Volume 119 — Missouri Reports

— Hon. H. 0. O’Bbyan, Judge. (1) The effect of the deed offered in evidence by the plaintiffs was to convey to plaintiff, Mary Harding, all the land lying between the point of beginning and the east line of the lot then owned by defendant, E. W. Wright, whether the same be eight feet or sixteen .feet, and in this respect it mattered not whether her deed was recorded or not.

— Hon. James H. Lay, Judge. The plaintiff instituted this proceeding to obtain specific performance of an alleged contract, made with the defendant corporation, for the purchase of a certain tract of land in Bates county, known as the “Robert M. Hcmdley Land,” and particularly described in the petition. The pleadings are very voluminous.

<p>Appeal from Callaioay Circuit Court. — Hon. John A. Hockaday, Judge.</p> <p>(1) The appeal taken from, the action of the county eonrt to circuit court should have been dismissed. The county court passed on the questions involved, and could not appeal from its own act, ruling and judgment. It had power to transact all county business. Const. 1875,sec. 36, art 6; Revised Statutes, 1889, see. 3185. (2) If the approval of the return of the clerk in reference to bis fees be simply a ministerial or an administrative act of the county court, then no appeal, can be taken from sucb act. Setlveron v. County Court, 9 Mo. 117; Saline County v. Thompson, 45 Mo. 384; County of St. Louis v. Spark, 11 Mo. 201; Railroad v. St. Louis, 92 Mo. 160; Sheridan v. Fleming, 93 Mo. 321; Lacy v. Williams, 27 Mo. 280; Cole County v. Dallmeyer, 101 Mo. 57; Sears v. Stone Co., 105 Mo. 236. (3) The orders of county court made in the settlement with the clerk, and by which the amount of fees to be retained by the clerk, and the amount to be paid by him into the county treasury, are determined, partake of the nature of judgments; they cannot be treated as of no consequence. State to tise v. Hickman, 84 Mo. 74; State ex rel. v. O’Gorman, 75 Mo. 370; Cole Co. v. Dallmeyer, 101 Mo. 64. (4) If appeal in the case was allowable, it was prematurely taken. Revised Statutes, 1889, secs. 3177. 3180. The method of procedure in this matter is a summary one. The well-settled rule in such cases is, that the statutes which give a remedy must be strictly pursued even in courts of general jurisdiction, — compliance with every essential prerequisite of the statute conferring the authority must affirmatively appear on the face of the proceedings had, or else they will be possessed of no validity whatever. Inferior courts, not proceeding in course of the common law, are confined strictly to the authority given, — as to amount, time, manner and subject-matter. Railroad v. Campbell, Nelson d? Co., 62 Mo. 585; Cunningham v. Railroad, 61 Mo. 33; Hamberger v. Railroad, 43 Mo. 196; Bersch v. Schneider, 27 Mo. 101; Book v. Earl, 87 Mo. 246. (5) County courts have only such powers as are granted, defined and limited by law. St. Louis v. Alexander, 23 Mo. 483; Walcott v. Lawrence Co., 26 Mo. 272; Steines v. Franklin Co., 48 Mo. 167; Valle v. Fleming, 19 Mo. 454; Bauer v. Franklin Co., 51 Mo. 205; Saline Co. v. Wilson, 61 Mo. 237. (6) The allowance of the $400 to the clerk by the county court, under article 4, chapter 45, of the statutes, 1889, page 807, as compensation for services under said article, was a judicial discretionary act of the county court. The amount of compensation is not fixed by law — is not ‘ ‘fees’7 — and, unless the facts show that this discretion was erroneously or corruptly exercised, the circuit court, nor this court, will review, alter or change same. In re Wilson, 95 Mo. 184; Carr v. Moss, 87 Mo. 447; Nolan v. Breivster, 17 Mo. App. 497; Bailroad v. St. Louis, 92 Mo. 165; Revised Statutes 1889, secs. 1210, 1102.</p> <p>(1) The quarterly returns made by the clerk were not judgments, but were simply statements made by the clerk designed under the law to indicate to the court the amount of fees in his hands for those quarters. Revised Statutes, 1889, secs. 5009, 5010. A judgment is the conclusion of law upon facts found or admitted. Bouvier’s Law Dictionary, Judgment. A final judgment is one which puts an end to a suit. Bouvier. (2) The ordinary settlements of the county court with county officers are not judicial. State v. Roberts, 60 Mo. 402; State v. Roberts, 62 Mo. 338; Cole Go. v. Ballmeyer, 101 Mo. 57; State v. McGonigle, 101 Mo. 353. (3) Even though the settlement 'of the county court with an official is entered upon the records of the court, it is not a judgment at law, but the statement of his account as adjusted between him and the county, and any mistake in that settlement properly proved is open to correction and in the same manner as though it' •were made with fin individual. Marion Co. v. Philips, 45 Mo. 80; Oioens v. Andrew Go., 49 Mo. 376; State to use v. Roberts, 60 Mo. 404. (4) The collector may be required to account for all items improperly omitted in the previous quarterly settlement and may be proceded against for neglecting to do so, for it is his official duty thus to account, and the matter is not passed beyond the jurisdiction of the court. Owens v. Andrew Go., 49 Mo. 379. (5) The final or annual settlement made with any officer by the county court is different from the stated settlements, made on the presentation of the officers’ accounts, and is undoubtedly judicial in its character. Gole Co. v. Dallmeyer, 101 Mo. 63, 64; Owens v. Andrew Co., 49 Mo. 372. (6) If a clerk 'fails to make stated settlements he can be forced to do so, or the court can proceed under sections 3177-3180, Revised Statutes, 1889. The statute does not definitely designate when the county court shall make an annual or final settlement with county clerks but inferentially designates the end of the year as the time. Sec. 5009. (7) Orders of the county court made under sections 3177-3180 are judgments. Oioens v. Andrew Go.,^49 Mo. 376. (8) The county, as a party in interest, had the right to appeal from the decision of the county court. “The circuit court has appellate jurisdiction from the judgments and orders of the county courts * * * in all cases not prohibited by law, and shall possess a superintending control over them.” Revised Statutes, sec. 3317. (9) The finding of the circuit court was correct, so far as it applied to the quarterly returns for the year 1890, as there was no dispute as to the fees received for that year. The county court erred in allowing the clerk $400 in excess of the salary of $1,500 fixed by law, also in not reviewing all the quarterly reports made by the clerk for the eight years he was clerk. (10) The finding of the county court for the years 1887, 1888,' 1889 and 1890 was a final judgment, from which, the county could appeal. (11) The circuit court erred in not trying the ease anew, and giving a judgment and making a final settlement for the whole eight years. (12) The item of $177.25 claimed by the clerk to have been paid into the county treasury by mistake can and should be adjusted by the county court, and the circuit court so held although there is no record of it in the transcript. There was no contention on that point in the circuit court. (13) If the court should think proper to reverse this case, the respondent suggests that the case be remanded with instructions to the circuit court to review the action of the county court, and try the case anew and enter up the proper judgment thereon, or that the circuit court direct the county court to enter up such judgment as may be proper.</p>

