Volume 277 — Missouri Reports

— Hon. W. T. Bag-land, Judge. (1) A grantee under a deed or a legatee or devisee under a will must be capable of taking and bolding property. Neither inert matter nor a symbol representing inert matter, can be a grantee under a deed or legatee under a will. There is an entire want of capacity to accept or reject, to take or to hold. The public school fund and the township school fund are mere names. They designate simply moneys.

Certiorari. (1) The opinion of the Court of Appeals. conflicts with the controlling decisions of the Supreme Court, when it holds that, under the evidence in this case, the demurrer was properly refused. Swinhart v. St. Louis & Suburban Ry. Co., 207 Mo. 434; Fulwider v. Gas, Light & Power Co., 216 Mo. 594; Cummings v. Dent, 189 S. W. 1162.

— Eon. Edgar B. Woolf oik, Judge. (1) The trial court erred in refusing to give instructions asked for by. appellants at the close, of all the evidence. State ex inf. Atty. G-en. v. Consolidated School District No. 2, 275 Mo. 522; State ex rel. Letcher v. Dearing, 253 Mo. 614; State ex rel. v. Wilson, 30 Kan. 661.

<p>1. TREASURER: Eligibility of Deputy Collector. In view of tlie statute (Sec. 3-756, R. S. 1909) declaring that “no sheriff, marshal, clerk or collector or the deputy of any such officer, shall be eligible to the office of treasurer of any county,” one who was deputy collector of the City of St. Louis and held that office at the time of his election to - the office of treasurer of the city and thereafter until a short time before the term of the office of treasurer began, cannot hold the office of treasurer. He was incapable of being lawfully chosen treasurer. The statute does not mean -that a deputy collector may be elected treasurer while still such deputy, and take the office of treasurer if he is not such deputy at the time he actually assumes the office of treasurer.</p> <p>2. ELIGIBILITY: Meaning: Legislative Intention. Admitting that the word “eligible” may mean both “electable” or “capable of being chosen” and “qualified to bold office,” whether it is to be given the one meaning or the other depends upon the legislative purpose expressed in the statute using it and in statutes in pari materia.</p> <p>Held, by BOND, C. X, concurring, that the term “eligible”’ when used in the statutes or Constitution without contextual qualification or modification refers to the legal capacity to hold the office at the time of the election or appointment, and that the qualification of the person appointed or elected must exist at the time of the accrual of his right .or title thereto.</p> <p>3. -: Vain Legislative Purpose: Incompatible Offices. The word “eligible” will not be so construed as to render a legislative enactment a vain and useless thing. If the duties of two offices are incompatible, a statute which says that a person who holds one shall not be eligible to the other will not be held to mean that an officer can be elected or appointed to the other and then resign the one he holds and take charge of the other. The Legislature intended that the same person cannot be collector and treasurer at the same time, or step out of the office of collector into that of treasurer, since the duties of receiving and granting acquittance for public money are incompatible.</p>

<p>1. BILIi OF EXCEPTIONS: Record Recital of Filing. A recital in the proper place in the abstract of the record, but after a caption “Bill of- Exceptions,” that on “June 1st, 1917, the appellant duly filed her bill of exceptions in this cause, which said bill of exceptions recites and sets forth the following,” is not to be considered as a recital from the bill of exceptions, but a recital in the abstract of the record proper that the bill was filed. The mere fact that this record recital comes after the caption “Bill of Exceptions” in the printed abstract will not justify the court in ruling that the record proper does not show that a hill of exceptions was filed.</p> <p>2. MANDAMUS: To Court of Appeals. The Supreme Court, in the exercise of its superintending control over courts of appeals and inferior courts, can and will, hy its writ of mandamus, compel a court of appeals to hear and determine on its merits a case, falling within its jurisdiction, in which it has wrongfully ruled that the printed abstract did not contain a recital in the record proper that a hill of exceptions had been filed by appellant.</p> <p>3. -: -: Ascertainment of Facts. The Supreme Court will, in a mandamus case, examine for itself the facts before a court of appeals, and determine from them whether it has refused to exercise its full jurisdictional power. The finding of facts by the court of appeals, or its judgment of the law, will not preclude the Supreme Court from determining the facts or granting the writ of mandamus to compel it to. exercise a jurisdiction it has .erroneously refused to exercise.</p>

<p>1. ELECTION: Place of Meeting: Omission in Record: Nunc Pro Tunc Correction. Where the board of education called a bond election, but its record failed to designate the place, though the secretary’s notices stated the election “will be held at the school house,” the hoard had authority after the election was held to make its record speak the truth, hy making it recite that the election was ordered to he held at the school house; and that having been done the bonds will not be held invalid because of the defect in the record as first made.</p> <p>2. CONSOLIDATED SCHOOL DISTRICT: Indebtedness of Former Districts: Bond Issue. A consolidated school district, formed of parts of existing common school districts whose school house sites are not included in the consolidated district, is not required to assume and pay the bonded indebtedness of said districts; and in calculating the maximum amount of bonds said consolidated school district may issue, the amount of the existing indebtedness of such common school districts should be excluded.</p> <p>3. -: -: Lessening Taxable Ability: Impairment of Contracts: Raised by State Auditor. The State Auditor, when sued at the relation of a consolidated school district to compel him to register its bonds, has no authority to represent the common school districts or their citizens or creditors whose territory was taken in part to form the consolidated district, and for them raise the point that the formation of the consolidated district, by diminishing their territory, lessened their taxable ability to pay existing bonded indebtedness, and thereby impaired their contracts and rendered unconstitutional the statute authorizing the elision and leaving the' debts as a burden on the remaining portions of the common school districts. Such a question is not for decision in said mandamus suit.</p>

<p>1. PUBLIC NUISANCE: Injunction: Crimes. A court of equity can prevent the maintenance of a public nuisance, although some of the acts composing its creation and maintenance may be crimes and punishable as such.</p> <p>2. -: -: Sale of Liquor. The sale of liquor' in violation of law is a crime, but equity will not enjoin its sale on that ground alone, but when the unlawful sale of liquor is made at such places and under such circumstances as to make its sale and the place a public nuisance equity will abate the nuisance. Mere sale of liquor at retail by a wholesale licensee does not constitute a public nuisance.</p> <p>3. -: -: -: Disorders Along Public Road. The fact that persons, men and women, who bought liquor at the place of business of a licensed wholesale liquor dealer, which was in a county in which the Local Option Law had not been adopted and which was conducted in an orderly way, except perhaps in the sale of liquor at retail, made loud noises and used profane language and were guilty of other disorderly conduct, on the public highway and along the roadside a mile or more from said place, did not constitute the place a public nuisance. If it itself was conducted in an orderly way, disorderly and drunken conduct committed some distance away in a “dry” county did not make it a public nuisance.</p>

<p>1. RECEIVERS: Taking Property from Custody. One court cannot hy appointing a receiver take from the custody of a receiver previously appointed by lawful order of another court the assets and estate in the latter’s hands as receiver. But a suit to declare a forfeiture of land granted to a railroad company in the hands of receivers for failure to keep a covenant to stop trains on signal, unless within a reasonable time they comply with such covenant, is not such a suit.</p> <p>2. -: Suit Without Leave. Except in actions to deprive receivers of possession of receivership property, want of leave to sue receivers appointed by another court is not jurisdictional, but such actions may be controlled by injunctive process or by proceedings as for contempt. If there is no attempt to interfere with the actual possession of property held by the receiver under the order of a court appointing him, jurisdiction of another court does not depend upon leave to sue. The rule applies where the receiver has been appointed by a Federal court and the action is brought in a State court.</p> <p>3. -: -: Waiver. A receiver may waive the point of want of leave to sue, by appearing without objection and pleading • without raising the point and praying affirmative relief.</p> <p>4. -: -: Leave to Defend: Presumption. Voluntary appearance and submission to the jurisdiction by a receiver raises a presumption of leave to defend.</p> <p>5. -: -: Failure to Raise Point in Trial Court. The receiver appointed by the Federal court having appeared in the State court and having failed to raise the point that the State court was without jurisdiction for that plaintiff had not obtained leave to sue, will not be heard on appeal or elsewhere to raise the point of want of jurisdiction. [Overruling Haag v. Ward, 89 Mo. App. 186, and Smith v. Railroad, 151 Mo. 391, in so far as they hold that want of leave was not waived.]</p> <p>6. -: -: Certifying Judgment to Federal Court. The State court after having adjudged that plaintiffs were entitled to have certain passenger trains stop on signal and' that if the railroad company and its receivers previously appointed by the Federal court “fail to stop their trains on signal, then all the right, title and interest which, they have acquired” in the strips of ground described in their deed should he divested and vested in plaintiffs, by ordering that no execution issue and that the judgment he certified to the Federal court, left the latter court in full power to direct the manner in which the judgment should he rendered effectual.</p> <p>7. COVENANT IN DEED: Stopping Passenger Train: Limitations. An intent to violate a covenant contained in a- deed to stop passenger trains on signal is not enough to start the Statute of Limitations running. Where the evidence shows that no one with any right to enforce such a demand had made request that a train be stopped on signal and had that request refused by the company until a short time before the suit was brought, a failure of the company for more than ten years to. schedule its through trains to stop on flag and failure in fact to stop them, could not start the statute, or bar the act to forfeit the land, according to the covenant.</p>

<p>1. TELEGRAPHY: Interstate Commerce. The transmission of messages from State to State by telegraph wire is interstate commerce, and therefore subject to regulation by Congress.</p> <p>2. -:-: Control Taken: Penalty to Use Diligence. By the Act of June 18, 1910, 36 Statutes at' Large, 544, Congress took control of the transmission of telegraph messages by wire from a town in One State to a town in another State, and so occupied the field as to exclude the power of a State to impose a penalty upon the telegraph company for failure to deliver, without material alteration, a message received by it in the one State to be delivered to an addressee in- the other State.</p> <p>3. -: -: Statutory Penalty for Failure to Deliver: Superseded. In view of the Act of Congress of June 18, 1910, taking full control of interstate telegraph, companies, and the decisions of the Supreme Court of the United States holding that said act nullifies State laws imposing a penalty on them for failure to deliver messages promptly and without material alteration, the sender cannot recover from the Western Union the penalty of three hundred dollars imposed by Sec. 3330, R. S. 1909, for its failure to transmit and use due diligence to deliver, without material alterations, into the hands of the addressee at McComb, Illinois, a message received by it for transmission at Clarence, Missouri; and in view of said decisions, that must be the ruling, even though said act imposes no such penalty, and it might therefore be said, with plausibility, that Congress had left the State free to exercise its police power on the subject.</p>

<p>1 ADMINISTRATION: Ancillary Administrator De Bonis Non. After the former administrator has made' final settlement, his settlement approved and he discharged, the prohate court" has power to appoint an ancillary administrator cLe Toonis non, for the purpose, of collecting a debt due the estate of a citizen who died in another State and which is there being administered. The constitutional provisions, in connection with the statutes carrying them into effect, confer ample power and jurisdiction to appoint such ancillary administrator. The legal representative appointed in the foreign state to administer the estate of a decedent there cannot sue in this state, and the beneficiaries of said estate are entitled to have some one appointed in this state to represent them in the collection of a debt due the estate.</p> <p>2. HOMESTEAD: Sale After Owner’s Death. The head of a family did not in 1892 have the right to so dispose of his homesteád by will as to defeat judgment debts against him. Under the Homestead Law as it stood from 1875 to 1895 the probate court had power in 1894, subject to the homestead right of the widow and minor children, to sell the homestead of a -deceased head of a family against whom in his- lifetime a judgment for debt was obtained in the circuit court in 1888 and revived against his administration in 1892.</p> <p>3. -: -: Kentucky Statute. The Homestead Statute of Kentucky is not like the Missouri Homestead Law from 1875 to 1895, and consequently decisions of Kentucky Courts upholding the right of a homesteader to dispose of his homestead by will furnish no valid ground for a like ruling concerning a Missouri "homestead.</p> <p>4. PROBATE COURT: Judgment: Collateral Attack. Judgments and proceedings of the probate court as to all matters within its jurisdiction are impervious to collateral attack.</p>

