Volume 253 — Missouri Reports

— Hon. William D. Rusk, Judge. (1) The only legal standard of duress- seems to-be that the person so acted upon by the threats must be bereft of that quality of mind essential to the making of a contract, and the condition of mind must be such as to destroy the will. Woods v. Tel. Co., 223 Mo. 558. (2) Free agency and the will must be destroyed by the threats of imprisonment.

<p>APPELLATE JURISDICTION: Removal of Mortgage as Cloud on Title: Extension of Note: Release of Surety. A suit to have a certain deed to a tract of land, made by the signer of the note, who was the owner of the land, declared to be a mortgage, on the ground that said signer was a surety, and the note was not paid at maturity, and the payee extended the time of payment, in consequence of which the said surety was released from further liability thereon, and the deed or mortgage was in law satisfied, and praying that it be removed as a cloud upon the title of plaintiff, who claims under a subsequent deed of trust made by the said surety, does not involve title to real estate. The determination of the only question involved, namely, whether the mortgage was satisfied by reason of the alleged extension of the time of payment without the consent of the surety, does not involve the title to the land conveyed by the deed.</p>

— Hon. C. A. Mosman, Judge. If Margaret Kaiser sold this property according to what seemed to her to he her best interest, then she exercised the right given her by the will, and, the judgment should be reversed.

— Hon. Nat. M. Shelton, Judge. (1) The law is well settled that to establish adverse possession in one cotenant against another, there must be such outward acts of exclusive ownership as to impart notice to the cotenant that an adverse possession is intended. Misenheimer v. Amos, 221 Mo. 362; Benoist v. Rothschild, 145 Mo. 408; Warfield v. Lindell, 30 Mo. 282; Huston v. Huston, 139 Mo. 236.

— Hon. J. G. Sheppard, Judge. (1) The court erred in refusing to give to the jury plaintiff’s instruction numbered one in the nature of a peremptory instruction to find for the plaintiff; there was no evidence whatever to sustain the defendant’s defense that the strip of land in controversy had become a street by user ¡and therefore, there was no defense to be submitted to the jury. 28 Cyc. '832, 841, 853; Reed v. Erie, 79 Pa.

Louis City Circuit Court. — Ron. James E. Withrow, Judge. Transferred to St. Louis Court of Appeals. (1) The court erred in overruling the demurrer because section 1026 is in conflict with article 11, section 8, of the Constitution, and void. All fines go to the school fund, notwithstanding the direction in a statute to divert them to other sources. State ex rel. v. Warner, 197 Mo. 664.

— lion. A. I). Burnes, Judge. (1) It is the well-established rule of pleading that every fact the plaintiff, in order to recover, must prove, must be pleaded and alleged in the pleading, so that the issue can be-made thereon.' Shohoney v. Railroad, 223 Mo. 671; Nervins v. Moore, 221 Mo. 357; Verdin v. St. 'Louis, 131 Mo. 151; Lantz v. Krug, 93 Mo. 513; Pier v. Heinrich, 52 Mo. 336; Murphy v. Wilson, 44 Mo. 317.

— How. John M. Williams, Judge. (1) The possession of the east half did not defeat plaintiff’s claim as to the west half although both were included in defendant’s deed, unless there was possession of a portion of the west half and that possession must comply with the statute as to open, adverse and notorious. Eotlirock v. Lumber Co., 80 Mo. App. 510.

— Hon. R. G. Raney, Judge. (1) (a) See. 5425-, R. S: 1909, violates See. 28, Art. 2, of the Constitution of Missouri, in that it deprives the defendant in a civil action of the right of trial hy jury as heretofore enjoyed. Bartling v. Jami-son, 44 Mo. 141. (b) Said section further violates Sec. 30, Art. 2 of the Constitution in that it deprives this defendant of property without due process of law.

