tember 14, 1898, Woods assigned this contract to defendant, Phelan. Cain and his wife heard of the assignment, and came to Nevada to see defendant about the matter. They met, and, after discussing the matter, they made a trade with defendant whereby they exchanged their said farm to defendant for a farm owned by him in Stoddard county, Mo. The deeds were executed and delivered in the office of Messrs. McGinniss in Nevada, Mo. Several days later they entered into a contract about the exchange and sale of the personal property of the Cains. The memorandum is in these words: "McGinniss & Co. Office in Opera House. Nevada, Mo., Sept. 22, 1899. This is to certify that whereas, Thomas Cain and wife have placed in my possession the farm and household goods and stock numerated in the above list, that I hereby agree to furnish them with duplicates of said listed goods at secondhand prices, as nearly as possible, or, being unable to do this, I agree to pay them the value at secondhand prices in cash. This contract is to be carried out within thirty days from date at Dexter, Stoddard Co., Mo. I further agree to furnish said Thomas Cain and family of 4 with tickets from Nevada, Mo., to Dexter, Mo. [Signed] Walter Phelan. Witness: H. W. James. McGinniss & Co." Cain and wife and defendant selected their appraisers to test Cain's personal property and value it. After this was done, Cain sold a large part of this property with the consent of defendant, and kept the money. They did not sell two horses which they owned. brought these to Nevada, and turned them over to defendant. Defendant purchased the necessary tickets to transport Cain and family to Dexter, Stoddard county, and they went to Stoddard. It seems that when they reached there defendant went to Smith's livery stable to get them a team to replace the horses he got from them at Nevada. Smith did not have the kind of a team they wanted. Cain and wife went out, and looked at the farm, and were dissatisfied, and at once took steps to rescind their contract by which they exchanged farms with defendant, and refused to confer further with him in regard to furnishing them a team. They brought suit in the Vernon circuit court to rescind their trade, and this indictment in this case seems to have been found in aid of the suit in equity. The record is very voluminous. Indeed, it appears to be greatly out of proportion to the single issue tendered by the indictment. Without incumbering this opinion with the testimony in detail, it is sufficient to state, for the purposes of our decision, that the largest part of the evidence was directed to an effort to show fraud and misrepresentation of the farm in Stoddard county traded to Cain and wife by defendant. One reading the evidence without having read the indictment would conclude that defendant had been indicted for obtaining the farm of Cain and

They

his wife, and that the horse trade was a mere incident. An objection was made to the admission of all this evidence as to the character and value of the Stoddard county farm of the defendant because defendant was not charged with any false pretense as to that, and because the indictment did not advise him he was to meet such a charge, and the inquiry was immaterial, and collateral to the charge on which he was being tried. The learned judge, while overruling the objection, expressed the opinion that it was very doubtful evidence, and that he was inclined to think he had committed error. Various errors are assigned, and will be examined in the discussion of the case.

1. If the objection to the indictment is good, it will obviate a discussion of many minor points urged by the defendant. At a very early period in the judicial history of this state it was held not sufficient to charge that the defendant falsely pretended, etc., setting forth the means used, and then to aver that by means of such false pretenses he obtained the property, but it was essential to aver and state such pretenses as the pleader intended or expected to prove on the trial were used and were false; that is to say, he must, as in an assignment of perjury, falsify by specific and distinct averments. 3 Chit. Cr. Law, 999; 2 Maule & S. 279; State v. Peacock, 31 Mo., loc. cit. 415, 416; Same v. De Lay, 93 Mo. 98, 5 S. W. 607. Accordingly, in State v. Bonnell, 46 Mo. 395, it was said by Judge Wagner for the court: "Where the alleged false pretenses were injurious only by inducing another person to buy the cattle as to which such false representations were made, such sale, bargain, or agreement which was the cause of the party advancing or parting with his money should be set out as a part of the facts relied on, and as a material allegation in the description of the offense." State v. Newell, 1 Mo. 248; Com. v. Strain, 10 Metc. (Mass.) 521. In State v. Saurders, 63 Mo. 482, the indictment was very similar to the one under consideration, and, although it abounded in technical language, because it omitted to aver that the alleged false account "was assigned" by defendant to Sullivan it was adjudged bad. Now, applying these familiar principles and decisions to the indictment before us, it will be noticed that, after averring that defendant falsely pretended and stated to said Thomas Cain and Amanda Cain that if they would sell or trade to him "one team of horses," etc., "of the aggregate value of one hundred dollars, he, the said defendant, in exchange for said horses, would give to them horse for horse out of his defendant's livery stable," etc.; and the said Thomas Cain and Amanda Cain, believing said false pretense and false representations so made as aforesaid by defendant to be true, and being deceived thereby, "were induced to then and there sell and deliver to said defendant said pair of horses,"