<p>1. QUIETING TITLE: Effect of Decree Upon Other's. The object of the statute, (Sec. 2535, R. S. 1909) is to ascertain and determine the title to the land as between the parties to the suit, and vest it in the one who has title superior to that of the other, whether or not either has a title that is good as against the world.</p> <p>2. --: -: Conveyance in Trust: Right of Reversioners: Objections for Trustees. Where land was conveyed to trustees to be held for the benefit of a certain religious congregation for the purpose and uses of a- cemetery, and said congregation was after-wards incorporated, and only the heirs of the- grantor appeal from a judgment, in the suit to quiet title brought by the congregation, investing the title in the church corporation, the only question for determination is whether the judgment deprived said heirs of any interest or estate reserved to them by the terms of the deed to the trustees. If the language of the deed reserved to them no right of re-entry they are not aggrieved by the judgment vesting the title in the church corporation, nor can they complain that there was no formal deed from the trustees to the corporation, nor is it necessary to review the correctness of the judgment with reference to the rights of the heirs' of the original trustees.</p> <p>3. CONVEYANCE: Reversión: Condition Subsequent. A deed may contain a condition subsequent authorizing a reversion to the grantor or his heirs without being stated in express words, but the deed as a whole, together with thé circumstances attending its execution, must demonstrate that the grantor intended a reversion upon a subsequent breach of a lawful condition. The rule is that estates once vested in fee will not be uprooted except upon proof of the happening of a lawful condition attached to a continuance of the estate by the terms of the deed, and further proof that it was the intention of the grantor in making the conveyance that the estate should revert when the condition ceased to exist.</p> <p>4. -: -: -: For Cemetery Purposes: Cessation of Uses. The grantor bought a parcel of ground in a city and six months later, for nearly twice what it had cost him, conveyed it to trustees elected by a church organization, by a deed, otherwise a fee simple absolute, which contained this clause: “To have and to hold unto the said parties of the second part and unto their successors in office in trust for the benefit of their said congregation for the purposes and uses of a graveyard, burying-ground or cemetery, forever and for no other purpose, foreign or adverse to the one mentioned, whatsoever.” Lots in the cemetery were sold to purchasers, who received certificates showing an equitable but not a legal title. In the court of time a business and residence section grew up around the cemetery, and the city by ordinance withdrew it from the list of cemeteries in which interments would be “recognized and authorized as legal.” Thereupon disinterments and removals were rapidly made by relatives of decedents. Held that the fact that the grantor received the full value of. the land as a consideration for the deed is not to be ignored, and there being no provision for a reverter expressed and nothing in the language used or the circumstances to impute to either party to the deed an intention that a breach of the condition should inure to the grantor, his heirs have no right to a reversion.</p> <p>■5. -: -: -: Further Use Prevented Without Fault of Grantee. Where a condition subsequent becomes incapable of performance without fault of the grantee or from a legal obstacle, it cannot defeat the fee granted or work a reversion to the grantor. Where land was conveyed to trustees of a religious congregation for uses as a cemetery, and. the city by valid ordinance has prohibited its further use as a burying-ground, the condition is discharged, and there can be no reversion to the grantor or his heirs.</p>

<p>1. SALE OF REAL ESTATE: Purchase hy Committee, of Club: Trustees. Where the stockholders of a country club, heavily in debt and whose property was encumbered by a past-due mortgage, were clearly informed, by resolutions which they themselves had adopted and by notices put- up at conspicuous places on the grounds and published in newspapers, that the property would be sold at a receivership public sale to the highest bidder for cash, in accordance with plans worked out by a committee appointed by them for the purpose and submitted to them for approval and approved by them almost unanimously, and that after the sale the members of the club “would cease to have any rights in the property,” it will not be held that a purchase by the five members of the committee and four other members of the club was a purchase by trustees for the club and its members.</p> <p>2. -: -: -: Fiduciary Relation. Where factionalism among members of a club induced stockholders to vote for a sale of its property and a dissolution of the club, and a committee was appointed to reorganize a new club if a majority of the members would unite in organizing it, and the committee invited all old members to indicate their willingness to unite in a new club, and much less than a majority did so, and nothing was concealed and the members were not misled, there was no such fiduciary relation as made the members of the committee trustees for the members of the club at their purchase of the property with their own money at the receivership sale.</p>

<p>Appeal from Crawford Circuit Court. — How. L. B. Woodside, Judge.</p> <p>(1) The warranty deed from "Wilson to defendant was executed on June 20, 1910, and filed and recorded on. September 10, 1910. The tax suit against Wilson was filed on September 3, 1910, and the judgment in that suit was rendered on November 11, 1910, two months after the recording of the deed to Tallman. The sale, under which plaintiffs claim title, was on February 24, 1911, more than eight months after Wilson had parted with the title and more than five months after the deed from Wilson to Tallman had been filed and recorded. Hence no title passed by such sale and plaintiffs acquired no rights thereunder. Harrison Machine Works v. Bowers, 200 Mo. 219; Sugg v. Duncan,'238 Mo. 422; Wilcox v. Phillips, 260 Mo. 664; Rehm v. Alber, 199 ¡3. W. 173. Where a purchaser at a sale under a tax judgment has notice of the execution of a deed by the judgment debtor, his title acquired at such tax sale is invalid as against the grantee in that deed, even though the deed may not be recorded. Stuart v. Ramsey, 196 Mo. 404. After the recording of the deed, -which was prior to the sale under the. judgment for taxes, and prior to the rendition of the judgment for taxes, the purchasers at such subsequent sale must be held to have had notice of the deed, and would acquire no title as against the grantee in that deed. Sec. 2810, R. S. 1909; Harrison Machine Works v. Bowers, 200 Mo. 232; Sugg v. Duncan, 238 Mo. 422. In sales under judgments „ the sheriff sells only the right and title of the judgment debtor; and in this case the judgment debtor, having parted with his title by deed executed prior to the filing of the suit, and recorded prior to the rendition of the judgment and sale thereunder, the purchasers took nothing by the sheriff’s deed to them. Davis v. Owenby, 14 Mo. 170; Hannah v. Davis, 112 Mo. 697; Sugg v. Duncan, 238 Mo. 426. (2) It is the settled law in this State that a deed supported by a valid consideration, not recorded at the time of judgment, but placed on record before the sale of the land under the judgment, takes precedence over the title acquired by the purchaser at the subsequent sale undér the judgment. Dixon v. Dixon, 181 S. W. 86; Hannah v. Davis, 112 Mo. 607; Sugg v. Duncan, 238 Mo. 422. (3) Sec. 11498, R. S. 1909, affords the plaintiffs no relief, because that section as amended in 1909, and as it now exists, means just what the courts of this State have long construed it to mean prior to its amendment. Keaton v. Jorndt, 259 Mo. 195; Powell v. Greenstreet, 95 Mo. 1.</p> <p>(1) The unpaid taxes constituted a lien on the land, and this lien was prior and paramount to all other liens. It was created and disclosed by public records, and the appellant took bis deed with notice of it, and be was bound to go further and see whether .the delinquent taxes had been satisfied; had he done this at the date he filed his deed it would have disclosed the tax suit pending against the land to enforce the payment of the taxes. He therefore, took with notice of the suit that resulted in the sale and is bound thereby. Fleckenstein v. Baxter, 114 Mo. 496. (2) In absence of other information, the collector was entitled to fasten and foreclose the lien of the State upon the land by suing him who appeared from the records -to be the true owner which was Wilson, who was the defendant in the tax suit. Keaton v. Jorndt, 259 Mo. 195. (3) The law in force at the time the tax suit was filed against Wilson, the defendant, required the collector to prosecute his action “against the owner of the property if known, and if not known, then against the last owner of record as shown by the city or county records at' the time the suit was brought.” Sec. 11498, R. S. 1909. (4) If one of two stands to lose, the law puts the loss on the one whose neglect caused it; in this case the respondents did' all that they were required to do which was to ascertain that at the time the suit was filed, it was brought against the last owner of record as shown by the county records. When that tax suit was prosecuted to a final judgment and sale and the respondents purchased the land at the sale, they became the owners and appellant lost all his title in the land. “One holding an unrecorded instrument affecting the title to the land should not be allowed to defeat the objects of the law and obstruct the collection of the revenue by filing it for record before judgment or sale.” Hilton v. Smith, 134 Mo. 508; Schnitger v. Rankin, 192 Mo. 35; Land & Lumber Co. v. Bippus, 200 Mo. 697; Wengler v. McComb, 188 S. W. 76; Allen v. Ray, 96 Mo. 546; Cowell v. Gray, 85 Mo. 169; State ex rel. Hunt v. Sack, 79 Mo. 661.</p>

<p>1. ESTOPPEL BY RECOKD: Two Trials. No litigant is entitled to two trials at different terms of court upon tbe same question. If tbe court at one term, having jurisdiction, adjudges an issue of fact, and no exceptions are saved, the aggrieved party cannot at a subsequent term have the same issue opened and re-tried.</p> <p>2. -: Condemnation: Land Adjudged to Be Public Street: Reopening Question at Later Term. Where, in a proceeding to condemn parcels of land for the purpose of widening a street, the commissioners allowed damages to defendant for a certain strip taken, and to their report other taxpayers in the benefit, district filed exceptions alleging that the said strip had been dedicated to public use and had been continuously used as a public highway for more than ten years, and upon a trial the court sustained the exceptions and found as a fact that the allegations were true and set aside the commissioners’ report, to which action the defendant neither excepted at the time nor filed a bill of exceptions, exceptions filed by him at a subsequent term to the report of other commissioners, who allowed him only nominal damages, and which seek to have litigated again the question whether said strip had been dedicated to public use, cannot be entertained, but the prior adjudication of the issue will operate as an estoppel of record or by judgment; nor can defendant have the question reviewed on appeal, after final judgment in the case at the subsequent term, because he saved no exceptions at the term at which the issue of fact was adjudicated.</p>

