Volume 163 — Missouri Reports

<p>1. Conditional Deed to Uailroad: circumstances: uses. Opposite the eastern terminus of a railroad on the Mississippi river was a prosperous town in Illinois. The railroad had no bridge to span the river, and the western bank for three miles wa3 owned by defendant’s grantor, who also owned a ferry, with facilities for the transfer of passengers and freight, and who was deeply interested in not having a rival ferry established, and in securing the carriage of passengers and freight to the Illinois town. Therefore, he deeded the land in suit to the railroad company upon the continuing consideration that the company would “locate, construct and operate a railroad over and across” his lands, and providing that the lands “are conveyed strictly and exclusively for the railroad uses of the company, and for no other uses and purposes whatsoever,” and the company was further forbidden to sell or lease any part of the land or build any structure thereon except such as were necessary and appropriate for railroad business alone. Held, that this deed did not convey an absolute unconditional title, and the railroad company having ceased to use the land for the purpose named in the grant, could not recover it in ejectment against a subsequent grantee of the ferryman.</p> <p>2. -: abandonment: uses: forfeituee. Because the railroad company has not entirely abandoned the track on the land granted, it does not follow that the title has not reverted because of an abandonment of the use. Where the company has unequivocally abandoned every and all use of the property which was in any degree beneficial to the grantor in the deed, or to his assigns, and thus the considerations upon which he granted the land ceased and the limitation upon which the company obtained the use thereof determined, the use and estate itself ceased, and the title reverted to the grantor, and as he was in possession, he was not required to re-enter or bring an action to declare a forfeiture.</p> <p>3. -: uses: contemporaneous construction. The deed conveyed certain lands to a railroad company in consideration that the company would use no other ferry for its passengers and freight across the river, but would turn over to the grantor’s ferry all passengers and freight, without any limit as to time. This was done for ten years, but about 1868 the company built a bridge across the river above the ferry, and thereafter ceased to use the ferry, and ceased to use its tracks on the land to carry freight and passengers to the ferry, and when a lumber company applied to the superintendent of the railroad to lease the land, its representative was by him sent to the grantor in the deed, and with full knowledge apd consent of the railroad company the grantor leased the land for ten years to the lumber company, and it bought the depot and warehouses of the railroad thereon, and used them in its lumber business, and when its lease expired the grantor bought said buildings of the lumber company, and went into actual possession, and rented said houses to various tenants, and he and his grantees have remained in possession ever since. Held, that the contemporaneous construction put upon the deed by the parties themselves was that it was only intended to grant to the railroad company an easement over the land so long as it continued to- maintain and operate a railroad for the carriage of passengers and freight to and by way of the grantor’s ferry, and the railroad company having ceased to operate and maintain the railroad, the use and easement ceased, and the title reverted to the grantor, and by his deed to his grantees.</p>

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) That the verdict is excessive is not one of the grounds for a new trial found in defendant’s motion. It was, however, argued orally and in defendant’s brief, almost to the exclusion of any other point, and the court, of its own motion, sustained the same, but at a subsequent term.

— Hon. W. IF. Rucker, J udge. (1) “A widow is not dowable of land in wbicb her husband has only a vested remainder expectant upon an estate for life.” There was no seizin of the lands in the remainderman, he having died during the lifetime of his mother, who had a freehold of the land in her life estate. 4 Kent Com., sec. 40; 10 Am. and Eng. Eney. of Law (2 Ed.), p. 134; 1 Bishop on Married Women, secs. 250, 273, 277; 1 Washburn on Real Prop.

Louis City Circuit Court. — Ron. D. D. Fisher, Judge. (1) Tbe return to exofficio informations, such, as this, must either disclaim or justify. The State is under no obligation, in the first instance, to aver anything, except in the most general terms; nor to show anything, notwithstanding it may have undertaken to specify the grounds upon which it proceeds.

Transferred from St. Louis Court of Appeals. Notwithstanding 'the gate in controversy may not have been a statutory gate, yet, as the evidence disclosed that the gate was shut and securely fastened at six o’clock on the evening preceding the accident, and that the stock escaped upon the right of way sometime during the succeeding night, by reason of the gate being left open by some third person, there is no liability on the part of the defendant.

Louis City Circuit Court. — Hon. Jacob KleinJudge. (1) The law does not warrant any intervention and defense by Thompson and Richardson, or either of them, upon the record in this case.

