Volume 102 — Missouri Reports

— Hon. Chas. W. Sloan, Judge. (1) Private property cannot be taken or damaged for public use without just compensation. Const., art. 2, sec. 21; Const. U. S., art. 5. (2) Private property is taken for a public use when it is appropriated to the common use of the public at large. Owners of Ground v. Mayor of Albany, 15 Wend. 374.

— Hon. John L. Thomas* Judge. (1) There is no evidence tending to prove that anything done by the defendant to deceased caused or hastened its death. No authorities necessary. (2) The court erred in permitting the state to read the minutes of the evidence taken by the grand jury: Mrs. Holman, Tod Holman and Mrs. Applegate.

— Hon. James M. Sandusky, Judge. (1) The court erred in excluding the evidence offered by the defendant, because it tended, first, to show the beginning of the trouble, and explain in what sense defendant used the word “thief.” There- is a vast difference in calling a man a thief, in so many words, and in telling him that he will prove him to be a thief, by his own admissions, and especially so when you are trying to prove the state of a man’s mind by the use of such words.

— Hon. Andrew Ellison, Judge. (1) If George W. Richardson is not dead, as found by the coart, then tfie plaintiffs are not the real parties in interest, and their bill should have been dismissed without prejudice. ' It was error in the court, after so finding, to decide upon the other issues raised by the pleadings, and to conclude the parties in interest for all time to come.

<p>1. Contract: swamp lands : sale by county. A county and a railroad company entered into a contract reciting that the county sold to the company its swamp lands at the price of $1.35 per acre ; that a deed of the lands to the company had been placed in escrow ; that the company proposed to do certain work, to drain, reclaim and protect said land for a sum equivalent to the price of the land, and that said proposed work would open up for settlement and cultivation a large portion of the southern part of the county, and also promote the health of the county by a drainage of said lands; The contract further provided that, in consideration of the premises and other valuable considerations, the county agrees to pay the company the price of the lands so sold, and that a deed therefor has been placed in escrow to be delivered to the company on the completion of the work. The company on its part agreed to build a levee across the swamp of a specified width and to operate a railroad thereon ; and also to open continuous ditches along said levee on both sides, if necessary to drain the land, the company to have the right to leave openings in the embankment wherever it saw fit, putting trestlework in place thereof, and agreeing to drain the surface water when necessary into the places where it erected trestlework. Held, that the contract was merely a donation of the lands to the company in consideration of building and operating its road, and not a contract to deed swamp lands as payment for reclaiming them.</p> <p>3.---; ——— : powers OP COUNTY COURT. The county courts in disposing of swamp lands are but the agents of the county with powers limited and defined by law, and their acts, where they exceed their powers, are void.</p> <p>3. -:--:--. The county court in disposing of its swamp lands by the contract involved in this case exceeded its powers.</p> <p>4t. Practice: parties. In an action to enjoin the return of the deed held in escrow to the county court, the county, being the real party in interest, was properly permitted on its motion to be made a defendant.</p>

— Hon. Richard Field, Judge. (1) The beneficiary in a deed of trust, if not made a party to the tax suit, has' a right to redeem. Held: 58 Mo. 218 ; Thornton v. Irwin, 43 Mo. 153 ; Hill on Mortgages [ 4 Ed. J 476, and notes. The case of Bush v. White, 85 Mo. 339, does not sustain the position of defendant, because the judge, on page 360, decided that limitation runs because there was no act to prevent its running, and this case sustains plaintiff’s views.

— Hon. E. M. Hug-iies, Judge. (1) The objection to the evidence of Guyon Wilson should have been sustained. It was not in rebuttal. Rankin v. Rankin, 61 Mo. 295; Christie ®. Craig, 80 Mo. 867. (2) The court should have required the defendant to answer on cross-examination the question whether he bought the land by the acre from McGee. Brown v. Banks, 2 Mo. 191; Kuntz v. Kuntz, 48 Mo. 71; Williams v. Croio, 84 Mo. 298; Greenl. Ev., sec. 277.

