Volume 243 — Missouri Reports

— Eon. W. A. Powell, Judge. (1) The deed of Talbott to White was absolute in form, but, as alleged by the bank in its answer and shown by unmistakable and uncontroverted evidence, made to secure the note sued on, without any claim or pretense of any extrinsic condition and is in law a mortgage.

<p>Appeal from Clark Circuit Court. — Eon. Charles D. Stewart, Judge.</p> <p>(1) The certificate of acknowledgment is not conclusive, and may be rebutted by other competent evidence. R. S. 1909, sec. 2820; Bohan v. Casey, 5 Mo. App. Ill; Ray v. Crouch, 10 Mo. App. 321; Riecke v. Westenhoff, 10 Mo. App. 358; Biggers v. Bldg. Co., 9 Mo. App. 210; Morrison v. McKee, 11 Mo. App. 594; Brooking v. Straat, 17 Mo. App. 296; Wannell v. Kem, 57 Mo. 480; Sharpe v. McPike, 62 Mo. 300; Steffen v. Bauer, 70 Mo. 399; Clark v.' Edwards, 75 Mo. 87; Help v. Mays, 79 Mo. 71; Drew v. Arnold, 85 Mo. 128; Webb v. Webb, 87 Mo. 541; Addis v. Graham, 88 Mo. 197; Hammond v. Gordon, 93 Mo. 223; Rust v. Goff, 94 Mo. 511; Mays v. Pryce, 95 Mo. 604; Pierce v. Georger, 103 Mo. 540; Barrett v. Davis, 104 Mo. 549; Comings v. Leedy, 114 Mo. 454; Elliott v. Sheppard, 179 Mo. 382; Engine Co. v. Donovan, 147 Mo. 622; Al-bright v. Stevenson, 227 Mo. 333. (2) The degree of proof required to impeach the certificate of acknowledgment is, that there must be a “clear and decided preponderance of the evidence” against the truthfulness of the certificate. Cases, supra. (3) Under the evidence adduced, the plaintiff is not estopped to maintain this suit, nor is she guilty of laches. R. E. Co. v. Lindell, 142 Mo. 50; Gindrat v. Railroad, 19 L. R. A. 839; 24 Cyc. 840; 12 Am. and Eng. Ency. Law (1 Ed.), p. 533; 16 Cyc., pp. 153, 155, 167, 679, 706; Bartlett v. Kauder, 97 Mo. 361; Howell v. Jump, 140 Mo. 441; Blodgett v. Pury, 97 Mo. 263; Gentry v. Gentry, 122 Mo. 221; City v. Lumber Co., 98 Mo. 613; Scmitchfield v. Sauter, 119 Mo. 615; Foote v. Saunders, 72 Mo. 616; Sturgeon v. Hampton, 88 Mo. 214; Allison v. Chaney, 63 Mo. 279; Cockrill v. Hutchinson, 136 Mo. 74; Reinhard v. Mining Co., 107 Mo. 627; Smith v. Ingram, 61 L. R. A. (N. S.) 878. (4) Neither the ten nor twenty-four years Statute of Limitations prevent plaintiff’s recovery. Salmon v. Davis, 29 Mo. 176; Keith v. Keith, 80 Mo. 127; Thomas v. Black, 113 Mo. 68; Sulton v. Casseleggi, 77 Mo. 397; Jones v. Manly, 58 Mo. 559; Brown v. Moore, 74 Mo. 633; State v. Moore, 61 Mo. 280; Hall v. French, 165 Mo. 430; Hunt v. Searcy, 167 Mo. 184; Dysart v. Crow, 170 Mo. 274; Graham v. Ketchum, 192 Mo. 25; McCarry v. King’s Heirs, 39 Am. Dee. 171. (5) The record of the deed in question did not impart notice to plaintiff. Crockett v. Maguin, 10 Mo. 29; Dingman v. McCullum, 47 Mo. 37'3; Morley v. Staley, 54 Mo. 419; Tydings v. Pitcher, 82 Mo. 384; Sessenderfer v. Kemp, 83 Mo. 588; Ford v. Church, 120 Mo. 511; Railroad v. View, 156 Mo. 617; 16 Cyc. 706; Dugal v. Fryer, 3 Mo. 40; Reinliard v. Mining Co., 107 Mo. 627; Smith v. Ingram, 61 L. R. A. (N. S.) 878; 24 Am. and Eng. Ency. Law, p. 146.