Volume 178 — Missouri Reports

<p>Appeals: no bill of exceptions. Where no exception is saved to the. overruling of a motion for a new trial, there is nothing for review except the record proper, and that being free from error, the judgment will be affirmed.</p>

Louis County Circuit Court . — Hon. John W. McElhinney, Judge. (1) The first four grounds of the motion for new trial are that the verdict is against the law and the evidence. The testimony of the prosecuting witness makes out a clear and strong case of rape against the defendant. This is all that is necessary to sustain the verdict. State v. Marcks, 140 Mo. 656.

— Hoot. Jno. W. Wofford, Judge. (1) (a) It is the settled law of this State that the words “release, remise and quitclaim” in a quitclaim deed are sufficient operative words of conveyance. Mc-Anaw v. Tiffin, 143 Mo. 667; Bray v. Conrad, 101 Mo. 331; Wilson v. Albert, 89 Mo. 537. (b) And the same is the law of Kansas by express statutory provision. Sec. 1204, General Statutes 1901.

(1) Instruction 1 on the part of the State was not right or fair to defendant. If told how small a penitentiary sentence could be given, why not tell how small a jail sentence could be given? Juries sometimes have “expense to county” in mind, and if they had been told they could give one day in the county jail, they might have so found. R. S. 1899, sec. 1901.

— Ho». Gallatin Craig, Judge. (1) The negative averment about a license or other authority to give away must be made, although proof thereof is matter of defense to be established by the defendant. Even under local option, one kind of license under certain circumstances is authority for giving away, and the negative averment must be made. Kelley’s Criminal Law, sec. 913; 31 Mo. 197; 19 Mo. 380; Ex parte Swan, 96 Mo. 44; State v. Williams, 38 Mo.

<p>1. Judgment: sentence in criminal case: must indicate relation to verdict. Sentence pronounced in , a criminal case constitutes the judgment. While the absence of a particular form in a judgment will not necessarily invalidate it,, yet the judgment itself must ■clearly indicate its relation to the verdict upon which it is based.</p> <p>2. -: -: VERDICT FOR DEFILEMENT: SENTENCE FOB RAPE. The information charged defendant with defiling a female confided to his care and protection. The verdict of the jury was, “guilty as charged.” The judgment recited that defendant “having been found guilty of statutory rape by jury trial as charged in the information, and his punishment assessed at five years in the penitentiary for said offense,” etc.; and the sentence was for the offense of which the judgment indicated defendant was convicted. Eeld, that such judgment and sentence were not responsive to the verdict, and the cause is remanded with directions to render judgment and sentence defendant upon the verdict as returned by the jury.</p>

— No». N. C. Riley, Judge. ■ (1) The information was filed by the prosecuting attorney upon his own knowledge, information and belief, and not upon the affidavit of any person who was a competent witness in the case as the law directs. R. S. 1899, sec. 2478. (2) It is the duty of the court in criminal cases to instruct the jury upon all phases of the case whether the instructions are requested or not.

Francois Circuit Court. — How. B. A. Anthony, Judge. “As nothing is left to intendment, the defendant is •entitled to know whether the State intends to show ownership in a firm composed of individuals or in'a corporation.” State v. Jones, 168 Mo. 402.

<p>1. Assault With Intent to Uape: information: averments. It is ' unnecessary to set out, in an information charging assault with intent to rape, details as to the manner of the assault. Where the information charges the assault, the name of the person assaulted and the felonious intent to rape, it will be held sufficient.</p> <p>2. -: instruction. An instruction in a prosecution for assault with intent to rape, which requires the jury to find that defendant not only made an assault on the prosecutrix, but that he intended to use such force as would at all hazards overcome her resistance, is proper.</p> <p>3. -: case stated. The evidence showed that defendant entered the room where the prosecutrix lay sleeping upon a bed; that he violently seized her, pinioned both of her hands with one of his, and with his other hand placed his jacket over her mouth to prevent her giving an alarm. Prosecutrix, in attempting to escape, was wounded about the face and neck, and the prints of defendant’s fingers were upon her face when parties, attracted by her screams, came to her assistance. There was no attempt at larceny or robbery. Held, sufficient to support a Verdict of guilty of assault with intent to rape.</p> <p>4. -: SEARCH OF PREMISES BY PROSECUTRIX: INTENT TO ROB. The fact that prosecutrix searched the premises after the assault and found nothing gone was competent to disprove that defendant’s purpose was to rob, but her motive for so doing cast no light on his conduct, and the trial court did not err in refusing to permit defendant to require prosecutrix to tell what led her to examine the premises.</p>

