Volume 275 — Missouri Reports

<p>MECHANIC’S LIEN: Subcontractor: Extra Work. • The contract between the contractor and subcontractor called for the payment of a lump sum of $7200 for labor and material to be furnished, and the subcontractor received $6781.60 as a credit, leaving $418.40 due him under the original contract; but after the work was commenced the contractor changed the plan of the work and ordered the subcontractor to furnish additional labor and material to the amount of $400.35, which sum, added to the $418.40 due under the original contract, made $818.75, for which- he had judgment against the contractor. Held, that the judgment for the entire sum of $815.75 should be decreed a lien on the building, and the majority opinion of the Court of Appeals (190 Mo. App. 340) decreeing' only the $418.75 to be a lien is disapproved, and the reasoning and conclusions of the dissenting opinion (190 Mo. ■App. 352) that the subcontractor is entitled to a lien for the whole balance due is approved.</p>

<p>TRESPASS: Cutting Timber: Mere Licensee: Affirming Decision of Court of Appeals. The decision of the Court of Appeals, 187 Me. App. 373, holding that a certain consent decree between plaintiff and the apparent record owner of land gave to plaintiff something more than a personal license to cut, but a beneficial ownership in, the growing timber, and that therefore plaintiff could maintain an action of trespass against "a mere stranger who cut and carried away parts of the timber, is not in conflict with a prior decision of the Supreme Court, but is correct.</p>

— How. Geo. W. Wanamaker, Judge. (1) While plaintiff was insane, confined in a hos- ^ pital in St. Louis, the probate court conducted an inquisition of insanity concerning him, and appointed a guardian of his person and estate, without notice to him, without his having any knowledge of it. Plaintiff contends that this original insanity inquisition is wholly void in law, for want of notice to him. Hunt v. Searcy, 167 Mo. 158; Bank v. Shanklin, 174 Mo.

<p>1. EVIDENCE: Champerty: Concealed Interest in Suit: Compulsory Testimony. It is not prejudicial error to refuse to compel the attorney of record for plaintiffs to testify whether he has a deed from plaintiffs to the lands in suit, or a contract with them whereby he is to receive an interest in the land in case judgment is rendered in their favor, for he is just as much concluded by a judgment against them as he would be had he been joined as a party.</p> <p>2. LACHES: Divesting Title: Failure to Fay Taxes. In an action at law to determine title to land, in which no affirmative equitable relief is asked, plaintiffs cannot be divested of their title based on a patent from the Government, on the equitable doctrine relating to laches, merely because neither they nor their ancestor, the said patentee, had paid any taxes on said land at any time during the fifty-six intervening years since the patent was issued.</p> <p>S. PAYMENT OF TAXES: By Whom: No Showing: Presumption. In the absence of evidence on the subject, the court has a right to presume that the record owner of the land paid the taxes from the time the patent was issued in 1859 up until it was sold for the taxes of 1889, although such record owner is not shown to have been at any time in actual possession. The burden is upon the purchaser at the tax sale to show that the record owner had not paid the taxes prior to his purchase.</p> <p>4. PLAT BOOK: Uncertified: Relied On to Show Owner of Land. An uncertified plat book, purporting to have been made by the proper United States land office, is not competent evidence for any purpose; and, although such plat book shows the lands were entered by a certain person in 1857, and the patents, which were not recorded in the county where the lands are situate, show they were issued to the assignee of said entryman in 1859, the Collector of the Revenue is not authorized to rely upon such uncertified plat book in ascertaining the owner of the land, where the statute requires the suit to be brought against the owner of the land.</p> <p>5. -: Ancient Document. An uncertified plat book, which does not purport to be the original, is not competent evidence as an ancient document.</p> <p>6. PATENT: Notice: Recorded in County. It is not necessary that the patent, which named a certain person as patentee and described him as the assignee of certain military bounty warrants, should be recorded in the county where the land lies, in order to impart notice to the tax collector that such patentee or his heirs are the owners of the land. The Act of Congress required the patents to be recorded in the General Land Office, and when so recorded they imparted notice to the tax collector that the said certificate holder had assigned his land warrants to the patentee.</p>

— Hon. Frank P. Divelbiss, Judge. (1) A patent to land from the United States Government conveys title to the land only from the date of the issuance of the patent. Bagnell v. Broderick, 13 Peters, 450; Monson v. Simonson, 231 U. S. 347; Lang-don v. Sherwood, 124 U. S. 83; Redfield v. Parks, 132 U. S. 245; Texas P. R, Co. v. Smith, 159 U. S. 68.

<p>Appeal from Jackson Circuit Court. —Hon. William O. Thomas, Judge.</p> <p>(1) The transfer of the notes and bonds in question was voluntary, that is, it was without consideration. (2) The circuit court erred in holding as a matter of law that the voluntary conveyances shown by the evidence will not- operate to hinder or delay creditors. Star v. Penfield, 166 Mo. App. 302; Walsh v. Ketchum, 84 Mo. 427; Clark v. Thias, 173 Mo. 628; Crowe v. Beardsley, 68 Mo. 435; Payne y, Stanton, 59 Mo. 158; McCollum v. Crain, 101 Mo. App. 522; Hoffman v. Nolle, 127 Mo. 120; Eddy v. Baldwin, 32 Mo. 369; Van Deventer v. Goss, 116 Mo. App. 316; Scharff v. Mc-Gaugh, 205 Mo. 344; Harding v. Elliott, 91 Hun. 502; Baker v. Lyman, S3 Ga. 339; Church v. Chapin, 35 Vt. 221; Botsford v. Beers, 11 Conn. 369; Walther v. Null, 233 Mo. 104; Johnson v. United Rys. Co., 247 Mo. 326; National Tube Works v. Machine Works, 118 Mo. 365; Shields v. Hobart, 172 Mo. 491. (3) The plaintiffs were existing creditors at the time of the last distribution of assets. (4) The circuit court erred in holding that there is no evidence in this case of fraudulent intent. Ross v. Crutsinger, 7 Mo. 245; Mosby v. Commission Co., 91 Mo. App. 500; Bank v. Russey, 74 Mo. App. 651; State to use v. Mason, 112 Mo. 374; Cole v. Cole, 231 Mo. 236;- Spengler v. Kaufman, 46 Mo. App. 644; Bank v. Keeney, 154 Mo. App. 285; Reed v. Pelletier, 28 Mo. 173; State to use v. O’Neill, 151 Mo. 67.</p> <p>(1) It was proper to grant a new trial since the cause should not have been submitted to the jury at all. Lynch v. Turrish, 236 Fed. 653. 2 Cook Corporations (6 Ed.), sec. 545, 7 R. C. L. p. 294; 2 Cook Corporations (6 Ed.), sec. 541, 7 R. C. L. p. 295; McLaran v. Planing Mill Co., 117 Mo. App. 40; Gentry v-. Field, 143 Mo. 399; Bump on Fraudulent Conveyances (2 Ed.), pp. 34, 21; 12 R. C. L. pp. 536, 593; Welch v. Mann, 193 Mo. 304; Coleman v. Hagey, 252 Mo. 135.</p>

<p>SUPERINTENDENT OE SCHOOLS: Traveling Expenses: Outside of State. Since the Legislature appropriated money to pay the traveling expenses of the office of State Superintendent of Public Schools, and the statute prescribing his duties says he shall have power “to in every way elevate the standard and efficiency of the instruction given in the public schools of the State” and further says that “all moneys reasonably expended in the execution of these duties shall, upon due proof,” he allowed and paid hy the State, the question of the necessity and expediency of incurring expense for this purpose, in the absence of statutory restriction, is to be determined hy the .Superintendent, and not hy the State Auditor; and in consequence a reasonable expense account incurred hy the Superintendent in railroad fares and hotel accommodations in attending~an annual meeting, at Portland, Oregon, of the National Education Association, composed of superintendents of public schools in all the States and of leading teachers and educators throughout the county and organized to promote, foster and encourage the cause of public education generally, should, upon the Superintendent’s approval, he audited hy the Ota^e Auditor for payment out of the moneys so appropriated, as an exoense useful and properly to he incurred in the performance cf the Superintendent’s statutory duty “to elevate the st'iud«rd anl efficiency of the instruction givc-n in the public schools of the State.”</p> <p>Held, hy WALKER, J., dissenting, that the statutes contain no intimation of a requirement that the State Superintended shall attend educational associations, and without a statute declaring, either in express terms or hy reasonable implies tine, it to be his duty to attend national educational associations, the Legislature itself could not appropriate money to pay his traveling expenses in attending them.</p>

<p>Petition for Review De Novo,</p>

— Eon. J. G. Slate, Judge. (1) Tbe order of the Public Service Commission requiring the installation and maintenance of track scales at Rich Hill for the sole purpose of weighing carload shipments of grain, and Sec. 3157, R. S. 1909, on which said order is based, are a discrimination in favor of one class of shippers and are invalid and unauthorized. Sec. 23, Art. 12, Mo. Constitution; Railroad v. State, 107 Pac. 929; Midland Valley Railroad v. State, 133 Pac. 27; Ry.

<p>1. PUBLIC SERVICE COMMISSION: Power to Fix Telephone Rates. The Public Service Commission has power by order to fix telephone charges at rates exceeding máximums prescribed in a franchise granted by a city ordinance to a telephone company prior to the enactment of the Public Service Act of 1913. Such an order does not impair the obligation of contracts evidenced by such ordinance. [Overruling State ex rel. City of St. Louis v. Laclede Gaslight Co., 102 Mo. 472, so far as conflictive.]</p> <p>2. -: -: Impairment of Individual Contracts: Police Power. All contracts made for individual subscribers by the city with, a public service telephone company, through' the medium of ordinances, are made in contemplation of the State’s power to fix rates. Individuals cannot abridge the police power, but all such contracts are made subject to revision by an exercise of that power by the State, and its exercise does not impair the obligations of such individual subscribers.</p>

<p>1. RAILROADS: Signal Crossings and Gates: Do Not Include Interlocking Plant. A contract made by a railroad company which was about to construct its tracks across those of an existing railroad belonging to another company, by which the junior company agreed' to pay the entire costs of “crossing-signals or gates” thereafter at any time necessary to be erected and maintained, is not an agreement to pay the costs of erecting an “interlocking plant” at the crossing, since the words “crossing signals or gates” do not include an “interlocking plant;” and hence an order of the Public Service Commission, made upon the petition of the junior company, directing the installation of an interlocking plant and requiring the older company to pay a part of the cost, does not impair the obligation of such contract.</p> <p>2. -: Interlocking Plant: Apportionment of Costs: Train Basis: Unreasonable Order. Although the portion of the costs of erecting and maintaining an interlocking plant apportioned to appellant is somewhat too large if based alone on the average number of trains of each of two railroads daily passing the. crossing, yet if the evidence before the Public Service Commission reveals that at least two items were considered in arriving at the apportionment, namely, economy of crossing operation and safety, and the evidence concerning the proper items to be considered in apportioning the costs was .not fully developed, and a true solution will of necessity depend upon many items not disclosed, the court will not rule that the apportionment made by the Commission was unreasonable.</p>

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge. (1) The court erred in sustaining plaintiff’s demurrer to defendant’s cross-hill. The averments of the cross-bill stated a cause of action in equity, based upon the fraudulent conduct of the plaintiff, and, if true, established conclusively that no valid contract of insurance had ever been entered into and that the policy on which plaintiff was suing should be canceled. Barrington v. Ryan, 88 Mo.

<p>L. STATUTE: Unconstitutional Amendment: Prior Statute Restored. If an existing statute be amended and reenacted, and be by the amendment rendered unconstitutional, the original statute, upon judicial declaration of invalidity of the amended statute, automatically comes into force again.</p> <p>2. ’ INSURANCE: Rating Act: Unconstitutional Amendment of 1903: Restoration of Prior Statute. The statute of 1898 declared that no fire insurance policy should contain a clause “requiring the assured to take out or maintain a larger amount of insurance than that covered by such policy” or “making provision for a reduction of the loss or damage by reason of a failure to take out or maintain other insurance.” In 1903 the statute was amended by adding a proviso that the inhibition “shall not apply to policies issued upon personal property in cities which now contain or which may hereafter 'contain one hundred thousand or more inhabitants.” Held, that, if the amendment had the effect to make the general inhibition a local or special law and for that or any other reason rendered the amended statute unconstitutional, the original act automatically came into force again, and if it was a valid enactment the general inhibition thereafter obtained.</p> <p>3. -: -: Repeal by Implication of Existing Statute: Inconsistency. There is no inconsistency between the Insurance Rating Act of 1915 and Section 7023, Revised Statutes 1909, and consequently Section 7023 was not repealed by implication by said act. Section 7 of said act does say that a fire insurance company shall not “fix and charge any rate for fire insurance upon property in this State which discriminates unfairly between risks in the application of like charges and credits, or which discriminates unfairly between risks of essentially the same hazards and having substantially the same degree of protection against fire,” and Section 7023 declares that no insurance policy shall contain any clause “requiring the assured to take out or maintain a larger amount of insurance than that covered by such policy” except in cities having one hundred thousand inhabitants or more; but there is a difference in the hazards and the amount of protection in such cities and in other parts of the State, and said Section 7, when the words “charges and credits” are read in the light of the next clause, means that it is only when the hazards and the protection against fire are the same that discrimination in rates is forbidden.</p> <p>4.--:-: Class Legislation. Other things being equal classification in legislation on the basis of population is not unconstitutional.</p> <p>6. -: -: Filing of Kate With Superintendent: Mandamus. The court refuses to compel, by its writ of mandamus, the Superintendent of Insurance to file, approve and permit the use on all standard policies of fire insurance of what is called the “Reduced Rate Contribution Clause” presented by petitioners, because the statutes do not authorize the same reduction in rates throughout the State.</p>

— Hon. J. G. Slate, Judge. (1) The entire sum of $8481.28 and interest earned thereon was ordered impounded hy the circuit court without authority of law, and the whole of said sum is due the appellant, and should be paid to it.