<p>_Error to Clinton Circuit Court. — IIon. J. W. Sandusky, Judge.</p> <p>(1) The court erred in excluding the deed of William Jones, administrator, to James Fugate, the father of plaintiff, Martha J. Hughes. Henry v. McKerlie, 78 Mo. 417 ; Bvans v. Robber son, 92 Mo. 192 ; McC lure v. McOury, 53 Mo. 173; Robson v. Thomas, 58 Mo. 581; Baker v. Underwood, 63 Mo. 384. (2) The court erred in refusing to set aside the nonsuit.</p> <p>(1) After the amendment of the petition, changing the cause of action from one in favor of Mrs. Hughes to one in favor of Mr. Hughes, the circuit court of Clinton county had no jurisdiction of such new cause of action. Field v. Maloney, 78 Mo. 172. (2) A party cannot, under guise of amending his petition, so change the same as to substitute another cause of action for the one stated, or attempted to be stated, in his original petition. Bliss on Code Pleadings, sec. 429 ; Lumkinv. Collier, 69 Mo. 170. (3) As the statute of 1845 required that an administrator ’s deed should be acknowledged, a proper acknowledgment was an essential part of the deed; and without an acknowledgment the deed would have no validity. Cabell v. Grubbs, 48 Mo. 355 ; Allen v. Moss, 27 Mo. 355; Allen v. King, 35 Mo. 216. Although a defectively acknowledged administrator’s deed may be good as color of title, it is insufficient to pass title. Campbell v. Gas Co., 84 Mo. 354. (4) A deed is necessary to pass the title. Wohlien v. Speck, 18 Mo. 561. Sale, payment of price and appi’oval may create in the purchaser an equity for a title, which would defeat an action of ejectment against such purchaser, as was declared in the case of Henry v. McKerlie, cited by the plaintiff’s counsel; but a plaintiff in ejectment cannot recover on an equitable title. Pickett v. Jones, ■ 63 Mo. 195 ; Ford v. French, 72 Mo. 250; Dunlap Henry, 76 Mo. 106. ( 5) As there was no evidence that the title of the land was ever vested in Partridge, the rejection of the instrument in question was not prejudicial to the plaintiffs so far as can be determined from the record. Unless the court can see that the rejected evidence was material, there is no ground for reversal. Bank v. AulVs Adm'r, 80 Mo. 199; Kraxberger v. Rotter, 91 Mo. 404; Fitzgerald v. Barker, 96 Mo. 651. ( 6) After a suit has been brought in the name of one, another party cannot, by amendment of the petition, be substituted as plaintiff. Crescent F. & L. Co. v. Raddatz, 28 Mo. App. 210. (7) On the state of facts disclosed by the reply of the plaintiffs there could have been no* recovery in. this action by Mrs. Hughes. Rust v. Goff, 94 Mo. 512. If the allegations of the reply are true the right of action was in the husband only. Wilson v. Garaghty, 70 Mo. 517.</p>

Quo Warranto. (1) The special election for city marshal, held on March 4, 1890, was void. Section 1089, article 1, chapter 28, revised ordinances of St. Louis, attempts to cure a casus omissus in the charter, and is in effect an amendment to the charter.

— Hon. Gr. W. Ltjbke, Judge. (1) The record does not contain any evidence of an actual copartnership between the defendants, and the instructions of the court do not properly submit that question. 1 Lindley on Partnerships, p. 1; Campbell r>. Lent, 54 Mo. 325. Not even participation in profits and losses would constitute partnership without more. Clifton ¶. Howard, 89 Mo. 192; Donnell v. Harsche, 67 Mo. 170. (2) There was no such “ holding out ” of Fred.

Habeas Corpus. Section 3954, Revised Statutes, 1889, declaring that imprisonment upon a second or subsequent conviction shall commence at the termination of the term of imprisonment adjudged upon the prior conviction, is simply declaratory of what the law would be without its enactment. The court could, without the authority of the statute, pass cumulative sentences and make one begin at the termination of the other. 1 Bish. Crim.

