Volume 240 — Missouri Reports

<p>1. INFORMATION: Verification: Several Counts. A single verification of an information in four counts, in three of which defendant is charged with a violation of the Local Option Law, and in the. fourth with a violation of the Dramshop Act, is sufficient. The counts are not so inconsistent and contradictory as to render the one verification no verification in fact.</p> <p>2. VENUE: Violation of Local Option Law: No Proof. Where the only proof of the venue was that one witness bought wine from the defendant, on the day. named, in Newton county, and paid for it, and the information alleged and the proof showed that local option was in force in Newton county outside of Neosho, a city of over 2500 inhabitants, and the State failed to prove, even inferentially, whether the sale was made within or without the operation of the law, there was no proof of venue made, and the judgment of conviction cannot stand.</p> <p>3. LOCAL OPTION LAW: Adoption in County: City of 2500 Inhabitants Shown by Census After Order Made. The Local Option Law means that the county court shall ascertain before making an order of election for its adoption by the county whether any city in the county has on that date 2500 inhabitants or over, and if so it must be excluded. If it designates what cities are excluded, and declares no other has that number of inhabitants, a city embraced within the territorial operation of the order cannot, before the day of the election, by taking a census showing it has over 2500 inhabitants, exempt itself from the operation of the law if adopted; nor will the adoption of the law he invalid, either as to it or the rest of the territory embraced within the court’s order. The law applies to all cities: which on the date the order for the election is made do not have 2500 inhabitants. [Overruling State ex rel. v. Mitchell, 115 S. W. 1098, never officially reported, and State ex rel. v. Cass County Court, 137 Mo. App. 698.]</p>

<p>1. TAX SUIT: Against Record Owner. In the absence of actual knowledge of the real owner, a judgment in a suit for taxes against the record owner, with notice by publication to such record owner, is good against the holder of an unrecorded deed, and a sale under execution thereunder conveys the title as against the holder of such unrecorded deed.</p> <p>2. -: -Where Name of Grantee Has Been Incorrectly Copied in Record. And this rule applies where the name of the grantee in the deed has by mistake of the recorder been incorrectly recorded, so that the record owner appears to be other than the true owner. In such case, where the suit for taxes is brought against the record owner on notice by publication to such record owner, the purchaser at the tax sale is protected in his title. Where the statute (Sec. 2810, R. S. 1D09) says the filing of the deed for record imparts notice of its contents from and after the time of filing, it means that the deed itself imparts notice until copied into the record, and after it is so copied the record and the record only imparts notice. So that where the grantee was O. H. P. Williams and the recorder, in copying the deed, by mistake wrote the initials O. N. P., changing the middle initial from H to N, and the deed was returned to; the grantee, and thereafter suit for delinquent taxes upon notice by publication to O. N. P. Williams was brought against- O. N. P. Williams, the purchaser at the execution sale took the title as against O. H. P. Williams. [Following Yance v. Corrigan, 78 Mo. 94, and Terrell v. Andrew County, 44 Mo. 1. c. 312, and refusing to adopt the limitations placed thereon by Troyer v. Wood, 96 Mo. 478.]</p> <p>8. -: -: -: Estoppel. . The rule that “wherever one of two innocent parties must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it,” applies, not to the grantor in a deed, to whom there is to be imputed no negligence in failing to see that the deed is properly recorded by the recorder, but to the grantee who files the deed for record and upon whom is the duty to see that it is susceptible of a fair copy. So that, by the rule of estoppel, where the grantee was O. H. P. Williams and the recorder made the record read O. N. P. Williams, and the H in the initials in the original deed might easily be mistaken for an N, the grantee, or true owner, O. H. P. Williams, should suffer the loss, as against the purchaser under a judgment in a suit for taxes brought against O. N. P. Williams on notice by publication.</p> <p>4. -: -: -: Sufficiency of Notice by Publication: Immateriality of Middle Initial. The deed described the grantee as O. H. P. Williams, and the recorder, by mistake, made the record show O. N. P. Williams to be the grantee. Held, first, that, inasmuch as the owner, Williams, took the deed by his initials, the rule that a mistake in the middle initial is immaterial applies; and, second, that the published notice addressed to O. N. P. Williams, stating that suit had been filed to enforce the State’s lien for delinquent taxes on land owned by O. N. P. Williams, such notice properly describing the land, was a sufficient notice to O. H. P. Williams of his identity with the defendant in the suit.</p> <p>5. DEED: Record of Unrequired Matter as Notice. One who examines the records of deeds is not required, as a matter of law, to read what is not required to be recorded. The deed was drawn on a Pennsylvania form, and named O. H. P. Williams as grantee, and the recorder in recording the deed by mistake made the record read O. N. P. Williams as the grantee. In the left-hand corner' of the deed, opposite the certificate of the notary, was a blank filled in and signed by the grantor, reciting that he had received from the grantee, O. H. P. Williams, the consideration. Held, that the record of this receipt did not put a purchaser at a tax sale in a suit brought upon notice by publication to O. N. P. Williams upon notice of the mistake in the name in the body of the deed as recorded, in the absence of actual knowledge on his part that the name had not been correctly copied or such knowledge as would put him on inquiry, since the receipt was no part of the deed and was not by law required to be recorded.</p>