— Hon. J. D. Perkins, . J udge. The question to be determined in tbe case is this: Has a building and loan association, organized under tbe laws of this State, tbe power to sell and assign its notes or bonds executed by members for loans ? A building and loan association, within limitations, has power to sell and assign its notes and bonds. 4 Am. and Eng. Ency. of Law (2 Ed.), p. 1018.

<p>Appeal: nonsuit: bill of exceptions. A refusal to set aside a nonsuit will not be reviewed on appeal unless preserved by a bill of exceptions. Recitals in a record, made by the clerk, can not perform the functions nor do the office of a bill of exceptions; the latter is the only repository for placing in cold storage mere matters of exception.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) If all that plaintiffs contend for be conceded, tbe decree is erroneous. They can not disaffirm the contract for tbe alleged fraud, keep what- they received under tbe contract, and rescind as to the payments they agreed to make. One who would rescind a contract must put or offer to put the other party in statu quo. Eobinson v. Siple, 129 Mo. 208.

Louis City Circuit Court. — Hon. Belden P. Spencer, Judge. (1) The trust deed of Isaac Drake McDowell of twentyeigbth of February, 1853, expressly reserved to bimself a life estate as one of “the children of the joint bodies of the said Joseph N. McDowell and the said Amanda V. McDowell,” and the remainder in fee after the death of said children vested in the heirs of the grantor, the plaintiff in this case. Freeman on Co-Tenancy, sec. 110; Pratt v. Mining Co., 24 Fed.

— Son. W. W. Bucher, Judge. (1) The letters written by Coda M. Elliott to Reuben Winfree, offered in evidence, were competent and material testimony under the issues raised by the pleadings, as tending to establish the allegations of a fraudulent purpose in taking out the policy of insurance sued upon, in contemplation of suicide. Whitmore v. Supreme Lodge, 100 Mo. 48; Ins. Co. v. Armstrong, 117 U. S. 598.

— Hon. G. A. Anthony, Judge. (1) Tbe evidence was not sufficiently clear, cogent and convincing to overcome tbe certificate of acknowledgement of tbe notary public of tbe deed of trust. Webb v. Webb, 87 Mo. 540; Eust v. Goff, 94 Mo. 511; Comings v. Leedy, 114 Mo. 454.

<p>Bill of Exceptions: extensions: no record of filing. There must be an entry of record to make a bill of exceptions filed in term time a part of the record. Appellant was granted “until and during the June term 1898” of the court of Linneus to file a bill of exceptions and on the bill of exceptions, signed by the judge, were the words: “Piled at Linneus, June 10, 1898, Joe A. Neal, Clerk.” But there was no entry on the records of the court showing that the bill had been filed. The term began on June 6, 1898, and continued in session to June 15. Held, that under these facts the bill of exceptions could not be considered. Nor does the Act of 1885 'and subsequent acts affect the authority of previous decisions holding that the filing of a bill of exceptions filed in term time must be evidenced by the court records.</p>

Transferred from Kansas City Court of Appeals. (1) Tbe temporary writ of injunction was void and tbe whole proceedings invalidated for tbe reason that tbe temporary writ was granted on an application or petition neither signed nbr verified. (2) Injunction will not lie to restrain a road overseer from tearing down and removing a fence in obedience to lawful order of county court. Eailroad v. Maddox, 92 Mo. 469; Hammerslough v. City of Kansas, 57 Mo. 219; Taylor v. Todd, 48 Mo.

<p>Appellate Jurisdiction: drainage: statute. In a suit brought under the Missouri drainage law, to ascertain the damages defendant would suffer by the digging of a drainage ditch through his land for draining plaintiff’s land for agricultural purposes, resulting in a judgment of $25 for defendant, the appeal is to the Court of Appeals, unless title to real estate or a constitutional question is involved.</p>

— Hon. Jos. D. Perkins, Judge. (1) “Where a landowner stands by and permits a railroad to go to the expense of constructing its road through his land and run its trains over it and acquiesces thereto, even though he may not have given his express consent, this will create an implied license on the part of the railroad, which the landowner can not subsequently revoke and he will be estopped from maintaining ejectment.” Provolt v. Railroad, 57 Mo. 256; Baker v. Railroad, 57…

— Hon. J. H. Slover, Judge. (1) The estate having been settled up and executor discharged, plaintiff has no remedy at law and could not and can not bring an action at law. Humphreys v. Atlanta Milling Co., 98 Mo. 549; Bank v. Leyser, 116 Mo. 11; Turner v. Adams, 46 Mo. 99; Merry v. Freman, 44 Mo. 518; Alnut v. Loper, 48 Mo. 319; Iron Co. v. McDonald, 61 Mo. App. 567. (2) Where the State or a county has no legal remedy it can sue in equity to enforce payment of taxes.