<p>1. Deed: sufficiency of acknowledgment. The acknowledgment of a deed to land in Missouri taken before the deputy clerk of a territorial district court is sufficient, notwithstanding the statutes of the United States, providing for the appointment of the clerk of such court, make no provision for a deputy (R. S. U. S. 1878, sec. 1871), though deputy clerks of territorial courts are expressly spoken of elsewhere in the statutes. ( R. S. U. S., sec. 748.)</p> <p>2. Offices and Officers : deputy : clerk of court. A ministerial officer may make a deputy whenever nothing is required but superintendency in office.</p> <p>8. -: -: -. The office of clerk of a court seems to be one which, from its nature and constitution, implies the power or right to execute it by deputy.</p> <p>4. -: -. The rule is general that a deputy may do every . act which his principal might do, and it will be presumed that he acted with rightful authority</p> <p>5. Devise: separate estate, conveyance oe. A devise to a married woman “for the sole use of herself and children,” creates in her a separate estate, the equitable fee to which she may convey, by an unacknowledged deed, the same as though she were a feme sole.</p> <p>6. Wills: construction : extraneous evidence. Extraneous evidence is not admissible to vary, explain, contradict or control the terms of a will, but it may be received to show the circumstances surrounding the testator, in order that the court may be placed, as far as may be, m his situation, to determine both the subjects and objects of his bounty.</p> <p>7. -: -. In construing a will the meaning of the testator, if possible, must govern ; single words and clauses will not be construed alone, but the whole instrument, in its general scope and design, will be taken into consideration, together with the surrounding circumstances, when properly admissible, in order that the intention of the testator may be determined. (R. S. 1889, see. 8916.)</p> <p>8. -■: -. In giving a proper and practical construction to a will, technical rules must yield to the obvious intention of the testator gathered from all parts of the instrument and as illustrated by evidence of his situation and surroundings.</p> <p>9. ---:---. In construing wills, courts must not lose sight of the fact that, unlike contracts, they spring from the better part of human nature, and, in order to be construed in a natural manner, they must be construed in a way that best accords with what the heart of the testator would dictate, if left unfettered by technical rules.</p> <p>10. --:---. "Where a mother, under great legal and moral obligations to her daughter, bequeathed to her by holographic will, “all the rest of” her “real and personal estate for the sole use of herself and children,” subject to a legacy of $300, “ to be paid out of the amount willed to my daughter,” the daughter will take the fee in the land devised.</p> <p>11. — --:--. The words, “for the sole use of herself and children,” will not create a trust, nor make the daughter and her children tenants in common, nor vest in the children a remainder after their mother’s death.</p> <p>12. ---:--: trust. Such words, as for the “sole use of herself and children,” used in a will, will frequently be regarded as merely indicative of the motive of the gift to the devisee, and will not be regarded as expressive of an intention to create a trust.</p> <p>13. -: -. Words tending to imply a trust will be held not to create one, if looking at the whole context of the will, and all the circumstances together, the probabilities are against implying a trust, but favor the theory that the words were merely employed to express the motive prompting the testator’s gift.</p> <p>14. -: -. An estate in fee, devised by the terms of a will, cannot be impaired, cut down or qualified, except by words as affirmatively strong as those employed in conveying it. (R. S. 1879, sec. 4004.)</p> <p>15. -: -. Where a testator interprets a particular clause in his will, the courts, when called upon to construe it, will follow that interpretation.</p>

Louis City Circuit Coiori. — TIon. James A. Seddon, Judge. (1) The concessions to Brazeau and the titles ■derived therefrom, all calling for the river as a boundary, vested title to the land on the shore, and all accretions to it. City v. Lemp, 93 Mo. 477 -, Myers v. St. Louis, 82 Mo. 374; 113 U. S. 566; St. Louis v. Risley, 40 Mo. •356 ; 77 U. S. 110 ; Buse v. Russell, 86 Mo. 209 ; Campbell v. Gaslight Co., 84 Mo. 852.

Louis Criminal Court. — Hon. J. CL NoPuMiLE, Judge. (1) The court committed error in overruling defendant’s objection to the evidence of officer Becker-ton, wherein he testified that after- defendant’s arrest he took him to the bedside of the deceased at the city h ospital and asked the deceased if he knew defendant, to which deceased replied: “I ought to ; he put a bullet in my belly,” and that he was Howard.

Louis City Circuit Court. — Hon. G-eo. W. Lubke, Judge. (1) The findings and conclusions of law of the court were correct. Scheme and Charter, art. 3, sec. 26, par. 10. The provision of the charter of St. Louis cannot be construed to mean that the city shall have power to hire out prisoners to work for others, without doing violence to the words as therein used.