— Hon. N. D. Thurmond, Judge. (1) Error was committed by the trial court in entering a judgment of partition, as the undisputed evidence showed that the defendants Stephen M. Cheek and Mary E. Cheek, his sister, were holding this, land adversely to the plaintiffs, and to all others, claiming title thereto by virtue of the deed from Sophia E. Hutts, to Stephen M. Cheek, and by virtue by the will of John Hutts deceased.

<p>1. ABSTRACT: Narrative Form: Requisites: Showing Appeal. An abstract of the record which shows the date of the suit, sets out the pleadings in haee verba and, after the statement “Entries of the Court,” follows with the judgment an an abbreviated narrative of the proceedings thereafter and closes by saying “End of Record Proper,” is not rendered defective by the use of the abbreviated narrative style — rather should that style be commended. And the appeal is sufficiently shown by an entry that appellant on a stated day “filed in due form its affidavit for appeal . . . and the trial court finding the same sufficient (after approving the appeal bond)” granted the appeal.</p> <p>2. -: Amendments: Bill of Exceptions. Respondent’s additional abstract, a certified copy of the entire record proper, demonstrated that the entries in appellant’s abstract of the record showing the extension of the leave to file the bill of exceptions so as to cover the time of its actual filing, and the order showing that it was signed and filed, were not to be found in the records of the trial court. Held, that, under the. circumstances of this case, amendments to the appellant’s abstract must be disallowed which consist of a copy of a written order of the judge of that circuit, made in vacation, extending the leave for filing the bill of exceptions, and of a certificate of the clerk that the bill had been filed in vacation, which amendments were submitted to the Supreme Court after the final submission of the case. It follows' accordingly that the bill of exceptions cannot be considered by the Supreme Court.</p> <p>3. APPEAL: No Bill of Exceptions: Record Proper Examined. • Where the bill of exceptions cannot be considered the Supreme Court will examine the record proper and if no error is apparent therein the judgment will be affirmed.</p>

— Eon. Walter A. Powell, Judge. (1) The court erred in overruling the demurrer interposed at the close of plaintiff’s evidence and renewed at the close of the case on the ground that under the pleadings and the evidence there could he no recovery, (a) The evidence does not support the allegations of the petition. Plaintiff must plead and prove every fact necessary in order to entitle him to recover. R. S. 1909, sec. 1794.

— Ho». G. A. Mosmcm, Judge. . The contract entered into and referred to in this case is clearly a contract for the conveyance of real «state, that is for the parties to divide; the real estate in which they all had an interest in common, and to execute deeds to each other for .a division of same, conveying all their undivided interest in the parcels assigned to each person and as the contract is fair, just and reasonable and the appellants at all times being willing to carry…

— Ho» Nat. M. Shelton, Judge. Plaintiff was entitled to a decree for the property .as against the defendant without regard as to how he held the title thereto, or how he acquired it. Clark v. Cordry, 69 Mo. App. 6; Koch v. Hebei, 32 Mo. App. 103; Wright v. Tinsley, 30' Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Alexander v. Alexander, 150 Mo. 579 ; McQuitty v. Wilhite, 247 Mo. 163.

— How. Arch.B. Davis, Judge. The petition of the plaintiff fails to state facts sufficient to constitute a cause for action. There is no allegation in the petition that the plaintiff was the owner of and entitled to the possession of the land described in the petition at the time of the commencement of this suit, or the filing of the petition. There is no allegation that the defendant was in posession when the suit was commenced.

<p>EJECTMENT: Evidence. Evidence in ejectment for city lots held insufficient to support a judgment for the plaintiff.</p>

— Ron. N. D. Thurmond, Judge. (1) The court should have submitted to the jury the issue of undue influence, as the evidence was substantial enough to raise a presumption of undue influence and was substantial enough to show undue influence without the presumption, (a) Where one stands in a confidential or fiduciary relation to testator and a will is made in his favor there is a presumption of undhe influence.