etc. The pleader does not go further, and aver that he did in fact sell his said horses to defendant. Do the words "were induced to sell" amount to a positive, distinct averment that said Cains then and there did sell and deliver said horses to defendant? On the trial the Cains were permitted to testify that they sold and delivered the horses to defendant. Without this proof, the conviction of defendant could not have been obtained. In State v. Saunders, 63 Mo. 482, this exact point was ruled by this court. In that case this court said: "It appears that both in the judgment of the trial court and the prosecution it was necessary for the state to prove and the jury to find that the account was purchased by Sullivan of defendant, and that payment was made therefor, before the defendant could be convicted. If these were necessary facts to be established on the trial, -and we think they were,-then they should have been distinctly averred in the indictment by an affirmative allegation, and not by way of inference or argument." And because in that case the pleader neglected to aver the account "was assigned to Sullivan, and that he paid therefor," the judgment was reversed. The rule in criminal pleading is "that in an indictment nothing material shall be taken by intendment or implication." 2 Hawk. P. C. c. 25, § 61; State v. Meyers, 99 Mo. 116, 12 S. W. 516. The phrase "induced to sell" signifies that the defendant "moved," "urged," "instigated" the Cains to sell to him; but it falls short of averring that they "did sell" to him. The allegation should have been "were induced to sell and did seП and deliver" to defendant said horses. The false pretense was the inducement or motive to the sale, but, unless it resulted in a sale, the Cains would not have been deprived of their property. In Com. v. Lannan, 1 Allen, 590, the court, through Judge Hoar, says, "But in the indictment before us there is no direct averment that the prosecutor bought the horse; it is only stated that by means of the false pretenses set forth he 'was induced' to purchase him," etc., and the judgment was arrested. See, also, State v. Philbrick, 31 Me. 401; People v. Gates, 13 Wend. 311; Dillingham v. State, 5 Ohio St., loc. cit. 283. We are constrained to hold that, as this is a criminal proceeding, and nothing can be left to inference, and upon the weight of authority that the indictment is insufficient, the motion in arrest should have been sustained. As this necessarily requires a reversal of the judgment, it is unnecessary to note the exceptions to the admission of evidence and to the instructions given and refused further than to say that, if this prosecution is continued, the evidence should be confined to the charge in the indictment. It took too wide a range on the trial, and was well calculated to confuse the jury, and prejudice the defendant's case. Com. v. Jackson, 132 Mass. 16; State v. Lapage, 57 N. H. 245; Reg. v. Holt, 8 Cox, Cr. Cas. 411. The judg

ment is reversed, and the prisoner and his sureties discharged from their recognizance. SHERWOOD and BURGESS, JJ., concur.

STATE ex rel. GRAY v. PHOENIX LOAN ASS'N et al.

(Supreme Court of Missouri. Dec. 18, 1900.) RECEIVERS-APPOINTMENT IN VACATION-AUTHORITY OF COURT-APPEAL AND ERRORQUESTIONS PRESENTED-PETITION FOR AP

POINTMENT-SUFFICIENCY.

1. Rev. St. 1889, § 2193, provides that the court, or any judge thereof, shall have authority, in vacation, to appoint a receiver whenever such appointment shall be deemed necessary. Held, that a judge of the circuit court had authority, in vacation, to appoint a receiver to take charge of the property and assets of a building and loan association.

2. Where a judge of the circuit court appointed a receiver in vacation to take charge of the property of a building and loan association, an appeal from an order denying a motion to revoke the appointment did not present the question whether the court had authority in vacation to appoint a receiver to wind up the affairs of the corporation.

3. A petition filed by the superintendent of building and loan associations for the appointment of a receiver to take charge of the property of a building and loan association alleged that the corporation was conducting business in a manner which, in view of recent decisions of the appellate court, destroyed public confidence in the association and jeopardized the rights of its stockholders, and that it was unsafe and inexpedient to continue the business, which facts were admitted by the answer filed by the corporation. Held, that the petition and answer presented sufficient facts to justify the exercise of the discretion of the circuit judge in appointing a receiver for the association in vacation.