<p>1. JURISDICTION: Courts of Appeals: In Original Proceedings. Where relief is sought other than in the recovery of a monetary judgment, the value of the right involved, estimated in money, constitutes the measure of jurisdiction of the appellate court to hear and determine an original writ. Jurisdiction of a court of appeals in prohibition and other original proceedings should be brought as nearly as possible into harmony with its appellate jurisdiction. A court of appeals is not authorized to issue such writs, or to exercise superintending control over inferior courts, in cases in which the Supreme Court has jurisdiction by appeal or writ of error.</p> <p>2. --:--:-: Suit Against Corporation for Accounting, Etc. Suit was brought by two stockholders, the par value of whose stock was $8300, against the directors of a corporation, whose tangible property was $25,000, charging deceit, fraud and waste in its management, and praying for an accounting and the appointment of a receiver. Held, that the Court of Appeals had no jurisdiction of a writ of prohibition to prevent the circuit judge from hearing and determining the bill in equity.</p> <p>3. FOREIGN CORPORATION: Supervision by Domestic Courts. A court of equity, by statute and independently of the statute, has power to exercise a supervisory control over a foreign corporation, whose chief office, principal place of business and tangible properly are in this State and whose directors and other officers reside here, and at the request of its stockholders, showing fraud, deceit and waste by its managers and directors, to entertain a bill asking for an accounting and the appointment of a receiver. [Distinguishing State ex rel. Life Ins. Co. v. Denton, 229 Mo. 187, and State ex rel. Hartford Life Ins. Co. v. Shain, 245 Mo. 78.]</p> <p>4. INJUNCTION: Prior Notice. The giving of notice of an application for temporary injunctive relief and the appointment of a receiver for a corporation is not a necessary precedent condition in all cases. Where the need is crying notice is not a prerequisite.</p> <p>5. PLEADING: Accounting. Pleadings for an accounting are liberally construed, and where the allegations substantially state a case a demurrer to the petition should be overruled. The bill must be interpreted by employing in its aid all reasonable inferences from the facts stated and all implications and intendments its terms will afford, in support of any relief competent for the court to grant.</p> <p>6. -: -: Profit on Company Stock. An allegation in the petition of stockholders against the president and directors of a corporation that the president bought 300 shares of its stock from a stockholder at $40 a share for the use of the company and sold it at $60 per share, at a profit of $2000 to himself, states a specific and sufficient ground for an accounting.</p> <p>7. -: -: False Entry on Books. A charge by a stockholder in his petition that the president and directors purchased certain articles for the corporation at $17,000 and then caused entries to be made on tbe books showing an expenditure of $22,000 on that account, will authorize an accounting.</p> <p>8.--: Removal of President of Corporation. A bill by a stockholder which seeks to have the president of the corporation removed on the ground that he draws an exorbitant salary, stating facts which tend to show that his salary is exorbitant, is not demurrable.</p>

— Hon. Samuel Davis, Special Judge. (1) The will created a trust fund during the life of Lucy B. Shields, in which her children took a contingent remainder. West v. Bailey, 196 Mo. 517; Wood v. Kice, 103 Mr. 329; Luquire v. Lee,'121 Ga. 624.

<p>1. APPEAL: By Belabors in Quo Warranto. The individuals at whose request a proceeding in the nature of quo warranto has been instituted by the prosecuting attorney to determine the right of respondents to exercise the powers of school directors have the right to prosecute an appeal after said proceeding has been dismissed.</p> <p>2. -: Affidavit: Made By Agent. An affidavit for an appeal, made by appellants’ attorney as their agent and containing the required statutory allegations, is sufficient.</p> <p>3. PLEADING: Liberally Construed. The common-law rule that pleadings must be strictly construed against the pleader has, by statute, been either modified or abrogated in favor of liberal construction. Even upon demurrer it is permissible to infer all facts from those expressly stated that may be implied by fair and reasonable intendment.</p> <p>4. -: Consolidated School District: Answer: Exact Date of Filing of Petition. Where the information in a quo warranto contains only the general' charge that the proceedings “were irregular, contrary to the requirements of the law and void,” an averment, in the answer that a petition for the establishment of the consolidated school district was filed with the county superintendent in January, 1916, is sufficiently exact upon demurrer, even in view of the rule that the answer of respondents must contain definite denials of the allegations of the information and affirmative declarations of their rights. The material averment of the filing have been made, objection to the failure to allege the exact date should be made by a motion to make more definite and certain.</p> <p>5. -:-:-: Meeting of Voters. Where the answer avers that ten notices of the time, place and purpose of a meeting of the voters of the proposed consolidated school district and five plats of its boundaries were posted for fifteen days in public places! and that in pursuance to them a meeting of the voters was held at: two o’clock in the afternoon of a certain date thereafter, and the information in no wise challenges the fact of the giving of notices, the presumption obtains that the notices specified the exact time when the meeting was to be held, and that the meeting was commenced and held at that time in conformity with the statute.</p> <p>6. -: -:--: -: Called to Order By Superintendent. All other requisites to the holding of a valid meeting of the voters to determine the question of the formation of a consolidated school district having been complied with, the absence from respondents’ answer, in the quo warranto proceeding, of an averment that such meeting was called to order by the county superintendent, will not invalidate the district or authorize a demurrer to the answer. That statutory requirement is directory.</p> <p>7. -: -:--: Two Hundred Children. If the answer of . respondents contains an averment that the consolidated school district has an area of twelve square miles, it is not defective because it contains no averment that there were two hundred children of school age within its boundaries. The jurisdictional requirement of the statute is in the alternative.</p>

<p>1. APPELLATE PRACTICE: Motion to Quash Execution and Retax Costs: Treated as One. Defendant filed its motion to tax costs, and that being overruled filed its motion to recall, quash and set aside an execution theretofore issued on a judgment in favor of plaintiff, and in said motion and as one ground thereof set forth in full the prior motion to tax costs, which motion was sustained as to the matter of retaxing costs, but the judgment ignored the other grounds set up in the motion for quashing the execution. ~ Thereupon plaintiff filed his motion to set aside the “judgment upon the motion to retax costs,” which being overruled he appealed. Held, that, as the motion to quash the execution and to retax the costs were treated as one motion at the hearing, and as the bill of exceptions covers the proceedings had at said hearing, plaintiff’s appeal from the order retaxing the costs is maintainable, and the court’s action is for review. Appellant is not to be denied a review because he followed in the footprints made for him t¡y respondent.</p> <p>2. COSTS: In Action for Damages. Even though the petition in an action for damages contains two counts and the court gives a peremptory instruction to find for defendant on the first count, if the verdict and judgment are for plaintiff on the second count, it is the duty of the clerk to tax all the costs against defendant, for the statute (See. 2268, R. S. 1909) says that “in all actions not founded on contract, if the plaintiff recover any damages he shall recover his ■ costs.” The costs being so taxed, a motion to retax them implies a subsequent judicial investigation and determination by the court.</p> <p>3. -: Retaxed at Subsequent Term. The clerk having upon the return of a verdict for damages for plaintiff upon one count of his petition in an action ex delicto, entered a judgment in which he taxed all the costs against defendant, as the statute required, a motion to retax costs filed by defendant at a subsequent term was too late, and the court had no jurisdiction to entertain it. The motion to retax must be filed at the term' at which the judgment was entered.</p>

Clair Circuit Court. — lion. G. A. Calvird, Judge. (1) To warrant a decree in this case, the evidence should be of a cháracter so clear, definite and positive as to leave no room or reasonable ground for hesitancy or doubt in the mind of the chancellor. Ferguson v. Robinson, 167 S. W. 453; Smith v. Smith, 201 Mo. 547; Reed v. Sperry, 193 Mo. 173; Johnson v. Quarles, 46 Mo. 423.

<p>1. FRANCHISE ORDINANCE: Contract. Tbe passage of an ordinance by tbe council of a city of tbe third class and its acceptance by a water company, by which it is provided that the rent on city hydrants shall be a named sum per year, constitute a contract between the city and company, whether or not the ordinance is submitted to a vote of the people.</p> <p>2. WATER RATE: In Excess of Ordinance Rate: Power of Public Service Commission. The Public Service Commission of Missouri has the lawful right to fix the rate for hydrant water, so- far as the city is concerned, in excess of the rate fixed by an existing ordinance.</p> <p>3. PUBLIC SERVICE ACT: Police'Regulation: Legislative Delegation of Power. The Public Service Act of 1913 and the fixing of reasonable rates to be charged by a public utility company are traceable to the police power of the State, and the Legislature can delegate to the Public Service Commission the power to ascertain and fix reasonable rates for services rendered to the public by divers public service corporations, subject to court review of the question of reasonableness.</p> <p>4. POLICE POWER: Abridgment: Nullifying Existing Contracts. The State of Missouri cannot divest itself of the right to exercise its police power. The Constitution declares that “the exercise of the police power of the State shall never be abridged,” and such power cannot be contracted away, nor can the Legislature authorize a municipal corporation to contract it away. A. statute which authorizes a city to contract for water service to the city and the general public may be so modified as to delegate to a legislative agent the power to fix rates different from those mentioned in such contract, for the Legislature cannnot authorize a municipal corporation and a public service corporation to mate a contract which will preclude the sovereign power of the State from fixing reasonable rates irrespective of the contract.</p>

— Hon. J. D. Perkins, Judge. (1) Where the land, as in this instance, was actually surveyed and stakes set out to indicate the various lots, streets, and alleys by the proprietors, and were fenced and improved, and the streets and alleys opened and used in accordance with these stakes, and the conduct of the first settlers shown a uniform understanding, such lines so shown to exist cannot be changed by subsequent surveys.

— Hon. Harris Robinson, Judge. (1) There was no proof of a gift from G-eorge Townsend to the plaintiff of the 40 Water bonds and therefore the court should have directed a verdict for defendant, (a) Giving all possible weight to the testimony offered on plaintiff’s behalf, there was no proof whatsoever of a delivery of the bonds in October, 1907.

