Volume 278 — Missouri Reports

— Hon. Charles H. Mayer, Judge. (1) The Statute of Limitations will not begin to run against the widow, and ,-in. favor of the heirs, until such time as they assume and assert an adverse and hostile possession against her. In other ‘ words, so long as the widow • and children, in unison and in harmony, occupy the premises, the law through public policy will not bar the rights of either.

<p>1. CONVEYANCE: Deed by Husband and Wife of Undivided Half: Cotenants in Whole. Where the.wife was the owner of an undivided half interest in land, by inheritance, and her husband was the owner of the other undivided half, by purchase, a joint deed made by them in 1856 by which they conveyed “the undivided one-half” of the tract, the wife being under common law disability and the husband under no disability, must be held to have conveyed the husband’s half interest, unless the instrument itself shows the performance of every act on her part necessary to convey her estate, or unless it is shown by evidence aMuncle that it was the purpose, object and intent of. the makers to convey only her undivided half interest.</p> <p>2. -: -: Intention Shown by Deposition of Husband. That the purpose, object and intent of the husband and wife by a joint deed conveying an undivided half interest in land, in which each owned an undivided half interest, was to convey the wife’s interest, cannot be shown by a deposition of the husband made after the wife’s death. The wife being a party to the contract and being dead, such testimony is not competent under Section 6354, Revised Statutes 1909.</p> <p>3. LIMITATIONS: Land Subject to Curtesy. The Statute of Limitations does not begin to run against the wife’s heirs or, their grantees until the death of the husband who had curtesy in her lands, or against his grantees, even though she had been dead fifty years or more at the time of his death. Until his death and his lifetime right to possession was thereby terminated, the remaindermen or reversioners could not maintain a possessory action against him or his grantees.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Klene, Judge.</p> <p>(1) The “tax” which may he deducted from the income tax assessment as provided for in Section 32 is the “tax assessed upon his real or personal property paid to the State,” and this expression is equivalent to the expression of “State tax on property” as provided for in Sec. 8, Art. 10, Mo. Constitution. (2) School taxes are treated as a separate fund and are classified with county, city and town taxes by the Constitution, and cannot be deducted from the income tax assessment. -Sec. 2, Art. 1, Mo. Constitution. . (3) The state tax which may be deducted from the income tax is the tax paid to the State during the year in which the income tax is assessed against the person claiming the deduction. The taxes paid during 1918 alone may be deducted from' the income tax assessed during the year 1918. (4) The collector is not authorized to make the deduction provided for in Section 32 until he has been authorized to change the amount of thé bill or make a deduction therefrom by an order of the comptroller, who has him charged with the total amount of the income tax bills in his hands for collection, and until the comptroller has made the appropriate credit on his books reducing the amount of the income tax bills with which the collector is charged.</p> <p>(1) The Supreme Court said in Bingham v. Birmingham, 103 Mo. 352: “The presumption is that the Legislature never intended to enact an absurd law incapable of being intelligibly enforced.” It is manifest that it was the purpose and intention of the General Assembly that the income taxpayer should have the right to reduce the amount of the income tax assessed against him by the taxes he pays to the State on his real and personal property for the same year, and Section 32 was designed to enable him to accomplish that purpose. It is clear that the method intended was that he should exhibit his receipt or receipts for his real and personal property taxes to some officer authorized to give him the benefit of the credit in the payment of his income taxes. It is equally manifest, by reference to other provisions of the Income Tax Law and the general scheme and method of assessing and collecting real and personal property taxes, that requiring him to exhibit his receipt or receipts to the assessor utterly fails to accomplish the purpose and intention of the General Assembly. If the word “collector” had been used in Section 32 instead of the word “assessor,” it would be an easy matter for the income taxpayer to exhibit his receipt for real and personal property taxes in payment of his income taxes, as the collector of real and personal property taxes is, the collector of the income taxes and both are due .and payable at the same time. It may be that the insertion of the word “assessor” instead of the word “collector” is a mere clerical error, or that the use of the word “assessor”' instead of the word “collector” is a mere mistake or inadvertence. 36 Cyc. 1146. Judged by the other provisions of the Income Tax Act and the provisions of existing law called into play in the administration of the Income Tax Law by the terms of the act, the use of the word “assessor” in Section 32 instead of the word “collector” must be presumed to have been either a mere clerical error or an inadvertence or mistake of the draftsman of the act, to which the General Assembly did not have its attention called. Under these circumstances, the court should read the statute as the General Assembly intended it to read, and so read it will express the real meaning and'purpose of the General Assembly. Endlich on Interpretation of Statutes, Section 319; Lems’ Sutherland on Statutory Construction (2 Ed.), par. 410.- We challenge the right of the relator to have credit on his income taxes for the two items “state school fund tax, $3,273,” and “state tax for public school purposes, $1,789,326,” for the reason that neither of these items are taxes paid to the State. It is evident from an examination of the statutes that the State levies no tax for the direct benefit of the schools. The only purposes for which taxes paid to the State are levied are for the general revenue fund, the payment of the interest on the School Fund and Seminary Fund certificates of indebtedness, and for the payment of the capitol building bonds and the interest thereon. It is evident that neither of the items mentioned were paid as taxes for any of these purposes, and, as the State does not levy and collect taxes for other purposes, the_ conclusion must be that neither of these amounts were paid to the State as taxes on the real and personal property of relator. The General Assembly was entirely logical in allowing credit on the income taxes only for taxes paid to the State. It was attempting to avoid what might seem to Be double taxation, as the income tax is levied upon incomes derived from real ánd personal property, which also pays a property tax, but the proceeds of the income tax belong exclusively to the revenues of the State and there would be no reason to reduce the amount of taxes payable to the State by taxes paid to counties, school districts or other subdivisions of the State for local purposes.</p> <p>(I) The peremptory writ was correctly awarded to command allowance of the taxes paid in 1918 on the real and personal property of relator as credits on the income taxes assessed against relator “during, said year” after exhibit of the receipts therefor to the assessor and collector under Section. 32 of the Income Tax Law of 1917. Laws 1917, p. 538, sec. 32. (2) The “State School Fund' tax” and the “State tax for public school purposes” (alleged in the petition to have been paid) are taxes paid “to the State,” within the meaning of Section 32, as interpreted by the aid of the entire act. Laws 1917, pp. 526, 532, 534, secs. 5, 9. (3) Section 32 enacts that the credits specified shall be allowed in the payment of the income taxes assessed “during said year,” and operates as an amendment of the prior law of taxation in Missouri. The exhibit of the paid tax bills to the assessor, and the separate record the latter is required (by Section 12) to keep, permit him to have a check upon the collector’s accounts, with reference to such credits on income tax accounts, under Section 32. (4) State school taxes are within the scope and intent of Section 32 because such an interpretation of particular words of aii enactment should be adopted if possible as will bring them into harmony with its general intent and produce reasonable and practical results, in harmony with other parts of the • act. In re Ferguson Ést., 206 Mo. 203; St. Louis v. Lane, 110 Mo. 254; Kane v. Railroad, 112 Mo. 34; State v. Slover, 126 Mo. 652; Railroad v. Gfracy, 126 Mo. 472; Jones v. Driscoll, 94 Mo. 190 (“not” construed into a statute); Minor v. Bank, 1 Pet. 46 (“may” construed “must”); Felts v. Edwards, 204 S. W. 147. The other parts of the act (Sections 5 and 9) show that all' taxes paid are excluded from income to be taxed, and from income tax to be assessed or paid, in view of the ruling on that point by the U. S. Supreme Court. Pollock v. Trust Co., 158 U. S. 618. (5) The whole act helps to interpret Section 32 in allowing credits snch as here claimed by relator “during said year” when the income tax bill is payable, and the intent to exclude all taxes from being considered income (on which income tax is payable) is manifest from several parts of this act. Laws, 1917, pp. 531-5, secs. 9, 11, 14; Laws 1917, p. 534, sec. 9. What a law implies is as much a part as that expressed. United States v. Hudson, 10 Wall. 395; Dooley v. Railway Co., 250 Fed. 143. (6) The State school taxes described in the petition are properly taxes paid “to the State” within the intent of this law, because: (a) They are alleged to .be “State” taxes and the fact is not denied. R. S. 1909, sec. 1830. (b) They are in reality taxes paid “to the State” within the narrowest construction of Section 32, R. S. 1909, 'chap. 106; Laws 1917, p. 518, sec. 11031; Constitution, art. 11, secs. 1-7-11; Constitution, art. 10, secs. 8-11; Railroad v. Price County, 133 U. S. 496; State v. Henderson, 160 Mo. 190; Railroad v. Chapin, 162 Mo. 414;-State v. Phipps, 148 Mo. 31.</p>