<p>Appeal from Cole Circuit Court. — Eon.. J. G. Slate, Judge.</p> <p>(1) “The Public Service Commission derives its power to act from the terms and intendment of the legislative enactments which create that body.” State v. Pub. Serv. Com., 199 S. W. 1001; State ex rel. United Ry. Co. v. Pub. Serv. Com., 270 Mo. 429. The Commission derives its authority to order changes in train schedules or additional service solely and exclusively from Sec. 51, Laws 1913, p. 590. By said section the Commission was without authority to interfere with appellant’s interstate train schedules at Pilot Grove. State ex rel. Mo. Pac. Ry. Co. v. Publ. Serv. Com., 201 S. W. 1143;-Warner v. Railroa,d, 156 Mo. App. 523. (2) Under the evidence there was no public necessity for the stopping of appellant’s through trains at Pilot Grove on flag. The stopping of said trains there would merely serve the convenience of a very few residents and more particularly the • convenience of two traveling men, resident in that city. The order was, therefore, in excess of the Commission’s authority. Warner v. Railroad, 156: Mo. App. 523; Delaware, L. & W. R. Co. v. Van Santvoord, 232 Fed. 984; Gt. Northern Ry. v. Minnesota, 238 U. S. 340. (3) Inasmuch as it is conclusively ■ shown by the evidence that defendant is carrying intrastate passengers at a loss, the order of the Commission requiring the stopping of interstate trains 9 and 10 would he the taking of the property of the carrier without due process of law, contrary to United States . Constitution, Fourteenth Amendment.- Miss. Railroad Commission v. Mobile & Ohio R. Co., 37 Sup. Ct. Rep. 602. (4) Under the evidence, the order of the Commission amounts to a regulation and interference with and a burden upon interstate commerce under the commerce clause of the Federal Constitution. Chicago, B. & Q. R. Co. v. Wis. Railroad Com.; 237 U. S. 220; Miss. Railroad Com. v. Ill. Central R. Co., 203 U. S. 335; Ill. Cen. R. Co. v. Miss. Railroad Com., 138 Fed. 327; C., B. & Q. Railroad v. Pub. Serv. Com., 181 S. W. 61; Illinois C. R. Co. v. Illinois, 163 U. S. 142; C., B. & Q. Railroad v. Chicago, 166 U. S. 227; Railroad v. Ohio, 173 U. S.' 285; Cleveland Ry. v. Illinois, 177 U. S. 514; Atlantic Coast Line v. Wharton, 207 U. S. 328; Herndon v. C., R. I. & P. Ry., 218 U. S. 135; Oregon Railroad v. Fairchild, 224 U. S. 510; Gt. -Northern Ry. v. Minn., 238 U. S. 340. (5) Secs. 110, 111 and 112 of the Public Service Act providing for a rehearing before the Commission; the court procedure for review, and for writ of review, and Sec. 130 of said law providing a penalty for a violation of the orders of the Commission, and each of said sections, are void in that they seek to deprive appellants of .their property without due process of law, and deny to them the equal protection of the law in violation of Section .1 of the Fourteenth Amendment to the Constitution of the United States, by requiring immediate, unconditional compliance with and obedience to mere orders of a non-judicial administrative, representative agency. Lusk v. Atkinson, 268 Mo. 109; Chicago, Milwaukee & St. Pañi Ry. Oo. v. Minn., 134 U. S. 418; Ex parte Yonng, 209 U. S. 123; Wadley Southern Ry. v. Georgia, 235 U. S. 660; Mo. Pac. Ry. Oo. v. Nebraska, 217 U. S. 196. (6) The complaint in this case fails to state facts sufficient to constitute a cause of action. It was not alleged in the complaint that the existing train service was not reasonably adequate.</p> <p>(1) The State has the power to require adequate local facilities, even to the stoppage of interstate trains, or the rearrangement of their schedules, (a) Appellants’ first contention is that the Commission has no power under the act creating it and under the facts of this case, to interfere with interstate train schedules. This question of law has been definitely and positively settled. State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Com., 201 S. W. 1143; Chicago, Burlington & Quincy R. Co. v. Railroad Com. of Wisconsin, 237 U. S. 26. The general rule is also stated in Mississippi Railroad Com. v. ■ Illinois Central Railroad, 203 U. S. 344, 51 L. Ed. 209; Herndon v. Railroad, 218 U. S.' 156, 54 L. Ed. 970; Illinois Central Railroad Company v. Illinois, 163 U. S. 142, 41 L. Ed. 107; Gladson v. Minnesota, 166 U. S. 427, 41 L. Ed. 1064; Lake Shore Ry. Co. v. Ohio, 173 U. 'S. 285, 43 L. Ed. 702; Cleveland Ry. Co. v. Illinois, 177 U. S. 514, 44 L. Ed. 868; Atlantic Coast Line Co. v. Wharton, 207 U. S. 328, 52 L. Ed. 230; Atlantic Coast Line v. North Carolina Corp. Com.,’. 206’ U. S. 1, 51 L. Ed. 933, 11 Ann. Cas. 398; Oregon Railroad Co. v. Fairchild, 224 U. S.. 510, 56 L. Ed. 863; Railroad v. Yant Santwood, Public Service Com. (D. C.), 216 Fed. 252; Ohage v. Northern Pacific Ry. Co., 200 Fed. 128, 118 C. C. A. 302. (b) The facts conclusively show that the local service rendered the city of Pilot Grove, without the limited flag stop of trains Nos. 9 and 10 as ordered by the Public Service Commission,-was clearly inadequate and insufficient. (2) Neither the law nor the facts support the appellants in their contention that the order of the Commission is an arbitrary arid unlawful taking of property. The-evidence wholly fails to show that trains"No's. 9 and 10 are being operated at a loss, or that the order will cause them to be operated at a loss. The order of this Commission requires the stopping on flag of two trains each day, a practice long followed by the railroad company voluntarily, and in no event costing it more than a few dollars a day. (3) Sections 110, 111, 112 and 130 of the Missouri Public Service Act provide for a full, adequate and prompt judicial review of an order of the Public Service Commission, and for suspension thereof during such review, and the penalties for disobedience of a Public Service Commission order are inoperative until, final determination of the validity of the statute, (a) Appellants’ objection to these statutes is based wholly upon a theoretical or assumed condition, which it contends might arise under the procedure authorized by the Public Service Commission Act. No showing was made or can be made under the record that the procedure in this case has operated as an actual invasion of the appellants’ constitutional right to “due process of law.” Burlington R. Co. v. Dey, 82 Iowa, 312, 12 L. R. A. 436; Portland Railroad Co. v. Railroad Commission of Oregon, 229 U. S. 397. The essential concomitants of statutes providing procedure for public service commissions in order that proceedings thereunder may constitute “due process of law,” fully appear in the Public Service Commission Act. (b) The motion for rehearing is a necessary and vital part of the review proceeding, and during its pendéncy, the applicant is not subject to penalties and forfeitures for failure to obey an order of the Commission, provided, the review proceeding is prosecuted in good faith. Secs. 106, 110, Publ. Serv. Act; State ex rel. Mo. Pac. Ry. Co. y. Commission, 192 S. W. 6, (4) It is tbe duty of appellants to reasonably and adequately serve not only necessities, but tbe local convenience, of tbe communities through which their railroad operates. The order of the public service commission herein merely requires the performance of this duty. Such'regulation may, in a proper case, require the stopping of interstate trains, though this may involve some pecuniary loss. Miss. Railway Com. v. Mobile & Ohio Railroad, 244 U. S. 391; Atlantic Coast Line v. North Car. Corp. Com., 206 U. S. 1; Mo. Pac. Ry. Co', v. Kansas, 216 U. S. 262.</p>

<p>CONSTITUTIONAL LAW: Title: Legislative Agents: Contingent Fee. The title to a bill, which read: “An Act entitled an act, requiring legislative counsel and legislative agents retained or employed for compensation by any person, firm, corporation or association to promote or oppose the passage of bills or resolutions, or the approval of the same, to file with the Secretary of State a statement in writing subscribed by such counsel or agent stating the name of the person, firm, corporation or association by whom or on whose behalf he is employed, together with a brief description of the legislation in reference to which such service is to be rendered, requiring an itemized statement of expenditures to be filed, prohibiting legislative agents or counsel from going upon the floor of the Legislature, providing penalties for a violation of this act,” is not broad enough to include a section making criminal an agreed compensation to he contingent upon the final enactment into law of a certain measure, since said section does not come within the scope of the title. The title does not in any wise relate to the regulation of the compensation of legislative agents or counsel; it relates to their duties, and not their compensation. Consequently the section (Sec. 8150, R. S. 1909) which declares that “no person shall accept any such employment or render any such service for compensation contingent upon the passage or defeat of any legislative measure” is void, and an indictment charging a legislative agent of its violation should be quashed. However, if the title had simply stated it was an act respecting legislative agents and legislative counsel, the particular matters mentioned' in the section would have been within its scope, for then it would have related to a general subject, and would not have restricted that subject to the duties of these agents, as the subsequent words of this title do.</p>

<p>1. INFORMATION: Misprision. So obvious a clercial misprison as misspelling a word, such as “threusing” for “thrusting,” even if the word he absolutely necessary to a sufficient information, will not vitiate the information.</p> <p>2. EVIDENCE: Conspiracy in Sodomy and Rape: Acts and Admissions of Co-conspirators. A conspiracy to commit the criminal act of rape and sodomy being shown, the acts done or admissions made by any of the co-conspirators while the common enterprise was' proceeding are admissible in evidence against any one of them. Evidence of prior rapes and sodomy committed by three other men on the same woman and the language they used are admissible against defendant who by his own words connects himself-with them as a co-conspirator in the common enterprise.</p> <p>3. -: -: Credibility. It is not the province of an appellate court to pass upon the credibility of the prosecutrix or the weight of her testimony tending to prove that defendant prior to assaulting her used • certain words which connected him with a prior assault upon her by three others and made him a co-con-, spirator with them in the common enterprise; it is enough for said court that the evidence was substantial and was believed by the jury. And in this case it is persuasive that three different juries have believed her testimony.</p> <p>4. INSTRUCTION: Comment on Evidence: In Appellant’s Favor. A comment on the evidence in defendant’s favor, in the instruction given for the State, for instance, if it softens and limits the probative effect the jury would have been warranted in giving to the facts detailed, is not error of which he can complain.</p> <p>5. EVIDENCE: Sodomy: Consent. Consent is not an element of sodomy. The sodomitic act being conceded, it is wholly immaterial - to a conviction whether prosecutrix did or did not consent.</p> <p>6. -: Consent: Sodomy Per Os: Possibility: Muscles of Jaw: Pear. The muscles of the jaw have no necessary connection with the crime of sodomy through the mouth as defined in the statute. It was not error to refuse to permit a physician, in the trial of defendant charged with sodomy per os, to testify whether or not it was possible for a man to «insert his private organ in ■ the mouth of an eighteen-year-old girl, weighing 150 pounds, in full . control of the muscles of her jaws and mouth, without her consent. In order to make the question competent it is not only necessary to omit all reference to consent, but other facts having reference to the situation of prosecutrix and the fear which she testifies she suffered should he included.</p> <p>7. INSTRUCTION: Sodomy: Accomplice. If there is no evidence that prosecutrix was an accomplice in defendant’s crime of sodomy, no cautionary instruction on the theory that she was an accomplice should be given. The court is not required to instruct upon mere abstract questions of law.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillan, Judge.</p> <p>(1) Where a statute is unconstitutional, an execution on a fine assessed under it -will be quashed, although the judgment had previously been affirmed on appeal. State v. Finley, 187 Mo. App.' 72; Same Case, 259 Mo. 414; Same Case, 162 Mo. App. 134; Same Case,' 234 Mo. 603; Exp. Smith, 135 Mo. 229. Jurisdiction comes from Constitution and laws and not from mistaken interpretation, and a judgment entered under an unconstitutional statute is void. Finley v. United Railways Co., 238 Mo. 19. (2) The judgment is void because there is no law imposing a fine for violation of Section 1025, as approved. March 24, 1903. Old Section 1025 was repealed and this repeal carried with it the penalty section following. Where a section is repealed, for whose violation a penalty is provided, the penalty does not attach to a new section covering the same matter. Com. v. Kelleher, 12 Allen (Mass.) 481; State v. .Gaunt, 13 Ore. 118; State v. Ashley, Dudley (Ga.), 188; Ned v. Dillon, 3 Mo.'59. (3) If the execution he not quashed, defendant will be deprived of its property without due process of law in violation of Amendment 14 of the Constitution of the United States. There i.s no law in force providing a fine for the act passed in 1903, and hence a judgment so imposing is void. Where a judgment shows on its face no judgment could lawfully he entered, no execution can be entered thereunder. Holzhorn v. Meer, 59 Mo. 434. (4) There is no law in this State which provides that a fine draw interest. The execution directs the sheriff to collect interest, and unless quashed, will deprive defendant of its property in violation of Amendment 14 to the United States Constitution.</p> <p>(1) Although no motion has been made by respondent, this court will, of its own motion, inquire whether it has jurisdiction. Electric Service Co. v. Mfg. Co., 125 Mo. 140; State v. Finley, 259 Mo. 421. It is' hardly necessary to cite authorities to the proposition that, “It must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest possible moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.” Barber Asphalt Co. v. Ridge, 169 Mo. 387. See also Lohmeyer v. Cordage Co., 214 Mo. 691; State v. Gamma, 215 Mo. 104; Hartzler v. Railroad, 218 Mo. 564; Dudley v.. Railroad, 238 Mo. 187; Ross v. Grand Pants- Co., 241 Mo. 299; Howell v. Sherwood, 242 Mo. 540. And it would seem that if the constitutional question must be raised as soon as it properly can be and in the trial which results in the judgment, then it cannot be raised in a supplementary proceeding which is taken for the purpose of realizing on said-judgment. State v. Finley,'259 Mo. 414. That no constitutional question was raised by the record of the trial court has been determined by this court in this identical case when it was here on a former occasion and was then certified to the St. Louis Court of Appeals. State ex rel. v. Howe Scale Co., 253 Mo. 63. (2) Appellant also says that the effect of the Act of March 24, 1903, repealing Sec. 1025, R. S. 1899, and at the same time enacting Section 1025 in lieu thereof, was to also repeal Section 1026 which, among other things, imposed the penalty; and that therefore the “due process of law” provision of the constitution is violated if this judgment is enforced. It is only necessary to say that this question was raised for the first time by appellant’s motion to quash the execution.</p>

<p>CONDEMNATION: Failure 'to Describe Property or Interest: Dismissal: ■ Jurisdiction. A proceeding brought by the City of St. Louis to open a street, wherein the petition sets forth the ordinance authorizing it and sufficiently describes its termini, course and width, cannot be dismissed for that neither the ordinance nor the petition sets forth a description of the property and estate or interest of some of the defendants who file a motion to dismiss. Although the charter requires that the petition contain “a description of the property and the estate or interest in each instance which the city seeks to appropriate or damage,” and the petition because of an omission of those necessary recitals does not state a cause of action and is bad on demurrer, the court has jurisdiction of the subject-matter, and a description of the street to be opened gives it jurisdiction over- the particular action, and the defect in the description of a defendant’s property or a failure to state his interest therein can be cured by amendment.</p>

