind.), 35 N. E. 117; Stone Co. v. Wolf (Ind.), 38 N. E. 52; Kelley v. Railroad, 5 Am. and Eng. R. R. Cas.'469; Rush v. Railroad, 136 Kan. 137; Larson v. Railroad, 44 Am. and Eng. R. R. Cas. 529; Smith v. Railroad, 41 Am. and Eng. R. R. Cas. 289; Swanson v. City (Ind.), 33 N. E. 1003; Weeks v. Freemont Mill Co. (Wash.), '29 Pac. 215; Hart v. Nanmbnrg (N. Y.), 25 N. E. 385; Railroád v. Ross (Ky.), 56 S. W. 14; Railroad v. Spellman (Tex.), 34 S. W. 298; Railroad v. Lempe, 56 Tex. 19. . (2) The court committed no error in the exclusion of evidence. Benjamin v. Railroad, 133 Mo. 274; Koons v. Railroad, 65 Mo. 592; Hurst v. Railroad, 163 Mo. 309; Lee v. Knapp, 155 Mo. 610; Gutridge v. Railroad, 94 Mo. 458; Goble v. Kansas City, 148 Mo. 477; Dammann v. St. Louis, 152 Mo. 200; Brown v. Plank Road Co., 89 Mo. 155; King v. Railroad, 98 Mo. 240; Eubank v. City, 88 Mo. 655; Gavisk v. Railroad, 49 Mo. 276; Madden v. Railroad, 50 Mo. App. 666; Hoffman v. Railroad, 51 Mo. App. 273; Railroad v. Clouch, 2 Kan. App. 728; Graham v. Railroad, 139 Pa. St. 161; Bergen v. Traction Co., 41 Atl. 837; Atchison v. Henry, 57 Kan. 154; Railroad v. Modesett, 124 Ind. 212; McCloskey v. Mc-Closkey, 69 Mo. 199.</p> <p>(1) The court committed error in excluding and striking out competent evidence, tending' to show negligence on the part of defendant. The testimony stricken out was that of an old and experienced railroad man, who was familiar'with the different ways of loading steel rails, and by his knowledge and experience knew how many men were required to load the steel rails in the way they were being loaded when plaintiff was injured, with reasonable safety to the men engaged therein. An expert is said to he one who, by practice or observation, has become experienced in any science, art or trade. It may be laid down as a general rule that the opinion of a witness possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without assistance. Goins v. Eailroad, 47 Mo. App. 181; Davidson v. Eailroad, 34 Minn. 53, 24 N. W. 324; Cook v. Eailroad, 57 Mo. App. 479; Cole v. Clarke, ¿ Wis. 323; Benjamin v. Eailroad, 50 Mo, App. 609 ;Eyerman v. Sheehan, 52 Mo. 221; Johnson v. Eailroad, 96 Mo. 348; Fitts v. Eailroad, 59 Wis. 323; s. c., 18 N. W. 186; Armstrong v. Eailroad, 45 Minn. 85; s. c., 47 N. W. 459; Boettger v. Iron Co., 124 Mo. 104; Eailroad v. .Groethe, 31 S. W. 197; Betts v. Eailroad, 60 N. W. 623; s. c., 92 Iowa 343. (2) Defendant’s demurrer to the evidence should have been overruled. And the court’s order setting aside the nonsuit and granting new trial was proper. Thorpe v. Eailroad, 89 Mo. 663; McMullen v. Eailroad, 60 Mo. App. 231; Fogus v. Eailroad, 50 Mo. App. 250; Doyle v. Trust Co., 140 Mo. 15; Bender v. Eailroad, 137 Mo. 240; Young v. Webb City, 150 Mo. 341; Eine v. Eailroad, 100 Mo. 228; Baum v. Fryrear, 85 Mo. 151; Keown v. Eailroad, 141 Mo. 87; Herdler v. Buck Stove Co., 136 Mo. 3.</p>

Louis City Circuit Court. — Eon. Jacob Klein, Judge. (1) The court below erred in admitting in evidence the deed of April 6, 1891, from Edwin M. Greenlaw to his wife, Mary Annie Greenlaw.