<p>1. CERTIORARI: Facts of Case. In determining upon certiorari whether a decision of a court of appeals is in conflict with its own last previous rulings, the Supreme Court cannot go beyond the opinion of the Court of Appeals to ascertain the facts,' and will not therefore go to the record before that court to ascertain whether or not its statement of the facts is in accord with the record in the case.</p> <p>2. -: -: As Set Forth in Motion. A motion for a rehearing filed in the Court of Appeals does not prove itself, and therefore the Supreme Court cannot on certiorari accept as true the facts stated in such motion.</p> <p>3. -: Conclusion of Law From Facts. The Supreme Court will on certiorari determine whether the facts stated in the opinion of the Court of Appeals justify the conclusion reached and whether in view of those facts the conclusion conflicts with its own prior decisions.</p> <p>4. -:-: Weight of Evidence. If the opinion of the Court of Appeals holds that as a matter of law the record in the case showed plaintiff’s conduct was done in pursuance ■ to a certain agreement, and there is nothing in- the facts stated to invalidate the holding, the Supreme Court will not rule that the opinion conflicts with its decisions holding that an appellate court in an action at law is not authorized to pass on the weight of the evidence.</p> <p>5. -: Conflict in Decision. If the question has not been decided by the Supreme Court in a manner contrary to the ruling of the Court of Appeals, whether that ruling be right or wrong, it cannot be quashed on certiorari. 0</p> <p>6. ESTOPPEL: Acceptance of Salary in Lieu of Legal Fees: Recovery. The case of Wood v. Kansas City, 162 Mo. 303, gives recognition to the idea that a contract, under which a notary public in the city treasurer’s office accepts a salary in lieu of uncertain notarial fees and agrees tliat tliese may be paid to the city, might constitute a valid agreement, or might amount to a waiver or estoppel against the notary in a subsequent suit brought by him to recover the fees, although by ordinance he was to receive the fees in payment for his services; and whether the ruling was right or wrong, if it is the last decision of the Supreme Court on. the subject, an opinion of the Court of Appeals which follows it will not be quashed on certiorari. Neither can it be quashed as in ' conflict with State v. Williamson, 118 Mo. 156, on the theory that an assignment of unearned salary is void, as against public policy, for in that case the contract was executory, whereas in the case at bar the plaintiff had during his entire clerkship received from the city the agreed salary in lieu of the fees which the ordinance said were to be paid to him, and the Wood Case had in effect held that an executed contract might operate as an estoppel.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) There is' no law or public policy prohibiting a member of a benefit society from contracting in advance that future laws may be passed by societies changing and modifying the indemnity in the original certificate, and if such stipulation, is made, the by-law will be enforced. Claudy v. Royal League, 259 Mo. 92; Shipman v. Protected Home Circle, 174 N. Y. 398; Richmond v. Supreme Lodge, 100 Mo.

<p>1. DEMURRER: General or Special. A demurrer to the petition, which states two of the grounds therefor designated in the statute, is not a general demurrer; hut if it states that “the plaintiff has no legal ground to sue,” that “the petition shows that plaintiff is not entitled to recover” and that “the petition does not state facts sufficient to constitute a cause of action” it is specific, hut nevertheless is broad enough to raise several questions for decision.</p> <p>2. PUBLIC ADMINISTRATOR: Right to Sue: Ancillary Administration: Admissions. Allegations that plaintiff is public administrator of the county, that as such he took charge of and was duly appointed and qualified as ancillary administrator of the estate of a person who at and prior to her death was a resident of another state, and that he is now proceeding to administer upon said estate, stand admitted by a demurrer which states that plaintiff has no capacity to sue and that his petition does not state a cause of action; so that unless the other facts alleged show that there was no estate to be administered by an ancillary administration, the plaintiff has a- right to sue. Such facts being necessarily admitted by the demurrer, the pleadings must show some other facts which disrobe the public administrator of the right to administer.</p> <p>3. ADMINISTRATION: Situs of Corporate' Stock: Demurrer. An allegation that the situs of the personal estate is in Missouri and is an asset of the estate in this State, is a legal conclusion, and is not admitted by a demurrer to the petition.</p> <p>4. -: -: In State of Corporation’s Domicile. Actual property represented by certificates of stock in a corporation has its situs where the corporation is, and not where the certificates chance to be. Where decedent resided and died in Illinois, owning certificates of stock in a national bank located in Missouri, the situs of the property represented by the certificates was in Missouri, although the certificates were not themselves in Missouri and have not been since decedent’s death.</p> <p>5. PUBLIC ADMINISTRATOR: Right to Sue: Collateral Attack. A public administrator who has taken charge of an estate committed to him by statute has a right to sue for the preservation of designated assets; and having instituted in the circuit court his suit for the recovery of property in this State belonging to a decedent who resided and died in another state, his right to act for 'the I estate in Missouri cannot be challenged in such collateral pro-1 ceeding. His right to so act can be questioned only in the probate; court.</p> <p>6. -; — : Eight to Act: Debts. If the decedent, who died in Illinois, left an estate in Missouri, it is immaterial, in determining whether' the public administrator has a right to act as ancillary adminis-1 trator of the domestic estate, whether or not decedent had creditors ; in Missouri.</p> <p>7. -: -: Estates of Testates: Exposure to Loss or Damage. By the fourth clause of Section 302, Revised Statutes 1909, the public administrator is authorized to take charge of money, prop-i .erty, papers or other estate left in a situation exposed to loss orj damage, when no other person has been appointed to administer on;, the same; and this clause, unlike the second and fifth, has'1 reference to estates of testates as well as to estates of intestates,*. and any such property with no one in charge thereof is exposed to] ‘ loss or damage.</p>

<p>1. CONDEMNATION: Of Existing Viaduct: Incidental Rower. A provision in the charter of Kansas City, empowering the city by ordinance to establish, construct and maintain, for public use, any viaduct, bridge, or approach thereof or right-of-way therefor, upon the payment of just compensation to the owners of property taken for such purposes, is broad enough to include the incidental and implied power to condemn and acquire, for a public thoroughfare, land on which is an existing viaduct and the viaduct itself, now owned and operated by private persons as a toll way.</p> <p>2. -: -: Property Already Dedicated to Public Use. A viaduct or passageway, owned by a private corporation, which charges tolls for its use, though located within the corporate limits of a city, is not dedicated to a public purpose, and consequently the contention that .'the city cannot condemn property to public use which is already dedicated to a public purpose, is not applicable.</p> <p>2. -: Property Subject To: Personalty. Complex property, consisting of realty and personalty, franchises, leaseholds, etc., belonging to the owner of a viaduct, and every species of property the public needs may require and the government cannot lawfully • appropriate, are the subject-matter of condemnation for public use.</p> <p>4. -: Previous Agreement As to Value. An offer of sale to the city by the owners of the property authorized by the ordinance to be condemned, at a named price, is not conclusive upon the court or jury in ascertaining its value, and does not forestall a condemnation proceeding.</p> <p>5. -: Use By Street Railway. Provision in the condemnatory ordinance for the future use by a street car company of the viaduct to be acquired by the city, is no objection to the city’s right to maintain the proceeding. Such use does not change the public ownership or control of the property condemned.</p> <p>6. -: No Benefit to Property Assessed. The necessity, expediency and propriety of taking private property for public use through the exercise of the power of eminent domain are determinable by the municipal assembly of Kansas City, and whether the designated benefit district is specially benefited by the acquisition of a viaduct and the establishment of a thoroughfare is, by the charter, a question for the jury.</p> <p>7. -: Procedure: Prohibition. Prohibition lies only to prohibit a court from exercising a jurisdiction it does not possess or from exceeding its jurisdiction, and cannot be used to correct errors of law or to prohibit the court from committing such errors, and therefore the Supreme Court cannot on prohibition prescribe for the circuit court under what section of the city charter it should assess with benefits the particular property to be acquired in a condemnation proceeding. If the circuit court commits error in that respect the remedy is by appeal or writ of error.</p>

—Hon. Arch B. Davis, Judge. (1) The words “heirs” or “heirs of the body” will be construed to mean children whenever the context shows that such was the intention of the testator or of the grantor. The manner in which the words are used in the fifth clause of the will in question show clearly that they mean children.

— Hon. Arch A. Johnson, Judge. (1) The court erred in permitting the State to proceed against defendant by information. While the law contemplates a proceeding either by information or indictment, it holds the State to procedure first adopted. In this case defendant was arrested on warrant. A preliminary hearing was had and the evidence of witnesses reduced to writing, although not signed or filed as required by law.

<p>1. INTEREST: Money Deposited in Court for Party. Where suit was brought in the circuit' court against relator and the plaintiff was required to deposit in court, as a condition precedent to the rendition of a decree for specific performance in his favor, a named sum of money for relator’s benefit, and that was done, and relator appealed and the judgment was affirmed, and the clerk of the circuit court, during the' pendency of the appeal deposited the money in bank as a part of a general account to his credit as such clerk, and neither loaned it nor received interest on it, the relator is not entitled to recover interest on the money during the time the appeal was pending. Both the clerk and the relator must have known that the appeal would have been pending for some time, but relator was entitled to drawn down the deposit at any time, and the clerk, without an order of the court directing him to loan the money, was absolutely prohibited by the statute (Sec. 4557, R. S. 1909) from loaning it.</p> <p>2. PREMIUMS 'op CLERK’S BOND: Paid by Banks: Deposit of Litigant’s Money: Right to Recover. Money paid to a surety company by banks as premiums for the execution of the bond of the circuit clerk, who deposited in such banks money paid into court for a litigant in a pending suit, cannot be recovered by said litigant in a suit against the clerk or his bondsmen. Even though it be conceded that the clerk received a benefit from such payment for his bond, yet as the litigant received from the clerk all that was due him at the time his judgment became final, the right to recover for such benefits belonged to the State, if to any one, under the statute (Sec. 4558, R. S. 1909).</p>

