Volume 113 — Missouri Reports

— Hon. E. L. Edwards’ Judge. Action for damages for personal injuries caused by plaintiff being struck by the tender of a construction train of the defendant company.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The‘laws of this state are broad enough to «over an attachment of stock of a foreign corporation in the hands of a garnishee in this city, where the certificates of such, stock are in the hands of such garnishee, Thompson on Liability of Stockholders, par. 248; Freeman on Executions, par. 348; Cook on Stockholders, par. 483; Revised Statutes, 1889, secs. 539, 540, 543, 4915,5221.

— How. O. M. Spencer, Judge. (1) The resignation should have been addressed to the governor to make it effective. The acceptance of the resignation by the county court was a nullity. State, etc., v. Boeclcer, 36 Mo. 17. (2) The order of the county court of June 4, 1889, requiring John Augustine to give a new school bond, was made without authority of law and is void.

Louis City Circuit Court. (1) A wife’s separate estate should not be deemed to have been reduced to possession by her husband, unless consent of the wife thereto be evidenced by her writing, ilodgers v. Bank, 69 Mo. 583; Rieper v. Rieger, 79 Mo. 358; Blair v. Railroad, 89 Mo. 391; McCoy v. Hyat, 80 Mo. 136; Broughton v. Brand, 94 Mo. 169. (2) The administrator takes only the personality of the decedent.

— Hon. O. M. Spencer, Judge. (1) The deed is void because of its failure to recite that the deed was ‘ ‘publicly7; made. Sullivan v. Donnell, 90 Mo. 278; Bingham v. Birmingham, 103 Mo. 345; Pitldn v. Beibel, 104 Mo. 505.

<p> Prohibition. </p>

— Hon. Henry Mb Bamey, Judge. (1) The deed to Ashton was made before office found, and, as he acted in good faith and without knowledge of plaintiff’s incapacity, she could not avoid the deed without tendering back the consideration received by her, or paid out for her benefit. Boyer v. Benymcm, 123 Ind. 451; Copenrath v. Kienby, 83 Ind. 18; Baton v. Eaton, 8 Vroom. (N. J.), 108; JUigganv.

Louis City Circuit Court. — HoN. Jacob KleiN, Judge. (1) The court erred in permitting G. A. Grimm to testify in relation to the attestation and execution of the will. Revised Statutes, 1879, sec. 4010. Revised Statutes, 1879, sec. 4013. First. Because he is a party to the suit — a necessary party.

— Hon. O. M_ Spencer, Judge. (1) The will of William C. Thomas gave his widow a life estate in the real estate in controversy, ■and her children, by the testator begotten, the remainder in fee. And these provisions of the will did not constitute a fee tail. Phillips v. LaForge, 89 Mo. 72; 1 Washburn on Real Property [4 Ed.] p. 94, sec. 10; p. 96, sec. 15; p. 99, sec. 22; p. 100, sec. 23; p. 101, sec. 27; p. 102, sec. 31; p. 104, sec. 39; 2 Blackstone’s Commentaries, 114.

(1) The demurrer to the plaintiff’s evidence prayed at the close of her case should have been given. It did not make out a case, and clearly showed such gross contributory negligence on the part óf plaintiff’s deceased husband as barred a recovery. Nor was it aided by the evidence afterwards introduced by the defendant.

.Louis City Circuit Court. — Hon. Jas. E. Witi-ibow, Judge. (1) The city having assessed the property for taxation was estopped to deny appellant the benefit of the forty per cent, reduction provided for by the ordinance. Martell v. East St. Louis, 94 Ill. 67. (2) The ordinance if it discriminates against those who are not “residents” of the city, solely on account of non-residence, is void.

— Hon. Jas. M. Sandusky, Judge. Plaintiff, as collector of Clay county, sued to recover the amount of certain taxes levied for the year 1873 upon lands of defendants in that county. Upon a trial by the court, a judgment for defendant followed and plaintiff appealed in due course, after the usual exceptions. (1) The assessment was regular and the assessor’s book properly verified. Wagner’s Missouri Statutes, 1872, sec. 61. p. 1170.

Louis City Circuit Cowt. — Hon. Jacob Klein, Judge. (1) The assignment of the cause of action was not shown to he with the authority of the National Automatic Fire Alarm Company. Hyde v. Larkin, 35 Mo. App. 365. (2) The contract was not in its nature a ‘ ‘building contract,” and plaintiff was not justified in abandoning the contract and bringing suit on the quantum meruit.

Louis City Circuit Court. — Hon. L. B. V allí ant, Judge. (1) The decree should have been in favor of the defendants, as no trust is raised by the will in favor of plaintiff, because: First.

