Volume 203 — Missouri Reports

— Son. J. S. Slover, Judge. (1) On the facts, the right of foreclosure of the taxbill by suit was in the Pennsylvania Bank and not in Dickey, when this suit was begun, and for this reason the judgment must be reversed. Meyers v. Water. C'o., 10 Cal. 579; Wetmore v. San Francisco, 44 Id. 294; Fulton v. Swift, 84 Ind. 4901; Reynolds v. Railroad, 143 Id. 619; Silleck v. Compress Co., 72 Miss. 1019; Gris-wold v. American Ins. Co., 1 Mo.

<p>Appeal from Newton Circuit Court.— Hon. Henry G. Pepper, Judge.</p> <p>(1) “Mandamus is strictly a legal remedy with which equity has nothing to do.” 2 Spelling, Extraordinary Relief, sec. 1363; 19 Am. and Eng. Ency. Law (2 Ed.), 718, 731; State ex rel. v. Lewis, 76 Mo. 380. (2) In the contract in question the agreement to make payment of the semiannual installments is unconditional and the date of payment and the amount to he paid are fixed with certainty — thus constituting a debt for the entire amount within the meaning of article 10, section 12, of the Constitution. The debt is absolute — there is no condition precedent, no service to be performed or supplies furnished. Saleno v. City of Neosho, 127 Mo-. 627; City of Ottumwa v. Water Company, 119 Fed. 315; City of Laporte v. Gamewell Fire Alarm Co., 146 Ind. 466; Earles v. Wells, 94 Wis. 285; Valparaiso- v. ,Gardner, 97 Lad. 1; Brown v. City of Corry, 175 Pa. St. 528; Brown v. City of Boston, 179 Mass. 321; Windsor v. City of Des Moines, 110' Iowa 375; Walla Walla v. Water Co., 172 U. S. 1; Beynolds v. City of Waterville, 92 Me. 292; Culberson v. Fulton, 127 111. 30; Scott v. Davenport, 34 Iowa 208; Hall v. Cedar Bapids, 115 Iowa 199'; City of Helena v. Mills, 94 Fed. 919; Doon Twp. v. Cummins, 142 U. S. 366; Spellman v. Parkersburg (W. Va.), 14 S. E. 279. It makes no difference that the debt sued for is the result of a compromise of a claim in favor of the Water Company on a liability which might accrue against the city. Austin'v. McCall (Tex.), 68 S. W. 793. And being in excess of the limitation provided by the Constitution, the entire indebtedness is void and cannot be enforced in any form of action at law or equity. Priekett v. Marcelaine, 65 Fed. 469; Thornburg v. School District, 175 Mo. 12; Buchanan v. Litchfield-, 102 U. S. 278; City of "Litchfield v. Ballou, 114 U. S. 192; Gamewell Fire Alarm Co. v. Laporte, 96 Fed. 664, 102 Fed. 417; Lake County v. Bollings, 130 H. S. 662. (3) The judgment in case of Matters et al. v. City of Neosho is not res judicata upon the issues herein. Belator was not a party to that proceeding nor bound thereby. Neither are the issues in this case the same as in the Matters case, (a) In order for a judgment to he binding in favor of any person it must, also be binding against him. The judgment or decree must conclude both parties or it will conclude neither. The estoppel must be mutual. No person can avail himself of a judgment as res judicata in his favor who has not shared the trouble or expense of a trial nor exposed himself to the hazard of an adverse decision. 1 Greenleaf on Ev. (16 Ed.), secs. 523 and 524; 24 Am. and Eng. Ency. Law (2 Ed.), 730-; 1 Freeman on Judgments (4 Ed.), sec. 159; 1 Van Fleet’s Former Adjudication, p. Ill; State ex rel. v. St. Louis, 145 Mo. 565; Lyons v. Cooledge, 89 111. 529; Woods v. Henry, 77 Mo. 277; St. Louis Ins. Co. v. Cravens, 69 Mo. 77; State ex rel. v. Barker, 26 Mo. App. 494; Mail v. Maxwell, 107 111. 554; Allred v. Smith, 135 N. C. 443; Peebles v. Pate, 90 N. C. 348; Starkie on Evidence, 332; Coke on Littleton, 252. The owner of municipal bonds or other obligations to pay is not bound by a judgment in a suit by taxpayers against the municipality or its officers to which such owner is not a party. Town of Pana v. Bowler, 107 U. S. 529; Morrill v. Smith County (Tex.), 33 S. W. 899; 2 Van Fleet, Former Adj., sec. 570; Town' of Lyons v. Cooledge, 89 111. 529; Mail v. Maxwell, 107 111. 554; Carroll County v. Smith, 111 U. S. 556; Warren County v. Marcy, 97 U. S. 96; Town of Enfield v. Jordan, 119 U. S. 680. (b) And the parties must also have occupied adversary positions during the trial upon issues formed between them by the pleadings. 24 Am. and Eng. Ency. Law (2 Ed.), 731; 1 Freeman on Judgments (4 Ed.), sec. 158; 1 Van Fleet’s .Former Adj., sec. 256; State Bank v. Bartle, 114 Mo. 281; C'armody v. Herrick, 85 Mo. App. 659; McMahan v. Geiger, 73 Mo. 145. (c) Relator was not only not a party in the Matters case but would not have been a proper party to that proceeding and could not have been joined as a relator and adversary party to the city. State ex rel. v. Fraker, 166 Mo. 142; State ex rel. v. Burkhardt, 59 Mo. 75. The issues involved in the Matters case did not concern the public as a whole, but only the taxpayers of the city by and for whom the suit was prosecuted (relator Smith is shown to have been neither a taxpayer nor a resident of the city). Where a suit is brought by a few on behalf of a class the decree binds the entire class having a common interest, bnt does not bind those not belonging to the class and not having a common interest with those prosecuting it, so that the Matters judgment was not binding on relator Smith. 