<p>1. THEORY OF TRIAL: Same on Appeal: Accident Insurance: Suicide. Appellant must try his case in the appellate court on the same theory on which he tried it below. Where insured came to his death by taking cyanide of potassium and the accident policy provided that, if he came to his death by suicide, while either sane or insane, the company would pay the benficiary one-tenth of the principal sum, and neither the pleadings upon either side, nor the instructions, nor the evidence except the policy, contain the word suicide, the plaintiff cannot-on appeal be heard to contend that a verdict for the company is not sustained by the evidence for that in any event the verdict should have been for at least one-tenth of the principal sum.</p> <p>2. ACCIDENT INSURANCE: Taking Foison While Insane: Recovery. If the insured took cyanide of potassium while insane, his death was caused by accident within the purview of a policy of insurance against death “resulting directly, exclusively and independently of all other causes from accidental bodily injuries, except when self-inflicted when insane,” for the last clause is expressly-rendered void by statute (Sec. 6945, R. S. 1909).</p> <p>3. -: Intentional Taking Foison While Sane. If the insured intentionally swallowed cyanide of potassium, .that is, if he committed suicide while sane, his death was not due to accident, and his beneficiary cannot recover under a policy which gives her the right to recover only for death resulting from accidental injuries. An act intentionally done by a sane man is not an accident.</p> <p>4. -: -: Contract: Presumption Against Suicide: Proof of Accident: Burden. Section 6945, Revised Statutes 1909' leaves the parties to an accident insurance policy free to contract that • there shall be no liability except for a death resulting from accidental injury, and where such is the contract and the insured was sane at the time of his death, the proof must show an accidental cause of death before there can be any recovery on the contract; and if the proof, even when aided by the presumption against suicide, shows suicide by the insured while sane, there can be no recovery by the beneficiary, for she has failed to meet the burden expressly assumed in the contract of proving insured’s death by accident.</p> <p>5. -: -: Sane or Insane:. Burden of Proof. If the insured commit Suicide while insane, his death, being unintentional, is held to be accidental, and though suicide be expressly excepted in the policy the statute (Sec. 6945, R. S. 1909) eliminates the excepting clause and the beneficiary may recover; but if the insured were sane at the time of his death, the burden is on the plaintiff to prove that the death resulted from accidental injuries, and though that burden may sometimes be aided by the presumption against suicide, it is not affected by the statute (Sec. 6945, R. S. 1909), for the burden still rests upon plaintiff to prove that, if insured took poison, which caused his death, he took it accidentally and not intentionally. [Distinguishing Logan v. Ins. Co., 146 Mo. 114, and Felter v. Ins. Co., 174 Mo. 1. c. 269.]</p> <p>'6. -: — : Inference From Taking Poison. When plaintiff in the suit on an accident policy has shown that the insured died from taking cyanide of potassium self-administered, the inevitable inference arises that his death was caused either by accident or suicide, and plaintiff cannot recover if the evidence (aided by the presumption against suicide) shows suicide, unless the evidence further shows that the insured at the time he committed suicide was insane.</p> <p>7. -: Presumption Against Suicide: Exclusion by Instruction. As an abstract proposition it is clearly improper to instruct the jury, in a suit on an accident insurance policy, that there is no presumption in law that the taking of poison by the insured was . accidental. But whether the giving of such an instruction is prejudicial error depends upon whether or not the facts do so conclusively show suicide that there is no room for such a presumption. If it cannot be said, by the court, as a matter of law, that the facts and circumstances proven show suicide and exclude any reasonable hypothesis of accident, then such. an instruction is not • only abstractly, but is concretely bad.</p> <p>8. -: -: Character and Force of Presumption. The presumption against suicide is a rule of law deduced from convenience and necessity; it is not evidentiary in character, but automatically arises when' there is no convincing evidence for or against suicide, and then, perforce of the presumption, a finding in favor of accidental death will be upheld. If there is evidence both for and against suicide* (unless the evidence is equally balanced) , the presumption has no place in the case. When it arises in the case as the result of the evidence adduced, it operates in only one of two ways: (a) it either forecloses the question, unless or until further evidence is offered by the other side, or (b) it shifts the burden of proof to the other side. But should this burden not be met, áhd should no other or countervailing evidence be adduced, the presumption will have the effect to con lude the question in favor óf the side upon which it operates.</p> <p>9. -: -: Character of Evidence of Suicide. The evidence for or against the fact of suicide may be either direct or circumstantial; and if the evidence in favor of suicide is wholly circumstantial, it ought to be such and of such weight as to negative every reasonable inference of death by accident.</p> <p>10. -: -: Sufficiency of Evidence. ■ Where defendant put in no evidence at all, and no affirmative facts to show suicide were adduced save and- except the proven facts that a few minutes before insured was found in a dying condition, due to his having taken cyanide of potassium, he was seen to fold up a handkerchief, that after his death a large quantity of this poison was found in a handkerchief in his pocket and that he had had this poison in his pocket for several days and knew what it was, the • court could not say as a matter of law that the evidence was sufficient to overcome the presumption against suicide.</p> <p>11. -:-: -: Practice: Demurrer. If the facts and circumstances proven are sufficient to exclude every reasonable hypothesis favoring accident, the court should sustain a demurrer to the evidence; but if the facts and circumstances are sufficient., on account of the presumption against suicide, to take the case to the jury, then it should go to them under proper instructions, and they should not be told that there is no presumption of law that the taking of poison by insured was accidental.</p>

— Hon. Edgar B. Wool-folk, Judge. (1) The court committed error in not giving an instruction to the jury on manslaughter in the fourth degree.

Certiorm i. (1) The holding and decision of the Kansas City Court of Appeals that said action was a suit at law, and not in equity, and that it was properly tried in the circuit court by a jury as a suit at law, is in conflict with the controlling decisions of this court. Reilly v. Cullen, 150 Mo. 326, 328; Leeper v. Taylor, 111 Mo. 321; Northrip v. Burge, 255 Mo. 650, 667; Bray v. Thatcher, 28 Mo. 129, 132.

<p>1. APPEAL: Assignments of Error. In the absence of formal assignments of error, appellant’s “points and authorities” will he construed as such assignments, and the review of the case will he limited as hy them indicated.</p> <p>2. CONDEMNATION: Notice of Boundaries of Benefit District: Ordinance. Where a city charter requires the passage of an ordinance, as preliminary to the condemnation of private property for a public use, the very nature of the. proceeding renders it necessary to the effective operation of the ordinance that the property sought to he affected be described therein, and as a consequence of such description the boundaries of' the taxing district are necessarily defined; and although the charter does not specifically require that the ordinance shall define the limits of the district, the ordinance itself, containing a description of the property affected, is x such a notice of the boundaries of the taxing district as will enable the owner to be heard on the question whether bis property should be included therein? and constitutes due process of law.</p> <p>3. -: —.-: Filing of Petition With Recorder: ' Lis Pendens. The filing with the Recorder of Deeds of a notice of the filing of a petition in the circuit court for the condemnation of land, in obedience to the charter, is of itself sufficient to apprise the owner of the land to be appropriated of every fact set forth in the notice, since the charter requirement was intended to be„an application of the doctrine of lis pendens.</p> <p>4. -: --: Due Process of Law: Meaning. All that is meant, in the abstract, by “due process of law,” is that every citizen shall hold his life, liberty, property and immunities Under the protection of the general law which governs society, and, in the. concrete, that iii a contest in regard to these rights, he will be accorded the opportunity to contest the propriety of each step in the action taken against him. If he. is granted such an opportunity he is accorded such a hearing as the law contemplates.</p> <p>5. -: Unjust Benefits: Assessment of Commissioners. In the absence of any intimation to the contrary, the assessment of benefits by the commissioners must be held to have been impartial and founded- upon facts sufficient to sustain their conclusion, and if subsequently reviewed and affirmed by the trial court will not on appeal be held to be unjust.</p>

