Volume 197 — Missouri Reports

Mandamus. (1) The proposed bond issue of $10,000, together with the $30,700, the present indebtedness of the city, exclusive of the water and light bonds, being within the five per cent limit authorized by section 12, and the $110,000, the present indebtedness of the city for water and light purposes, being within the additional five per cent limit expressly authorized by section 12a, it is therefore clear that the city has the power and authority under and by virtue of…

<p>1. NEGLIGENCE: Violation of Ordinance: Common Law Negligence. Following plaintiff’s averments which set forth a supposed ordinance and the facts constituting a breach of its requirements, is another paragraph in which without reference to the ordinance it is said that defendant then and there “negligently and wrongfully ran its train at a great and unlawful speed, to-wit, at a rate of speed greater than six miles an hour and greater than fifteen miles an hour.” At the time of the accident the ordinance pleaded had been repealed. Held, that the second paragraph when taken in connection with what follows describing the situation, states a common law act of negligence, and the petition is not held to state as the only act of negligence a violation of the ordinance.</p> <p>2. -: Pleading Several Acts in One Count. Several acts of negligence of the same nature, all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count.</p> <p>' 3. -: Speed of Train: Common Law. In the absence of a statute or ordinance on the subject, the question of whether or not a given rate of speed of a train running through a populous city is negligence, is, ordinarily, one of fact, not of law. And the question depends on the surrounding circumstances; a rate that would be entirely safe under some conditions would be recklessly dangerous under others.</p> <p>4. -: -: -: Conditions: Nonsuit: Question for Jury. The evidence tended to show that the train, consisting of twenty or more freight cars, propelled by two engines, one in the rear and one in front, came through a curve near the river into a street at a point where the street was so narrow that the train could not pass a wagon therein without striking it, it being a public street in which a wagon of the kind plaintiff was driving was liable to be; that the train was running eighteen or twenty miles an hour, the speed being such that plaintiff did not have reasonable time in which to drive out of danger, and being such as to render it doubtful whether the engineer on the front engine could, by the exercise of ordinary care, have stopped it in time to have avoided the accident after he discovered the danger. Held, that it was the duty of the court to have submitted to the jury whether or not it was negligence to run the train at that rate of speed.</p> <p>5. - : -: High Speed: Necessary to Ascend Grade. If the grade was such that the train could not have ascended it without the aid of the momentum to be acquired by a high rate of speed, that fact did not justify the defendant in running its train at such speed, if to do so rendered it liable to kill or cripple people who, without negligence on their part, were liable to be on the street and were therefore to be expected to be there, or if to do so rendered it impossible for the engineer to stop in time to avert such an accident after he should come in view of the danger.</p> <p>6. -: High Speed and Not Stopping Train: Inconsistent Averments. A charge that the train was being run at a negligent speed and a charge that the defendant failed to stop the train in time to have avoided the accident after the danger was apparent, are not necessarily inconsistent.</p> <p>7. -: Negligent Speed: Impossible to Stop: Wantonness. Although the speed may have been negligent, the defendant is not liable, under what is called the humanitarian doctrine, if the speed was such as to render it impossible for the engineer, by the exercise of ordinary care, to have stopped it in time to have avoided the accident.</p> <p>8. -: Contributory: Knowledge of Danger: Question for Jury. The law imposes on the driver of a wagon familiar with the surroundings and who knows he is liable to encounter a train in a narrow street in which the defendant’s tracks are, the duty of exercising a degree of care commensurate with the danger to be expected. But his knowledge does not render it negligence per se for him to drive his wagon on the street. If he uses the care that a man of ordinary prudence under like circumstances and knowing the danger to be apprehended would have exercised, he is entitled to recover for injuries due to the defendant’s negligence. And where he testifies that he stopped and listened before driving onto the narrow street, but heard no train; that when he got onto the street, but before he turned into it, he stopped and looked both ways, but saw no train; that on former occasions he had heard trains whistle at a whistling point, but heard none this time, the question of his contributory negligence is one for the jury.</p>

Mandamus. (1) The Auditor’s refusal to draw his warrant for the payment of the costs involved in this suit was based wholly upon the view that under the law all costs accruing in the juvenile court should be paid by the city of St. Louis. There is no controversy about the facts.

— Now. N. M. Ramey, Judge. (1) The trial court erred in admitting in evidence, over the objection of appellant, city tax deed. The same does not in any particular comply with the law in force at the time it was made, nor does the notice of sale comply with the law in such cases.

<p>QUIETING TITLE: Accounting: Premature Appeal. In a suit to quiet and determine tbe title to land, the court cannot make an accounting between the parties or appoint a referee to take the account. When the court has ascertained the interests each party has in the land it exhausts its jurisdiction in such cause, and if it goes further and appoints a referee to adjust the accounts between them, an appeal may be taken without waiting for the referee to report, and that appeal is not premature.</p>

— Son. J. B. Johnson, Special Judge. Whenever any of the territory in a county is organized into a special road district, under and by virtue of the provisions of article 10 of chapter 151, Revised Statutes 1899, the road commissioners for such special road district become entitled to the absolute control of the roads in said district; and become entitled to the tools, machinery, and funds belonging to said district. Secs, 9609, 9610, R. S. 1899.