24 Am. and Eng. Ency. Law (2 Ed.), 758. (d) The proceedings in the Matters case were not in rem. At the time of the institution of that action there was no res in existence to seize. At most it was a proceeding to create a fund. There was no seizure into the custody of the court and there was no published notice to' all the world. These are the distinguishing features of a proceeding in rem. Waples on Proceedings in rem, secs. 2, 41-42 and 43; Herman on Estoppel and Res Adjudicata, 304; Town of Pana v. Bowler, 107 U. S. 529. In order for a proceeding in rem or qioasi in rem to be binding upon all the world as res judicata, notice of the proceeding must be published to the world and an opportunity afforded anyone to appear and defend. Such proceedings only bind the world when all the world is made a party by published notice. Waples on Proceedings m rem, secs. 64, 625-628; Herman on Estoppel and Res Adjudicata, sec. 219; Cooley’s Constitutional Limitations (7 Ed.), p. 5801; Troyer v. Wood, 96 Mo. 480'; Hunt v. Searcy, 167 Mo. 158; Jones v. Yore, 142 Mo. 38; State ex rel. v. Hadlock, 52 Mo. App. 297; Wood-ruff v. Taylor, 20 Vt. 65; Scott v. McNeal, 154 U. S. 34; State v. Burton, 47 Kan. 44. (e) This suit is not for the same cause of action as the Matters case. No claim was made in the Matters case by pleadings, or otherwise, that the contract was void because a debt was created in excess of the constitutional limitation. Garland v. Smith, 164 Mo. 22. (f) The fact that the State is a nominal party both in the Matters case and the present suit is without force. The alternative writ in mandamus, which under our law is the first pleading, must, like all writs, run in the name of the State. The use of the name of the State or sovereign is merely nominal and the suit is “regarded as‘in the nature of an action by the person in whose favor the writ is granted.” State v. Burton, 47 Kan. 44; State ex rel. v. Lewis., 76 Mo. 380; State v. Stock, 38 Kan. 154; Kimberly v. Morris, 87 Tex. 637; 2 Spelling, Extraordinary Belief, secs. 1364, 1623; 13 Ency. PI. and Pr., 669 and 670'. Proceedings for a writ of mandamus are civil proceedings, the State being merely a nominal party. 2 Ind. (2 Cart.) 423. And in many jurisdictions the state is not even a nominal party. Bider v. Brown (Okia.), 32 Pac. 341; Heinz v. Moulton, 7 S. D. 272; State v. Bates (S. C.), 24 S. E. 755; Malain v. Judge Third Hist., 29 La. Ann. 793; Kimberly v. Morris, 87 Tex. 637. (4) The doctrine of estoppel cannot be applied to validate a contract which the corporation had no power to make. Thornburg v. School Dist., 175 Mo. 12; Wheeler v. Poplar Bluff, 149 Mo. 46; State ex rel. • v. Murphy, 134 Mo. 567; City of Unionville v. Martin, 95 Mo. App. 38; Book v. Earl, 87 Mo. 246 ; Walcott v. Lawrence Co., 26 Mo. 272; City of Litchfield v. Ballou, 114 U. S. 192; Bigelow on Estoppel, 466; 20' Am. and Eng. Ency. Law (2 Ed.), 1182; Buchanan v. Litchfield, 102 U. S. 278; State ex rel. v. Helena, 24 Mont. 521; French v. Burlington, 42 Iowa 617; Laporte v. Game-well Fire Alarm Tel. Co., 146 Ind. 466; Gamewell Fire Alarm Co. v. Laporte, 96 Fed. 664,’102 Fed. 417. (5) No recovery can be had in this case based on any claim arising under ordinance No. 113. That ordinance was repealed by ordinance No. 232, to which plaintiff’s assignor gave its assent. By ordinance No. 232 an en: tirely new contract was substituted for No. 113. (a) Relator having brought suit upon ordinance No. 252 cannot recover under the provisions of ordinance No. 113 and the judgment rendered thereon. He cannot sue upon one cause of action and recover upon another. Stix v. Matthews, 75 Mo. 96; Hollman v. Lange, 143 Mo. 100; Cole v. Armour, 154 Mo. 333. (b) The obligation to pay under ordinance No. 113 is a general one and no special fund provided. Before resort can be had to mandamus, a party must first establish the validity of his claim in an action at law. Mansfield v. Fuller, 50 Mo. 338; Cloud v. Pierce City, 86 Mo. 357; Payne v. School List., 87 Mo. App. 415. (c) The deed from Neosho City Water Company to the city carried with it all rents subsequently accruing and ipso facto ended the obligation of the city to pay water rentals. Culverhouse v. Whorts, 32 Mo. App. 419; Vaughn v. Locke, 27 Mo. 290; Latta v. Weiss, 131 Mo. 230; Page v. Culver, 55 Mo. App. 606.