<p>1. DRAINAGE DISTRICT: Prayer for Incorporation: Not Contained in Articles. It is essential to the validity of the incorporation of a drainage district that there should be a prayer for incorporation when the matter is presented to the court, but it is not essential, under article 1 of chapter 41, Revised Statutes 1909, that the prayer should be embodied in the articles of incorporation. If the articles of association omit the prayer, but they are accompanied by a petition signed by the attorneys for the petitioners containing a prayer that “petitioners be declared a drainage district under and according to the provisions” of said article, and the articles and petition are filed together, the jurisdictional fact exists, and the requirements of the statute (Sec. 5496) are met, and an incorporation of a district in pursuance to such prayer is valid.</p> <p>2. -: -: Signed by Attorneys. The articles of association for a drainage district should be signed by the petitioners, but the petition accompanying them may be signed by their attorneys. A petition addressed to the court is properly signed by attorneys. An attorney at law represents his client in court and speahs for him.</p>

<p>Quo Warranto.</p> <p>(1) Section 17, article 2 of the Constitution, and Sec. 1062, R. S. 1899, are violated when competing railway companies enter into an agreement and combination for the purpose of fixing, regulating and maintaining freight rates or passenger fares to be charged between points located in this State. Such agreements restrain and prevent competition, and the chief purpose sought to be accomplished by the above sections is to preserve free and open competition between and among railway companies and prohibit any and all arrangements which defeat such competition. Railroad v. State, 72 Tex. 404; Security Co. v. United States, 193 U. S. 351; Pearsall v. Railroad, 161 U. S. 676; Morrill v. Railroad, 55 N. H. 537; Currier v. Railroad, 48 N. H. 325; Railroad v. "Wear, 135 Mo. 230. (2) Such agreements are also illegal at common law as being in restraint of trade and commerce, against public policy, and violative of the law of the corporation’s creation. State ex rel. v. Gas Co., 153 Ind. 488; Railroad v. Railroad, 38 Ind. App. 244; Railroad v. Railroad, 3 Robertson, 415; Railroad v. Closser, 126 Ind. 348; Anderson v. 'Jett, 89 Ky. 375; Stanton v. Allen, 5 Denio, 434, 49 Am. Dec. 282; Hooker v. Vandewater, 4 Denio, 349, 47 Am. Dec. 258; Railroad v. Railroad, 41 La. Ann. 970; People v. Sheldon, 139 N. T. 251; Railroad v. Interstate Com. Commission, 39 C. C. A. 422; Pratt v. Tapley, 3 Pugsley N. B. 171; Sanford v. Railroad, 24 Pa. St. 382; Cravens v. Rogers, 101 Mo. 247; Clemens v. Meadows, 29 Ky. L. Rep. 619; Mfg. Co. v. Watch & Clock Co., 14 C. C. A. 14; United States v. Freight Assn., 166 U. S. 290; Joint Traffic Assn. v. United States, 171 U. S. 505; State v, Stewart, 59 Vt. 286; Railroad v. Collins, 40 Ga. 582; United States v. Freight Assn., 7 C. C. A. 88; Railroad v. Mining Co., 68 111. 494; "Security Co. v. United States, 193 U. S. 351; Mobile'v. Kimbrell, 102 U. S. 691; Gloucester v. Pennsylvania, 114 U. S. 196; Gibbons v. Ogden, 9 Wheat. 215; People v. Raymond, 34 Cal. 497; United States v. Pipe & Steel Co., 54 U. S. App. 723¡; State ex rel. v. Ins. Co., 152 Mo. 42; State ex rel. v. Standard Oil Co., 218 Mo. 1; Gibbs v. Gas Co., 130 U. S. 408; Coal Co. v. Coal Co., 68 Pa. St. 173; Brewing Co. v. Belinder, 97 Mo. App. 71; Commonwealth v. Carlisle (N. P.), Brightley, 38; Bailey v. Master Plumbers, 103 Tenn. 118; State v. Glidden, 55 Conn. 75; State ex rel. v. Stock Exchange, 211 Mo. 193 ; Beach on Monopolies and Industrial Trusts, par. 149; Noyes on Intercorporate Relations, p. 372; Spelling on Trusts and Monopolies, par. 82; Greenhood on Public Policy, p. 2661, 2662 and 2663; 1 Hawkins, P. C., p. 470, sec. 2; Stewart v. Trans. Co., 17 Minn. 395; State v. Board of Trade, 107 Minn. 505 ; State ex rel. v. Packing Co., 173 Mo. 388. (3) The common law in respect to such unlawful agreements has not been abrogated by statutory provisions, but the same is in full force and effect in this State. Coal Co. v. People, 214 111. 421; Branden v. Carter, 119 Mo. 581; Evans.v. McFarland, 186 Mo, 723; State ex rel. v. Standard Oil Co., 218 Mo, 360; Humphreys, v. Davis, 100 Ind. 284; Laws 1907, sec. 8970, p. 379;. Currier v. Railroad, 48 N. PI. 329. (4) The Anti-Trust Act, found at page 377, Laws 1907, applies to and covers the transportation of freight by railway, and the agreement which the second count seeks to condemn violates its provisions. Laws 1907, secs. 8965, 8968; United States v. Freight Assn., 166 U. S. 324; State ex inf. v. Standard Oil Co., 218 Mo. 1; State ex rel. v. Packing Co.,' 173 Mo. 356; State ex rel. v. Ins. Co., 152 Mo. 1. (5) The information, whether measured by the requirements of the common, constitutional or statutory law, is amply sufficient to state an unlawful combination. Laws 1907, sec. 8977, p. 381; Coal Co. v. People, 214 111. 421; State v. Dreany, 69 Pac. 182; State v. Stewart, 59 Yt. 286; State v. Shaw, 42 N.*H. 393; United States v. Gardner, 42 Fed. 829; Hazen v. Commonwealth, 23. Pa. St. 363; State ex inf. v. Standard Oil Co., 218 Mo, 1; State ex rel. v. Insurance Co., 152 Mo. 40; Knight & Jilson Co. v. Miller, 87 N. E. 827; State ex rel. v. Railroad, 206 Mo. 28. (6) The charter of a private or public corporation will be forfeited for any willful misuser or abuse of its franchise which injures or menaces the interests or welfare of the State, or the community in which it transacts business, whether the misuser or abuse consists in the exercise of a franchise or power not conferred on the corporation by its charter, or in the violations of prohibitions in its charter, or in the violations of the common, statutory or constitutional laws to which it is subject, or in the violation of established principles based upon the ground of public policy. State ex inf. v. Standard Oil Co., 218 Mo. 1; State ex rel. v. Delmar Jockey Club, 200 Mo. 70; Railroad v. State ex rel., 155 Ind.' 456; 2 Spelling on Extra. Remedies, pr. 1820; Stockton v. Railroad, 50 N. J. Eq. (5 Dick) 52; Attorney-General v. Railroad, 12 C. E. Gr. 631. (7) Both domestic and foreign railway companies, while doing businéss within this State and transporting persons and property between cities and communities located wholly within this State, and in fixing and maintaining rates and fares applicable solely to traffic within this State, are subject to State jurisdiction and amenable to the State laws governing such matters. Railroad v. Kentucky, 161 U. S. 701; State ex inf. v. Standard Oil Co., 218 Mo. 376; Ins. Co. v. Daggs, 172 U. S. 566; Com. Co. v. Spencer, 205 Mo. 118; Gibbons v. O'gden, 9 Wheat: 195; Thorp v. R. & B. Co., 27 Yt. 142; Bridge Co. v. Kentucky, 154 U. S. 209; sec. 5, art. 12, Mo. , Constitution ; 'sec. 14, art. 12 Mo. Constitution; Tenth Amendment to U. S. Constitution; Packing Co. v. Ark., 212 U. S. 322.