Louis Court of Criminal Correction. Hon. J. R. Claiborne, Judge.

Louis Court of Criminal Correction. Hon. James R. Claibobne, Judge. (1) Ordinance section 372 is unconstitutional and void; the power to pass it is not authorized by the charter. City v. Clemens, 43 Mo. 404; Farmers’ Loan and Trust Company v. Carroll, 5 Barb. 49. (20 The city failed to make a prima facie case against defendant; it failed to prove that defendant erected a slaughterhouse or caused one to be erected.

— Hon. Rudolph Hirzel, Judge. (1) Whenever necessary, by reason of any proceeding pending, the probate court, and in some cases, other courts, may set out to the widow her homestead. But the law nowhere authorizes it to be set out to anybody but the widow personally. Revised Statutes, 1879, secs. 2693, 2394, 2697. (2) The widow in this case was entitled to quarantine in the whole farm. Revised Statutes, 1879, sec. 4533.

— Robert 8. Moore, Esquibe, Special Judge. Under the facts in this case, as set up by the pleadings, a resulting trust arises by operation of law, where the purchase money is paid by one person and the legal title transferred to another. Kelley v. Johnson, 28 Mo. 249; Page v. Page, 8 N. H. 187; Gower v. Bank, 4 Sand. 106; Boyd v. Maclean, 1 Johns; Chancery, 582; 2 Jac. & Walk. 578; Cecil v. Butcher and Bummer v. Pilcher, 2; Mylnev. Kern, 262.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) Since the case in the 29 Mo. p. 152, of Valle's Heirs v. Fleming’s Heirs, it has been settled law in this state that an equitable defense may be set up in an action of ejectment and may be good against a part or all of the plaintiff’s case, and that courts will render such judgment in the case as justice and equity requires.

— Hon. W. I. Wallace, J ’ 3 udge. It was agreed between counsel for plaintiffs and defendant that additional time should be given plaintiffs to filo bill of exceptions and that the record entry so showing would be sufficient, which is shown by the foregoing supplemental abstract; having appeared and agreed to the filing of the bill of exceptions the defendant cannot complain now.

Mandamus. (1) The law and the city charter do now leave, and always have left it, to the option of the person granting such license to make them separate or otherwise, as they might prefer. They have made them separate simply because it suited their convenience better in keeping books and accounts, or something else.

<p>1. Insolvency: fraudulent conveyance: separate estate. A father may settle property on his son’s wife as her sole and separate estate, although the son is at the time insolvent.</p> <p>2. -: -: -: partnership. The father of a debtor being desirous to aid him, but not willing to pay his debts, sold to his son’s wife $15,000 worth of machinery for $3,500 and the three entered into a partnership, the wife putting in the machinery, the father the remainder of the capital, it being agreed that the son was to manage the business for which'he was to receive a salary of $150 a month and ten per cent, of the net profits and was to bear a like proportion of the losses. JJelcl, that a suit to have the property declared that of the son on the ground that the arrangement was a fraudulent device to enable him to carry on a business of his own and to avoid payment of Ms debts could not be sustained.</p>

— Hon. J. M, Davis, Judge. (1) The facts in this case did not constitute the purchase of lottery tickets in the state of Louisiana, but was a sale of an interest in lottery tickets in the state of Missouri, and the case falls within the rule announced in Kitchen v. Greenbaum, 61 Mo. 110. See Revised Statutes, 1889, sec. 3933; Watson v. Mury, 23 N. J. Eq. 257; Fink v. Gallager, 49 Conn. 124.

<p>Criminal Practice: subpoenas for witnesses: constitution. A rule of court restricting to fifteen the number of subpoenas for witnesses, to which one indicted for murder is entitled as of right, is void as contravening article 2, section 22 of the constitution which provides that "in criminal prosecutions the accused shall have the right to have process to compel the attendance of witnesses in his behalf."</p>