<p>Appeal from Jackson Criminal Court. — Hon. Jno. W. Wofford, Judge.</p> <p>(1) The appellant was not a physician. E. S. 1899, sec. 8515; Bout. Law Diet., tit, “Physician”; Wheeler v. Sawyer, 15 Atl. Eep. 67; Smith v. Lane, 24 Hun (N. Y.), 632; State v. Mylod, 40 Atl. Eep. (E. I.), 753. (2) Appellant’s conviction was in violation of the Constitution of this State. Constitution, art. 2, sec. 5; Eeynolds v. United States, 98 U. S. 142; Law Notes, Editorial, November, 1898; 47 Cent. Law Journal, 285.</p> <p>(1) The appellant is a physician. E. S. 1899, sec. 8515; 2 Eapalje and Lawrence’s Law Dictionary, p. 961, tit. “Physician”; Wharton’s Law Dictionary, p. 511, tit. “Physician”; Davidson v. Pohlman, 37 Mo. App. 576; Hewitt v. Cherrier, 16 Pick. 353; Bibber v. Simpson, 59 Me. 191; Nelson v. Barrington, 72 Wis. 591; State v. Buswell, 40 Neb. 158. (2) Appellant’s contention that her conviction was in violation of the Constitution of Missouri is not borne out by the facts. Constitution, art. 2, sec. 5; State v. Bus-well, 40 Neb. 158.</p>

'Appeal from Atcbison Circuit Court. — Hon. O. A. Anthony, J udge; (1) The motion to strike out that part of the answer enclosed in brackets should have been sustained. That part of the answer constituted no defense whatever. The money assessed by the commissioners was for right of way and not for the privilege of damming the water on the plaintiff’s land and making a stagnant pool of the river.

— Hon. Jas. H. Lay, Judge. (1) Peter E. Genoway’s acknowledgment of deed dated December 27, 1865, before a justice of tbe peace in Ohio, was a nullity as to appellant. Bisbop v. Schneider, 46 Mo. 480; Bagby v. Emerson, 79 Mo. 139. Said instrument so acknowledged failed in the requisites of admission to record. There was no law authorizing it to be recorded.

— Hon. D. P. Stratton, Judge. (1) The burden of proof is always on the party holding the affirmative of the issue. It was therefore error to give instruction 5.

— Eon. L. B. Woodside, Judge. The only evidence in this case concerning the expenses of the city government for 1897 was the testimony of clerk Stebbins.

— Ron. L. B. Woodside, , Judge. (1) In all equity and good conscience, defendant city ■of Lebanon by its acts should be estopped from setting up that the contract of rental of hydrants was invalid.

Louis City Circuit Court. — Eon. Belden P. Spencer, Judge. (1) This appeal is prosecuted directly to this court as involving the construction of the Constitution. Constitution, art. 6, sec. 12; Amend. 1884, sec. 5. (2) The trial court exceeded its jurisdiction, and usurped the province of the statutory commission. R. S. 1889, sec. 1825; Lindell’s Adm’r v. Railroad, 36 Mo. 545; Koch v. Water Co., 65 Pa.

Louis City Circuit Court. — lion. Selden P. Spencer, Judge. A notary public who falsely certifies that he is personally acquainted with the grantor in a deed, whom he does not kuow, and who is personated by another, is liable to all persons damaged by such false certificate. It will not avail anything for the notary to say he was not aware of its falsity, or that he believed it to be true. It is his duty to know it to be true. State to use v. Meyer, 2 Mo.

Louis City Circuit Court. — Hon. L. B. yalliant, Judge. (1) The right to a homestead and homestead succession depend in this State entirely upon statutory provisions. Eichter v. Bonsack, 144 Mo. 518; Keyte v. Peery, 25 Mo. App. 394; Thoms v. Thoms, 57 Miss. 263. (2) The statute only gives a homestead by succession when it is owned by the husband. The statute nowhere gives a homestead by succession to the minor children of a widow in property owned by her.