<p>1. PERJURY: Material and Immaterial Matter. Under the statute false testimony as to immaterial matter is not perjury. But where the testimony alleged to he false is material to any proper matter of inquiry and is uttered with knowledge of its falsity it is perjury, although it may not tend directly to prove the issue.</p> <p>2. -: Sufficient Evidence: Corroboration. To sustain the charge of perjury there must be some substantial evidence in addition to the testimony of a single witness. But the corroborative evidence need not necessarily be the testimony of another witness; it may consist of -circumstances sufficiently strong to be tantamount to the testimony of another witness.</p> <p>3. -:-:-: Admission. Corroborative evidence against an accused on a prosecution for perjury means evidence aliunde which tends to show the'perjury independent of any declaration or admission of the accused and the person to be corroborated. An admission made by the'accused and testified to by the person to whom. made is not corroboration.</p> <p>4. -: Instruction: Broader Than Charge. Where the charge is that the accused falsely swore that another did not place a.bottle in a buggy occupied by the accused and receive something in return from the accused, an instruction which, in addition, tells the jury that they may find the accused guilty of perjury if they believe he testified that he did not at the time receive any whiskey from such other person, is erroneous, in being broader than the charge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon., J. Hugo Grimm, Judge.</p> <p>The court erred in setting aside the voluntary non-suit taken by plaintiff. .(1) Because when a voluntary nonsuit is taken plaintiff abandons the suit, and it is ended. Karnes v. American Fire Ins. Co., 53 Mo. App. 439; Chouteau v. Rowse, 90 Mo. 195; Wiethaupt v. St. Louis, 158 Mo. 659; Mason v. Railroad, 226' Mo. 226; Simpson v. Brock, 40 S. E. (Ga.) 226; .Murray v. M’Dougall, 3 N. J. Law. 512; Manning v. Insurance Company, 176 Mo. App. 684. (2) Because though it be held that the court during the term can control its orders and judgments, it does not appear that the action of the court was ex mero motu, but was based on the plaintiff’s motion, and there was nothing assigned in the motion to appeal to the court’s discretion, and it abused its discretion in setting aside the .voluntary non-suit over defendant’s objections. 1 Cook on Stock and Stockholders (3 Ed.), p. 28, sec. 6, and 424; Richmond & I. Coys. Co. v. Richmond N. I. & B. R. Co., 68 Fed. 105; Stove v. C., E & St. Lonis Ry., 202 N. T. 352, 35 L. R. A. 770; Pullman Palace Car Co., 115 U. S. 587; Interstate Commerce Com. v. Stickney, 215 U. S. 108.</p> <p>(1) The court did not err in setting aside the voluntary nonsuit taken by plaintiff, (a) Because the question of setting aside a nonsuit was within the breast of the court until the end of the term at which the ruling or action was had. Rottmann v. Schmucker, 94 Mo. 139; Randolph v. Sloan, 58 Mo. 155; Carr v. Dawes, 46 Mo. App. 598. (b) Because the appeal was premature, there being no final judgment, and the statute gives no right of appeal from such order. Sec. 2038,, R. S. 1909; State ex rel. Merrill v. Burns, 66 Mo. 227; Halsey v. Meinrath, 54 Mo. App. 335; Carr v. Dawes, 46 Mo. App. 598; Heish v. Weisberger, 44 .Mo. App. 506; Smith & Keating I. Co. v. Wheeler, 27 Mo. App. 16; Kidder v. Wright, 72 Mo. App. 378; Creech v. Young,-94 Mo. App. 90; Bogges v. Cox, 48 Mo. 278; ■Lyons & Reesman v, Rollinson, 109 Mo. App. 68; Blanchard v. Wolff, 1 Mo. App. 520'.</p>

<p>1. ELECTION: Irregularities. An election, at which the voters had notice of all changes in the usual voting places, conducted in a peaceable and quiet manner, free from fraud, coercion or any - interference with the rights of voters, and at which no voter was denied an opportunity to freely and fairly cast his ballot, followed by an honest return, is not invalid for irregularities in calling or conducting it.</p> <p>2. -: Constitutional Objects. In the holding of an election two well defined objects are recognized by the Constitution, namely, to afford legal voters a free and untrammeled right to vote, and a correct record of a return of the votes. *</p> <p>3. -: Mandatory Regulations: Opportunity for Fraud. If no mandatory provision of the Constitution or statutes regulating the rights of voters and the calling and conduct of the election is violated, irregularities which do not deprive voters of the right to freely and fairly express their will, although they may be such as to invite and afford an opportunity for the concealment of fraud, will not render the election void, no fraud being charged or shown.</p> <p>Held, by WOODSON, J., dissenting, with whom FAR.IS, J., concurs, that an election required to be held under the Australian Ballot Law which is held in total disregard of the requiremnts of that law is invalid, and cannot be held to be valid simply because no fraud is shown.</p> <p>4. -: Secret Ballot. In the utter absence of fraud, or unfair efforts to influence the voter, a ballot not prepared and cast in secret is not invalid.</p> <p>5. - :-: Facilities: Absence of Booths. If a ballot was very short, containing but a single proposition, and its preparation in secret did not require those.facilities for secrecy which a reasonable construction of the statute render necessary in the preparation of a blanket ballot at a general election, and there was an entire absence of any attempt to influence voters, the mere absence of voting booths wherein voters could have prepared their ballots did not render the election void.</p> <p>6. -: -: Foiling Places: In Cities. A special election to be held throughout a county embracing a city of the first class, and all elections in cities of the first class, are required to he held under the general laws, and they contain no mandatory requirement for the fixing of polling places, and therefore the effect upon the validity of the election of changes in such places must be determined by the facts of the particular case.</p> <p>7. - :-: -: Inclement Weather. Where the usual polling places for general _ elections are canvas tents, changes by the county court, on account of inclement weather, to near-by buildings, for a special bond election, notice being given to all voters, and no voter encountering any difficulty in finding his voting place or being hindered in his right of suffrage, did not invalidate the election, but the statute under such circumstan., * will be held to be directory.</p> <p>8. -: -: Number of Judges and Clerks: Bond Election. The law governing the appointment of' judges and clerks of election is directory, and the appointment of a number less than the statute designates will not nullify the result of votes freely cast and honestly counted. Besides, the Act of 1913, Laws 1913, p. 327, amended the existing statute so as to require only two. judges * and two clerks for each precinct at a special election for the purpose of voting bonds for road construction, and the Act of 1917, Laws 1917, p. 471, which provided that bond elections shall be held in the same manner as general elections, had reference to . the general law as it then existed, including the amendment of 1913, and- consequently the appointment of two judges and two clerks for the special bond election held in 1918, instead of six judges and six clerks, was in strict compliance with the existing statute.</p> <p>9. -: -: Notice of Registration: No Entry of Record. Failure of a county court to cause to be entered of record an order directing the clerk to give notice of a supplemental registration of voters did not invalidate an election, where the clerk in his official capacity published the notice in conformity with the statutory requirements.</p>

<p>1. SALES: Disclosed Agent: Misrepresentation of Authority: Action for Damages. If one represents himself to be the agent of a disclosed principal and attempts to contract in the name of such principal without authority or in excess of authority, he becomes liable to the vendor, not on the contract, unless it contains apt words to bind him, but for breach of the express or implied covenant of authority, or, in a proper case, in an action of fraud and deceit. [Distinguishing Myers Tailoring Co. v. Keeley, 58 Mo. App. 1. c. 495, where the agent contracted in his own name.]</p> <p>2. -:-:-: Measure of Recovery. In an action against an agent on a breach of an implied or express covenant that he in bidding for bonds sold at public sale was the agent of a disclosed principal, the measure of recovery is the damage suffered by the breach of the warranty of authority. And there must be some showing of that damage; if the vendor retains the bonds, it is not sufficient to show that the agent’s bid was so much and that a part of it had been paid. The suit is not one on the contract of sale; it is one for damages for a breach of warranty of authority to buy, and the amount of recovery is the damage to the vendor flowing from that breach.</p> <p>3. -; -: Ratification: Admission. One may ratify the act of another who undertook, without property authority, to act as his agent and purchase bonds for him at public auction, and such ratification is retroactive. But the trial court is not compelled to find, from the inconsistent testimony of the disclosed principal who repudiated the agency, that there was such ratification.</p> <p>4. -: -: Pleading. In an action for damages for a breach of a warranty of agency, the statement or petition should negative defendant’s agency.</p>

— Ron. J. G. Slate, Judge. (1) Upon the record the court should have reversed the order of the Public Service Commission as to the railroad company, the record showing that the company was not operating any of the railroad at the time or after the complaint was filed. (2) The court had no power or jurisdiction under the Public Service Law to make the order requiring appellants to re-route their trains 801 and 802.

<p>Certiorari.</p> <p>(1) The trial court has the right to correct record entries to make them conform to facts and speak the truth at any time hy a nunc pro tuno order. Although a circuit court may lose jurisdiction of a cause hy appeal, it still retains sufficient power over its own records to authorize it hy a nunc pro tuno order to correct its records to the extent that it shall speak the truth. Johnson v. Ragan, 265 Mo. 441; Wilson v. Darrow, 223 Mo. 528; State ,v. Gordon, 196 Mo. 196; Reed v. Colp, 213 Mo. 586; Altholl v. Transit Co., 204 Mo. 172; DeKalb County v. Hixon, 44 Mo. 341; Exchange Nat’l Bank v. Allen, 68 Mo. 474; Davison v: Davison, 207 Mo. 702; Haley v. Dewes, 1 Mo. 16; Farris v. Burchard, 262 Mo. 334. (2) The writ of prohibition is only available to keep an inferior court from exceeding its jurisdiction or exercising jurisdiction not given it by law. State ex rel. Graham v. Seehorn, 246 Mo. 558; State ex rel. Fenn v. McQuillin, 256 Mo. 703; State ex rel. v. Foster, 87 Mo. 590; State ex rel. v. Elkin, 130 Mo. 90; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Fort, 178 Mo. 518; State ex rel. v. Stovie, 194 Mo. 14; State ex rel. Am. Bankers. Assur. Co. v. McQuillin, 260 Mo. 164; State ex rel. McEntee v. Bright, 224 Mo.528.</p> <p>(1) The circuit court was without jurisdiction to invalidate and nullify the judgment of the Kansas City Court of Appeals. The Court of Appeals in requiring the relator to observe its judgment was within its jurisdiction. Upon the plainest principle under the facts there could be no conflict between its decision and that of any decision of this court. Orvis v.' Elliott, 147 Mo. 233; Young v. Thrasher, 123 Mo. 312; Crispen v. Hanno-van, 86 Mo. 167; Sec. 2083, R. S. 1909; Akin v. Sidney Steel Scraper Company, 198 S. W. 1139; State ex rel. Akin v. Buckner, 203 S. W. 243; Mower v. Fletcher, 114 U. S. 127; Black on Judgments, sec. 34; Freeman on Judgments, sec. 481. (2) The motion does not contemplate the correction of any clerical error or mistake of the clerk in the entry of said judgments, but undertook to set aside, and vacate the same at a subsequent term of court and after the reversal of one of said judgments by an appellate court. Jones v. Hart, 60 Mo. 356; Hill v. City of St. Louis, 20 Mo. 587; Burnside v. Wand, 170 Mo. 543; Ross v. Ross, 83 Mo. 100; Bank v. Allen, 68 Mo. 474; State v. Jeffors, 64 Mo. 376; Belkin v. Rhodes, 76 Mo. 652; Woolridge. v. Quinn, 70 Mo. 371; Gamble v. Daugherty, 71 Mo. 599; Railroad v. Holsehlag, 144 Mo. 256; Young v. Young, 165 Mo. 624; Freeman on Judgments (3 Ed.), sec. 69. (3) There is no record evidence to impeach the judgment entry made by the clerk. The minutes of the judge are consistent with the recorded judgments and therefore the judgments cannot be altered, changed or. modified in any respect. Krisel v. Snavely, 135 Mo. App. 159; State ex rel. Akin v. Buckner, 203 S. W. 243; M. K. & T. Ry. v. Holsehlag, 144 Mo. 257; Belkin v. Rhodes, 76 Mo. 652;Woolridge v. Quinn, 70 Mo. 370; Jones v. Hart, 60 Mo. 354; McLure v. Bank, 263 Mo. 135; State ex rel. v. Railroad, 265 Mo. 716; Trefny v. Eichenseer, 262 Mo. 442; Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 147 Mo. 647; Ross v. Railroad, 141 Mo. 396; Sec. 1586, R. S. 1899; Sec. 3851, R. S. 1909; Sec.. 773, R. S. 1899; Sec. 2097, R. S. 1909. (4) The Court of Appeals was legally required to prohibit the attempted rendition of a void judgment, and particularly the setting aside of a final judgment of an appellate court by a judge of an inferior court. State ex rel. v. Sale, 188 Mo. 496; St. Louis, Railroad Co. v. Wear, 135 Mo. 230; State v. Williams, 221 Mo. 227;. State ex rel. v. Muench, 217 Mo. 141; State ex rel. v. McQuillin, 246 Mo. 532; State ex rel. v. Fort, 210 Mo. 525. (5) The writ of certiorari issued herein should be quashed. 11 C. J. 202; State ex rel. v. Ellison, 263 Mo. 509; State ex rel. Railways Co. v. Reynolds, 257 Mo. 35; State ex rel. v. Reynolds, 270 Mo. 602.</p>

Mandamus. (1) Under tlie provisions of tlie Constitution a two-thirds vote of the qualified voters of the city was not necessary to carry the bonds,, but two-thirds only of the voters thereof voting at the election held for that purpose. State ex inf. v. Kansas City, 233 Mo. 162. The voters voting at said general election were not voting at said bond election unless they saw fit to vote at the election held for that purpose. County of Cass v. Johnson, 95 U. S. 360.