— Eon. Joseph J. Williams, Judge. (1) The amended petition upon which the ease was tried fails to state facts snfficent to constitute a •cause of action. Turner v. Hunter, 225 Mo. 71; Verden v. St. Louis, 131 Mo. 112. (2) The petition will not support a judgment for lack of any averment therein of the capacity of the defendant to be sued. The' burden was on the respondents, to plead such capacity. Railroad v. Express Co., 145 Mo. App. 375; 5 Ency. PI. & P.r. 73.

- — Hon. Joseph' J. Williams, Judge. (1) (a) The jurisdiction of the prohate court of Reynolds county to order a sale of the real estate in controversy, attached upon the filing of the petition of the administrator, accompanied by the lists the law requires and the inventory of the property belonging to estate. ' Overton v. Johnson, 17 Mo. 422; Mount v. Valle, 19 Mo. 621; Grayson v. Weddle, 63 Mo. 523;-Patte v. Thomas, 58 Mo. 173; Freeman, Void Judicial Sales (4 Ed.), 63.

<p>SUPREME COURT: Jurisdiction: Constitutional Question: Settled by Former Cases. When a constitutional question raised before the Supreme Court has been settled by that court in other cases before the date of the appeal, the court will not entertain jurisdiction on that ground.</p>

— Eon. W. N. Evans, Judge. (1) A representation as to the legal effect of a paper or document will not support an action for fraud. 20 Cyc. 19; MeNealy v. Balbridge, 106 Mo. App. 11; Beck & Pauli Lith. Co. v. Obert, 54 Mo. App. 247. The petition alleges fraud, if anything at all, and charges that defendant knew his representations to be false.

Louis City Circuit Court. — Hon. G. G. Hitchcock, Judge. (1) The court erred in holding that the evidence tended to prove that the relator was willing to commit a criminal abortion on the person of Susie Davis for one hundred dollars or any other sum. There is absolutely no evidence to show what medical conclusions might be drawn from the letters to the physician.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) Havlin’s payment to the bank, if made under mistake at all, was made under mistake of law, and, therefore, cannot be recovered. Hethcock v. County, 200 Mo. 170; Brewing Co. v. St. Louis, 187 Mo. 367; Niedermeyer v. Curators, 61 Mo. App. 654; State ex rel. v. Stonestreet, 92 Mo. App. 220; Teasdale v. Stoller, 133 Mo. 651; Douglas v. Kansas City, 147 Mo. 428; Scott v. Ford, 68 L. R. A. 469.

— Now. Ralph S. Latshaw, Judge. (1) The information filed fails to state a cause of action. The section of statute under which this case was tried is as follows: Sec. 4726, R. S. 1909. The statute is in derogation of common law, and must be strictly construed. At common law sodomy is the carnal copulation by human beings with each other against nature or with a beast, in which sense it includes crimes against nature, bestiality and buggery.

— Eon. Samuel Davis, Judge. (1) The application for change of venue on account of prejudice of the inhabitants of the county should have been sustained. State v. Goddard, 146 Mo. 181; State v. Burgess, 78 Mo. 234; Randle v. State, 28 S. W. (Tex.) 953; Higgins v. Com., 94 Ky. 54; Draughan v. Com., 45 S. ~W. 368; Ex parte Chase, 43 Ala. 303; Birdson v. State, 47 Ala. 74; People v. You-1mm, 53 Cal. 566; State v. Billings; 77 Iowa, 417; Gallaher v. State, 40 Tex. Or.

<p>Appeal from Franklin Circuit Court. — Eon. R. A. Breuer, Judge.</p> <p>Transferred to St. Louis Court of Appeals.</p>

— Now. G. N. Skinker, Special Judge.' (1) The form of this information has been expressly approved. State.v. Faulkner, 175 Mo. 546; State v. Walker, 194 Mo. 367; State v. Cave, 81 Mo. 450; State v. Ruckeby, 87 Mo. 414; State v. Powers, 136 Mo. 194. An information, is not bad for duplicity because several distinct assignments of perjury are contained therein.