Louis City Circuit Court . — Mon. O’Neill Ryan, Judge. (.1) The court erred in excluding testimony offered by defendants to show that the note in suit was in possession of Dines on December 27, 1898, and that Trisler claimed to have bought it on December 24,1898. Defendants desired to show that Dines was the actual possessor of the note in suit, and was (in conjunction with Trisler) trying to perpetrate a fraud on defendants.

— Hon. A. D. Bumes, Judge. This land was never fenced by anyone until about 1867 or 1868. The statute was then in force at' tbe time the land was fenced, and the defendant claims title by actual possession through his grantors, and not by color of title; for his deeds do not cover the land in controversy. So before any actual possession of this strip of land had been taken, the statute had been enacted. G. S. 1865, sec. 7, p. 746.

— Row. Samuel Davis, Judge. (1) Plaintiff’s hypothetical question asked the medical expert was not based upon the evidence, and the court erred in allowing it to be answered. Turner v. Har, 114 Mo. 345; Zinn v. Railroad, 109 Mo. 142; Smith v. Railroad, 119 Mo. 246; Russ v. Railroad, 112 Mo. 45; Smart v. Kansas City, 91 Mo. App. 586; Mammersburg v. Railroad, 62 Mo. App. 563. (2) The verdict of the jury is so excessive as to show passion and prejudice.

— How. L. B. Wood-side, Judge. (1) The motion for new trial was not filed in time and was not made and filed within four days after the trial of the canse. This is mandatory. Sec. 803, R. S. 1899; Bank v. Bennett, 138 Mo. 494; State v. Maddox, 153 Mo. 471; Bank v. Porter, 148 Mo. 176; St. Joseph v. Robeson, 125 Mo. 1; Allen v. Brown, 5 Mo. 323; Malone v. Railroad, 122 Mo. 106.

(1) The court erred in refusing to give, at the request of defendants, instructions in the nature of demurrers to the evidence: (a) Because the evidence showed that plaintiff himself was guilty of negligence that directly contributed to cause his injuries. (b) Because the evidence showed that plaintiff deliberately assumed a position which was dangerous, and the dangers of which were known to him. He, therefore, assumed the risk of riding where he did.

<p>1. New Trial: appellate practice. Where in an action for damages for deceit in obtaining money, there was not that total failure of evidence in behalf of plaintiff as would have authorized the court to instruct the jury that they should And for defendant, nor the testimony so one-sided and all-convincing as to justify the Supreme Court in holding that the trial court abused its discretion in granting one new trial, the Supreme Court will not hold that the trial court erred in granting a new trial.</p> <p>2. -:---: no testimony. Where the trial court has granted one new trial on the ground that the evidence was insufficient, the appellate court will not hold that that meant there was no evidence to support the verdict, and, thereupon, proceed to review the evidence, reverse the order, and direct the trial court to enter judgment on the verdict.</p>

Louis County Circuit Court. — Roto. Jno. W. McEihinney, Judge. (1) The court erred in setting aside the nonsuit and granting plaintiff a new trial, because there was no evidence whatever of any negligence on the part of defendant.

Louis City Circuit Court.— Hon. D. D. Fisher, Judge. (1) Public policy of Missouri in the early spring of 1893 did not forbid the expenditure, in an honorable way, of money at an election for president of the city-council of St. Louis. Keating v. Hyde, 23 Mo. App. 561; 15 Am. and Eng. Ency. Law (2 Ed.), 984; State etc., v. Bland, 144 Mo. 534.