</p> <p>(1) The information does not state facts sufficient to constitute a cause of action. The information states no facts whatever. It states mere conclusions of the pleader. Pier v. Heinrichoffen, 52 Mo. 336; Sid-way v. Land & Live Stock Co., 163 Mo. 372; Chemical Co. v. Nemnich, 169 Mo. 396; Vogeler v. Punch, 25 Mo. 576; State ex rel. v. Grimm, 220 Mo. 490’. (2) The information is framed upon the erroneous hypothesis that this is. a proceeding’' to oust defendants from franchises they never had a right to exercise; in which cases it is only necessary for the Attorney-General to inform the court that the defendants are claiming a right to a franchise never granted, and then it devolves upon the defendants to affirmatively show the grant of charter powers; whereas, in this case, the Attorney-General informs the court that the defendants have been legally and properly granted charters and franchises by the State, and seeks to take the same away from them, not because they were not originally legally granted, but because they have misused and abused such charter powers and franchises. In such cases it is not sufficient for the Attorney-General to inform the court in general terms, by legal conclusions of his own, that the defendants have abused or misused their charter powers and franchises,-but it is necessary to state specifically the facts relied upon by the Attorney-General to show such abuse or misuse, so that the defendants may “be informed of the nature and cause of the accusation” (Amendment 6 to U. S. Constitution, and sec. 22, art. 2, Constitution of Missouri), in order that they may take issue thereon and properly prepare their defense thereto. This is the distinction between informations to divest defendants of charter powers never legally granted, and to forfeit legally granted powers because of abuse or misuse thereof. State ex rel. v. Grimm, 220 Mo. 491. (3) The information in this case is not sufficient even when measured by the precedents furnished in State ex inf. v. Railroad, 206 Mo. 28, or in State ex inf. v. Standard Oil Co., 218 Mo. 1. In both of those cases the Attorney-General undertook to state with precision the specific facts relied upon to authorize a forfeiture of the charter powers and franchises of the defendants, because of their abuse or misuse thereof, and did not, as the Attorney-General does in this case, simply inform the court generally that the defendants had entered into an unlawful conspiracy to fix and regulate prices. (4) The information in the case at bar is wholly defective even under Sec. 8977, Act of March .19, 1907, Laws 1907, p. 381. This section only makes it unnecessary to allege or plead “the manner in which, or when or where” such pool was created. In these respects only has this act made any change in the law in respect to pleadings in such cases, and these changes in the law are not sufficient to make the information in the case át bar sufficient. The manner in which a conspiracy denounced by the anti-trust laws was made or effected, relates only to the form of the agreement, whether in writing or oral, and does not pertain to the substance of the agreement at all. The substance of the agreement or conspiracy may be shown by either direct or circumstantial evidence, or may be inferred from the conduct of the parties, whilst the manner, fashion, or form of the agreement or conspiracy, or the time when or where the conspiracy was concocted, would not appear from the acts of the parties in carrying out the conspiracy. The manner, fashion or form of the agreement is of no consequence, neither is the time when or the place where the conspiracy was concocted' of any moment. These are immaterial circumstances. The substantive fact necessary to be alleged and proved is the agreement which offends against the antitrust laws. (5) The particular cause of complaint in this case is, not that the defendants are charging-higher passenger or freight rates than the law permits, but that they are acting in concert in charging what is a legal rate under the laws of Missouri, and by so doing are stifling competition. In other words, that each of the defendants has a right to do for itself what they all are alleged to have agreed to do, and therefore competition is destroyed, because it is argued that whilst the law permits the rates exacted by the defendants to be charged nevertheless, if the defendants acted separately, competition might induce them, while acting separately, to accept less than the legal rate for passengers' and freights. His contention would be'necessarily and logically the same whether the defendants had agreed among themselves to charge two cents a mile, or one cent a mile, or even a fraction of a cent a mile, for in any event without such an understanding among themselves, he says, competition might induce the several defendants to charge less than the rate they had agreed among themselves to charge, such rate always being within the maximum legal rate. The anti-trust laws of this State were not intended to afford the basis for such a drastic proceeding. Those laws were only intended to strike at illegal acts, and not at the doing of things which the law expressly permits.</p>