<p>APPEAL: Not Timely Perfected. The statute allows but twelve months in a second degree murder case in which to perfect an appeal by the filing of a transcript of the record in the Supreme Court, and if more than that time expired after the appeal' was taken before it was perfected, the appeal will be dismissed, in the absence of a showing of good cause for the delay.</p>

— Hon. John T. Moore, Judge. (1) Defendant is charged with the specific offense of mayhem with the intent to maim and disfigure, and not with the intent to kill, maim and disfigure under Sec. 4480, R. S. 1909. One could be convicted of mayhem with intent to kill, and without any intent to maim and disfigure, and vice versa; so the statute creates, in a sense, two separate and distinct offenses. And in this case it was improper to give to the jury instruction numbered one.

— Hon. Alfred Page, Judge. (1) The evidence, considered as a whole, does not constitute sufficient corroboration of any promise of marriage by the defendant and accepted by the prosecutrix, and is not sufficient to overcome the legal presumption of innocence and the testimony offered by the defendant. State v. Long, 238 Mo. 383; State v. Teeter, 239 Mo. 475'.

Louis City Circuit Court. — lion. Kent K. Koerner, Judge. (1) The separate verdicts are responsive to the issues, and are amply sufficient to support the respective judgments entered in accordance therewith. State v. King, 194 Mo. 494; State v. Grossman, 214 Mo. 243; State v. Bishop, 231 Mo. 415. (2) The verdicts are supported by abundant evidence of the defendants’ guilt.

— Hon. J. G. ■ Slate, Judge. (1) There is a misjoinder of the two counts in the information, and the motion to quash should have been sustained, as also the motion in arrest. The first count charges Scott and this defendant with grand larceny, while the second count charges Scott with the larceny, and this defendant as an accessory after the fact. These crimes are created by different sections of the statute, require different proof and separate and distinct verdicts.

— IIón. W. 8. G. Walker, Judge. (1) The law of self-defense does-imply the right of attack. State v. McDonald, 57 Mo. 13; State v. Matthews, 148 Mo. 193; 25 Am. & Eng. Ency. Law (2 Ed.), 274 et seq. (2) The instruction on self-defense is inconsistent and misleading.

— Nora. B. G. Thurman, Judge. (1) This case should be reversed for the reason that the jury was not sworn to try this cause. They were sworn touching their qualifications to sit as jurors in the case, hut were not sworn and impaneled after their selection as jurors. State v. Mitchell, 199' Mo. 105; State v. McKinney, 221 Mo. 467; State v. Randolph, 139 Mo. App. 311; State v. Duncan, 237 Mo. 195; Lewis v. State, 51 Ala. 1; Harper v. State, 25 Ark. 83.

<p>1. APPEAL: Preserving Exceptions: Motion for Continuance Overruled. The trial court’s action in overruling appellant’s application for a continuance is not for review on appeal when there is no showing in the bill of exceptions that an exception was saved to the ruling.</p> <p>2. WITNESS’S REPUTATION: Collateral Issue: Discretion of Trial Court. Six witnesses testified for defendant that the general reputation of a State’s witness for truth and veracity was bad. For the State in rebuttal three witnesses testified that the general reputation of the witness in that regard was good. When, thereafter, defendant offered three additional witnesses to testify further concerning the general reputation of the witness, the trial court refused to admit their testimony. Held, not error. The general reputation of the witness was a collateral issue, and the trial court is allowed a rather wide discretion in limiting the number of witnesses that may testify on such issues.</p> <p>3. SELF-DEFENSE: Instructions: Reasonable Ground for Belief. In a prosecution for murder an instruction was, under the evidence of the case, rightly refused which in part declared that when a person has reasonable ground to apprehend that some one is about to do him great bodily harm, etc., “he may act upon appearances,” etc. An instruction given by the court fully covered the law of self-defense, and as to the above point told the jury that it was not necessary that the danger should have been actual, etc., but that the defendant must have believed and also had reasonable cause to believe that deceased was about to take his life or do him some great bodily harm; and that, in determining whether defendant had reasonable 9ause to so believe, they should take into consideration “all the facts and circumstances given in the case.”</p> <p>4. --: -: Continuing to Shoot: Evidence. Where there is no evidence tending to show that deceased was advancing toward defendant after the first shot was fired, defendant is not entitled to an 'instruction that if he “shot to prevent the deceased from killing him or doing him some great bodily harm then defendant had a right to shoot and keep shooting until such danger, or apparent danger, had passed.”</p> <p>5. HOMICIDE: Instructions: Presumption of Innocence: Point Already Covered. Defendant cannot complain of the refusal of an instruction as to the presumption of his innocence, when that matter was fully and fairly covered by an instruction given for the State.</p> <p>6. -: -: As to Bad Man or Good. In a prosecution , for murder where there is evidence that deceased was a bad man, it is not improper to instruct that “in law it is the same offense to kill a bad man as it is to kill a good man,” etc.</p>