<p>Appeal from. St. Louis City Circuit Court. — Hon. William L. Kinsey, Judge.</p> <p>(1) The court erred in admitting in evidence over the objection of this appellant the photographs of the locality in question taken a year after the accident. Riggs v. Railroad, 216 Mo. 326. (2) The court erred in giving", instructions numbered five, six, seven, eight, nine, ten and twelve, and each of them, at the request of the respondent city over the objection of appellant, (a) Instruction five attempts to state an abstract proposition of law as to the duty of the city in keeping its streets reasonably, safe.for travel in the ordinary mode and instructs the jury to find for the city if an ordinary prudent man would have- anticipated danger therefrom, omitting the fact Hunt did not see it, or know it was dangerous. It is an incorrect statement of the law and should not have been given. Mehan v. City of St. Louis, 217 Mo. 35; Welsh v. City of St. Louis, 73 Mo. 74; Schlinski v. St. Joseph, 170 Mo. App. 387; Burton v. Kansas City, 181 Mo. App. 427; Yance v. Kansas City, 123 Mo. App. 644. (b) Instruction number six assumes, that the horse was running away, which was a controverted fact, and should not have been given. Quinn v. Van Raalte, 205 S. W. 68.; McNiell v. City of Cape Girardeau, 190 S. W. 327; Clark v. St. Joseph Railroad Co., 242 Mo. 570; Moon v. Transit Co., 247 Mo. 227; Townsend v. City of Joplin, 139 Mo. App. 399; Harrison v. Kansas City Electric Light Co., 195 Mo. 623; Brennan v. City of St. Louis, 92 Mo. 486; Knights v. Kan-erred in giving instruction number eight. It told the sas City, 138 Mo. App. 153. (e) Instruction number seven, to the effect the city was not liable for failure to enforce its ordinances, should not have been given. Robison v. Kansas City, 181 S. W. 1004. (d) The court jury one should not run into dangerous obstructions readily visible which ought to be seen; that one did not have to have actual knowledge, as it could be imputed to him; and that even if Hunt did not see the macadam, yet if he should have seen and should have avoided it, they must find for the city, omitting the knowledge that it was dangerous amongst its many other patent errors. Coffey v. City of Carthage, 186 Mo. 573; Heberling v. Warrensburg, 204 Mo. 604. (e) The court erred in giving instruction number nine. It told the jury that if the light, where the macadam was placed, was such that the macadam could easily be seen so it could easily be avoided and that ordinary prudence did not require a light, they should find for both defendants. Burton v. Kansas City, 181 Mo. App. 427. (f) The court erred in giving instruction number ten. This is the old and often condemned mishap or mischance accident instruction. Beauvais v. St. Louis, 169 Mo. 506. (g) The court erred in giving instruction number twelve. This instruction told the jury the contractors could obstruct the streets as may be reasonably necessary, and if they so piled material on Twenty-Second Street, leaving. a clear space for passage of vehicles, which was not permitted to remain longer than necessary, then it was not a wrongful nor unlawful obstruction. Amongst other vices, it omitted the question of dangerous piling. The question of wrongful or unlawful piling was not at issue; the question was of dangerous piling and efforts to protect and render less dangerous.</p> <p>(1) It is proper, and usually very desirable for the information and instruction of the court and jury, to introduce in evidence photographs, even though taken a considerable time after the accident, showing the general appearance of the scene where the accident happened, and even though the conditions existing may be a little different from the conditions which existed at the very time of the accident. Davidson v. Frisco Railroad, 164 Mo. App. 701; Lauff v. Kennard & Sons Carpet Co., 186 Mo. App. 123. (2) Instruction five correctly states the law with regard to the duty of the city in the care of its streets. 4 Dillon on Municipal Corporations (5 Ed.), sec. 1711; 6 McQuillin on Municipal Corporations, sec. 2726; Ryan v. Kansas City, 232 Mo. 471; Wheat v. St. Louis, 179 Mo. 572; Wood-son v. Metropolitan Street Ry. Co., 224 Mo. 685. (3) Instruction six does not assume that the horse was running away. (4) Instruction seven is a correct statement of the law, as the city is not liable for the violation of its ordinances nor for failure to enforce said ordinances. Salmon v. Kansas City, 24 Mo. 14; Ryan v. Kansas City, 232 Mo. 483; Mehan v. St. Louis, 217 Mo. 35; Loth v. Columbia Theatre Co., 197 Mo. 358; Sallee v. St. Louis, 152 Mo. 621; Harmon v. St. Louis, 137 Mo. 499; Butz v. Kavanaugh, 137 Mo. 510. (5) Instruction nine was a correct statement of the law in this case, as it submitted to the jury as a question of fact whether there was sufficient light for the pile of macadam to be seen without the additional use of a red light. This was a question for the jury and properly submitted to the jury, because it there was sufficient light for the plaintiff to have easily seen the pile of macadam so as to have easily avoided the same had he used ordinary care, then the city and the other defendants were not liable. (6) This was a proper case for giving the instruction to the effect that if the accident occurred through mischance or accident, there could be no liability against the city. (7) Instruction twelve correctly stated the law, for if the city and its contractors were not permitted to pile material on the street for the purpose of reconstructing the same, then it. would be practically impossible to reconstruct any streets. (8) The court should have sustained the instruction in the nature of a demurrer to plaintiff’s evidence offered at the close of plaintiff’s case, for the reason that the evidence in the case shows that plaintiff failed to comply with Laws 1913, p. 545, requiring that in personal injury suits against the city for injuries occurring on the streets and highways a notice in writing shall be served upon the mayor within ninety days after the accident, stating .the time, place and circumstances of the injury. This the plaintiff failed to do. The statute in this regard is peremptory. Hackenyos v. St. Louis, 203 S. W. 986; Touhey v Decatur, 175 Ind. 98.</p> <p>(1) Instruction la asked by this appellant should have been given. McPheeters v. City, .92 N. T. Supp. 79; Jackson v. Kansas City, 106' Mo. App. 52; Parker v. Cohoes, 10 Hun, 531; Doherty v. Waltham, 4 Gray, 596; Walsh v. Lansing, 70 N. W. 129. Certainly, having placed lights where defendant was piling macadam on the street, he could not presume there was danger of their reproval or extinguishment, nor could he be held for the wrongs of others in removing or extinguishing them, and in view of the positive and uncontradicted evidence of their being in place before plaintiff’s injury, the question was one to be submitted to the jury. Since this was the only instruction referring to this phase of the case, its refusal was plainly error. (2) Defendant. Heman pleaded contributory negligence of plaintiff in driving his horse at a dangerous rate of speed, and in failing to check or control his horse, and stop his horse when the arc light showed that part .of the street where he drove his horse was occupied by the material which overturned his wagon. There was direct, positive evidence of contributory negligence, proper and material under the issues.</p>

— Hon William O. Thomas, Judge. (1) When a mechanic’s lien claimant makes the trustee and beneficiary in the deed of trust as shown hy the records in the recorder’s office, parties to his ¡suit within ninety days after the filing of his lien statement, if it would be prior and superior to the mortgage ■otherwise, is prior and superior to the mortgage even though the record owner of the note has transferred same to someone not disclosed by the records, and there is no…

— Ron. John I. Moore, Judge. (1) There is no proof that the alleged representations were not true. (2) The alleged representations did not amount to fraud. Loan & Investment Co. v. Trust Co., 175 Mo. App. 646; Younger v. Hodge, 211 Mo. 444; Anderson v. McPike, 86 Mo. 293; Cahn v. Reid, 18 Mo. App. 115; Funding & Foundry Co. v. Heskett, 125 Mo.

<p>1 RES ADJUDICATA: Must Be Pleaded. Res adjudicata is an affirmative defense and should be pleaded; and unless the petition upon its face shows that the cause of action is in some way barred, or there is a plea of res adjudicata, the question of former adjudication is not for decision. An answer consisting of a general denial to a petition which upon its face does not show former adjudication is not sufficient to raise the. question.</p> <p>2. MOTION POR NEW TRIAL: General Assignments. The motion for a new trial set out in the opinion is held sufficient in all its general assignments.</p> <p>3. TRUSTEES: One Compensation. But one ‘compensation can be allowed for the management of a trust estqte, whether there be one or more than one trustee. If there be more than one and the work and responsibility have been divided, the compensation must be likewise divided.</p> <p>4. -: Amount of Compensation. In the absence of a statute fixing the compensation of trustees (as is the case in Missouri), the compensation should be a reasonable one, due regard being had for the services rendered to the estate; . for the kind and character of the services are potent factors. The question is not one of percentages, but the worth of the trustee’s services rendered the estate.</p> <p>5. -: -: Pive Per Cent of Gross Income. Where in the management of a very large estate, consisting largely of first-class interest-bearing securities and requiring little attention, the trustees at the end of each of the eighteen years of their stewardship appropriated at the end of each year five per cent of the gross income for the year, and distributed the balance, after paying all expenses, some of which were compensation to bookkeepers and agents who collected rents, to the beneficiaries, and they could have appropriated more if they had considered their services worth more, it will not be held that the executors of one of them, who died four years before the trust terminated, can, at the time of final distribution, go back and recover a larger compensation for the nine years that he served as trustee, the trustees having acted throughout on the theory that the annual payments were a fair and just compensation for their services.</p>

<p>1. DRAINAGE DISTRICT: Uniform Tax. Where the board of supervisors of a drainage district organized under the provisions of the Circuit Court Drainage District Act of 1913, as soon as elected and qualified, in September levied the uniform acreage tax authorized by Section 11 of said act and certified it to the County Collector, the tax was due and payable as soon as assessed, and became delinquent on December 31st of the same year, and there being no defect in the petition in a suit for this tax, a judgment for defendant on his demurrer thereto is wrong.</p> <p>2. -: Installment Tax. Where a board of supervisors of a drainage district organized under the Circuit Court Drainage District Act of 1913, after the decree rendered on September 2, 1914, confirming the report of the commissioners appointed to assess benefits and damages, on September 30, 1914, made the general levy thought to be necessary for the completion of the work, the annual installment tax subsequently levied and certified to the County Collector on November 5, 1914, did not become delinquent on December 31, 1914, nor can it be enforced as a tax for that year, for the board had no power, under the statutes, to impose an installment tax for the year 1914, but could only do so “each year thereafter.”</p> <p>3. -: -: Each Year Thereafter: Definition. The words “each year thereafter” used in Section 19 of the Circuit Court Drainage District Act of 1913, Laws 1913, p. 243, cannot be construed to mean “thereafter each year,” without doing violence to their context and the meaning and intent of the prior statutes out of which said Section 19 was evolved. By construing the words in their plain, ordinary and usual sense, as the statute, Section 8057, Revised Statutes 1909, requires, and by reading. • Section 19 in connection with other sections of the act, it is clear that the board of supervisors of a drainage district, where the decree confirming the report of the commissioners appointed to assess, benefits and damages is rendered in September, has no power to levy an installment tax for the same year.</p>

Louis City Circuit Court. — Eon. Kent K. Koerner, Judge. (1) The operation of a toilet room and a rest room, even though it is in a public park, is a governmental function for the health and comfort of the people of the city, from which the city derives no profit.

— Hon. E. S. Gantt, Judge. (1) The court in the divorce case had jurisdiction over the parties, and the subject-matters, and the judgment there rendered even though erroneous, not being appealed from or set aside, became final and the plaintiff became bound thereby and cannot attack said judgment in this case. Murphy v. De France, 101 Mo. 151; State ex rel. v. Edwards, 192 Mo. App. 413; State v. McCord, 207 Mo. 519.