<p>Appeal from Clark Circuit Cowrt. — Hon. Ben. E. Tuenee, Judge.</p> <p>(1) On the answer of respondents, appellants should have recovered. Pearl v. Hervey, 70 Mo. 160; Sutton v. Casseleggi, 77 Mo. 397; Turner v. Shaw, 96 Mo. 22; Bartlett v. O’Donoghue, 72 Mo. 563; Wcmnell v. Kem, 51 Mo. 150; Hord v. Taubmcm, 79 Mo. 101; Bompart v. Boderman, 24 Mo. 385. (2) The court admitted incompetent and improper evidence on the part of respondents, over appellant’s objections. Bourgeoise v. Blank, 8 Mo. App. 434; Bompart v. Boderman, 24 Mo. 385; Hall v. Callahan, 66 Mo. 316; Pearl v. Hervey, 70 Mo. 160; Sutton v. Casseleggi, 77 Mo. 397; Turner v. Shaw, 96 Mo. 22; Bartlett v. O’Donoghue, 72 Mo. 563; Wannell v. Kem, 51 Mo. 150; Hord v. Taubman, 79 Mo. 101; 5 Wait’s Actions and Defenses, pp. 84-85; 36 N. T. 499; 12 S. W. Rep. 71; 53 Am. Dec. 481; 4 Am. Dec. 52; 6 Am. Dec. 276; 42 Am. Dec. 275.</p> <p>(1) A parol partition, where it is fair and the parties have taken possession under it, will be sustained. Bompart v. Boderman, 24 Mo. 385; Aasen v. Barnett, 50 Mo. 506; Nave v. Smith, 95 Mo. 596; 1 Wait’s Actions and Defenses, p. 84; Woods v. Fleet, 36. N. Y. 499; Ay cock v. Kimbrough, 12 S. W. Rep. 71; Bourgeoise v. Blank, 8 Mo. 434; Millón v. Beed, 8 Atl. Rep. 229; Jackson v. Hardin, 4 Johnson, 212; Same, 439 and 440; Wardlow v. Miller, 6 S. W. Rep. (Tex.) 745;. Brace v. Osgood, 14 N. E. Rep. (Ind.) 563. (2) A parol partition of lands is not a sale of lands within the meaning of the statute of frauds. Meacham v. Meacham, 19 S. W. Rep. (Tenn.) 757; McKnight v. Bell, 19 Atl. Rep. (Penn.) 1036; Murril v. Mandlebawn, 19 S. W. Rep. (Tex.) 880. (3) The deeds from each of the parties hereto to the others conveyed no title, but simply defined the- boundaries of the lands owned by each. Davis v. Agnew, 2 S. "W. Rep. (Tex.) 376; Ay cock v. Kimbrough, 12 S. W. Rep. (71 Tex. 330) 71.</p>

Louis City Circuit Court. — Hon. D. D. Fisheb, Judge. (1) The estate conveyed by McManus to Blair, the trustee, vested in Camille W. Patrick, subject to the chattel interest in the trustee. Chew v. Keller, 100 Mo, 362; 4 Kent Com. star pp. 202-206; 1 Jarman on Wills [Bigelow’s Ed.], star p. 805, 837; 2 Redfieldon Wills, p. 225, sec. 18; Doe v. Nowell, 1 Maulé & S. 327; Bromfield v. Crowder, 1 B. & P.,.

— Hon. W. D. Hubbard, Judge. (1) The dismissal of an attachment suit ipso facto dissolves the attachment and releases the lien. 1 Wade on Attachment, p. 407, sec. 218; 'Smith v. Whitfield 2 S. W. Rep. (Tex. Sup.

<p>1. Option Contracts: brokers: compensation. Where brokers are directed by their principals for whom they have sold grain for future delivery, to close out the transaction by the purchase of the same quantity of grain as they have sold, they are not entitled to credit for the purchase of a part of such amount made without the consent of their principal from a member of their firm and under a fictitious name.</p> <p>2. Practice: evidence: objections. Where evidence offered is admissible for any purpose, mere general objections thereto are insufficient.</p> <p>3. -: -: -. Where, however, the evidence is inadmissible on any ground, a general objection on the ground of incompetency, immateriality or irrelevancy is sufficient.</p> <p>4. Option Dealing’: statute. The act of the legislature of March 19, 1887 (Actsp. 171, as amended in section 3835 of Revised Statutes of 1889), to prevent gambling under the guise of trading in stocks etc., and defining bucket shops was directed at keepers of bucket shops and to individuals or companies engaged in dealing in futures and gambling in grain and other articles of commerce and. was not designed to affect transactions between commission merchants, their customers and patrons.</p> <p>5. -: . Under Revised Statutes, section 3931, prohibiting and punishing option dealing, the transaction is illegal where the seller does not intend to deliver the property sold, but simply to settle the difference in price, whether his brokers and the purchaser knew of his intention or not.</p> <p>6. --: : broker. The broker cannot, in such case, recover from the seller, commissions for conducting the business or money paid to settle losses on the transaction.</p>

Louis City Circuit Court. — Hon. Jacob ’ Klein, Judge. (1) The transcript of the judgment was not certified to by the judge of the federal court as expressly required. Revised Statutes, 1889, sec. 4881. (2) The United States district court was without jurisdiction. Revised Statutes, U. S., 1878, sec. 563; Railroad v. Gomila, 132 U. S. 484; Du Vivierv. Hopkins, 116 Mass. 125; Pearce v. Calhoun, 59 Mo. 271; Works v. College, 17 Wall. 521; Woerner Am. Law Adm., p. 341.

— Hon. Frank P. Sebree, Special Judge. (1) Injunction is the proper remedy to prevent defendants acting outside of the limits of Westport, also to prevent them from trespassing upon plaintiff’s land, even if it were inside of Westport. State ex rel. v. Whitcomb, 55 Ill. 172; Stulsv. State ex rel., 65 Ind. 492; City of Delphi v. Startsman, 104 Ind. 343; High on Injunctions [3 Ed.], ch. 9.

— Hon. J. W. Henry, Judge. (1) The title of both acts are restricted to “the sale of intoxicating liquors in original packages,” the word “or otherwise” expresses nothing and means nothing, and the subject of said sections of said acts not clearly expressed in the title. Cooley on Constitutional Limitations [5 Ed.], p. 174.

Charles Circuit Court. — Hon. -W. W. Edwards, Judge. (1) The court below erred in. holding that the fee simple title to the tract of land described in the petition passed and descended to the heirs of Benjamin H. Payne at the moment of his death, and did not pass and descend to his heirs at the moment of the death of his widow, Adelia R. Payne. Jones v. Waters, 17 Mo. 587; Aubv,chonv. Bender, 44 Mo. 560; Fmisonv.

— Hon. M. Q. McGregor, Judge. (1) It is conceded that the grading, etc., in front of plaintiff’s property was done in a workmanlike and proper manner. It is averred in petition “that said embankment is of a permanent character and was constructed by the defendant under a license granted to the said defendant by the said city of Carthage.” The defendant was duly authorized by said city of Carthage to cross McGregor street with its road.