— How. Argus Cox, Judge. (1) Showing available funds in treasury makes a prima facie case, and relator is entitled to payment of judgment. State ex rel. v. Mayor, 58 Mo. App. 124 j State ex rel. v. Treasurer, 43 Mo. 228. (2) Funds in treasury unappropriated to any legal purpose are available to pay this judgment. State ex rel. v. Mayor, supra; State ex rel. v. Craig, 69 Mo. 565; State ex rel. v. Treasurer, supra.

<p>1. Insurance: negligence oe employee: avoidance of policy. Mere negligence, even of the insured himself, does not avoid an insurance policy, even though that negligence results in the loss of the property. A contract of insurance is excepted out of the general rule which bars one from recovering compensation for an injury which is the result of his own negligence or want of eare. Before the insured can be barred from recovery under a policy of insurance, the loss must be the result of his own willful act.</p> <p>2. -: willful negligence of employee. It is not conceded in this ease that by an insurance policy which exempted the company from liability for a loss due to the “insured’s willful act,” the willful act of an employee is chargeable to the insured, even though such employee’s act was willfully negligent.</p> <p>•3. _: -; -: instruction on willful act. If there is no 'foundation in the evidence for a defense based on the theory that the injury resulted from a willful act of the insured, no instruction . on the point should be given. A negligent act of a servant of which the insured knew nothing can not be imputed to the insured as “a willful act of negligence.”</p> <p>4. -: preservation op property. A clause in a policy indemnifying a property-owner against loss resulting from the accidental discharge of an automatic fire extinguisher, which declares it does not cover loss or damage “caused by the neglect of the assured to use all reasonable means to save and preserve the property insured' ■ hereunder” refers to means to be used after the accidental discharge of the machine to prevent greater loss than necessary. It does not refer to negligence which resulted in the discharge.</p> <p>5. -: : INSTRUCTION: error in favor of appellant. An instruction which interpreted the clause requiring the insured “to use, all reasonable means to save and preserve the property” to mean that it was his duty “to exercise ordinary care and diligence in discovering the negligence” of an employee which resulted in the accident, is error, but as such instruction adopted appellant’s construction of the clause and the jury nevertheless found against him, the error is harmless.</p> <p>6. -: : defect in other extraneous apparatus. Likewise a clause in such policy requiring the assured to “immediately notify the company of any known defect which shall render the Said sprinkler system more than usually hazardous and cause such defect to be immediately repaired” has reference only to a defect in the machine itself, and none to any other contrivance in the assured’s establishment, such, for instance, as the hooks attached to a window shutter, which being placed on a pipe of the machine, subsequently, through the action of the wind on the shutter, caused the pipe connections to break, and the explosion to follow.</p> <p>7. -: : FURTHER DAMAGE; DOUBTFUL CLAUSE CONSTRUED against company. Where there is any doubt as to the meaning of a clause in an insurance policy requiring the insured “in the event of'loss, to immediately protect the property from further damage,” but not in express terms excepting from the insured’s liability loss which might have been avoided notwithstanding the accident, the rules of construction require the courts to construe the clause favorable to the insured.</p> <p>8. -: extent of liability: question of fact. Where the policy provided that the company’s liability should be such a proportion of $7,500 as $75,000 bears to the actual value of goods on hand at the date of the accident, and there is substantial evidence that the goods at the date of the loss did not exceed $75,000, the verdict of the jury on the question, if submitted to them in proper instructions, is conclusive.</p>