</p> <p>(1) The money having arisen out of the compromise contract, from the use of the property turned over by the company to the city, in which a beneficial interest was clearly reserved by the company; and the money being so made, available, and under the immediate control of the city, for application as. the installments matured, by the simple act of drawing an appropriate warrant — there was no contracted debt in the contemplation of the constitutional prohibition. 1 Da Mun. Corp., sec. 135. Where there is provided, as there is here, by reasonable stipulation and arrangement, a particular fund, without necessity for resort to the power of public taxation against the assessable property of the municipality, out of which special fund the obligation for current or continuing uses of property, services or supplies, may be satisfied as they arise, there is no debt contracted, within the constitutional or statutory inhibition against contracting debts beyond specified limitations relating to property values or without concurrent provisions for payment. Winston v. City of Spokane, 41 Pac. 888; Simile v. Fresno Co. (Cal.), 44 Pac. 556; Donahue v. Morgan (Colo.), 50 Pac. 1038; Faulkner v. City of Seattle ("Wash.), 53 Pac. 365; City of Valparaiso v. Gardner, 97 Ind. 1491; Fort Dodge Co. v. Fort Dodge, 115 Iowa 568; Swanson v. Ottumwa, 91 N. W, 1048; Fidelity v. Fowler, 113 Fed. 560; Laporte v. Gamewell (Ind.), 58 Am. St. Rep. 359; Wade v. County, 174 U. S. 499; Winston v. Fort Worth., 47 S. W. 740; McNeil v. Waco, 33 S. W. 322; Fourth Natl. Bk. v. City of Dallas, 73 S. W. 841; Mitchell County v. City Natl. Bk., 91 Tex. ■841; Brockenbrough v. Board of Charlotte, 46 S. E. 28; Doland v. Clark, 143 Cal. 181; Sackett v. New Albany, 88 Ind. 473. (2) But the city should be held estopped, and not be permitted to repudiate its own law as enacted by ordinance 232, after having used said law to acquire the possession and earnings of the waterworks for its own advantage. It is well settled, as a general proposition, that, “where a party has availed himself of an unconstitutional law for his own benefit, he cannot, in subsequent litigation with others, aver its unconstitutionality as a defense.” Daniels v. Tearney, 102 U. S. 415; Vickery v. Board of Comrs., 134 Ind. 556; Purcell v. Conrad, 84 Va. 573; Willis v. Board of Comrs., 86 Fed. 876; Arthur v. Israel, 15 Colo. 153; Folger v. Clark, 80 Me. 242; Butler v. Ellerbe, 44 ¡3. C. 269; Davis v. Wakelee, 156 U. S. 691; State v. Mas-tin, 103 Mo. 512; O’Brien v. Wheelock, 184 U. S. 4501; St. Louis v. Davidson, 102 Mo. 155. The relations of a fourth class city to the subject-matter of such contracts as we have here, is that of a contracting and business proprietary, dealing with the waterworks plant for its own private advantage, and the rule is to exact of such a city the performance of its obligations under its contracts, after the manner of dealing with private individuals or corporations. State ex rél. v. St. Louis, 145 Mo. 572; Water Co. v. Aurora, 129 Mo. 583; Neosho City Water Co. v. City of Neosho, 136 Mo. 505; Lamar W. & L. Co. v. Lamar, 140' Mo. 145. (3) The objects and terms of the contract, properly understood, are not obnoxious to the Constitution. And if necessary to a proper understanding of it, resort may be had to the fundamental rules of construction in such cases. Any question as to the true meaning or purpose of the parties, i. e., whether within or without the prohibitions of the laws, should be resolved, in case of doubt, in favor of the contract as a valid obligation. It must be assumed, to start with, that the parties intended, not to violate, but to refrain from the. violation of the law. And that intention will account for the diverse and severable stipulations in the ordinance; and such intention is entitled to the first consideration of the court. Bishop on Contr., secs. 460, 420, 417; Jones on Construction of Contract, 224-6; 1 Beach, Contr., sec. 717. The reference in ordinance 232 to the previous ordinance, the judgment against the city, etc., make the same undoubted parts of the-contract under consideration; and all the papers, deeds, resolutions and documents pertaining to the matter, and contemplated by the parties as. effecting some part of the compromise agreement, must be taken as constituent parts, of the existing contract. 1 Beach, Contr., secs. 706, 713; Jones on Constr. Contr., 213. (4) The judgment in the mandamus case of State ex rel. v. Matters et al., in pursuance of which the money is appropriated to, and held in the city treasury for the payment of the hydrant rentals, now reduced to $1750 per year, fixes the status of the fund in question, and so binds the defendants in their dealings with it and duty towards the same; and relator is entitled to have payment thereof as assignee of the Water Company. State ex rel. v. Trammel, 106 Mo. 520; State ex rel. v. Eainey, 74 Mo. 229; Harmon v. Public Works, 123 111. 