<p>1. Services Rendered Parent: question fob juey. Whether or not services rendered a badly-afflicted old man and his weak and infirm wife, by a son and his wife, who lived with him, were intended as a gratuity or were rendered under an implied contract for pay, is, upon a proper showing, a question for the jury in this State.</p> <p>2. ---:--: implied promise to pay. The owner of a farm rented it to his son, and he and his wife lived in the house on the place with the son and his wife, the son paying him money rent, and each family furnishing half the family supplies. As the result of an accident the father became a cripple for life, and thereafter suffered with his kidneys and bowels, so that he had to be attended to as if he were a little child, and the daughter-in-law for eleven years rendered him faithful and efficient service, his wife being weak, sick and unable to serve him. Held, that the relation of the parties did not make them members of the same family, and takes the case out of the rule that services rendered another by a child or a member of his family are presumed to be gratuitous, and it was a question for the jury to decide whether or not the services were intended to be gratuitous or were rendered under an implied promise of remuneration.</p> <p>3. --: -: -: evidence. Eleven years after the services were begun, the deceased executed a paper in which he expressed his “will and wish” that his son and his wife “be paid a ' reasonable sum óf money from my estate for their kind and considerate care and attention to me during my last years of life, and also for the care and attention to my beloved wife.” Held, admissible in evidence in a suit against his administrator by the daughter-in-law for compensation for such services, not as showing an express contract, but as bearing on the intention of the deceased, and upon the question of whether the services were rendered gratuitously or under an implied promise for remuneration. Nor is such paper incompetent because it was executed after the bulk of such services had been rendered.</p> <p>4. ---: pasties. Where the services were rendered by a daughter-in-law, she alone is the proper party plaintiff, and her husband should no.t be joined.</p>

— Ho». Frank B. Dealing, Judge. (1) It is only where there is substantial conflict in the evidence that the appellate court will not review the action of the trial court in granting a new trial, because the verdict is against the evidence or the weight of the evidence. Bank v. Wood, 124 Mo. 77; Havens v. Railroad, 155 Mo. 216; Herndon v. Lewis, 74 S. W. 976.

Charles Circuit Court. — Ho». E. M. Hughes, Judge; (1) The act of the Legislature approved March '2, 1895 (Laws 1895, p. 169) is in every particular constitutional and valid; and under it appellant is entitled to all that he contends for in this case. O ’Brien v. Ash, 169 Mo. 283. (2) The ruling of this court in O ’Brien v. Ash, supra, concerning the sufficiency of title of said Act of 1895, is in harmony with its earlier rulings, covering a period of many years.

— Ho». Jas. H. Slover, Judge. (1) The court erred in admitting incompetent evidence, namely, that of an alleged expert, as to distance in which a train could he stopped. Maher v. Railroad, 64 Mo. 276; Mammerberg v. Railroad, 62 Mo. App. 567; Senn v. Railroad, 108 Mo. 150; Turner v. Hoar, 114 Mo. 335; Benjamin v. Railroad, 50 Mo. App. 602; Culbertson v. Railroad, 140 Mo. 59; Ruschenberg v. Railroad, 161 Mo. 81.

<p>Mandamus.</p> <p>(1) Section 8 of article 12 . of tbe Constitution of Missouri, is merely directory, and is not mandatory, as are also sections 962 and 1328, Revised Statutes 1899. Riesterer v. Horton Land & Lumber Co., 160 Mo. 141; People v. Supervisors of Cbenango, 8 N. Y. 328; Miller v. State, 3 Ohio St. 475; Pirn v. Nicholson, 6 Ohio St. 177; Hill v. Boyland, 40 Miss. 618; McPherson v. Lanard, 29 Md. 377; Rex v. Loxdale, 1 Bur. 447; State v. Matthews, 88 Mo. 121; State v. Gleason, 88 Mo. 582. (2) Said section of the Constitution is solely for the benefit of the stockholders, and the public have no-interest in it. Riesterer v. Horton Land & Lumber Co., 160 Mo. 141. (3) When a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. The maxim quilibit potest renunciare juri pro se introducto, applies as well to constitutional law as to any other law. Cooley on Constitutional Limitations, pp. 214, 762; Baker v. Braham, 6 Hill 47; Lee v. Tillotson, 24 Wend. 337; In the Matter of Albany St., 11 Wend. 149; Brown v. Worcester, 13 Gray 31; State v. Mansfield, 41 Mo. 471; Sappington v. Elrod, 9 Mo. App. 581; 6 Am. and Eng. Ency. Law (2 Ed.), pp. 6, 998; Embury v. Conner, 3 N. Y. 511.</p>

Habeas Corpus. (1) The Act of March 23, 1903, offends the organic law, in this: It is a “local law,” enacted to partly repeal ‘‘a general law.” “Nor shall the General Assembly indirectly enact such special or local law by the partial repeal of a general law.” Art. 4, sec. 53, Constitution; State v. Buchardt, 145 Mo. 84; Cooley’s Con. Lim.