<p>1. Fraudulent Conveyance: deed to wife: presumption. If the facts fully disclose where the consideration which purchased land deeded to the wife came from, there is no room for presuming that it came from the husband.</p> <p>2. -: -; -: husband AS agent. A wife has the right to employ her husband to act as her agent in the purchase of land for her, with or without compensation, and he has the right to so render such service.</p> <p>3. -: WIFE’S EFFORT TO OBTAIN HOME: HUSBAND AS AGENT. Heirs to a tract of a thousand acres of land generously fell in with the plans of a wife, who had been kind and good to them in their infancy, to obtain for herself a home in her old age. She conceived the idea of getting an option in the land and selling a part of it for enough money to pay for the whole, and when she, and her husband and sons, acting for her without compensation, found some purchasers for parts of it, the attorney in fact for the heirs made her a low price for the whole, and made deeds directly to the purchasers for the pieces negotiated by her, and deducted the amounts of their payments from the aggregate price for the whole tract, and entered into a written option for the sale of the balance within three years on payment of the balance of that purchase price which remained unpaid, but, being a citizen of Iowa and not familiar with the laws 'of Missouri concerning married women, he drew up the option contract with her husband as the second party, and her name did not appear therein. Afterwards she made the payments as agreed to in this option, and the attorney in fact made her a deed, and the husband’s creditors are seeking to have that deed set aside as in fraud of their rights. He was at the time insolvent, and none of his money or estate went into the property, and none of his indebtedness was ever incurred upon the faith of his ownership of the land. Held, first, that the affection for her by the heirs was the valuable consideration for the title to the property; second, the fact that the husband rendered the wife, free of compensation, services in securing purchasers for parts of the land at an advance over the option price, can not render the deed to her fraudulent as to his creditors; third, the deed can not be set aside as being in fraud of their rights.</p>

Phelps Circuit Court.— Hon. L. B. Wood-side, Judge. (1) The original petition being an action in ejectment, demanded the recovery of real estate with damages, rents and profits, and in that case the right to the possession of the real estate would be the sole issue; the amendment, being another kind of action, raises an issue of title solely, independent of any right of possession of the real estate.

— Now. Geo. F. Longan, Judge. (1) Plaintiff admits that lie was not directed to go between the cars to pull the pin by his foreman, and all the evidence shows that he did so voluntarily. His petition alleges that he went between the cars to uncouple them “under the supervision and direction of his said foreman.” He was permitted to recover upon an admitted state of facts, wholly at variance with, and contradictory to, the allegations of the petition. This was error.

<p>1. Dying Declaration: admissibility. Where the surgeons had advised deceased that he could not live, and, regarding his death as inevitable, summoned the scrivener who took down the declaration, and it contained a statement that deceased makes it “realizing and believing that I am mortally wounded and in the immediate presence of death and that I have no hope of recovery,” all of the declaration that is competent is properly admitted in evidence although the wife of deceased may deny that deceased thought he was going to die.</p> <p>2. -: competency. Dying declarations are admissible as to those facts and circumstances constituting the res gestae of the homicide, but as to all other matters occurring anterior to the killing and not immediately connected with it, they are incompetent.</p> <p>3. -: anterior threats: harmless error. In the dying declaration deceased said: “I never made any threats against him in my life.” Held, that all these words, and not merely those “in my life,” should have been stricken out, as necessarily referring to matters anterior to the fatal encounter. And as they tended directly to disprove the evidence of defendant’s witnesses that deceased had made threats of violence towards him which had been communicated, they can not be held to be harmless, but their admission is reversible error.</p> <p>4. -: verbal acts. Statements in the dying declaration that as defendant entered the room where the shooting immediately occurred, “I saw he was mad,” “that was the first I knew he was mad,” “I spoke first and said, ‘What is the matter with you, Jim; what are you mad about ?’ ” are competent evidence as they were declarations of facts which occurred then and there, the colloquy between deceased and defendant being a part of the res gestae.</p> <p>■5. -: weight: instruction. This instruction was correct: “The statement read to you as the dying declaration of deceased should be received by you as such declaration, but because it is a dying declaration you are not necessarily bound to believe it, but you will give it that weight which you think it ought to have when considered in connection with all the other laets and circumstances in evidence.”</p> <p>G. Threats: defendant’s instruction. It is not error to refuse defendant’s instruction on the subject of threats if the court has already instructed the jury on the purpose for which threats may be admitted in evidence.</p> <p>7. Self-Defense': defendant’s instruction. Where the court fully instructed on the subject of self-defense- it is not error to refuse another instruction on the same subject.</p> <p>8. Remarks of Prosecuting Attorney: absence of witness. It is legitimate argument for the prosecuting attorney to call attention to the fact that a son of defendant who was an eyewitness of the homicide, who had testified in defendant’s behalf on a former trial, and who had not been subpoenaed, was absent and did not testify, since the presumption is that if the testimony of that eyewitness would have corroborated defendant’s testimony he would have called</p> <p>' him.</p> <p>9. Feloniously: use in instruction. It is necessary that an instruction defining murder charge that the homicide was feloniously committed, but it is not necessary that the instruction contain the word “feloniously.” It may by the usé of other words give the jury the constituent elements of the crime.</p> <p>10. Threats: weapons in hand. It is immaterial that deceased when he made threats ,against defendant at a time when defendant was not present, had a knife in his.hands.</p> <p>11. Reputation for Peace: former difficulties. It is proper in the cross-examination of a witness who has testified to the general reputation of defendant as a peaceable, laiv-abiding man, to inquire if he had ever heard that defendant four years previously had tried to kill his sons, and that he had on another occasion, when operating a certain saloon, got into a shooting scrape, but such inquiry should not descend to the particulars of stating the number of shots fired by him on such occasions.</p>

