ing to the contrary, and favorable suppositions are generally indulged to uphold the rulings of subordinate courts of general jurisdiction; those who complain of their rulings being required to make affirmative proof of the facts necessary to support an assignment of error, instead of invoking a presumption. State v. Baty, 166 Mo. 561, 66 S. W. 428; City of St. Louis v. Lanigan, 97 Mo. 175, 10 S. W. 475; State v. Mackin (K. C.) 51 Mo. App. 299; State v. Brown, 75 Mo. 317; McClanahan v. West, 100 Mo. 309, 13 S. W. 674; Hamer v. Cook, 118 Mo. 476, 24 S. W. 180; State v. Bank of Neosho, 120 Mo. 161, 25 S. W. 372.

(b) Appellants applied to this court for a writ of certiorari to the clerk of the St. Louis circuit court, directing said clerk to make the record show that the appeal from the justice of the peace was taken during the October term, and on that application a writ was ordered directing the clerk to show the circuit court was in session on the 30th day of November, when the justice's transcript was filed in his office, if that was the fact. On our ordering the writ of certiorari, the respondent admitted the fact directed to be shown by the clerk in the record, but contested the issuance of the writ on the ground that such amendment was improper; and appellants now say that on that showing it is apparent the October term was still in progress on the 18th day of October. It is made the duty of an appellant from a judgment of a justice of the peace in a forcible entry or unlawful detainer action to cause to be filed in the office of the clerk of the circuit court to which the appeal is taken, on or before the return day of the appeal, a certified transcript of the record and proceedings before the justice. Rev. St. 1899, § 3381. The filing entry is not an act of the court, nor does the statute require the clerk to note that the transcript is filed in term time or vacation, as the case may be, which fact, therefore, can only become a matter of record by being introduced in evidence on the trial, although the trial judge may take notice of it, as said. But a clerk should not certify in a transcript matters judicially noticed, nor any matter which is neither properly of record per se nor made of record by being put in proof and preserved in a bill of exceptions. It was the duty of the appellants to have introduced proof that the October term was still running when they appealed from the justice's decision, if they wished to bring that fact up for our consideration, and then it could properly have been inserted in the bill of exceptions. But to permit the clerk's amendment, or the admission of the respondent in lieu thereof, to overcome the presumption that the court below rightly took jurisdiction of the cause, would be to dispense with evidence to rebut a legal presumption. It follows that we must proceed on the theory that the court below had jurisdiction.

2. The judgment against appellants' sure

ty on the appeal bond was unauthorized, for in this kind of proceeding a summary judgment against such sureties is without statutory warrant; the remedy of the appellee being by an action on the bond, as in the case of an appeal to the supreme court. Keary v. Baker, 33 Mo. 603; Gunn v. Sinclair, 52 Mo. 327; Powell v. Camp, 60 Mo. 569. But the judgment may be treated as a nullity or reversed here as against the surety without disturbing it as to the appellants. Smith v. Railroad Co., 53 Mo. 338; Neenan v. City of St. Joseph, 126 Mo. 89, 28 S. W. 963; City of St. Louis v. Lanigan, 97 Mo. 175, 10 S. W. 475. In the case of Foundry Co. v. Kelly (St. L.) 91 Mo. App. 93, we examined the decisions touching the doctrine of the entirety of judgments, and its effect when a judgment is rightly entered against one party and wrongly against another, and held that, as the law now stands, a reversal as to both is unnecessary, except in cases where the obligations of said parties are so interwoven that to annul the judgment as to one involves its annulment as to the other for the sake of justice. Besides, this point was not presented in the appellants' motion for a new trial, which is another good reason for disregarding it. State v. Farmers' & Merchants' Nat. Bank, 144 Mo. 381, 46 S. W. 148.