— Hon. Rudolph Hirzel, Judge. (1) The court erred in permitting the plaintiff to amend the petition after the jury was sworn. (2) The court erred in permitting plaintiff to introduce any evidence in the case. 7 G-ray (Mass.), 104; Lane v. Atlantic Works, 111 Mass. 136; Lyons v. Inhabitants, 119 Mass. 491; Hughs v. Macfie, 2 Hurl. & Colt. 744; Mangan v. Atterton, L. R., 1 Exch. 239; McGee v. Carro, 9 0.

— Hon. Richard Field, Judge. (1) Charles Dixon and the engineer were fellow servants and defendant’s instruction number 3 should have been given. (2) The court at the close of the evidence for the plaintiff should have instructed the jury to return a verdict for the defendant, for the reason that it was the duty of deceased to keep the cable off tbe track, and failing to so do, Ms own negligence contributed directly to his death.

<p>Appeal from Jackson Circuit Court. — Hon. J. H. Slovek, Judge.</p> <p>(1) The transportation of plaintiff’s eoal was interstate commerce. The Daniel Ball, 10 Wall. 557; Hall v. De Cuir, 95 U. S. 485; .Lord v. Steamship Co., 102 U. S. 541; Pacific Steamship Co. v. Commissioners, 18 Eed. Rep. 10; State ex rel. v. Railroad, 40 Minn. 267; s. o., 41 N. W. Rep. 1047; 24 XL S. Stats, at Large, 379; Cotton Exchange v. Railroad, 2 Int. St. Com. Rep. 289; Mattingly v. Penn. Co., Id. 806. (2) And therefore not subject to regulation by state laws. Railroad v. Illinois, 118 U. S; 557; Ferry Co. v. Pennsylvania, 114 U. S. 196; Hardy v. Railroad, 18 Am. & Eng. R. R. Cases (Kan.) 432, and note; Welton v.Missouri, 91U. S. 275. (3) And this was so in spite of the fact that the state legislature had declared such commerce subject to state laws, for such declaration was contrary to the federal constitution, and therefore void. U. S. Const, sec. 8, art. 1. Stanley v. Railroad, 100 Mo. 435. (4) There was no evidence that defendant gave an undue or unreasonable preference to Liberal or Minden over Carbon Center, either by a violation of section 2637 or otherwise. No coal was transported either from Liberal or Minden during the period of plaintiff’s shipments from Carbon Center, nor was defendant requested to transport any, and hence defendant neither “charged” or “received” less compensation for the longer than for the shorter haul. Webster’s Diction-ary; Black’s and Bouvier’s Law Diets., title, Charge. 5) The transportation, or the charge therefor, had there been any, from Liberal or Minden, would not have been “under similar circumstances and conditions over the same line in the same direction,” as in the case of Carbon Center. Penaby Co. v. Railroad, L. Rep., Í0 H. L. 97; Coal Company v. Railroad, 2 Nev. &Mac. 39;' 'Bus. Men's Ass'n v. Railroad, 2 Int. St. Com. Rep. 48; Richardson v. Railroad, Ry. & Can. Tr. Cas. 1; 8 Am. & Eng. Encyclopaedia of Law, 958. (6) The burden of showing the similar circumstances and conditions and the same line and same direction rested of plaintiffs. Paxon v. Railroad, 56 Iowa, 427. (7) These statutes (sections 2636 and 2637) are penal statutes, and therefore to be strictly construed in favor of defendant. Rev. Stats. 1889, sections, 2643, 2645. State to use v. Railroad, 19 Mo. App. 104; Fuss v. Spaunhorst, 67 Mo. 256; State v. Bryant, 90 Mo. 534. (8) There wasno evideuce that plaintiffs sustained any damages in consequence of the alleged preference given Liberal and Minden. This was a fact necessary to be proved befoi’e plaintiffs could be entitled to recover. Moreover, the relation of cause and effect between the unlawful act and the damage must have been proven, which plaintiffs failed to do. Harlan v. Railroad, 65 Mo. 22; Poivell v. Railroad, 76 Mo. 80; Stepp v. Railroad, 85 Mo. 229. (9) The court erred in the admission of evidence over defendant’s' objection. Frederick v. Allgaier, 88 Mo. 598; Weil v. Posten, 77 Mo. 284. (10) The instructions given at plaintiff’s request were erroneous and improper. Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Frederick v. Allgaier, 88 Mo. 598; Wells v. Zalle, 59 Mo. 509. (11) The court erred in refusing each of defendant’s instructions 8 to 13 inclusive. (12) The verdict was against the evidence and was against the law as declared in the instructions given by the court. (13) The court erred in fixing the amount of attorney’s fee and in allowing the same. Const., art. 2, section 28; Revised Statutes, 1889, sections, 2131, 2133; Briggs v. Railroad, 111 Mo. 168;, Railroad v, Grider, 19 S. W. Rep. (Tenn.) 618.</p> <p>(1) The transportation of plaintiff’s coal was not commerce between_the states, 'because a part of the track over which it was carried was in the state of Kansas. The coal was shipped by the plaintiffs from a point in Missouri, to the plaintiffs at another point in Missouri and there was no commerce between any person in Missouri with any person in the state of Kansas. Railroad v. Pennsylvania, 145 U. S. 192; Railroad v. Pennsylvania, 129 Pa. St. 308; Revised Statutes, 1889, section 2656. (2) It requires no argument to prove that the defendant gave an unreasonable preference and advantage to both Liberal and Minden to the disadvantage of Carbon Center; Liberal is twenty-one miles and Minden twenty-six miles further from Kansas City than Carbon Center; and notwithstandingthis fact, Carbon Center had the disadvantage of having to pay $2 per car more on coal transported to Kansas than did either of the other two places. This discrimination forced all the shippers, except the plaintiffs at Carbon Center, to abandon the business during the time the increased rate was in force. This was evi-. dently giving Liberal and Minden an undue preference over Carbon Center, and the jury, under the evidence, so found. The.-question of such preference, and whether the circumstances and conditions were the same was submitted to the jury by the instructions of the defendant as well as those of the plaintiffs. Davis v. Brown, 67 Mo. 313; Tetherow v. Railroad, 98 Mo. 74; Keen v. Sclmedler, 92 Mo. 516; Reilly v. Railroad, 94 Mo. 600; Noble-v. Blount, 77 Mo.- 235; Holmes v. Braidivood, 82 Mo. 610; Hazell v. Tipton, 95 Mo. 60; Jennings-v. Railroad, 99 Mo. 394; Fairbanks v. Long, 91 Mo. 628. (3) The action of the defendant which is complained of by the plaintiffs is also a violation of section 2637 of the Revised Statutes prohibiting a railroad company from charging a greater compensation for a shorter distance than for- a longer distance over the same line in the same direction. The extra charge was admitted by the defendant and whether it was over the same line in the same direction was a question which the defendant’s own instructions submitted to the jury. See authorities cited under point 2. (4) That the plaintiffs’ instruction did not require, as a condition of recovery, that they should have sustained damages by the unlawful' acts of the defendant was an immaterial omission in view of the fact that the damages were patent and obvious, and the proper rule of damages was given to the jury. This omission was supplied by. the fifth instruction given for the defendant. These instructions were not contradictory, and when read together contained but one doctrine. Sackett on Instruction [2 Ed.], pp. 23, 24. La Riviere v. La R'wiere, 97 Mo. 80; M. Foster 'Mfg. Co. v. Guggemos, 98 Mo. 391, JBcmhv. Hatch, 98 Mo. 376; Whalen v. Railroad, 60 Mo. 323; Railroad v. Schoennan, 37 Mo. App. 612; State v. Gregory, 30 Mo. App. 582. (5) As it appears from a decision of this court, published since this case was tried, that the attorney’s fee was improperly taxed by the court instead of the jury, the plaintiffs hereby remit this item. Being merely an item of costs taxed after the verdict, it can not affect the verdict and judgment.</p>