— Hon. Alonso D. Burnes, Judge. (1) Tbe transfer of the homestead in question was not made within four months prior to the filing of the petition in bankruptcy. The trustee was never vested with the title of the bankrupt to said property. The bankruptcy court did not have any jurisdiction to try and determine this cause, and the. State court acquired none. Coleman v. Hagey, 252 Mo. 102; Coleman v. Dana, 191 Mo.

<p>Appeal from Greene Circuit Court. — Eon. Guy D. Kirby, Judge.</p> <p>(1) Of the two conflicting provisions of tire Act of 1917, tie one which provides for the payment to county of the fixed sum of $400 is the law, because, first, it is the last in order. Second, it was put-into the act as an amendment after the introduction of the hill. State ex rel. v. Gideon, 273 Mo. 79. Third. The condition of the existing law should he considered in construing new statutes. Under the prior law (Laws 1915, p. 345), the State and county received nothing from dramshop licenses in Springfield, and the obvious intention of the Legislature was to remedy that defect. State ex rel. v. McQuillin, 246 Mo. 534; Grimes v. Reynolds, 184 Mo. 688. (2) The Act of 1917 does not violate Section 28 of Article 4 of the Constitution. The distribution of funds collected by the city is clearly related to the matter of city government and is within the subject as expressed in the title. Hannibal v. Marion County, 69 Mo. 571; Elting v. Hickman, 172 Mo. 237; Barnes v. Kirksville, 266 Mo. 270; State ex, rel. v. Gordon, 261 Mo. 631, 639'; State ex rel. v. Taylor, 224 Mo. 393, 468; State ex rel. v. Clayton, 226 Mo. 292. (3) Dramshop licenses are not taxes within the meaning of the Constitution but are an exercise of the police power. Laws providing for licensing dramshops are not subject to Article 10 of the Constitution, which relates to taxation. State ex rel. v. Hudson, 78 Mo. 302,- State v. Distilling Co., 236' Mo. 219; Winona v. Whipple, 24 Minn. 61; State ex rel. v. Burton, 266 Mo. 712; Elting v. Hickman, 172 Mo. 237, 258. (4) The provision of the Act of 1917 .that the State and county shall receive a part of the dramshop licenses collected by the city is not an unlawful grant of public money to an individual, association or corporation in violation of Sections 46 or 47 of Article 4 of the Constitution. Funds so collected do not belong exclusively to the municipality. It is competent for the Legislature to make the municipality an agent of the State for the purpose of collecting such revenue. A county is not an “individual, association or corporation” within the clauses of the Constitution forbidding a grant of public money to “any individual, association or corporation.” State ex rel. v. Burton, 266 Mo. 721; State ex rel. v. Gordon, 261 Mo. 641; State ex rel. v. Taylor. 224 Mo. 468; Elting v. Hickman, 172 Mo. 258; State ex rel. v. County Court, 128 Mo. 427; Winona v. Whipple, 24 Minn. 61; State v. Spokane, 25 Pac. 903; County v. Aberdeen, 31 N. W. 735; Sibley County v. Gibbon. 131 N. W. 786; 23 Cyc. 151.</p> <p>(1) The Act of 1917, Laws 1917, p. 357, is unconstitutional because it conflicts ■ with that provision of the Constitution which reads, “No bill shall contain more than one subject which shall be clearly expressed in its title.” Wolf v. Taylor*, 13 So. 688; Thompson v. Luverne, 29 So. 326; Douglas v. Hays, 49 Atl. 372; State ex rel. v. Revelle, 165 S. W. 500; Williams v. R. R. Co., 233 Mo. 676; State ex rel. v. Gordon, 188 S. W. 576; Sliivley v. Lankford, 174 Mo. 544; St. Louis v. Wortman, 213 Mo. 138. Courts take judicial notice of fact that' the members of the Legislature, on account of the great number of bills introduced and the limited time in which they, have to consider the same. are forced to' rely on the title of the hills for information as to their contents. State v. Rawlings, 232 Mo. 558. Even though the 'subject-matter of a certain provision of an act be germane to the subject specified in the title, still it is not “clearly expressed in the title” if it be misleading. State v. Rawlings, 232 Mo. 556. The history of the development of the dramshop act shows the licensing and taxing of dramshops for county and State purposes is a power that has been consistently vested in the county court by provisions contained in that act. R. S. 1855 to 1909; Laws 1917, p. 317. Hence the dramshop act had become a separate subject of our statutory law. Naturally then, a member of the Legislature would expect to find any provision of law which had as its purpose the fixing the amount of the State and county dramshop license tax and providing for its collection under a title which purported to amend the dramshop act. and obviously not in an act the title of which gave notice of an intention to amend an act, providing for the government of cities. That the latter title would be misleading is perfectly apparent. (2) The Act of 1917, Laws 1917, p. 357, is unconstitutional because violative of Sections 1 and 10 of Article 10 of the State Constitution, in this: It levies a direct-tax upon the city of $400 per year for each saloon license issued. That a dramshop license tax is not a tax within the meaning of the foregoing provision of the Constitution does not preserve the constitutionality of the provision of the act in question, for the reason that the tax is not on the dramshop, but is on the city. In other words, it is not a dramshop tax because not levied on the saloon, but on the city. Courts must not go contrary to the plain meaning of words even to preserve a statute from unconstitutionality. Austin v. Cahill, 99 Tex. 172; Sec. 8057, R. S. 1909; 36 Cyc. 1115; State ex rel. v. Gammon, 73 Mo. 421; State v. Riley, 203 Mo. 187; Henry v. Evans, 97 Mo. 55; Martin v. Hunter, 14 U. S. 326; Johnson v. Railroad Co., 196 U. S. 1. (3) Or, if not a tax, then the Act of 1917 is a grant of the city’s money (public money) by the Legislature, contrary to Section 46 and 47 of Article 4 of the Constitution. State v. Court, 142 Mo. 575. A county is a municipal corporation. Rathbone v. Hopper, - 45 Pac. 610; Ex parte Selma & G. R. Co., 45 Ala;-696; Railway Go. v. Porter, 74 Oal. 261; West Plains Tp. y; Sage,' 69 Fed. 943;In Re Dowlen, 36 Minn. 430.. (4) Where there is an irreconcilable conr flict in' meaning between two provisions of the same act, the one destroys the ■ other and renders nugatory the act. In Re Hendricks, 57 Pac. 965.</p>

<p>1. NEGOTIABLE NOTE: Extension: Pleading: Evidence Contrary to Exhibit. The statutes do not make an exhibit filed with the pleading so far a part thereof as to dispense with allegations necessary to a statement of a cause of action; but when a suit is founded upon a written instrument and the petition bases the right to recover on the instrument as filed, plaintiff is bound by its terms when it comes to the introduction of evidence. In the absence of pleading showing an unauthorized extension or an extension by mistake, plaintiff cannot be permitted to show that the note sued on, filed as an exhibit and made a part of the petition, is not what it purports to be, or that it contains matter which is not in the contract sued on.</p> <p>2. -: Alteration. An alteration by the principals to a negotiable note, without the consent of the surety or indorser, will release the surety or indorser. But the former rule which avoided the note whether the alteration were material or immaterial has been modified by the Negotiable Instrument Act (Sec. 10095, R. S. 1909), which restricts the rule to material alterations, and sets out. what alterations shall be deemed material.</p> <p>3.-: -: Premature Payment of Interest. The payment of interest in advance, when the note called for interest to he paid annually, without an agreement that it should operate as an extension of time or in any way affect the terms of the contract, is not material alteration, but is an act done in performance of the contract.</p> <p>4. -: -: -: Limitations. The payment of interest by the maker, in advance or after due, although it tolls the Statute of Limitations, does not release 'indorsers. Besides, while such payment tolls the statute as to sureties or joint makers, it does not interrupt its running as to those whose undertaking is collateral, such as indorsers, or accommodation parties.</p> <p>5. -: Mortgage: Surrender: Pelease of Indorsers. The failure of the payee of a note to record a mortgage on personal property worth more than the amount of the note, given by the maker to secure its payment, and the sale of all the mortgaged property by the maker without applying any of the proceeds to the payment of the note, released those indorsers who did not consent to a withholding of the mortgage from record or assisted in disposing of the property contrary to its terms.</p> <p>6. -: -: Privilege of Sale. A provision in the mortgage conveying 700 machines to secure the payment of a note, that the mortgagor might sell the machines as their manufacture was completed and out of the proceeds of the sales apply $25 for each machine on the note, did not affect the validity of the mortgage as between the parties, and in a suit by the holder of the note against the maker and indorsers it is not necessary to determine the validity of the mortgage as against creditors.</p>

<p>1. FRAUDULENT CONVEYANCE: Subsequent Creditor. The general rule is that a subsequent creditor will not be heard to complain of what his debtor did with his property before the indebtedness accrued. The only exception is that the debtor at tlie time he conveyed his property harbored a fraudulent intent to become indebted and to so smuggle and hide it ás to prevent the collection of .a special debt.</p> <p>2. -: In Trust For Another: To Daughter-in-Law. A voluntary conveyance by the owner of forty acres of agricultural land to his young daughter-in-law, without any reservations or conditions, as a home for her and her children by his son, who had wasted in drink and gambling former gifts of personal property to him, was not a conveyance in trust for the son.</p> <p>3. -: -: -: Knowledge of Son’s Indebtedness. A voluntary conveyance by the owner of land to. his daughter-in-law, in order that she and her children might have a home, at a time when he knew that a judgment for debt was outstanding against her husband, did riot have the effect of creating a trust in favor of her husband’s creditors. Knowledge that a conveyance to the son would instantly subject the land to the payment of his judgment debt did not have the effect of making the conveyance to the son’s wife one in trust for the son.</p> <p>4. -: -: -: Increment in Estate: Labor of Husband. The fact that the debtor so labored, managed and dealt with his wife’s agricultural lands voluntarily conveyed to her by his father as to cause them to increase in value, does not cause the increment to so far become the property of the husband as to render it liable for his debts. As a matter of law the wife can employ her husband as her agent, and the increment resulting from his labor on her property belongs to her. And as a matter of fact such question cannot arise if the evidence fails, as it does in this case, to show any increment.</p> <p>5. -: Failure to Testify: Presumption: Beading Deposition. The rule that a presumption is to be entertained unfavorable to a party who, charged with fraud and present in court, fails to testify, has no application where the deposition of such party is taken by the opposite party and is offered and read at the trial. The adverse party is not entitled to both the testimony and the presumption.</p>

<p>1. ADMINISTRATION: Power of Executor Pending Will Contest. The filing in the circuit court of a suit to contest a will, which has been probated in the probate court, ipso facto vacates an order probating the will, without any formal order of the probate court. When such a suit is filed it operates in the nature of an appeal from the order of the probate court probating the will.</p> <p>2. -: -: Sale of Beal Estate. A sale of real estate by the executor, to whom have been issued letters testamentary, to pay debts of the testatrix, in pursuance of an order of the probate court, the application and order for said sale having been made after a suit has been timely instituted in the circuit court to contest the will, which results in setting aside the will, is void, and the deed made in pursuance of the order is void, because the probate court, after said suit to contest the will is begun, has no jurisdiction to make the order.</p> <p>3. -:-: Invalid Order: Collateral Proceeding: Notice of Lack of Jurisdiction. In a collateral proceeding, such as a suit to quiet title between the purchaser at an executor’s sale and the heirs of the testatrix, the circuit court can question the jurisdiction of the probate court to order a sale of the land after a suit had been instituted in the circuit court contesting the will, by inquiring further than the record made in the probate court. The purchaser from the executor is bound to take notice that the will does not become finally binding and operative until the expiration of the time for filing a suit to contest it, and he is bound to take notice of suits to contest the will filed in the circuit court within that time, and a suit to contest the will timely filed in the circuit court ipso facto ousts the probate court, during its pendency, of jurisdicton to make an order authorizing the executor to sell real estate to pay debts.</p>