<p>Appeal from St. Louis County Circuit Court . — Hon.. G. A. Wurdeman, Judge.</p>

<p>Appeal from Lincoln Circuit Court. — Eon. James D. Barnett, Judge.</p>

<p>1. APPEAL: Point Decided on Former Appeal. A point decided on a prior appeal is not for consideration on a second appeal of the same case, there being no change in the facts bearing on that issue.</p> <p>2. EXECUTORS: Conveyance of Lands. Where two executors have qualified, a conveyance of realty by one of them without the concurrence of the other is ineffective.</p> <p>3. -: -: Official Act: Showing of Authority. An executor in making a sale of realty under a power in the will acts officially, and in order that a conveyance by him may be effective his authority must appear on the deed with such certainty that the act done shall visibly be warranted by the power conferred.</p> <p>4. PARTNERSHIP: Real Estate: Death of Partner. After the death of a member of a partnership owning real estate the share of the deceased partner descends, after the payment of partnership debts and the winding up, to his heirs or devisees.</p> <p>5. -: -: -: Conveyance by Survivor. Where creditors made no claim to wild land owned by a partnership, and the surviving partner, after taking deeds from the executor and tlie heirs of his deceased partner (that from the executor proving void), conveyed to third parties, the conveyance of such surviving partner is held to have been made as sole owner and not as a partner by way of winding up.</p> <p>6. ESTOPPEL: Remaindermen: Acts of Life Tenants. Remaindermen are not .estopped from claiming their interest because of an attempted- sale of the fee by the life tenants (in this case the parents of the. remainderman) and a receipt of the proceeds by such life tenants.</p> <p>7. ESTATE IN REMAINDER: Limitations. Where land is limited by will to the children of the testator for life with remainder to their heirs and a provision that if any child of the testator shall die without issue his share shall be divided among the survivors, the share of any child so dying without issue does not vest in possession in the survivors until such death, and the Statute of Limitations does not begin to run until that time.</p> <p>8. COVENANTS OF WARRANTY: Liability of Heir: Advancements.- An heir is not liable on his ancestor’s covenant of warranty by reason of advancements.</p> <p>9. -: Liability of Devisee or Legatee. ‘ At common law a devisee or legatee was not liable out of the gift by reason of the testator’s liability on a covenant of warranty.</p> <p>10. COMMON LAW STATE: Presumptions. Georgia is one of the States originally, under the common law, and in the absence of any showing of a statute of that State, it will be presumed that the common law remains in force there.</p> <p>11. COVENANTS OF WARRANTY: Liability of. Devisee or Legatee: Residence in Georgia: Conveyance of Missouri Land. A resident of Georgia who is given property in that State by the will of her father, who lived there and whose estate was there administered, is not liable out of tl^e Georgia gifts on covenants of warranty made by her father in the conveyance of lands lying in Missouri.</p> <p>12. -: Liability of Appointee Under a Power. An appointee under a power takes from the donor of the power, not from the donee; and therefore, where a testator devised lands to his children for life, with a power of appointment by will in favor of their children, a son to whom property is so appointed by his father, a child of the testator, is not liable on the father’s covenant of warranty made in the conveyance of other lands.</p> <p>13. -: Liability of Wife Who Joins Her Husband in Conveyance of His Life Estate. A wife who joins with her husband in the execution of a power of attorney to convey lands in which the husband had a life estate, the power clearly showing that she had no interest other than as wife, is not liable on the covenants -of warranty in the deed made in execution of the power, out of a remainder in the same lands which vested in her on the death of her husband.</p> <p>14. ADVERSE POSSESSION: Life Tenant. A life tenant cannot, by his acts or declarations, set up pretensions to an absolute estate, so as to make his possession adverse to the reversioner or remainderman, those persons having no right of action until the particular estate has determined.</p> <p>15. SUIT TO QUIET TITLE: Remainderman: Particular Estate Pending: Limitations. A remainderman upon a pending life estate is not barred by limitations from bringing a suit to quiet title because ten or more years have elapsed since his right to bring such a suit first accrued or he was relieved of disability, even though the life tenant had attempted to convey, and his grantee claimed, the fee.</p> <p>16. -: Requisites: Limitations. The Missouri statute governing the action to ascertain interest or quiet title contemplates two or more adverse claimants and gives to each the right of action against the other regardless of the possession of the property. They may each allow ten years to elapse after knowledge of the other’s adverse claim without proceeding to quiet title. The statute will not, for such failure, bar the rights of both, and its language does not give preference to one over the other. It may develop in the course of the proceedings that some right claimed or some affirmative relief sought by the parties is barred by limitations, but the mere failure for ten years to sue under the statute after the right has accrued does not bar the right so to proceed thereafter.</p> <p>17. PARTITION: Allowance for Improvements. Upon partition in equity a tenant in common of real estate is entitled to an allowance for improvements made honestly and not, for the purpose of embarrassing his cotenants, encumbering their estate or hindering partition.</p> <p>18. -: -: Rents: Evidenc.e. Where the interests of plaintiffs, who are entitled to judgment in ejectment, are subject to the defendant’s claim for an allowance for improvements, plaintiffs are entitled only to their proportion of what the land would rent for without the improvements, and there being no evidence as to that no rents can be adjudged to them.</p> <p>19. -: Tenancy in Common: Adverse Possession. A disseizure on actual adverse possession destroys the unity of possession among tenants in common and takes away the right to partition until the title is determined by an action of ejectment.</p> <p>20. SUIT TO QUIET TITLE: Relying on Legal Title: No Partition. A plaintiff in a suit to establish, an equitable interest in land may in the same suit have partition, but such is' not the case when he counts solely on his legal title.</p>