— Hon. Richard Field, Judge. (1) Tlie remainder created by tbe deed in the heirs of May R. Grodman’s body was a contingent one. 4 Kent’s Commentaries [11 Ed.] marg. p. 232; Tiedeman on Real Property, 345, and notes; 2 Wash-burn ón Real Property, 242, 268; Riggins v. Me dal-lan, 28 Mo. 23; Aubuchon v. Bender, 44 Mo. 560; PJmisonv. Whittlesey, 55 Mo. 254; Persen v. Newman, 62 Mo. 201; Belassus v. Gatewood, 71 Mo. 372; Richardson v. Wheatland, 7 Mass. 169.

Louis City Circuit Court. (1) The constitution of this state prohibits the disturbance of the possession of private property by virtue of the exercise of the right of eminent domain until the compensation therefor has been ascertained by a jury and paid to the owner or into court for the owner.- And such compensation had not been thus ascertained in this case, though the right thereto was constantly insisted upon. Railroad v. Story, 96 Mo. 619; Railroadv.

Louis City Circuit Coivrt. — Hon. J. E, Withbow, Judge. (1) The court erred in the admission of the evidence of Wray, the police sergeant; it was hearsay and prejudicial. (2) The court also erred in the qualification it made to the first instruction asked by plaintiff; no such issue was made in the pleadings and there was no testimony on which to base it. (3) Contributory negligence is a question for the jury.

— Hon. Andbew Ellison, Judge. (1) Tire court of common pleas at New Cambria had no legal existence, and its judgments and proceedings thereunder were utterly void, unless it can be construed to be a court inferior to the circuit court. Session Acts, 1874, page 256; Constitution of 1865, art. 6, secs. 1,13; State v. Daniels, 66 Mo. 192; State exrel. v. County Court, 50 Mo. 317; 1 Bouvier’s Law Dictionary [14 Ed.] 769.

— Hon. John W. Henry, Judge. (1) A devise or disposition of property to take effect after death., whether that property be real, per-* sonal or mixed, must be made in conformity to the statute of wills, in order to be effectual. (2) A gift will be void as an attempted testamentary disposition, unless the title and control of the thing given not only passes from the donor, but becomes vested in the donee prior to the donor’s death.

— Hon. Ben E. Turner, Judge. (1) The law of this state upon the question of judicial sales made by the county and probate courts may be summarized as follows: First. Where the sale of' real estate can be shown to have been made in compliance with the statute, a good legal title passes to the purchaser. Second.

Louis City Circuit Court. — IIon. Daniel’ Dillon, Judge. (1) The court erred in finding for the defendant and against the plaintiff, because by, the trust deed made in December, 1863, there was created such a trust and such a vested estate as it was not in the power of the parties to that deed to revoke or destroy by any act or conveyance, so far as the children of Geo.

Certiorari. (1) At common law offices are not incompatible unless tbeir functions are such that one is subordinate to the other. People, etc., v. Green, 58 N. Y. 296; Bex v. Pateman, 2 T. R. 777; Dyer’s Case, Dyer, 158; Bexv. Patterson, 4 B. & A. 15; Bex v. Tissard, 9 B. & C. 421. (2) Incompatibility exists only where the nature and duties of the two offices are' such as to render it improper from considerations of public policy for the incumbent to retain both.

<p>Official Stenographer, Removal oí: compensation. Where an official stenographer is removed by the judge of the court for failure to attend personally to the duties of his office, he is not entitled to compensation for the time between the preferring of charges against him and the making of the order of removal founded on such charges, where during such time he did not attend court or offer to do so exeept by deputy.</p>

.Appeal from Jackson Circuit Court. — Hon. John W. Henry, Judge. (1) The court below erred in directing a verdict for defendants, because the contract should not have been construed so as to authorize the Rock Island company, without the payment of rent, to use the depot for the trains of the Nebraska company, an independent rent-paying line.

— Hon. C. W. Sloan, Judge. (1) It is but common learning that a mortgage for purchase money, executed simultaneously with the deed to the purchaser, takes precedence and priority over liens arising through the mortgage. Jones on Mortgages, secs. 464-5-6; Pomeroy on Equity Jurisprudence, sec. 725; Rogers v. Tucker, 94 Mo. 351.

— Hon. R. H. Field, Judge. (1) The trial court should not have permitted the plaintiff to testify that there was no light at the alleged crossing where he was injured. There was no ordinance requiring a light to be kept at that point, and, therefore, the defendant was not required to keep one there. (2) The testimony of the plaintiff to the effect that none of defendant’s employes came to him after he was hurt, was not proper.