In banc. Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by the state, on the relation of Henry G. Gray, against the Phoenix Loan Association, to wind up the affairs of the defendant corporation, and for the appointment of a receiver, in which A. L. Crawford and other stockholders of the defendant corporation filed a petition in behalf of themselves and other stockholders, and were made parties defendant. From an order denying said stockholders' motion to revoke an order appointing a receiver, they appeal. Affirmed.

Crow & Eastin and Vinton Pike, for appellants. O. M. Spencer, Huston & Brewster, and Benj. J. Woodson, for respondent.

VALLIANT, J. This is a suit instituted by the supervisor of building and loan associations, looking to the dissolution and winding up of the defendant corporation. Appellants are stockholders in the concern, who were made parties defendant on their own petition. The cause is here on appeal from an order refusing to revoke an order appointing receivers of the affairs of the corporation. Only so much of the controversy, therefore, as is involved in that order is before us for review.

The petition was filed in the office of the clerk of the circuit court of Buchanan county during the vacation of the court, on July 15, 1899. It was signed by the supervisor of building and loan associations in person, without the appearance of the attorney general. It stated, in substance, that the relator had made official examination into and was acquainted with the affairs of the corporation, and that, owing to adverse rulings of the appellate courts of this state, the confidence of the public in the association had been shaken to such an extent that it was impossible for the officers to secure any new business or find new investors in the association, and that it could not continue business with a profit to those who had already invested in it, or with the hope of collecting premiums on loans made, and, if they could not be collected, the concern was insolvent; that a large number of shareholders had filed their stock for withdrawal, and, if permitted to withdraw at the then book value of the stock, it would so cripple the association that the other shareholders would not get the same proportion for their stock; wherefore the relator stated that it was unsafe and inexpedient for the association to continue to transact business. The prayer of the petition was for a dissolution of the corporation, appointment of a receiver to take charge of its property and affairs and wind up its business, and for an injunction, etc. At the same time the petition was filed an answer for the corporation was also filed, admitting the truth of the statements of the petition, and joining in the request that a receiver be appointed to wind up its affairs. And on the same day the petition and answer were presented to one of the judges of that court in chambers, who thereupon made an order in writing, signed by him as such judge, purporting to dissolve the corporation, and enjoin its officers and agents from conducting its business, and appointed two "receivers to take charge of the property and assets and to wind up the affairs of said association according to law and as this court may from time to time order." The order required the receivers to execute bond for the faithful performance of their duties, gave direction to them to select a bank of deposit, to make an inventory of the assets, appointed appraisers, ordered the board of directors to execute deeds conveying the property of the corporation outside of Missouri to the receivers, and ordered the receivers to employ a certain attorney as their attorney and counselor in all matters connected with the management and winding up of the business and such clerical assistance as might be necessary. Afterwards, in September following, several stockholders filed their petition in the case, showing the interest they had in the matter, and praying to be made parties to the suit. The petition was elaborate in its statements, showing mismanagement on the part of the officers of the corporation, and averring that the suit was

brought, not in the interest of the stockhold ers, but by collusion between the relator and the guilty officers, to aid them in covering up their misdeeds, and enable them to profit in the fees and salaries incident to the winding up of the affairs of the corporation through the receivers and attorney named in the order, and who it was alleged in the petition were nominated by them. Special objections were urged against the attorney and one of the receivers named in the order, and their removal was asked. In the limited scope of our inquiry on this appeal, it will not be necessary to review in detail the contents of that petition. Upon its presentation, the judge who had made the order of July 15th ordered that the petitioners be made parties defendant, and that so much of the previous order as required the receivers to employ the attorney named be rescinded, and they be free to select whomsoever they might for their attorney. The application for the removal of the receiver, against whom special objections were urged, was overruled. Shortly afterwards that receiver resigned, and another was appointed in his place. The estate was inventoried by the receivers at $500,000, and appraised by the appraisers at $400,000. The record shows that these stockholders have been waging a spirited contest to wrest the affairs of the corporation from the custody of the receiver from the date last named to the present time. merits of the several issues passed upon by the court in that contest, though discussed in the briefs of counsel, are not within the range of our present inquiry. There has never been any final decree in the case, unless the order of the judge in vacation of July 15, 1899, above mentioned, is to be deemed such. Yet the receivers appointed have gone on with the administration of the estate, collecting and compromising debts, selling property, etc., and, as we are informed by the briefs of their counsel, have collected $109,965.09 in cash, and paid out in dividends $79,275.28 to stockholders.