<p>1. INTOXICATED PASSENGER: Constitutionality of Statute: Unreasonable Burden Upon Conductor. Sections 1 and 2, Laws 1909, page 438 (Secs. 4710 and 4711, R. S. 1909), making it unlawful for any person to enter a passenger train intoxicated or to drink intoxicating liquors on such train, and imposing a fine upon the person guilty of such offense, and making it the duty of the conductor to report to the prosecuting attorney the names of the person so intoxicated and of three witnesses, and subjecting him to a fine for his failure to do so within five days, are not directed to the railroad company, but are directed to the intoxicated or drinking passenger and the conductor; and hence the railroad company is not in a position to assert that they impose unreasonable and arbitrary duties upon the conductor and for that reason are violative of the due-process and equal-privilege clauses of the Constitutions.</p> <p>2. -: - — : Unequal Operation: Exception of Dining and Private Cars. The act of 1909, page 438 (Secs. 3710, 4711, and 4712, R. S. 1909), making it unlawful for any person to enter a passenger train or car intoxicated or to drink intoxicating liquor on said passenger train or car or to exhibit or carry exposed any intoxicating liquor while on said passenger train or car, but excepting dining cars or private cars from the act’s operation, does not operate equally and alike upon all subjects similarly situated, and is therefore clearly unconstitutional. There is no substantial or reasonable distinction between passenger and sleeping cars on the one hand and dining and private cars on the other, and as the statute has no reasonable basis for a separation of them into different classifications it violates those provisions of Section 53 of Article 4 of the Constitution of Missouri and of the Fourteenth Amendment of the Constitution of the United - States which prohibit the enforcement of any State law which denies the equal rights or abridges the privileges and immunities of citizens of the United States.</p> <p>3. -: -: Common Law Right of Action Nevertheless. Notwithstanding the fact that the statute • upon which plaintiff grounds his cause of action for personal injuries is unconstitutional, yet if the petition, independent of that plea, states a good cause of action at common law, a demurrer to the evidence should not be sustained, if it warrants a submission of the case to the jury upon the common-law theory.</p> <p>4. -: Injury to Fellow Passenger: Liability of Carrier. A common carrier is bound, to exercise the utmost practicable care for the safety of its passengers, to safely transport them, and to protect them while in transit from violence and insults from all persons on the train, including fellow-passengers, and any violation of this duty which results injuriously to a passenger renders the carrier liable in damages therefor; but the duty does net amount to/an absolute guaranty that a passenger will be transported with absolute safety or that he will not be insulted or injured by an intoxicated fellow-passenger. The rule means that the conductor and other trainmen must use the highest degree of care, consistent with the business, to ascertain and prevent such injuries, but the carrier is not liable for injuries inflicted by one passenger upon another, if in the exercise of that degree of care the assault or injury is not to be forseen.</p> <p>6. -: -: -: Sudden and Unexpected Assault. A common carrier is not liable in damages to a passenger for injuries resulting from a sudden assault by another intoxicated passenger, who, without any previous threat or verbal altercation, who was not previously boisterous or insulting in his talk or conduct and who gave no evidence that he was intoxicated except that he was talking generally and having a jolly good-time, suddenly seized an iron wrench and struck on the head the other passenger, who was a total stranger to hirfi.</p>

<p>1. MOVING PICTURE THEATER: Duty of Owner to Patrons. It it the duty of the owners and operators of a moving-picture theater to see that the place to which they invite their patrons is reasonably safe for use for the purposes for which it was designed.</p> <p>2. -: S'tep-Off in Floor: Absence of Light. It is a matter of common knowledge that a four-inch depression in a floor is sufficient to cause one to fall who, in the absence of light and knowledge of the depression, steps into or upon the edge of it. So that where the floor upon which were the seats of the moving picture theater was four inches above the aisle, which fact plaintiff did not know, and there was not sufficient light to enable her to see the depression, which brought about her fall, the concurrence of the two' constituted negligence, and the jury was warranted in finding that her fall was due to her inability to see the step-off on account of the darkness.</p> <p>3. -: -: Contributory Negligence. Patrons having been invited to enter and leave the moving-picture theater at will during performances, it cannot be said, as a matter of law, that a patron, seeing others using the aisle, which was four inches below the floor on which the seats rested, was guilty of contributory negligence in failing, in the absence of knowledge of the step-off and of sufficient light to enable her to see it, to apprehend that the usual path of exit contained an unsafe place or pitfall. The question was one for the jury.</p> <p>4. -: Amending Petition After Proof: Changing Defense: Permissive Ordinance. Where the petition charged that a designated ordinance prohibited inequalities in the floor levels of a theater and a violation thereof, and the answer set up another ordinance containing a like prohibition but subject to exception on written permission of named officials and contained an averment of such-permission, and defendant’s own evidence totally failed to show any such permission, it was not error to permit plaintiff, after the evidence was in, to amend her petition by interlineation to conform to the proof by adding a charge that the ordinance pleaded by defendant had been violated. The amendment to the pleading did not change the defense, and was right.</p> <p>B. -: Floor . Level: Inequalities Upon Permission: Inspection. Where the ordinance declared that “no steps shall be permitted in any aisle or in any part of the auditorium floor” of a theater “except by written permission” of named officials, permission cannot be implied from a mere inspection by such officials.</p> <p>6. -: Validity of Ordinance: Steps in Aisle: Permission of Officials. An ordinance prohibiting steps in the aisle or on any part of the auditorium floor of a moving-picture theater “except by written permission” of designated officials does not vest an arbitrary power in said officials and is not for that- reason invalid. In case a city may prohibit a particular thing, it validly may prohibit it except in case a permit is procured from a designated official; and a city may lawfully prohibit absolutely inequalities in floor levels in darkened theaters, and matters of detail in enforcing ordinances otherwise valid may be left to designated official's.</p> <p>7. DEMURRER: Refusal Of Leave to File. It was not error to refuse leave to defendant to file a demurrer to the petition if the filing of' it could not have availed him anything.</p> <p>8. MOTION .TO ELECT. A refusal to permit defendant. leave to file a motion to compel plaintiff to elect between certain causes of action stated in her petition is not error, if she announced that she elected to stand on certain allegations, and the instructions were based on them, and another was ‘given withdrawing all’ the others from the jury.</p> <p>9. PICTURE THEATER: Step-Off in Aisle: Assumption of Risks. Where the petition charged that the aisle of a moving-picture theater was four inches lower than that part of the floor on which the seats rested, that such step-off was in violation of a designated ordinance, that such construction was negligence, that plaintiff had no. knowledge of such step-off and that there was not sufficient light to enable her to see it, an instruction on the assumption of risks which ignores such allegations is properly refused.</p> <p>10. -: -: Custom: Contrary to Ordinance. Custom is no defense to a violation of positive law. Where plaintiff was injured by falling' as she attempted to leave her seat in a moving-picture theater, whose aisle was four inches below the auditorium floor, and which construction was in violation of a city ordinance, it was not error to instruct the jury that the fact that the owners of other theaters • permitted similar inequalities in the floor constituted no defense.</p> <p>11. -: -: - — : Proof. Evidence that about one out of ten theaters in the city had steps from the auditorium floor to the aisle does not prove a customary construction.</p> <p>12. JUROR: Impartiality. Where the talesman testified that his business relations with defendants were such that they might affect his verdict, that he preferred not to sit, that he felt embarrassed to sit as a juror against them', but that he would endeavor to do his duty and would exercise his judgment in returning a verdict according to the law and the evidence, the. court did not act arbitrarily in rejecting' him.</p> <p>13. THEATERS: Difference in Floor Levels: Practicable Construction: Expert Testimony. It was not error to permit an expert to testify that it was practicable to overcome differences in floor leveis in theaters by gradients and inclined planes. It cannot be said as a matter of law that such methods -.of construction are so practicable that a jury are as capable of drawing correct conclusions on the subject as is an expert,</p>

<p>1. QUIETING TITLE: Pleading: Equitable and Legal Title: Belief. In a suit brought under Sec. 2535, R. S. 1909, the petition may contain two counts, one asking for a determination of the title, and the other sounding in ejectment, and if defendant’s title be found vulnerable in equity or void in law, plaintiff may have both possession and the removal of defendant’s cloud.</p> <p>2. CONVICT: Sale of Land for Taxes: Void Judgment. A judgment for taxes obtained against an owner of land incarcerated in the Penitentiary is void and a sale under execution does not affect the legal title. The statute specifically declares that a convict “shall be deemed civilly dead” during the term of his sentence, but it also says he “is and shall be under the protection of the law” and provides for the appointment of a trustee to “prosecute and defend all actions commenced by or against the convict;” and if the State, instead of pursuing the course thus provided, by the statute, proceeds against him directly for the taxés due from his land at a time when he cannot be. haled info court, the judgment does not affect the legal title.</p> <p>3. TITLE TO LAND: Judgment as Estoppel. In order that1 a judgment may have the effect of transferring title to land by estoppel, it must be pronounced by a court acting within the limits of a jurisdiction which authorizes it. If the court in pronouncing the judgment acted by virtue of. a special or limited statutory jurisdiction, it can be upheld only when the plain letter of the law permits it»</p> <p>4; -: -: Condemnation: Adverse Claimants to Award: Determination of Title. Commissioners appointed by the court to ' assess damages in a condemnation proceeding begun by a railroad company estimated the value of a right-of-way one hundred feet wide through forty acres of land,- at one hundred dollars. Plaintiff at the time was in possession claiming title, and defendant held a recorded deed made hy the sheriff as a result of an execution sale under a judgment for taxes obtained against the plaintiff, who at the time the tax judgment was rendered was the owner and under sentence for a felony. The railroad company did not pay the money into court, but defendant upon the filing of the commissioners’ report filed an interplea alleging he was the owner of the land "and that plaintiff had no title or interest therein and asking that the money he awarded to him, and plaintiff later filed a like interplea alleging he was the owner and that defendant’s deed was void and asking that the money he awarded to him. The trial court rendered judgment adjudging the defendant to be the owner of the land and ordering that the money he paid to him when it was paid into court. It was not paid into court, but defendant testified that it was paid to him. Held, that the judgment did not have the effect of transferring the title to defendant, but the contest related solely to the fund, and not to the land. Held, further, that the statutory proceeding for the fund was one in rem and jurisdiction cannot exist without the res, and the statute providing for an interplea only when the award is paid into court and that not having been done, the court had no jurisdiction to consider the title to the land or to award the fund to defendant.</p>

<p>1. CONSTITUTIONAL LAW: Descents and Distributions: Wills. There is no constitutional provision restricting the power of the Legislature to change or modify the laws relating to descents and distributions or the laws relating to wills.</p> <p>2. -: Inheritance: Not Natural Bight. Inheritance of property is not an absolute or natural right. There is no constitutional provision which would prohibit the Legislature from changing or abolishing entirely the law as to descents and distributions, whether the transmission of 'property be by will or .by intestacy. The right to inherit property is neither a natural right, nor a constitutional right in this State, but a right which the sovereign may grant or withhold, or may grant upon condition; and since there is no constitutional restriction, the Legislature may abolish or modify the laws permitting the transfer of property by will, as well as statutes governing descents and distributions, and may say what portion, upon an owner’s death, shall be appropriated by the State, and to whom and in what proportions the balance shall go.</p> <p>3. -: Inheritance’ Tax. The right of the State to foreclose absolutely or partially the right to inherit property, by law or will, and to say what is to become of it when death forecloses the owner’s right to control it, is not strictly the exercise of the taxing power, although the percentage to be retained by the Stale is designated in the statute as a tax, but is the exercise of that other power which inheres in sovereignity, unless restricted by the .Constitution, to say what shall be done with the property upon the owner’s death. The designation of the portion to be retained or collected by the State as a tax is, in effect, an expression of the condition upon which the persons designated in the statutes of descents and distributions or in the testator’s will may take the property, and is not a tax at all.</p> <p>4. -: -: Constitutional Bestrictions. Since a statute pre- ■ scribing the amount of inheritance taxes shall be imposed on devises or inheritances is not an exercise of the taxing power, the validity of the statute .is not affected by the divers and sundry constitutional restrictions .relating to taxation.</p> <p>5. -: -: Repeal of Conflicting Statutes. The fact that the Act of 1917 designates the portion of an inheritance wnich the State is to retain or collect as a tax and that it does not in express words repeal statutes relating to descents and distributions or wills, does not make it an exercise of the taxing power. In spite of those things, it operates to repeal so much of those statutes as conflict with it.</p> <p>6. -: -: Due Process. An inheritance law, which requires the probate court to appraise the property owned by a decedent, and to exempt $15,000 of that devised to or inherited by his widow and $5,000 of that devised to or inherited by each of his children, and requires an appropriation by the State of certain graduated percentages of the balance, as a condition of their receiving the inheritances or devises, not being an exercise of the power of taxation, does not in any sense deny to them due process of law.</p> <p>7. -:--: Title Act: Repeal of Conflicting Existing Statutes. The title to the Inheritance Law of 1917 is in all respects sufficient, although the body of the act modifies or repeals, not by express words but by affirmative - provisions, certain conflicting portions of the statutes relating to descents and wills, and no reference is made to them in the title. The body of the act is within the purview of the title and is clearly indicated by it, and that is sufficient; and that being true, so much of the existing statutes as conflict with it will be held to be to that extent repealed or modified.</p> <p>8. -: -: Payment into State Treasury. Devisees or heirs, whose inheritances or devises have by the probate court been charged by its judgment with taxes according to the Inheritance Law, are not, in a certiorari to that court,' by which they attack the constitutionality of said act, in any position to raise the point that the act violates that portion of the Constitution which provides that no money shall be diverted from the State Treasury except by proper appropriation bills. Whether that portion of the act requiring the money to be paid into the State Treasury and providing that upon proof of an erroneous payment the amount of the tax erroneously paid may be refunded, is valid or invalid, does not concern them, and is not in the case, and therefore is not decided, for even if that part of the act is invalid the rest of it is not.</p> <p>9. -: -: Local or Special Law. The Inheritance Law of 1917 is a general and not a special or local law.</p> <p>10. -: -: Graduated: Unnatural Classification: Public Welfare., The classifications made by the Inheritance Law of 1917, which exempts from the tax $15,000 of decedent’s property for the widow and $5,000 for each child, and fixes a tax of one per cent on the balance up to $20,000, and a tax of two per cent on the next $20,000, and a tax of three per cent on the next $40,000, and larger percentages, by a graduated scale, on larger amounts, is not unreasonable. The reasonableness of a classification is to be measured in the light of modern public welfare, and that may require a graduation of the tax in proportion to the amount of property given to the legatees or heirs by the State, which has the power to appropriate the whole of decedent’s property upon his death. A law which classifies the recipients of the State’s favor according to the amounts received is not an unreasonable classification.</p> <p>11. -: -: Taxation on Property: Uniform: According to Value: Public Purpose. The Inheritance Law of 1917 is not an exercise of the taxing power of the State; but even if it be the exercise of the taxing power, it is not a tax upon property, but a tax upon the transmission or succession of property upon the death of the owner, and not being a tax upon property it does not violate the constitutional provision declaring that taxes can be levied only for a public purpose, or the provision that taxes shall be uniform upon the same class of subjects, or the provision that all property subject to taxation shall be taxed in proportion to value.</p> <p>12. -: -: Classification According to Burden. There can be a class within a class, and a classification by an inheritance law of recipients of a decedent’s property according to amounts received and kinship is not unreasonable. Property passes upon the owner’s death to others only by the grace of the State, and if the burdens imposed as a condition of succession be graduated according to amounts received or relationships to him they do not constitute an unconstitutional classification,- even though they be imposed by an- exercise of the taxing power. But the provisions of the Constitution concerning taxation have reference to those burdens or taxes fixed by law which are recurrent at fixed periods, not to duties imposed which occur only once, and hence they are not applicable to what is ordinarily denominated an inheritance tax.</p>