— Hon. Jas. M. Sandusky, Judge. (1) The validity of a will is tested by the condition of the testator’s mind, or his freedom from force or coercion at the time of its execution, and remote fragmentary acts, expressions or circumstances not directly or indirectly tending to establish mental incapacity or undue influence when the will was made should be excluded.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. In 1816, Chambers, Christy & Wright were the owners of a tract of land lying outside and north of the then existing limits of the city of St. Louis. ' They platted the tract, laying it off in lots and blocks, streets, etc. A portion of the tract thus owned, a strip of ground varying in width from seventy to one hundred feet and about thirteen hundred feet long, miming north and south and lying between Front street (now…

— Hon. D. A. DeAemond, Judge. In August, 1883, the defendant company, without license or other legal authority, entered upon a certain tract of land of about five hundred acres, and constructed its road across the same, appropriating thereby a strip one hundred feet wide and about one and one half miles long through the tract, and extending across the same in a circuitous route and thereby dividing the tract into two irregular and inconvenient shaped parts, greatly impeding…

— Hon. O M. Spencek, Judge. (1) Á sale from principal to agent' is voidable at the election oí the principal, unless “there is the most entire good faith and full disclosure of all the facts and ■circumstances, and an absence of all undue influence, advantage or imposition.’’ Story on Equity Jurisprudence [4 Ed.] close of sec. 315, p. 339, secs 316a, 317— 323; 2 Pomeroy on Equity Jurisprudence, secs. 956-959; Keith v. Kellam, 35 Fed.

— Hon. G-. D. Burg-ess,. Judge. (1) The court should reverse the judgment as to-each of counts 1, 2, 3 and 4, because the court failed to follow the ruling in State ex rel. v. Railroad, 97 Mo. 299. (2) The court erred in permitting plaintiff to introduce in evidence the so-called certified tax bill; there is no statute authorizing the proof of any fact by a “certified tax bill” in a suit like the present one.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The Missouri Contitution, 1875, article 2, section 21, requires compensation to be paid in advance to owners for such damages to property as were previously considered consequential, and included therein damages to property caused by construction of steam railroads in streets.

Louis City Circuit Cowrt. — Hon. James E. Withrow, Judge. (1) The court erred in giving the instruction given for plaintiff. The demurrer to the evidence should have been sustained for the following separate and independent reasons, any one of which must be fatal to respondent’s case: First. The evidence wholly failed to show a dangerous condition of the tunnel on the sixteenth day of May, 1887, when deceased entered. Second.

— Host. James Q-ibson, Judge. (1) The clear preponderance of the testimony is, that G-arrett had failed to carry out his agreements with Perry, Smith and Long, and that he and Wilson had lost, all rights under their original agreement made with the former. This was established by not only the testimony of each and all of the defendants, but by the unquestioned evidence of several disinterested witnesses. For this reason the plaintiff is not entitled to recover.

Louis City Circuit Cowrt. — Hon. Jacob . Klein, Judge. The agreement in question is a contract whereby Brewster, for a valuable consideration (the services and companionship of Eva), obligated himself that Eva should have a child’s share in his estate, that is to say, an interest equal to that which a child born in wedlock would inherit from a parent dying intestate; said agreement was valid and binding, and the legal effect thereof was such that Eva’s children upon the…

Louis City Ci/rcuit Cowrt, — -Hon. J. E. Withbow, Judge. (1) Plaintiffs say that in view of all the facts disclosed by the evidence the defendant has grossly violated his duty as trustees, because he has sold a large amount of real estate in his hands as trustee, without any authority under the will, or authority under a decree of a court,- and expressly against the wishes of the cestui que trusts, and in violation of the law applicable to trust property. 2 Story’s Eq.

Louis City Circuit Cowt. — Hon. Daniel Dillon, Judge., (1) The court erred in holding that the stipulation on the subject of damages for delay, contained in the written contract between the parties, should not be enforced. Worrell v. McClinagham, 5 Strob. 115; Ward v. Building Co., 125 N. Y. 230; Railroad v. Rust, 19 Fed. Rep. 239; Fall v. Crowley, 15 Allen, 304; Wolf v. Railroad, 64 Iowa, 380; Fletcher v. Dyche,2 T. R. 32; Crux v. Aldred, 14 Week.

— Hon. G-. D. Burgess, Judge. (1) The court erred in excluding proper and competent evidence for the defendants. It was essential to plaintiff’s recovery in this action that it appear by order of the county court entered of record that it had. examined and corrected the delinquent list returned by the collector, and that such list so examined and corrected had been certified and filed in the office of the-county clerk. Revised Statutes, 1879, sec. 6824.

— Hon D. P. Stratton, Judge. (1) Plaintiffs made a prima facie ease by showing that at the time .Jester executed the deed of trust to plaintiffs, he, Jester, was in possession of the premises claiming the fee. Dale v. Faivre, 43 Mo. 556; Davis v. Thompson, 56 Mo. 39; Norfleet v. Bussell, 64 Mo. 176; Jackson v. Porter, 1 Paine, 457; Bicard v. Williams, 7 Wheat. 59; Duncan v. Harder, 4 John. 202; Harding v. Cook, 5 M. & P. 181.