— Hon. E. L. Scarritt, Judge. (1) Tbis proceeding is founded upon sections 4343 and 4344, Revised Statutes 1899. Held: that the application under this statute must be made within a reasonable time and that the application made within four months after the sale, was not in time. Updike v. Merchants, 96 Mo. 160.

— Hon. W. W. Rucker, Judge. The testimony of plaintiff, Warren McCullough, as to the profits on the material sold by defendant was incompetent and should have been excluded by the referee. His cross-examination shows that all he knew about the profits was what his deceased partner, Knight, had told him, and the referee erred in sustaining plaintiff’s objections to the cross-examination showing its incompetency. Elynn v. Wahl, 10 Mo. App. 582; Hoskins v. Eailroad, 19 Mo.

<p>1. RTegligence: reasonably safe place: construction. The rule which requires the master to furnish his servant a reasonably safe place to work, does not apply in its entirety to servants employed in the construction or ballasting of railroad yards. But before this exception can be invoked it must be shown that the injured servant was in some way connected with such construction. If plaintiff’s injury was traceable to the ballasting of the tracks in the switch yards, with which he had nothing to do, directly or indirectly, but was a brakeman upon a regular freight train, and if the place where he was injured was not a reasonably safe place to work under the circumstances, and he was injured by reason thereof, he was entitled to recover for such injuries, unless he was guilty of negligence which contributed to his injury.</p> <p>2. -: -: ASSUMPTION OP risk. When a servant has full knowledge of the dangers of his situation, and accepts it, he assumes such risks as are incident to the discharge of his employment, and if he is subsequently injured by such risks, he will not be entitled to recover damages for such injuries unless the risks were not so dangerous as to threaten immediate injury, or if he might have reasonably supposed that he could safely work about it by the use of care or caution.</p> <p>3. -: -: ballasting tracks: switchman. Ballast, consisting of dirt, rock and sand piled up between tracks of a switch yard, to an elevation of eight or ten inches above- the rails, at places made level, but further on left in piles with lower intervening spaces, made the space between the tracks unsafe for a. switchman engaged in disposing of the cars of a regular train in the switch yard. And the railroad was guilty of negligence in leaving this ballast so piled up for two weeks without levelling it down and spreading it out. Two weeks are longer than a reasonable length of time in which to do such work.</p> <p>4. -: -: - — : expert witnesses. In such case the jurors are just as competent to determine whether or not the ground in the switch yard was in a proper condition to make it a reasonably safe place for a switchman to work thereon or try to mount a moving train therefrom, as witnesses would be, and therefore, expert testimony is not admissible to prove that the space between the tracks was not in a reasonably safe condition. But the admission of such evidence on the part of the injured servant is not prejudicial if the master maintained the unsafe condition after it become his duty to repair it.</p> <p>5. —---—: -: contributory negligence. The plaintiff, an experienced brakeman, had assisted in placing all the cars of a regular train on their proper tracks in a divisional yard except the caboose. He was walking along by the side of the track ' where were piled dirt, stones and sand, eight or ten inches above the rails, to be used in ballasting. This material had been there in this condition long enough for it to be negligent for the company to permit it to so remain. Seeing the engine and caboose, which were approaching a few hundred feet away at the rate of six miles an hour, beginning to slow up for the purpose of taking him on, he signaled the brakeman on the caboose to go ahead and this signal was communicated to the engineer, and as the train reached him he caught hold of both handholds of the caboose, and placed his left foot upon the lower step of its platform, and took two or three steps with the other foot to gain the motion of the train before swinging up, when that foot struck a stone, which rolled under his foot, breaking his hold on the rods, and the ground being sloping toward the track, this foot slid under the car, resulting in the injury. The rules of the road forbade employees to board ears “while in too rapid motion,” thus by implication permitting them to do so when they were not so running. But plaintiff had control of the train and might have stopped it, or caused it to slow up, to take him on, and there was no occasion for any unusual haste, for all that remained to be done for the time being was the placing of the caboose on the proper track. Held, that plaintiff having assumed the dangerous course, when there was a safe one open to him, is guilty of contributory negligence and can not recover.</p>

— Hon. J. C. Lamson, Judge. (1) If, as appellant maintains in this cause, the defendant was not entitled to hold the land in question exempt from execution and sale, as a homestead, as against appellant’s debt, then the failure of the sheriff to notify defendant of his homestead rights and exemptions or appraise the property, did not vitiate such levy. Shindler v. Givens, 63 Mo. 894.