— Hon. Shannon G. Douglass, Judge. Plaintiff had legal capacity to sue. Jones v. Railroad, 178 Mo. 528. The term representatives includes widow, heirs, distributors, assigns, etc. Heirs of Mullanphy v. Simpson, 4 Mo. 1; Loos v. Ins. Co., 41 Mo. 540; 18 Am. and Eng. Ency. Law (2 Ed.), 818, 819. William Casey, had he lived, could have maintained this action. Casey v. Hoover, 89 S. W. 330.

Louis City Circuit Court. — Now. Warwick Hough, Judge. (1) Where there is evidence, as in this case, that at the time the will was made testator was old, feeble in body and mind from sickness and old age, and had not sufficient understanding and intelligence to transact his ordinary business affairs and to comprehend the transaction then in question, the nature and extent of his property, the natural objects of his bounty and to whom he was giving the same, then he had not…

<p>FARM CROSSING: Subsequent to Building Railroad. The statute requiring a railroad which cuts a farm in two, to construct a crossing for the benefit of the owner, applies in all cases where the farm lies on both sides of the railroad, whether the owner owned it at the time the railroad was built, or subsquently acquired by purchase tracts lying on different sides which together constitute one farm. [Disapproving Stumpe v. Railroad, 61 Mo. App. 357.]</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. The demurrer to the evidence should have been sustained, (a) Plaintiff’s husband was guilty of negligence defeating a recovery. Davies v. Railroad, 159 Mo. 1; Evans v. Railroad, 178 Mo. 504; Wheat v. St. Louis, 179 Mo. 572; Clancy v. Railroad, 192 Mo. 615. (b) Defendant was not negligent in the manner charged, and if it was negléct in any respect, such negligence was not a proximate cause of the injury.

— No». W. B. Teasdcde, Judge. The peremptory instructions for defendant should have been given. Snyder v. Railroad, 60' Mo. • 413; Stringer v. Railroad, 96 Mo. 299.

— Hon Jno. P, Butler; Judge. (1) The court erred in finding as a fact that the figures “$40” mentioned in the contract denominated Exhibit A, made by Kilpatrick and Lisle with Allen for the sale of their land, had been changed. The court had no authority or right to consider that matter. The alteration of the contract in that regard was not in anywise brought in question by any party to the suit nor was there any evidence whatever on that point.

<p>Appeal from Bates Circuit Court. — How. W. W. Graves, Judge.</p> <p>The Bates Circuit Court had no jurisdiction of the case. The change of venue was improperly granted. While a sworn application for a change of venue may disqualify the judge to whom the application is made and may make a prima-facie case on its presentation, such rule certainly does not obtain as to other judges than to the one who is presiding at the time in the canse. It requires something more than a mere affidavit to disqualify judges who have never sat in a cause. A judge presiding in a cause cannot take judicial notice on a mere affidavit that his brother judges are unduly influenced or biased against apartytoasuit. It is a matter that must be presented to other judges before being passed upon by them or there must be proof offered to sustain such an allegation against any other judge than the one who is sitting in the case. Eudaley v. Railroad, 186 Mo. 399; State ex rel. v. Wood-son, 86 Mo. App. 253.</p> <p>As was said by this court in Eudaley v. Railroad, 186 Mo. 404, “the right to have a change of venue comes only from the statute.” It being purely a statutory right and being prescribed by statute, this method of procedure is exclusive. Railroad v. Railroad, 149 Mo. 253. The person applying for a change of venue on account of the interest, prejudice, etc., of the judge under the provisions of section 822, if his application is timely and formal, gets the change on the application, unless he agree to a special judge or to the election of such a judge by the members of the bar. No provision is made (and under the rule referred to above would it be permitted) for proving the facts upon which the application is based, otherwise than by the application itself. Such is the clear reading and interpretation of the statute referred to. Under this section, if a change of venue is awarded on account of objection to the judge and the applicant fails to agree with the other side as to a special judge, then the case must be sent “to another county” for trial. Because it has been suggested that if a party may be permitted to swear against the several judges of a circuit, where there are more than one, he would thereby in effect be obtaining more than one change of venue, we beg to say the right of a person so to do must depend upon the statute governing such courts. In this case the statute, is the act of 1879 (Laws 1879, p. 82.) It will be seen that under this statute the right to swear against more than one judge in the same circuit is clearly recognized unless in some way it can be found that the prescribed statutory procedure to secure this purely statutory right is not exclusive, as has been so often stated by the text-writers and declared by this court, as it appears to us. "We recognize that in the section quoted from it is said: ‘ ‘ But if the reason exists against both judges then the change may be allowed, ’ ’ etc. Under the general law in force at that time, as had then been but recently declared, the only way by which the existence of the reasons for such change of venue was to be proven to the court so as to authorize the change of venue, that is, a change of venue from the county where the suit was then pending, was a formal affidavit and application of the party applying. Corpenny v. Sedalia, 57 Mo. 92. The doctrine of this case has been ever since recognized by this court. Therefore, both under the general rule of construction and the express declaration of this court upon the identical question, the showing and the only showing, required of plaintiff was that he make a formal and verified application for a change of venue. The opinion of this court in the Eudaley case is predicated upon the hypothesis of the repeal of the act of 1879' by the general provisions of sections 821 and 822, Revised Statutes 1899, or else the act of 1879 was not called to the court’s attention. Suth. on Stat. Const., sec. 157; State v. DeBar, 58 Mo. 395; McVey v. McVey, 51 Mo. 420; State ex rel. v. Stratton, 136 Mo. 429; State ex rel. v. Spencer, 164 Mo. 53; Manker v.Faulhaber, 94 Mo. 430; Donnel v. Lee, 101 Mo, App. 191.</p>