— No». John P. Butler, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. The agency was a special one, in writing, so provided by the statute, and the writing enumerated all the powers of the agent, and third parties in dealing with such an agent are bound to take notice of the limitations, and that the conditions would be strictly construed, and that a sale could only be made in strict compliance with the terms of the power.

<p>1. DRAINAGE DISTRICT: Lands Already Included in Existing District. The right to incorporate a drainage district under article 1 of chapter 41, Revised Statutes 1909, by proceedings in the circuit court, is not limited by the statutes to lands not included in a district already established. The fact that a drainage and levee district already existent, limited in its scope and plan of work to the rebuilding and raising the height of a levee along the Mississippi river, embraces much of the land that is sought to be included in the proposed drainage district, is no reason for denying incorporation to the proposod district.</p> <p>2. -: -: Extending Scope of Power: Sec. 5573: New 'Order Necessary. The enlarged powers given by section 5573, Article 3, Revised Statutes 1909, relate to work already done under the. provisions of article. 1, and look to its greater efficiency, and. not to a new scope and plan of work. In any event such, additional powers beyond the scope and plan of its organization can be exercised by an existing district only after application to and order by the county court.</p> <p>3. -: Petitioners: Mortgagees. For the purpose of instituting a proceeding in the circuit court under article 1, chapter 41, Revised Statutes 1909, to organize a drainage district, the ' mortgagees of mortgaged lands are not necessary signers. The “owners” who are to institute the proceedings, elect commissioners and otherwise act, are the title owners of the land, and under section 5507 each such owner is entitled to one vote for each acre owned by him.</p> <p>4. -: Petition Signed by Another. Owners of land in the drainage district whose names are signed to the articles of association by another, and who appear by attorney throughout the proceedings, without objection, are in court, and are bound by a judgment incorporating the district.</p> <p>5. -: Benefit: Question of Fact. Whether the lands of objectors will be benefited, and. whether they are properly included within the drainage district, are questions of fact, to be tried out before the trial court upon testimony, and if that testimony is substantial, its findings will not be disturbed on appeal.</p>

(1) The writ of mandamus is the proper remedy to compel officers of the State whose duties are ministerial to perform .such duties. State ex rel. v. Secretary of State, 33 Mo. 29-3; State ex rel. v. McG-rath, 92 Mo. 355; State ex rel. v. Lesueur, 103 Mo. 262; State •ex rel. v. Cook, 174 Mo. KX>; State ex rel. v. G-ordon, 231 Mo. 547; State ex rel. v. Roach, 230 Mo. 408.

<p>For tbe reasons stated in State ex rel. Randolph County v. Evans, ante, page 95, the motion to strike out respondent’s return to relator’s writ of mandamus in this case is sustained.</p>

— Noto. W. A. Powell, Judge. (1) As sliown by tbe result, the fact tbat tbe jurors read tbe article in tbe “Star” showing tbe amount of tbe former verdict, was prejudicial to tbe defendant and tbe court should have discharged tbat jury, as requested by defendant’s counsel, and im-. paneled a new jury to try tbe case. G-ibney v. Transit Co., 204 Mo. 704.