<p>The issues in this case being the same as those involved in Simpson v. Erisner, 155 Mo. 157, this ease is reversed upon the authority of that ease.</p>

Transferred from Kansas City Court of Appeals. Held: in Brick Works v. Thompson, 59 Mo. App. 101. And both divisions of this court recently. Long v. Martin, 152 Mo. 674; Smith v. Wilson, 160 Mo. 656.

— Hon. J. 0. Lamson, Judge. (1) (a) The court erred in abandoning its previous order requiring definite statement of facts by plaintiff’s petition and in overruling appellant’s motion to strike out respondent’s second amended petition.

— Hon. L. B. Woodside, Judge. (1) The existence of the deed from plaintiff Estes to E. M. Mansfield, being a latent matter of fact unknown to the court and to defendants, the motion in the nature of a writ of eror coram nobis, lies. Marble v. Vanhorn, 53 Mo. App. 361.; Dugan v. Scott, 37 Mo.

<p>Appeal from Carroll Circuit Court. — Hon. W. W. Bucher, Judge.</p>

— Hon. G. T). Corum, Special Judge. (1) Carpenter v. McDavitt, 53 Mo. App. 393, is identical with the case at bar, and for the reasons in that opinion, this case ought to be reversed, because of failure of court to properly instruct the jury as to the rule by which to assess damage. Commencing at-page 402, the opinion settles this case. See cases in opinion cited.

<p>Appeal from Daviess Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

<p>1. Conveyances: use of “grant, bargain and sell:” context. The tenure of lands is not dependent upon the technical meaning of certain words without regard to the context and the circumstances of their use. The intention is to be gathered from the whole instrument. An instrument which “granted, bargained and sold” certain lands upon condition that the party of the second part pay $500 in cash on a certain day and at the same time execute three notes payable in one, two and three years, for the balance of the purchase price, and obligated the parties of the first part “upon the payment of said cash and notes” to deliver “a good and perfect warrantee deed and thereby convey the fee simple title,” is not a deed, but' simply an option, of which time was of the essence. And the conditions not being complied with, the parties of the second part took nothing thereby.</p> <p>2. Contract to Purchase Land: repudiation: assignment. One who obtains a contract from a party to an option to purchase land who has repudiated it, stands in no better position than such party. Such assignee, in an attempt to juggle with such repudiated contract for his own private gain, will be dismissed in an equity court.</p> <p>3. Foreign Corporation: right to sue in this state. A foreign corporation which has not paid its taxes and received a license to do business in this State, can not maintain a suit in the courts of this State to quiet title to land.</p>

— Son. Jos. D. Perkins, Judge. (1) “Dowry” and “dower” are synonymous, and applied to real estate, at common law and under our statute always mean a life estate in one-third of the land of which deceased was seized, which goes to his wife. It does not apply to other than the wife. 10 Am. and Eng. Ency.

Louis City Circuit Court. — Son. Jas. E. Withrow, Judge. (1) The ruling of the referee excluding evidence as to the third counterclaim set up by defendant, on the theory of a compromise or forgiveness of such counterclaim, or a mutual discharge and release of alleged countersuits between appellant and Greimer, was clearly erroneous. Defendant had well pleaded this third counterclaim in his answer. The plaintiff in his reply had simply pleaded a general denial.

— Hon. W. W. Puncher, Judge. (1) The only means of identifying and locating the land conveyed in the said deed from Turner and wife to plaintiff, is the description contained in the deed. If the description be so indefinite as to render the identity of the land wholly uncertain, then the deed is void. Hardy v. Matthews, 38 Mo. 121; Jennings v. Brizeadine, 44 Mo. 332; Campbell v. Johnson, 44 Mo. 249; Nelson v. Brodhack, 44 Mo. 603; Ford v. Unity Church Society, 120 Mo. 505.

Transferred from St. Louis Court of Appeals. (1) The conveyance in question made to appellant Walther was lawful and valid. Alburger v. Rank, 123 Mo. 313; Poster v. Planing Mill Co., 92 Mo. 79. (2) The relationship between respondent and the St. Louis Sheet Metal Ornament Company in its inception even, was that of debtor and creditor, not trustee and ceslui que trust. Schierenberg v. Stephens, 32 Mo. App. 314; Ileane v. Beard, 11 Mo.