</p> <p>(1) While equity cases are tried in the appellate courts de novo and the appellate court is not bound by the findings of fact nisi, but unless otherwise constrained by the record the court usually yields to the finding of facts so made. Benne v. Schnecko, 100 Mo. 250; Mathias v. O’Neil, 94 Mo. 530; Berry v. Hartzell, 91 Mo. 138; Springer v. Kleinsorge, 83 Mo. 159; Bushong v. Taylor, 82 Mo. 309; Chouteau v. Allen, 70 Mo. 336; McKinney v. Northcraft, 114 Mo. App. 146; Albright v. Stephenson, 227 Mo. 345. (2) The unsupported testimony of the grantor cannot overthrow the certificate of the officer taking the acknowledgment if the same conforms to the statute. Biggers v. Bldg’. Co., 9 Mo. App. 210; Biggers v. Westenhoff, -10 Mo. App. 258; Ray v. Crouch, 10 Mo. App. 321; Elliot v. Sheppard, 179 Mo. 382; Young v. Duvall, 109 U. S. 573; Llicking v. Hardin, 65 111. 505; Pringle v. Dunn, 37 Wis. 449; Phillips v. Bishop, 35 Neb. 487; Landers v. Boulton, 26 Gal. 606; Walter v. Weaver, 57 Tes. 569;. Deter v. Glasgo, 79 Pa. St. 79; Fitzgerald v. Fitzgerald, 100 111. 386; Harding v. Harding, 65 111. 505. (3) The character of the .evidence to impeach the certificate of the officer taking the acknowledgment and certifying thereto must be so clear, convincing as to amount to a moral certainty and beyond all reasonable doubt. 1 Am. and Eng. Ency. Law (2 Ed.), p. 560; Elliot v. Sheppard, 179 Mo. 382; Sweiger v. Sweiger, 58 W. Va. 119; Young v. Duvall, 109 U. S. 573; Chivington v. Colo. Springs Co., 9 Colo. 597; Brady v. Cole, 164 111. 116; Marden v. Dorothy, 12 App. Div. (N. V.) 188; Warwick v. Hull, 102 111. 280; Jett v. Rodgers, 12 Bush. (Ky.) -564; Smith v. Ward, 1 Am. Dec. 80; Bank v. McCarty, 149 N. T. 71; Thresher Co. v. Donovan, 147 Mo. 622; Commings v. Leedy, 114 Mo. 454; Barrett v. Davis, 104 Mo. 549; Pierce v. George, 103 Mo. 540; Mays v. Price, 95 Mo. 603; Rust v. Goff, 94 Mo. 511; Wehb v. Webb, 87 Mo. 540; Drew v. Arnold, 85 Mo. 128; Belo v. Mayes, 79 Mo. 67; Clark v. Edwards, 75 Mo. 87; Steffin v. Bauer, 79 Mo. 396; Sharp v. McPike, 62 Mo. 300; Wannell v. Kemm, 57 Mo. 458; Brooking v. Stratt, 17 Mo. App. 304; Morrison v. McKee, 11 Mo. App. 594; Riecke v. Westenhoff, 10 Mo. App. 358; Biggers v. Building Co., 9 Mo. App. 210. (4) Where the evidence is conflicting, a slight corroboration of the grantor is insufficient to overthrow the certificate of the officer taking the same. Kerr v. Russell, 18 Am. Rep. 634; Bank v. McCarty, 149 N. T. 71; Hetter v. Glaseo, 79 Pa. St. 79. (5) The court should receive the oral evidence in this case with great caution to impeach the regular certificate of the officer taking the acknowledgment, especially in this case where the date of the deed and acknowledgment shows it was executed, acknowledged and recorded more than twenty-six years ago. The officer who took same is long since dead as well the husband of Mrs. McCarty, who would have been a competent witness for her. Ringo v. Richardson, 53 Mo. 394'; 1 Ency. Evid., pp. 610, 611. (6) The acknowledgment to an instrument carries with it the adoption of the signature. Tunnison v. Chamblin, 88 111. 378; Bank v. McCarty, 54 N. T. 577; Vanfossen v. McGuire, 23 Iowa, 300. (7) The certificate of the officer taking the acknowledgment could not be impeached by the testimony of the husband and wife alone. Miller v. Marx, 52 Ala. 322; Smith v. McGuire, 67 Ala. 34; 1 Ency. Evid., 206. (8) The presumptions in favor of officers doing their duty apply to an officer taking acknowledgments of instruments. Addis v. Greenbaum, 88 Mo. 199. (9) It is not essential that the grantor sign the deed and it'is competent for the wife to affix her name by her husband as any other person. 2 Jones on Real Estate Conveyancing, sec. 1014, p. 8; First v. Deering, 21 Me. 156; Bartlett v. Drake, 100 Mass. 174.</p>