<p>.Fraudulent Sales: R. s, 1889, sec. 5178: prior purchasers. The first clause of Revised Statutes, 1889, section 5178, which provides that every sale made by a vendor of goods and chattels in his possession, unaccompanied by a delivery of possession in a reasonable time, regard being had to the situation of the property, and unless there be an actual and continued change of possession, shall be held to be fraudulent and void, as against the creditors of the vendor or subsequent purchasers in good faith, includes prior, as well as subsequent, creditors.</p>

Louis City Circuit Court. — Hon. G-. W. Lubke, Judge. (1) The entire evidence putin by both sides at the trial did not tend to show a settlement and adjustment of the partnership and individual accounts, and a balance struck between these partners, resulting in an account stated. “Whether on a given state of facts the transaction amounts to an account stated, is a question of law and not of fact.” Lockwood v. Thorne, 11 N. Y. 170; s. o., 62 Am.

— Hon. E. M. Hughes, Judge. ' This action is to enforce the claim of plaintiff to dower in certain land as the widow of S. W. Davis who died in 1886. It seems that during the marriage the latter bid in the land at a partition sale in 1860, and a deed therefor was duly made to him as purchaser, May 2, 1863, by the sheriff, reciting full payment of the purchase money by him.

— Hon. E. M. Hughes, Judge. (1) The right of the husband during coverture to make corporeal seizin is sufficient to entitle the widow to dower without actual seizure. It is of no effect whether Davis had actual seizin or not. Gentry 'o. Woodson, 10 Mo. 224; Warren v. Williams, 25 Mo. App. 22; R. S., secs. 2186,.2207. (2) Williams’ answer in the Crump case and the testimony of the witness, Duncan, was hearsay and incompetent. Greenl. Ev., sec. 90.

— Hon. Jas. R. Vaughn, Judge. (1) The court erred in not admitting evidence as to improvements made by defendant O’Callahan on the land sued for while in possession of the same, and after his settlement with Simmons, and payment by him of the purchase price to Simmons. See cases hereafter cited on the application of the statute of frauds to the parol contract between Simmons and Headlee.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1) The respondents are not entitled to the relief prayed for in their petition, if appellant acted in good faith and honestly obtained the judgment sought to be set aside. Payne v. O’Shea, 84 Mo. 129 ; McGindley v. Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269 ; Acock v. Acock, 57 Mo. 154; Carolus v. Koch, 72 Mo. 647; Bank v. Hughes, 10 Mo.

Louis County Circuit Court. — ITonW. W. Edwards, Judge. This is an action for damages for personal injuries sustained by plaintiff while in defendant’s employ and by reason of alleged negligence of the latter. The defense was a denial and a plea of plaintiff’s contributory negligence, which the reply put in issue. The injury complained of occurred in 1872. The present action was begun in 1875.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Money collected by the sheriff on execution in back-tax cases is public revenue of the state. The state is not barred by lapse of time from maintaining such action for the recovery of its revenue. R. S. 1879, sec. 6846 ; Laws of Mo. 1877, pp. 384-389 ; State ex rel. E llison v. Filand, 81 Mo. 519.

Louis .City Circuit Court. — Hon. Griso. W. Ludke, Judge. (1) The court erred in striking out that part of plaintiff ’ s petition, praying for an injunction. Henderson v. Hide son, 50 Mo. 161; Mulholland v. Rapp, 50 Mo. 42; Thompson v. District, 71 Mo. 495 ; Sapping-ton •». Railroad, 14 Mo. App. 86; Hall v. Johnson, 57 Mo. 521. (2) The court erred in refusing instructions' asked by plaintiff.

— Hon. M. G. McGregor, Judge. (1) The court erred - in permitting the defendants to ask the witnesses as to the effect of the lines of the lots being changed, as plaintiffs seek to do by the Miles survey. (2) So it was error to inquire as to the lines and corners of lots on the company’s lands as recognized by the miners and the company. The lines are not claimed to be ancient, and the evidence is not admissible on the ground of reputation. Shuttle v. Thompson, 16 Wall. 151.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. Defendant is sued as administrator of the estate of John Cromie.