— Hon. John A, Hockaday, Judge. (1) The judgment in the partition suit set out in the abstract is not conclusive against appellant, if indeed it was competent evidence. (2) Said judgment should not have been admitted in evidence against defendant’s objection. The court in the trial of the partition suit had no jurisdiction that would authorize the rendition of the judgment vesting the title absolutely in R. L. Bartley and to that extent said judgment is-absolutely void.

— Hon. Henry G. Riley, Judge. (1) It was error to refuse to permit witness Harrison to answer the question: “You and Dr. Wells and Stewart had a woman you kept down on the river ? ”■ It was competent to prove this fact to show the interest of witness, and prove his ill will toward the .defendant, and also to show the character of witness. The same objection applies with equal force to the testimony of Dr. Wells.

<p>Appeal from St. Louis City Circuit Court. — Son. Franklin Ferris, Judge.</p> <p>(1) The evidence taken as a whole did not warrant an instruction on murder in the second degree. State v. Wieners, 66 Mo. 13; State v. Wilson, 98 Mo. 448; State v. Palmer, 88 Mo. 568; Wellar v. People, 30 Mich. 16; People v. Munn, 65 Cal. 211; Henry v. State, 33 Ga. 441; Patterson Case, 3 N. Y. City Hall Recorder 145; 2 Bishop, Crim. Law, sec. 734; Commonwealth v. Webster, 5 Cush. 307. (2) The instruction should have stated that there could be no murder without an intent to kill, either express or implied. State v. Wieners, supra; State v. Wilson, 98 Mo. 440; State v. Gassert, 65 Mo. 352. This case is, we think, distinguishable from State v. Hyland, 144 Mo. 302, the circumstances of which, perhaps, justified a presumption of malice. If not distinguishable, however, we expect that case to be overruled, and it is largely to test the authority of that case that this appeal is taken. (3) On the question of provocation the second instruction should not have confined the jury to the tripping of the defendant. There was other evidence of provocation. John Rapp had testified that stones were thrown and that one of them hit him back of the ear and drew blood. Such acts were themselves provocation and the jury should have considered them. The evidence tended to show that there was a general row there. Greenleaf says: “Voluntary manslaughter is where one kills in the heat of blood, and this usually arises from fighting or from provocation.” 3 Greenleaf, Ev., sec. 121. See separate opinion by Judge Black, in State v. Wilson, 98 Mo. 450.</p> <p>(1) The indictment is sufficient. State v. Hyland, 144 Mo. 302; State-v. Lowe, 93 Mo. 572. (2) The evidence in this case shows the act of the defendant-was intentional and that he thought of it beforehand and that he was possessed of a mind devoid of social duties and fatally bent on mischief. These are the elements which constitute the crime of murder in the second degree, and the court was fully warranted, these facts being fully proved, to submit this issue to the jury. The mode of killing is immaterial. State v. Hyland, 144 Mo. 302; 2 Bishop’s New Criminal Law, sec. 635; Bex v. Moody, C. C. 139; Harrell v. State, 13 Tex. App. 374; White v. State, 13 Tex. App. 259; State v. Castello, 62 Iowa 404. If one actually causes the death of another, the precise means which he employs are immaterial, except in so far as they may serve to show the intent. The only inquiry permissible is, whether there is such a relation between the act of the defendant and the death of the deceased as to prove beyond a reasonable doubt, that such act was the efficient cause of the death. 2 Bishop’s New Criminal Law, sec. 636; 21 Am. and Eng. Ency. of Law, pp. 94 and 97; State v. Hyland, 144 Mo. 302; State v. Castello, 62 Iowa 404. It is no answer to this charge for the defendant to say that the death of deceased was caused by his head striking the pavement; and not by the blow delivered by defendant. The blow struck by defendant was the ‘£ cause of the cause” of Bichter’s death, and no more is required. 2 Bishop’s Criminal Law, sec. 639; State v. Landgraf, 95 Mo. 102; 21 Am. and Eng. Ency. of Law, p. 94. (3) It is not necessary that defendant struck the deceased with a specific intent to kill him. He certainly intended to inflict upon him great bodily harm. ■When death ensues under such circumstances, the defendant is guilty of murder. State v. Jennings, 18 Mo. 435; State v. Neuslin, 25 Mo. 125; Scott v. State, 37 Ala. 117; State v. Decholts, 19 Iowa 447; 2 Bishop’s New Criminal Law, sec. 676.</p>