— Now. A. D. Burnes, Judge. (1) The written statement of conclusions of facts- and law becomes a part of the record proper, and if the finding of facts does not support the judgment based thereon, this court should and will reverse judgment for error apparent on the record. Stutter v. Streit, 21 Mo. 157; Allison v. Darton, 24 Mo. 343; Nichols v. Carter, 49 Mo. App. 401; Land Co. v. Breitz, 125 Mo. 418; Freeman v. Hemenway, 75 Mo. App. 621.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. The demurrers to plaintiff’s evidence and to all the evidence should have been sustained. First. Plaintiff failed to prove any substantial negligence whatever. Kennedy v. Railroad, 43 Mo. App. 1; Edwards v. Ins. Co., 100 Mo. App. 712; Hanselman v. Railroad, 88 Mo. App. 123; Heyde v. Railroad, 110 Mo. 272. Second.

— No» Jno. P. Butler, Judge. (1) The court erred in admitting in evidence the will of Polly Cowan. No disposition she could make of the property bequeathed to her could in any way affect the validity of the will of John Cowan. Wood v. Carpenter, 166 Mo. 485; Schierbaum v. Schemme, 157 Mo. 19; Von de Veld v. Judy, 143 Mo. 368; King v. Gibson, 191 Mo. 307.

<p>1. NEGLIGENCE: Street Car: Wagon on Track: Demurrer. The street was a built-up embankment, with a narrow wagon way-on each side the railway tracks. Down this street was moving a procession of six loaded and wide manure wagons, scattered along for 200 feet approaching a bridge, where the embankment narrowed. The inside wheels of the second wagon from the front were inside the track. The car ran down grade for 600 feet, in full day, with no obstruction to the motorman’s vision, and struck the second wagon, pushed it ahead against the first, which was being driven by plaintiff and which was outside the rails, toppling it over the embankment, and injuring plaintiff. There was evidence that the second wagon was straddling the rail for 100 to 150 feet before it was struck. Held, that it was the motorman’s duty to have kept a vigilant watch and to have put his car under control, and there being ample evidence that he was negligent in those respects, no demurrer to plaintiff’s case should have been given.</p> <p>2. NEGLIGENT SPEED. Speed may be negligent under critical circumstances and yet be ordinary speed or less.</p> <p>3. -: Unlawful.. Speed may be negligent and yet be less than the maximum rate permitted by ordinance.</p> <p>4. -: Crowded Street: Prudence. A prudent motorman will not permit a street car to plunge through a procession of heavily loaded wagons on a high embankment and over a bridge with one of them straddling the track.</p> <p>5. -: -: Rate Not Proved in Miles. 'Where the evidence is that the car was going fast, although only one witness attempted to fix the speed in miles per hour, the court will not hold that there was no evidence that the car was going at a negligent rate of speed.</p> <p>6. -: Proof of Time in Which Car Can Be Stopped. Where the conductor testified that the car was stopped in its own length plus eight or ten feet, and there was evidence that the wagon struck straddled the rail in front of the car for 100 or 150 feet before it was struck, there was no need to encumber the case with expert testimony of the distance a like car under like circumstances could have been stopped.</p> <p>7. NEGLIGENCE: General: Ringing Bell: Speed: instruction. The petition in one paragraph charged the defendant with so “negligently and unskillfully operating its car that it suddenly and with great force ran into a wagon” then being driven on the track and forced it against plaintiff’s wagon, etc. Another paragraph charged failure to ring the bell, to keep the car under control, and negligent speed. Held, that an instruction for plaintiff, which ignores the rate of speed and the ringing of the bell, and put the case to the jury on broad lines of negligence, was not out of harmony with the petition and the facts in judgment.</p> <p>8. EVIDENCE: Former Statement: Contradicted and Rejected. Although a witness previously made and signed a written statement and at the trial gave in contradictory evidence, and was confronted with such prior statement and cross-examined by the party offering him in regard thereto, it is no abuse of the court’s sound judicial discretion to refuse to admit that written eso parte statement in evidence, even though he had been subpoenaed by both sides, if there is nothing to show that the party offering him had been entrapped or surprised or tricked.</p>

— Hon. A. D. Burnes, Judge. (1) The demurrer to the case made hy the evidence should have been sustained, and it was error to refuse it. 1. The burden rested upon plaintiff to show that defendant had been guilty of negligence which caused the fire. No inference of negligence on the part of defendant can he drawn from the fact that a fire occurred and plaintiff was injured.