3. The stipulation in the lease that, if the leasehold premises should be sold during the term, the lessees would vacate and deliver up possession on 30 days' notice in writing, shows on its face that it was intended to pass with the reversion; for the purpose of it was to give the lessor the privilege of conveying the property with its enjoyment undiminished by an outstanding term, so that a purchaser might enter into possession immediately, to make such use of the premises as he desired. Appellants insist that this covenant was one which did not run with the reversion, but was personal to the original lessor and could only be availed of by him, and not by grantees. According to the accepted opinion, no covenants ran with the reversion at common law, because of feudal reasons connected with fealty, or the personal tie created from choice between a lord and vassal, which relationship the former could not transfer to another without the latter's consent. When the importance of this social theory had waned in popular estimation, as compared to that of the free exchange of property, legislation was desired to enable demised lands to be transferred so as to carry to grantees the full benefit and burden of contracts between owners and occupants; in other words, to authorize their conveyance subject to all rights and interests affecting their use. To satisfy this need, the statute of 32 Hen. VIII, c. 34, was enacted, a statute broad enough in its terms to carry every stipulation in a lease to a grantee of the fee, but construed for centuries to carry only those which by the common law ran with the land. Spencer's Case,

5 Coke, 18; Webb v. Russell, 3 Term R. 402; Dolph v. White, 12 N. Y., loc. cit. 302. That statute is in force in this state, and hence whether the covenant in question passed to the present plaintiff's depends on whether it was real or personal. Covenants are usually tested by the various resolutions in Spencer's Case, and mostly by the first two, to determine their quality. Of these, the first relates to covenants which run with the land, and declares that they are such as provide for acts to be done on the premises demised, though whether an assignment of either the reversion or the term transfers their benefits and obligations is therein said to depend on the circumstance whether they relate to a thing in esse, parcel of the demise at the time it is made (as to repair a house then on the premises), or to something to be made thereafter (as to build a wall), and that in the first instance they go by assignment, whether assigns are named in the lease or not, but in the second instance only if assigns are named. But now the prevalent rule is that, if an intention is shown by the instrument for them to pass, mention of assigns is not indispensable. Personal covenants are said to be such as do not touch the interest demised, but are merely collateral to it, as a covenant to build a house on some other parcel of land not leased, or to pay a collateral sum to the lessor or a stranger, in which cases the covenants do not go to assignees, even if they are named in the lease. 1 Tayl. Landl. & Ten. (8th Ed.) §§ 260, 263. The language of the resolutions in Spencer's Case might convey the impression that real covenants are only such as relate to some physical thing to be made or done on the premises, but the meaning is that they are such as affect the use and enjoyment of the premises by the tenant, or of the inheritance by the reversioner. Many cases have held that the covenant for quiet enjoyment, and similar provisions, in deeds, which do not contemplate any change in the physical condition of the premises, go with the land. Norman v. Wells, 17 Wend. 136. As was said in Bally v. Wells, 3 Wils. 25, in treating of collateral covenants: "The reason why the assignees, though named, are not bound, is because the thing covenanted to be done has not the least reference to the thing demised. It is a substantive, independent agreement, not quodam modo, but nullo modo, annexed or appurtenant to the thing leased." The sum of the recondite distinctions found in the books may perhaps be safely stated to amount to this: Covenants which affect the use, value, and enjoyment of the premises, whether they relate to physical changes to be made thereon, or to the use of the term or of the fee, go with both the reversion and the land, while stipulations in leases by which the parties to those instruments bind themselves to do acts which in no way affect the use or enjoyment of the premises are merely personal obligations be