<p>1. PUBLIC UTILITY: Discrimination in Bates: Free Light to City. A provision in the franchise granted hy a city to an electric light company whereby the company is required to furnish the city “without charge, lights for its offices and fire house, to the extent of one hundred kilowatt hours per month,’’ worth $40 per year, is not an unreasonable discrimination in favor of the city, in view of the fact that the city’s annual account for street lights exceeds $2,000.</p> <p>2. -: -: -: Best of Franchise Valid: Collateral Proceeding. Even though the clause in a franchise whereby the company agrees to furnish electricity to the city for its offices and fire house is unlawful discrimination, it does not follow that the remaining portions of the franchise are void. If the city and company are willing to strike it out, another company, which failed to secure a franchise, should not be heard to complain. Nor could its invalidity be adjudicated in a collateral proceeding.</p> <p>8. -: Public Service Commission: Judicial Powers. The Public Service Commission is not a court. It is not invested with judicial powers. It has no power to adjudge a franchise granted by a county Court to a company to do lighting throughout the county, tq be invalid as to a city incorporated after the franchise was granted.</p> <p>4. -: Franchise: Certificate of Convenience and Necessity: Bight to Intervene. A company which has been furnishing electricity to a city and its inhabitants, under a county franchise, granted prior to the incorporation of the city, is, upon the granting of a franchise by the city to another company and the application by that company to the Public Service Commission for a certificate of public convenience and necessity, entitled to be heard in the determination of the question as to whether the certificate shall be issued to applicant.</p> <p>5. -: Competing Plants. The policy of the Public Service Act is to substitute regulated monopoly for destructive competition. But the spirit of this policy is the protection of the public; the protection given to the utility is incidental. The policy covers a particular case when competition would impair or destroy -a utility and, as a consequence, eventually entail an increase of rates charged the public.</p> <p>6. -: -: High Kates. Ordinarily high rates for electric light, being correctible through appropriate regulation by the Public Service Commission, do not call for the introduction of competitive conditions.</p> <p>7. -:-: Dependent on Circumstances. The rule of regulated monopoly as to public utilities is not applicable without discrimination in every case where competition seeks to enter. It is a rule designed, as a practical system, to promote the public good, and whether its application will accomplish that purpose . depends upon the particular facts in each case. And in this case the facts are reviewed, and it is held, that the Public Service Commission did not transgress the meaning of the Public Service Act, in granting, to an electric light company, which had obtained a franchise from a city of 6500' inhabitants, a certificate of convenience and necessity to use said franchise, notwithstanding the objections of another company, which had been for some years supplying the city with light, but made no showing of its ability to continue to profitably do so at rates which are shown to be profitable to applicant.</p>

Louis Circuit Court. — Ron. Wilson A. Taylor, Judge. (1) Although the Missouri statute is taken almost bodily from the Federal Act of 1913, the fact that the validity of the Federal Act has been affirmed does not affirm the validity of the Missouri statute. Brushaber v. Railroad, 240 U. S. 1; Pollock v. Farmers’Loan & Trust Co., 157 IT.

<p>1. APPELLATE PRACTICE: Error Must Be Assigned. Error must be assigned and shown before a reversal is warranted in a civil case.</p> <p>2. -:-: School Property: Special Tax Bill: Moral Obligation. Plaintiff brought suit to enjoin a school board from ordering the the payment, out of school funds, of special tax bills, issued against school property, in payment for a sewer. The trial court held school property was exempt, hut refused to grant an injunction “on the ground that the hoard were acting in good faith and had the power to assume a moral obligation, notwithstanding the absence of legal liability.” Plaintiff on appeal confines his assignment of error to the question whether special tax bills can. be legally enforced against school property, and fails to assail the ruling on which the court rested its judgment. Held, that all ■ that appellant urges may be conceded and yet the judgment rests upon the independent and only ground on which the court placed it, and there being no assignment that the court erred in resting it upon that ground, the judgment must be affirmed.</p>

— Hon. J. P. Foard, Judge, (1) The injury, if any, caused by the raising of the water between a levee to be constructed by the drainage district and the bank of a river which overflows its banks to such an extent as to render necessary the construction of the levee in order to protect the lands within the district is damnum absque injuria.

<p>1. SCIRE FACIAS: Forfeited Bond: Civil Action: Statutory Construction. A scire facias proceeding on a forfeited bond, in so far as the nature of the proceeding itself is concerned, is a civil action, the bond or recognizance being nothing more than a formal confession of debt. Therefore a literal compliance with the statute requiring a bond to be taken for a bailable offense is not necessary, but the statute will be so construed as to effectuate the purpose for which it was enacted.</p> <p>2. -: Bond to Appear at Same Term. A bond given by an accused for his appearance from day to day during the June term of court then in session and from day to day during the next September term, which was not a term designated by the statute, but a part of the June term, notwithstanding the statute says a recognizance shall be taken for his appearance “on the first day of the next term,” is enforcible against the surety upon default of the accused to appear at the September term; such statute, not being penal in so far as the scire facias proceeding is concerned, is not to be construed according to its strict letter, but in a manner to effectuate the purpose for which it was enacted, which was to secure the presence of the accused in court by authorizing him to substitute his voluntary contractual obligation for his physical custody.</p> <p>3. -: -: Statute of Jeofails. The Statute of Jeofails (Sec. 5019, R. S. 1909), declaring that no proceeding upon a recognizance shall be defeated on account of any defect in form, or omission of recital or condition of undertaking therein, or other irregularity, is a part of the statute authorizing the giving of bonds or recognizances and requires said latter statute to be liberally construed in a manner to effect its purpose to secure the appearance of the accused for trial at the time specified.</p>

<p>1. CONVEYANCE: Deed to Husband and Wife: Title in Survivor. The owner of land and his wife conveyed his land to their daughter, and the daughter by another deed conveyed it to her father and mother. Held, that the last deed created an estate by the entirety in the father and mother, and upon the father’s death the entire legal fee simple estate remained in the mother.</p> <p>2. -: -: Intended as Mortgage: Presumption: Character of Proof. The presumption of law is that a warranty deed regular in form is not a mortgage, but was intended to be what it purports to be, and it will not be decreed to be a mortgage unless the presumption is overcome by clear and convincing proof.</p> <p>3. -: -: -: No Debt. A conveyance cannot be held to be a mortgage unless it is made for the purpose of securing the payment of a debt or the performance of an existing or future obligation.</p> <p>4. -: -: — : -: Bond for Support. A, deed from the owner of land to his daughter will not be decreed to be a mortgage, when construed in conjunction with a bond of even date executed by the daughter by which she obligated herself to support her father and mother during their lives and to permit them to remain upon and use the land as a home, and to pay $1500 in case she defaulted in the performance of the obligation. There was no debt or obligation from the grantor to the grantee.</p> <p>5. ESTATE BY ENTIRETY: Claim of Homestead: Waiver. A widow, who does not know-that she is the owner of an estate by the entirety in the land, does not waive her fee simple title to the entire estate by claiming a homestead interest after her husband’s death.</p> <p>6. --: Waiver. There can be no waiver without a knowledge of the rights waived and an intention to waive them.</p> <p>7. -: Estoppel: Prejudicial Misleading. If the surviving widow, to whom and her husband a conveyance of an estate by the entirety had been made, by claiming a homestead in the land did not cause her husband’s heirs to do or to refrain from doing anything which worked to their financial loss or prejudice, they cannot invoke the doctrine of equitable estoppel.</p> <p>8. -: Fraudulent Conveyance: Raised by Party Without Interest. The point that a deed was fraudulently procured by the grantees cannot be raised by persons who will in no wise be benefited if the deed is set aside. Where a valid warranty deed was made by a daughter to her father and mother, the children of the said father by a former marriage cannot raise the point that a deed by the surviving widow to her said daughter was fraudulently procured, since if it were set aside the title would not pass to them, but to the heirs of the grantor.</p>

<p>1. WILL CONTEST: Testamentary Incapacity: Sufficient Evidence. The testimony in this case, which was brought by children to set aside the will of their father, seventy-eight years old, made éighteen days before he committed suicide, is set out at length, and the conclusion reached that there was sufficient evidence to authorize the submission of the issue of devisavit vel non to the jury.</p> <p>2. -: -: Delusion: Sufficient Evidence. The evidence in this case was sufficient to justify a submission to the jury of the question of whether testator, at the time he executed his will, was laboring under an insane delusion that undue intimate relations existed between his son-in-law and a young girl who was a member of his family, that such false and mistaken conception was not based upon fact, that he did not have before him evidence acting upon which any normal or rational mind would have formed such belief, and that the will was the offspring of such delusion.</p> <p>3. -: -: Insane Delusion: Pertinent Evidence. There is no such thing as a delusion founded upon substantial facts; but it is not sufficient for a ruling as a matter of law that testator possessed no insane delusion, that testimony be produced at the trial that he had some evidence, even though of an unsubstantial character, for his belief that illicit relations existed between his son-in-law and a girl in his family; but the question for determination is, did he have before him at the time he executed the will evidence acting upon which any normal or rational mind would have formed such a belief? If there is testimony from which the jury would be justified in finding that testator was insane on the subject of such an illicit intimacy, and' that the will was the fruit of I such insanity, then the existence of the delusion at the time the will was made, being a mistaken and false mis-' conception, becomes a question for- the jury.</p> <p>4. -: -: Subsequent Occurrences. There is no hard-and-fast rule as to the incompetency of evidence on account of remoteness. Post cards written by testator a few days after execution of his will, to his granddaughter, there being no noticeable change-in his mental condition between the two events,, are competent evidence bearing on his testamentary capacity.</p> <p>5. --: -: Opinion of Lay Witnesses: Self-Invited Error. An appellant, who by his conduct at the trial invites the error of which he subsequently complains, whether it be in the instructions asked or the evidence produced, is not on appeal entitled to a ruling that such error was prejudicial. It- is an invasion, of the province of the jury to permit lay witnesses in a will contest to give their opinions that testator did not have sufficient mind to know the value of his property or to realize his relations towards his children; but if proponents themselves open wide the door-to the admission of such opinions and invite them, both by the direct and cross-examination of witnesses, they will pot, on appeal be entitled to complain that the admission of the opinions ''of respondents’ lay witnesses was prejudicial error.</p> <p>6. -: -: Inheritable Interest. It is not error to refuse to instruct the jury that a granddaughter of testator, a daughter of an insane daughter, named as a devisee, will inherit no interest in his estate if the will is set aside, though it contains a correct statement of the law. It could not aid the jury in determining the issue of testamentary capacity.</p> <p>7. -: ;-: Formal Execution. An instruction telling the jury that the will “was executed in conformity with the provisions of the law relating to the execution of wills’’ should not be given. Since the law requires a will to be executed by one of sound mind, its meaning is too obscure and uncertain; besides, where there is no controversy about the formal execution of the will, the jury need no instruction on the point.</p>

<p>1. NEGLIGENCE: Obstruction of Street by Plaintiff. The fact that the plaintiff maintained a naphtha tank in the street in violation of a city ordinance does not of itself prevent recovery by him for damages when the railroad company backed a freight car off the end of a switch track in the street, which passed on to and struck the tank, causing the naptha to take fire and thus burning his factory in connection with which the naphtha was used. Unless the illegal obstruction was the proximate and efficient cause of the injury it does not totally bar recovery, nor relieve the railroad company for at least nominal damages for the negligent injury done to the tank.</p> <p>2. -: Unforeseen Accident. A party charged with negligence may be held liable for anything which, after the injury is complete, appears to be a natural or probable consequence of his negligent act. The fact that the trainmen, who backed the freight car off the end of a switch track and on to a tank ten feet beyond the end, did not know that it contained an explosive, does not protect the railroad company from damages caused by the explosion.</p> <p>3. -: Contributory: Maintenance of Naphtha Tank. Whether or not the plaintiff foundry company was guilty of negligence in maintaining a tank containing naphtha, which it used in connection with its factory, in the street, against which the trainmen shoved a freight car, after running it off the end of the switch track in the street, causing an explosion and a fire in the factory, and in covering it with a wooden box painted red, with no sign to indicate that naphtha was kept in it, is a question for the jury, and it cannot be said as a matter of law that the keep- \ ing of the tank in said manner and at said place was negligence per se.</p> <p>4. -: Explosive: Violation of Ordinance. The keeping of explosives in violation of a statute or ordinance is negligence.</p>