Francois Circuit Court. —Eon. Robert ■ A. Anthony, Judge. (1) Every will shall he in writing, signed by the testatrix, or .by some person, by her direction, in her presence; and shall be attested by two or. more competent witnesses subscribing their names to the will in the presence of the testatrix. Sec. 4604, R. S. 1899; Hughes v, Rader, 183 Mo. 630. The question for the jury was simply one of fact.

Louis City Circuit Court. — Eon. John A. Blevins, Judge. (1) “It is very well settled that an interpleading suit involves two successive litigations; one between the plaintiff in the bill and the defendants, upon the question whether or not the defendants shall inter-plead; the other between the different defendants, i. e., the interpleading itself.

Louis City Circuit Court. — Now. Robert M. Foster, Judge. (1) The court erred in refusing to instruct the jury at the conclusion of plaintiff’s case in chief that under the pleadings and the evidence their verdict should be for defendant, and that plaintiff was not entitled to recover.

Transferred from Kansas City Court of Appeals. (1) The court erred in permitting plaintiff and witness Cox to testify in rebuttal. The inquiry did not cover the whole situation, and the witnesses, by their own testimony, showed that they were not qualified to speak on the subject. (2) The court erred in giving plaintiff’s first instruction.

Louis City Circuit Court. — Now. Warwick Hough, Judge. (1) The ordinance pleaded and offered in evidence by this defendant should have been admitted. It is a valid ordinance of the city of St. Louis and its reasonableness is not subject to judicial review. Sec. 26, amended charter St. Louis; St. Louis v. Tel.

— Eon. Argus Cox, Judge. (1) All the rulings of our courts are to the effect that the statute is penal and is to be strictly construed. Both Tool Co. v. Champ Spring Co., 108 Mo. App. 618; Bennett v. Bank, 61 Mo. App. 302; Spurlock v. Bail-road, 93 Mo. 16; Spurlock v. Bailroad, 93 Mo. 536; Barton Bros. v. Martin, 54 Mo. App. 137.

— No». F. G. Johnston, Judge. (1) Defendant was charged withbeing an accessory-after the fact, and the jury found him guilty of harboring thieves. State v. DeWitt, 186 Mo. 61; 1 Bish. Crim. Proc. (3 Ed.), secs. 81, 82,127,128. (2) The information is insufficient in that it charges that before defendant could claim his exemptions from' the statute creating the offense he is charged with violating he must be related as set out in the statute to both Eller and Winslo.

— Hon. Henry G. Riley, Judge. . (1) All the allegations in the petition are, by the demurrer, admitted to be true for the purpose of deciding the question raised by it. McKenzie v. Mathews, 59 Mo. 99. (2) The sole contention of respondent’s counsel in the trial court was that the defendant, being a municipal corporation, could not be held responsible for the non-feasance of its servant. This contention was based on the case of Ulrich v..St. Louis, 112 Mo. 138.

— Hon. Jas. H. Slover, Judge. (1) The court erred in admitting incompetent evidence. a. Michael Walsh: Value of property, b. John Donnelly: Number of square feet in this and other property, c. George Hoffman: Argumentative and speculative, d. Mary Miller: Price plaintiff paid for her property, e. James H. Looney: Price paid for his property, f. Ed P. Kennedy: • Comparison with other properties, g. P. H. Madden: comparison with other property, h. J. Scott Harrison: Offers…