122; State ex rel. v. Eainey, 74 Mo. 229; City of N. O. v. Bank, 167 U. S. 371; Bear v. Board of Comrs., 122 N. C. 434; Ashton v. City, 133 N. Y. 187; Gallaher v. City, 34 W. Va. 730; Sauls v. Freeman, 24 Fla. 209; Cannon v. Nelson, 83 Iowa 242; McIntosh v. City, 112 Fed. 706; Holt Co. v.'Natl.-Life Ins. Co., 80 Fed. 686; Home Co. v. Mayor of City (Ky.), 68 S. W. 15.- (5) Mandamus is the remedy to enforce the performance of the duty of the municipality and its officers relating to the payment of a private claim out of a specially provided or authorized fund; and resort of the relator to ordinary action was not necessary or proper. State ex rel. v. Adams, 161 Mo. 365; Moody v. Cass County, 74 Mo. 307; Campbell v. Polk Co., 49 Mo. 214; Kingsberry v. Pettis Co., 48 Mo. 207; Pettis Co. v. Kingsbury, 17 Mo. 479.</p> <p>(1) That the semiannual payments in question are not payable solely and exclusively out of the water rentals but do constitute a general promise to pay and liability of the city, we thought too plain a proposition for argument or citation of authorities. As relator seems yet to contend the contrary, we cite a few cases to the proposition that unless the municipal obligation clearly and unmistakably limits the payment to a special fund and excludes general liability, the obligation will be held to be general with the special fund as additional security. Fowler v. Superior, 85 Wis. 411; Tiedeman, Municipal Corp., sec. 194a; Merrellv.Monticello, 22 Fed. 594; Bank v. Evansville, 25 Fed. 391; Avery v. Job, 25 Oregon 520; Martin v. Tyler (N. Dak.), 60 N. W. 400; Redmon v. Chacey (N. Dak.), 73 N. W. 1081; Kimball v. Board of Com., 21 Fed. 145; 21 Am. and Eng. Ency. Law (2 Ed.), 79; Clark v. Des Moines, 19 Iowa 199 (cited with approval in International Bank v. Franklin Co., 65 Mo. 113); U. S. v. Clark County Court, 96 U. S. 211; Darling-ton v. Trust Co., 78 Fed. 596. (2) The Supreme Court of Indiana has passed on every phase of this question of what annual payments constitute a debt in the aggregate within the meaning of a constitutional provision the same as ours. It was one of the courts, Valparaiso v. Gardner, 97 Ind. 1, which announced the doctrine followed by this court in Saleno v. Neosho, 127 Mo. 641, that a contract for annual supplies to be furnished for a series of years and to be paid only as furnished, was not a debt in the constitutional sense for the total of the annual payments. It has also defined and applied the special fund doctrine, Straib v. Cox, 110 Ind. 299, limiting it to cases where the obligation is payable solely and exclusively from a special fund “and from no other source” so that in no event is the municipality liable. Tet this court upholds by its later decisions, not impairing the others, however, in all its vigor the doctrine now contended for by defendant, that whenever the installments to be paid are in the nature of purchase money, the payments being fixed and certain to come due and not dependent on supplies to be furnished or services to be rendered, then' such installments are a debt for the total amount within the meaning of the constitution. Laporte v. Fire Alarm Co., 146 Ind. 466; Voss v. Waterloo (Ind.), 71 N. E. 208; Quill v. Indianapolis, 124 Ind. 292; Valve Co. v. Crown Point, 76 N. E. 536. The Supreme Court of Iowa has likewise considered the three phases of this question under its constitutional provision identical with ours. Lively v. Cedar Falls, 27 Iowa 227; Hall v. Cedar Rapids, 115 Iowa 199; Windsor v. Les Moines, 110 Iowa 175. So the Federal courts early adopted the doctrine follewed in the Saleno case. Budd v. Budd, 59 Fed. 735; Water Co. v. Walla Walla, 60 Fed. 957. But those courts have very greatly restricted, if not totally repudiated, the special fund doctrine. Ottumwa v. Water Co., 119 Fed. 315. And maintain with special vigor the doctrine contended for by defendants. Walla Walla v. Water Co., 172 U. S. 1; Helena v. Mills, 94 Fed. 916. The courts of Illinois announced the doctrine applicable to contracts for annual supplies of water, light, etc., as followed in the Saleno case. "Water C'o. v. Carlyle, 31 111. App. 339, 140 111. 445. It has confined the special fund doctrine to the narrowest limits and upheld the doctrine contended for by defendants under contracts more doubtful in their terms than the one at bar. Joliet v. Alexander, 194 111. 497; Springfield v. Edwards, 84 111. 632; Culbertson v. City of Fulton, 127 111. 30. The difference between a contract for supplies, or services to be furnished for a period of years, the payments being dependent on the supplies or service being furnished, in which case the contracted payments are not debts till the supplies or service are so furnished; and a contract of purchase providing for future payments in which the debt is a present one though payable in the future, is so well settled as to leave discussion useless. Reynolds v. Waterville (Me.), 42 Atl. 557; Crogster v. Bayfield County (Wis.), 74 N. W. 635.</p>