<p>This case is decided in accordance with the opinion in Armor v. Frey, ante, p. 447, the facts being the same as those in tRat case.</p>

<p>This case is decided in accordance with the opinion in Armor v. Frey, ante, p. 447, the facts being the same as those in that case.</p>

<p>Appeal from Barton Circuit Court. — Hon. F. G. Johnston, Judge.</p>

— Hon. E. M. Bearing, Judge. (1) There is no testimony in this case tending in any way to show that the Washington-Providence Insurance Company was a corporation. This may be shown by general reputation, but there is nothing in the record to show it even in this way. State v. Jackson, 90 Mo. 156; Steele v. Tucker, 84 Mo. 23.

— Eon. Jamies D. Barnett, Judge. (1) The deed is the direct product of undue influence, duress and fraud and should be set aside. 1 Page on Contracts, secs. 204, 322; Bishop on Contracts, sec. 719; Smith on Fraud, sec. 103; Dingman v. Romine, 141 Mo. 466; Meier v. Buchter, 197 Mo. 91; Mann, Medical Jurisprudence of Insanity, p. 161..

' Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The court committed reversible error in allowing William 0. Schmidt, a.witness for the State, to testify over defendant’s objection as to what occurred between defendant and Schmidt’s father before the offense in issue occurred, therein indicating and insinuating that defendant had committed, or attempted to commit a crime on the witness’s father, as well as the offense in issue. State v. Speyer, 207 Mo. 543.