<p>Appeal from Barton Circuit Court. — Eon. E. G. Timmonds, Judge.</p> <p>(1) Plaintiff failed to show title by adverse possession. Robinson v. Allison, 97 Ala. 596; Padgett v. Norman, 44 Arle 490; Fisher v. Siekmann, 125 Mo. 165; Nnll v. Howell, 111 Mo. 273; Holmes v. Kring, 93 Mo. 452; Nixon v. Williams, 95 N. C. 103; Merriwetlier v. Vanlx, 37 Tenn. 300; Wheelock v. Overshiner, 110 Mo. 100; Bowman v. Lee, 48 Mo. 335; Dalby v. Sniffer, 57 Mo. 294; Laramore v. Minnish, 43 Ga. 228; Dnhring v. Dnhring’, 20 Mo. 176; Thomas v. Black, 113 Mo. 166; Ambrose v. Raley, 58 111. 506; Lemonie v. Dnnklin Co., 38 Fed. 567; Shipman v. Baxter, 21 Ala. 456; Boril v. Rollins, 30 Cal. 408; Clark v. Lyon, 45 111. 388; Champaign v. McMnrray, 76 111. 353; Moss v. Berry, 53 Tex. 632; Pharis v. Jones, 122 Mo. 125; Gaines v. Sannders, 87 Mo. 557; Norfleet v. Hutchins, 68 Mo. 597; Cook v. Farrah, 105 Mo. 492; Cantlin v. Land & Lumber Co., 151 Mo. 159; Sweringen v. St. Louis, 151 Mo. 348; Carter v. Hornback, 139 Mo. 238. (2) Upon the entire record the finding, judgment and decree should have been for the defendants. Stokes v. McAllister, 2 Mo. 163; Jones v. Manley, 58 Mo. 559; Brown v. Moore, 74 Mo. 633; Kane v. McKown, 55 Mo. 181; Gentry v. Gentry, 122 Mo. 216; Melton v. Fitch, 125 Mo. 281; Sherwood v. Baker, 105 Mo. 472; Fischer v. Siekmann, 125 Mo. 165; Carey v. West, 139 Mo. 177; Osborn v. Weldon, 146 Mo. 192; Westmeyer v. Gallenkamp, 154 Mo. 28; Graham v. Stafford, 171 Mo. 692; Blandy v. Asher, 72 Mo. 27; Sellon v. Reed, 5 Biss. 125; Bonnell v. Smith, 53 111. 375; Van Zant v. Van Zant, 23 111. 536; Haselton v. Haselton, 166 Mo. 185; Rohrer v. Broekhage, 86 Mo. 544; Lyons v. Lyons, 101 Mo. App. 494; WMtehead v. Tapp, 69 Mo. 415; Gladney v. Berkley, 75 Mo. App. 102; Thompson on Homestead, see. 690, p. 564; Phillips v. Presson, 172 Mo. 24; Duffy v. Harris, 40 L. R. A. (Ark.) 750; Huffschmidt v. Gross, 112 Mo. 649; Peake v. Cameron, 102 Mo. 568; Vogler v. Montgomery, 54 Mo. 574; Stamm v. Stamm, 11 Mo. App. 598; Kendall v. Powers, 96 Mo. 142; Rockhey v. Rockhey, 97 Mo. 76; Freund v. McCall, 73 Mo. 343; Lake v. Page, 63 N. H- 318; Skouten v. Wood, 57 Mo. 380; Day v. Adams, 42 Vt. 516; Mack v. Heiss, 90 Mo. 578; Roberts v. Nelson, 86 Mo. 25; McPhee v. O ’Rourke, 10 Col. 301; Apafford v. Warren, 47 Iowa 47; Hart v. Evans, 80 Ga. 330; Gunney v. Doane, 22 Cal. 635; Alexander v. Alexander, 52 111. 195; Monroe v. May, 9 Kan. 466.</p> <p>Respondent has title by adverse possession under the Statute of Limitations. Respondent and the parties under 'whom it claims were in the actual possession of the whole of the lot for more than twenty-one years before appellants filed their answer claiming title; but if they had been in possession of only a part, their color of title would have extended their possession to the whole lot. Sec. 4266, R. S. 1899 ; Stevens v. Martin, 168 Mo. 407. Ten years unbroken possession by the grantee of a part of a tract, after the recording of the deed under which he holds, gives him title to the whole. Plaster v. Grabeel, 160 Mo. 669; Scannell v. Co., 161 Mo. 606. Color of title is not necessary to originate ownership by limitation; a claim of title with adverse possession of the requisite character for the requisite period will carry title without any paper support. Quick v. Rufe, 164'Mo; 408; Scannell v. Co., 161 Mo. 606. The Statute of Limitations commenced to run against Martin V. Payne in his lifetime and did not stop at his death. Jones v. Thomas, 124 Mo. 586; Burdett v. May, 100 Mo. 19; Campbell v. Co., 84 Mo. 353. Occupancy is necessary to the homestead right. Visible occupancy of the premises as the head of the family at the time of the levy of the writ fixes the homestead rights of the defendant. St. Louis Brewing Assn. v. Howard, 150 Mo. 451; Beckman v. Myer, 75 Mo. 333; Finnegan v. Prindville, 83 Mo. 517. The visible occupancy of the premises as the head of a family under a recorded title, fixes the character of the property as a homestead. Jackson v. Bowles, 67 Mo. 610; Graham v. Lee, 691 Mo. 334; Beckman v. Myer, 7 Mo. App. 576. Even if Mrs. Payne had a right of homestead, such right during the life of her husband, Payne, owner of the fee, was not a thing that could be sold, hence, nothing could pass from her to Keller by her quit-claim deed. Thomp. on Homesteads and Exemp., sec. 452; Blandy v. Asher, 72 Mo. 27; Gladney v. Berkley, 75 Mo. App. 101; Quick v. Rufe, 164 Mo. 414. During the life of both parents, the children have no interest in the homestead. Thomp. on Homestead and Exemp., sec. 43. A homestead is lost by abandonment, and a party cannot have two homesteads. Kaes v. Gross, 92 Mo. 647; Rouse v. Catón, 168 Mo. 288.</p>

— Now. N. G. Timmonds, Judge. The note was barred by the Statute of Limitations on the 10th day of January, 1902. The trial court so found. The deed of trust under the act of 18 February, 1891 (R. S. 1899, sec. 4277), was barred at the same time, or within two years from February 18, 1891. Little y. Reid, 75 Mo. App. 266; Stanton y. Gibbins, 103 Mo. App. 264.