— How. Henry C. Riley, Judge. (1) The limitations upon the power of municipal taxation in section 11, article 10, Constitution, are absolute and cover all taxes of every kind and description, and these limitations are self-enforcing. Arnold v. Hawkins, 95 Mo. 569; Black v. McGonicle, 103 Mo. 192; Barnard v. Knox County, 105 Mo. 382; State ex rel. v. .Columbia, 111 Mo. 365.

— Row. II. C. Pepper, Judge. (1) The evidence shows that the assessor entered the lot on his hook and fixed the valuation thereon, that the county clerk entered the lot on the collector’s tax hooks and extended the taxes thereon. These hooks, were in evidence. This established a valid assessment. State ex rel. v. Reed, 159 Mo. 77; State ex rel. v. Hutchinson, 116 Mo. 339; State ex rel. v. Bank, 144 Mo. 381. (2) The introduction of the taxbill made a prima facie case. .

Louis City Circuit Court. — How. D. D. Fisher, Judge. The instruction is erroneous, because it is based on the petition and absolutely disregards the evidence, and also because it fails to limit the recovery of damages for medical services, and so forth, to the time of the filing of petition, in which only damages for past medical attention was claimed. That an instruction should be based on the evidence, is elementary. 2 Encyc.

<p>1. Administration: discovering assets: affidavit. Since the statute authorizes the probate court to issue a citation for the discovery of assets, upon the affidavit of the executor, administrator or “other person interested in the estate,” the order of the court issuing such citation on the affidavit of the husband of the testatrix, is a decision by the proba,te court that such husband is interested in the estate.</p> <p>2. -: -: -: BY husband. The husband of a childless testatrix, although her will may ■ specifically declare that he is to have no part in her estate, has such interest therein as to authorize the probate court, upon his affidavit that certain parties are concealing certain assets, to issue a citation to them for the discovery of such assets.</p> <p>3. -: -: EMBEZZLING ASSETS: DEPOSITION: REFUSAL TO TESTIFY. A proceeding in the probate court to discover assets begun on the affidavit of a person “interested in the estate” in which a certain other person is charged with having concealed and embezzled certain assets, is “a suit pending” within the meaning of the statute concerning the taking of depositions; and the deposition of any other person can be taken therein, even though he is the attorney of the person so charged, and lie cannot escape commitment for contempt for refusing to testify on the ground that such a proceeding is a criminal one. In such case, the citation is not void, but at most only void as to the charge of embezzlement, which charge may be abandoned by amendment at any time, and thus the court will be relieved of doubt as to its jurisdiction over the proceeding.</p> <p>4. -: -: ATTORNEY OF DECEASED: REFUSAL TO TESTIFY. One who was attorney for testatrix during her lifetime, can not, in a proceeding by the executor to discover assets, of' the estate, refuse to answer an inquiry as to the whereabouts of certain bonds belonging to the estate, on the ground that his knowledge of the matter came to him in his professional capacity as her attorney. The privilege in such case belonged to the testatrix, and after her death to her executor.</p> <p>5. Evidence: privileged communications: waiver. The protection afforded by the statute against calling a lawyer or physican to give evidence of information acquired by either in his professional capacity, may be waived by the client or patient, or by the legal representative after his death.</p> <p>6. -: -: waiver how made. There can be no stronger waiver by an executor of his right to object to the attorney of the testatrix testifying as to information acquired by him in his professional capacity from the testatrix as to the whereabouts of assets, than a proceeding by the executor to discover assets, and the taking of depositions therein in which the attorney is asked to state his knowledge of the whereabouts of certain named articles.</p> <p>7. -: -: what is such. No professional confidence is violated by an attorney in telling where he last saw certain bonds and other personal property of testatrix, even though he obtained that knowledge in a professional way from testatrix; and his refusal to testify on that ground, in a proceeding by the exlecutor to discover assets, will not exempt him from commitment for contempt. In such ease he may be compelled to testify as to what money was collected by him, when paid over, and to whom paid, what property decedent had, what disposition ha made of the same, and when he last saw certain assets, and in whose hands they were.</p> <p>8. -: -: becoming attorney of another. An attorney can not obtain information in a professional way from decedent as to the whereabouts of assets, and after decedent’s death escape from testifying in regard thereto by accepting employment from one charged with having concealed such assets. An attorney should not represent two clients with adverse or conflicting interests.</p> <p>9. -: deposition: relevancy of questions. It is for the notary public before whom a deposition is being taken to decide whether a question is relevant or material, and if he decides it to be such, the witness must answer.</p> <p>10. —-: -: REFUSAL TO ANSWER QUESTION: INCRIMINATION. A witness can not refuse .to answer a question in a proceeding to discover assets of the estate of a deceased person, simply on. the ground that a cause is pending in the same court in which he is charged with having concealed or embezzled certain assets of the estate. If the questions were in respect to matters, the answers to which could in no way'tend to incriminate him, that is no excuse for refusing to testify. And, if the answer should tend to incriminate him, he must claim his exemption on that ground.</p>