<p>On Motion to Set Aside Dismissal.</p>

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (1) The record does not show, or tend to show, that any goods, wares, merchandise, fixtures, shelving or furniture were burned in this fire. The demurrers to the evidence, first and last, were directed to the absolute failure of proof of the charge contained in this indictment, and should have been sustained.

— lion. II. G. ' Riley, Judge. (1) The information does not charge that it was preferred against the defendant by the prosecuting attorney of Pemiscot county, but appears to have been filed by one acting for the entire State. R. S. 1909, sec. 5115. (2) If the defendant should have been convicted at all, it should not have been for more than manslaughter in the fourth degree, and the punishment being two years, the punishment was excessive. R. S. 1909, sec. 4551.

Louis City Circuit Court. — Hon. W. M. Kinsey, Judge. (1) Each and every averment of the petition essential to fix liability upon the defendant was sustained by some evidence. Hence, the court should have overruled the demurrer to the evidence and permitted the jury to decide the issues of fact. Koerner v. Car Co., 209 Mo. 151; Hollweg v. Telephone Co., 195 Mo. 165.

<p>1. CONTRACT WITH COUNTY: Entered of Record: Acceptance: Duplicates in Writing: Section 2779. When a county court enters of record its order for the employment of an expert accountant for work to be performed wholly in the future, setting forth the details of the employment and the compensation ' to be paid, and said accountant files his written acceptance of the employment, the contract, so far as its mode of execution is concerned, is complete. The purpose of Sec. 2779, R. S. 1909, saying that duplicate copies of every such contract shall be executed, one of which shall be filed with the county clerk and shall not be taken from his office except to be used as evidence in some legal matter, and that, in case of variance between the copies, the one on file with the clerk shall control, was to preserve controlling evidence of the terms of the contract in case of a dispute as to its construction. The validity of the contract is not, by that section, made dependent on its having been executed in duplicate.</p> <p>2. COUNTY COURTS: Powers: Must be Expressed or Necessarily Implied. The power of the county Court to contract, or to do any other act, must be found in an express legislative grant, or else impliéd as essential to the proper execution of powers expressly granted or duties expressly imposed. Nor will power to do a thing be implied to belong to a county court unless it is cognate to the purpose for which the court was created. Sec. 6759, R. S. 1899 (Sec. 2778, R. S. 1909), detailing the scope of the powers of a county court or other municipality, is but declaratory of the common law.</p> <p>3. -: Power to Employ Accountant. The county court had power in 1907 to employ an expert accountant to examine and audit the official accounts and public records of present and prior county officials, for the purpose of ascertaining whether or not they were indebted to the county or were holding back moneys belonging to it. This power is not expressed in the statutes, but is implied as essential in those expressly granted, which make the county court the fiscal agent of the county, and impose upon it a supervisory control over the collection and preservation of its funds, require the treasurer, collector, sheriff, marshal, clerks, constables and other officers chargeable with money belonging to the county, to make a true report and render a true account and make settlement with it, and require the court to audit and adjust all accounts to which the county shall be a party and enforce the collection of any money found due the county.</p> <p>4. -: -: Sec. 3730; Duties to Audit.on Court. Section 1778, R. S. 1899 (Sec. 3730, R. S. 1909), saying that, in settlements made by county courts with treasurers and other officers holding funds, it shall be the duty of the court or some judge thereof to ascertain, by actual examination and count, the amount of money in the hands of the officer, etc., has nothing to do with the power of the county court to employ an expert accountant to audit the accounts of all county officers, with the view of ascertaining if any of them are indebted to the county. That statute relates to the examination and count of balances in the hands of the officials when they make settlements, and its purpose is to prevent a perfunctory settlement.</p>

Louis City Circuit Court. — Son. Daniel G. Taylor, Judge. (1) The two articles set out in the first and second counts are not privileged. The scandalous deposition of the negro was taken April 9 and filed May 2, 1906. The depositions commented on by articles in the first and second counts were taken April 20-21 by defendant and filed April 25.

— Hon. John P. Butler, Judge. (1) The court had no jurisdiction to take an accounting between the parties in this action and the decree is a nullity. Howard v. Brown, 197 Mo. 36; Seidel v. Cornwell, 166 Mo. 51. (2) This suit was instituted under the statute in relation to quieting land titles and the law does not authorize a decree for the specific performance of a contract in such a proceeding. R. S. 1899, sec. 650.

Louis City Circuit Court. — Hon. W. M. Kinsey, Judge. (1) The court erred in sustaining the defendants’ demurrers because it clearly appears that plaintiff has performed her part of the verbal contract and it was therefore not within the Statute of Frauds and consequently enforceable in equity. Pomeroy’s-Equity Jurisprudence (3 Ed.), sec. 1409; Sharkey v. Mc-Dermott, 91 Mo. 647.

— Hon. Francis H. Trimble, Judge. (1) The supplemental tax booh and the assessor’s book after the corrections, adjustments and additions to the assessor’s book were made by the board, fixed the liability against “H. Timbrook” almost two years after his death and while the estate was in the hands of the executors. State ex rel. v. Kendrick, 159 Mo. 631; R. S. 1909, sec. 11348; Searing v. Heavy-sides, 106 El. 85.