<p>1. ESTABLISH: Definition. The particular sense in which the word “establish” is used must be determined by the context and the manifest intent and scope of the statute. It has been held to include power to rent.</p> <p>2. -: Consolidated School District: Erection of School Building. The Legislature, in declaring in Section 10869, Revised Statutes 1909, that the hoard of directors of a consolidated school district “may also establish schools of a higher grade,” that is, high schools', did not by using the word .“establish” mean to say that the board must acquire a site and erect a building. The erection of a building is not essential to the establishment of a high school, as that word is used in the statute; the board, may rent a building.</p> <p>3. . CONSOLIDATED SCHOOL DISTRICT: Renting High School Building, The hoard of directors of a consolidated school district is authorized by statute to provide a high school by renting one. If the district is duly organized, but refuses to vote funds to erect a high school building, the board cannot be enjoined from conducting a high school in a rented building.</p>

— Hon. John M. Dawson, -Judge. • (1) The school fund mortgage as to the interest of appellants in the lands sought to he partitioned was barred by the Statute of Limitations long prior to the institution of this suit. Regan v. Williams, 88 Mo. App. 577; Maddox v. Duncan, 143 Mo. 621; Corbyn v. Brokmeyer, 84 Mo. App. 649; Clute v. Clute, 197 N. Y. 439, Frase v. Lee 152 Mo. App. 566; McCollum v. Boughton, 132 Mo. 625.

—Hon. A. D. Burnes, Judge. (1) That the right of appeal did not exist at common law, and is purely a creature of the statute, is fundamental. Therefore, unless the statute expressly gives the right to appeal, no such right exists. Snoddy v. Pettis Co., 45 Mo. 361; State v. Yaughn, 83 Mo. App. 457; Kreyling v. OReilly, 95 Mo. App. 561; Bottling Co. v. Exposition Co., 240 Mo. 634.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) A valid assessment is a jurisdictional prerequisite to the levy or collection of a tax. Abbott v. Linden- • bower, 42 Mo. 168; State ex rel. v. Thompson, 149 Mo. 455; State ex rel. v. Mission Free School, 162 Mo. 336. And there can be no lawful assessment except in the manner prescribed by law. State ex rel. v. Lesser, 237 Mo. 318; Leavell v. Blades, 237 Mo. 710.

<p>For the reasons given in Rahenau v. Harrell, ante, page 247, the decree in this case, cancelling plaintiff’s deed conveying his land on account of fraud on the part of the vendees, is affirmed.</p>

— How. B. G. Thurman, Judge. (1) The court committed error in finding for the defendants Wassons, since the provision of the statute under which they claim is unconstitutional and against public policy and the evident purpose of the statute as a whole.

Louis City Circuit Court. — Hon. Victor H. Falkenhainer, Judge. (1) The court erred in admitting testimony of the codefendant Keller in evidence against appellant. State v. Miller, 100 Mo. 606; State v. Chyo Chiagk, 92 Mo. 395.

Louis City Circuit Court. — Mon. Victor M. Falkenhainer, Judge. (1) The State’s instruction No. 2 is an instruction on murder in the first degree. The defendant was found guilty of murder in the second degree, hence error in the instruction is not material, and same will not he reviewed here. State v. Wilson, 250 Mo. 329; State v. Grote, 109 Mo. 345; State v. Stockwell, 106 Mo. 36. (2) The court did not err in giving the instruction on murder in the second degree.

— How. Thomas B. Allen, Judge. (1) No one saw this accident and plaintiff does not remember a thing about how it happened. The evidence shows beyond a question that the vestibule door of this car was and had been open. The law under such circumstances presumes the plaintiff to have been using ordinary care for his own safety. Wack v. Eailroad, 175 Mo. App. Ill; Buesching v. Gas Light Company, 73 Mo. 319; Dunlap v. Chemical Works, 159 Mo. App. 49; Johnson v. Eailroad, 150 Mo.

Habeas Corpus. (1) That portion of Sec. 3459, E. S. 1909, in issue here is unconstitutional, null and void, in this: (a) It is violative of Article 4, Section 53, Clause 26, of the Constitution of 1875, in this: that it is a special law, and attempts to grant to a private corporation and its members a special and exclusive right and privilege, which is denied to other persons in the same class, (b) It is violative of Article 4, Section 46, of the Constitution in that it…

Dunklin Circuit Court. — Hon. W. S. C. Walker, Judge. (1) The verdict of the jury is general in form and sufficient. (2) The judgment of the court is in accordance with the verdict and substantially in form and language approved. Kelly’s Crim. Law & Practice, sec. 450.

Louis City Circuit Court. —Hon. Victor H. Falkenhainer, Judge. (1) Prejpdicial and reversible error was committed by the court in refusing to give instructions F and ■G, requested by appellant, and telling the jury in effect that if defendant Levitt came into possession of the alleged stolen property after the burglary and larceny then they should acquit him.

<p>1. APPEAL: Criminal Case: No Counsel: Duty of Court. Notwithstanding an appellant convicted of a felony is not represented hy counsel in the Supreme Court, the court will examine the record for error with the identical care enjoined in cases wherein counsel have appeared for defendant.</p> <p>2. EIGHTS OF ACCUSED: Duty of Court: Information: Technical Errors. ■ The court is required to so safeguard the rights oj: one accused of a crime that (1) he may be so fully advised of the charge against him that he may properly and intelligently prepare his defense and so be able to defend himself and (2) that he may run no risk of a second prosecution and conviction, for the identical offense of which he is charged.</p> <p>3. INFORMATION: Larceny: Ownership: Corporation: State University. Where the information charges the defendant with the larceny of certain hogs, the property of “The University of Missouri, a corporation,” a conviction will stand, although there is no proof that “The University of Missouri” is a corporation, and the name of the public corporation created by statute is “The Board of Curators of the University of Missouri.”</p> <p>4. CORPORATION: Public: Judicial Notice. The courts take judicial notice of all public corporations created by statute, and consequently that the corporation by which the University of Missouri is controlled is styled “The Curators of the University of Missouri.”</p> <p>5. -: -: -: No Proof. A failure to prove that.the corporation named in the information charging that defendant stole hogs belonging to “The University of Missouri, a corporation” is a corporation, does not mislead defendant or subject him to a subsequent prosecution or invalidate his conviction, for the courts take judicial notice that there is a public corporation created by statute and styled “The Curators of the University of Missouri.”</p> <p>6. -: Allegata and Probata: Variance. Where the charge is that defendant stole property of ‘-‘The University of Missouri, a corporation,” and the proof is (aided by judicial notice) that the stolen property was owned by a public corporation styled “The Curators of the University of Missouri,” there is no such variance between the allegation and proof as will work a reversal of a judgment of conviction, since the institution is popularly known and is legislatively recognized as “The University of Missouri.”</p> <p>7. VARIANCE: In Name. A variance in names between the charge and proof is not material, unless it appears to the court that the jury was misled by it or some substantial injury is done to the ,accused.</p> <p>8. -: Should be Raised at Trial. A question of variance between the charge and proof should be raised upon the trial and unless the trial court is afforded an opportunity to pass upon it, the" appellate court will not consider it.</p> <p>9. -: Information: Ownership: Name of Corporation. It is sufficient in charging larceny from a corporation to allege the name by which the corporation is generally known, if it otherwise sufficiently appears beyond question what corporation is intended, although the name alleged is not its correct corporate name.</p> <p>10. -: --: -: -: Proof. And if it sufficiently appears just what corporation is intended by the charge, and no possibility exists of harmfully affecting the rights of an accused to a fair trial and to be so far informed of the charge against him as to enable him intelligently to prepare his defense and defend himself, proof of ownership of the stolen property in a corporation commonly known by the name used in the information will sustain a conviction.</p>

<p>1. INSTRUCTION: Purpose. An essential function of an instruction is to erect for the jury’s guidance, in the event given and definite facts are by them found to exist, a definite and unambiguous guideboard along the pathway of their legal duty.</p> <p>2. -: Self-Defense: Voluntarily Entering Difficulty. An instruction which tells the jury that “self-defense is not available where defendant voluntarily and of his own free will enters into the difficulty with the intent to kill or 'do some great bodily harm” is not a definite guide to the jury, is ambiguous in its meaning and is erroneous.</p> <p>3. -: -: Protecting One’s Own Life. An instruction telling the jury that when a defendant voluntarily and of his own free will enters a difficulty to defend his life or his body from great injury, he immediately loses the right of self-defense, if at the time he enters upon his defense his intention is to kill or do great bodily injury to his assailant, is erroneous, because the right of self-defense in many instances permits the intentional</p> <p>killing of the assailant.</p> <p>4. -: -: Unnecessary Force. An instruction on self-defense ■which, tells the jury that “no one is justified in using more force than is necessary to get rid of an assailant” is erroneous and a misleading statement of the law. A person is not required to nicely gauge the amount of force necessary to repel an attack, but may act upon appearances.</p> <p>5. EVIDENCE: Finding of Rock at Scene of Fight. Where defendant is charged with assaulting another by throwing a rock at him and heating him on the head with other rocks, testimony of a witness who was not present at the fight that he picked up at the scene a short time thereafter a rock which at the time had blood and hair on it, or the introduction of the rock itself in evidence, is not error, hut a proper development of the facts and circumstances.</p> <p>6. FAILURE TO INSTRUCT: Preserved for Review. An assignment that the court erred in not giving an instruction on common assault, if the alleged error is in no manner preserved in the motion for a new trial, will not he considered on appeal. \</p>

— Hon. O. A. Lucas, Judge. (1) This ease is based upon Sections 1916, 1917, 1918, 1919 and 1921, Revised Statutes 1909. These sections state fully the steps necessary to revive a case after the death of a party. There seems to be no controversy but what the death of defendant was suggested in due time and notice given to take up the motion for disposition and the final order of the court made on April 12,1915.