— Hon. John A. Hockaday, Judge. (1) It was error to permit the plaintiff to give evidence of loss of time and wages, for such loss was not claimed in her petition. State, etc., v. Blaclman, 51 Mo. 319; Brown v. Bailroad, 99 Mo. 310. Consequently, instruction number 6 given for plaintiff telling the jury to allow her for loss of time is error. Smith v. Rail-road, 108 Mo. 243, and cases there cited; Waddingham v. Rulett, 92 Mo. 528.

<p>1. Negligence: railroad : street crossing. In an action by a child against a railroad corporation for injuries z’eeeived by him while attempting to pass between cars of a train occupying a street crossing, evidence that he saw others so cross over before him is admissible on the question of defendant’s negligence in starting the train without warning.</p> <p>2. -: -: -: flagman. Evidence that no flagman was present at the time of the accident was admissible to show want of care on defendant’s part to .prevent accidents.</p> <p>3. Practice: witness: deposition. The deposition of a witness not a party to the suit is inadmissible in evidence if he is present in court.</p> <p>4. Negligence: railroad : cars standing across street. It is negligence on the part of a railroad company to leave its cars standing across a city street with a space of nine inches between them and to close up such space without giving any warning.</p> <p>5. -: -: -: inexperience of child. The jury in determining the contributory negligence of a child nine years old in passing between two cars nine inches apart on a street crossing should consider whether by reason of his youth and inexperience he was aware of the dangerous character of his act.</p> <p>6. -: damages: mental anguish. Where a boy nine years of age is injured by defendant’s negligence so as to be a cripple for life, it is proper to allow him for mental anguish arising from consciousness of that fact.</p> <p>7. -: -: incapacity to earn livelihood. Where a boy nine years of age is so injured by the negligent act of defendant as to make him a cripple for life, it is proper for the jury in estimating the damages to consider the resulting impairment of capacity to earn a living after the termination of his minority.</p> <p>8.--: -: -. Such damages may be allowed though the petition contains no specific averment as to plaintiff’s inability to earn a livelihood nor as to what extent it would be impaired after his majority and there is no evidence as to such facts.</p> <p>9. Excessive Verdict: waiver. Objection to the amount of the damages found by the jury can not be raised for the first time on appeal.</p>

— Hon. W. I. Wallace, Judge. (1) Tbe fact that defendants were in possession of the premises was, of itself, sufficient notice to plaintiff of adverse claim. Merrett v. Poulter, 96 Mo. 240; Vaughn v. Tracy, 25 Mo. 318; Levy v. Holberg, 67 Miss. 526; Wise v. Werner, 23 Mo. 237; Bryan v. Hodges, 107 N. C. 492; Mamifachiring Co. v. Hendricks, 106 N. C. 485; Lance v. Gorman, 136 Pa. St. 200; 20 Am. State Rep. 914; 16 Am. and Eng.

— Hon. Q-. D. Burgess, Judge. (1) The facts alleged in the petition and admitted by the demurrer show that the contract was made for the benefit of plaintiff and other tax paying citizens of the town as individuals as well as for the town as a municipality, while the compensation — the consideration for the supposed benefits to accrue to the town and its citizens for the water supply and for the extinguishment of fires — was to come from the taxpayers alone.

— Hon. 0. B. McAeee Special Judge. (1) The evidence presents a case of manifest .negligence on the part of the defendant. It was the duty of the defendant to keep its track in such condition of repair as to make it safe for its employees while engaged thereon in the performance of their duties, and if it failed so to do, it is liable.