The

On May 9, 1900, these appellants filed their motion to revoke the appointment of the receivers, assigning as grounds therefor: "(1) Said order was made by a judge of this court in vacation, and without jurisdiction to do So. (2) The appointment of receivers was made without any legal grounds being shown therefor; that is to say, the said appointment was made because of what is alleged in the petition of Henry L. Gray, supervisor, etc., filed July 15, 1899, and what is said in said petition is not sufficient grounds for the appointment of receivers. (3) The petition does not state facts sufficient to authorize any judgment or order against the defendant on its property. The whole force of the motion is that the order appointing the receivers should be revoked, because-First, it was made in vacation; second, the showing made in the petition was not sufficient. The motion was overruled, and this appeal followed.

It will be observed that this is not an appeal from a final judgment which would bring in review the whole record, but it is, under the act of April 11, 1895, authorizing an appeal from an "order refusing to revoke, modify, or change an interlocutory order appointing a receiver." The theory of the motion and the contention of appellants is that there has been no final decree; that is, nothing that can be esteemed a final decree. We do not understand the learned counsel as contending that the judge of a circuit court has no authority in vacation to appoint a receiver. That authority is expressly given in section 2193, Rev. St. 1889, to "the court, or any judge thereof in vacation," to be exercised "whenever such appointment shall be deemed necessary." It is the conservative power of the chancellor to take into the custody of the court and preserve property in danger of waste or destruction until the conflicting claims of parties concerning it can be adjudged in due course.

The conferring

upon a judge in vacation the authority to issue injunctions, appoint receivers, etc., which acts, though judicial in character, are but preliminary or collateral to the matter in suit, does not conflict with the provisions of our constitution, which vest the judiciary power of the state in certain courts exclusively. Such powers are necessary to the administration of justice in courts that have periods of terms and vacations, and have always been exercised by such judges. But the duties of a receiver appointed in vacation, or before the judgment of the court touching the conflicting claims, are limited to collecting and preserving the property, with only such administration as the emergency demands.

The argument of appellants, however, here is that these were not that kind of receivers, nor their duties so defined; that the order appointing them essayed, first, to dissolve the corporation, and then to clothe the receivers with power to administer the estate. If the judge had no authority to render a final decree in vacation, he could not clothe the receivers with duties which only a final decree could give them. If there was no final decree, the receivers could not, with safety, go beyond the limit of collecting and preserving the estate, and such necessary acts of administration as the immediate emergency demanded, even though the order appointing them essayed to take upon itself the force of a final decree. The order is their warrant of authority. Such an order may be valid to some extent, but may be not valid as to its whole purport, and to the extent that it is valid it is a legal warrant for what is done in pursuance of it, but not further. To the extent that the judge in vacation had jurisdiction to confer power, the power conferred was valid; to the extent, if any, that he essayed to confer power not within his jurisdiction, his act was in vain. But the motion which we are now consider

ing does not relate to the character of these receivers, whether temporary or permanent, or the duties with which they are claiming to be clothed, but only with the fact of their appointment. The order appointing the receivers directs that they "take charge of the property and assets and wind up the affairs of said association," etc. That the circuit judge in vacation had authority to appoint a receiver "to take charge of the property and assets" is undoubted. Whether he could at that juncture commission them to "wind up the affairs of said association" is another question, and is one not compassed in this limited appeal.

The second point in the motion, that the plaintiff's petition did not state a case authorizing the appointment of a receiver, is not so free from doubt. The petition does not purport to have been drawn by a lawyer, the attorney general does not appear to have been consulted, and the petition is signed by the supervisor of building associations in person. The intervening petition of appellants charges that the proceeding is the result of collusion, and that the petition was drawn by the attorney for the corporation, who also drew and signed the corporation's answer, admitting the truth of the statements in the petition and joining in its prayer. If the fact was that the supervisor had reached the conclusion that the corporation had possibly, under a misconception of the law, been theretofore conducting its business in a manner that the more recent decisions of the appellate courts had discovered to be unlawful, and had thereby rendered its investments and loans obnoxious to the laws of usury in this and other states, so that it was in peril, and if when this matter was brought to the attention of the officers it was agreed between the supervisor and them that the corporation should cease business and go into liquidation through a proceeding in court, and if. as appellants aver, the attorney for the corporation drew the petition as well as the answer, it would be expected that the mistakes or misconduct of the officers would be stated in the very least accusatory form that could be conceived. We gather, rather vaguely, it is true, from the briefs of counsel, that some such conditions existed. At all events, the petition stated a case, if at all, very weakly,-like an indictment which one might have drawn against himself or had his friend to draw. But the petition does carry the idea that the corporation had been conducting its business in a manner which, when viewed in the light of recent decisions of the appellate courts, destroyed public confidence in it, and Jeopardized the rights of stockholders, and the supervisor pronounced it unsafe and inexpedient for the association to continue to do the business for which it was incorporated. We do not say that the petition, if challenged as an adversary pleading, states a cause of action, or that it is sufficient foundation upon