<p>1. ABATEMENT OF ACTION: Ejectment: Transfer of Property by Plaintiff: Revivor. An action in ejectment does not abate by reason of the fact that the original plaintiff, after judgment and pending appeal, conveyed the land in fee to another and then died. The method of revivor in the Supreme Court, after sci. fa. and upon stipulation bringing in the heirs and legal representatives of the respondent, was the proper and only method in which the action could have been revived in this court, except by consent of all the parties in interest entered of record.</p> <p>2. LEASE: Ending Term: Ejectment. A lessor may not bring ejectment for the premises before terminating a letting thereof in the manner prescribed by law.</p> <p>3. -: Tenancy from Year to Year.' A lease set out in the opinion is held to create a yearly tenancy, and a holding over continued the same tenancy, since that- was the intention of the parties.</p> <p>4. -: -: Ending Term: Notice. A tenancy from year to year can only be ended by the giving, not less than sixty days before the end of the year, of notice in writing by the landlord to terminate the same.</p>

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The motion of respondents, on file in this case, to have the judgment of the circuit court affirmed, or the appeal dismissed, should be sustained: (a) Because no proper affidavit of appeal was filed in this cause. Hence this court acquires no jurisdiction to hear this appeal. Peters v. Edge, 87 Mo. App. 283; Rosenberger v. Express Co., 155 Mo. App. 627.

— Eon. F. G. Johnson, Judge. (1) The court erred in permitting counsel for defendant, in his opening statement, to state to the jury: “I allege they were fully insured, and were fully paid by the insurance company, that the insurance company took a subrogation and there is no authority for the plaintiffs to sue.” And the court erred in overruling plaintiff’s objection to that statement. Gore v. Brockman, 138 Mo. App. 231; Fuller Co. v. Dassagh, 101 111.

— Ron. Charles D. Stewart, Judge. (1) The contract being a note payable in Iowa and the parties residing there and a mortgage securthe same on land in Missouri, the entire contract, including the right of the parties thereunder, is governed by the laws of Iowa at the time the contracts were made and entered into in said State — the law with which the parties were familiar and by which they are presumed to be governed. Thurston v. Rosenfield, 42 474; Ins.

— No». Nat M. Shelton, Judge. (1) An action brought against a life tenant only, and a sale of the land under the judgment rendered therein, does not affect the title of the remaindermen. McCune v. G-oodewillie, 204. Mo. 341. (2) There could be no adverse possession against the remainderman as it was the duty of the life tenant to pay the taxes, and the remainderman had no right to possession until the death of the life tenant. McCune v. Goodewillie, 204 Mo. 341.

— Hon. James D. Barnett, Judge. (1) A divorce proceeding is a proceeding in rem. Anderson v. Anderson, 54 Mo. App. 268; Hedrix v. Hedrix, 103 Mo. App. 40. (2) Strict compliance with, the statute is required when constructive service is substituted for actual service. Burge v. Burge, 9'4 Mo.