<p>1. APPELLATE JURISDICTION: Amount in Dispute. The Supreme Court does not have jurisdiction of an appeal from a .judgment rendered on demurrer to plaintiff’s petition in a suit in equity whereby he sought to have satisfied, out of the property of defendant corporation, a judgment for . $1646.01 rendered in his favor against defendant’s corporate predecessor, and to have a receiver appointed for both corporations, since the real amount in dispute is said judgment debt, plus interest, and tbe monetary value, under the receivership, of the corporation’s' property, until such time as the debt can be satisfied, and nothing appears from which it can be inferred that such possession involves an amount in excess of $7500.</p> <p>2. —: : -: Prayer of Petition; Irrelevant Allegations; Prayer for Receivership. Jurisdiction is not to be determined from the prayer of the petition, nor from allegations which are not material to the main cause of action. If the purpose of the suit is to have satisfied, out of property held by defendant corporation, a judgment for $1646.01 rendered against defendant’s corporate predecessor, the fact that the petition also demands that a receiver be appointed for both corporations does not determine appellate jurisdiction, for in no event can plaintiff recover more than the judgment debt and costs, and the only loss defendant can possibly sustain is an amount sufficient to pay the debt and costs, plus the financial value of the temporary loss of the control of its corporate assets pending a possible receivership in aid of the main suit, and no definite estimate of the value of that loss can be inferred where judgment is rendered for it on its demurrer to the petition.</p>

<p>1. APPEAL: Prom Order Overruling Motion To Set Aside Eeceiver’s Sale. Prom an order of the circuit court overruling a motion of a stockholder of a corporation to set aside a sale by the company’s receiver of its properties to pay debts, previously approved by the court, no appeal is provided by statute. The right to review being purely statutory, no such appeal will be entertained. Where other issues are presented, among them, whether the individual defendants have paid for their shares of stock and the duty imposed by law upon the receiver to conserve and collect the company assets and pay its debts, the sale is but a preliminary step in the proceeding, and the court’s ruling upon the motion to set it aside is not a final judgment, but only an interlocutory order, from which there is no appeal.</p> <p>2. -: -: Substantial Evidence to Support Sale. A motion to set aside a sale by a receiver of an insolvent company’s plant, on the ground that the property was worth more than was received for it, that the notice of sale was insufficient, that others were not given the same opportunity to bid as the purchaser and that the receiver’s report did not disclose the terms upon which the property had been sold, lies on the law side of the court, and in the presence of substantial evidence to support the action of the court in overruling the same, a review is not permissible.</p>

— Hon. Frank D. Divelbiss, Judge. (1) The record of adjudication of insanity was conclusive as to the condition of Mrs. Stack (Messer) on June 24, 1895, and since that date. Crow v. Meyersieck, 88 Mo. 411. (2) If E. M. Endsley knew the plaintiff was not competent to transact business or knew enough about her condition to put him on inquiry then his mortgage was void, and defendants have no title. 23 Am. & Eng. Ency. Law (2 Ed.), 484.

— Ron. E. M. Rearing, Judge. (1) Instruction numbered one refers the jury to the indictment to determine what they must find in order to convict, and is therefore erroneous. State v. Constitino, 181 S. W. 1155; State v. Baker, 246 Mo. 374; State v. Marion, 235 Mo. 375; State v. McCaskey, 104 Mo. 644; State v. Brown, 104 Mo. 365.

Louis City Circuit Court. — Hon. John W. Calhoun, Judge. (1) Instruction 3 is erroneous because there is no evidence whatever of intent in this case, and the intent is not to be presumed, but must be proved like any other issue in the case. (2) The verdict of the jury in this case is insufficient to support the conviction because it is a special verdict and fails to find all of the elements of the alleged crime, and is not responsive to the information.

<p>1. EVIDENCE: Hearsay Statements of Deceased’s Wife. Statements of deceased’s wife, made several minutes after lie was shot and after the neighbors had come in, that a man who would act like her husband had should not be put on her bed, but that if he would explain to the crowd why he had done as he had, and was justified, she would let him be put on her bed, but she would not if he didn’t, were hearsay, were not res gestae, tended to show her partiality for the defendant and tended to prejudice the jury against him, and their admission was reversible error. ■</p> <p>2. -: Res Gestae. In order that a statement or an act may be admissible as res gestae, it must be undesigned, instinctive, spontaneous, and arise out of an incident it seeks to describe. Statements by deceased’s wife, made several minutes after her husband was shot and after the neighbors had come to the scene, are not res gestae.</p> <p>3. INSTRUCTION: Presumption: In Presence of Evidence. An instruction telling the jury that, if defendant intentionally killed deceased by shooting him with a pistol, the law presumes such killing was murder in the second degree, is not permissible in the presence of evidence. Presumptions are invoked only when evidence is lacking.</p> <p>4. -: Self-Defense: Voluntarily Entering Difficulty. An instruction which tells the jury that if defendant voluntarily engaged in the difficulty, the right of self-defense is not available to him, no matter atiwhat point or under what circumstances his voluntary action commenced, entirely takes away the right of self-defenses, and is erroneous.</p> <p>5. ' EVIDENCE: Uncommunicated Threat. A threat made by deceased against, but not communicated to defendant is admissible in evidence, as throwing light upon the conduct of deceased at the time they began shooting at each other and as showing whether deceased was the aggressor.</p> <p>6. INSTRUCTION: Manslaughter: No Provocation. Where there is no circumstance showing a provocation which would reduce the homicide to manslaughter in the fourth degree short of the' evidence which would justify it altogether, no instruction for manslaughter in the fourth degree, should be given; and the driving, of defendant out of deceased’s house, with opprobious words and threats, there being no evidence that he was aroused to a frenzy of passion "which for the moment obscured his reason, does not constitute provocation.</p> <p>7. - :-: Self-Defense: Apprehension: Accidental Discharge of Pistol. If deceased drove defendant out of his house, with a drawn weapon and curses, and with such threatening demeanor as to cause a reasonable belief that he was going to shoot, and defendant, in his excitement, in picking up his automatic pistol from his automobile, accidentally discharged it, and thereafter deceased fired, either in pursuance of original intention or because of the discharge of defendant’s pistol, and defendant thereafter fired for the purpose of protecting himself, he was acting in self-defense, and was entitled to an acquittal, and there was no room in the case for an instruction for manslaughter in the fourth degree.</p> <p>8. -: -: Perfect Self-Defense: Apprehension. If defendant fired his first shot intentionally with a reasonably induced belief that his life was in danger from deceased’s weapon, he was not thereby deprived of perfect self-defense.</p> <p>9. -: -: Murder or Innocent. If the evidence shows that defendant was either guilty of murder or was not guilty at all, no instruction for manslaughter in the fourth degree is warranted.</p>

— Hon: Thomas B. Buckner, Judge. (1) It was error, under all the circumstances in this case as disclosed by the record, to deny appellants a jury trial. McGeagh v. Nordberg, 53 Minn. 235; Burnham v. Ry. Co., 88 Fed. 627; Chicago Ry. Co., v. McGrew, 113 Mo. 393.

— Hon. N. M. Pettingill, Judge. (1) In this character of a case where the prejudice of the average man will make it hard for him to give the defendant the benefit of the doubt it is important that defendant be allowed as strong instructions on this point as is contemplated by the law. It is evident, in this case, that the jury did not give the defendant the benefit of ‘the doubt. (2) The testimony of the prosecutrix is uncorroborated.

— Hon Charles L. Henson, Judge. (1) The court erred in refusing to exclude the testimony of Cora Knott as to the alleged dying declaration of deceased. Dying declarations are limited to the circumstance of the killing and by whom; they cannot include what went before or a separate and disconnected fact (with the act of killing) nor can they include ani expression of opinion or belief, but are confined to statement of fact.