J. M. Davis, Judge. (1) Plaintiff’s objection to the deposition of James E. Orr, Jr., should have been sustained, for the reason that he was interested in the result of the suit, claiming under JamesL. Orr, Sr., deceased, who, if living, would Iiave been incompetent as a witness on the ground that Charles C. Birch, the other party to the alleged conveyance, and common source of title, was dead before the commencement of this action.

— Hon. Jas. M. Sandusky, Judge. The defendant was entitled to have the ’ report of the commissioners set aside and a jury trial ordered as a constitutional right. Constitution, art. 12, sec. 4; Stewart v. Baltimore, 7 Md. 500; Bailroad v. Almeroth, 13 Mo. App. 91; Kimbell v. Bailroad, 35 Me. 255; Bailroad v. Story, 96 Mo. 611; People v. McBoberts, 62 111.38; Pursey’s Appeal, 83 Pa. St. 67; Mitchell v. Bailroad, 68 Ill. 286; Turn.

— Hon. O. M. Spencer, Judge. (1) The city charter clothed it with power “to regulate, restrain or prohibit’7 the erection of wooden buildings. The power to regulate authorized the city to license. Kinsley v. Chicago, 124 Ill. 356; St. Johnsbury v. Thompson, 59 Yt. 300; Welch v. Hotchkiss, 39 Conn. 104.