Louis City Circuit Court. — lío». John A. Talty, Judge. (1) It is tire duty of every trustee, bailee, agent, attorney, factor, or other fiduciary, receiving funds belonging to another, to keep account of his receipts and disbursements, and render true statements to his principal from time to time as such funds come into his hands. 2 Beach on Trustees, pp. 1564-1565; Blauvelt v. Akerman, 24 N. J. Eq. 495; Smith v. Crews, 2 Mo. App. 269; McMahan v. Franklin,' 38 Mo. 549.

<p>1. APPEAL: Lost Pleadings. The abstract contains neither the petition, answer, nor reply, and counsel on both sides concede that they are lost or destroyed, and no point is made by reason of their absence, but no attempt has been made to supply them in the way the statute provides. FeZd, that the court can not entertain the appeal, although counsel agree they were in due form, but will order the trial court to supply the lost records, and to permit appellant to perfect his appeal.</p> <p>2. -: -: Basis of Judgment: Power to Supply. The foundation upon which, a judgment rests in the trial court and in the appellate court on appeal, is 'the pleadings, and if they are lost the trial court alone can supply them, either because of the power conferred on it by statute, or independent of the statute because of its inherent power.</p>

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) The court erred in holding that there was no obligation on the part of the landlord under the lease with reference to the furnishing of steam to plaintiff. Pollock on Contract' (7 Ed.), 245; 2 Page on Contracts, sec. 1118; Pordage v. Cole, 1 Saund. 319/t; French v. Bent, 43 N. H. 448; Booth v. Rolling Mill Co., 74 N. Y. 15.

<p>1. GRANTING NEW TRIAL: Reason Not Specified: Appeal. The statute requiring “every order allowing a new trial” to “specify of record the ground or grounds on which such new trial is granted,” is not mandatory in the sense that the respondent must suffer for the failure of the court to specify of record the ground for ordering a new trial. In such case the action of the court cannot he assumed to have been based on any particular ground, but the ruling will be considered on appeal, as prior to this statute, by looking into the correctness of the rulings below in admitting evidence, and in giving and refusing instructions.</p> <p>2. -: -: Verdict Against Law. Where there was ample evidence to support the verdict, the presumption will not be indulged that the trial court granted a new trial on the ground that the verdict was against the law under the evidence.</p> <p>3. -: -: Refusing Instructions. Where the instructions requested on behalf of the losing party were properly refused, either because there was no evidence on which to base them, or because they wrongly declared the law, it will not be held that the court granted the new trial because of the refusal of those instructions.</p> <p>4‘. WILL: Condition Broken: Forfeiture: No Entry: Waiver. Where an estate was devised to testator’s wife upon condition that she convey one third of it to each of his two sons on their reaching the age of twenty-one years respectively, and she failed to comply with the same, but long after one of them reached that age she leased a part of the land belonging to the estate without, his joining therein, and he at no time made entry for condition broken, nor complained and took no action to obtain possession, but shared in the rents collected, he waived the condition and his right to assert forfeiture.</p> <p>5. -- — : -: -: -: -: Ejectment: No Title In Plaintiff. The plaintiff, in order to maintain ejectment, must have the legal title. If the property was devised by will to plaintiff’s mother upon condition that when he became of age she would convey one-third thereof to him, and she had failed to do that up to the time suit was brought, and he had not entered for condition broken but had waived same, he cannot maintain ejectment.</p>

— Hon. Henry C. Riley, Judge. The abstract of the record is very incomplete and is wholly insufficient to enable the appellate court to have a full and complete understanding of the questions presented for review. Eespondents ask that the appeal be dismissed for failure to comply with rule 13 of this court. If this abstract is sufficient, then, indeed, have litigants expended uselessly large sums of money in preparing abstracts heretofore. Mitchell v. Mitchell, 191 Mo. 475.

<p>1. SETTING ASIDE DEED: Mistake and Fraud: Subsequent Purchasers. A deed cannot be set aside as against subsequent purchasers who bought the land without any knowledge or notice that would put them on their inquiry, that the deed to their grantor did not correctly describe the land and had been obtained from an illiterate woman by fraud and misrepresentations on the part of their grantor.</p> <p>2. -: -: Character of Proof. A court of equity has power to correct a mistake in the description of the land as made in the deed, but it will do so, even when the rights of subsequent purchasers have not intervened, on parol evidence, only when that evidence is clear and convincing.</p> <p>3. - — : -: -: Matter for Chancellor. While plaintiff was an illiterate woman, and therefore the transaction by which defendant obtained a deed from her to the land will be carefully scrutinized, yet her long delay in ascertaining her alleged mistake that she had made a deed for one tract whén she thought she was signing a deed for a different tract less valuable, the close proximity of her residence to the tract in dispute, the exercise by the grantee of the right to sell portions of the tract, his positive denial of the mistake, the evidence that her son assisted in measuring the land before she signed the deed, make a case in which the chancellor was better able to measure the evidence than this court, and this court will not interfere with his finding that it lacked that clear, cogent and convincing character which the law requires for setting aside so solemn an instrument as a deed to land. 107 Sup. — 32</p>

Transferred from St. Louis Court of Appeals. The very point on which the decision was affirmed in the St. Louis Court of Appeals in this case, i. e., that when it became necessary for a foreign corporation to go into court it could cure itself of its infirmity by then complying with the statute, is decided adversely in Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404.