■ Appeal from Jasper Circuit Court. — New. Jos. D. Perkins, Judge.

— Hon. Joseph D. Perkins, Judge. (1) The act is in violation of section 28, article 4 of the Constitution, in this: The title says: “And to raise revenue therefor,” but in no way indicates that the act is to appropriate or use revenue raised by other laws, as is done in sections 16 and 17 of said act, where it appropriates an amount equal to one-fourth of the city and one-half of the county dramshop, pool and billiard table license money collected respectively by the city…

— Hon. L. B. Wood-side, Judge. (1) In the conclusion- of-tlie indictment is omitted tlie “manner and fóiiíiJW'of the killing. The conclusion is just as essential as any other part of the indictment, and a form was prescribed by this court in the Sector case, which has not been followed herein. Nothing is taken by intendment. State v. Sector, 126 Mo. 340; State v. Meyer, 99 Mo. 107; Kelly’s Grim.

— U (1) Tlie evidence in tliis case offered by plaintiff -wholly fails to sustain the petition, or to make out a case of any sort. Turner’s own evidence impeaches him. Turner was a fugitive from justice. His crime was not one committed while under excitement, or in the heat of passion, hnt was the product of his own degeneracy and artful cunning. His crime was one that forever destroys confidence in the one who commits it.

<p>1. Bail: presumption oe reguiarity. The presumption is that a recognizance for appearance before a judge of a court of general jurisdiction is valid, and that all the steps leading up to the taking of the bond were regular, unless the lack of authority of the judge to take it appears from the record.</p> <p>2. -: -: INCREASING BOND: ARREST: APPEARANCE. A COUrt of general jurisdiction has the power, at any time during the term at which one indicted for felony is let to bail, to alter, amend, cancel or set aside any order made with respect thereto, notwithstanding such principal may have previously complied with such bond. And if such principal comes into court in his own proper person, after he has given a bond in an amount fixed by the court, and the court orders that the penalty of such bond he raised to four times its original amount, and the principal complies with such order, it will be presumed, in the absence of anything to the contrary in the record, that he voluntarily appeared, and waived the matter of arrest, and in a suit by the State on such enlarged bond his surety will not be permitted to say he did not do so.</p> <p>3. -: new bond: court’s power. If the court for any good and sufficient reason is ol the opinion that a bond theretofore filed by a defendant indicted for a bailable offense, is insufficient, it has the power to order him to give a new bond, and if upon notice thereof he fails to comply with the order, the court has authority to order him into custody for failure to do so; and when the last bond is filed, neither he nor his surety is longer liable on the other. '</p> <p>4. -: taken after adjournment. A bond taken by the judge of the court in -which the case is pending after its adjournment for the day, has the same binding effect as if it had been taken in open court and spread upon the minutes of the clerk.</p> <p>5. -: forfeiture: specifying. Where a defendant, in obedience to an order of court, files a new bond, the one theretofore given is abrogated, and if thereafter the court declares a forfeiture for defendant’s failure to appear, the forfeiture is not void because it does not state which bond was forfeited. Such order- can only apply to the existing bond; especially is this true if the scire facias is issued on that bond.</p> <p>6. -: -: amount OF bond. It is not necessary that the order of forfeiture specify the amount of the bond forfeited. All that is necessary for the record to show is that the bond was adjudged to be forfeited and that a writ of scire facias was ordered to be issued against the parties thereto.</p> <p>7. -: -: dismissal as to principal. It is not necessary that the record show that the court had jurisdiction over the principal before judgment of forfeiture can be entered against his sureties in a hail bond, it being a joint and several obligation. Nor is it necessary that there he a formal dismissal as to the principal, for a judgment against the surety is in effect a dismissal as to the principal.</p>