<p>1. INSTRUCTION: Refusal of Defendant’s. If the court has already given a correct instruction fully covering the point of prosecutrix’s age, it is not error to refuse one to the same effect asked hy defendant.</p> <p>2. INSTRUCTION: Rape of G-irl Under Age of Consent: Timely Complaint. In the prosecution of a defendant charged with statutory rape upon a girl under fifteen years of age, it is not error to refuse to instruct that the jury may take into consideration, in detérmining the guilt or innocence of defendant, that she did not complain of the alleged complaint to others as soon as opportunity afforded, although she has testified that she was forcibly ravished; for the fact of timely complaint is allowed to he shown ,only in case of rape by force of a female capable of giving her consent.</p> <p>3. EXAMINATION OF DEFENDANT: Inquiry as to Moral Opinions. To ask a defendant, charged with statutory rape upon a girl under fifteen years of age, whether -he "‘thought it was right and proper to run these young girls into this saloon through a side door,” and compel him to answer, not only calls for an opinion or conclusion, hut is an improper inquiry into his opinions upon questions of human behavior and sobriety, and compels him by his answer to assume the risk of having his personal views upon these matters run counter to those held hy the jury, and is therefore prejudicial.</p> <p>4. EVIDENCE: Prosecutrix’s Age: Family Bible Entry. The admission in evidence of a loose piece of paper, on which, among other data, had been written the date of prosecutrix’s birth, by her grandmother, who is still alive, at the dictation of prosecutrix’s mother,,who testified as to the date of her birth, and which had been pinned to a leaf in the family Bible, was reversible error. Entries in a family Bible are, when considered as potential evidence, nothing but hearsay, and as such are on a parity, touching their admissibility in evidence, with mere verbal declarations of the entrant or declarant, and in order that such declarations may he admitted in evidence it must be shown: (1) either that the entrant is dead, or that his testimony is otherwise unobtainable upon the trial; (2) that the entrant was or is a relative ,of the family to which the individual whose age or date of birth is under inquiry belongs; and (3) that the entries were written ante litem motam.</p> <p>5. VERDICT: Excessive Punishment. As the judgment must be reversed and the cause remanded for a new trial because of error in the admission of evidence, the question of whether a verdict finding defendant guilty of statutory rape upon a girl under fifteen years of age and assessing his punishment at ninety-nine years’ imprisonment is excessive, is reserved.</p>

Louis City Circuit Court. — Mon. Thomas L. Anderson, Judge. (1) In a will contest after the proponents have proven the due execution of the will, and that the testator was of age, and sane at the time, it is thereupon the duty of the court to direct a verdict sustaining the validity of the will in contest, unless the contestant shall adduce substantial evidence tending to prove the mental incapacity of the testator or undue influence exerted over his mind at the time of the…

— Hon. Sterling H. McCarty, Judge. (1) There was no sufficient evidence in the case tó warrant or authorize a verdict of guilty, or to sustain a conviction, and the court erred in refusing to instruct the jury to find the defendant not guilty. (2) It is not a crime to borrow a shot-gun and merely fail to return it. If defendant still had the gun, nothing further appearing, he was guilty of no offense against the law of the State.

Louis City Circuit Court. — Hon. Glendy B. Arnold, Judge. (1) The holder of a negotiable not indorsed in blank by the payee is prima-facie the owner of it and he is presumed to hold it in good faith for value before maturity and without notice, and a purchaser from a party so in possession would obtain a good title. Miller v. Peoples Saving Bank, 193 Mo. App. 498; Allen v. Harris, 79 Mo. App. 490.

<p>1. GENERAL THREAT: Malice Prepense: Remoteness. A statement by defendant three or four hours before a homicide that he was “going to get a dirty s- of a b- tonight,” accompanied by an exhibition of cartridges of the calibre of the revolver subsequently used, although not directed towards any particular person, is admissible as tending to show malice prepense; and though its remoteness may affect its probative force, it does not affect its admissibility.</p> <p>2. INSTRUCTION: Police Officer: Self-Defense: Ordering Defendant Off Street. That defendant had been guilty of no conduct authorizing his arrest or being ordered off the street is no defense to the killing of a policeman; and where, by his testimony, defendant shot deceased in self-defense while the latter was making a deadly assault upon him and there was no attempted arrest, no instruction defining the authority of deceased as a police officer or telling the jury that defendant had been guilty of no conduct authorizing his arrest is required. -</p> <p>3. -: Self-Defense: Good Reason for Believing. To require a jury to find that defendant “believed and had good reason to believe,” instead of employing the statutory words (Sec. 4451, R. S. 1909) of “reasonable cause to believe and did believe,” that great personal injury at the hands of deceased existed, where the instruction read as a. whole demonstrates that it was not the real but the apparent danger that would justify action, is not error. Under the facts the meaning of the words “reasonable cause” and “good reason" was the same.</p> <p>4. -: Credibility of Witnesses. Where defendant’s testimony is directly in conflict with that of the State’s witnesses, an instruction as to the credibility of witnesses is authorized.</p>

— Hon. .C. .H. Shinker, Special Judge. (1) The indictment in this case is bad.

Certiorari. The Court of Appeals erred in holding that the errors assigned in the brief filed by appellant (relator here), assigning error on the giving of a certain instruction for respondent and the refusal to give certain instructions requested by appellant, could not be considered by the court for the reason that the motion for a new trial filed by appellant is not sufficiently specific; and said ruling is in conflict with the following controlling decisions of the…

Certiorari. (1) Whatever the word “owner” may mean (Gitchell v. .Kreidler, 84'Mo. 472, 476; Stewart v. Ramsey, 196 Mo. 404, 414-415) in the' statutes and city charters requiring proceedings to enforce general real estate taxes and special taxes, respectively, to b,e brought against “the owner” of the property charged with the lien, these legislative provisions are complied with, and the proceeding is valid and effectual to collect the tax bills out of defendant’s ownership,…

<p>1. CHANGE OF VENUE: Change of Judge: Misnomer. It is a misnomer to speak of'a proceeding to change the trial judge in a case as a change of venue, which means a change in the place of trial.</p> <p>2. PREJUDICE OF JUDGE: Removal from Trial: Prohibition. Prohibition is the proper remedy for the removal from the trial of a criminal case of a regular judge who is disqualified and nevertheless persists in sitting in its trial. [Sec. 5201, R. S. 1909.]</p> <p>3. -: Existence How Established. The ultimate fact of the existence of prejudice against the State on the part of the regular judge is what disqualifies him from trying a criminal case, and it is wholly immaterial whether his prejudice is warranted or unwarranted, or how it originates. If bias exists to an extent precluding a fair, unprejudiced and unbiased weighing of the law and facts on the State’s side, then prejudice is present to a degree forbidden to a judge by both the common law and the statute (Sec. 5198, R. S. 1909).</p> <p>4. -: Erroneous Ruling. Prejudice cannot be predicated of a mere erroneous ruling against the State on questions of law; but , such ruling may be a circumstance which, added to other things, tends to show prejudice in favor of the defendant.</p> <p>5. -: Disqualified By Statute: Available To State. Section 5198, Revised Statutes 1909, by declaring that “when any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try the cause” when he “is in any wise interested or prejudiced,” is available to the St-ate, and if the judge is prejudiced against the State, or what is tantamount thereto, is biased and prejudiced in favor of the defendant, he loses jurisdiction to try the case; and absent his own voluntary disqualification, his prejudice may be raised and proved by the prosecuting officer for the State.</p> <p>6. -: ;-: Change of Venue: Special Judge. Said Section 5198 is not a cbange-of-venue statute, but deals wholly with the incompetency of the judge, and any of the disabilities set forth in the first three subdivisions thereof are available to the State, and being admitted or established by proof the judge becomes disqualified to try the case, and a special judge must be obtained in the manner prescribed by Section 5201, Revised Statutes 1909.</p>

— Eon. D. E. Blair, Judge. (1) The judgment rendered in the case of Graves, Trustee, against J. W. Smith, is void, and likewise the execution issued thereunder, the sheriff’s sale thereunder, and the sheriff’s deed under which plaintiff claims and asserts title, for the reason that the court had no jurisdiction over the person of the defendant in that suit, (a) The order of publication issued in said cause runs in the name of J. W. Smith — the record title to the lands in…

Mandamus. (1) The tax levied to pay the interest and discharge the principal of the bonds in question was levied by the Special Road District and operate alike upon all persons and property within the territory of the power which levied the tax and is, therefore, not lacking in uniformity. State ex rel. Moberly Special Road District v. Burton, 266 Mo. 711.

Prohibition. (1) Election contest proceedings are everywhere regarded and treated as special statutory proceedings, and are not civil suits, and the statute in reference to contests must be strictly construed. There is no implication in its favor and resort cannot be had to the Code of Civil Procedure. State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 643; Castello v. Court, 28 Mo. 277; Bowen v. Hixon, 45 Mo. 349.

<p>1. ACTION: Right to Recover: Dismissal. Where plaintiffs’ petition states a cause of action and its allegations are sustained by the evidence they are entitled to recover, and’ it is error to dismiss their bill, unless some one of the affirmative defenses pleaded is sustained by a preponderance of the evidence and is sufficient in law to prevent a recovery.</p> <p>2. -: -: Scope of Pleadings. It is elementary that courts of equity are powerless to administer redress beyond the legitimate scope of the pleadings.</p> <p>3. CORPORATION: Suit by Plaintiffs on Assigned Judgment: Contribution: Scope of Pleadings. After plaintiffs had obtained judgment for debt against a corporation, and to enforce it they had brought suit against its stockholders to whom had been issued full paid-up stock for which they had not paid, a number of stockholders entered into an agreement to put a sum of money in- the hands of a trust company as trustee, to be held for the purpose of defending the suit and discharging any judgments that might be rendered, and a committee of the body thus formed purchased plaintiffs’ judgment and took an assignment of it in blank after the present suit, stating nulla Iona returns on two executions against the company and asking for judgment against two stockholders, was brought, the purpose of the agreement being to enforce contribution from other stockholders who had refused to join in the arrangement. No substitution of parties was made after the assignment of the judgment, and the cause proceeded in the name of the original plaintiffs. Held, that the assignment, under the circumstances, did not preclude the original plaintiffs from prosecuting the suit to enforce the judgment; and, whatever may be the equities between plaintiffs ‘and defendants who have acquired a beneficial ownership of the judgment, to compel an accounting and contribution among themselves, as no such matters were presented by the pleadings, they must necessarily be excluded by the court in its decree.</p> <p>4.. -: Unpaid Stock: Creditor’s Knowledge. No creditor of a corporation who knows when he becomes such that its shares of stock have been issued to its subscribers without payment of money or money’s worth can enforce his claim, upon default of payment by the corporation, against such, stockholders to the extent of their indebtedness for such stock; but where the testimoney -as to the creditor’s knowledge is conflicting and does not ' .preponderate against him, the rule is no defense to his claim.</p> <p>5. -: -: Imputed Knowledge: Purchase of Stock After Credit Given. The purchase of the corporation’s bonds carrying a bonus of common stock, made after the company had made the contract out of which the purchaser’s claim arises, does not impute to such purchaser knowledge that the stock previously issued to subscribers had not been paid for in money or money’s worth, nor does it tend to negative his reliance upon the presumption that the corporation had bee'n legally organized and its stock paid for at the time of his prior contract with it.</p>