<p>St. Louis Circuit Court: assignment of causes : general and special term. Under the eonstitution, article 6, section 27, and the statutes enacted in pursuance thereof (R. S. 1889, p. 2147, sec. 12) all causes in the St. Louis circuit eomt are triable before the single judges sitting in special term after assignment of the same to them by the majority of the judges constituting the general term.</p> <p>2. -: -:-: special jury. After such assignment of a cause the judge to whom it has been made has exclusive authority and jurisdiction over it and application cannot be made to an associate judge of another room for an order for a special jury.</p> <p>-: -:-: -bill of exceptions. The denial of such application for an order for a special jury, so made to another judge, is not open for review on a bill of exceptions signed by him and copied into the record of the appeal from the judgment rendered by the judge before whom it was tried.</p> <p>4. Railroad: servant : killing trespasser. Where the servant of a railroad company employed to keep trespassers off of one of its bridges while in the course of his employment wrongfully shoots and kills a trespasser, the company will be liable.</p> <p>5. -:-: -. The doctrine of respondeat superior stated.</p> <p>6. Exemplary Damages: corporation: statute: Exemplary damages may be recovered against a corporation in an 'action founded on Revised^Statutes, 1889, sections 4426, 4427, for the wrongful killing of a person by its servant in the course of his employment where the wrongful act was willful, reckless, wanton, oppressive or malicious.</p> <p>7. -: -: -. The doctrine of the case of Rouse v. Bailroad, 41 Mo. App. 298, criticized and denied.</p> <p>8. Evidence: action for wrongful death: harmless error: The fact that in an action by a widow under Bevised Statutes, 1889, sections 4426, 4427 for the wrongful killing of her husband by defendant, evidence is admitted that plaintiff had but one child and that she was dependent on her husband for support is no ground for a reversal of the judgment.</p>

Mandamus. (1) The relator herein is and has been for twenty years a dentist in lawful and actual practice in the city of St. Louis, Missouri. He has conformed to every requirement of law regarding the practice of dentistry in this state, and has properly pursued every means expressly provided by law to secure the freedom from jury duty to which he claims he is legally entitled.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The application for the payment of the amount of award to Clark and others was made after the judgment in the circuit court and after appeal by the railroad company therefrom, and, therefore, could not have been included in said judgment and appeal. In such cases appeals will lie from orders after judgment. St. Louis v. Brooks, 107 Mo. 383. But the amendatory.act of 1891 has removed all doubt from this question.

Mandamus. • (1) The trial court had no option, and no discretion, to grant or refuse a change of venue. Upon filing of the-proper affidavits, the duty of the judge to grant the change of venue was ministerial, not judicial. R. S. 1889, secs. 4152, 4153, 4154, 4155, 4156. The statute has been changed since decisions were rendered in Ex parte Chambers, 10 Mo.

Prohibition. STATEMENT. By this original proceeding in this court, a rule was issued and served on the mayor of St. Louis, requiring him to show cause why he should not be prohibited from proceeding to try the relator on certain charges which had been preferred against him by Robert E: McMath, president of the board of public improvements, which charges showed upon their face certain derelictions of official duty on the part of relator as commissioner of public buildings.

— Hon. Eighard Eield, Judge. (1) Plaintiff was not entitled to recover on its petition,- because it alleged as a breach the failure of Baker to comply with the contract of June 1, whereas the undisputed evidence showed that this contract, as pleaded, no longer existed, but the same had been changed, altered, modified and abrogated by a new contract made on October 1. Plaintiff’s right to recover, if at all, was for failure to perform the new and altered agreement.

<p>1. Criminal Practice: change of venue. The right to a change of venue is purely statutory and has no existence outside of the special grant of power awarding it.</p> <p>2. ;-: -._ A defendant applying for a change of venue because of the prejudice of the inhabitants of the county can not include in his affidavit the prejudice of the inhabitants of counties outside of the circuit wherein the cause is pending.</p>

— Hon. E. J. Bboaddus, Judge. (1) The verdict is contrary to the evidence. The testimony of every person who saw the commencement of the difficulty, clearly shows that it was a justifiable homicide. When the evidence is so conclusive upon that question as in this case, this court should reverse the judgment' even if other errors did not intervene.

— Hon. J. E. G-been, Judge. (1) It is well settled in this state that in order to save and present to this court any alleged errors occurring during the trial it must be preserved by exception duly saved at the time. State v. Foster, 115 Mo. 448. It is too late to first raise it in the motion for new trial.

— Hon. P. 0. Stepp, Judge. That the jury separated, in violation of the statute law of this state, after the ease was submitted to them, and they had retired to consider their verdict, is not denied. Held: in this state, that defendant was entitled to a new trial. State v. Sansone, 116 Mo. 1.

— Hon. J. W. Wofford, Judge. (1)The court erred in its direction to the jury as to the punishment to be inflicted if they found defendant guilty; Watson v. People, 25 N. E. Rep. 567; Irvin v. State, 8 S. W. Rep. (Tex.) 681. (2) The court erred in excluding the-evidence offered by defendant as to the relative property interests of defendant and his mother.

<p>Criminal Law: false pretenses. Obtaining money by falsely promising to ship, to the person from whom it was obtained, some merchandise does not constitute obtaining money by false pretenses.</p>

— Hon. E. F. Eoy, Judge. It was the duty of the court to instruct on the whole case (E. S. 1889, sec. 4208), and this whether asked or not. State v. Palmer, 88 Mo. 573; State v. Bramlette, 65 Mo. 154; State v. Banks, 73 Mo. 597; State v. Schloss, 93 Mo. 365. The court will not consider the bill of exceptions in this cause. State v. Britt, 117 Mo. 584; State v. Apperson, 115 Mo. 470; State v. Mosley, 116 Mo. 545; State v. Seaton, 106 Mo. 198.

— Hon. W. N. Evans, Judge. (1) The circuit court of Howell county had no jurisdiction to try the cause, and, having no jurisdiction, the defendant could not waive it, and thereby give the said court jurisdiction. R. S. secs. 4152, 4154; State v. Bulling, 100 Mo. 87. (2) Instruction number 3, given by the court, was error. This instruction, without being qualified, is not the law of this case, and was prejudicial to appellant.