<p>1. negligence: fraud: forgery: travelling on another’s mileage-book: trespasser. Plaintiff while travelling in a caboose car was injured by a derailment of the car caused by the falling of a brake-beam on the next forward car. Defendant denied plaintiff’s right to recover on the ground that he had been guilty of fraud and forgery, consisting in the presentation of a non-negotiable mileage-book issued to another, and in writing, in a handwriting similar to his, the name of such other on the part detached by the conductor. Held, that there was no forgery in the case because the person to whom the mileage-book was issued authorized the plaintiff to sign his name thereon; and the fraud was eliminated from the case by the dismissal of his first count which was predicated upon the relation of passenger and carrier, and by the submission of the case to the jury upon instructions asked by both parties which declared that plaintiff was a trespasser.</p> <p>2. ---: TRESPASSER: ORDINARY CARE: WANTONNESS: THEORY AT trial. Where both parties have tried the case in the circuit court on the theory that plaintiff was a trespasser on defendant’s ear, and that as such defendant owed him ordinary care to prevent the injuries to him after it knew of his peril, the appellate court will not consider whether a carrier’s liability to a trespasser, in ease of accident, is limited to willful or wanton injuries or extends to injuries caused by a want of ordinary care, for the case must be disposed of in the appellate court on the same theory upon which it was tried below.</p> <p>3. -: -: -: -: -- — : DEMURRER: WAIVER. Where the railroad offered a demurrer to the evidence, and that being overruled, it asked an instruction, which the court gave, directing that the defendant carrier was liable to ordinary care toward plaintiff since he was a trespasser on its train, it waived the right to invoke such demurrer as raising the point that the carrier’s liability is limited to willful or wanton injury.</p> <p>4. -: allegations: instructions. In a suit by a trespasser for injuries received by the derailment of a caboose caused by the falling of a brake-beam from the next forward car, where the only negligence charged is the failure to use ordinary care to stop the train or to detach the caboose from the train after the danger was known and the peril was imminent, instructions which proceed on the theory that some claim is set up because defendant had not furnished safe machinery, or had not properly inspected the car, or that. plaintiff jumped from the ear because the conductor ordered him to do so, and was thereby caught under the falling car, should all be refused, because foreign to the issues.</p> <p>5. -: -: SUPPORTED BY EVIDENCE; MATTER FOR JURY. And where the allegations of negligence are that the carrier failed to use ordinary care to stop the train or to detach from the train the caboose in which plaintiff trespasser was riding, after the danger was known and the peril imminent, and there is a conflict of evidence as- to whether the caboose could have been detached in time to have avoided the injury, no attempt being made by the trainmen to do so, although they were requested by plaintiff and others, to try, the appellate court will not review the finding of fact, the verdict being supported by substantial evidence.</p> <p>6. -: DANGER ANTICIPATED: STOPPING TRAIN: SIGNALS. The train could have been stopped in a hundred yards and the conductor, having discovered that the break-beam on a forward car had fallen, anticipated an accident when the caboose reached the switch near a town, which was yet more than four hundred yards ahead, and thereupon gave either a stop signal or an emergency signal to the engineer. Held, that if he did not give the emergency signal he was guilty of negligence, and if he did and the engineer did not obey it, he was guilty of negligence. In either case the carrier did not exercise ordinary care to prevent the accident after it knew of the danger and that the peril was imminent.</p> <p>7. Practice: surprise: continuance: costs. In a case where defendant is entitled to a continuance on filing an affidavit of surprise, it is improper to impose on him, as a price of the continuance, that he shall pay the costs.</p> <p>8. -: -: AMENDING petition. Where the petition charged negligence in general terms, and after all the evidence has been admitted without any objection that it did not state a cause of ■ action, defendant is not entitled to a continuance upon filing an affidavit of surprise, on the ground that the court permitted plaintiff to amend his petition so as to limit the issues to specific acts of negligence.</p> <p>9. -: NEW TRIAL: SUPPLEMENTAL MOTION AFTER FOUR DATS. Where -the motion for a new trial was filed within four days, and afterwards during the same term a supplemental motion was filed asking leave to amend, the former motion on the ground of newly-discovered evidence, the application being supported by affidavits, the supplemental motion, not having been made within four days, should have been denied.</p> <p>10. ÜTegligence: damages: medical services. Where a physician, who had treated plaintiff, testified that his services were reasonably worth two hundred dollars, it is not error to instruct the jury, in estimating plaintiff’s damages to take into consideration his necessary expenses for medical attention in endeavoring to be cured.</p> <p>11. -: STIPULATION IN TICKET: TRESPASSER: INCONSISTENT DEFENSES. The defense that the carrier is released from liability because plaintiff was riding on a mileage-book which contained an express release from liability for accidents received while travelling on freight trains, is inconsistent with the theory that plaintiff was a trespasser, and hence, is not available to defendant if it has requested and obtained an instruction which told the jury that plaintiff was a trespasser.</p>