<p>Appeal from Henry Circuit Court. — Hon. D. A. DéAemond, Judge.</p> <p>The instructions in the cause in the trial court 'were the following:</p> <p>Given for plaintiff: — “1. The court instructs the jury that it was the duty of the defendant to have kept its ties, roadbed and track in a reasonably safe condition for the passage of trains over the same; and to have furnished for use on said road cars and appliances which were reasonably safe for use thereon. And if you find from the evidence that at the time of the accident plaintiff was in the employ of the defendant as conductor of a freight train, and that defendant’s roadbed and track were not in a reasonably safe condition for passage of trains over the same at the place of the .accident, on account of rotten ties being therein, or on account of failure to properly ballast said roadbed, or -on account of the inside rail of tbe curve near said accident being higher, than the outside rail thereof, and that defendant knew, or by the exercise of ordinary care might have known, of the condition of said ties, roadbed and track before the accident; and if you further believe from the evidence that at the time of the accident defendant had provided for use in said train a caboose with a defective brake and had placed in said train a car so heavily loaded that it would not adjust itself to the track in passing over the same, and that by reason of the rotten condition of said ties, if they were rotten, or .by the reason of defendant’s failure to ballast said road, if it did' so fail, or by reason of the rail on the inside of said curve being higher than the outside rail thereof, if said inside rail was higher, or by reason of the overloaded condition of said car, if it was so overloaded, or by reason of the defective brake on caboose, if it was so defective, or if by reason of all said things said train was wrecked, without the fault of plaintiff and he was thereby injured, you will find for plaintiff.</p> <p>“2. If you find for plaintiff, you will, in assessing his damages, take into consideration'his age and condition in life, the injury sustained by him, if any; the physical pain and mental anguish suffered and endured by him on account of said injury, if auy; his loss of time, if any; such damages, if any, as you believe from the evidence he will sustain in the future as the direct effect of such injury; such sums as he has paid out for medical attention on account of said injury, if any; together with all the facts and circumstances in evidence” in the cause; and assess the damages at such sum as from the evidence you may deem proper, not exceeding $15,000, the amount sued for.”</p> <p>Given for defendant: — “2. There is no evidence before the jury that the engineer in charge of the train at the time of the accident was incompetent, and that his incompeteney was the proximate'cause of the injury complained of by plaintiff, and that issue is withdrawn from your consider ation.”</p> <p>“9. The mere fact that there may have, been decayed ties in the roadbed at the point of the accident does not authorize you to find for the plaintiff. You must further believe that the decayed condition of the ties, if they were decayed, was the cause of the wreck, and that defendant knew, or by the exercise of ordinary care, might have known of the decayed condition of the ties, and that the wreck was caused by the fact that the ties were decayed; and, unless you so believe, you will find for the defendant on this issue. You are not authorized to find for the plaintiff from the fact alone that the ties were rotten at the point where the wreck occurred.</p> <p>“10. Although you may believe from the evidence that the plaintiff was a conductor on the defendant’s road, and, while in the employ of the defendant, his train was wrecked and injured thereby, and that the wreck was caused by the roadbed of defendant being in a defective condition, or by reason of the cross-ties •thereon being decayed and rotten, or by reason of the brakes being defective, or by reason of one of the cars being overloaded, or by reason of the inside rail being higher than the outside one, all of these facts, if true, do not authorize you to find a verdict for the plaintiff. Before he can recover, you must believe that defendant knew, or by the exercise of ordinary diligence could have known that the track was in a defective condition, or that the cross-ties thereon were rotten, or that the brakes were defective, or that the cars were overloaded, or that the inside rail was higher than, the outside one, and unless yon are so satisfied, yon will find for defendant.</p> <p>“11. If the plaintiff knew that the car was overloaded, if such was the fact, or if the same was such that any ordinarily observant person would have known at the time of receiving the same, and the wreck was caused by the overloaded condition of the car, then plaintiff cannot recover.</p> <p>“12. If the plaintiff knew of the defective condition of the brakes, if they were defective, or could have known if they were of such a character, as an ordinarily observant person would have known, and the condition of the brakes caused the wreck, plaintiff cannot recover.</p> <p>“13. If the plaintiff knew of the defective condition of the roadbed, if it was defective, or if the defect therein, if there was any, was such as an ordinarily observant person would have known before entering the service of the defendant, then plaintiff cannot recover if such defect was the proximate cause of the injury.</p> <p>“14. If the plaintiff knew that the cross-ties in defendant’s roadbed were rotten, if they were rotten, or if the condition of the ties were such that an ordinarily observant person would have known before the 'accident, and he continued in the employment of said company after becoming possessed of such knowledge, then he cannot recover if the condition of the ties was the proximate cause of the injury.</p> <p>“15. If the plaintiff knew that the inside rail of defendant’s road was higher than the outside one, if such was the fact, or if the same was of that character that an ordinarily observant person would have known, and he continued in the employment of defendant or entered thereon, with knowledge of the fact, he cannot recover, if the height of the rail was the proximate cause of the injury.</p> <p>“16. The law did not require defendant to provide an absolutely safe track and machinery for the use of its employes, and the fact that defendant’s may not have been in an absolutely safe condition, does not authorize you to find for plaintiff. All that the law required of defendant was that its track should be in a reasonably safe condition, and if at the time of the wreck you believe that defendant’s roadbed, ties and rails were in a reasonably safe condition, you will find for the defendant on the issue of defective tracks and ties.</p> <p>“19. The court instructs the jury that although you may believe from the testimony that defendant’s track was in a defective condition, that there were rotten ties in the same, that the curve in the vicinity of the place of accident had its inside rail higher than the outside one, that there was a car in said train with defective brakes, and also one was overloaded, and that these facts, or any or. all of them, caused the accident, yet you cannot find for plaintiff, if you further believe from the evidence that plaintiff knew, or by the exercise of ordinary care could have .known of the existence of said facts.</p> <p>“20. The court instructs the jury, that, if you believe from the testimony that plaintiff was an experienced railroad man, both as engineer and conductor, at the time of the accident, and that he permitted the train under his charge to be run at an unusual and reckless rate of speed, and that said unusual and reckless rate of speed of the train was the proximate cause of the accident, and that, but for said rate of speed the accident would not have happened, notwithstanding defects (if there were any) in the track or cars o.r manner of loading the cars of the defendant, then the plaintiff cannot recover and your finding will be for defendant.</p> <p>“21. The court instructs the jury tfiat the plaintiff, in performance of Ms duties as conductor of the train of defendant, assumed all tlie usual and ordinary risks incident to his business, and if injured by any accident arising from these, the defendant is not liable to him therefor; and, if you believe from the testimony that plaintiff created an extraordinary risk for himself by permitting the train to run at an unusually rapid rate of speed, and was injured on that account, your finding will be for defendant.”</p> <p>Defendant’s refused instructions: “3. There is no evidence before the jury that the cause of the accident was a defective brake on the caboose, and on that issue you will fincbfor defendant.</p> <p>“4. There is no evidence before the jury that any car in the wrecked train was overloaded, and that the proximate cause of plaintiff’s accident was an overloaded car,, and on that issue you will find for the defendant.</p> <p>“5. There is no evidence before the jury that the inside rail, at the point where the cars left the track, was higher than the outside one, and that issue is withdrawn from your consideration.</p> <p>“7. There is no evidence before the jury that the track of defendant’s road at the point where the wreck occurred was defectively constructed or in a defective^ condition, and that issue is withdrawn from your consideration.</p> <p>“8. If you believe from the evidence that the three rear cars in the train left the rails on account of the rate of speed at which the train was being run, then such act was the proximate cause of the wreck, and you will find for the defendant.”</p> <p>The other facts appear in the opinion of the court.</p> <p>(1) The court erred in the admission of evidence; no allegation of incompetency was made in the pleadings against the witness Oreen. (2) The court erred in giving instruction number 1, asked by plaintiff. There was no evidence before the jury that the road was not properly ballasted, or that the ties were defective, or that the alleged defective brakes or overloaded car caused the accident. Evans v. Transit Go., 106 Mo. 601. (3) The court erred in giving instruction number 2, asked by the plaintiff. There was no evidence that the plaintiff had paid out any sums of money for medical attendance, and the instruction is misleading in authorizing the jury to allow “such damages, if any, as you believe from the evidence he will sustain in the future as tho direct effect of said injury.” Hawes v. Stock Yards Co., 103 Mo. 60; Dulce v. 'Railroad, 99 Mo. 351; Parsons v. Railroad, 94 Mo. 286. (4) The court erred in its refusal to give instructions numbers 3, 4, 5, 7 and 8, asked by defendant. (5) The damages are excessive and a new trial should be granted for that reason. Goetz v. Ambs, 22 Mo. 172; Benson v. Railroad, 78 Mo. 504; Marshall v. Railroad, 78 Mo. 610. (6) The verdict is manifestly against the law and the evidence and ought to be reversed. ' Either the accident was caused by the rapid rate of speed at which the train was running, or by the inside rail being higher than the outside. The submission of other questions renders it impossible to determine on what ground the jury found a verdict for the plaintiff. It is more probable from “inspiration” instead "of evidence; under these circumstances this court will reverse. Ackley v. Stacklin, 56 Mo. 479; State v. Primm, 98 Mo. 373; State v. McNamara, 100 Mo. 117; Ellis v. Bray, 79 Mo. 227; Hipsley v. Bail/road, 88 Mo. 348; Spolm v. Railroad, 87 Mo. 74; State v. Chouteau Hunt, 91 Mo. 490.</p> <p>(1) Appellant’s first assignment of error is not well taken. (2) Instruction number 1, given for plaintiff, was correct. The evidence fully showed that the road was not properly ballasted, that the ties were decayed, that the brakes were defective and that one of the cars was- overloaded. (3) It was not necessary, that the plaintiff should have actually paid out money for medical services in order to entitle him to have the-value of such services taken into consideration by the jury in estimating the' damages, if he had become liable to pay out money on such account, and the evidence in this case shows clearly that he had become so liable to pay at least $50. Murray v. Railroad, 101 Mo. 236. (4) Defendant’s instructions, 3, 4, 5, 7 and 8, were properly refused. Each of said instructions single out a particular act of alleged negligence, and withdraws the same from the jury, notwithstanding the fact that there was some evidence to support every alleged act of negligence set forth in the petition. Barr v. City of Kansas, 105 Mo. 550, and cases cited. (5) The damages are not excessive, but in fact are not sufficient to fully compensate plaintiff for the injuries he has sustained.</p>