<p>Appeal from Nodaway Circuit Court. — Eon. W. G. Ellison, Judge.</p> <p>(1) The evidence in this case is clear and positive and amply meets every requirement of the law as to the making and performance of the contract and fully justifies the court in enforcing the contract in suit. Porrister v. Sullivan, 231 Mo. 345; Collins v. Harr el, 219 Mo. 279; Kirk v. Middlebrook, 201 Mo. 291; Berg v. Moreau, 199 Mo. 416; Lynn v. Hockaday, 162 Mo. 125; Alexander v. Alexander, 150 Mo. 594; Hall v. Harris, 145 Mo. 614; Sutton v. Hayden, 62 Mo. 101; Grupton v. Grupton, 47 Mo. 37. (2) The removal of plaintiffs from the Dooley farm, where they lived at the time the contract sued on was made, to the Bohannan farm, and the faithful performance of the contract by plaintiffs, in a manner entirely satisfactory to Tilman C. Bohannan, the other party to the contract, for a period of over six years is sufficient consideration. Berg v. Moreau, 199 Mo. 416; Sutton v. Hayden, 62 Mo. 114; Typewriter Co. v. Realty Co., 220 Mo. 522; Williams v. Jenson, 75 Mo. 681; Lindell v. Rokes, 60 Mo. 249; 6 Am. and Eng. Ency. Law (2 Ed.), 703.</p> <p>In urging an affirmance of the judgment and decree of the trial court in this case, we place our -reliance on the same cases cited by appellants, together with a few others which are no stronger, but which merely show that the law on this subject announced in the latest decisions of this court, has its foundation in an unbroken line of decisions to the same effect. A more complete list of these recent cases on specific performance of parole contracts would include the following : Porrister v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209’ Mo. 552; Kirk v. Middlebrook, 201 Mo. 289; Berg v. Moreau, 199 Mo. 416; Russell v. Sharp, 192 Mo. 285; Rosenwald v. Middlebrook, 188 Mo. 58; Grrantham v. Glossett, 182 Mo. 651; Ashbury v. Kirklin, 181 Mo. 658; McKee v. Iligbee, 180 Mo. 263; McElwain v. McElwain, 171 Mo. 244; Kinney v. Murray, 170 Mo. 674; Lynn v. Hockaday, 162 Mo. Ill; Steele v. Steele, 161 Mo. 566; Alexander v. Alexander, 150 Mo. 579; Hall v. Harris, 145 Mo. 614. The Forrister case contains rules applicable to cases in which it is sought to enforce a parole contract in the teeth of the Statute of Frauds. The announcement there is simply a more explicit statement of the doctrine laid down in Kirk v. Middlebrook, 201 Mo. 289,-and quoted with approval in Collins v. Harrell, 219 Mo. 318.</p>

Charles Circuit Court. — Hon. J. D. Barnett, Judge. (1) The court erred in refusing to direct a verdict, for the reason that plaintiff’s evidence and the undisputed and indisputable physical facts established, that the insulation in the wires was performing its functions perfectly until within a few minutes before plaintiff was injured, and appellant was not shown to have been guilty of negligence thereafter. Strack v. Tel. Co., 216 Mo. 601; Clonts v. Gras Co., 144 Mo.

— Hon. A. D. Burnes, Judge. The second assignment of the trial court in the order granting a new trial, to-wit: “The verdict is against the weight of the evidence,” is erroneous.

<p>1. ADMINISTRATION: Administrator Pendente Lite. The office and powers of a provisional administrator, appointed to have charge of the assets and to preserve the estate during the pendency of a suit to determine the validity of a will which had named the widow as executrix, became functus officio immediately upon a final judgment upholding and sustaining the will, and the executrix instanter became qualified to act and to resume possession of the effects.</p> <p>2. -: -: Appeal from Order by Executrix: Moot Case. Where the probate court, upon the filing of a suit contesting the will under which the wife was executrix, and the appointment of an administrator pendente lite, made an order rescinding a former order of partial distribution and requiring the widow to turn over- to said provisional administrator the personal property previously distributed to her, from which she prayed an appeal, and it being denied, she obtained an absolute mandamus compelling the appeal, the appeal of the probate judge from .this judgment of the circuit court becomes a moot case upon- a final judgment sustaining the will.</p>

— Eon. C. A. Mosmcm, Judge. In view of the fact that the main case, the will contest case, has been determined for more than two years, this case may well be considered a moot case.