— Ron. Jno. Á. Hockaday, Judge. (1) The ordinance upon which depended the authority of the board of health is void. First. It is void because the contract being for public work, the ordinance should have emanated from the Board of Public Improvements, and should have provided for the letting of the contract by such board. Charter St. Louis, art. 6, sec. 27; State ex rel. v. Barlow, 48 Mo. 17; Cole, v. Skrainka, 37 Mo.

<p>Appeal from St. Francois Circuit Court. — How. Robt. A. Anthony, Judge.</p>

— Hon. Asbury Burkhead, Judge. This case must be reversed and remanded. The information is in two counts. The first count charges an assault in and upon the body of one Nancy M. Lewis, with a deadly weapon, on purpose and of malice aforethought. The second count charges an assault in and upon the body of Nancy M. Lewis, with a deadly weapon, to-wit, a large stone, orf purpose and of malice aforethought.

— No it. Paris Ch Stepp, Judge. (1) The court erred in admitting the evidence of C. D. Axtell, C. E. Banta and Ed Urton. They could not issue, nor attempt to issue, a valid school warrant separate and apart from each other. They might hind themselves, but could not bind the district. In order to issue a valid school warrant, the board must meet and their proceedings must be made a matter of record.

— Hoto. B. A. Anthony, Judge. (1) Section 3051, Revised Statutes 1899, is an attempted exercise of the police power which is unreasonable, and unwarranted as against a physician who administers intoxicating liquors in good faith, on his judgment as a physician, to his patient, where the relation of physician and patient exists, as in this case. The courts will correct an unreasonable exertion or mistaken application of the police power. 23 Am. and Eng. Ency.

— Hon. Wm. A. Davidson, Judge. (1) The information contains a count on each of sections 8142 and 8143, Revised Statutes 1899, and all the members of the partnership were convicted and fined on each count. Was this permissible under the statute? The penalty attaches to the violation of the wnole article, not a part of it. The'statute is directed against the person, firm or corporation, not against the persons composing the firm.

Louis City Circuit Court. — Ho». O’Neill Ryan, Judge. (1) A homicide committed without malice and in hot blood engendered by adequate provocation, though with lethal instruments, and intentionally, is but manslaughter in the fourth degree. State v. Reed, 154 Mo. 130; 2 Bish. New Crim. Law, sec. 699; 1 McClain Crim. Law, sec. 336; Wharton on Homicide, secs. 430, 431; 2 Roscoe’s Crim. Evid.

— How. Jas. E. Eazell, Judge. (1) (a) The circuit court erred in overruling motion to quash the information for the reason it is not signed by the prosecuting attorney as required by law. Secs. 2477, 2478, 2513, R. S. 1899; Laws 1901, p. 132; State v. Kyle, 166 Mo. 306; State v. Hoffman, 75 Mo. App. 380, syll. 2; State v. Wade, .147 Mo. 77.

— No». Asbury Burkhead, Judge. (1) The court erred in giving instruction 21. The error in this instruction is this: it does not go far enough and for that reason is erroneous and misleading.