— Hon. Jos. D. Perkins, Judge. (1) Plaintiff charged that defendant negligently sent him into a dangerous place to work, he being in ignorance of the danger, and defendant having actual knowledge thereof. The proof wholly failed to establish the cause of action alleged.

— Row. E. M. Hughes, Judge. (1) Defendant contends first, that as the land exceeded 160 acres in quantity and $1,500 in value, therefore the provisions of a homestead were not attached, and Gladney would Lave a right to convey alone.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The court erred in not granting’ a new trial because of the separation of the jury. R. S. 1899, sec. 2628; State v. McClain, 8 Mo. 153; State v. Murray, 91 Mo. 95; State v. Collins, 81 Mo. 652; State v. Hayes, 81 Mo. 585; State v. Schintz, 137 Mo. 266; State v. Gray, 100 Mo. 523. (2) The court erred in giving an instruction for murder in the second degree.

<p>1. Bankruptcy: discharge: judgments in actions for fraud. It is judgments in actions for fraud, and not debts created by fraud, which are not discharged by a judgment in bankruptcy under the United States Bankruptcy Act of 1898.</p> <p>2. -: -: -: FORM OF action. The action for fraud or obtaining property by false pretenses or representations, mentioned in the United States Bankruptcy Act of 1898, is the common-law form of action for fraud and deceit.</p> <p>3. J-; -■: -: HOW'DETERMINED : ATTACHMENT. And the form of the action must be determined by the petition; hence, the affidavit for an attachment in aid of a suit forms no part of the petition and can not be looked to in determining the form of action. ' -</p> <p>4. -: -: -: suit ON ACCOUNT. Where the judgment sought to be revived- and which was discharged in bankruptcy, was based upon an account for merchandise previously sold to the discharged bankrupt, the discharge in the United States eourtbars such reviver. And in this ease it is held that a recital in the judgment that plaintiffs’ “cause of action” was “founded on a written instrument, to-wit, an account,” conclusively shows that the action was not one “for fraud or obtaining property by false pretense.” Such a judgment was discharged, therefore, by the judgment of discharge in bankruptcy.</p> <p>5. -: -: -: GOING behind RECORD. Plaintiffs, in a suit to revive a judgment which has been discharged by a judgment in bankruptcy, can not go beyond the record and show that the debt upon which their judgment was based was created by fraud and false representation.</p> <p>6. -: -- — : fiduciary capacity. A debt growing out of a plain sale and delivery of goods and wares in the ordinary course of business, although the seller may repose a trust in the punctuality and integrity of the buyer, is not a fraud created in the “fiduciary capacity” implied by those words in the Bankruptcy Act o£ tuality and integrity of the buyer, is not a fraud created in the “fiduciary relation existing previously to or independently of the particular transaction from which the debt arises.</p>

— Ho». Eckvard P. Gates, Judge. (1) The evidence wholly fails to support the case stated in the petition and the report of the referee does not undertake to find and the plaintiff did not undertake to prove any definite amount of property belonging to the partnership estate that had passed into the hands of the assignee, or any definite amount of property passing to the assignee which had been purchased with the proceeds of partnership property; and in such case, there was a…

— No». E. ill. Hughes, Judge. (1) The property of the minor was under the control and dominion of his guardian and curator. No one else was under obligation for the preservation and care, or responsible for its waste or destruction, and no other person had authority to collect, loan or change the character of the personal estate without an order of court, and no one but the guardian and curator could be assessed with the property or become liable for the taxes thereon.