— No». N. W. Johnson, Judge. (1) The estate conveyed by the will was a life estate to the wife, with a contingent remainder to the heirs of her body. Grodman v. Simmons, 113 Mo. 122; Emerson v. Hughes,-110 Mo. 627. (2) The heirs of the body of a tenant for life are not ascertainable until the death of the life tenant. R. S. 1899, sec. 4594; Emerson v. Hughes, 110 Mo. 627.

Transferred from St. Louis Court of Appeals. (1) A railroad corporation, without the express consent and authorization of the lawmaking power of the State, cannot make a lease of its property or franchises to another corporation, such a contract being ultra vires and void.

Prohibition. (1) The writ of prohibition is of common law origin and is of great antiquity. It was framed to confine courts of special, limited, or inferior jurisdiction within the proper limits of their authority, and to prevent confusion in the administration of justice. 16 Enc. PL and Pr., 1093; 2 Bailey on Jurisdiction, see. 449; Smith v; Whitney, 116 IT. S. 167.

<p>1. TRANSCRIPT: Criminal Cases. Counsel in a criminal case should superintend the making up of the transcript, and see to. it that it is properly certified and otherwise complies with the law and the rules of the court.</p> <p>2. INSANITY: Instruction: Excuse: Omission of Word “Always.” The instruction should tell the jury that “partial insanity does not always excuse,” and the word “always” should not be omitted. But where, upon a reading of the whole instruction from which that word is omitted, it seems impossible that the jury could have been misled by that inadvertent omission, it will not be held to be reversible error.</p> <p>3. -: Excuse for Crime. One may be partially insane and yet responsible for his criminal acts. The law does not excuse unless the derangement is so great that it actually renders the accused incapable at the time of committing the offense of distinguishing between the right and the wrong in reference to the particular act charged and proven against him.</p> <p>4. ----: Instruction: Proof: Like any Other Fact: Insertion of Word “Not.” In one instruction given for the- State the jury were told that “insanity is a fact which may not be proven like any other fact.” Feld, that the word “not” was incorrectly incorporated, but that was so plainly an inadvertence that, when all the instructions given are considered together, it cannot be seen that it had any prejudicial effect upon the rights of defendant.</p> <p>5. -: Question for Jury. Where the instructions given on both sides fairly and fully submit to the jury the issue as to the sanity or'insanity of the defendant and his criminal responsibility in the killing of his sweetheart, and there is evidence that tends to support the defense that he was not responsible for the homicide and ample evidence to the contrary, and no "error was committed in the admission and exclusion of evidence, the issue is one for the jury to determine; and if their finding is free from bias and prejudice, the court will not interfere therewith.</p> <p>6. --: Instruction for Murder in Second Degree. • Where there is no evidence of just provocation and defendant is clearly guilty of murder in the first degree or excusable on the ground of insanity, the court should not direct the jury that if defendant in an excited and passionate frame of mind, without adequate cause or provocation, killed the deceased, they will find him guilty of murder in the second degree. No instruction on murder in the second degree should be given in such case.</p> <p>7. -: Instruction on lyianslaughte'r. An instruction that seeks to have the court instruct on manslaughter in the fourth . degree if the defendant killed deceased because she refused to marry him, should be refused. Unless there is some evidence tending to show a lawful provocation for the homicide, no instruction for manslaughter in the fourth degree should be given.</p> <p>8. -: Instruction on Circumstantial Evidence. Where the defense is insanity and all the evidence as to defendant’s mental condition was open, direct and oral, and there was no circumstantial evidence about who committed the homicide, an instruction which seeks to submit to the jury the law as to a conviction upon circumstantial evidence would be misleading and should be refused.</p> <p>9. REFUSING CORRECT INSTRUCTIONS. Where the instructions given fully and fairly cover every issue in the case, a refusal of correct instructions asked by defendant, is not error.</p>

— Eon. E. W. Johnson, Judge. (1) The court erred in overruling the demurrer to the evidence: (a) Because the evidence showed that defendant was exercising ordinary care to clean up its bridge and keep it in safe condition. Ordinary care was all that was required of defendant in this connection. Grigsby v. Chappell, 5 Rich. L. (S. C.) 445.

<p>PUBLIC HEALTH: Milk: Constitutional Ordinance. A city ordinance which imposes a fine on any person who sells or exposes for sale “milk containing less than three per cent by weight of butter-fat, and 8.5 per cent of solids not fat, and seven-tenths of one per cent ash, of which fifty per cent is insoluble in hot water,” does not violate any of the constitutional rights of the citizen.</p>

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) Plaintiff sued on a special contract and lie must recover upon the contract or not at all. This is the rule although the evidence develops a cause of action for money had and received or a quantum meruit for work and labor done and services performed, or some other good cause of action. In such case evidence of the reasonable value of the services performed should be excluded. Cole v. Armour, 154 Mo. 333.