<p>1. DIRECTED VERDICT: Appellate Rule. The appellate court will not interfere with the action of the trial court in refusing to direct a verdict for defendants where there was substantial evidence to support a verdict for plaintiff.</p> <p>2. -: -: All Evidence Considered. The probative’ force of the substantial evidence necessary to sustain the verdict rendered for plaintiff is not to be tested by that adduced by him alone, although in 'passing on a demurrer thereto every reasonable inference deducible therefrom is to be taken as true; but it also may be aided by such of defendant’s evidence that helps to make out plaintiff’s case. /</p> <p>3. -: Inferences from Proven Facts: Proximate Cause. The testimony of plaintiff, a brakeman of a freight train which had stopped to take water, was that after it had started and was running at a rate of five, to seven miles per hour he attempted to swing himself upon a car by grasping an iron stirrup and was thereby lifted off the ground and while his feet were in mid-air they struck an obstacle, making a sound as of pieces of iron striking together; that the impact broke his hold on the stirrup, causing him to fall; and that when he recovered from a condition of unconsciousness he saw a keg of spikes near his feet. On the day of the accident the track at the point had been repaired, by taking out old and putting in new ties, and spikes had been pulled from the .old ties, and inferably placed in the keg. Held, that the jury were authorized in making the inference that the railroad trackmen had left the keg at the place where it was found after the accident, and that under the facts proved and circumstances shown the plaintiff’s fall was caused by his legs - striking the keg.</p> <p>4. -: Proximate Cause: Question for Jury. The determination of the proximate cause of an injury, whether it be the original negligence of one party or the intermediate negligence of another, is ordinarily one for the jury.</p> <p>5. -: -: Character of Evidence. Direct evidence to establish negligence is not required, but it may be sufficiently shown by facts and. circumstances. The proof must do more than raise a conjecture as to the cause of the injury; it must show with reasonable certainty that the cause for which defendant is sought to be held’liable produced the injury; but it is only when the evidence with all the inferences that the jury may reasonably draw therefrom is insufficient to support a finding for plaintiff, that the court is authorized to direct a verdict for defendant.</p> <p>6. CONTRIBUTORY NEGLIGENCE: Instruction: Burden: Restriction to Plaintiff’s Evidence. Under the Federal Employers’ Liability Act an instruction for plaintiff which places upon the defendant the burden of proving contributory negligence is not error. Nor under the circumstances of this case can defendant complain that to such instruction was not added the clause: “unless the jury find from plaintiff’s own evidence and the witnesses introduced by him that he was guilty of contributory negligence.” The instruction given did not specify what things were done or known by plaintiff, and if defendant desired an amplication or qualification of it in order to present its contention to the jury, it was its duty to ask a proper instruction, appropriate to the evidence and pleading, presenting that view.</p> <p>7. -: -: Pleading: Proof. If contributory negligence is not pleaded an instruction presenting it as a defense should not bo given; and if pleaded and there is no evidence to support the plea, no instruction on the subject should be given. Where defendant’s only plea of contributory negligence was that, if plaintiff was injured, it was the result of his own negligence in attempting to climb on a moving freight train without properly using the stirrup, an instruction declaring that he was guilty of contributory negligence if he did not intelligently use the means at hand to ascertain if there were any pitfalls or obstacles on the right-of-way against which his feet might strike as he attempted by grasping the stirrup ,to mount the moving car, would have been improper.</p> <p>8. NEGLIGENCE: Obstacle Beside Track. Where it is necessary for a brakeman of a freight train, in order to mount a moving car, to grasp an iron stirrup or hand-hold while running along-side the car, he is authorized in assuming that the right-of-way is clear of obstructions, such, for instance, as a keg of railway spikes.</p> <p>9. VERDICT: Excessive: $10,772: Simulated Injuries. Where there is substantial evidence that plaintiff’s injuries resulting from the accident were a bruise on the thigh and back, hydrocele of the right testicle, rupture of a ligament of the cervical vertebrae resulting in the depression of the seventh,vertebra, an injury to the, spinal cord, paralysis of the lower limbs involving the motor and sensory nerves, a subluxation of the lumber vertebrae, anesthesia of the muscles and nerves of the back extending from the shoulders to the waist line, a loss of the reflexes of the knees and feet, traumatic neurasthenia, and that the injuries are progressive and permanent, the court cannot say, even though other medical experts gave contradictory testimony,' that the injuries are feigned, or that a verdict for $10,772 is excessive.</p> <p>10.--: -: Federal Court Rule. In cases coming within the purview of the Federal Employers’ Liability Act, it is in harmony with the purposes of the statute to adopt the measure of damages sanctioned by the Federal courts, which is that no limitation is placed by the statute on the amount that may be recovered, except that of the damages actually sustained.</p> <p>XI. -: Measure of Damages: Other Cases as Guide. On account of the difference in the facts, there can be no hard-and-fast rule for the measure of damages in a personal injury case. A similarity in the awards in cases of like injuries may serve as a general guide, but it furnishes no exact rule by which the damages may be estimated in a given case.</p> <p>X2. EXPERT TESTIMONY: Conclusion. Where the hypothesis is based upon an established fact that plaintiff received certain injuries on a given date, it is not prejudicial error to permit the 'expert witness to testify that the condition will be progressive and he will be rendered helpless, if the testimony is followed by an instruction tbat “the opinions of expert witnesses neither establish nor tend to establish the truth of the facts upon which they are based,” and similar testimony was admitted without objection.</p> <p>i3. -: -: Waiver. A litigant will not be heard to complain of the admission of advisory expert testimony over his objection, where evidence of the same tenor has been admitted without his objection.</p>

<p>1. UNCONSTITUTIONAL STATUTE: Application. A statute may be unconstitutional as to part of its subject-matter and valid in its application to other parts.</p> <p>2. INTOXICATING LIQUOR: Delivery by Purchaser’s Agent. Section 2 of the Act of 1907. (Sec. 7227, R. S.. 1909) made unlawful the transfer of the possession of intoxicating liquor from one person to another, in a Local Option county, when by the act of transfer there was no change of ownership. That section made the delivery to the purchaser by the purchaser’s own agent a violation of its provisions.</p> <p>3. -: --: Direct Delivery to Purchaser by Carrier. Section 7228, Revised Statutes 1909, is an exception to the operation of Section 7227, and relieves of its unlawful character the delivei’y of intoxicating liquor by one person to another in a Local Option county, where the deal, or order, is direct' between the seller outside and the purchaser inside such county, and where the agency of no person who would profit by the traffic except as a common carrier intervenes between such seller and purchaser.</p>

<p>1. PUBLIC SERVICE: Motive for Discontinuance: Law of Case. The motive for discontinuing the supply of electricity to citizens of a town by a firm which for sometime had essayed to furnish it to some of them, is of no concern to the courts in determining whether said firm had a legal right to discontinue the service. If the citizens are not under the law entitled to the service, no motive, however reprehensible, for discontinuing it, can serve as a sufficient reason to any court to compel a restoration of it.</p> <p>2. .-:-: Public Utility. If the firm which had essayed to sell electricity to a limited portion of the citizens of a town is a public utility, no ill-feeling growing out of a Local Option election and no lack of facilities to furnish the service, will serve as an excuse for discontinuing it, because the Public Service Commission has power to compel the firm to provide reasonable and ample facilities; but if it is not a public utility, no excuse is necessary.</p> <p>3. -: Public Utility: Corporate Powers: Ultra Vires. In determining whether or not a corporation is a public utility, the important thing is not what its charter says it may do, but what it actually does. If the things it does constitute it a public utility, it will not be heard to say that those things are ultra vires of its charter powers, or to urge its own wrongful aggressions to escape its obligations to render the public service.</p> <p>4. -: -: Definition: For Public Use Understood. While the statute defining an “electrical corporation” and an “eiectric plant” does not contain -the words “for a public use.” they are to be understood and to be read into it. An electric plant must of necessity be devoted to a public use before it is subject to public regulation.</p> <p>5. -:-: Private Person. A single person, having constructed an electric plant solely for private use, may, by holding himself out as willing and ready to serve the public, by such profession and by the furnishing of a general public service, become a public utility.</p> <p>6. -: -: -: Subject to Full Regulation. If a private person is a public utility, he is such within the whole purview and for all inquisitorial and regulatory purposes of the Public Service Commission Act.</p> <p>7. -: --: This Case. A brewery corporation, whose stock was owned by M. O. Danciger and his brothers, was engaged in the brewing of beer, in a town of 1000 or 1500 inhabitants. It installed a plant for producing electric light and operating by electricity the machinery used in the brewery. Discovering that it was able to produce more electricity than it needed for those purposes, it began to make special private contracts to furnish current for light and power to certain private persons within three blocks of its plant, about thirty in all, and also furnished thirty street lights, for five or six of which it received $19.50 per month, the others being furnished gratuitously. It was not incorporated for this purpose, and the contracts were made with M. O. Danciger & Company, which was simply a trade name of M. O. Danciger. He had no distributing system, and the persons who bought electricity from him constructed their own wires to the electric plant and installed their own meters. He had no franchise or license from the town, neither in his own name or his trade name or any other, nor did he have any permission to erect poles or wires upon the streets or alleys, nor did he have or assert the power of eminent domain, nor did he at any time expressly profess a readiness or willingness to furnish electricity to all persons within the town, or to all those within the restricted three-block area. Held, that he was not a public utility, and the Public Service Commission has no power to compel him to continue the service or to regulate it. It cannot be said that a private company which undertakes to sell no more than its surplus electricity to a few near-by citizens, and not to the public generally, is engaged in a public business.</p> <p>7. -: Police Power: State Regulation: Private property. The police power is bottomed and wholly dependent upon the devotion of private property to a public use. The Constitution forbids the regulation of and the exercise of inquisitorial authority over property devoted to private use, and before the State can exercise such regulation the property must be devoted to a public use.</p>

<p>1. ORDINANCE: Arbitrary WiU of Officer. Neither the Legislature nor the city can commit to the unrestrained will of a single- officer the power arbitrarily to favor one individual in the use of streets and to deny such favor to others.</p> <p>2. -: -: Drivers: Obedience to Direction of Police. An ordinance declaring that "drivers must at all times comply with any direction by voice or hand of any member of the police force, as to stopping, starting, approaching or departing from any place" puts the citizen in the arbitrary power of the police officer regardless of the circumstances of the case, is subject to the objection that it deprives persons of equal protection of the laws, and is invalid; and however meritorious may be the city’s case against an offender, he cannot be convicted of its violation.</p> <p>3. -: - — : Entrance to Building. A large eight-story office building fronting on a busy street must have an entrance from the street, as well as from the sidewalk; and a proper place marked off between posts and placarded with a sign warning all persons not to stand their vehicles between the posts, is a reasonable regulation; but an ordinance making the use of such placarded entrance dependent upon the direction of a policeman, is invalid.</p>

<p>1. TAXATION: Lots Leased for Military Purposes: Exception. The statute (Sec. 8378, R. S. 1909) providing that “all buildings leased by the State for military purposes shall be exempt from taxation for all purposes during the period of such lease and use” contains no exception, and if it is not in conflict with the constitutional provision which exempts property “of the State” and declares that all laws exempting property other than that enumerated shall be void, property leased for the National Guard is not subject to taxation, whether it is used exclusively for such purpose or not.</p> <p>2. -: -: Exception as to Exclusive Use. The decisions which hold that property is not exempt from taxation unless used “exclusively” for educational, charitable or religious purposes, are not controlling in determining whether buildings leased by the State for military purposes shall be exempt, because they interpret a statute requiring such “exclusive use',” whereas the statute concerning the leasing of property for military purposes contains no such provision.</p> <p>3. -: -: Buildings Mean Lots. The evident intention of the statute declaring that “all buildings leased by the State for military purposes shall be exempt from taxation for all purposes during the period of such lease or use” was that the lot upon which the buildings are situated should be exempt.</p> <p>4. -: -: Constitutionality of Statute: Not Decided. Where in the suit for taxes the defendant pleaded that the lots were exempted by the statute declaring that “all buildings leased by the State for military purposes shall be exempt from taxation for all purposes,” and the plaintiff did not plead that such statute is unconstitutional, the court is not called upon to rule that such statute is violative of the provision of the Constitution which exempts property “of the State” and certain other property enumerated and declares that all laws exempting property other than that enumerated shall be void.</p> <p>5. -: Premature Suit. A suit filed in December, 1913, for the taxes assessed in 1912, which were payable in 1913, is premature, because the taxes were not delinquent until January, 1914.</p>