<p>1. Nuisances: procedure: injunction. The establishment of the-existence of a nuisance, the recovery of damages, and the equitable relief of preventing or abating it, may be sought in one proceeding, in an equity court. But before the power of the chancellor will be put in motion the existence of the nuisance and the injury must first be established.</p> <p>2. -: on public property. To enable one to maintain an action for injuries received by him resulting from the maintenance of a nuisance on property dedicated to public use, it is necessary for him to show that he has sustained special damages therefrom, over and above the injury which the community at large suffers.</p> <p>3. -: -: general finding. A general finding by the trial court that plaintiff is not entitled to recover, is, in effect, a finding that the nuisance which plaintiff makes the basis of her action, does not exist.</p> <p>4. -:--: RIGHT OF CITY TO GROUND; EXTENT OF DECREE. The court can not, at the suit of a private person asking for the abatement of a nuisance on property, alleged to be a public street, to which the city is not a party, declare the title, and award a part of the property to the city, the rest to the parties, and abate the nuisance thereon, even in an equity case.</p> <p>5. -: -: by whom brought. Where the nuisance is a public one, and it is clear that some special injury is occasioned to an individual and the injury is a continuing one, courts of equity may exercise their power at the suit of the individual to abate it; hut the power is usually exercised at the instance of the public, and not of private individuals.</p> <p>6. -: equity: full relief: meaning. The rule that a court of equity, after once acquiring jurisdiction of a cause, will do complete justice and grant full relief, means that the court, keeping in view the purposies of the action, will reach out and adjust all equities necessary to give force and effect to its decree and remedy the evil sought to be corrected by the action. It does hot mean that in a suit to abate a nuisance on an alley alleged to be a public way, to which the city is hot made a party, the court will determine the - title to the property and decree that the property does not belong to defendants, but to the city, and then go further and abate the nuisance.</p>

— G. A. Anthony, Judge. (1) In burglary there must be a breaking and «orne proof of an actual entry. Kelley, Crim. Law, (1 Ed.), secs. 74, 76 and 78. (a) There must be a breaking and entering with intent to steal. State v. Gyrrell, 98 Mo. 354; State v. Hutchinson, 111 Mo. 257; State v. Meerchouse, 34 Mo. 344. (b) There is no evidence in this case of a breaking. State v. King, 174 Mo. 647; State v. Phillips, 49 Mo. App. 325.

— Hoto. Gallatin Craig, Judge. (1) The information is insufficient for the reason that it fails to charge the unlawful intent of the parties therein alleged to have been dealing on margins. Section 2339, R. S. 1899. “The indictment must set forth all the ingredients of the offense and charge the defendant directly and,positively with the commission of it.”' Kelley’s Criminal Law, p. 91; State v. Austin, 113 Mo.. 538; State v. Kirby, 115 Mo. 440; State v. Basket, 52 Mo..

— Row. Nat. M. Shelton, Judge. (1) The information avers and charges that defendant made an' assault upon deceased with a pistol loaded with gunpowder and a leaden bullet.

<p>1. Contributory Negligence: question for jury. When reasonable minds may fairly differ upon the question as to whether or not the injured party was guilty of negligence contributing directly to his injury, the case is one for the consideration of ttye jury.</p> <p>2. -: taking position of danger. Where a section hand voluntarily puts himself in a dangerous position on the track at a time and place when and where he has no right to be, and when he must know that the railroad company does not require or anticipate his presence there, the injuries received are the result oft his own lack oft common prudence.</p> <p>3. -: -: case stated. Deceased was an experienced section hand, familiar with the schedule of a fast through freight, and engaged in removing weeds from the track and right of way, near a station at which the train did not stop. While in plain view of the men, it sounded the station whistle within easy hearing of deceased, who at the time was not on the track or in a place of danger, but without looking or listening for danger, he stepped in front of the train and was killed. Held, that the trial court should have declared as a matter of law that his widow could not recover damages for his death.</p> <p>4. -: -: warning by foreman. It is not the duty of a foreman to warn section hands that a train is coming, if they are not at the time in a place of danger.</p> <p>5. -: section hands : duty of engineer. An engineer in charge of a train has the right to presume that section men at work on the track will keep out of danger, and not until he has good reason/ to believe that they are not going to do so, is it his duty to employ all possible means to stop the train in time to avoid injuring them.</p>