<p>Appeal from Buchanan Circuit Court. — Eon. C. A. Mosman, Judge.</p>

— Hon. Louis Hoffman, Judge. No particular form or ceremony is necessary to dedicate land for the purpose of a cemetery. An express setting apart of land for such, a purpose by tbe owner may constitute a dedication of tbe land as a. burial ground and where there was evidence of an intent to dedicate, no particular form is necessary.

Louis City Circuit Court. — Eon. R. M. Foster and Eon. Virgil Rule, Judges.

<p>1. CITIES: Ordinances: Conformity to State Laws. All of the ordinances of the city of St. Louis must conform to relevant state laws, and they are invalid in so far as they are inconsistent therewith.</p> <p>2. -: Powers. A municipal corporation possesses and can exercise the following powers only: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, hut indispensable. Any fair, reasonable doubt concerning the existence of a power is resolved by the courts against the corporation, and the power is denied.</p> <p>3. -: -: Nuisance. A municipal corporation has no power by ordinance to declare that to he a nuisance which is not so in fact, or to suppress in part or in toto any business within its limits which is not a nuisance per se.</p> <p>4. -: -: -: Wood Turning. The maintenance within six hundred feet of Tower Grove Park in the city of St. Louis of a manufacturing plant for making altars, chancels and carved wood, in which plant three saws are operated, is not a nuisance per se, nor had it become a nuisance as carried on by the defendant. Hence the city of St. Louis had no power under its charter to prohibit or abate such manufactory. The city had no specific power under its charter to regulate it, nor any authority so to do under the general welfare clause or as a police regulation.</p> <p>5. -: Police Power. The police power is a necessary and wholesome faculty of municipal government, hut it extends only to the regulation of employments prejudicial to the public safety, health, morals and good government of the citizens, and it “ends where those public interests are not beneficially served thereby.” It cannot sanction the confiscation of private property for aesthetic purposes.</p> <p>6. -: Powers: Unwarranted Exercise: Ordinance Forbidding Wood Turning Shop: Constitutional Question. A provision in a city ordinance of St. Louis forbidding the maintenance of a manufacturing plant of any size within 600 feet of Tower Grove Park, is held to be an unwarranted exercise of power by the municipal assembly, unreasonable on its face, and if applied to the calling of defendant — that of making wooden chancels, altars, etc. — it would deprive him of the full use of his property without compensation and without due process of law. It is therefore void.</p>

Louis City Circuit Court. — How. Daniel G. Taylor, Judge. The court erred in giving defendant’s instruction, which was in the nature of a demurrer, at the close of all the evidence, and after arguments and submission of briefs and the taking of them under advisement by the court, for the following reasons: (1) The testimony of the plaintiff, together with the finding and order of the Board of Railroad and Warehouse Commissioners, made a case of an unlawful, unreasonable and…

— Eon. F. E. Trimble, Judge. (1) To maintain partition the parties plaintiff and defendant must together have an actual estate in the lands sought to be partitioned. R. S. 1899', sec. 4373' (now sec. 2559', R. S. 1909); McCabe v. Hunter, 7 Mo. 365; Welsh v. Anderson, 28 Mo. 293; Donaldson v. Allen, 213 Mo. 293.

— Mon. L. J. Eastin, Judge. (1) The decree of the circuit court is not sustained by the evidence, is against the evidence and the weight of the evidence. (2) This case is here to be tried, if at all, upon the evidence before the court, and not upon a review of errors. It is to be tried de novo, according to the decisions of this eourt heretofore rendered in such cases.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The court erred in sustaining demurrer to petition thereby holding that this was not the same as the previous caso. Johnson v. Railroad, 227 Mo. 423. (2) The court erred in sustaining demurrer to petition thereby holding that the petition did not state facts sufficient to constitute a cause of action. Bent v. Priest, 86 Mo. 475; Ward v. Davidson, 89 Mo. 458; Story on Agency, sec. 207; Chinn v. Chinn,' 22 La.