— Hon. Rudolph Hirzel, Judge. (1) A use, a trust and a confidence is one and the same thing, and, if an estate is conveyed to one person for the use of, or upon a trust for another, and nothing more is said, the statute immediately transfers the legal estate to the use and no trust is created. 1 Perry on Trusts [4 Ed.] sec. 298; Terry v. Colber, 11 East, 377; Bight v. Smith, 12 East, 454; Bro%ighton v. Lmgley, 2 Salk. 679; Parks v. Parks, 9 Paige (N. Y.), 107; Revised…

Mcmdamus. (1) The expressions “matter in dispute” and “amount in dispute” are really used in all the cases as convertible terms. Barg v. Merison, 5 How. 103; Pratt v. Fitshngh, 1 Black. 271; Lee v. Lee, 8 Pet. 44; .Elgin v. Marshall, 106 U. S.; Stinson v. Dausman, 20, 'How. 461. (2) Now, in order to ascertain “the ■ amount in dispute,” or which is the same thing “the matter in dispute,” we must look to the whole record in connection with the affidavits herein filed.

Louis City Circuit Court. (1) It was not incumbent upon plaintiff to allege either that Reveley or the plaintiff erected the dwelling houses mentioned in the agreeement, or to give any sufficient reason .for the non-performance of that part of the agreement. The' improvement of the property was not to be begun until after the delivery of the deed and possession under it.