- — Ron. J. G. Sheppard, Judge. (1) The court erred in refusing to permit the witness introduced by the defense, McAutrey, who served on the jury in the case of State v. George East-ham, involving the same state of facts as the one at bar, to testify as to what was, and to narrate the testimony of the witness Nellie McKinney, given in the trial of the case of State v. George Eastham — said witness Nellie McKinney being dead at the time of the trial of the canse at bar.

- — Ho». E. M. Dearing, Judge. (1) The evidence wholly fails to connect the defendants with the act of abortion, if any were committed, .resulting in the death of Lilby Anna Aitken. There is an entire absence of those facts which, in cases of this hind, usually establish by circumstantial evidence the guilt of the accused.- On the contrary, the State’s ease abounds in facts which circumstan-' tially point to the innocence and the consciousness of innocence of the defendants.

<p>1. INFORMATION: Fraudulent Conveyance: Name of Person Defrauded not Necessary. It is not necessary to name, in an information charging the making of a second and fraudulent conveyance of the same real estate, the particular person whom defendant intended to defraud.</p> <p>2. -: -: Charging Failure to Recite First Deed in the Second. In an information charging the making of a second and fraudulent conveyance of the same real estate, a clause is sufficient which alleges that defendant “did . . . fail ... to recite in such second deed the first deed and the substance thereof.” It charges plainly enough the omission to recite in the second deed either the whole of the first deed or its substance, the inclusion of either of which would have exonerated the defendant.</p> <p>S. -: -: Repugnant Clause: Rejected as Surplusage. The information charged that the defendant first conveyed the land to Pope as trustee for Hale and W. McConnell, and then fraudulently conveyed it a second time by deed to Lundy Carstin, a different person from Pope, Hale and W. McConnell. Then it alleged that defendant failed “to recite in such second deed, the first deed and the iubstance thereof, made to Lundy Carstin, as aforesaid,” etc. The only objection made to the information in the trial court which could be construed as aimed at this defect was that it did not “charge any offense under the laws of the State of Missouri.” Held, that the information, while awkward in expression, is sufficient against such attack. The words “made to Lundy Carstin, as aforesaid,” may he rejected as surplusage.</p> <p>4. FRAUDULENT CONVEYANCE: Facts Assumed in Instructions Admitted by Defendant. The defendant in a prosecution for a second and fraudulent conveyance of the same land having admitted on the stand the execution of both deeds, there was no error in assuming in the instructions their execution by him.</p> <p>5. -: -: Recital of First Deed in the Second. In a prosecution for a second and fraudulent conveyance of the same land, the second deed was in evidence and showed no recital of the first deed or its substance. The defendant in his'testimony admitted executing the deeds, and his testimony contains other statements inexplicable save as ■ admissions of the omission in the second deed of any reference to the first. Held, that the trial court committed no error in assuming the omission in its instructions.</p> <p>6. APPEAL: Substantial Evidence of Defendant’s Guilt: Evidence not Reviewed. Where there was substantial evidence of defendant’s guilt it is not the province of the Suprej^M|a,urt to weigh conflicting evidence.</p>

— Hon. Alonzo I). Burnes, Judge. (1) That part of the decree of the court which fails to set aside the deed as to the ninety-nine-acre tract of land mentioned in the petition is erroneous, and should he reversed. 1. Said part of said decree is against the law and the evidence, and the weight of the evidence. 2.

— Eon. W. E. Martin, Judge. When tlie plat was filed the lands therein described as streets and alleys should have been taken charge of by tbe city and used for tbe purposes for which it was set aside as provided by the statutes. R. S. 1855-, secs. 1, 8; R. S. 1899, secs. 8955, 8959; R. S. 1855, p. 1535; R. S. 1865, p. 247; R. S. 1879, sec: 6569; R. S. 1889; sec. 7309. There is no evidence any where in the records to show that the town ever accepted the streets in question.

— Hon. A. D. Burnes, Judge. (1) The declaration of law declaring the law to be that the execution of the deed to W. O. Barbee was evidence of the delivery of the deed should have been given. R. S. 1909, sec. 2818; Burke v. Pence, 206 Mo. 338; Benton Land Co. v. Zietler, 182 Mo. 280; Ruckman v. Ruckman, 32 N. J. Eq. 261; Flint v. Phipps, 16 Ore. 437; Fain v. Smith, 14 Ore. 82; Brown v. Brown, 66 Me. 316; G-ould v. Day, 94 TJ.

— Row. Charles A. Killian, Judge. (1) From the twelfth day of February, 1896, Mary A. Jackson, through her husband and agent, was in the possession of all the farm lands in the petition. So that we have here the case of a mortgagee (or what is the same thing, the beneficiary in a deed of trust) in possession of the mortgaged property.