Louis City Circuit Court. — Row. Warwick Hough, Judge. (1) Even though it were true that the motorman got down on the step and reached toward plaintiff and thereby caused him to run in front of the car and to be injured, yet defendant is not liable, because it appears from all the evidence in this record that such an act did not pertain to the particular duties of the motorman as such and was not within the scope of his employment. Snyder v. Railroad, 60.

<p>APPELLATE JURISDICTION: Injunction. Where the suit is an injunction pure and simple and no constitutional question is involved, and the final decree from which the appeal is taken simply perpetuates the injunction against the defendants and adjudges costs against them, the Supreme Court has no jurisdiction of the appeal.</p>

— Ho». Henry C. Pepper, Judge. (1) Defendant’s possession of the land, with the recognition that it was land of the Government or of another, did not afford basis for adverse claim; nor conld the statute start to run without some unequivocal change of attitude, such as is 'not to be found in this case. Hunnewell v. Burchett, 152 Mo. 611; Stevenson v. Black, 168 Mo. 561; Comstock v. Eastwood, 108 Mo. 41.

— flow. Asbury Burkhead, Judge. (1) Incompetent and illegal evidence was permitted to be introduced by plaintiff over defendants’ objection and exception, (a) All the testimony of W. O. Oldham, relative to the existence and objects of the National Board of Underwriters, and his information of its business and methods, shown by him to be wholly derived from what he had been told by others, was purely hearsay and incompetent. G-reenl.

Louis City Circuit Court.— Mon. O’Neill By an, Judge. (1) Instructions 2 and 3 properly declare the law and the court erred in setting aside the verdict on the ground that they are erroneous. Hurt v. Jones, 105 Mo. App. Ill; Ryan v. Hospes, 167 Mo. 361; Ward v. Uohn, 58 Fed. 462; Railroad v. Campbell, 81 Fed. 1003; Morissette v. Wood, 123 Ala. 384; Lange v. Kearney> 4 N. T. Supp. 14, 127 N. T. 676; Lombard v. Bayard, 1 Wall. Jr. 196; Succession of Haley, 50 La.

— Sim A. M. Woodson, Judge. (1) A sufficient petition and bond for removal having been filed in due time by the Atchison, Topeka & Santa Fe Railway Company, it was the duty of the court below to proceed no further than to make an order of removal, and all subsequent proceedings were coram non judice.

— How. Henry M. Ramey, Judge. (1) In support of tbe general rule that trusts for public charitable purposes are favored by the courts, are always construed as valid where it is possible to do so, and are often upheld where private trusts would fail, see: Sappington v. Trustees, 123 Mo. 42; Hesketh v. Murphy, 36 N. J. Eq. 309; Jackson v. Phillips, 14 Allen 550; Handley v. Palmer, 103 Fed. 43; Stewart v. Easton, 74 Fed. 854; In re Willey (Cal.), 56 Pac. 550; Woodruff v. Marsh,…

— Hon. James T. Neville, Judge. (1) Under the evidence the guardian and curator, and his heirs receiving the property from him, are undoubtedly liable in equity to his ward A constructive trust or a resulting trust is immediately created by the conversion of the guardian, and he and his heirs hold the property as trustees for the true owner. Huttman v. Yiesselman, 48 Mo.

Transferred from St. Louis Court of Appeals. According to the evidence on both sides, the account sued upon represents money received by defendant from Samuel Weiermueller in 1889, and which he promised to repay to Weiermueller. Before payment Weiermueller assigned the debt to his wife and died. Thereafter, defendant made payments on the assigned debt to her, and refused to pay more. This suit is against the said debtor for what she claims to be still due on said debt.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. The instruction complained of was not only proper hut it would have been reversible error for the court to have refused it to defendant. That the plaintiff must make out his ease by a preponderance, that is, the greater weight of the evidence, is fundamental; is the law of this State and always has been.

<p>APPELLATE JURISDICTION: Title to Real Estate: Homestead. An adjudication, upon a motion to quash, that land levied upon under execution is defendant’s homestead does not involve title to real estate, and therefore the appeal from a judgment adjudging that the land levied upon was defendant’s homestead, is to the proper court of appeals. In determining whether or not homestead exists, the court begins with the necessary concessions that the title is vested in defendant; and a ¡holding that homestead does or does not exist, does not divest that title. A sequence of a judgment that there is no homestead may be to divert defendant’s title by sale under execution, but that would be an indirect, not a direct effect of the judgment. In arriving at that judgment, the court does not consider the question of title, but whether the statutory conditions are present which entitle the husband to homestead.</p> <p>Per Graves, J., with whom Lamm and Woodson, JJ., concur.</p> <p>1. APPELLATE JURISDICTION: Homestead. It is not a mere exemption, but an estate in lands, that vests in the head of a family, and it is not an exemption, but a life estate in lands, that vests in the widow at his death, as the statute declares; and as an adjudication of the existence of a homestead must necessarily determine the existence of that estate, and determine the inchoate right of the widow and children thereto, an appeal from a judgment on a motion to quash the execution on the ground ' that defendant had a homestead in the land levied upon, necessarily involves title to real estate, within the meaning of the constitutional provision governing appeals— as much so as would a suit in ejectment against the same defendant after sale of the land under execution, where the defense would be the existence of a homestead, and such suit would be appealable to this court alone.</p> <p>2. --: What is Title? “Title to real, estate” means an estate for life or for years, as well as a fee simple interest.</p> <p>3. ——-: -: Questions Involved. Not simply such questions as, is defendant the head of a family? are involved in the homestead inquiry, but the ultimate question is, does defendant have a homestead? And that means, does, defendant have a vested estate in the lands? A homestead interest, as created by the statute, is an interest in real estate; and that being the fact, title to real estate is involved in any litigation that determines the existence of a homestead.</p>