<p>1." PUBLIC ROAD: Evidence: Transcript of County Court Record. In the trial in the circuit court of a proceeding to establish a public road, where the issue as to damages is not being tried, but the only issue is the one of the public necessity of the proposed road, certified copies of the roll and record of the proceedings in the county court are proper evidence.</p> <p>2. -: Necessity: Established Cross Road. The existence or nonexistence of a parallel road one half mile distant from the proposed road, and whether it has been established by dedication or general use, or has a definite location, it not conclusive of the public necessity of the proposed road. Under the statute (Sec. 10437, R. S. 1909) the public necessity of a proposed road does not depend upon a showing that no other possible egress or ingress for the public use exists.</p> <p>3. -: -: Conflicting Evidence. A proceeding to establish a public road is an action at law, and if the evidence on the question of its public necessity is conflicting and there is ample evidence to justify the court’s finding that there is a public necessity for the road, the Supreme Court will not interfere with the finding.</p> <p>4. -: Notices: Certified Copy of Affidavit. An objection that a certified copy of the affidavit filed in the county court showing proper posting of notices of the intended application for the establishment of a proposed public road is not the best evidence and should not have been admitted in evidence in the trial on appeal in the circuit court until the loss of the original was accounted for, made for the first time in the Supreme Court, will not be ruled.</p> <p>5. -: Damages: Jury Trial: After Appeal. Upon an. appeal from .the judgment of the county court “in ordering the establishment of a public road,” the appellants are not entitled to a jury trial to determine the amount of damages sustained by them by reason of the appropriation of their land, or to have the question of damages considered at all. An appeal from the judgment of the county ' court opening or establishing the road, and from that order alone,' does not give the circuit court jurisdiction to try de novo the question of damages adjudged by separate judgments in the county court.</p> <p>6. -: -: No Request for Jury Trial. If appellants made no attempt in the circuit court to have a retrial of the question of damages, they cannot be heard to complain in the Supreme Court that they were denied a jury trial on that question.</p>

<p>1. CONSOLIDATED SCHOOL DISTRICT: Valid Statute. Section 10776, Revised Statutes 1909, is a valid enactment and applicable to “school districts that may be hereafter organized under the laws of this State,” and is therefore applicable to a consolidated school district organized in pursuance to a subsequent statute.</p> <p>2. -: Forfeiture of Franchise: Failure to Maintain Eight Months’ School. Section 10776, Revised Statutes 1909, declaring that “whenever any school district . . . shall fail or refuse, for a period of one year, to provide for an eight months’ school in such year, provided a levy of forty cents on the one hundred dollars’ valuation, together with the public funds and cash on hand, will enable them to have so long a term, the samo shall bo deemed to have lapsed as a corporate body,” was only intended to affix a forfeiture for failure to provide an eight months’ school when such omission did not result from inability to have so long a term, or where the failure was purposeful or intentional on the part of the school district. It has no application to a consolidated school district to" which, during the pendency of litigation in which the validity of its organization is drawn in question, the county officers refuse to credit or pay the school taxes, and which because of those facts is unable to conduct a school, but nevertheless in entire good faith endeavors, as far as possible, to exercise its corporate franchise.</p> <p>8. -: -: Failure to Maintain Elementary Schools. The terms of Section 4 of the Act of 1913 (Laws 1913, p. 723), making it the duty of a consolidated school district to maintain an elementary school within a named distance of pupils, in case no transportation is provided for, do not condition an automatic fortfeiture of the district’s corporate franchise upon its nonobservance, and the courts will not make a failure to observe its requirements a ground of forfeiture. [Criticizing State cx rel. v. School District. iá5 Mo. App. 507.]</p>

<p>1. PUBLIC SERVICE UTILITY: Contract Bate: Commission Bate. Where a public service corporation by written contract agreed to supply electric energy to a private manufacturing company for a designated length of time at designated rates, higher rates subsequently fixed by the State Public Service Commission by the adoption of a schedule of rates applicable for all service of the kind furnished by the public utility, if reasonable, supersede such contract rates, and the manufacturing company is not entitled to an injunction restraining the public service corporation from discontinuing the service upon a refusal to pay such higher rates.</p> <p>2. -: -: Police Power. The power to fix the price at which a public utility corporation is to furnish electricity to the public arises from the police power of the State, which under the Constitution cannot be abridged by contract between the corporation and private citizens; and where the Legislature has by statute designated the Public Service Commission as the instrumentality to exercise such rate-making power, and it In conformity with the statute fixes a schedule of reasonable rates for public service within the bounds of a city, its rates automatically supersede all contract rates coming in conflict with them.</p>

<p>1. CONSTITUTIONAL LAW: Hospital Act: Purpose. The Act of 1917 (Laws 1917, p. 145) authorizing counties to establish and maintain public hospitals, and to levy a tax and issue bonds therefor, has for its primary purpose, as shown by its terms, the providing for the construction of public county hospitals and the creation of a public debt for that purpose. The rate of taxes to be levied for the purpose of paying the debt was not the main purpose nor a vital element of the act.</p> <p>2. -: -: Rate to Pay Debt: Self-Enforcing. That part of the Constitution requiring a municipality, when creating a debt beyond the income and revenue of the current year, to “provide for the collection of an annual tax sufficient to pay interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty years,” is self-enforcing, and is effective without legislative action.</p> <p>3. -: -: -: Limited to Two Mills Tax. So much of the County Hospital Act of 1917 as undertook to fix a maximum rate of two mills on the dollar-valuation of property as the tax to be levied to pay the bonds was a work of supererogation, since the Constitution itself requires “an annual tax sufficient’.’ to pay the interest and principal of the debt within twenty years, which is as much a part of the act as if it had been written into it. If the rate of two mills on the dollar is sufficient then it is a valid rate; and if not sufficient, then the limitation to two mills is harmless, because the constitutional requirement proprio vigore was substituted for it.</p> <p>4. -: -: Limitation of Tax Bate: Separate From Best of .Act. Where some portions of a legislative act are invalid and, after they are separated from what is valid, a law in all respects complete and susceptible of constitutional enforcement is left, which the Legislature would have enacted had it known that the ex-scinded portions were invalid, the act will he upheld. It is apparent from the terms of the County Hospital Act of 1917 that the Legislature would have enacted it had it contained no provision limiting the rate of taxation to pay the bonds to two mills on the dollar; and disregarding all its provisions relating to the rate of taxation, since the Constitution itself supplies them, a valid and complete act remains.</p> <p>5. -: -: Anticipation of Eevenue. The County Hospital Act of 1917 was not enacted in pursuance of the powers or with reference to the objects specified in Section 11 of Article 10 of .the Constitution, and hence it is not invalid as an attempt to authorize the issuance of bonds in anticipation of collection of increased rate of taxation.</p>

<p>1. SEDUCTION: Corroboration. While it is not necessary, in a prosecution for seduction, that there shall be two witnesses to sustain the charge, nor need the corroborative evidence be tantamount to another witness, it must be sufficient to counterbalance the testimony of the accused and thus remove the legal presumption .of his innocence.</p> <p>2. -: -: Promise of Marriage. In a prosecution for seduction corroborative testimony is required only as to the promise of marriage, and may consist of circumstances, but must come from others than the prosecutrix. It may consist of evidence of such conduct on the part of the parties as usually accompanies a promise of marriage, or admissions of the defendant, or continued attentions by him to prosecutrix, covering a long time, including frequent visits, during which she kept no other company, and proof of preparations for marriage made by prosecutrix following a continuous courtship is competent.</p> <p>3. -: Promise of Marriage: When Made. In a prosecution for seduction it is not necessary that the promise of marriage be made immediately preceding the intercourse; all that is necessary to show is that if made then or previously defendant thereby accomplished prosecutrix’s seduction.</p> <p>'4. --: Proof That Prosecutrix Was Unmarried. It is essential in a seduction case that it be made to appear by evidence that prosecutrix was unmarried; but such status may be shown by facts and circumstances. So where prosecutrix testified that she had- never had sexual intercourse with any one except defendant, that he told her that if she got into trouble on account of her relations with him he would marry her at once, she bore her parent’s name, was questioned throughout the trial as ‘’Miss,” was referred to as “this girl,” and the details of her manner and place of living and of her associations with defendant indicated an unmarried status, the evidence was sufficient to support a finding ' that she was unmarried, although there was no affirmative statement 'by any witness that she was unmarried.</p> <p>5. -: Barter for Promise. The forceful facts of this case, showing the bringing into play by defendant of the arts and blandishments of the seducer, leave nothing on which to base a contention) that, instead of being seduced within the meaning of the statute, prosecutrix bartered away her virtue in exchange for a promise of marriage.</p> <p>6. -: Instruction: Argumentative: Comment on Evidence: Attributing Pregnancy to Betrayal. An instruction which is argumentative in form, and an improper comment on the testimony of prosecutrix, should be refused; and an instruction in a seduction case, which tells the jury that they should “scrutinize the testimony of the prosecutrix very closely, for the law assumes that a woman, finding herself pregnant, has the most potent motives to assert her condition was brought about by a promise of marriage, for very obvious reasons: she must excuse the act to her family, to her friends and to society, and every consideration would impel her to attribute it to deception and betrayal,” is such an instruction.</p> <p>7. -: -: Corroboration of Promise: Preparations for Marriage. There being positive testimony by others than prosecutrix that after the promise she had made preparations for marriage, and defendant having made no effort to show that they were not made nor to question their good faith, the trial court did not err in giving an instruction authorizing the jury to consider the preparations she had made for housekeeping as one of the corroborating circumstances of the promise of marriage, “although it has not been shown that defendant had knowledge of such preparations.”</p>

<p>1. WILL: Attestation: Knowledge of Witnesses. There can be no valid attestation of a will unless the attesting witnesses know at the time that the instrument is being made and attested as a will.</p> <p>2. -: -: Presumption of Knowledge: Genuine Signature. If the instrument purports on its face to be a will and the signatures of the witnesses are conceded to be genuine and those witnesses, though still living, have forgotten the facts as to such attestation, the law may well presume, in the absence of contrary evidence, that all things connected with its execution and attestation were rightly done, and that" the witnesses were informed that the instrument was a will; but such presumption cannot be indulged where the instrument does not púrport to be a will; it will not be indulged if the instrument is in the form of a letter, and the maker concealed from his stenographer the name of the alleged legatee and after the balance was written by her he wrote in the beneficiary’s name, and after it was signed by him and the two witnesses he placed it in a sealed envelope and wrote on it: “In the event of my death I want this letter to be delivered unopened” to a designated friend, and then placed it in a vault among his papers, where it remained until after his death, twelve years later.</p> <p>3. -: -: -: Overcome by Evidence. Even if the law, in the absence of contrary evidence, will- presume that witnesses, whose signatures are conceded to be genuine, were informed by the maker that the instrument, which purports on its face to be a will, was his will, such presumption may be overcome by evidence; and where there is strong evidence to overcome it, the finding of the trial court against the paper will not be disturbed on appeal.</p>

<p>1. JURISDICTION: Lewis County: Circuit Court at Canton. In view of the previous decisions of this court it is held that the circuit court at Monticello has original jurisdiction of a suit to set aside a deed to land lying “east of the range line between ranges .6 and 7.”</p> <p>2. FRAUDULENT CONVEYANCE: Purpose: Payment of Consideration. The purpose of an ante-dated conveyance by a cotenant, against whom suit had been brought by a neighbor for alienating his wife’s affections, to his two brothers, may be deduced from a survey of all the facts connected therewith. And if they show a purpose on the grantor’s part to put the property beyond the reach of an execution which might follow an apprehended judgment, the conveyance was fraudulent on his part; and if the grantees accepted the deed with a knowledge of his fraudulent purpose, and with the intent to assist him in the perpetration of the fraud, it was a fraudulent transaction on their part, and the deed should be set aside at the suit of the judgment creditor, notwithstanding the grantees may have paid the grantor what the property was worth.</p> <p>3. -: -: Facts for Consideration. And in determining whether fraud existed on the part of both grantor and grantee, the court is authorized to take into consideration their relationships to each other, the manner in which their business was conducted both before and after the deed was made, and thej continued exercise of authority of the grantor over the property after the execution of the deed.</p> <p>4. -: Failure to Testify. Where the petition directly charges fraud against the grantees and grantor of a. deed, their unexplained failure to appear and testify is to be regarded as a strong circumstance against them, whether they were subpoenaed by plaintiff or not.</p>