— Hon. George W. Wanamaker, Judge. (1) The court erred in permitting' plaintiff to testify over defendants’ objection that Doctor Laughlin told her that her ribs were broken, caused by Doctor Charley Still’s treatment. This was hearsay and opinion. (2) The court erred in refusing defendants’ instruction 1, in the nature of a demurrer to the evidence at the close of all the testimony. 1.

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) The words in the plaintiff’s proposal accepted by defendants: “You to furnish lists of each and every land of material- required, ‘at least thirty days prior to the time you require it,’ ” are not an agreement or proposal of plaintiff to furnish any material specified in any such list within thirty days after such list has been furnished to plaintiff.

— Hon. J. C. Sheppard, Judge. (1) A justice of the peace has no jurisdiction in-actions to enforce the lien of the State for hack taxes -on land, and a deed based on such judgment is null and void and conveys no title. R. S. 1909, sec. 7393; State ex rel. v. Hopkins, 87 Mo. 529. (2) A sheriff’s deed -which does not convey nor purport to convey a given tract of land, certainly does not convey such land.

— Hon. J. C. ■ . Sheppard, Judge. (1) The word “middle” as used in the statute defining the boundary of Pemiscot, not being a technical word, should have its ordinary and usual meaning. “Words and phrases shall be taken in their plan or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.” R. S. 1909, sec. 8057; State v. Jones, 102 Mo. 305; Warren v. Paving Co., 115…

— Now. J. L. Fort, Judge. (1) Rebecca J. McMillan having owned the land in fee and having died leaving her husband, John McMillan, and children by him surviving, he was tenant by the' curtesy and entitled to the possession and control of the land during his lifetime, but the declaration in defendants’ first instruction that “the estate of Rebecca J. McMillan was simply a reversion after such life estate had terminated” is erroneous.

Louis City Circuit Court. — Hon. ■ Virgil Buie, Judge. (1) Section 8296', R. S. 1909, as applied to the facts in this case, is null and void, as being in violation of and contrary to article 2, section 15 of the Constitution of Missouri. Ex parte Bethurum, 66 Mo. 550'; Leete v. State Bank. 115 Mo. 184; Gladney v. Sydnor, 172 Mo. 318; Society v. Wheeler, 2 Gall. (N. II.) 105.

<p>1. NEGLIGENCE: Guarding Machinery: Knives of Planing Mill: Statute. The Statute (See. 6433, R. S. 1899) requiring “the. belting, shafting, gearing and drums” in all manufacturing and mechanical establishments, to be safely and securely guarded ■when possible, limits the guards to those parts only, and does not embrace all dangerous parts of the machinery. Those words do not include or embrace the planing ltniyes of a planing machine “set in a cylinder or axle or shaft Which rapidly rotated and which was run by a belt leading to a shaft in the floor.” The word “shafting” does not include either the knives or the axle or shaft in which they were set. And where plaintiff’s fingers were cut off hy the knives, as he was operating the machine, and his petition counted on defendant’s failure to guard the knives, in violation of the statute, and that negligence only, a demurrer to his case was properly sustained. [Disapproving Millsap v. Beggs, 122 Mo. App. 1.]</p> <p>2. -: -: Master’s Common Law Liability. The statute did not change the master’s common law liability to provide a reasonably safe place in which and reasonably safe tools with which his servants may perform their work, except to impose on him the duty to safely and securely guard the belting, shafting, gearing and drums of the machinery, where that is possible, and where that is impossible, to post notice of its danger; otherwise, the master’s liability remains as it did at common law.</p>

— Hon. Henry L. McCune, Judge. (1) The deed and contract of even date created the relation of mortgagor and. mortgagee between Sheppard and the respondents. 11 Am. & Eng. Ency.

Louis City Circuit Court. — Mon. Eugene McQuillin, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence. The plaintiff was working on a track where cars were liable to be moved at any time.

Louis City Circuit Court. — Hon. G. H. Williams, Judge. (1) The matters and things set up in plaintiffs’ petition are not res adjudícala. McMahan v. Geiger, 73 Mo. 145; Comstock v. Keating, 115 Mo. App. 378;. State Bank v. Bartel, 114 Mo. 276 ; Koekch v. Mixer, 52 O. St. 207. (2) In an action by one obligor on a bond or other obligation against his co-obligor for contribution, parol evidence is admissible to show for what proportion of the liability each one is bound.

Louis City Circuit Court. — lion. William M. Kinsey, Judge. (1) Where, by the terms of a contract, one of the contracting* parties is obligated to do one of two things in the alternative, he has the option to do either at his election; but if he fails or refuses to do either, then the election passes to the other .party to the contract. Coke, Litt. 145a; M’Nitt v. Clark, 7 Johns. (N. T.) 466; Collins v. Whigham, 58 Ala. 438; Muller v. Pels, 94 111.

<p>Appeal from Polk Circuit Court. — Hon. Argus Cox, ■ Judge.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) This is a writ of error coram nobis and is the proper procedure to set aside a judgment for errors of fact and fraud. Smith v. Young, 136 Alo.

— lion. J. J. Williams, Judge. (1) Upon the uncontradieted evidence that the whole of the purchase price of the new homestead, it being the real estate involved in this action, was paid out of the… Held: therefore, that he had no homestead right in said premises which was exempt from execution under plaintiff’s judgment.