'Appeal from St. Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The domicile of the deceased, from the moment of her marriage, was in the State of New York The term “Domicile” as of married women, or in other words, matrimonial domicile, may mean: Eirst. The actual home of the man at the time of the marriage. Dicey Dom., pp. 42, 44, 331, discussed in Stewart, M. & D., pars. 222, 223. Second. The intended joint home of the man and woman at the time of the marriage.

— Hon, C. B. Crawley Special Judge. The special judge who tried this case had no jurisdiction; the regular judge was not disqualified, and the record shows his presence, and at all times holding court. Bank v. Graham, 147 Mo. 250. Record states that the special judge qualified. Sections 1679 and 1683, Revised Statutes 1899, authorizes the parties to the suit to agree on a special judge.

— Hon. Ohas..Q. Burton, Special Judge. (1) Sections 305, 5329, 5330 and 5331, Revised Statutes of 1889, are void and unconstitutional as to these sureties, as being in contravention of section 30, article 2, of the Constitution of Missouri in that the sureties are sought to be held conclusively bound by judicial proceedings of which they had no notice. Jones v. Yore, 142 Mo. 38.

— Hon. Wm. 8. Herndon, Judge. (1) It is not necessary to file in the circuit clerk’s office a transcript of all the entries in the docket of a justice of the peace. It is only necessary to file a transcript of the judgment rendered by the justice of the peace. E. S. 1889, sec. 6286; Eranse v. Owens, 25 Mo. 329. Eecital in justice’s docket of immaterial matters is of no consequence. Nickey v. Lumber Co., 75 Mo. App. 54.

— Hon. D. H. Eby, Judge. (1) “A conveyance of real estate in fee simple to husband and wife creates a tenancy by the entirety with the right of survivorship.” Garner v. Jones, 52 Mo. 68; Beauchamp v. Shrader, 52 Mo. 72; Hall v. Stephens, 65 Mo. 670. (2) The married woman’s act of 1875, now section 4340, Revised Statutes 1899, does not apply. Leete v. Bank, 115 Mo. 184; Leete v. Bank, 141 Mo. 574. We do not think the ease of Winn v. Riley, 151 Mo. 61, the law in this case.

Transferred from Kansas City Court of Appeals. (1) Conceding the ordinance to provide for two classes of persons, those persons .having a place of business, and those persons going from place to place, the ordinance is then unconstitutional and void and in violation of the interstate commerce laws. Asher v. Texas, 128 IT. S. 129; Robbin v. S. T. Dist., 120 IT. S. 489; Leloup v. Post of Mobile, 127 IT. S. 640; Carson v. Maryland, 120 U. S. 502.

<p>'Appellate Jurisdiction: conflict nr opinions. Before the Supreme Court can obtain jurisdiction of a cause transferred to it by a Court of Appeals, on the ground that the decision of. the said Court of Appeals is in conflict with a decision by the other Court of Appeals, it must appear from the record that a decision was rendered in said Court of Appeals at the same term the cause was transferred to this court. If the decision was made at a previous term, it can not be transferred to this .court. In this case, there had been a decision in the Kansas City Court of Appeals reversing the judgment in an insurance case in which the plaintiff claimed title to the real estate on which the stores burned were situated, and the point of ownership being disputed the cause was transferred to this court on the ground that title to real estate was involved, and this court rendered an opinion holding that title to real estate was not involved and returned the cause to the Court of Appeals, and when it reached there the court, without docketing the same or rendering any opinion or other decision, made an order transferring the ease again to this court on the ground that “such decisions are opposed to that of the St. Louis Court of Appeals in Bank v. Woesten, 76 Mo. App. 155.” Meld, that this court, by such order, acquired no jurisdiction of the cause, since the Constitution declares that the transfer can be made at “the same term and not afterwards” at which a decision was rendered “which one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals or of the Supreme Court.”</p>

<p>Transferred to the Kansas city Court of Arrears for THE REASONS GIVEN IN BRADLEY V. MILWAUKEE MECHANICS Insurance Company, rage 555, this volume.</p>

— Hon. Reuben F. Roy, Judge. (1) There was no contract between William H. Pritchett and Mary E. Pritchett and A. J. Geary for the conveyance of the land in controversy to A. J. Geary. No consideration ever passed from the said Geary to the said Pritchetts, for the making of said deed. The deed was therefore void, and conveyed no interest of the Pritchetts to the said Geary. Of this fact the respondents had due notice, and are not innocent purchasers.