<p>1. QUIETING TITLE: Character of Action: Pleading. The character of an action brought under Section 2535, Revised Statutes 1909, is determined by the issues which the pleadings raise. If they present issues of equitable cognizance the action becomes a suit in equity, but a straight action under the statute, in the terms oí the statute, is an action at law.</p> <p>2. -: -: Converted by Answer: Affirmative Equitable Relief. Where the petition in a suit brought under Section 2535 states au action at law; an answer which sets up an equitable defense and aslcs affirmative relief converts the action at once into a suit in equity, so that the rules of equity apply; but the setting up of an equitable defense does not so convert the action unless affirmative equitable relief is prayed.</p> <p>3. -:-: Forfeiture: No Prayer for Affirmative Relief. Where the petition follows Section 2535 substantially in the allegations of plaintiffs’ rights and the defendants! claim, and prays the court to hear and determine all the rights, claims and interests whatsoever' of the parties, to adjudge and decree that plaintiffs are the owners and to award them possession, and the answer, after ■ stating reasons why a certain condition named in defendants’ deeds should not work a forfeiture of their title, prays the court to adjudge that plaintiffs “have no right, title or interest in or to said property, and that the title to said property be quieted and confirmed in these defendants free from any claim of the plaintiffs, and for such other and further relief as to the court in equity and good conscience may seem meet and proper,’’ it does not contain a prayer for affirmative equitable relief, and the action is not, therefore, converted into a suit in equity, but remains an action at law.</p> <p>4. -: Findings of- Trial Court: Binding On Appeal. If the suit brought under Section. 2535 is an action at Jaw, the findings of the trial court, if supported' by substantial evidence, are binding on the appellate court.</p> <p>5. CONVEYANCES: Condition: Occupation by Negroes. Where the deed contained a condition that the property “shall not be sold, leased or rented to negroes,’’ a breach is shown if a part of the building on the lot was leased to negroes, the intention of the restriction being to prevent negroes from coming on the premises as tenants; and the deeds must be interpreted in accordance with that manifest intention, as gathered from them as a whole.</p> <p>6. -: Restrictive Sale or Use: Forfeiture. Forfeiture is a harsh remedy and where a stipulation in a deed can be construed as a mere restrictive covenant and not a condition, so as to avoid a forfeiture, it will be so construed; and the question is.to be determined from the language used, the situation of. the parties, their relation to’the subject of the transaction, and’the object in view; but where the language is unmistakable, particularly where there ■ is a provision for re-entry upon a breach of the condition, or where the right to re-enter is plainly implied, it is a forfeiture.</p> <p>7. -: Sale or Lease to Negroes: Forfeiture. The deed contained a condition that the “above described property shall not be sold, leased or rented to any negroes for twenty-five years from date hereof, and in event.of such transfer, lease or rental before the expiration of said term, said property shall revert to grantor or sellors without process of law or equity.” Held, to provide, in perfectly clear language, for a forfeiture on breach of condition and for a re-entry; and if not clearly expressed, forfeiture is implied in the language used. Such condition does not come within the rule prohibiting restraints upon alienation.</p> <p>8. -: -: Restraint Upon Alienation. It is within the right and power of a grantor to impose a condition or restraint upon the power of alienation in certain cases to certain persons, or for a certain time, or for certain purposes.</p> <p>9. -;-: Public Policy. A condition in a deed that the prop- ■ erty is not to be “sold, leased or rented to negroes for twenty-five years” is not vofd as against public policy. The purpose of the restriction being to preserve the property, together with other property in the neighborhood, as a district unoccupied by negroes, it comes within the rule that conditions in deeds which prohibit the. use of property for certain purposes, in order that it may become more desirable as places of residences for families, are valid.</p> <p>10. -: -: Perpetuities. A stipulation in a deed whereby the title is to revert to the grantor upon entry for breach of a condition subsequent, is not within the rule against perpetuities. The courts will not refuse to enforce a forfeiture for a breach of a condition in a deed that the property was not to be “sold, leased or rented to negroes for twenty-five years- from date,” on the ground that the condition violates the rule against perpetuities, although the event upon which forfeiture might be declared might occur after every one in interest was dead and' more than twenty-one years and ten months thereafter had elapsed.</p> <p>11. -: -: Change in Conditions^ Question of Fact. If the purpose of a condition in a deed declaring that the property “shall not be sold, leased or rented to negroes” can no longer be accomplished, owing to changed circumstances, such as the growth of the city and the present use by negroes of the whole neighborhood, and it would be oppressive and inequitable to give effect to- such condition, it will not be enforced; but where the evidence as to such changed circumstances is conflicting, the appellate court will accept the finding of the trial, court that tliere had been no such change, as conclusive in a law' case, and will not refuse to enforce the condition on such ground.</p> <p>12. QUIETING TITLE: Possession. The amendment of 1909 to Section 2535 did not enlarge the scope of the statute so. as to' either repeal the statutes relating to ejectment or to provide for giving possession in an action brought under it; but plaintiff can add a count in ejectment to his petition to ascertain and determine the title, and if instead of adding such count he prays the court to adjudge him entitled to possession and to award a writ of possession in his favor, and no objection is made to his pleading, by motion to elect or otherwise, the court can award him possession.</p> <p>13. -: -: Improvements: Compensation. The amendment of 1909 to Section 2535 does not permit compensation to he allowed to defendant for improvements put upon the property unless compensation is “asked for in the pleadings.” And under Section 2401 and other sections of the Ejectment Act compensation for improvements cannot he assessed in favor of an unsuccessful defendant “in the same case.” Consequently the court, having found all the facts necessary to entitle plaintiff to possession and rendered judgment accordingly, cannot award a new trial on the ground that “defendants are entitled to compensation for improvements on the property.”</p>

<p>1. MOTION FOR NEW TRIAL: Reasons for Ruling: Facts Established. Where the motion for a new trial does not allege that the court improperly found any fact, and designates as the only error that the judgment for defendant was for the wrong party, it will be assumed on appeal from an order granting a new trial that the disputed facts were found in appellant’s favor, and the question for determination is one of law, that is, whether on the facts found the judgment was against the' law.</p> <p>2. ROAD DISTRICT BONDS: Validity: Power to Issue: Collateral Details. The purchaser of road district bonds, for value before maturity, in the usual course of business, is not required to ascertain if all matters of detail in their issuance were regular. If the commissioners were empowered to issue them and they appear upon their face to have been issued in conformity with the statute,. he is not chargeable with notice of collateral facts as to whether the contract for the public improvement was properly entered into or faithfully performed.</p> <p>-: -: Collateral Matters: Plans of Construction, Etc. Those parts of the statute (Sec. 10618, R. S. 1909) requiring the commissioners of a road district to employ an engineer to draw plans, advertise for bids and enter into a contract for the construction of the roads, relate to matters preliminary and collateral in their nature, over which a bona-fide purchaser of the district’s bonds has no control, and hence they do not affect their validity.</p> <p>4. -:-: Derelictions of Contractor. The bona-fide purchaser of road district bonds cannot be held responsible for the failure of the contractor, over whom he had no control, with whom he had no contract and was not in privity, to complete the work within the time required by his contract, or to surface the road the agreed depth with crushed stone, or because he abandoned the contract before the work was completed.</p> <p>5. -: -: Certification of Amount. The proviso of Section 10620', Revised Statutes 1909, as amended in 1911, requiring the commissioners of a road district, after its bonds have been issued and attested, to “make out and certify to the county clerk a statement of the amount of the bond issue, and a description of each tract of land within a certain distance of the proposed road, and acknowledge and file the same with the county clerk,” can only be complied with after the bonds have been issued, and a failure to comply with it does not affect the validity of the bonds.</p>

<p>1. DEPOSITION: Admission: By Agent of Party. In order that the declarations of an agent may bind his principal as an admission the declarations must have been made during the continuance of the agency and in regard to the transaction then depending; if they were not contemporaneous with the transaction and illustrative of its character, but merely a subsequent narrative of how it occurred, they are not admissible in evidence against the principal. So that where defendants were sued on a cashier’s bond for defalcations occurring prior to his discharge in 1904, statements made by the president of the bank in a deposition taken in 1906 are not admissible as admissions against the bank in its suit on the bond.</p> <p>2. -: Incomplete: Deprived of Right of Cross-Examination: Death of Deponent. Where the taking of the deposition by defendants was not completed, but before the witness’s examination in chief was concluded an adjournment was had at the request of defendants and with the consent of the .parties, and it does not appear that the deposition was not completed on account of deponent’s sickness, or that defendants made any effort thereafter to continue the taking of the deposition, or that the illness of deponent was so serious that the deposition could not have been finshed at some time during the three months that he continued to live, the deposition cannot as such be admitted in evidence over the objection of plaintiff that he was deprived of the right of cross-examination.</p> <p>3. EVIDENCE: Same Rules in Law and Equity. The general rules of evidence in courts of law and in courts of equity are the same, and there seems to be no reason under the code of procedure for applying different rules to the admissibility of testimony.</p> <p>4. -: Errors of Trial Court: Attack by Respondent. Respondent on appeal may attack erroneous rulings of the trial court for the purpose of sustaining his judgment. He may point out errors committed against him in order to sustain a judgment in his favor. Where plaintiff objected to the admission in evidence of a deposition, and was overruled by the referee, who nevertheless made findings in his favor, with which he was satisfied and which were approved by the trial court and judgment was rendered in his favor, he has the right on defendant’s appeal, in an effort to sustain his judgment, to object to the competency of the deposition, and ask the court to exclude it from consideration, because it was erroneously admitted in evidence by the referee.</p> <p>5. -: Suit on Bond: Admission of Principal: Binding on Sureties: Res Gestae. An admission of the principal in an employee’s bond, with respect to matters pertaining to the performance of his guaranteed duties, made while he is engaged in their discharge, is always competent evidence against the surety in the trial of a suit on the bond. And the words “while engaged in the discharge of his duties” mean that any statement made by the principal during the continuance of the term for which the sureties are bound, concerning any transaction during that term, is admissible against the sureties. So that where an investigation of the cashier’s shortage was begun on the fifth of the month and the directors instructed him to make no further entries on the books, and other persons were put in charge of them, although he continued in and around the hank until his discharge on the ninth, a written statement explaining the discrepancies and his false entries made to a director and signed by him on the seventh, was competent evidence against the sureties on a bond which covered the period and made them liable for any loss occasioned by his act.</p> <p>6. CASHIER’S BOND: Directors’ Knowledge of Dishonesty: Concealment: Neglect: Liability of Sureties. If the officers and directors of the bank had knowledge of the cashier’s dishonesty and accepted the bond with such knowledge, without disclosing to his sureties what they knew of his character, the sureties are not liable. But if they were only careless and negligent in failing to ascertain his character, the sureties are liable.</p> <p>7. -: Evidence Not Preserved: Reference Case. If the evidence in regard to an item allowed by the referee in a compulsory reference case of which appellants complain is not preserved in the abstract, the appellate court will not review the matter.</p>