<p> Cerliorari. </p> <p>(1) The trial court erred in refusing to give relators’ demurrer to the evidence and the Court of Appeals erred in sustaining the ruling of the trial court refusing to give said demurrer, in so doing refusing to follow the last previous rulings of the Supreme Court, (a) The motorman was not guilty of negligence under the humanitarian doctrine in failing to stop his car after discovering Griggs lying on the track within fifteen feet of the car, nnd at a time when the car was going about eight miles an hour; the motorman having but a little over one second in which to avoid running over Griggs - after discovering him. The humanitarian doctrine does not authorize a court to approve a verdict predicated on a mere guess as to' what can be done in such instant time. Riggs v. Metropolitan St. Ry. Co., 216 Mo. >304; Trigg v. Water, Light & P. Co., 215 Mo. 521; McGee v. Wabash Railway Co., 214 Mo. 53u; Degonia v. Ry. Co., 224 Mo. 564; Burge v. Wabash Railway Co., 244 Mo. 76; Rollison v. Wabash Railway Co., 252 Mo. 535. (b) There was no evidence that Griggs was on the track prior to the time that the motorman discovered him there. The whereabouts of Griggs from the time, he went around the hack of the car from which he alighted until he was seen by the motorman of the next car lying on the track within fifteen feet of the car are not known. The presumption is that he was in the exercise of due care and not on the track. Riggs v. Metropolitan Street Ry. Co., 216 Mo. 304; Degonia v. Railway. Co., 224 Mo. 564; Eckhard v. St. Louis Transit Co., 190 Mo. 593; Powers v. St. Louis Transit Co., 202 Mo. 267. (2) The trial court erred in giving to the jury, over the objection and exception of relators herein, instruction 3, for plaintiff,- and the Court of Appeals erred in sustaining the trial court in its ruling giving said instruction, in so doing refusing to follow the last previous- rulings of the Supreme Court, (a) Said instruction is erroneous under Secs. 5426 and 5427, R. S. 1909, in that it authorized a fixed penalty of $2000 and punitive damages over the sum of $2000 when aggravating circumstances and punitive damages, are not pleaded or proved. State ex rel. Central Coal Co. v. Ellison, 195 S. W. 722. (b) Said instruction is erroneous under Sec. 5425, R. S. 1909, as amended in 1911, Laws 1911, p. 203, in that it authorizes punitive damages as well as compensatory damages over and above the fixed penalty of $2000, and does not limit the recovery over the sum of $2000 to purely compensatory damages. State ex rel. Central Coal Co. v. Ellison, 195 S. W. 722; Boyd v. Missouri Pacific Ry. Co., 249 Mo. 110; Barton v. Chicago & Alton Ry. Co., 176 Mo. App. 14; Johnson v. Ry. Co., 174 Mo. App. 16; Johnson v. Ry. Co., 270 Mo. 418; R. S. 1909, secs. 5425, 5426, 5427.</p> <p>(1) The trial court did not -err in overruling the demurrer to the evidence. Scullen v. Railway, 184 Mo. 704; Werner v. Citizens Ry. Co., 81 Mo. 373; Isabel v. Railroad, 60 Mo. 482; Trigg v. Water, L. & P. Co., 215 Mo. 538; Deschner v. Railway Co., 200 Mo. 329; Mtirphy v. Railway Co., 228 Mo. 82; Lyons v. Railway Co., 253 Mo. 157. (2) The court did not err in giving plaintiff’s Instruction Number 3 on the measure of damages. Boyd v.-Railway Co., 249 Mo. 120; Tanner v. Railway Co., 186 Mo. App. 271; Loomis v. Street Railway Co., 188 Mo. App. 205; Kiser v. Railway Co., 188 Mo. App. 179.</p>

— Ron. Thomas B. Allen, Judge. (1) One-vital issue involved in this case was adjudicated long before this suit was brought, and the subject-matter of the suit then became res adjudicata. State ex rel. Buchanan County v. Patton, 271 Mo. 554; State ex rel. v. Mining Co., 262 Mo.. 502; Exposition Driving' Park v. Kansas City, 174 Mo. 438; Turnverein v. Hagerman, 232 Mo. 704; Edmonson v. Carter, 180 Mo. 515; LaRue v. Kempf, 186 Mo.

Louis City Circuit Court. — Hon. Benj. J. Klene; Judge. (1) The writ of mandamus will not only require a ministerial officer to proceed to do his duty, hut it also will indicate what his specific duty is. In this case the specific duty of the Board of Election Commissioners was to refuse to count the votes for the Ninth Precinct of the Nineteenth Ward. State ex rel. Metcalf v. Garesche, 65 Mo. 489; State ex rel. Booth v. Moss, 172 S. W. 1181.

<p>1. APPEAL: Insurance Bates: Act of 1915. The Act of 1915, Laws 1915, p. 313, provides by Section 15 thereof that certain “orders and directions” of the Superintendent of Insurance “shall be reviewable by a proper action in the courts,” and does not purport to interfere with the existing fight of appeal, and is broad enough to permit to the Superintendent an appeal from the judgment of the circuit court increasing by ten per cent'all existing fire-insurance rates, contrary to his order refusing to make such increases.</p> <p>2. INSURANCE RATES: Admission of Validity of Legislation. The institution by insurance companies of a suit to compel the Superintendent of Insurance to permit an increase in all existing fire-insurance rates necessarily involves an assumption on their part of the validity of the legislation regulating said rates.</p> <p>3. -: Increase: Legislative in Character. The power to regulate fire-insurance rates, called into existence by the presence of a public interest, falls within the police power of the State, and is purely legislative in character.</p> <p>4. -: -: Attitude of Courts. Legislation looks to the future, and changes existing conditions by making a new rule to be applied thereafter; a judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposedly already in existence.</p> <p>5. -:-: Power of Court. Under the Constitution the courts have no power to compel the Superintendent to establish a schedule of fire-insurance rates applicable to future policies. The Legislature has power to fix rates, and the extent of judicial interference js protection against unreasonable rates already fixed by it or by some administrative agency to which the power is delegated.</p> <p>6. -: Constitutionality of Statute: Admitted. Where the sole purpose of the action is to compel the Superintendent of Insurance to approve proposed increases in fire insurance rates, the point that the statute declaring that existing rates shall not be raised until his approval is obtained, in so far as it attempts to restrict the right of insurance companies to increase their rates, is unconstitutional, is not in the case. The proceeding necessarily assumes the validity of' the requirement that the proposed increases must have his approval.</p>

<p>1. CERTIORARI: Appellate Jurisdiction. On certiorari directing a court of appeals to send up its record in a certain cause for review, it is the duty of the Supreme Court, before considering the case on its merits, to ascertain and determine the question of appellate jurisdiction.</p> <p>2. -: -: Amount in Dispute: Cross-Appeals. Where plaintiff alone appeals, the amount claimed in his petition is ordinarily the measure of the appellate court’s pecuniary jurisdiction; and where defendant alone appeals, the measure of such jurisdiction is ordinarily the amount recovered below; and where both parties appeal, and the amount in dispute on either side exceeds $7500, both' appeals should be determined by the Supreme Court. So that where the amount for which plaintiff sued, together with interest from date of demand to date of judgment, was $7293-33, and the judgment was, upon a general denial, for $917.40, and both sides appealed, the Court of Appeals had jurisdiction. .</p> <p>3. -: Conflict in Decisions: Facts of Case. In a certiorari directed to a Court of Appeals on the ground that it has failed to follow the last previous decision of the Supreme Court, what the evidence was in the case decided by the Court of Appeals is to he ascertained from the court’s opinion and not from an examination of the record and abstract.</p> <p>4. LIMITATIONS: Money Had and Received by Bank: Date of Last Item: Demand. A deposit in a bank is not due until a demand of payment is made; hence, the five-year Statute of Limitations does not begin to run in favor of a bank against a depositor before payment is demanded and refused. So in a suit by a depositor against a bank for money deposited in his name, the statute did not begin to run against him on the date of the last item of the account, but only on the date of his demand of payment, and if no such demand was made, then on the date of commencing suit; and a decision of the Court of Appeals so ruling is in accord with Mo. Pac. Ry. Co. v. Continental Natl. Bank, 212 -Mo. 505, and there is no contrary ruling by the Supreme Court, either in express terms or by reasonable implication. ></p> <p>5. -: -: -: -: Interest. And the depositor, if otherwise entitled to recover, is entitled to recover interest on the whole amount due on the date of the last item of the account, from the date of demhnd of payment, or if there is no such demand, then from the' date of commencing his action.</p> <p>6. CERTIORARI: Conflict in Opinions: Wrong Rulings on Merits. If a Court of Appeals had jurisdiction of a cause, and its opinion does not conflict with any decisions of the Supreme Court, the latter court cannot interfere by certiorari; and decisions which might be relevant in a review of the. record in the original case by appeal or writ of error, but have no application to a conflict of decisions, will not be considered. ’ ’ •</p>