<p>APPEAL: No Bill of Exceptions. When no bill of exceptions is filed in a case, the appellate review is limited to the record proper, and if that is free from error the judgment will be affirmed.</p>

— Eon. William D. Rusk, Judge. (1) The artificial being created by this act is not, strictly speaking, a public or municipal corporation, but is a quasi-public corporation. 20' Am. & Eng. Ency. Law, 1130; 28 Cyc. 128; 1 Dillon, Mun. Corp. (4 Ed.), secs. 22-25. In a number of cases in this State a county has been termed a quasi-public corporation.

— Hon. Samuel Davis, Judge. (1) The directors were guilty of negligence per se in failing to require an official bond of the cashier. This conduct was in direct violation of law. (2) The directors cannot be heard to say they were not apprised of facts shown to exist by the ledgers, books, accounts, correspondence, reconcilements and statements of the bank which would have come to their knowledge except for their gross neglect or inattention.

Prohibition. Writ allowed. (1) The cause on its merits' and the appeal thereof ia,re not now submitted, and argument to the merits is improper. State ex rel. v. Henderson, 164 Mo. 360; Wand v. Ryan, 166 Mo. 648 ; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dearing, 180 Mo. 62.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) It is a well-settled principle of equity jurisprudence that when a court of equity has once obtained jurisdiction of a cause it will retain jurisdiction until the controversy is entirely disposed of. Railroad v. United States, 133 Fed. 657. This principle has been illustrated in numerous decisions.

Prohibition. Writ allowed. (1) Prohibition will lie to prevent the exercise of unauthorized power, even in a case where the inferior court has jurisdiction of the subject-matter of the action. State ex rel. v. Reynolds, 209 Mo. 178; Morris v. Lenox, 8 Mo. 252; Railroad v. Wear, 135 Mo. 256, State ex rel. v. Scarritt, 128 Mo. 338; High on Ex. Legal Rem., see. 389; Spelling on Ex. Legal Rem., sec. 1741; Thomas v. Mead, 36 Mo. 247.

— Eon. W. 0. Thomas, Judge. (1) Under tlie evidence and instructions in the case, the appellant was entitled .to have the jury assess benefits against its property not taken as compensation for the property taken and damaged, an amount bearing the same ratio to the whole amount of benefits, assessed against private property, as the benefits to each lot or parcel bear to the whole benefits to all the private property assessed.

<p>On Motion To Set Aside Order Taxing Costs Against The Petitioner.</p>

Louis City Circuit Court. — How. Leo 8. Rassieur, Judge. (1) Robbery in tbe first, degree, under our statutes and decisions, involves an intentional putting in fear, or the use of violence by the defendant. State v. Sommers, 12 Mo. App. 375; State v. Smith, 119 Mo. 439; State v. Jenkins, 36 Mo. 372; State v. Howerton, 59 Mo. 91.

— Hon. E. M. Hearing .Judge. (1) The penalty clause of Sec. 3158, R. S. 1909, is invalid, and there being no other provision of law attempting to inflict a penalty for the alleged violation of said. section, the present action must fail, as only a penalty is sought to be recovered herein.

— Son. N. M. Bradley, Judge. (1) The plaintiffs have no such interest as will warrant the exercise of equitable power herein by injunctive process, and there is a plain and adequate remedy at law, the bill on its face being insufficient to constitute a cause of action, (a) Pattison Code Pleading (2 Ed.), sec. 519; State ex rel. v. Wood, 155 Me. 446; Brake Beam Co. v. Bakewell, 224 Mo. 222; Missouri Code Pleading, Pattison (2 Ed.), sec. 536.

— Ron. Alonzo D. Busrnes, Judge. (1) Defendant was entitled to be subrogated to the right of the mortgagee of John Berry and Clarissa Berry, his wife, under the doctrine of equity jurisprudence. Subrogation does not 'depend upon privity of contract, either express or implied, only in so. far as the known equity may be supposed to be imported into the transaction and thus raise the implication of a contract.