— Ho». R. 8. Ryors, Judge. (1) The court erred in sustaining the demurrer to plaintiff’s evidence, at the close of her case. A demurrer to the evidence admits every fact which the jurors may infer, if the evidence were before them, and should be sustained only when -the evidence thus considered fails to make proof of some essential averment. Koexner v. Car Co., 209 Mo. 141; Riñe v. Railroad, 10 Mo. 228; Bender v. Railroad, 137 Mo. 242.

— Hon. Nick M. Bradley, Special Judge. (1) The court committed error in admitting the testimony of Mrs. Mills as to the identity of Jane Butler by Jane Butler’s own declarations with no other proof, and also as to her .relation to John Butler for the same reason. The same is true as to the testimony of Robert Farthing. 1 Wharton on Evidence, p. 209-, Greenleaf on Evidence (15 Ed.) sec. 207; 18 Am. & Eng. Ency. Law, 257, 263; 22 Am. & Eng. Ency.

— Hon. H. G. Riley, Judge. (1) There was not sufficient evidence before the trial court to show the instrument which witness Wells testified to witnessing as the will of Alexander Barnes, was the same instrument under which Agnes Barnes claimed said lands, and even though it was admitted to he the same instrument, there is neither proof nor fact sufficient to create a presumption that said will had been probated. Therefore it was ineffectual to pass title to Agnes Barnes.

— Hon. Hugh Dabbs, Judge. (1) The plaintiff’s laches, and especially with her warning and information from others adverse.to defendant’s good faith towards her, for at least two years, according to her oym testimony, about .a matter so open to inquiry; and her express acquiescence in the conveyance, as shown by her conduct and letters, from time to time, for nearly two and one-half years before suit, constitute an effectual bar against her as to any remedy, under the well…

— Hon. J. C. Sheppard, Judge. (1) It is not necessary tliat language should charge a crime in order that it should he libelous. Any language calculated to bring about the conditions denounced by our statutory definition of libel is libelous per se. Press v. ’Whitely, 50 Mo. 440; Ferguson v. Publishing Co., 72 Mo. App. 465.

Louis County Circuit Court. — Non. J. W. McElhinney, Judge. (1) It was defendant’s contention that the character of soil of this particular cut was such that its sides had a tendency to slide and cave in even though the cut was sloped at an angle less sharp than usual; defendant introduced expert witnesses to support this-contention.

— Ho». Henry D. Green, Special Judge. (1) The action is for an accounting to determine the amount of money withheld by the county which belongs to'the special road district; not a mandamus to compel immediate payment. Therefore it is not a defense that there will not be a surplus of revenue for 1908 with which to pay the judgment; nor is the fact as alleged in the answer that the county has spent the money in payment of its current expenses.

— Hon. Charles D. Steioart, Judge. (1) The statute was passed after the railroad had been constructed and was an attempt to take from it just that much property and thereby impaired the obligation of the contract and violated both the State and Federal Constitutions. Cooley’s Const. Lim., p. 721; Sturges v. Carter, 114 U. S. 519 ; Bailey v. Railroad, 4 How.

Louis City Circuit Court. — Hon. M. G. Reynolds, Judge. No error can be assigned for granting a new trial where appellant had asked for a new trial. Dierman v. Bag Co., 144 Mo. App. 474. (1) Respondent’s first contention is that appellant cannot complain of the order granting respondent a new trial, because appellant also asked for a new trial, which motion was overruled. This court has heretofore decided that point adversely to respondent’s contention.

<p>Appeal from Knox Circuit Court. — lion. C. D. Steimrt,, Judged</p>

Louis City Circuit Court. — Hon. Virgil Rule, Judge. (1) The judgment of the trial court makes the railway company liable without regard to the question of benefits to its property. It tbns violates, the ‘ ‘ due process” clause of the Fourteenth Amendment of the Federal Constitution, and of section 30, article 2, of the Constitution of Missouri.

— Hon. John G. Park, Judge. (1) Tlie charter of Kansas City gives no express authority to pass the ordinance in question. There being no express authority, there is no presumption in favor of the validity of the ordinance. There is no express authority given to declare that a nuisance which in fact is not so.

<p>Appeal from Jackson Circuit Court. — Hon. John G. Parle, Judge.</p>

'Appeal from Cole Circuit Court. — Ron. John M. Williams, Judge. (1) The acts of the Forty-sixth General Assembly, approved March 16, 1911, and March 24, 1911, and the method therein adopted for the issuance of State bonds to create a fund for the building of a new State capitol, were not authorized or warranted hy the provisions of section 44, article 4 of the State Constitution.

Mandamus. (1) The provisions of Sec. 329, R. S. 1909, that “in proceedings to which any county collector is cited as a party under section 322” the State Auditor is authorized, in his discretion, to retain counsel, and to direct the county collector to pay the expenses thereby incurred, furnishes no authority for the deduction of attorney fees in this case, because the mere notice by the appraiser to the collector of the time and place of the appraisement is not a citation…