<p>1. FIRE INSURANCE: Fraudulent Appraisal: Jury Trial. The issue of fraud in the procurement of an appraisal and award in a claim for fire insurance it not triable to the court sitting as a chancellor, hut the award is so far a settlement of the cause of action as to come within the purview of Section 1812, Revised Statutes 1909, and the issue of fraud in the appraisement, made by appraisers and an umpire pursuant to the terms of the policy, is triable by the jury in an action on the policy.</p> <p>2. -: -: Substantial Evidence. The evidence that the award by the appraisers was fraudulent should be substantial; and the many facts showing ignorance or carelessness or circumvention in this case were so far substantial as to authorize a submission of the issue to the jury — among other things, a discrepancy of twenty-five thousand dollars between the award by plaintiff’s appraiser and the award by defendant’s appraiser and the umpire, in a total alleged loss of approximately thirty-five thousand dollars.</p> <p>3. -: Damages: Evidence: Sale Price of Salved Goods. Evidence of the price for which the salved machines covered by the insurance were sold, while not conclusive, is some evidence of their value after they had passed through the fire.</p> <p>4.- -: Measure of Damages. Where there has been a partial loss by fire, it is proper to instruct the jury that they should first ascertain the fair cash value of the insured porperty immediately before the fire and then the fair cash value of the property not totally destroyed immediately after the fire, and subtract the one from the other, and the difference will be the total amount of loss or damage.</p> <p>5. -: -: Contrary to Stipulation: Statute. A provision in the policy that the loss or damage by fire to personal property in case of partial loss “shall in no event exceed what it would then cost the insured to repair or replace the same with material of like- kind and quality” is in conflict with the statute (Sec. 7022, R. S. 1909) which requires the insurer “to pay the assured a sum of money equal to the damage done to the property or repair the same to the extent of such damage;” and consequently the provision in the policy is not the measure of damages.</p> <p>6. -: Election to Pay or Repair. The statute provides that (a) the insurer is to pay in money a sum equal to the damage done the property or (b) to repair the same to the extent of sue* damáge, and the option to elect which of these two things is to be done is conferred on the assured, and not on the insurer.</p> <p>7. -: Measure of Damages: Fraudulent Appraisal: Stipulation for Damage. The stipulation in the policy to submit the question of damages to arbitration being set aside because of fraud in its procurement, the further stipulation that the damages in case of loss “shall in no event exceed what it would cost the insured to repair or replace the same with material of like kind and quality” is likewise void, and the measure of damages is that fixed by the statute. But if the award of the appraisers is not set aside, the instruction should use the stipulation as the measure of damages.</p> <p>8. -: Vexatious Delay: Verdict. There should either be a general verdict assessing both the penalty and the attorney’s fee mentioned in the statute, or there should be an affirmative finding that the refusal to pay was in fact vexatious.</p> <p>9. -: -: Substantial Evidence. A verdict for attorney’s fees bottomed upon an alleged vexatious refusal to pay the loss done by the fire must be based upon substantial evidence of such refusal or delay... It cannot be deduced from the mere fact that upon suit the verdict is adverse to the company. A general rule for determining when a refusal to pay is vexatious is not easliy formulated, yet before the penalty can be imposed the facts must show that the refusal was wilful and without reasonable cause.</p> <p>10. CONSTITUTIONAL QUESTION: Section 7068: Refusal to Consider. If the Supreme Court has once determined the precise constitutional question raised in a case wherein the Court of Appeals would otherwise, absent such question, have jurisdiction, it will not thereafter, on account of such mooted question, assume jurisdiction of a case appealed after such decision was made. And for a like reason, on principle, the court, havng twice, before this case was appealed, held Section 7068, Revised Statutes 1909, pertaining to penalties and attorney’s fee for vexatious refusal to pay a fire insurance policy, to he constitutional, refuses to open the question.</p>

<p>1. NEGOTIABLE NOTE: Signature on Back. Under the Negotiable Instrument Law (Sec. 10033, nR. S. 1909) a person who places his name upon the hack of a negotiable note is deemed to be an in-dorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.</p> <p>2. -: -: Parol Evidence. And the words of the statute “unless he clearly indicates by appropriate words his intention to be bound in some other capacity’’ mean words written on the instrument itself, and hence the legal effect of a blank in-dorsement cannot be changed or varied by parol evidence or from any other source.</p> <p>3. -:-: Pleading. If the note sued on is set out in full in the petition and shows that the name of one of the defendants appears on the back thereof, it shows him to be an indorser and to be sued as such, and this setting forth of the note .corrects any misrecitation in a prior paragraph of the petition that said defendant was a co-maker.</p> <p>4. -: Indorser: Notice. Unless an indorser comes within the exceptions mentioned in the statute (Secs. 10050 and 10085; R. S. 1909), notice of dishonor by non-payment or presentment for payment must be made, or he -will be discharged.</p> <p>5. -: -: -: Exception: Party Accommodated. If the mdorser of a negotiable note is the party accommodated by making the instrument, he is not entitled to notice as provided-by Section 10085, nor is it necessary under Section 10050 to show presentment unless he had no reason, to expect the note.would be paid when presented. But “the party accommodated” is the one for whose convenience the paper was made, and that usually means the maker' or drawer, and not the indorser.</p> <p>6. -: -: Party Accommodated: Definition. Section 10050 says that “presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for -his accommodation” and Section 10085 says that .“notice of dishonor is not required to be given to an indorser where the instrument was made or accepted for his accommodation.” Held, that the word “accommodation” means a convenience, favor or benefit, or an arrangement or engagement made as a favor to another, not upon a consideration received, and “the party accommodated” is the one for whose convenience the paper is made. The accommodation party is the one who signs the note for the purpose of “lending his name to some other person,” and the other person is necessarily the accommodated party.</p>

<p>Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolf oik, Jndge.</p> <p>(1) The Elsberry Drainage District was not authorized and had no power to extend its boundaries so as to include the lands of appellants, when the majority of the landowners and a majority of the acreage within the extended boundaries was opposed and objected to such extension. Laws 1913, Sec. 2, p. 233; Elsberry Drainage District v. Harris, 267 Mo. 139. (2) The notice of the filing of the original petition for the extension of the boundaries and change of plans of the drainage district was wholly insufficient to confer jurisdiction of the subject-matter upon the court or to authorize the court to decree the extension of the boundaries or change of plans of the drainage district for the reason that the notice was not directed to the owners of lands within the drainage district as well as to the owners of lands adjacent to the district. Eaton v. County of St. Charles, 76' Mo. 493; Elsberry Drainage District v. Harris, 267 Mo. 148; Nishnabotna Drainage District v. Campbell, 154 Mo. 157; 7 Ruling Case Law, sec. 57, p. 1029; Charles y. White, 214 Mo. 206; State ex inf. Rosenberger ,v. Bellflower, 129 Mo. App. 146; St. Louis v. Grlascow, 254 Mo. 271; In re Bledso Hill, 200 Mo. 642; Yolo County Reclamation District v. Burger, 122 Cal. 442; People v. Reclamation District, 121 Cal. 522; Craig v. People, 188 Ill. 416; Sanner v. Union Drainage District, 157 Ill. 575; Payson v. People, 175 Ill. 267; People v. Cooper, 139 Ill. 461; Mason Special Drainage District v. Griffin, 134 Ill. 330.</p> <p>(1) The appeal was improvidently allowed in this case and the same should he now, here, dismissed. Laws 1913, p. 232', sec. 16; In Re Mississippi & Pox River Drainage District v.. Ackley, 270 Mo. 157; Tie and Timber Co. v. Drainage District, 226 Mo. 444; Drainage District v. Railroad, 216 Mo. 709; Birmingham Drainage District v. Railroads, 202 S. W. 404. (2) The question of the • sufficiency of the notice to landowners is not before the court now. Drainage District No. 4 v. Railroad, 216 Mo. 709; Tie and Timber Co. v. Drainage Co., 22'6' Mo. 420; Drainage District v. Ackley, 270 Mo. 157; Birmingham Drainage District v. Railroad, 202 S. W. 404. Laws 1913, p. 241, sec. 16, and p. 254, sec. 40; State' ex rel. v. "Weithaupt, 254 Mo. 329. The notice is sufficient to give the court jurisdiction over the subject-matter of the suit. Laws 1913, Secs. 40, 62' and 63; Kansas City v. Woerishoefer, 249 Mo. 21. Appellants waived objections to the jurisdiction over themselves.</p>

<p>1. APPEAL: Affidavits Dehors The Record: Motion to Strike Out Briefs. Affidavits, purporting to set forth the physical condition of plaintiff in a personal injury case, made at a date long subsequent to the trial and contradictory of the evidence upon which the verdict was rendered, filed in the appellate court, will be Stricken from the files. But appellant’s brief, if the objectionable matter contained in the affidavits has not been interpolated in .any spirit other than that of bringing about what, counsel conceive justice demands, will not be stricken out.</p> <p>2. NEGLIGENCE: Defective Plan: Exception. A city may not be liable for personal injuries directly caused by a defective plan for excavating a street, but may be liable for injuries due to a defective or negligent execution of the plan. But the rule has its limitations, among which is this: where the plan adopted by the city is so manifestly dangerous and unsafe, or leaves the street in a condition so obviously dangerous and unsafe, that a court can say so as a matter of law, then the city is liable for an injury produced by such patently dangerous plan as its proximate cause.</p> <p>3. — :-: -: Maintaining Dangerous Condition. But the rule of non-liability of the city for a personal injury directly caused by a ' defective plan has no application where no one was injured as a result of the execution of the adopted plan for grading a street by so excavating it as to leave a perpendicular wall of clay ten feet high along the building line, and where the negligence consisted in leaving this perpendicular bank overhanging the pathway used by pedestrians, for six weeks or two months, without bracing it or giving notice to the public of its dangerous character, after it had begun to cave at different places.</p> <p>4. -: Fire and Coasting in Street: Unlawful Act. The city in excavating a street left perpendicular clay walls along the building line ten feet high or more. The night was cold and plaintiff had gone to a' point in the excavation to chaperon her sister, who, with other young persons, had resorted to the t excavation to coast "on sleds. Some persons had made a fire on the sidewalk space near the wall, and plaintiff, having assisted her sister with a sled, stepped back on the space near the fire, and almost instantly a section of the clay wall caved and fell, striking her, causing the injuries for which she sues the city. Held, that plaintiff, in standing by the fire built by others in violation of the city ordinance, was not doing an unlawful act, but she was lawfully upon the street and at the time she was hurt was not engaged in an unlawful act.</p> <p>5. . — ¡-: Patent Danger: Question for Jury. Where there is substantial evidence that plaintiff did not have knowledge of the dangerous situation, the. question of whether the danger was apparent to her, or whether she saw or under the circumstances ought to have seen the overhanging danger, is one for the jury.</p> <p>6. -: Evidence: Simulated Injuries. It is improper for plaintiff’s witnesses, expert or lay, to testify that her tears while on the witness stand and her symptoms of injuries in the court room are not feigned or simulated; and where the verdict seems large, such testimony is error. One witness may not pass upon the credibility of another.</p> <p>7. -: Refused Instruction. Appellant cannot complain that the court refused its instruction if the court of its own motion gave one that presented the same identical defense.</p> <p>8. -: —:—: Ordinary Care. Where the defense is contributory negligence and there is some evidence to sustain the plea, it is error to refuse an instruction telling the jury that if plaintiff was not exercising ordinary care under the circumstances and such lack of care directly contributed to her injury she cannot recover.</p> <p>9. INSTRUCTION: Ambiguous. An instruction should not be ambiguous upon a vital contested issue.</p> <p>10.VERDICT: Excessive: $20000. A verdict of $20,000 for a young unmarried woman, whose leg was broken both above and below the knee and is permanently shortened an inch and a half and who received other , nervous injuries permanent in character, was excessive.</p>

<p>1. CONSOLIDATED SCHOOL DISTRICT: Special Meeting: Notice. If four members of the board of directors of a consolidated school district were present at a special meeting and all six members had notice, the meeting was legal.</p> <p>2. -: Annexation of Other Territory. The presentation of a certificate by the clerk of so much of a common school district as had not previously been incorporated in the consolidated school district showing that an election therein had been held upon the question of annexing its territory to the consolidated district and that a majority of its legal voters had voted in favor of such annexation, and of a written statement signed by a number of the citizens of such territory requesting the annexation, authorized the board of. the consolidated district to formally accept such territory, and so far as said board was concerned settled the matter of the regularity of such annexation.</p> <p>3. QUO WARRANTO: Estoppel. There is a distinction between an information filed by the State’s attorney ex officio and one filed by him at the relation of private parties. The purpose of the statute authorizing such a suit to be brought at the relation of a party in interest is to make relator responsible for the result and incapable of bringing it unless he has an interest in the result, and therefore, being burdened with the prosecution and having . authority to prosecute or discontinue it, he may be estopped like the real party in interest in any other, proceeding.</p> <p>4. -: -: Consolidated School District. In a suit in the nature of quo warranto brought at the relation of certain citizens inhabiting that portion of a common school district that had not been incorporated in a consolidated school district, to oust said consolidated district from exercising authority over such portion, which it was claimed had been regularly annexed to said consolidated district, evidence which justifies the trial court in finding that the common school district had been discontinued with relators’ consent, that they signed and presented to the board of the consolidated district a statement signifying their consent to the annexation of the territory to the consolidated district, that they subsequently attended the annual school election in the consolidated district and participated in the election of two directors, one of whom was a resident and former clerk of the common school district and is a relator, and voted on the length of the school term, the rate of taxation and other matters which came before the meeting, is sufficient to estop relators to question the validity of the annexation.</p> <p>5. -: -: Rule. Relator cannot maintain his suit to oust de facto officers from exercising their rights as such, if he was a party to the proceeding by which the office was acquired. If he has contributed to the grievance of which he complains, he cannot be heard.</p>