which to build a final decree. It is unnecessary, for the purpose of this appeal, to decide the point. But we have here the petition, with its vague averments, indicating an unsafe condition of the corporation, and the answer of the corporation itself, confessing the truth of the averments. These are presented to the circuit judge in vacation, and he is asked to appoint a receiver. If, under the circumstances, the learned judge in the language of the statute, "deemed it necessary," he was empowered by law to make the appointment.

Limiting our inquiry to the subject alone which is brought up on this appeal, and not intending to give any intimation of opinion on other points discussed in the able briefs and arguments of the learned counsel, we have concluded that the circuit judge had authority to appoint the receivers when he did, and that the circumstances and showing presented a sufficient case for the exercise of a sound discretion in the matter. Therefore the order of the circuit court overruling the motion to revoke the appointment of the receivers is affirmed. All concur.

Defendant, in accordance with a grant from the county court, constructed a street railway on a county road; and subsequently the plaintiff city extended its territory so as to include such road within its limits, but prior to such extension had passed an ordinance providing that no person or persons should tear up or otherwise interfere with any of the streets of said city without first obtaining permission from the aldermen. The defendant tore up the streets, in reconstructing a switch, without first obtaining the required consent. Held, that the ordinance was not unconstitutional, as impairing the obligation of defendant's contract with the county court, but constituted a valid exercise of the police power of the city, and defendant was liable for its violation.

In banc. Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Action by the city of Westport against J. W. Mulholland. From a judgment of the criminal court reversing a judgment of the police court in favor of plaintiff, plaintiff appeals. Reversed.

The following is the opinion in division No. 1 (VALLIANT, J.):

"Defendant was convicted and fined in the police court of the city of Westport upon a charge of violation of a city ordinance, of which the first section is, 'No person or persons shall tear up, dig up or ditch or otherwise interfere with any of the streets or alleys within the limits of the city of Westport without the permission first obtained from the board of aldermen of said city.' The second section prescribed the penalty for the

violation. Upon appeal to the criminal court of Jackson county the cause was tried on an agreed statement of facts, upon which there was a judgment of acquittal, and the city appealed to the Kansas City court of appeals. The cause was transferred to this court because it involves a construction of the constition. The facts are that in 1887 the county court of Jackson county granted the Grand Avenue Railway Company the right to construct and maintain its street railway on Rosedale avenue, then a county road under the jurisdiction of the county court, and under that grant the railway company constructed, and has since maintained and operated, its railway. In April, 1891, the city of Westport extended its limits, and took in Rosedale avenue, and with it the railroad. Afterwards, in November, 1891, the defendant, in the service of the railway company, without permission of the board of aldermen, dug and tore up the street, in reconstructing a switch that was necessary for the operation of the railroad; and that is the offense for which he was tried. The city ordinance was passed several years before the city extended its limits, and was in force at the time of the alleged violation by defendant. The whole defense in the case is that the county court, when it had the authority to do so, in 1887, having granted the railroad company the right to lay and maintain its railroad on the public road, which grant included the right to do what the defendant in this instance did, the railroad company could not, under that provision of the constitution which forbids laws impairing the obligation of contracts, be deprived of that right or limited in its exercise. That is the only proposition in the case. "That the city could not by its ordinance deprive the railroad company of its franchise, or impair the obligation of its contract with the county court, treating the grant of the franchise and its acceptance as a contract, is a proposition of law that has not been gainsaid in this country since the decision in the Dartmouth College Case in 1819, 4 Wheat. 518, 4 L. Ed. 629. But that, in the exerciseof a franchise affecting the safety or well-being of the public, the grantee is under the control of the police powers of the state, is a proposition equally well settled. The question then is, is the authority of the municipality asserted under that ordinance the impairment of the contract, or only a reasonable regulation of its exercise? In construing the ordinance for the purpose of testing its validity under the constitution, we must accord to it a reasonable and lawful purpose, if it is susceptible of such, and must assume that in its exercise a wise discretion will be used by the city officials, either of their own will, or under compulsion of the courts. It is undoubtedly true that, in maintaining and operating its railroad, repairs will be required which will necessitate the digging and tearing up of the street, more or less, and the right to do this, under reasonable police regu-