tween themselves. The covenant in question manifestly bore directly on the disposition of the premises by the owner of the fee, and therefore was one which ran with the land, unless the fact that assigns were not named in the lease as possible beneficiaries of the covenant restricted its benefits to the original lessor. But the rule in regard to assigns being named simply means that it must be apparent, in instances when the covenant sought to be enforced related to something not in esse, that the intention of the parties to the lease was that a subsequent assignee should enjoy the covenant; and if that intention can be gathered, although assigns are not mentioned, it will be enforced as much as if they were. In fact, that distinction, as stated in Spencer's Case, has been strongly criticised in England (Minshull v. Oakes, 2 Hurl. & N. 793; Spencer's Case, 5 Coke, 16, 1 Smith, Lead. Cas. [9th Ed.] p. 186), and is treated as of no importance in this country when the instruments construed show an intention for the covenant to run (1 Smith, Lead. Cas. 208; Masury v. Southworth, 9 Ohio St. 340; Oil Co. v. Blair, 113 Pa. 83, 4 Atl. 218, 57 Am. Rep. 442; Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; Dorsey v. Railroad Co., 58 Ill. 65). In construing a similar covenant in a lease, by which either of the parties, or their executors or administrators, might terminate it by giving 12 months' notice, Lord Ellenborough held that the notice could be given by an assignee of either party, or by the heir or devisee, as well as by the parties themselves, their executors or administrators, saying: "The object of such a proviso manifestly is that the inheritance should not be bound, on the one hand, against the will of the persons to whom the inheritance belongs, and that, on the other hand, the lessee, and those claiming under him, should not be bound against their will, but that in all circumstances the parties interested, whosoever they might be, should have the power to give the necessary notice for this purpose. The intention is not to give a collateral power to be exercised by a stranger, but to annex certain privileges to the term and to the reversion, to pass with such term and such reversion, respectively, and to be exercised by the persons, whosoever they might be, to whom such term or reversion should come." Bamford v. Hayley, 12 East, 464. See, also, Kennedy v. Liddy, 15 Wkly. Rep. 431; toe v. Hemmings, 2 Bulst. 282; Wright v. Burroughes, 4 Dowl. & L. 449. In Roberts v. McPherson, 62 N. J. Law, 165, 40 Atl. 630, a written lease reserved the right to the lessor to terminate the tenancy at the end of any month by giving notice to the tenant, and, the reversion having been conveyed, the grantee thereof gave notice to terminate. His right to do so was challenged by the tenant; but it was ruled that the statute 32 Hen. VIII, c. 34, carried the benefit of the covenant to the grantee. We are cited by

At

appellants to the case of McClintock v. Loveless, 5 Pa. Dist. R. 417, as holding a different doctrine; but the stipulation construed therein was different from the one before us, and not so obviously intended for the benefit of whomsoever might acquire the reversion; nor is the reasoning in that case as satisfactory as in the others we have noticed. By the weight of authority, we think there is no doubt this particular covenant inured to the benefit of the first grantee, and also of subsequent grantees, for in the seventh resolution of Spencer's Case it was resolved that the assignee of the assignee should have an action of covenant.

the

4. The argument that the stipulation of the parties as to the damages done to the premises by appellants after they should have vacated, restricted the judgment that might be given for damages to $1, is unsound. That agreement also stated monthly rental value of the premises, and the court rightly gave judgment for twice the sum of the rental value to the date of judgment, as damages, in addition to whatever damage had been done to the property. Rev. St. 1899, § 3340.

The judgment is affirmed as to appellants. BLAND, P. J., and BARCLAY, J., concur.

WALSH v. ASSOCIATION OF MASTER
PLUMBERS OF ST. LOUIS, MO., et al.
(Court of Appeals at St. Louis, Mo. Dec. 16,
1902.)

MONOPOLIES
PLUMBERS' ASSOCIATION-BOYCOTT-EX-
ISTING REMEDY-INJUNCTION.

REGULATION OF PRICES

1. Under the direct provisions of Rev. St. 1899, c. 143, art. 2, § 8978, an agreement between a plumbers' association and dealers and manufacturers, whereby the latter agreed not to sell supplies to others than members of the association, and the former to boycott any dealer found selling to a nonmember, entered into for the purpose of fixing prices and limiting the production of such articles, was unlawful.