<p>1. ELECTION: Nomination: Receipt of Statutory Fee. Section 6015, Laws' 1913, p. 337, does not require, as a condition precedent to the placing, by the Board of Election Commissioners of the City of St. Louis, of the name of a proposed non-partisan candidate on the official ballot, that the receipt of the City Treasurer for the deposit of the fee fixed by said statute shall be- filed along and contemporaneously with the certificate of nomination of the candidate. A statutory requirement of a contemporaneous filing of the receipt, without exception, would be so narrow and would so restrict and circumscribe the right of a citizen to be a candidate as to be unconstitutional, as an impingement upon the constitutional guaranty that “all elections shall be free and open:’’</p> <p>2. -: -: - — : Treasurer’s Absence From Office. Since an eligible candidate for office is entitled to the whole of the last day allowed by law within which to file his certificate of nomination, and since the payment of the filing fee can be made only to the City Treasurer and his receipt is made the sole evidence of the payment, a non-partisan candidate for an office ought not to be deprived of his right to have his name printed on the official ballot by the adventitious absence of the Treasurer from his office or the city, if his certificate of nomination in proper form is presented to the Board of Election Commissioners in due time and he is otherwise without fault.</p>

— Hon. Franh Kelly, Judge. (1) Lots 10,11 and 14, comprising 108 acres, valued at the time at $5 per acre, constituted the homestead of Martin Asher. At his death on May 5, 1875, it passed in fee to his widow, Sarah Asher, and was not subject to devise.

<p>1. FALSE PRETENSE: Information. The information, set out in the statement, charging that defendant, by falsely representing himself to he in the employ of the United States at one dollar a year and by mating public speeches and soliciting funds for the relief of war sufferers, fraudulently obtained twenty-five cents from a named auditor, is held to sufficiently charge the offense denounced by Section 4765, Revised Statutes 1909, as amended by Laws 1913, page 222.</p> <p>2. OPENING- STATEMENT: Preservation for Review. Unless reference is made in the motion for a new trial to the action of the trial court in overruling objections to the opening statement of the prosecuting attorney, the rulings cannot be reviewed on appeal.</p> <p>3. DEPENDANT AS WITNESS: Cross-Examination. The cross-examination of defendant, by questioning him concerning matters to which he made no reference in his direct testimony, though technically a violation of the well-known rule, is not prejudicial error, if it pertains to immaterial matters and is of such a nature as not to prejudice the jury against him.</p> <p>4. EVIDENCE: Other offenses: No Objection. The admission of testimony that defendant, charged with obtaining money by false pretense by making public speeches in which he declared himself an authorized employee of the Government to solicit money for war sufferers, made the same speech at other places and that persons hearing him,, relied upon his representations and made small contributions, if admitted without objection, cannot be considered on' appeal. •' ..</p> <p>5. ARGUMENT TO JURY: Preservation for Review.’ Remarks made by tbe prosecuting attorney in his closing argument to the jury, alleged to be improper, if not preserved in the bill of exceptions, cannot be reviewed on appeal. A mere statement in the motion for a new trial that certain remarks were made is not proof that they were made.</p> <p>6. INSTRUCTIONS: On Acquittal Count. Instructions upon issues involved in the count of the information upon which there was an acquittal cannot on appeal be held to be erroneous or to call for a ruling.</p> <p>7. -: Refusal. To refuse instructions which correctly state law is not error if the issues and principles contained in them „ * covered by others given.</p> <p>8. -: False Pretense: Omission of Word Cheat. If the instruction required the jury to find that defendant acted with the “intent of defrauding” the prosecuting witness, the omission therefrom of the word “to cheat” or “cheating” is not reversible error, although the statute requires that the intent must be to “cheat and defraud.” The two words are synonyms, and the meaning conveyed by the word “cheat” is included in the word “defraud.”</p> <p>9. -: -: Intent to Keep Money: Broader Than Charge. The statute only requires that the defendant, by the means in it enumerated, “with intent to cheat and defraud, shall obtain from any person, any money;” it does not require that the jury find that he intended to keep the money thus obtained. Hence, an instruction which, after requiring the jury to find that defendant with intent to cheat and defraud obtained money from the prosecuting witness, told them that if they found he “did not intend to keep the money as his own to do with as he pleased” they would find him not guilty, was broader than the information, but it was an error in his behalf, and imposed on the State an additional burden, of which he cannot complain.</p>

<p>1.LEASE: Removal: Termination: Conditions and Covenant: Rule of Construction. Whether or not a failure to comply with a requirement in a written lease that the lessee should remove within a designated time upon named conditions will terminate the lease, is to he determined from the intention of the parties as disclosed by the instrument, giving it such a construction as will best effectuate that intention.</p> <p>2.-: -: -: General Rule. It is a general rule that a breach by a lessee of the covenants of a perpetual lease will not work a forfeiture in the absence of an express proviso to that effect.</p> <p>3.-: -: -: Covenant or Condition. Clauses in a lease will be construed as covenants rather than as conditions, if that can be reasonably done without contravening the evident intention of the parties.</p> <p>4.-:-: -: Sale of Mineral Water. Where the moving purpose of the lessor, by a perpetual lease of a named lot, free from rent, was to secure a permanent tenant who would confine his activities to 'the sale of a certain kind of mineral water; the lessor might require the lessee, upon written notice, to remove to another lot to be designated by the lessor, pie lease fixing as a penalty a forfeiture of the improvements to the lessor for failure to remove within four months after notice, but containing no express provision for a termination of the lease for such failure; the purpose of the lessee was to secure a permanent location for his bottling business and the sale of mineral water, and to accomplish this he agreed to sell only the water named, at no time to suspend such sale for a year, to pay special taxes against the lot, and' to remove upon notice from the first location to another designated by the lessor, it was not the intention of the parties that the lessee’s failure to remove within the designated time would work a forfeiture of the lease.</p> <p>5.-:-:-: Sale of Lot. The fact that, after the lessee failed, according to the terms of the lease, to remove to another lot designated by the lessor, and the lessor sold the lot to a third party who conveyed it to the lessee, did not terminate the lease or affect the question of its forfeiture.</p> <p>6. -:-: -: -: Improvements. The improvements, although removed by the purchaser of a lot to a lot designated by the lessor after the time within which removal was to'be made had expired, by the express terms of the lease became the property of the lessor.</p> <p>7. -: -: — : Quieting Title: Bemaining in Possession. Where under the terms of a lease it became the duty of the lessee after notice to remove to another designated lot with reasonable expedition, the time he remained in possession after such notice may be pertinent for consideration in another proceeding, but is not material in the suit to quiet title.</p>

— Hon. J. G. Slate, Judge. (1) Plaintiff should not be beard to interpose tbe Statute of- Limitations as a bar to tbe relief prayed for by defendant in ber answer and cross .petition. If Seiffert bad been in possession at any time be was in no position to dispute tbe title of appellant, because he bought and took title subject to the encumbrance held by her. His claim of title was not hostile to that of appellant and never became hostile.

— Hon. J. P. Foard, Judge. (1) It was the duty of the county court in awarding the custody of the $29,000 drainag’e district fund to select as its custodian the hanking- corporation, association or individual hanker whose hid would constitute the largest offer for the payment of interest for said fund. Laws 1915, p. 270, sec. 5607; Secs. 3805 et seq., Laws 1915, p. 249.

<p>1. CONVEYANCES: By Stoddard County: Land in New Madrid County. In 1869 Stoddard County had power to convey county land in Section 20, Township 24, Range 11 lying west of Little River, which now lies in New Madrid County.</p> <p>2. -:-:-: Patent from New Madrid County. A patent from New Madrid County dated 1899, granting land lying in that part of Section 20, Township 24, Range 11 that is situate west of Little River, and which had in 1869 been granted by Stoddard County to a private person, conveyed no title to the patentee.</p> <p>3. JUDGMENT FOR TAXES: Deceased Defendant. A judgment against one who died before verdict is void.</p> <p>4. LIMITATIONS: Adverse Possession: Broken. To establish title by- adverse possession under color of title, the claimant and those under whom he claims must be in continuous possession for ten years.</p> <p>5. -: Claim of Ownership: Mere Occupancy. A mere occupancy of a shack on the land by trappers, under no claim for themselves or defendants, without the payment of rent or demand for any until less than one year before they left, the property, did not satisfy the thirty-one-year statute.</p> <p>6. - — : Under Color of Title: Possession of Part: Acts of Ownership. The inclosure and cultivation of a part of a tract of wild land under color of title to the whole and the possession of. the whole for four or five years, cutting of logs to huild a house, and of posts, rails and fire wood, the cutting of timber from the whole and selling it, the payment of taxes and the building of a levee which protected the land, were acts of ownership, and present a question of fact whether they satisfied the requirements of Section 1832, Revised Statutes 1909, declaring that possession, under color of title, of a part of a tract, in the name of the whole, and exercising during such possession the usual acts of ownership, shall be deemed possession of the whole.</p> <p>7. -: -: -: Size of Part Occupied. Even if the rule that possession of a part under color of title draws to it possession of the whole “is subject to the proviso that the premises described in the conveyance consist of a single tract of a proper size to be managed and used as one body according to the usual manner of business of the county” and such proviso were the settled law of this State, it could not be applied to overcome a judgment where the descriptions in the conveyances abstracted for the appeal are not set out in Tiaec verba, and the record fails to show the number of acres in either of the two fractional sections mentioned in the conveyances before the trial court, or the number of acres fenced and in possession.</p> <p>8. -: Thiry-Year Statute: Payment of Taxes. Where neither the owner of the paper title nor any one under whom he claims has ever been in possession of land patented in 1869, and there is ample evidence, that neither he nor any one under whom he claims or might claim has paid any taxes in more than forty years, and further ample evidence tending to show that the defendants have been in possession of a part of the tract, under color of title, claiming title to the whole and exercising acts of ownership for five years, a judgment for defendants under the • thirty-one-year Statute of Limitations will not be disturbed on appeal.</p> <p>9. -: -: -:' Land Not Assessed for Taxes. The fact that the land was not assessed for taxes for a number of years does not affect the right of one in possession under claim of ownership to claim title under the thirty-one-year Statute of Limitations.</p>

<p>1. PILING SUIT: Date: How Shown on Appeal. The filing of a suit, and the date of filing, must on appeal he shown by the record proper, and a recital in the bill of exceptions that it was filed on a certain date will not supply an omission from tbe record of the date of filing.</p> <p>2. -: Mechanic’s Lien: Not Begun Within Ninety Days: Must Be Pleaded. The statute (Sec. 8228, R. S. 1909) which requires suit to he commenced within ninety days after filing a mechanic’s lien, is a statute of limitations, and must he pleaded in order to avail the defendant. If the defect does not appear on the face of the petition, it must he averred in the answer; if shown on the face of the petition, it may he raised hy demurrer.</p> <p>8. .-: -: Belated Piling Pleaded: Admission. Where each defendant in .his answer pleads as a defense to an action to enforce a mechanic’s lien for materials furnished a sub-contractor that the suit was not begun within ninety days as to the original contractor, who was not made a party, and tried the case on the theory that the suit was filed in time as to all the defendants except said contractor, a statement in the hill of exceptions that the suit was filed on a certain day is not a mere recital, hut a solemn admission of the theory on which the case was tried, and therefore said defendants will not he heard on appeal to present the case on a different theory.</p> <p>4. MECHANIC’S LIEN: Contractor as Party. In an action to enforce a mechanic’s lien for materials furnished to a sub-contractor and used in the construction of a building, the original contractor is not a necessary party. He may he a proper party, hut the materialmen is not to he denied his lien on the sole ground that the orignal contractor was not made a party. The words “parties to the contract” used in Section 8221, Revised Statutes 1909, declaring that “in all suits under this article the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged with the lien may, be made parties,” mean the parties to the particular contract which is the subject of the inquiry, for instance, the contract between the materialman and the sub-contractor who bought the materials; and Section 8223. does not contain a contrary announcement, for while it affords the owner an opportunity to adjust the differences between himself and the original contractor by giving him a right to bring in such contractor, it does not mean that the suh-con-tractor’s lien for materials furnished or labor performed under an agreement with him is to be lost for that neither he nor the owner exercised that right.</p>

Charles Circuit Court. — Hon. Edgar B. Wool folic, Judge. (1) The Legislature by the Act of December 22, 1824, R. S. 1825; p. 211, gave the trustees of any town having a common annexed to it, the power to lease such commons. This act was not repealed in the revision of 1835, but expressly excepted from the repealed laws. See. Ninth, See. 34, R. S. 1835, pp. 384 and 385; Wells v. Pressy,-105 Mo. 179.