Louis City Circuit Court.— Hon. Warwick Hough, Judge. (1) The contract sued on is not of a champertous nature. 4 Blackstone’s Commentaries, p. 135; Duke v. Harper, 66 Mo. 56. (2) The contract between Henderson & Shields and the bondholders is no part of the contract between Henderson & Shields and Kelerher & Co. (3) It is incompetent for defendant to set up the alleged illegality of the contract with the bondholders as a defense to this case.

Louis County Circuit Court. — Row. Jno. W. McElhinney, Judge. (1) The general purpose of streets and highways is that of travel, either on foot by a pedestrian or in a vehicle propelled by power. The use to which the public thoroughfares may be put comprehends all modern means of conveyance. The motor vehicle has an equal right with other vehicles in common use, to occupy and use the public highways and streets.

— -Ro». Jas. D. Barnett, Judge. (1) The instruction of the court on the subject of provoking the difficulty is erroneous. There was no evidence on which to base it. State v. Walker, 196 Mo. 73; State v. Packwood, 26 Mo. 340 ; State v. Bailey, 57 Mo. 131; State v. Chambers, 87 Mo. 406; State v. Herrill, 97 Mo. Ill; State v. Johnson, 111 Mo. 584; State v. Little, 67 Mo. 624; State v. Tice, 90 Mo. 112; State v. Sturgis, 48 Mo. App.’263; State v. Wilson, 39 Mo.

— Hon. C. A. Benton, Judge. Where there is no hill of exceptions, and no error appearing in the record proper,, the judgment will he affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191, Mo. 162.

— Ho». F. G. Johnston, Judge. The court erred in permitting the prosecuting attorney in his closing argument to the jury to make improper remarks, and in refusing to reprimand him therefor, and in refusing to instruct the jury not to consider the said improper remarks in reaching their verdict in the case.

— Hora. B. J. Casteel, Special Judge. “The presumption is that confessions have been freely made until the contrary appears.” People v. Barker, 60 Mich. 295; State v. Myers,-99 Mo. 119; Com. v. Culver, 126 Mass. 464; 1 Chitty’s Crim. Law, 571; Eoscoe’s Crim. Evidence, 43; 3 Eice on Crim. Evid., sec. 309.

Louis City Circuit Court. — -How. William M, Kinsey, Judge. The error complained by by appellant arises from the failure and refusal on the part of the court to instruct the jury as to the effect of a prior conspiracy followed by an assault made upon the appellant at the instigation of the deceased, as characterizing the feeling and the intentions of deceased towards appellant, as well as explanatory of the justifiableness on the part of appellant to act upon a slighter…

— Row. David R. Eby, Judge. Where there is no bill of exceptions, and no error appearing in the record proper, the judgment will be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. The information is insufficient. It was error not to sustain defendant’s motion to quash or his motion in arrest of judgment.

— How. Jno. T. Moore, Judge. There is nothing before this court except the record proper; and, no error appearing therein, the judgment should be affirmed. State v. Eaton, 191 Mo. 151; State v. Thompson, 149 Mo. 439; State v. Britt, 117 Mo. 584.

— How. Howard Gray, Judge. (1) The evidence, and all the evidence, showed that the crime charged was committed during the month of February, 1906, and prior to the filing of the information, which was February 26, 1906. So the jury could not possibly have been misled; neither was it possible for defendant to have been convicted of any crime committed prior to the time limited by the statute in such cases.

— Hon. Jas. L. Fort, Judge. (1) The information contains two counts and neither concludes as required by law; and, as has been recently said in State v. Coleman, 186 Mo. 151, whatever certainty is' requisite in an indictment, is necessary also in an information; and, consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.

— How. Jno. W. Wofford, Judge. Where there is no hill of exceptions, and no error appearing in the record proper, the judgment will be affirmed. State v. Nicholas, 193 Mo. 214; State v.Sparks, 191 Mo. 162.

Louis City Circuit Court. — How. Matt. G. Reynolds, Judge. The court should have sustained defendant’s motion for a new trial, one ground of which was that the verdict was against the evidence. Exception was preserved to the action of the court in overruling said motion. Shooting with intent to kill Woehrle will not sustain a charge of shooting with intent to kill Dorn, simply because the shot took effect upon Dorn. State v. Mulhall, 199 Mo. 202.