Mandamus. (1) The change of venue was properly awarded to Scott county under the act of 1860-1 (Acts, p. 517). State v. Tiedeman, 69 Mo. 515. (2) Mandamus will lie where the relator has a specific right for which the law has provided no specific remedy. Mansfield v. Fuller, 50 Mo. 338; State ex rel. v. MeAuliffe, 48 Mo. 112.

Certified from St. Louis Court of Appeals. (1) Revised Statutes, 1879, section 2353, does not create a vendor’s lien. Norris v. Brunswick, 73 Mo. 256; Haworth ». Franklin, 74 Mo. 106. The lien theory rests wholly on a dictum in Barker v. Bodes, 79 Mo. 91. (2) Even if a vendor has a lien under this statute it does not follow that it can be exercised under the circumstances of this case. Here the special creditors have no judgment and, of course, no execution.

— Hon. T. A. Gill, ■ Judge. (1) The demurrer ouglit to have been sustained. There was no evidence to sustain the issues presented by the pleadings. Mays v. Pryce, 95 Mo. 613 ; Ischer v. Bridge Co., 95 Mo. 261; Harty v. Railroad, 95 Mo. 368 ; Curley v. Railroad, 93 Mo. 450 ; Schlereth «. Railroad, 96 Mo. 509; Clotsioorthy v. Railroad, 80 Mo. 220; Nelson v. Railroad, 68 Mo. 595; Current v. Railroad, 86 Mo. 66. (2) Plaintiff’s first instruction ought not to have been given.

— Hon. E. L. Edwards, Judge. (1) The evidence fails to sustain the charge of fraud made in the petition. Fraud must be proved not conjectured. Hausman v. Hope, 20 Mo. App. 193; Priest v. Wray, 87 Mo. 16 ; Funhhouser v. Lay, 78 Mo. 458; Loomis v. Higgins, 5 W. Rep. (Mo.) 408; Render son v. Henderson, 55 Mo. 534. It is not required of a purchaser to inquire into the motives of a vendor in making a sale. State v. Merritt, 70 Mo. 275.

Transferred from Kansas Oily Gourt of Appeals. This cause was transferred from the Kansas City court of appeals under section 6 of the constitutional amendment of 1884, Judge Philips being of opinion that the decision of the majority therein was in conflict with authoritative rulings of the supreme court. The report of the case is to be found, 28 Mo.

— W. P. Porter, Esq., Special Judge. (1) Tried by the affidavits filed, there is a clear preponderance of the evidence against the bill of exceptions, and it cannot be considered as part of the record. State v. Hronek, 95 Mo. 79. (2) The bill is not signed by “three bystanders.” John S.- Ilaymes, one of the three persons who signed the bill, was not a “bystander,” but was one of defendant’s attorneys, as. appears from his affidavit.

Lotois City Circuit Court. — ■'Ron. J. A. Seddon, Judge. (1) The ruling below with respect to the measure of damages was erroneous.

<p>Practice in Supreme Court: dismissal of appeal. An appeal will be dismissed where the appellant fails to file a clear and concise statement of the case, as required by Revised Statutes, 1879, section 3773.</p>

Af'peal from Johnson Circuit Court. — Hon. N. M. Gtvan, Judge. (1) To recover in ejectment the plaintiffs must have an absolute right of possession as against the whole world.

Louis Court of Criminal Correction. Thos. B. Harvet, Esq., Special Judge. This prosecution began in the St. Louis court of _ criminal correction.

— How. Gr. D. Burgess, 'Judge. The court gave tlie following instructions at the request of the prosecution : 1.

— Hon. O. M. Spencer, Judge. (1) The court erred in giving defendants one-eighth of the land in controversy. Plaintiffs were entitled to recover the whole tract. The deed of Mrs. Hunt to Abbott did not contain any warranty or covenants of warranty of the title in fee. The deed must be viewed from the four corners, and be construed as the parties intended that it should.

— Hon. J. M. Sandusky, Judge. (1) Instruction, numbered 9, asked by the defendants ought to have been given. If part of the alleged debt, in professed payment of which the conveyance of July 12 was taken, was fraudulent, the whole conveyance was invalid as against creditors. Clark v. Lee, 44 N. W. Rep. (Sup.