<p>1. Disbarment: jurisdiction of circuit court: causes: affidavit. All circuit courts in this State have inherent power to cause disbarment proceedings to be instituted against any member of the bar, for professional misconduct, of their own motion, and may designate any member of the bar of the county or of any adjoining county in the circuit, or the prosecuting attorney of the county, to prosecute the same. Nor is it necessary to the institution of such proceedings that the facts of the charges made be within the actual knowledge of the judge who directs such proceedings to be filed, nor that they be supported by the affidavit of any one.</p> <p>2. -: affidavit: prohibition. Even if it were necessary that the charges in a disbarment proceeding be supported by affidavit, the omission of the affidavit would not authorize a writ of prohibition against the circuit judge from proceeding in the case, for the reason that the writ can not be used to correct errors in trials of which the court has jurisdiction.</p> <p>3. Prohibition: jurisdiction of appear. Whether the Supreme Court will or will not have jurisdiction over an appeal from the judgment of the circuit court, does not affect its authority to issue a writ of prohibition to restrain the trial court from proceeding in a case over which it never had, or has lost, jurisdiction.</p> <p>4. Change of Venue: setting aside order. A court has no authority at a subsequent term to set aside an order granting a change of venue previously entered, which it had authority to grant.</p> <p>5. -: disbarment PROCEEDING: prohibition. The defendant in a disbarment proceeding is entitled to a change of venue where the circuit judge is so biased or interested in the proceeding that he can not give defendant a fair and impartial trial. And where the judge has of his own motion entered an order disqualifying himself and granting a change of venue on that ground, he can not subsequently set it aside on the ground that defendant was not entitled to the change on that ground, and if he does set it aside, the Supreme Court will, by its writ of prohibition, prohibit him from further hearing and determining the disbarment proceeding. Nor does the fact that defendant, after the order granting the change, filed an application for a change of venue, at all affect the court’s jurisdiction of the case, for the order setting aside the previous order was void, and from the time it was made the judge who made it had no jurisdiction to hear the case.</p>

— Row. Jno. W. Henry, Judge. (1) The requests which were made hy defendant at the close of plaintiffs’ case and at the close of all the testimony, that a verdict in its favor be directed, should have been granted by the trial court. To entitle plaintiffs -to the submission of their cause to a jury it was , necessary for them to overcome certain presumptions and prove affirmatively certain facts.

<p>1. Cities: issuing bonds: ordering election. For the purpose -of testing the sense of the qualified voters of a town on the subject of issuing waterworks or electric light bonds, etc., an order of the board is sufficient. An ordinance is not necessary. The statute specifically declares that “the council, trustees, etc., shall order an election,” which means an order or resolution.</p> <p>2. --: -: notice. Where the statute requires fifteen days’ notice by publication, a notice published on the nineteenth, twelfth and fifth day preceding the election, is sufficient.</p> <p>3. --: -: two propositions. An order to test the sense of the voters on the subject of issuing bonds “for the purpose of constructing, maintaining and operating or purchasing an electric light plant,” etc., does not contain two propositions — one to issue bonds to construct a plant, and the other to buy a plant already constructed. The same end was to be accomplished in either of two ways, either to construct or to purchase, to be determined by the council in their discretion.</p> <p>4. —;-: -: election by wards. An ordinance provided that all special elections be held at one place to be designated by the mayor, but the town had been divided into four wards, and by the order directing an election on the question of issuing bonds, a voting place was designated in each ward. Held, that this special election was not illegal and void simply because there were four voting places instead of one, for at most that was nothing more than an irregularity, and hence it did not invalidate the bonds.</p> <p>5. -: -: SELLING LIGHT TO PRIVATE CITIZENS. A city has the authority, under the Constitution of Missouri, to issue its bonds for the purpose of erecting an electric plant, not only for lighting its streets and alleys, but also for selling light to the citizens of the town. The selling of light to the citizens is not a private use, but a public use.</p> <p>6. Statute: title: two subjects. A statute “to enable cities, operating under special charter, to issue bonds for the macadamizing, paving, curbing and improving of streets, and constructing public sewers within such cities, and for the purpose of constructing or purchasing electric light and waterworks in said cities,” does not contain more than one subject in its title.</p>

Louis City Circuit Court. — Ho#. D. D. Fisher, Judge. (1) The contract giving rise to this litigation was founded in, and involved the relation of, personal trust and confidence, and was assigned to plaintiff, while still executory, by J. H. Houssels, one of the parties thereto, without the consent of W. H. Jacobs & Co., the other contracting party. Such assignee of such a contract can not recover thereon. 2 Am. and Eng.