— Hon. James E. Goodrich, Judge. (1) The court erred in giving instruction 1 for plaintiff. It submits the case to the jury on an issue not raised by the pleadings, and on acts of negligence not pleaded in the petition, namely, the failure of the agents of defendant in charge of the car to observe the rule of the last chance doctrine. No such negligence is alleged in the petition; nor is ther'e any evidence in the record on which to base that instruction.

— Eon. J. L. Fort, Judge. (1) Plaintiff was a mere licensee to whom appellant owed no duty except not wilfully or wantonly to injure him. Wencker y. Railroad, 169 Mo. 592; Carr v. Railroad, 195 Mo. 241; Mann v. Railroad, 86 Mo. 347; Woods v. Railroad, 149 Mo. App. 507 ; Dowd v. Railroad, 84 Wis. 105; Gillis v. Railroad, 59 Pa. St. 143; Railroad v. Schwindling, 101 Pa.

Louis City Circuit Court. — Row. Hugo Muench, Judge. The trial court, having ruled that plaintiff was entitled to sue in the State court and that the statute forbidding pools, trusts, conspiracies and discriminations, did not apply to this case, but that plaintiff was not entitled to recover under the act of Congress; this was not a ruling whereby there was drawn in question the validity of the act of Congress.

— Hew. F. G. Johnston, Judge. (1) The court erred in admitting incompetent and illegal evidence offered by the defendant. Mr. Waterman, defendant’s manager and superintendent testified, he was mining engineer; belonged to the “Association of American Engineers;” had been since 1896 engaged in practical mining; had loaded shots and put them off.

— Rem. John 0. Park, Judge. (1) Respondents’ action is one to establish, an implied trust. A careful review of respondents’ amended petition in this cause discloses that the pleader therein attempts to state facts tending to establish a trust. No other theory is presented by the petition or the evidence. There is no claim of a declaration in writing signed by appellant, hence no express trust is established or sought to be established.

<p>1. CONSTITUTIONAL LAW: Anti-trust Statutes. The Missouri Anti-trust Law (R. S. 1899, Secs. 8965, 8966, 8968 and 8974, amended R. S. 1909, vol. 3, chap. 98) violates neither the State nor Federal Constitution, and’ it governs the transactions in business in this State.</p> <p>2. -: Contentions Already Decided: Court of Appeals: Jurisdiction. Where constitutional contentions are no longer debatable, the Supreme Court will treat their reassertion as frivolous, and will not permit it to dislodge the otherwise rightful jurisdiction of the Court of Appeals.</p> <p>3. -: Cause Transferred to Court of Appeals: Error to United States Supreme Court. If, after the re-transfer of this case to the St. Louis Court of Appeals, as ordered, its conformity to the decisions of the Supreme Court should be thought by appellant to deny it any right or privilege guaranteed by the Federal Constitution, then a writ of error will lie from that court direct to the Supreme Court of the United States, for in all matters not excluded from its jurisdiction that court is one of final resort.</p>

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. The court erred in denying the application of the defendant for removal of this case to the United States Court after the plaintiff had taken a nonsuit as to the two individual defendants who were originally joined.

Louis City Circuit Court. — Hon. G. H. Williams, Judge. (1) Under the code, the plaintiff -will not be turned out of court unless three petitions have been adjudged wholly insufficient. If any be attacked by motion to strike out parts, and enough remains to state a cause of action, it is not adjudged “insufficient,” within the meaning of the statute. Tool Co. v. Spring Co., 122 Mo. App'. 603.

— Row. R. C. Riley, Judge. (1) The sheriff’s deed in controversy is invulnerable, legal and good in all respects and the trial court could not legally decree it null 'and void and cancel it. Said deed being good, defendants obtained, through mesne conveyances from said deed, whatever title, if any, plaintiffs’ ancestors had in said land.

— Eon. J. T. Neville, Judge. (1) Ballots at an election cannot, under the Constitution, article 8, sections 3 and 9, be opened and inspected, except in cases of contested elections. (2) Quo warranto proceeding is not a contested election case within the meaning of the Constitution, and ballots cannot be inspected therein.