— Hon. D. A. FeArmond, Judge. This was an action brought by Martlia A. Furnish, being joined therein by her hnsband, to recover of defendant damages for injuries sustained by her while a passenger on one of defendant’s cars. It appeared in evidence that on the sixth of February, 1886, she took passage on an accommodation train consisting of a locomotive and tender, a baggage car and two passenger coaches at Independence, Missouri, intending to go to Kansas City.

<p>1. Proceeding to Quiet Title: non-resident : service : jurisdiction. In a proceeding to quiet title, where the statute authorizes service upon the defendant by delivery of a copy of the order of notice to him by some person competent to testify as a witness in the cause, such service to bé proved by the affidavit or deposition of the person making it (R. S. 1879, sec. 8563), service by the sheriff of a county of another state is insufficient where not proved by affidavit or deposition, and will not confer jurisdiction.</p> <p>9.---:---:---:---: judgment roll. Where the judgment roll shows such service by the sheriff without proof of it by affidavit or deposition, and the roll appears to be complete, the general jurisdictional recital in the judgment that notice “ was duly served on the defendant” will be limited to the specific method of service which the roll discloses.</p> <p>8.---:---:---:---. The record entry in such case that the “ cause be continued by agreement” will not give jurisdiction of defendant where he had never entered his appearance and was not present in court, so far as the record shows.</p> <p>4. Practice: appearance : jurisdiction. The appearance of the defendant for the purpose of filing a motion in arrest of judgment will not give jurisdiction where none had been acquired before.</p>

Hon. Robert L. Wilson, Judge. Where there is a deed to a trustee for a charity, as •in this case, the property cannot be diverted by the trustee; and the grantee of such trustee takes no title. It is a limitation upon the power of conveyance, and is self-enforcing. McRoberts v. Monday, 19 Mo. App. 26. The deed to the normal is void r First. The deed to the town contains a prohibition against alienation. Second.

Mandamus. (1) The city of St. Louis is and has been since the year 1870 authorized to regulate the price and quality of gas. St. Louis Charter of 1870, art. 3, par. 12, sec. 1; Laws, 1869-70, p. 463; Present charter, R. S. 1889, p. 2098; St. Louis v. Tel. Co., 96 Mo. 623. (2) The Laclede Gaslight Company is not, under the terms of its charter, exempted from regulation by the city as to the price of gas.

— Hon. H. S. Kelley, Judge. (1) The court erred in overruling defendant’s motion to strike out the amended petition and in overruling the demurrer thereto, for the reason that it was a complete change of parties to the action. Gibbons ®. Gentry, 20 Mo. 268 ; Baker «. Noll, 59 Mo. 265.

<p>1. Practice: reply: waiver. Failure to file a reply putting in issue the new matter of the-answer cannot be taken advantage of on appeal, where the cause was tried as though the reply had been filed.</p> <p>2. Innocent Purchaser: equity : notice. One who bought and paid for land, receiving a general warranty deed therefor, whose grantor afterward induced the holder of the legal title to also convey to such purchaser, thereby making the first grantor’s warranty good, took the legal title free from an equity known to both grantors, but of which he had no notice.</p> <p>3. Deed: bargain and sale : warranty. A deed of bargain and sale, containing a warranty to the grantee and his heirs “against the claim or claims of any person or persons whatsoever ” will pass the record title of the grantor to the grantee, in the absence of any notice by the grantee of any limitations on its apparent effect.</p> <p>4. Appellate Practice : reversal ojt judgment. The judgment of the trial court will not be reversed, unless it is made to affirmatively appear that error was committed on the trial.</p>

— IIon. W. D. Hubbard, Judge. This was an action brought by plaintiff for the specific performance of a contract to convey certain real… Held: and for all other just and proper relief in the premises.” The testimony clearly showed that the plaintiff came from Iowa to Barry county, Missouri, in the latter part of 1885, seeking a home for himself and his family. He saw the land in controversy ; it had a spring and good water, good land and good timber, and it suited him.