<p>1. Condemnation Proceeding: railroad: pleading. A petition, in a suit to condemn land for a railroad right of way, may refer to a, plat filed with it for an accurate description of the property sought to he taken; if it is well described on the plat that is sufficient.</p> <p>2. Practice: change op venue: condemnation proceeding. The provisions of the code relating to a change of venue because of the prejudice of the inhabitants of the county are, by the constitution and the eminent domain act made applicable to proceedings to condemn property for public use.</p> <p>3. -: -: notice. Where one defendant is made a party as. trustee for another, a notice of application for change of venue, addressed to him without adding the word “trustee,” is sufficient.</p> <p>4. -:-: -. Where a notice of application for a change. of venue states that knowledge of the cause therefor first came to. the party on the day the notice is given and the application is made to the court on the third day thereafter, it is within seasonable time,, though made more than two years after suit was begun.</p> <p>. 5. -: -: CORPORATION. Where an application for change of venue on the ground of local prejudice is made by a corporation, the affidavit in support of it may he made by its secretary.</p> <p>6.-: -. Where an application for a change of venue is sufficient in form and substance, the trial court errs in overruling it, and the judgment will be reversed therefor.</p> <p>7. Railroad: condemnation proceeding: damages. The landowner in a condemnation proceeding for a railroad right of way, is entitled to damages for injuries to the whole tract, and not simply to the parts touched by the road.</p> <p>8. -: -: -: evidence. A witness testifying as to the injury inflicted on a tract of land by the railroad running through it may give his opinion as to the extent to which the land next to the road would be injured, and may illustrate the same by reference to a map in evidence.</p> <p>9. -: -: -: -. It is improper to inquire of such witness on cross-examination whether the residue of the tract was worth as much per acre after the right of way was taken out as it was before, since such question permits the witness to set off against the damages any benefit the land might, in common with other lands in the vicinity, receive from the construction of the railroad.</p> <p>10. -: -: reassessment OF damages. "Where the company pays to the landowner or into court for him the amount of the commissioner’s award, any reassessment of damages must be on the basis of the value of the land at the date of the commissioner’s report.</p> <p>11.-: -: withdrawal op monev by landowner. The landowner has the right to withdraw and use, pending the proceeding for reassessment of damages, the amount of the award of the commissioners paid into court.</p> <p>12. -:-: interest. Such reassessment should not include interest on the sum so paid into court.</p>

— Hon. D. P. Stratton, Judge. (1) The court erred in permitting a cross-examination of defendant concerning matters not referred to in his examination in chief, and when he had claimed his privilege under the law of not being compelled to testify against himself.

Glair Circuit Court. — Hon. D. P. Stratton, Judge. (1) Where a written document which becomes material as an instrument of evidence is lost or destroyed, its absence must be satisfactorily accounted for before secondary evidence of its contents will be. admitted. The former existence, due execution, sealing, delivery, stamping (if any statute requires a .stamp) and loss of such paper must be shown. 13 American & English Encyclopedia of Law, p. 1088.

M. Gh MoG-eegor, Judge. This proceeding was instituted in the Newton circuit court to set aside a sale of the northeast quarter of section 25, township 24, range 32 in that county. The sale was made by Shannon, sheriff, acting as trustee in lieu of J. B. Watkins who had declined to act.

(1) The court refused an instruction (number 1) which told the jury what the issues of the case are. The instruction is substantially like an instruction given in Boe v. City, 100 Mo. 192. This instruction defined the issues made by the pleadings. It was the duty of the court to tell the jury what the issues were. JDasMer v. Nisely, 32 Mo. 498; 2 Thompson on Trials, sec. 2314; 11 American & English. Encyclopedia of Law, sec. 5, p. 251; Butcher v. Death, 15 Mo. 270.

(1) The indictment does not allege that defendant was discharged. Revised Statutes, 1889, sec. 3959; Wooclv. State, 53 N. T. 511; Kelley’s Criminal Law, sec. 615; State v. Loehr, 93 Mo. 103; State v. Small, 14 Atl. Rep. 727. The indictment must follow the language of the statute. Howell v. Commonwealth, 5 Gratt. 564; State v. Cheaüvoocl, 2 Hill (S. C.),559; State v. Emerich, 87 Mo. 110; State v. Helm, 6 Mo. 263; Williams v. State, 31 Am.

— Hon. J. M. Davis, Judge. Action for libel; both parties are residents of Báker county in the state of Oregon. The defendant had brought a suit by attachment against the plaintiff, who owned a farm in Chariton county.

Appeal- from Bar-ton Circuit Cowrt. — Hon. D. P. Stbatton, Judge. (1) A sale of real estate by the administrator without an order of court to sell is void, and an administrator’s deed will pass no title to land not described in the order of sale. Greene v. Holt, 76 Mo. 678; Hvans v. Snyder, 64 Mo. 516; Henry v. McKerlie, 78 Mo. 433.

— Hon. W. D. Hubbabd, Judge. ^(1) The sheriff is npt the real party in interest. All parties in interest should have been joined.

— Hon. Joseph Cbavens, Judge. The hill was signed and filed out of time; and it was not even in the power of the judge to grant a further extension after the first extended time had expired. State v. Hill, 98 Mo. 570.

— Hon. D. A. De Armond, Judge. (1) The court 'erred in refusing to give instructions 1, 2, 3 and 5, asked by the defendant. If defendant constructed its road with the knowledge and acquiescence of the plaintiff over the strip of land ■in controversy, and .did not pay plaintiff therefor, an action for the value of the land accrued to plaintiff, but not the right to maintain ejectment.

Rabeas Corpus. (1) All persons are bailable, except for capital offenses, where the proof is evident or the presumption great. Constitution of 1875, art. 2, sec. 24. (2) Murder in the second degree is not a capital offense. Revised Statutes, 1889', sec. 3461. (3) Murder in the ■second degree includes every offense -which was murder, .at common law, not declared to be murder in the first degree by our statute.