— Ho». E. P. Gates, Judge. (1) A national bank is not allowed to “take, receive, reserve.or charge” a rate of interest greater than is allowed by the laws of the State where it is located, and in determining the rate of interest it is necessary to look to the laws of the State of Missouri. R. S. U. S. sec. 5197; Bank v. Haseltine, 155 Mo. 65; s. c., 183 U. S. 132.

<p>1. Indictment: use oe word “with.” The use of the word “with” before the words “pistol” or “gun,” in charging a homicide by shooting another, is' not only entirely unnecessary but would mar the strength of the allegation. The form to use in describing an assault or homicide by shooting is to allege that the offender “a certain pistol then and there charged with gunpowder and a leaden ball . . . did discharge and shoot off at, against and upon the body of his victim; and the said defendant xcith the said bullet aforesaid, out of the pistol aforesaid . . . did strike, penetrate and wound,”etc. (Again disapproving State v. Prendible, 165 Mo. 329, in so far as it holds that the word “with” is necessary in an indictment charging an assault or homicide by shooting).</p> <p>2. Confession: obtained through artifice. The competency of a confession by defendant admitting his guilt is not affected by the fact that it was obtained through the artifice of leading him to believe that his companion in the crime had already confessed.</p>

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) The indictment is fatally defective. Tbe essential word “with,” showing the weapon which was used, is omitted. “The word ‘with’ being omitted therefrom there is no allegation showing with what the alleged homicidal act was done. In criminal prosecutions everything constituting the offense must be set forth with certainty and clearness; nothing must be left to be implied. This is true of all felonies.

Transferred from St. Louis Court of Appeals. (1) The contract between the- railroad company and Ordelheide, upon which this suit is based, does not exempt the railroad company from liability for damages caused by its own negligence, and does not hind Ordelheide as an insurer of the company against damages caused to third parties by the negligence of the* company, or for any other cause.

Mandamus. (1) The Supreme Court has superintending control over all inferior courts in the state. Constitution, sec. 3, art. 6. And this jurisdiction includes such control by mandamus over the Courts of Appeals by express provision. Sec. 8, Amd. 1884, p. 94, R. S. 1899; State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Rombauer, 101 Mo. 504. (2) Mandamus is the proper remedy where an inferior court improperly dismisses an appeal and refuses to hear the cause.

— No». Joseph D. Perkins, Judge. (1) There j.s no evidence to support the verdict: (a) Notice of grade of powder, both general and special —by printed notice on each stick of powder supplied, was given, (b) If not it was immaterial, as plaintiff ■does not pretend that he would have proceeded in any different manner than he did, or that he could have used any greater care than he did.

— Hon. Jas. T. Ne-ville, Judge. (1) The defendants Byron F. Hobart and the estate of J. S. Ambrose, deceased, can not maintain their set-offs as against their liability to plaintiff as unpaid stockholders to the Real Estate Investment Company for the following reasons: (a) There can be no set-off unless the debts are mutual and in the same right. Sawyer v. Hoag, 17 Wall. 622; Story’s Eq. Jur. (11 Ed.), 1436, 1437.