— Hon. J. H. Slover, Judge. (1) Plaintiff is here seeking aid of a court of equity to compel specific performance of a contract and must come with clean hands. When an agreement is tainted with fraud, misrepresentations, or obtained by unfair means, equity will not lend its aid to its enforcement. Pomeroy on Spec. Perf., sec. 175, pp. 243, 244.

Mandamus. From 1879’ to 1889 there was a collection of enactments included in chapter 89 of the Revised Statutes of Missouri (1879) entitled “Of cities, towns and villages.” The general assembly, at its session in 1889, revised and amended that chapter by a bill entitled, “An act to revise and amend chapter 89 of the Revised Statutes of Missouri, 1879, and the amendatory acts thereto, entitled ‘ Of cities, towns and villages. ’ ” The bill as passed constitutes chapters 30…

<p>1. Practice: agreed statement of facts : instruction to find for plaintiff. Where an agreed statement of facts makes out a prima facie case for plaintiff, and the facts recited are unrebutted and undisputed, it is the duty of the court to direct the jury to find a verdict for the plaintiff.</p> <p>2. Negligence of Railroad: postal clerk. A postal agent on a railroad train, by virtue of a contract with the United States government for the transportation of the mails and postal clerks, occupies a position as advantageous as that of a passenger, if not in fact one, in case of injury by the negligence of the company.</p> <p>3. -:-. Privity of contract between the postal agent and railroad is not essential to recovery by the widow in case of his death by the company’s negligence.</p> <p>4. -:-: damage act. The widow can in such case recover under the second section of the damage act. (R. S. 1889, sec. 4425.)</p>

<p>1. Passenger: common carrier: concurring negligence of driver and third person. A passenger on the vehicle of a com- ' mon carrier, who is injured by the concurrent negligence of the driver and a third person, is not precluded from a recovery against the latter because of the concurring negligence of the driver.</p> <p>2. Hegligence: when matter of law. The court may declare it to be negligence, as a matter of law, for persons in charge of a train of cars to run it on á dark night, in a populous country and approaching a crossing near the suburbs of a city, at a rate of speed of twenty-five miles an hour without having the headlight of the locomotive lighted.</p> <p>3. -. Where reasonable minds would not differ as to the facts in evidence constituting negligence, the court may so declare them as a matter of law.</p> <p>4. -: second section of damage ACT. Where one is killed at a railroad crossing by reason of the negligence of an employe of the company in failing to have the headlight burning on the locomotive, the case falls under Revised Statutes, 1879, section 2121, and the damages to be assessed are fixed at $5,000.</p>

— Hon. Gr. D. Burgess, Judge. (1) The plaintiff is required by law to fence its road, and erect farm crossings for the benefits of defendants. Berry v. Railroad, 65 Mo. 172 ; Peddicord v. Railroad, 85 Mo. 160. And the same must be taken into consideration in estimating damages and benefits. R. S. 1889, sec. 2611 ; Railroad, v. Waldron, 11 Minn. 515; 88 Am. Dec. 100, note ; Railroad, r>. GrougTi, 29 Kan. 94; Butt County v. Boydston, 64 Col. 110; Mills on Em.

— Hon Cf. D. Burgess, Judge. Plaintiff’s case is that defendant (his father) was duly appointed guardian of the persons and estates of plaintiff and John J. Rawlins and Fielding J. Rawlins, in September, 1874, and that defendant then gave bond as such ; said minors were defendants’ children ; that their mother, Mary Rawlins, died in December, 1869, and her father, Isaac Gerhart in 1873 ; that John J. Rawlins died in 1878, unmarried and without issue; that plaintiff became of…

— Hon. M. G. McGregor, Judge. (1) The attachment by Garrett & Gilliland, as soon as levied, became a specific lien, with the same effect as if the title had not been taken in the name of Green’s wife. Drake on Attachment [6 Ed.] sec. 239 ; McKinney v. Bank, 104 111. 180 ; Slattery v. Jones, 96 Mo. 216. The deed and title acquired by Gaither at the execution sale related back to the levy of attachment and cut out all intervening liens, including the Peake attachment.