<p>1. INSURANCE: Vested Right. In ordinary old-line life insurance, the issue of a policy confers immediately a vested right upon, and raises an irrevocable trust in favor of, the party named as beneficiary, a right which no act of the insured can impair without the beneficiary’s consent.</p> <p>2. -: -: Changing Beneficiary: Statute of 1899: Retrospective. Where the policy was issued in 1880, naming the in- ■ sured’s then wife as beneficiary, and the payment of premiums was completed and a paid-up policy issued in 1895, the company then agreeing to pay to said wife upon the death of the insured. a definite sum, her rights under the statutes then in force becoming then permanently fixed and vested, an amendment to the statute in 1899, providing that “in the event of the death' or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary”, did not thereafter, upon the legal divorcement of the wife, give the husband the right to name some other person as beneficiary. Such amended statute cannot control the vested rights of the beneficiary acquired under prior laws existing at the time the policy was issued, and to apply it in such case would be to make it retrospective.</p> <p>3. -: -: -: Insurable Interest: Divorce. A decree of divorce, rendered after the tontine policy premiums were paid and paid-up policy was issued, did not destroy the insurable interest of the wife, named as beneficiary," in the’ life of her husband, the insured. If the policy was originally valid it does not cease to be so because of the beneficiary’s cessation of interest in the subject of the insurance.</p> <p>4. -: Divorce: Insurable Interest: Fixed Rights: Subsequent Statute. Where the rights of the beneficiary, the wife of the insured, to assign the policy, or to accept a cash value on the surrender thereof, or otherwise, became fixed prior to the enactment of the statute providing that upon “the death or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary,” he is not entitled to designate another beneficiary after a decree divorcing the wife. Such decree did not destroy her insurable interest in the life of her husband, nor does it prevent her from invoking the rule of law applicable to the vested rights of the beneficiary.</p> <p>5. -: Changing Beneficiary: Statute: Where Wife ,is Not Sole Beneficiary. The statute authorizing the insured husband to designate another beneficiary upon “the death or divorcement of the wife before the decease of the husband” has no application where the wife is not the sole beneficiary. So that where the policy provided that the amount of the insurance was, upon the death of the husband, to be paid to the wife if living, and if not living, to tjie husband’s children, or if there be no such children surviving them, to his legal representatives, the husband’s child has a substantial interest in the policy, and though that interest be contingent upon the death of the wife prior to the death of the husband, he cannot, after a decree dissolving the marriage, change the beneficiary. The amendment to the statute does not apply in such case. It applies only when the wife is named as the sole beneficiary.</p>

— Hon. Henry C. Pepper, Judge. (1) The court erred in admitting in behalf of defendants declarations of Ambrose G. Topper to the effect that he was not married to plaintiff, alleged to have been made in her absence to witnesses. Such declarations were not against the interest of declarant, but were self-serving and were such in their nature as decedent could not have introduced in his own behalf in his lifetime, and did not become competent after his death.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. The power of disposal vested in James S. Dougherty, Jr., of his interest in the property is unlimited at his discretion, and the very fact that he added to the words which make the deed convey a fee simple title the words “the absolute estate in fee simple title in and the undivided half of,” etc., plainly shows that it was not his life interest he intended to dispose of, but his absolute estate in fee simpl® in this deed…

Louis City Circuit Court. — Ron. H. D. Wood, Judge. (1) In construing a will the great object is to ascertain the intent of the testator. Lessee of Williams v. Veach, 17 Ohio 180. (2) The power of disposal' created by the words “with full power and authority to dispose of the absolute estate in fee simple title” did not confer on defendant Dougherty the power to give away his estate, but must be construed as a power to sell.

<p>1. BANK: Heceiyership: Facts in Case. It is held in this case, where the published promises of the promoter of a bank, which had thousands of small stockholders scattered over the entire country, that only experienced bankers would be its directors, and that none of its capital would be loaned to him, were adopted and ratified and violated by its board of directors, that the appointment of a receiver under the statutes to wind up the bank’s affairs was not authorized thereby, when the bank is solvent.</p> <p>2. -: -: Regulated by Statute. Where the proceeding for the appointment of a receiver for a bank is based upon and brought under the statute, the propriety of permitting the appointment will be determined by the statute, and not by the general powers of equity courts to appoint receivers in cases where frauds upon stockholders and depositors are shown to exist.</p> <p>3. -: -: Purpose of Statute. The purpose of the statutes concerning the appointment of receivers for banks was not to vex and hinder but to aid the banking business.</p> <p>4. -: -: Buying Stocks: Offense Atoned for. Even if the buying by a bank of the stock of other corporations was prohibited by the statutes, and even if that is made a ground for placing its affairs in the hands of a receiver, yet if the bank disposed of the stock and atoned for the offense before the proceeding was heard, the receiver should not be appointed. That would be sour administration of the law, and defeat the very purpose of the statutes.</p> <p>5. -: -: Carrying Stock in President's Name. The books of the bank should reveal the names of the actual stockholders, especially where the stock is not fully paid up. But where the bank is in a formative condition, having thousands of subscribers to its stock, some of whom have not paid for their stock, the fact that the stock was carried in the name of the president, who was the bank’s promoter, is no ground for appointing a receiver, if at the hearing the order of the Secretary of State that the books of the bank should be made to tell the truth as to the ownership of the stock had been complied with, or was in the orderly process of reasonable compliance.</p> <p>6. -: -: Fraud Order. A “fraud order” issued by tbe Post Office department of tbe Federal government denying to a bank, located in tbe outskirts of a big city and doing business largely by mail, tbe use of tbe mails, will not be considered as of any force for justifying tbe appointment of a receiver for tbe bank upon tbe prayer of tbe Attorney-General, for two reasons: first, because tbe “fraud order” does not rise to tbe dignity of an adjudication by a court; and, second, because tbe order alone is pleaded, not the facts and evidence on which tbe order was based.</p> <p>7. -: -: Evils Otherwise Correctible. Where tbe evils complained of in tbe management of a bank, shown to be solvent, are correctible in other ways than by tbe extreme method of appointing a receiver, tbe receiver should not be appointed.</p>