— Hon. Sterling H. McCarty, Judge. (1) Tbe court erred in excluding tbe testimony offered by tbe defendant, (a) One of tbe defendants in the tax judgment deed under whom the defendant claims was Eugene Cropper, mortgagee. In plaintiff’s deed he assumed this mortgage. The defendant offered this mortgage to show the proper parties defendant were made defendants in the' tax suit, Mellravy and Eugene Cropper, mortgagee.

<p>1. STREET RAILWAY: Franchise to Commercial Railroad: Statute, Under Section 9250, Revised Statutes 1909, first enacted in 1887, a city of the third class had authority, by ordinance, to grant 'to any person or corporation the right to construct and operate a standard-guage railroad or á street railway in its streets, and to control and regulate the use thereof. A franchise granted in 1902 to a standard-guage railroad authorizing it to operate an electric railway in the streets, was valid.</p> <p>2. -: -: General and Special Statutes. There is no conflict between Sections 9493 and 9494, which are general and apply to all cities and authorize the incorporation of and the grant of frachises to street railway companies, and Section 9250, enacted at the same session, which ,is special and an exception to the other two, and applies to only cities of the third class and authorizes them to grant to any person or corporation a franchise “to make and construct railroads and street railroads in any street or highway of the city.”</p> <p>3. SPECIFIC PERFORMANCE: Useless Performance. If the undertakings of plaintiff and defendant are joint and contemporaneous, plaintiff’s failure to perform after he has been notified, by the words or conduct of defendant, that further performance would be useless, will not prevent a decree for specific performance, if it be shown at the trial that plaintiff is able and willing to perform the balance of the contract.</p>

<p>1. CITY: Municipal Functions: Police Regulations: Liability for Injuries. One of the functions of a municipal corporation relates to the discharge of its governmental authority, and in performing those duties it is not liable for personal injuries due to the negligence of its agents. If the negligent acts occurred in the exercise by the city of its police powers it is not liable in damages for personal injuries.</p> <p>2. -: -: -: Sham Battle: Cause of Action. Although the petition alleges that the city, through its municipal council, in pursuance to ordinance and resolution, provided foi*'a Fourth of July celebration in a park belonging to the city, and ordered and directed the park board to make arrangements with a military organization to conduct such celebration, and in pursuance to such arrangements a sham battle was conducted and during its progress, plaintiff, temporarily connected with the organization and inexperienced in handling the gun prematurely discharged and by which he was injured, due to the neglect of the park board, yet as the duties imposed upon the board to prevent injury to persons and property who might attend the celebration was the same kind of management imposed upon municipal authorities, in the exercise of their governmental functions, to prevent disorders and dangers in any crowd, the petition did not state a cause of action for damages against the city.</p> <p>3. -: -: Nuisance in Park. It is a city’s duty to use care to maintain its public parks in a reasonably safe condition, and that duty it performs in its proprietary or private character, and for a failure to perform it the city is liable for ensuing damages. But the maintenance of good order in a public park, and the prevention of dangerous conditions therein caused by gathering crowds or by lawless or imprudent conduct of individuals, relate to the city’s governmental functions, for the negligent performance of which it is not liable in. damages.</p> <p>4. -: -: -: Sham Battle. A sham battle in a public park and the firing of a gun by a military organization conducting the same do not of themselves constitute a dangerous nuisance, and if the injury to plaintiff was caused directly by the presence of a jostling crowd and the negligence of some member of the organization in prematurely firing a gun, the city is not liable for his injuries.</p>

Louis City Circuit' Court. — lion. Leo S. Rassieur, Judge. (1) The trial court erred in holding the tax bills valid, because the ordinance authorizing the work for which they were issued contained no direction to advertise for bids. Sec. 27, Art. 6, St. Louis Charter 1902. The words “the same” in that section refer to the antecedent “ordinance authorizing the doing of the work.” 2 Kent’s Comm. (14 Ed.) sec. 555; Coke on Litt. (1 Am.

— Hon. Willard P. Hall, Judge. (1) The appellant did not have a trial before a legal, qualified jury as provided by law. Sec. 7323, R. S. 1909; State, v. Austin, 183 Mo. 478 : State v. Haney, 151 Mo. App. 251; Berry v. Trnnlc, 185 Mo. App. 495; See. 30, Art. 2, Mo. Constitution. (2) The court should have granted a new trial in this case because of the misconduct of the juror Jos. Rothenberg in going to the scene of the accident during the course of the trial. Easley v. Mo.

<p>1. NEGLIGENCE: Defective Tool: Knowledge of Company. Where the evidence is sufficient to afford a basis for a knowledge on the part of the railroad foreman of the defective condition of the tool with which the workmen was required to perform his work, the jury are entitled to consider it in determining the cause of the workman’s injuries.</p> <p>2; -: Interstate Commerce: Filling Water-Cooler of Passenger Train. Evidence that plaintiff’s duties consisted in filling a water-cooler of a passenger coach for use in interstate commerce, which arrived .the evening before after a similar use and was left overnight to he prepared for an interstate journey the following morning, said coach being run daily between Lawton, Oklahoma, and Quanah, Texas, and was merely stopped overnight at Lawton to he cleaned and put in order for a continuance of an interstate journey next day, tends to show that the coach was permanently appropriated for interstate commerce, and tends to prove that he was engaged in interstate commerce at the time he was filling the water-cooler and the hose broke, which caused his injury. And such being the evidence the trial court did not err in overruling a demurrer to the evidence in the case brought under the Federal Employers’ Liability Act.</p> <p>3. -: -: Submitted in Separate Instruction. If the instruction given to cover the whole case submits the issue of whether or not defendant was engaged in interstate commerce at the time plaintiff was injured, it is not necessary that said issue be also submitted in the instruction intended solely to prescribe the apportionment of damages in case the jury find that both parties were negligent. Especially should this be the rule if the instruction covering the whole case in terms refers the jury to all other instructions given.</p> <p>4. -: Federal Employers’ Liability Act: Reduction of Damages: Instruction: Harmless Error. ' In an action brought under the Federal Employers’ Liability Act, an instruction defining the duty of the jury in case the evidence shows negligence on the part of the plaintiff as well as the defendant must contain terms or language requiring the jury to diminish the whole amount of damages allowable by such a sum as represents the proportional negligence attributable to the plaintiff; and an instruction which tells the jury that, in such case, they “are only warranted in reducing the amount of damages to be awarded to plaintiff in the proportion that his negligence bears to the combined negligence of himself and the defendants” is, by the use of the words “only warranted,” incorrect. But It is not in this case reversible error, because the record discloses no facts or circumstances which would have warranted the jury in finding that plaintiff was guilty of evidence directly contributing to his injury.</p> <p>5. -: -: Contributory Negligence. It is not the duty of the servant to keep the tool furnished him by his master in a reasonably safe condition. The law imposes that duty on the employer.</p> <p>6. -: -: -: Confined to Fleas. Defendant cannot rely on any theory of contributory negligence beyond the averments contained in its answer, unless negligence is shown ás a matter of law by testimony given for plaintiff in submitting his case.</p> <p>7. -: Evidence: Defective Tool: Details of Bad Condition. If the jury are required by plaintiff’s instruction to find any bad condition in the defective hose used by him in filling the coach water-coolers not warranted by the evidence, he simply shoulders an additional burden, which does not harm defendant. .</p> <p>8. -: -: Custom: Prudent Method. A railroad company is not compelled to adopt any specific method for the purpose of connecting two pieces of hose used in filling water-coolers on its passenger coaches other than one that would result in making; the hose reasonably safe, but evidence for plaintiff that the common custom was to use clamps cannot be said to be without evidenciary force, since the very existence of the general custom consists with the idea that prudent men have always followed.</p>

<p>1. BENEFIT INSURANCE: Death: Failuré to Give Notice: Knowledge of Subordinate Dodge. Where the constitution of a fraternal beneficiary society, which, by express statute (Sec. 9, p. . 286, Laws 1911) and the agreement of the parties to the benefit certificate, is made a part of the insurance contract, explicitly provides that, in case of death, notice thereof shall be given within ten . days to the supreme secretary of the order, and ’ also explicitly provides that knowledge or information of members and officers of local councils shall not be held or construed to be knowledge of or 'notice to the order, a failure to give such notice within the time stipulated bars' recovery on the certificate, unless waived. Such stipulations are within the power of the society to make, and by the express terms of the statute are binding, and the time is not unreasonable. Knowledge of the subordinate lodge, under • whose auspices the insured’s funeral was conducted, is not notice to the supreme secretary.</p> <p>2. —--: -: -: Forfeiture. Unambiguous language in an insurance contract that failure to give notice of the insured’s death within a designated time shall work a forfeiture is enforceable.</p> <p>3. -:-:-: Waiver. If the constitution of the fraternal beneficiary society provides that no officer, member or agent of a subordinate lodge can waive any of its provisions, and this provision is a part of the contract, attendance upon the insured’s funeral by the members of the local council, and a letter written by his beneficiary to the secretary-treasurer of said council in which she thanked the members for their kindness at the time of her husband’s death, did not constitute a waiver of the notice.</p> <p>4. -:-:-:-r: Sending Blanks. The mere sending of blanks for proof of claim does not constitute waiver of the requirement for notice of the insured’s death. Where the beneficiary, after the time in which notice of the insured’s death was required by the contract to be given had expired, wrote to the proper officer for blanks for proof of her claim, and blanks having printed across the top: “In sending this blank the order does not waive any provision of the constitution, but expressly reserves the same” were sent to her, and all she thereafter did was to write in the blanks answers to inquiries therein contained, going to no expense and being in no wise misled to her prejudice, there was no element of estoppel, and no waiver.</p> <p>5. --:-:-:-: Correspondence Between Officers. A letter voluntarily written by the secretary-treasurer of the local lodge to the supreme surgeon of the order concerning a death claim, and the surgeon’s answer thereto that "the disposition of the elaim will be held in abeyance until after the next supreme council meeting,” written long after notice of death was due, contain no element of estoppel or waiver..</p> <p>6. -: -: -: -: Collecting Evidence of Defense. The act of the secretary of the local lodge and the attorney for the supreme lodge in calling upon the beneficiary after suit has been brought by her and obtaining from her an affidavit containing statements of the claim and proof of death, even if done in an attempt to collect evidence for the defense, does not constitute waiver of notice or estoppel.</p> <p>7. —:-:-:-: -: Offer of Compromise. A mere offer of compromise by the defendant after suit was brought, with nothing more, does not tend to prove waiver of notice.</p> <p>8. —■-: -: -: -: Autopsy. In a suit on a benefit certificate against injury or death by accident, where the death certificate contains a statement that the insured died with neuralgia of the heart, and the contract expressly provides for an autopsy in proper circumstances, and one of the questions of fact in the case is whether he came to his death from the effects of his accidental injury, an autopsy, applied for in proper time and circumstances, is a reasonable method of enabling the order to prepare for trial on said defense, and a demand therefor does not imply waiver of notice of death or accident.</p> <p>9. -: -: -: -: Forfeiture: Abandonment. A denial of liability, after forfeiture and after suit brought, which does not place denial on a ground or grounds other than forfeiture, but is general and asserts reliance on the provision of the constitution of the order, which by the certificate and the statute are made a part of the contract, does not justify an inference of abandonment of the forfeiture for failure to give notice of death within the time stipulated, and nothing having been done by the beneficiary upon the faith of the denial, to her expense or prejudice, the denial embraces no element of estoppel or waiver.</p>

— Hon. Samuel Davis, Judge. (1) The Connecticut court was a court of competent jurisdiction to determine the question of the right of the company to maintain the mortuary fund, and its decree was binding upon the company and all its members. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662; Royal Arcanum v. Green, 237 U). S. 531; Hartford Life Ins. Co. v. Barber, 245 U. S. 146; Condon v. Mutual Reserve, 89 Md. 99; Taylor v. Mutual Reserve, 97 Ya. 60; State ex rel.