— Hon. M. G-.. McGregor, Judge. (1) The finding and decree of the court below is contrary to and unsupported by the evidence and ought not to stand. (2) The court erred in overruling defendants’ demurrer to the evidence at the close of plaintiff’s testimony.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The demurrer to the evidence by defendant should have been sustained, and the refusal thereof was error. Moore v. Railroad, 28 Mo. App. 622 ; Shertle v. Railroad, 97 Pa. St. 450; Railroad v. Strohm, 96 N. Y. 305; Curtis v. Railroad, 18 N. Y. 541; Filer v. Railroad, 49 N. Y. 45; Ciarte v. Brown, 18 Wend. 229; Lincoln v. Railroad, 23 N. Y. 425, 435; Williams v. Railroad, 9 S. W. Rep. 577.

— Hon. C. A. Anthony, Judge. At Che Marcli term, 1890, of the circuit court of Gentry county, the defendant, Selus Harrod and Ms two sons. John J. Harrod and Selus Preston Harrod, were indicted for murder in the first degree of Barnett Harrod Eallis, on the twenty-sixth, day of December, 1889. At the same term on their joint application a change of venue was granted them to the circuit court of Nodaway county.

C. C. Bland, Judge. (1) The orders of the circuit court of February 16, 1887, and August 6, 1887, were both erroneous because they undertook the one to direct and the other to approve the sale of the remaining assets in the hands of the administrators. R. S. 1879, secs. 241, 292, 297, 299, 300; Baker v. Runkle, 41 Mo. 391; Seymour v. Seymour, 67 Mo. 303 ; North v. Priest, 81 Mo. 563 ; Peters •n. Clendenin, 12 Mo. App. 521.

— Hon. J. A. Hookaday, Judge. (1) The verdict in this case is clearly against all the evidence in the case. While this court will not lightly interfere with the verdict of a jury, even iu a criminal case, yet if a verdict is the result of passion or prejudice, rather than of evidence, this court will not sanction it.

— Hon. R. H. Field, Judge. (1) Where a city by condemnation proceedings seeks to open or .widen a street across a railroad, the latter is not limited to a recovery for the land actually taken, but, if changes in the railroad structure become necessary by reason of such action, a recovery can be had on such account.

— Hon. E. L. Edwards, Judge. (1) The plea in abatement to the indictment should have been sustained. Held: etc. State v. Gray, 21 Mo. 492. (1) The court did not err in overruling defendant’s plea in abatement to the grand jury. State v. Bleekly, 18 Mo. 428; R. S. 1889, secs. 4067, 4068, 6061 ; State v. Hart, 66 Mo. 213 ; State v. Holcomb, 86 Mo. 371.

— Hon. H. C. O’Bryan, Judge. (1) The plaintiff had no evidence npon which to recover. The only evidence offered by plaintiff was what purported to be tax bills. ' They are made prima facie evidence when they conformed to the law; but these did not show the amount of taxes to each fund, as required. R. S., sec. 7682.

— Hon. D. A. DeArmond, Judge. This action was brought by William S. Furnish to recover damages sustained by him in the matter of expenses incurred in medical attention and nursing, and in being deprived of the companionship, comfort, solace and society of his wife, who sustained injuries while a passenger on one of appellant’s cars.

<p>Appeal from Hicicory Circuit Court. — Hon. W. I. Wallace, Judge.</p>

(1) The order of sale was absolutely void, because it was not in form or in substance the special fieri facias prescribed by the statute and awarded by the j udgment. R. S. 1879, sec. 3307; Deakins v. Rex, 60 Md. 593 Place v. Riley, 98 N. Y. 1; Hurst v. Li ford, 11 Heisk. 622; Douglas v. Whiting, 28 111. 362; Reese v. Burt’s Adm’r, 39 Ga. 565; Woody v. Hoe & Co., 22 Fla. 314;. White v. Stanley’s Ex’rs, 21 Fla. 396; Boyd -n. Williams, 5 J. J. Marsh,- 56; Ins.

— Hon. W. I». Wallace, Judge. (1) The court erred in giving the first instruction asked by the state. The indictment charges an assault, with intent to kill under Revised Statutes, 1879, section-1262, which section does not use the words “maimed, wounded or disfigured, or received great bodily harm,”' and the indictment contains no such allegations. A conviction could not, therefore, be had under Revised Statutes, section 1264.