— Hon. Ben E. Turner, Judge.. (1) This court has jurisdiction to hear and determine this writ of error, although no motion in arrest of judgment was made in the court below. State v. Fleming, 22 S. W. Eep. 1024; State v. Meyers, 99 Mo. loc. cit. 112; State v. Van Matre, 49 Mo. 268; State v. Vaughn, 26 Mo. 29; McGee v. State, 8 Mo. star p. 495; Mathews and Garner cases, 18 Grattan, 989. (2) The. indictment will not support a judgment.

— Hon. H. C. Riley, Judge. Defendant’s motion to- quash the indictment in this case was properly overruled. The indictment in the language of the statute clearly • charged the crime of which the defendant was accused and convicted. R. S. 1889, sec. 3535.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) In indictments, words and phrases shall be construed according to the common and approved usage of the language. Heard’s Criminal Pleading, p. 39; also pp. 165, and following; 10 Am. and Eng. Encyclopedia of Law, p. 461. (2) Each count in an indictment ought to charge one single crime. Heard’s Criminal Pleading, p. 103.

Appeal 'from St. Louis Criminal Court. — Hon. H. L. Edmunds, Judge.

— Hon. James H. Lay, Judge. (1) The indictment in this case is sufficient. It follows the language of the statute under which it is drawn, and clearly charges the offense' of which the defendant is accused. Its allegations are not repugnant as charging both a voluntary and involuntary killing. 2 Bishop on Crim. Proc., sec. 564; State v. Sundheimer, 93 Mo. 311.

— Hon. B. E. Turner, Judge. When there is no market price for a commodity at the place of delivery, the market price at the nearest available market, less the expense of transportation and hauling, is the measure of its value at the place of delivery. Cobb v. Whitsett, 51 Mo. App. 148; Vanstone v. Hopkins, 49 Mo. App. 386; Benjamin on Sales, 859; Sedgwick on Damages [8 Ed.], sec. 246.

— Hon. W. W, Rucker, Judge. (1) The evidence of Jonas Cooper as to threats by defendant toward the deceased should have been stricken out (Burns v. Railroad, 24 Mo. App. 10) ; and this is true whether proper objections to the evidence were made or not. State v. O’Connor, 65 Mo. 374. The admission of improper testimony in criminal cases is not cured by an instruction for its exclusion.

Circuit Court. — Hon. H. M. Ramey, Judge. Action brought against the defendant company, by James Quinn as next friend of Mary and William C. Roblin, minors, to recover damages resulting from the death of their father, alleged to have been caused by the incompetency of F. B. Tracy, the engiheer of the train of which Wm. H. Roblin, their father, was the conductor in charge. Such portion of the petition as necessary to quote, is the following: “That said Wm.

— Hon. John E. Eyland, Judge. Defendant was convicted upon the testimony of his wife which is the principal error complained of. He objected to this testimony and duly saved his exceptions. E. S. 1889, sec. 4218; State v. Berlin, 42 Mo. 572; State v. Potter, 108 Mo. 424; Kelley’s Criminal Law and Practice, sec. 258. (1) The wife of the defendant was a competent witness because of the necessity of the case. Stein v. Bowmen, 13 Pet. (U. S.)221; 1 Hale’s P. C., 301; 1B1.

— Hon. J. H. Slover, Judge. (1) The proposal made by Cosby, through his agent, Winter, to release lot 13, in block 1, on payment of $750, not being accepted by the parties to whom it was made, did not constitute a binding contract. Neither respondent nor any of his privies ever promised to pay the $750 until after the offer was withdrawn. 3 Am. and Eng.

— Hon. R. H. Roy, Judge. (1) The examination of defendant before the coroner and jury of inquest was not competent evidence against him, and its admission, against objection, was error. State v. Mullins, 101 Mo. 514; State v. Clifford, 53-N. W. Rep. (Ia.) 299; State v. Hobbs, 17 S. E. Rep. 380; State v. Roto, 46 N. W. Rep. (Ia.) 872; People v. Mondon, 103 N. Y. 211; Day v. State, 63 Ga. 667; Wood v. State, 3 S. W. Rep. (Tex.) 336; State v. Coffee, 16 Atl.

— Hon. D. W. Shackle-ford, Judge. On the third day of August, 1892, Francis Mackin was foreman in the tannery department of the Strauss Saddlery Co., in the Missouri penitentia'ry, and had charge of that department. Defendant was a convict who had been in the penitentiary for some years and was under the charge and orders of Mackin. On that day defendant killed Mackin by stabbing him to death with a shoe knife.

Louis Criminal Court. — Hon. Heney L. Edmunds, Judge. (1) The state having offered in evidence defendant’s statement made before the coroner, thereby made him its own witness and could not afterwards impeach him. Jones v. State, 13 S. W. Rep. (Tex.)990; State v. Thomas. 99 Mo. 235. (2) The statements made by defendant at the coroner’s inquest were inadmissible.

JError to Holt Circuit Court. — Hem. • O. A. Anthony, Judge. “The record proper by law is the petition, summons and all subsequent pleadings, including the verdict and judgment; and these the law has made it our duty to examine and revise; and for any error apparent in the face of these,- which constitutes the record, we will reverse the cause.” Bateson v. Clark, 37 Mo. 31.

— Hon. E. L. Edwards, Judge. (1) No evidence was ever introduced by the plaintiff showing a survey of the land sued for, or its location. The evidence is that defendant is not in possession of plaintiff’s land. (2) According to the evidence of the surveyor, 'Williams, his survey could not have been correct, nor could he by such a survey locate the land of plaintiff, or of defendant, or properly locate anything.

— Hon. E. M. Hughes, Judge. This is an action of ejectment. In the petition it is alleged that plaintiff was duly appointed trustee for John T. Jacobs and his children, by virtue of the will of Gleorge R. Jacobs, deceased; that he accepted said appointment and qualified as trustee; that, as such, he was, on the seventh of March, A. D. 1888, entitled to the possession of a certain tract of land, which defendant, Mr. Carter, and his tenant, Mr. Kelly, then occupied, and which…

— Hon. W. D. Hubbard, Judge. A title procured by fraud or plain and positive deception is utterly void in law, as well as in equity, and where influence, such as exists between man and wife, is used and advantage taken of that relation to acquire property, it is a fraud destitute of all validity and utterly void. And equity will not stop short with the guilty party, but will grant relief against every one who attempts to sustain the wrong or profit by it.