— Hon. W. I. . Wallace, Judge. . Action for damages for the death of plaintiff’s husband, the petition claiming that such death was caused by the negligence of defendant, in the manner following, to-wit: That plaintiff’s husband, at three o’clock a. m., on July 7, 1890, took his two daughters to Brandsville, a station on defendant’s road, to put. them on a passenger train due about that hour; that, when arrived, no employe of defendant appeared to assist his daughters upon…

— Hon. C. H. S. Goodman, Judge, (1) Tlie court erred in admitting in evidence the tax deed to Holden, for the reason that it was void on its face, and could not set in motion the statute of limitations. First. If void there was nothing upon which the statute (Eevenue Laws of 1872, section 221) could operate. Mason v. Crowder, 85 Mo. 527; Hopkins v. Scott, 86 Mo. 140; Kinney v. Forsyth, 96 Mo. 414; Pearce v. Tittsworth, 87 Mo. 635. Second.

— Hon, T. H. Bacon, Judge. (1) Plaintiff’s evidence makes a prima facie case (Bucks v. Moore, 36 Mo. App. 529, and authorities cited in opinion) ; and casts the burden on the wife to show that she paid for the land with her own separate means. Éoxiev. Price, 31 Mo. 82; Sloan v. 'lorry, 78 Mo. 625; Jordan v. Buschmeyer, 97 Mo. 94; Woodson v. Pool, 19 Mo. 345; Oliver v. Moore, 23 Ohio St. 473.

Francois Circuit Court. — Hon. J. D. Fox,. Judge. (1) If tbe defendant did, by bis attorneys, prepare- and file' in tbe office of tbe clerk of tbe circuit court of' St. Francois county in due time, and as tbe law directs,, bis bill of exceptions, including tbe evidence taken at. tbe trial of tbe cause, as be affirms be did, then be is legally entitled to tbe benefits thereof, in tbe review off bis case by tbis court, unless it can be made to appear that be or bis attorneys…

— Hon. John A. Hockaday, Judge. (1) The provision of the policy pleaded in the answer respecting proofs of loss constituted in law a warranty, a condition precedent; a breach of which absolutely extinguished plaintiff’s right to recover for any loss of property covered by the policy. Hence, proof by plaintiffs that they bad complied with tbis condition and furnished defendant with such proof of loss was essential to their recovery in this case. Ins.

Louis Circuit Court. — Hon. W. W. Edwards, Judge, (1) Plaintiff and defendant became tenants in common of tbe bridge involved in this case. First. They had authority to buy under the act providing for the building of the bridge. Missouri Laws, Acts of 1856-1857, p. 379. Second. Under the general statutes these counties had the power to purchase this bridge. 'Wagner’s Statutes, sec. 9, p. 441; Sheidley v. Lynch, 95 Mo. 497. Third.

(1) Fannie S. Crenshaw, as administratrix of the estate of L. A. D. Crenshaw, deceased, is the proper party to prosecute this suit commenced by L. A. D. Crenshaw in his lifetime. Revised Statutes, 1879, secs. 95, 96; Wiener v. Peacock, 31 Mo. App. 242; Rogers v. Tucker, 94 Mo. 346; Kellogg v. Martin, 62 Mo. 429. Answering to the merits, even after denying all the material allegations, waives the defect of parties plaintiffs. Planing Mill v. Pres. Church, 54 Mo. 520.

(1) Where the preponderance of the evidence is*so ■decidedly in favor of the defeated party as to lead naturally to the conclusion that injustice has… Held: as urged by counsel in their brief, that the preponderance of evidence was so strongly in favor of appellants that the lower court should have set aside the verdict, and, not having done so, that this court will. Watkins v. Donnelly, 88 Mo. 322 •, Bankv. Aiill’s Adm’r, 80 Mo. 199, 1 Greenleaf’s Evidence, secs. '38, 39.

Louis Circuit Court. — Hon. W. W. Edwards, Judge. (1) This being a summary proceeding under tbe statute for appropriation of private property for public use, every matter necessary to confer jurisdiction must appear on tbe face of tbe proceedings. Railroad v. Young, 96 Mo. 39, and cases cited; Railroad v. Camp-hell, 62 Mo. 585; Railroad v. Carter, 85 Mo. 448; Mills on Eminent Domain, sec. 115; Railroad v. Story, 96 Mo. 611; Cory v. Railroad, 100 Mo. 282.

Louis Criminal Court. — Hon. Jas. C. Normile, Judge. (1) The indictment should have been quashed. It only alleges that the wound was given “with the pistol ■aforesaid.” State v. Green, 111 Mo. 585; State v. Blan, 69 Mo. 317; State v. Burns, 99 Mo. 542, dissenting opinion of Judge Sherwood. (2) The court should not have singled out the testimony of the defendant and specially charged the jury upon its weight.