<p>1. APPEAL: Evidence: Objections: Order of Publication. The point that an order of publication failed to contain a recital, in express terms, that the court in directing it had designated the newspaper most likely to inform the defendants, is not raised on appeal by an objection to the effect that the court had not in fact selected a newspaper most likely to give notice.</p> <p>2. ORDER OF PUBLICATION: Designating Paper. Where the statute provided, with reference to orders of publication, that they should he printed in some newspaper “published in the county where the suit is instituted, if there be a newspaper published there; if not, then in some newspaper published in the State, which the plaintiff . . . may designate as most likely to give notice to the person to he notified,” the last clause, requiring a designation of a paper, applies only when the publication is ordered in a paper published in the State, and does not apply when publication is ordered “in some newspaper published in the county where the suit is instituted.”</p>

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The indictment fails to state sufficient facts to constitute a violation of section 4565, Revised Statutes 1909. (2) The verdict is against the overwhelming weight of the evidence. (3) The court erred in permitting Ora B. Ridgeley to testify that she was engaged to marry the defendant when he obtained a divorce from his wife; and that he told her she was a disreputable person.

— Hon. F. H. Trimble, Judge. (1) Until a will is probated it is not effective to pass title. Shaffer v. Howerton, 123 Mo. 637; Dublin v. Chadbourn, 16 Mass. 433; Bacon v. Railroad, 145 HI. App. 502. (2) Probate in common form is as final ,...and conclusive after the lapse of the statutory period for contest as probate in solemn form. Crippen v. Dexter, 79 Mass. 330; Wells v. Wells, 4 T. B. Monroe, 152; Duncan v. Duncan, 23 111. 324; Parker v. Parker, 65 Mass. (11 Cush.) 519.

— Hon. D. E. Blair, Judge. (1) The motion to quash the information is not preserved in this bill of exceptions, but is incorporated in the record. This information is so drafted that- it charges the defendant with an assault upon Doreene Decatur, and also charges him with the crime of carnal knowledge of Doreene Decatur, an unmarried female of previous chaste character between the ages of fourteen and eighteen years; all in one count and is multifarious for that reason.

— Hon. G. W. Wannamaker, Judge. (1) The supplied information in this case was supplied without any showing being made that it was a true copy of the original information and therefore it is a nullity. State v. Simpson, 67 Mo. 647; State v. Burks, 132 Mo. 363; State v. McCarver, 194 Mo. 717; State v. Wilson, 200 Mo. 28; Jordan v. Vaughn, 104 Mo. App. 112.

— Hon. F. H. 1 Trimble, Judge. (1) The plea in abatement should have been sustained for the reason that the defendant was not accorded a preliminary examination. Laws 1907, sec. 2476a. This ease was appealed before decision in case of State v. Schenk, 238 Mo. 429, and we ask the court to again consider this point.

— Eon. J. D. Perkins, Judge. The court erred in giving instruction 6 for the State upon flight, 'and in refusing to give instruction 25 for defendant upon mob violence. State v. Minor, 193 Mo. 597; State v. Foster, 130 N. C. 666; Smith v. State, 106 Ga. 673; State v. Gates, 20 Mo. 461; State v. Reed, 137 Mo. 125; State v. Hyeron, 157 Mo. 395. Threats made by appellant were admissible even a week or two prior to the homicide. State v. King, 203 Mo. 560; Underhill on Crim.

Louis City Circuit Court. — Row. Eugene McQuillin, Judge. (1) The court erred in admitting the testimony as to the arrest of defendant, on the charge of arson, at least twenty days before the commission of the crime with which this defendant is charged, the testimony being incompetent and irrelevant in that such testimony is prejudicial to defendant and tends to prejudice the minds of the jury against him and was compelling defendant to meet charges of which the information…

Louis City Circuit Court. — Row. Hugo Muench, Judge. (1) The court permitted the plaintiff during the trial to amend its petition, so as to substitute new causes of action in lieu of the one at first declared upon, and to recover upon causes of action not declared upon in its petition.