2. Rev. St. 1899, c. 143, art. 2, § 8978, declares agreements to regulate prices or control or limit trade illegal. Section 8982 provides that it is the purpose of the article to furnish an additional remedy for the control and restraint of pools, trusts, and conspiracies in restraint of trade. Held, that any remedy existing before the enactment of the above was not taken away or abridged by section 8979, which makes it the duty of the attorney general and the prosecuting attorneys under his direction to institute proceedings to restrain such illegal agreements.

3. Injunction will lie to dissolve an illegal agreement between a plumbers' association and dealers and manufacturers, whereby the latter agree not to sell to others than members of the association, and the former to boycott any dealer found selling to a nonmember, and to restrain the enforcement of such agreement against a plumber who, by reason thereof, has been unable to purchase supplies with which to do his work.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

3. See Monopolies, vol. 35, Cent. Dig. § 17.

Injunction by Joseph E. Walsh against the Association of Master Plumbers of St. Louis, Mo., and others. From a judgment for defendants on sustaining a demurrer to the bill, plaintiff appeals. Reversed.

The following is the petition, omitting caption: "Now this day comes the plaintiff in the above-entitled cause, and, by leave of court first had and obtained, files this, his amended bill. Plaintiff states that the said Association of Master Plumbers of St. Louis, Missouri, is composed of the following named persons, who are members thereof, to wit: [The names of 300, or more, persons and firms, carrying on the trade of master plumbers in the city of St. Louis, are then set forth.] That the defendant F. A. Brandt is the president of said association, and that J. J. McNary is the assistant secretary, and Phillip Schmitt is the secretary of said association. Plaintiff states that the defendants, viz., L. M. Rumsey Mfg. Co., Rumsey-Sikemeier Co., Cahill-Swift Mfg. Co., the National Plumbing Supply Co., N. O. Nelson Mfg. Co., Western Brass Mfg. Co., and Crane & Co., are corporations organized under the laws of this state, and are engaged in the manufacture and sale of goods and materials known as 'plumbers' supplies,' with offices and places of doing business in the city of St. Louis, Missouri. For cause of action plaintiff states that he is, and has been for a long time, engaged in the business of plumbing in the city of St. Louis, and has complied with the state and local laws, and has been and is a duly licensed and registered plumber; that he has expended much money and time in learning the trade of plumbing and acquiring business and trade in St. Louis, Missouri, and that by years of devotion to his said business and trade the plaintiff had established for himself a substantial and profitable business, which he carried on successfully for many years until about the year 1899. Plaintiff states that these defendants (the said members of the Association of Master Plumbers and the said dealers and manufacturers) have entered into an understanding and combination in writing, combining and conspiring together against this plaintiff and all other plumbers in this city who are not members of said Association of Master Plumbers, whereby it is agreed and understood by and between these said master plumbers that these said dealers and manufacturers in and of plumbers' supplies I would not and should not sell to any master plumber any plumbers' supplies unless said master plumber desiring to buy said supplies was or first became a member of said Master Plumbers' Association, and, in order to more effectually enforce said agreement and carry out and further said conspiracy, said Master Plumbers' Association and the said members thereof agreed and threatened to boycott any dealer found selling to a nonmember of the said Master Plumbers' Association, and thereby tried to force and com