<p>Deed of Trust: fraudulent notes: corporation: notes indorsed by directors: preference. Notes issued by a corporation to obtain money wherewith to pay dividends which have not been earned are void, and the managing officers of such company who indorsed such notes and afterwards paid them, are not entitled to have such notes set off against the claim of a judgment creditor of the company, who, on the faith that all the capital stock of the company had been paid m, without any knowledge of the business methods of the company, has become a bona fide owner of its notes, and by a suit in equity against the stockholders seeks to have the unpaid balance of the nominally paid-up stock issued to them, subjected to the payment of his debt, and such notes being void, a deed of trust on the company’s lots given to secure their payment, a foreclosure, and a trustee’s sale and deed to the indorsers will be set aside at the suit of such judgment creditor.</p>

— Hem. J. H. Glover, Judge.. (1) This sewer serves one-fourth in. area of the entire city; its need is imperative for the public health;, it is over a mile long and it is an extension — the lower end of a sewer already declared to be and established and built as a public sewer. The two together necessarily constitute one great public sewer.

— Ho». Argus Cox, Judge. Section 2361, Eevised Statutes 1899, is susceptible of but one construction and that is that if a man stands indicted for murder or any other homicide, and the evidence upon the trial shows the party to be dead from the assault made, then there can be no conviction for an assault, notwithstanding there must of necessity have been an assault, and in fact was an assault to produce the death.

— Bow. John W. Henry, Judge. (1) The court erred in refusing to permit defendant to prove “special” or “peculiar” benefits to the remainder of plaintiff’s Jract.

— Hon. J. L. Fort,, Judge. (1) When Butler county, by its officers and agents, sold the lots in controversy to Poplin, accepted his. notes in payment of the purchase money, caused suit to be brought on said notes, obtained a decree foreclosing Poplin’s equity of redemption and ordering the ]ots sold for the payment of the debt, caused a special execution to be levied upon said lots, and the lots to be sold thereunder, and appropriated the purchase money thereof, it renounced…

Transferred'from St.' Louis Court of Appeals. (1) Clark was an owner within the purview of the statutes relating to mechanics’ liens, and, as such, could subject the property to a lien. Judd v. Duncan, 9 Mo. App. 417; 0 ’Leary v. Bowe, 45 Mo. App. 567; Kline v. Perry, 51 Mo-. App. 422; Meyer v. Christian, 64 Mov App. 203.

Louis City Circuit Court. — No». Selden P. Spencer, Judge. (1) (a) The services rendered to plaintiff by defendant were in pursuance of the written contract of July 24, 1891.

— Non. J. L. Fori, . Judge. (1) A state of facts relied upon for equitable relief should be established by at least one credible witness. (2) Notwithstanding the deference due the trial court, the finding of facts still rests on the appellate court, in chancery causes, and appellate courts are invested with full power to make their own finding of facts, and enter up such judgment as they deem proper and just.

Mandamus. (1) The Supreme Court has superintending control over all inferior courts in the State. Held: under the varying circumstances' of each case, that delays ranging- from four months to two years were such as would preclude the granting of the writ. In re Vanderhoof, 15 Miss. 434, 36 N. Y. Supp. 833; People v. Justices, 78 Hun 334; People v. Halmer, 38 N. Y. Supp. 651; People v. Collins, 39 N. Y. Supp. 698; People v. Com.

Buchanan Criminal Court. — No». Benj. 17. Casteel, Judge. (1) The lower court erred in refusing defendant’s application for a change of venue.

— Hon. J. W. Alexander, Judge. A sufficient ground was not laid for the introduction of the declarations of Hipes as to the character of the assault made upon him. State v. Simon, 50 Mo. 370. Dying declarations are based on the grounds of necessity and because of the supposed solemnity of the occasion. They may be impeached in any of the modes by which the evidence of the deceased could have been impeached had he been alive and testified on the stand. 10 Am. and Eng. Ency.

Transferred from St. Louis Court of Appeals. (1) If plaintiff’s negligence ‘ ‘ directly contributed to produce the injury, ’ ’ he can not recover; and the trial court erred in declaring a different rule of law by the tenth instruction to the jury. It is only where plaintiff’s negligence is “previous” or “remote” or “secondary” that the principle illustrated by Davies v. Mann, 10 M. & W. 546, becomes applicable.

— Eon. Jno. A. Hochaday, Judge. (1) The evidence in this case clearly shows that at the time testator made the will he understood the business about which he was engaged; knew the persons who were the natural objects of his bounty, and understood his relations to them, and knew what property he had, and the disposition he desired to make of it.