<p>1. CONTRACT WITH STATE: Proof of Existence: Finding by Legislature. A finding by the Legislature of a fact upon which the right to enact a law depends is not to be further inquired into by the courts. So where an appropriation act appropriated a definite sum of money to private persons “in full payment of their claim against the State of Missouri for the plan submitted to the Board of Fund Commissioners for the sale of State Capitol bonds,” and a contract for such a plan could under the statute have been made on behalf of the State with said board, it will be taken as true that an agreement was made between said persons and said board, under which the claim arose. And even if the court were to reserve the right to make an independent finding on the question of fact on the ground that the constitutionality of the act depends on a question of fact, the prior finding of the Legislature that such fact did exist would be treated as prima-facie true.</p> <p>Held, by WALKER, J., dissenting, with whom BOND, C. J., and WOODSON, X, concur, that the plan alleged to have been submitted was rendered voluntarily, with no .implied or express obligation on the part of the board to pay therefor, if the services tendered were not accepted, and the Constitution prohibits the Legislature to appropriate money for a mere submitted plan.</p> <p>2. -: Presumption of Validity: Judicial Question. The courts will -presume that the Legislature passed upon the validity of an agreement made by the board which was empowered to make it on behalf of the State, before it appropriated 'money to pay the obligation which it expressed, unless it is 'deemed a clear violation of the Constitution; but, nevertheless, the validity of the agreement is a judicial question, and the act making the appropriation to pay the claim will not be upheld if the agreement is one that the Constitution makes null and void.</p> <p>3. - — : Fund Commissioners: Power to Contract. Section 11900, Revised Statutes 1909, which authorized and empowered the Board of Fund Commissioners “to enter into contracts, and to refund any part of the bonded indebtedness of the State,” when read in connection with Section 11890, which authorized them to “perform all such acts and things as may be required of them by law,” and the amendment of 1913 to Section 11900, which “authorized and empowered” said board “to enter into contracts and to refund,” did not restrict their duties to refunding bonds, but authorized them to make contracts for the sale of Capitol bonds authorized by the Act of March 16, 1911.</p> <p>Held, by WALKER, X. dissenting, with whom BOND, C. X, and WOODSON, X, concur, that neither said statutes nor any other invested the board with authority to contract to pay for a plan to sell bonds voluntarily submitted to it and never accepted.</p> <p>4. -: Necessary Incidents of Power. In view of the inhibition of the Constitution (Sec. 24, art. 4) that the General Assembly shall have no power “to pay or to authorize the payment of any claim hereafter created against the State . . . under any agreement or contract made without express authority of law,” the power of the Board of Fund Commissioners to enter into a contract relating to the sale of the State’s bonds must be strictly construed, and no such broad meaning of the word “necessity” as “convenient” and “proper” is to be tolerated; but as the board was given express authority to sell the Capitol bonds and power to enter into contracts, they were also given, as necessary to the exercise of such power, the further power to enter into an agreement with private citizens to submit to them a plan to sell the bonds; and as the Legislature in an appropriation act recites that such plan was submitted, the apt appropriating money to pay for the service rendered is not without express authority of law. Held, by WALKER, X, dissenting, with whom BOND. C. X, and</p> <p>WOODSON, X, concur, that no appropriation act derives any operative force from its own terms alone, but something more, ' usually some statute, is necessary to authorize the withdrawal of money from the public treasury; and as the statute authorized the board to sell the bonds at th,e best advantage and required the proceeds to be applied exclusively to the building of a new capítol, furnishing the same and the acquirement of additional ground for a site, and the Constitution prohibits the Legislature to appropriate money in “payment of any claim . . . under any contract made without express authority of law,” the Board of Fund Commissioners had no power to enter into a contract to pay for a plan to sell the bonds, and the General Assembly had no power to appropriate money to pay for a plan for their sale, voluntarily submitted by private persons and never accepted by the board, and no-such power can be implied from the restricted language used, nor did any public necessity for the contract or the plan exist, and it is only when the public interest is involved that a necessity, as an incident to the power granted, can be said to exist.</p> <p>5. -: Capitol Building Fund: Restricted Use. The Capitol Building Fund having been increased from other sources than the proceeds of the Capitol bonds to an amount more than sufficient to discharge the obligation of a contract for a plan for selling the bonds, it cannot be held, as a fact, that an appropriation to pay-said obligation is a diversion of the proceeds of the bonds, whose proceeds were by statute devoted to erecting a capitol, furnishing it and buying additional ground for a site; nor can. it be held, as a matter of law, that the use of the proceeds to pay said obligation would be a diversion of them, since such payment was a necessary expense of floating' the loan and therefore not an unlawful use of the proceeds. [WALKFR, J.. BOND, C. J., and WOODSON, J., dissenting.]</p> <p>6. -: Grant to an Individual: Constitutional Inhibition. The restriction of Section 46 of Article 4 of the Constitution inhibiting the Legislature from granting public money to an individual, is laid upon gratuitous grants. It does not prohibit payment for services rendered the State; for instance, it does not prohibit the Legislature to appropriate money to pay private citizens for a plan submitted to the Board of Fund Commissioners to sell a large issue of bonds.</p> <p>7. -: Certification of Claim. The State Capitol Commission was not entrusted with the sale of Capitol bonds, nor did it have anything to do with claims or demands incident to their sale, and consequently it was not necessary that it allow or certify a claim by private persons for a plan to sell the bonds submitted to the Board of Fund Commissioners,</p> <p>8. JUDGMENT: Allowance in Excess of Demand. Where the Legislature appropriated $25,000 to pay relator’s demand, and they agreed with the Governor, prior to bis approval of the act, to reduce their demand to $20,000, and they asked for a writ to compel the State Auditor to issue them a warrant for $20,00p, and from a judgment against them in the circuit court they appeal, it would be inconsistent with the theory on which the case was tried and submitted in that court, for the Supreme Court to allow them $25,000.</p>

<p>1. ACCORD AND SATISFACTION: Fart Payment: Receipt in FuU: Consideration: Doubt as to Amount Due. A part payment of a debt unquestionably due will not discharge the entire debt, even though receipted in full and based upon an understanding or agreement that it is payment in full, for there is no consideration to support the agreement. But where there is an honest doubt between the parties as to the amount due, and after due consideration the creditor yields to the debtor’s views and accepts what the debtor concedes to be due and gives a receipt in full, and there is no fraud or other ground for equitable relief, the settlement is binding, for the reason that it comes within the principle of .accord and satisfaction.</p> <p>2. -: -: Consideration: Receipt Not Necessary. To make a settlement binding on the creditor as an accord and satisfaction; neither a receipt in full nor even an agreement to accept a part for the whole is necessary, if the creditor knows there is reasonable doubt as to the amount due and accepts the part tendered in full satisfaction.</p>

<p>1. CITY TREASURER: Custodian of City’s Moneys: Agent of Council. It is not necessary to discuss Section 9371, Revised Statutes 1909, declaring that “the mayor and board of aldermen shall have the care, management and control of the city and its finances,” in view of the provisions of Section 9395, declaring that “the treasurer shall receive and safely keep all moneys, warrants, books, bonds and obligations entrusted to his care, and shall pay over all moneys, bonds and other obligations of the city on warrants or orders duly drawn, passed or ordered hy the board of aldermen,” and in view of a city ordinance declaring that the treasurer shall “pay over all moneys belonging to the City according to law,” and in view of the further fact that the money actually passed into his hands as treasurer. In such case he was not the agent of the mayor or hoard of aldermen, although they directed him to deposit the money with a certain trust company, subject to their control. The board has no power to interfere with the disposition of city funds which have passed into his hands as city treasurer, whatever its views of the statute may be, and could neither usurp his duties nor exonerate him from liability for city funds in his hands.</p> <p>2. -: -: -: Public Policy. Sound public policy" does not permit a city treasurer to take into his possession in his name as city treasurer funds of the city of which he is treasurer, hold them for years in an account kept in his name as city treasurer, and when called upon for a balance, relieve himself by showing that the mayor and board of aldermen attempted orally to confer upon him the character of agent, so that he might hold the fund for them and withhold it from himself in his character as treasurer.</p> <p>3. -: -: -: Shown by Oral Evidence. Whether or not the action of the board of aldermen in authorizing the city treasurer to act as their agent in depositing the city’s, moneys may be shown by oral evidence need not be determined, if the board by ordinance duly passed had no power to exonerate him from liability for city funds which actually came into his hands as city, treasurer.</p> <p>4. -:-: Special Deposit. The writing of the words “special deposit” upon the book of the bank in which a city fund was deposited by the city treasurer amounted to nothing under the circumstances of this case, in which there was no suggestion made that the fund was to be segregated from other moneys of the bank and kept intact as a special deposit.</p> <p>5. -:-: Exoneration by Council: Account Stated. The board of aldermen is powerless to exonerate a city treasurer from liability for the balance of a city fund deposited in a bank, where the amount of such balance is undisputed; and where there is no dispute as to the amount,' the reports of the treasurer and the report of an auditing committee which examined one of them does not constitute ah account stated.</p>

<p>1. HABEAS CORPUS: Hot of Legislative Creation. Relief from illegal imprisonment, by habeas corpus is not the creature of any statute. The writ cannot be abrogated by the Legislature. The Constitution (Art. 2, sec. 26) provides that its- privileges shall never be suspended. The Legislature has confined its action principally to facilitating the use of the writ, and the courts cooperate with it in extending these facilities.</p> <p>2. -: Jurisdiction: Appeal. The Supreme Court has no appellate jurisdiction in a habeas corpus proceeding, for an appeal does not lie in such a.proceeding.</p> <p>3. -: -: -: Constitutional Question. Whether or not the statute under which a petitioner is imprisoned is constitutional, if he applies to a court of appeals for a writ of habeas corpus and that court proceeds to final action, whether by discharging him or remanding him to custody, that case is at an end. If not discharged, but is remanded to custody, his course, if he wishes the Supreme Court to determine the constitutionality of the statute and the consequent validity of his imprisonment under the statute, is to apply to that court for its writ. No way is provided, either by the Constitution or statutes, by which the Supreme Court can acquire jurisdiction in a habeas corpus proceeding-otherwise than by- the use of its own writ, directed to be issued either by itself or by one of its judges.</p> <p>4. -:-: Transfer from Court of Appeals to Supreme Court: Constitutional Question. A court Of appeals, having issued its writ of habeas corpus on behalf of a prisoner who alleges he is being .illegally deprived of his liberty, has no authority, when the constitutionality of the statute under which he is held is properly assailed, to transfer the case to the Supreme Court, on the ground that the constitutionality of said statute is involved. The Supreme Court cannot by transfer acquire jurisdiction in a habeas corpus case. [Rule announced in Moberly v. Lotter, 266 Mo. 457, criticized.]</p>

<p>1. SURVEY: Arbiters: Separate Report: Umpire. A stipulation between two adjoining claimants to a parcél of 'land that the dividing line between their respective tracts should be ascertained by two surveyors, one to be chosen by each, and that if they could not agree a third, named in the stipulation, “shall decide all matters of difference between said two surveyors,” did not require that the three should act together and join in one report, but the third could accept the parts of the line agreed upon by the two and proceed to survey the part not agreed upon by them, and file a separate report setting forth his finding. The stipulation did not require that there be one report concurred in by a majority, nor did it require that the third act jointly with the other two.</p> <p>2. -: -: -: Understanding of Parties. Where there is any ambiguity as to the meaning of a stipulation, what the parties did under it, without objection, with the full knowledge of each other, indicates its meaning.</p>

<p>1. JUDGMENT: Entirety. There can be but one final judgment and it must dispose of all parties; but the common-law rule that judgments are entireties is effective only in exceptional cases.</p> <p>2. -: -: Suit on Bond: Corrected as to Non-Liable Defendants. Suit was brought by the county against a defaulting treasurer and his bondsmen. Two of the defendants, sued as heirs of a deceased surety, proved that said surety died before suit was brought on the bond, that his estate had been finally settled in the probate court before the trial of the case and that no claim against the estate was made by the State or county, and they asked the court to direct a verdict in their favor, which request was refused. After verdict they moved for a new trial; whereupon the court set the verdict aside as to them, and rendered judgment in their favor and against the other defendants. Held, that the county might have sued any or all of the sureties, since their liability was both joint and several, and judgment against those shown to be liable was proper, and it being conceded that said heirs were not liable the judgment is not to be reversed because the trial court sustained their motion for a new trial.</p> <p>3. BOND: County Treasurer: Drainage District Funds: Common Law Liability. The bond of a county treasurer, whose terms clearly include all county funds except school funds, the statute clearly requiring him to give bond for all moneys that shall from time to time come into his hands from any drainage district in the county, covers drainage district funds; and if not good as a statutory bond, because not conditioned exactly as prescribed by the statutes, is nevertheless good as a common-law bond, and covers drainage funds of districts organized after it was executed.</p> <p>4. -: -: Interest. By force of the statute (Sec. 3771, R. S. 1309) the county treasurer and his sureties are liable for interest on all moneys belonging to the county appropriated by him, from the day he went out of office, at least, ■ and not simply from the time suit was brought.</p> <p>5. -: •-: Application of Payments; Where the county treasurer did not deposit the funds in his hands separately, but mingled them all in depositing them, the trial court did not err in instructing the jury, in a suit on his bond, that if he was indebted to the county and paid it a less sum than the total due and made no application of the payment to particular funds, the county had the right to apply the payment as it deemed best, and the bringing of the suit upon the bond “is evidence which will authorize you to find there was an application of the payment to his indebtedness, if any, to all funds other than those covered by the bond sued on,” no question having been raised by the sureties at the trial as to whether the county court ordered the suit brought. , If the treasurer failed to direct the application of the fund, the county had the right to do so; and the bringing of the suit on the bond for the whole deficiency would have bound the county, as an application of payment, in any other proceeding, and was substantial evidence of the county’s intention to make the application to the funds mentioned in the instruction.</p> <p>6. --: -: Commingling of Funds: Estoppel. In a suit on a county treasurer’s bond it was not error to instruct the jury that if he failed to pay over a balance he owed, and if he mingled the several funds so they lost their identity and it became impossible to tell which, fund, if any, was short, “then defendants ate es-topped to deny that such shortage belonged to the funds covered by the bond sued on,” although, estoppel was not pleaded, there being ample evidence of the facts predicated in the instruction. Whatever estops the principal usually estops the surety; and where he testified that he had mingled the funds and if there was any shortage it was impossible for him to tell where it was, neither he nor his sureties can profit by his wrong.</p> <p>7. -: -: Good Character. Evidence of a county treasurer’s good character is not admissible in a suit on his bond to recover the amount of county funds appropriated to his own use.</p> <p>8. EVIDENCE: Specific Objection. Appellants cannot be heard to contend that certain evidence offered by them for a specific purpose and rejected was competent for other purposes.</p>