pel this plaintiff to join said Master Plumbers' Association, and become a party to said conspiracy and combination, which this plaintiff refused to do; and, solely for the reason that this plaintiff refused to join and become a member of said Master Plumbers' Association and become a party to said unlawful combination, conspiracy, agreement, and understanding, and refused to thereby aid and assist these defendants in their unlawful undertaking to create and maintain a monopoly for the purpose of controlling the business of plumbing in St. Louis, Missouri, and to control the price of plumbers' supplies in said city, and to limit and restrict the sale of said supplies as aforesaid, these defendants have for a long time in the past refused, and now refuse, to sell or permit to be sold to this plaintiff, or any other person in the city of St. Louis, any of said plumbers' supplies; that said supply dealers and manufacturers, in furtherance of their part of said wrongful agreement and conspiracy against this plaintiff, and to more effectually carry out and accomplish the purpose of said combination, entered into an agreement and understanding among themselves and with said master plumbers whereby it was agreed and understood that, if any one of said dealers should sell or permit to be sold any of said supplies to any plumber or other person in the city of St. Louis, Missouri, who did not belong to said Master Plumbers' Association, said dealer or manufacturer should be fined therefor the sum of $250. Plaintiff states that said conspiracy and combination entered into and carried on, and now being carried on, was and is for the purpose of limiting competition and restricting trade and raising and controlling the prices of plumbers' supplies in the city of St. Louis. Plaintiff states that by reason of the aforesaid secret, wrongful, and unlawful agreement, understanding, combination and conspiracy among and between these defendants, plaintiff has for more than one year next before the filing of this suit been denied by these defendants the right and privilege to buy said plumbers' supplies of the kind necessary and requisite with which to carry on his said business and trade of plumbing, and has been obliged to forego and abandon contracts to do plumbing where he could have earned large profits, but for the wrongful interference and restraint put upon him by these defendants. Plaintiff states that on divers occasions he has gone to the various supply houses owned and managed by defendants, and offered and desired to purchase plumbers' supplies, tendering the market price therefor, and that he needed said supplies and material in order to finish and do plumbing that he had contracted and agreed to do, and that defendants refused to sell to him said goods at any price, stating as their reason for so refusing to sell said supplies that he (meaning plaintiff) did not belong to said Master Plumbers' Association, and they (defendants) therefore could not sell

to him (plaintiff) any goods. Plaintiff states that these defendants, conspiring and working together as aforesaid, have driven and forced this plaintiff and many other reputable plumbers almost, and in many instances entirely, out of business. Plaintiff states that by reason of this conspiracy and combination among these defendants it is useless for him to make or attempt to make and enter into contracts with his customers to do plumbing work, for the reason that he cannot buy supplies and material with which to do and complete said work and contracts. Plaintiff states that on many occasions he has purchased from these defendants supplies, and paid for the same, and upon learning that the plaintiff (or person buying said supplies) was not a member of said association, the employés and agents of defendants have compelled plaintiff (or said purchaser) to return said supplies to defendant, and in some instances the plaintiff or person buying or having bought said supplies has been assaulted, and said supplies were forcibly taken from him by the agents and servants of the defendants engaged in selling said supplies. Plaintiff states that the said Master Plumbers' Association and the said members thereof have been for a long time, and are now, engaged with said supply dealers and manufacturers in said conspiracy, combination, understanding, and agreement; that said conspiracy, combination, understanding and agreement is in violation of the laws of this state; that the same is in restraint of trade, and in violation of the rights of the plaintiff and the general public, and against public policy. Plaintiff states that by reason of the said unlawful agreement, combination, understanding, and conspiracy, and the wrongful acts of these defendants, he has been greatly injured in his business,-that of plumbing; that he has suffered great financial loss and damage by being prevented and restrained from carrying on his said business by reason of these defendants wrongfully refusing to sell and preventing him from buying goods and supplies with which to carry on his business. Plaintiff states that by reason of the aforesaid wrongful acts of these defendants plaintiff is and has been compelled to pay exorbitant and high prices for plumbers' supplies, so that he is unable to compete with these defendants in the plumbing business. Plaintiff states that the aforesaid defendants who are engaged in the manufacture and sale of said plumbers' supplies, are all of the persons or corporations known to the plaintiff who are engaged in selling and manufacturing said supplies in the city of St. Louis, Missouri, and that there are no other persons or corporations in said city from whom the plaintiff can buy or obtain said supplies of the kind and quantity with which to do and carry on his business of plumbing. Plaintiff states that these said defendants, who are engaged in the sale and manufacture of said supplies, as aforesaid, heretofore secretly entered into