— Hon. Argus Cox, Judge. There is nothing before the court except the record proper. The so-called bill of exceptions fails to show that any exceptions were saved to the overruling of defendant’s motion for a new trial. So, even if the transcript of the evidence can be termed a bill of exceptions, mixed up as it is with the record proper, defendant is not entitled to have any of the alleged errors considered by this court.

— How. Jno. W. W\offord, Judge. (1) Error was committed by the jury in finding and the court in accepting a verdict for burglary alone.

Louis City Circuit Court. — Row. James E. Withrow, Judge. (1) The information, particularly the second count, is defective in that it charges that defendant did not reside, etc., “nor in said precinct.” The statute permits registration when one has commenced to reside.. The information makes no distinction between right to register and right to vote.

— Ho». Howard Gray, Judge. (1) When the defendant filed his application for a change of venue from the trial judge, he had no further jurisdiction in the case. R. S. 1899, sec. 2594; State v. Shipman, 93 Mo. 147; State v. Greenwade, 72 Mo. 304. (2) The court erred in giving instruction 2.

— How. Henry G. Riley, Judge. (1) The information is had; it does not conform to the law; it fails to inform the defendant the day of the month said alleged offense was committed; neither does it inform him with what he is charged with having put the prosecuting witness in fear of immediate injury.

Louis City Circuit Court. — Hon. Matt. O. Reynolds, Judge. (1) An ordinance is not a matter of judicial notice; and all facts that are necessary to make1 a case that are not matters of judicial notice must be pleaded. An indictment must allege every substantive fact which is necessary to establish the gnilt of the accused, and which the State is required to prove. State v. Green, 111 Mo. 585; State v. Reed, 117 Mo. 604.

— Bo». Henry G. Riley, Judge. (1) The order of the court compelling defendants to furnish testimony against themselves was error. Boyd v. United States, 116 U. S. 616; Cons, of Mo., sec. 23, art. 2; Cons, of U. S., amendment 5; 1 Green-leaf on Evidence, sec. 451; Cooper v. State, 4 L. R. A. 766; Rice v. Rice, 9 L. R. A. 591; 1 Wharton on Evidence, secs. 533, 536, 751; Connselman v. Hitchcock, 142 U. S. 547; Wagram on Discovery, 61; Cooley, Cons.

— Hon. Wm. H. Martin, Judge. (1) The indictment charged only the defendants with having jointly committed the homicide, and it was improper, as was done in instruction 2, to instruct on the theory of a conspiracy between the defendants and one Hiram Blake, who was not named in the indictment. Taylor v. Commonwealth, 90 S. W. 581. (2) (a) The court erred in refusing to give at the request of defendants ’ instructions 7, 8, 9 and 10.

— How. Jno: W. W (1) The demurrer to the evidence should have been sustained. State v. Huff, 164 Mo. 480. (2) The evidence admitted relative to car “Nubia,” over defendant’s timely objection, was error, because that car is not mentioned in the information, and because said, evidence relates to a separate transaction.

<p>NO BILL OF EXCEPTIONS. Where there is no bill of exceptions, and the record proper is free from error, the judgment will be affirmed.</p>

— Row. Hugh Babbs, Judge. (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 773; State v. Flora, 109 Mo. 295; State v. KarlowsM, 142 Mo. 465. (2) There is nothing before this court, except the record proper, the bill of exceptions not having been filed within the time allowed.

Habeas Corpus. (1) The appeal from the judgment of the circuit court of Stone county, while it vested jurisdiction in the Supreme Court to determine the cause, only suspended the judgment of the trial court. On affirmance, the judgment of the Supreme Court is merely an order directing the sentence of the lower court to be executed. It is the judgment of the lower court that is executed, and the authority of the warden of the penitentiary is the judgment of the lower court.

— Ho#. F. G. Johnston, Judge. (1) (a) No error was committed in permitting Prof. D. C. McCne to act as interpreter, during the examination of the prosecutrix, who was deaf and dumb. After the officers of the Deaf and Dumb Institute learned that one of their pupils had been mistreated while trying to find her way home, Prof. McCue was sent to Barry county to ascertain the facts and to lay them before the prosecuting attorney.

Louis City Circuit Court. — Noit. Daniel D. Fisher, Judge. (1) Instruction number 3, on tbe measure of damages, given on behalf of plaintiff is erroneous, because: (a) It assumed that plaintiff lost wages as a result of her injuries. Plummer v. City of Milan, 70 Mo. App. 598; Evans v. Joplin, 76 Mo. App. 22; Fullerton v. Fordyce, 121 Mo. 13; Freeman v.‘ Railroad, 95 Mo. App. 104.

Louis County Circuit Court. — Ho». John W. McElhinney, Judge. (1) The court erred in declaring the law to he that “before the mere production of a note will make primafacie proof of ownership, the indorsements of the payees must be shown by evidence.” Keim v. Yette, 167 Mo. 399; Ashbrook v. Letcher, 41 Mo. App. 371; Johnson v. McMurry, 72 Mo. 282; Reinhard v. Dorsey Coal Co., 25 Mo. 353. (2) The court erred in finding the fact and declaring the law to be “Mrs'.