— Row. James Gibson, Judge. (1) The primary duty of plaintiff’s husband was to note the approach of trains or engines at the crossing. His violation of this duty was the direct cause of his death and, therefore, there can be no recovery.

Louis County Circuit Court. — Now. Jno. W. McElhinney, Judge-. Plaintiff’s ease is based upon the negligent act of defendant when, after bringing its car to a stop (or, as claimed by defendant’s witnesses, almost to a stop) at the crossing of Grand avenue and Laclede avenue, while plaintiff was in the act of alighting from said car, defendant carelessly and negligently suddenly started said car, throwing the plaintiff to the ground in a violent manner.

A. D. Burnes, Judge, (1) Parol evidence may be introduced to show that a deed, absolute on its face, is a mortgage, on the ground that a denial of the trust character of the deed by grantee is a fraud on his part which equity will take jurisdiction of. Cobb v. Day, 106 Mo. 95; O’Neal v. Capelle, 62 Mo. 202. (2) Implied and resulting trusts are not within the statute of frauds. Tiedeman, Real Prop., sec. 507; Cornelius v. Smith, 55 Mo. 528.

Louis County Circuit Court. — Row. Jno. W. Booth, Judge. (1) The maintenance of the cellar door, under the facts, was a nuisance, and defendants Schrick, Wallhausers and Graul are, therefore, either as owners, lessees or bondsmen, liable for damages resulting from its use. Tate v. Railroad, 64 Mo. 155; Keitel v. Railroad, 28- Mo. App. 665; Mancuso v. Kansas City, 74-Mo. App. 143; City of Memphis v. Miller, 78 Mo.

— -Ron. A. D. Burnes,, Judge. (1) It was the duty of defendant assessor, at the time of taking the several lists mentioned in the pleadings, to take the number of the school district in which: the taxpayers therein named resided and to mark the-same upon said lists and also on the personal assessment book. Sec. 9844, R. S-,'1899. This duty was first placed upon tbe assessor by tbe amendment of section 7999, Revised Statutes 1889, in 1899.

<p>Taxation: assessment: partnership property. Property belonging to a partnership should be assessed for taxation against the partnership in the county and school district where it has its place of business, and not against the partners constituting the firm.</p>

— Row. J. H. Slower, Judge. (1) The demurrer offered Tby appellant should have been sustained, and the court grievously erred in overruling the same. The deceased was guilty of the grossest negligence directly contributing to her death and the court should have so declared as a matter of law. Payne v. Railroad, 136 Mo. 593; Graney v. Railroad, 157 Mo. 679; Campbell v. Railroad, 75 S. W. 90; Tanner v. Railroad, 161 Mo. 497; Holwerson v..

Louis City Circuit Court. — How. Wm. Zachrits, Judgé. (1) There was no evidence before the court on which to base the admission of the notes sued on, and they should have been excluded and the jury should have been instructed at the close of plaintiff’s case that on the evidence he could not recover.

Louis City Circuit Court. — Eon. Wm. Zachritz, Judge. (1) No administrator de bonis non is necessary. The object of administration is chiefly to take charge of the property to keep until all the debts of the estate are paid; when that is done what is left belongs to the heirs or legatees. The estates mentioned in the petition have all been finally settled excepting the shares of stock described. This being the case, these heirs can sue.

Transferred from St. Louis Court of Appeals. (I) The principal question involved in this case is, whether a railroad company owning a car which, while temporarily absent from its line is, without its knowled^' or consent, loaded with freight destined to a distant point and is in the course of transportation carried a part of the intermediate distance, but neither the initial nor terminal part, by the line of the company owning the car, but under no traffic arrangement, and…

— -Ho». E. R. McKee, Judge. (1) The general rule is that before a creditor can maintain a creditor’s bill he must show he has exhausted his remedy at law or he must show that he has no adequate remedy at law and should he fail to mate out a case entitling him to equitable relief his petition should be dismissed. Humphrey v. Milling Co., 98 Mo. 542; Pom. Eq. Jur. (2 Ed.), sec. 1415; Bank v. Packing Co., 138 Mo. 94. Respondent has an adequate remedy at law.

<p>Appellate Jurisdiction: unanimous opinion op court op appeals. Where all the judges of a Court of Appeals unanimously deem its decision in a cause to be in conflict with one of its prior decisions, it should not certify the cause to the Supreme Court, but overrule its prior decision.</p>