— Hon. D. W. Shaclcleford, Judge. (1) In equity proceedings, the appellate court will review the evidence offered in the trial court. Beck v. Poland, 55 Mo. 26; Morey v. Staley, 54 Mo. 419. (2) The evidence is wholly insufficient to warrant or sustain the finding of the court. Evidence to establish a resulting trust must be so clear, strong and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the trust.

— lion. Thos. J. Porter, Special Judge. (1) The judgment sued upon had become dormant by lapse of time and had not been revived. Secs. 155 and 139, ch. 95, Gen. Stat. Kan. 1897; secs. 125, 126, 127, 128, 132 and 133, ch. 95, Gen. Stat. Kan. 1897. A dormant judgment is not merely one upon which the right to issue execution has expired. It is dead and of no force. Its life is.gone; its effectiveness has expired.

<p>1. Limitations: when available. The sole purpose of the statute of limitations, by its very language, is to bar actions, and not to suppress or deny matters of defense, whether equitable or legal, and that is the rule even when the equitable defense (as in ejectment) is accompanied by a prayer for affirmative relief. A meritorious defense is not barred by limitation.</p> <p>2. Statute of Frauds: resulting and implied trusts. Resulting trusts, or those arising by operation of law, are not within the statute of frauds.</p> <p>3. -: parol agreement: PERFORMANCE. The performance of a parol agreement which creates a resulting trust in land, operates to take the agreement out of the statute of frauds.</p> <p>4. -: -: partition: co-tenancy. An answer to a petition in ejectment which pleads that the defendant, being the owner of a two-thirds interest in the land in suit, agreed with plaintiffs’ ancestor that he would pay the costs of the partition suit then pending and plaintiffs’ ancestor was to buy, in the land at the sheriff’s sale, take the deed to himself, and hold the title in trust 'for himself and defendant as co-tenants, and that all this was done, and that defendant and such ancestor until his death were in possession as co-tenants, and since his demise he had been in possession for himself and the plaintiffs, pleads a good defense, and does not set up an agreement which is void as being a parol contract for an interest in land in conflict with the statute of frauds, but the paying of the costs established a resulting trust in the land in defendant to that extent, and resulting trusts do not fall within the penalties of the statute; and besides, if the other conditions of the agreement were performed as alleged, the agreement, whether establishing a resulting trust or not, was relieved from the operation of the statute.</p>

Louis County Circuit Court. — Hon. Rudolph, Hirzel, Judge. (1) Tbe petition on wbicb this suit is founded does not state facts sufficient to constitute a cause of action. It is not a defective statement of a good cause of action, which would be cured by a judgment, but is fatally defective. There is no •allegation of negligence on the part of defendant.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The allegations of the petition show that a court of equity is without jurisdiction, and notwithstanding their allegation to the contrary, they have a plain, adequate and complete remedy at law. R. S. 1889, sec. 7; secs. 7078, 7084, 7085, 1993, 2207, 7085. Where a statutory remedy exists, equity will not interfere or assume jurisdiction. Schlector’s App., 60 Pa. St. 155.

Louis City Circuit Court. — Son. Jas. E. Withrow, Judge. (1) Section 1275 of the revised ordinances of the city of St. Louis was properly admitted in evidence, (a) Because the defendant agreed that the city plight regulate the manner of running defendant’s cars, and section 1275 is made by section 1274 binding upon all street railway corporations doing business in the city. Schmidt v. Eailroad, 149 Mo. 269.

— Eon. W. W. Graves, J udge. (1) Sections 9833 and 9835, Revised Statutes 1899, are not unconstitutional and void. Under section 36 of article 6 of the Constitution, county courts are made courts of record and have jurisdiction to transact all county and such other business as may be prescribed by law.

Prohibition. Rule made absolute. RETURN OE CIRCUIT JUDGE. The return of the circuit judge to the provisional writ of prohibition in this case is as follows: “In the Supreme Court of Missouri. Court in Banc. April Term, 1901. “James K. Young, v. William Gr.