— Hon. E. J. Bboaddus, Special Judge. (1) The act of February 14, 1893, is void because the title is simply to repeal section 43 of the act of the extra session of April 7, 1892. The second section thereof, not being embraced in terms in the title, and the enactment of the new law fixing the terms of court not having a “natural connection with” and not being “an incident or means of accomplishing” the repeal of the then existing statute, is void.

— Hon. E. L. Edwards, Judge. (1) Tlie circuit court liad no power to interfere with an execution issued from the circuit court of Moniteau county. Mellier v. Bartlett, 89 Mo. 134. (2) It was error to sustain the, demurrer to. part of the answer to the amended petition. Where an estoppel is relied upon, it must be pleaded. Ferneau v. Whitford, 39 Mo. App. 311.

— Hon. Joseph R. Edwabds, Special Judge. (1) The tax deed offered in evidence by the defendants should have been admitted, and the first declaration of law asked by the defendants should have been given.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) The association in question was doing a life insurance business on the assessment plan and its contracts are those of life insurance, just as much as the policies issued by the regular life insurance companies, hence the same rules applicable to life insurance contracts should be applied to this contract so far as possible.

<p>Appeal from St. Lo%ás City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>(1) The United Masonic Benefit Association was a mutual insurance company. R. S. 1889, sec. 5860; State ex rel. v. Ben. Soc., 72 Mo..147; Bacon on Benefit Societies, p. 175. (2) Premiums due such companies are recoverable. Clarh v. Middleton, 19 Mo. 53; Insurance Co. v. Geraldin, 31 Mo. 30. (3) Neither insolvency nor cancellation of policy prevents recovery for losses suffered during life of policy. Receiver v. Hite, 94 Pa. St. 394; Vanata v. Ins. Co., 31 N. J. Eq. 15; Commonwealth v. Ins. Co.,, 112 Mass. 116; Life Ass’n v. Rossiter, 132 Pa. St. 314. (4) A member can not by withdrawal avoid any obligation incurred. Borgraefev. Knights of Honor, 26 Mo. App. 218. (5) Issuance and acceptance of the certificates furnish a sufficient consideration for agreement to pay any assessments made during the life of the policy, and, upon failure to pay, an action will lie. Receiver v. Lewin, 29 Hun, 87. (6) A member is liable for all losses accrued up to termination of membership, and, in case of insolvency, the receiver may assess and bring action for assessments. Receiver v. Lewin, 29 Hun, 87. (7) Forfeitures are not favored by the law, and acceptance of premiums with knowledge waives forfeiture, and policy continues in force; that being the case, the insured is liable for assessments. This liability, being consideration for policy, must exist unimpaired, if policy is in force. Froelich v. Ins. Co., 47 Mo. App. 406; Barnard v. Ins. Co., 38 Mo. App. 106; Schmidt v. Ins. Co2 Mo. App. 339.</p> <p>(1) The contract was inter sese, and both are ‘ mutually bound by the constitution and by-laws and agreements in the certificate. It was requisite that Mr. Eaust should be a mason in good standing, in order to remain a member of the benefit association. When he violated the charter, by-laws or the covenants in his certificate, he immediately, by such violation, ipso facto, ceased to be a member, without the necessity of formal expulsion by the benefit association. Smith v. Knights, 36 Mo. App. 184; ILogins v. Supreme Council, 18 Pac. Rep. 125; Royal Templars v. Curcl, 111 111. 284; Receiver v. Letoin, 29 Hun, 87. (2) Though appellant may have received assessments from Mr. Eaust after his expulsion and after the passage of their last by-laws, it can not claim that it was an act of waiver. Hogins v. Supreme Council, 18 Pac. Rep. 125; Smith v. Knights, 36 Mo. App. 184; Royal Templars v. Curd, 111 111. 284. (3) The condition that, in order to be a member of the appellant benefit association the respondent must be a “mason in good standing,” is a legal and binding condition upon appellant. Connelly v. Ben. Ass’n, 20 Atl. Rep. 671. (4) A by-law which reads, on the committing of .some act, such as'nonpayment of dues, he shall cease to be a member, is self-executing, even though the “corresponding secretary” fails to strike his name from the rolls. Rood v. Ben. Ass’n,'31 Fed. Rep. 62. (5)' A certificate of membership in a beneficiary association differs from an ordinary life policy, in that, in the latter the rights are fixed by the terms of the policy, and in the former they depend upon the certificate and the rights of the member under the constitution and by-laws. Ben. Society v. Burhhart, 110 Ind. 192; West v. Grand Lodge, 29 Pac. Rep. 6. (6) The charter of a corporation is its fundamental law; it designates the main objects for which the corporation was formed, and determines the rights and liabilities of its members. By-laws calculated to assist in carrying into effect the purposes of the corporation are valid, and are but the means of execution of charter rights. 1 Morawetz on Corp., sec. 494; JErdman v. Ins. Go., 44 Wis. 376.</p>

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1)' A demand of the state for taxes, due prior to death, may be exhibited and allowed against an estate in the probate court and by that court classified under clause 3 of section 183, Bevised Statutes, 1889, as a demand against the estate. State ex rel. v. Donaldson, 28 Mo. App. 190. (2) The same rule is applied by this 'court as to taxes which are wholly assessed and accrue after death.

Mcmda/mus. (1) The words “such road” used in section 7725 include side tracks. Section 7725 refers back to section 7718, and requires that the board apportion the aggregate value of all property hereinbefore specified, to each county, etc., in which such road is located, according to the ratio which the number of miles of such road completed in such county, shall bear to the whole length .of such road in the state.