Louis County Circuit Court. — No». John W. MoElhinney, Judge. (1) The court had jurisdiction over the subject-matter, and its appointment of the receiver was not void. Greeley v. Bank, 103 Mo. 212. Where there is no person who can handle the property of a corporation, a receiver may always be appointed to preserve the estate.

Charles Circuit Court. — -How. E. M. Hughes, Judge. The following authorities hold that a release given hy the injured party bars an action for damages arising out of the death, whether brought by the personal representative or for the surviving husband or wife, or for the benefit of next of kin: Rice v. Railroad, 33 S. C. 556; Hecht v. Railroad, 132 Ind. 507; Diddle v. Railroad, 25 Barb. 183; Littlewood v. N. Y., 89 N. Y. 24; Re Taylor Estate, 179 Pa. 254; Walkerton v.…

Quo Warranto. Section 9 of article 9, Constitution 1875, in express terms, provided for the discontinuance of township organization. Section 8517, Revised Statutes 1889, under which the petition of 1898 was presented, undertook to carry into effect, or to ignore, section 9, supra, which provides, that township organization may he discontinued when a majority of the voters, voting on said proposition, are against it.

<p>1. FINES: Belong to School Fund: Game and Fish Law. The fines authorized to be imposed for a violation of the Game and Pish law of 1905 belong to the school fund, and section 64' of that act, requiring all such fines to be paid into the State Treasury to be applied in meeting the expenses of enforcing the law, is in conflict with section 8 of article 11 of the Constitution, which requires all penalties and forfeitures collected in the several counties for any breach of the penal or military laws of the State to be added to the county school fund, and such fines when collected must be added to that fund.'</p> <p>2. -: -: -: Qui Tam Action. An action brought in the name of the State, charging one with a violation of the Game and Pish law, which is by the act made a misdemeanor, is in no sense a qui tam action, although that act says that the^ fines collected for violations thereof shall be turned into the State Treasury to be used in meeting the expenses of its enforcement. A qui tam action is a civil action, brought by an informer, under a statute which provides that a part of the penalty affixed by the act for its violation shall go to him and the balance to the State or some other institution.</p> <p>3. -: Qui Tam Actions: Constitutional Provision Not Applicable. The Constitutional provision declaring that “the clear proceeds of all penalties and forfeitures collected for any breach of the penal or military laws” shall go to the county school fund, does not apply to qui tam actions, nor are penal statutes leveled merely at a violation of private rights wherein a private person is nominated as entitled to sue for and recover the penalties fixed • for their violation, of the character referred to in that constitutional provision. But that provision does apply where fines and penalties are prescribed for crimes and are recovered by public authority, and is an inhibition upon the power of the General Assembly to divert the fines and penalties collected in such cases from the county school fund.</p> <p>4. -: -: Game and Fish Act. Prosecutions for a violation of the Game and Pish act of 1905 are in no sense qui tam actions, but by the act itself are made criminal prosecutions by public authorities.</p>

'Appeal from Jackson Circuit Court. — Now. Andrew? F. Evans, Judge. (1) The corporate existence of the plaintiff is an issue which may he made in a proceeding to condemn property. Railroad v. Shambaugh, 106 Mo. 566. (2) 1. The charter of plaintiff is forfeited under the very terms of the statute (in failing to do what the law requires of it within the time prescribed by law) that is to say, by the Statute of Limitations.

- — Now. James Gibson, Judge. , (1) The demurrer should have been sustained, (a) Because, under the undisputed facts, there was no negligence on defendant’s part and no right of recovery. Stillson v. Railroad, 67 Mo. 676; Gúrley v. Railroad, 104 Mo. 212, 122 Mo. 141; Schmitz v. Railroad, 119 Mo. 256, 46 Mo. App-. 380; Wilkinson v. Railroad, 101 Mo. 63.

— How. Jas. E. Hazell, Judge. (1) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case, (a) The evidence offered hy plaintiff proved beyond a doubt that • deceased was a trespasser. With this, there is a total failure of any proof that the persons in charge of defendant’s train saw the deceased upon the track in time to have stopped the train before it struck him.