— No». Thomas J. Seehorn, Judge. (1) The barber law in question is void so far as it prohibits the students of a barber college or their teachers from charging for their services. 1st, because that law prevents them from the “enjoyment of the gains of their own industry,” contrary to sec. 4, art. 2, of the Constitution, and is a special law regulating labor, contrary to sec. 5® of art. 4 of that document.

— Hon. W. H. Martin, Judge. (1) By an examination of the evidence it will he observed that plaintiff fell far short of making- a case under the statute requiring the guarding of machinery or posting notices of danger.

Louis City Circuit Court. — Hon. Hugo Grimm, Judge. (1) The fault of instruction one lies in the fact that it assumes that there was evidence of a common intent and agreement or a conspiracy between Roussin, Robare and- the appellant. There is no evidence whatsoever to indicate this theory or justify this as-, sumption..

— Son. J. M. Williams, Judge. (1) The demurrer ought to have been sustained. There was no evidence that Steinkraus ever applied for a policy of insurance on his building; no evidence that he paid the premium on said policy; no evidence of the delivery of said policy to him; and no evidence that he knew of the issuance of any such policy, if one were issued.

— Hon. Samuel Hams, Judge. (1) Courts will interpret, not make, contracts for the parties. Indem. Co. v. Mining Co., 154 Fed. 554; Mining Co. v. Ins. Co., 126 Mo. App. 104; Grocer Co. v. Canning Co., 129 Mo. App. 325; Diederick v. Eose, 228 111. 610. (2) Failure to make discovery of alleged loss, to give notice thereof, to make claim therefor or proof thereof, according to the requirements of the bond, (a) Construction of bond and diligence in discovering loss.

— Hon. N. D. •Thurmond, Judge. The judgment is illegal, cruel and unusual, and unconstitutional. Defendant was prosecuted for violation of sec. 4709, R. S. 1909, and the punishment is provided for by sec. 4912 and is a fine, and imprisonment in the county jail, or both.

— Hon. W. 8. C. Walker, Judge. (1) The State files its motion to dismiss appeal, and bases same upon, the provisions of Sec. 5313, R. S. 1909. The transcript in this case was filed with the clerk of this court on March 1, 1912. The appeal was granted by the circuit court of Dunklin county to this court on August 16, 1910.

Habeas Corpus. (1) Sec. 12 of the Motor Vehicle Act of 1911, upon which the information in this case is bottomed, is unconstitutional and void because it requires the operator of an automobile, in violation of sec. 23 of art. 2 of our Constitution, to give information which may lead to his being charged with or convicted of a crime. State ex rel. v. Hdw. Co., 109 Mo. 118; People v. Eosenheimer, 128 N. T. Supp. 1095; People v. Eosenheimer, 130 N. Y. Supp. 544.

Louis City Circuit Court. — How. D. D. Fisher, Judge. (1) A father has a right to give property to his sou on condition by will or otherwise and retain the title, giving to the ¿son the income, and creditors have no right to complain. Such a gift does not become effective to pass title and may be revoked at any time and the record title put in the donor. Partridge v. Covender, 96 Mo. 452; Roden v. Helm, 192 Mo. 86.

Prohibition. (1) Action affecting the title to real estate must be brought in the State in which the lands are located. Brown on Jurisdiction, p. 131; Story on Conflict of Laws, p. 545. (2) Under the statute of Missouri and the decisions of this court, suits affecting the title to real estate must be brought not only in the State in which the lands are located, hut in the county in which they are located.

Habeas Corpus. (1) The record in this case affirmatively shows that the petitioner was not in contempt of court and did not refuse to answer questions asked him by the foreman of the grand jury, and a court has no power or authority to punish one for something that in point of law and fact is not a contempt of court. State ex rel. v. Lazarus, 37 La.

Mandamus. (1) When the Court of Appeals is not given jurisdiction of a class of cases by the Constitution, such jurisdiction cannot be conferred by consent of parties. State ex rel. v. Nixon, 232 Mo. 496. (2) Mandamus is proper procedure to compel Court of Appeals to transfer a case to this court on the ground that this court has exclusive jurisdiction of the appeal. State ex rel. v. Smith, 177 Mo. 69.