Volume 115 — Missouri Reports

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Prior to November 1, 1889 (when the present Revised Statutes became operative), the law of this state vested in a husband during coverture the possession and control and the exclusive right to the rents, issues and products of his wife’s real estate, owned by her at the time of the marriage, or coming to her at any time during the coverture.

— Hon. W. ' D. Hubbard, Judge. (1) The special tax, in excess of the limit of fifty cents on the $100 valuation for county purposes per year, is necessarily void, in the absence of any single empowering or jurisdictional fact under the law fixing the conditions ©f its levy and collection.

— Hon. C. A. Anthony, Judge. (1) The second instruction given for the state is erroneous; it told the jury that the defendant must be found guilty without regard to the negative averments in the indictment. State v. Young, 36 Mo. App. 517. (2) The letter of August 25th purporting to come from Dr. Hathaway to Mrs. Eowley was improperly admitted in evidence because no evidence of his-handwriting was offered.

<p>1. Practice in Supreme Court: reversal op cause, a cause will be reversed by the supreme court on appeal at the instance of aparty who successfully demurred to the petition in the trial court.</p> <p>2. -: review op previous decision. The supreme court will not, on appeal, review one of its previous decisions, unless it is necessary to do so and the points decided in the ease appealed would in some way be controlled or affected by such previous decision.</p>

— Hon. Richabd Field, Judge. The plaintiffs, who are respectively the brother, sister and brother-in-law of the defendant, brought ejectment for an undivided two sevenths of this tract of land, t-o-wit: The southeast quarter of section 1, township 51, range 20, and also that portion of the northeast quarter of the southeast quarter of the same section, township and range that lies north of the public road; but as to this, all claim was abandoned at the trial.

— Hon. T. A. GI-ill,. Judge. (1) A judgment for costs must be rendered in favor of one or the other party to the suit and ‘not in favor of any officers or witnesses. The right to judgment for costs is purely a statutory one as no such right existed at common law. State ex rel. v. Railroad, 78 Mo. 577; Steel v. Wear, 54 Mo. 531; Thompson v. Elevator Go., 77 Mo. 521.

<p>1. Negligence: railroad : eellow-servants. A railroad locomotive engineer and a trade repairer in the service of the same company are not fellow-servants within the rule exempting masters from liability for injuries received through the negligence of a fellow-servant.</p> <p>2. -: -: -. The deceased, a track repairer in the company’s service, while walking along its track to work was killed ’ by a locomotive going in the same direction. The track was level and the view unobstructed. The engine and tender had followed deceased a few moments after he started and had only gone about thirteen hundred feet when the accident occurred. Sold, that while the deceased may have been guilty of contributory negligence in walking upon the track and in not seeing the engine, yet the ease was properly submitted to the jury on the issue whether the engineer used proper care to see" the danger in which deceased had placed himself and to avoid inj uring him.</p> <p>3. -: -:-: evidence. Where the widow of the deceased sues in such ease to recover on account of his death, evidence of the number of her children and of the condition of her health is not error.</p> <p>4. -: -: -: damages. The deceased and the engineer not being fellow-servants, the damages are the fixed statutory penalty of $5,000 prescribed by Bevised Statutes, 1879, sec. 2121.</p> <p>5. Practice: expert testimony, objection to. Where the testimony of an expert witness is deemed objectionable because it does not appear that he was sufficiently qualified to testify as an expert, an objection to such testimony because “incompetent and improper’’ is too general. (Alcorn v. Railroad, 108 Mo. 81, distinguished.)</p> <p>6. Negligence: railroad: employe: assumption oe risks. The fact that the deceased, when he engaged in the company's service, assumed the risk of injuries from the negligence of his co-employes, did not relieve the engineer from the duty of looking out for and avoiding injury to deceased.</p> <p>7. -: -: violation oe city ordinance. Bunning a train in city in violation of a city ordinance is negligence per se.</p> <p>8. Practice, Appellate: damages: harmless error. Error of the court in charging the jury that the widow in this case could recover her actual damages not exceeding'$5,000 is immaterial where she is entitled to recover, if anything, the fixed sum of $5,000.</p>

<p>1. Negligence: railroad: structures near the track: servants. A railway company is required to place its signal posts, eattle-guard fences and other structures used in connection with the road at a safe distance from the track to the end that they will not be dangerous to its employes in operating the trains.</p> <p>2. -: -: -- — : -. Where the company has itself placed such structures so near the track as to be dangerous to its servants in the discharge of the duties assigned to them and an injury occurs from that cause without fault on the part of the servant injured, the liability of the company is fixed.</p> <p>3. -: -: -: question of law and fact. The rule as to when such structures, so placed in dangerous proximity to the track, constitute negligence as a matter of law and fact, stated.</p> <p>4. -: -: engineer, scope of duty of. The question whether an engineer who observes water running out of the tank of his locomotive, is in the line of his duty in taking a position on the outside of his cab without stopping the train for the puipose of correcting the defect in the machinery is one for the jury, where there is evidence that other engineers were accustomed to act in the same way.</p> <p>5. -: -: -. The engineer was not as a matter of law guilty of contributory negligence in failing to stop the train and correct the defect when it appears he did not know how close the fence by which he was struck and injured was to the passing train.</p> <p>6. --: --•: -: assumption of risks. An engineer having no knowledge of the proximity of the fence to the track does not assume the risk arising therefrom; it being one resulting from the nonperformance of a duty which the law devolves upon the company.</p> <p>7. -: -: contributory negligence: evidence. On the question whether the engineer was guilty of contributory negligence in not taking care of himself and in unnecessarily exposing himself to danger of injury while operating the engine, it is competent to show that he knew that another train was running in the same direction three quarters of a mile behind him, and that he was expected to meet a third train at a station five or six miles away.</p>

— Hon. E. M, Hughes, Judge. (1) The court erred in excluding proper and legal' evidence offered by the plaintiff. The defendant is liable for the acts of its porter. Williams v. Palace Car Co., 4 South. Rep. (La.) 85. The defendant and the trial judge tried this case on the theory that the plaintiff, the conductor and the train were all to be governed by certain rules of the defendant prohibiting the stopping of the train at Benton 'City. This was erroneous.

Louis City Circuit Court. Plaintiff appealed from a judgment in favor of defendant after a demurrer to Ms petition had been sustained. (1) The court erred in sustaining the defendant’s demurrer.

— Hon. James M. Sandusky, Judge. (1) The proceedings to quiet title, the record of which was read in evidence, are void. First. Because there was no service of notice as required by law. Revised Statutes, 1889, see. 2092. Second. Because there is no description of the land sought to be affected by the proceedings.

— Hon. Chas. H. S. Goodman, Judge. (1) When land is sold under a deed of trust and bought in by the beneficiary, the mortgagor has the right to redeem the same within one year from the date of the sale. Revised Statutes, 1879, sec. 3298. (2) Bond must be given to redeem and to stay waste, but no particular time for giving such bond is specified, then reasonable time must be presumed. Revised Statutes, 1879, sec. 3299; Johnson v. Atchison, 90 Mo. 48; Updikev. Merchants’ JE.

— Hon. G. D. Buegess, Judge. (1) The deed from C. I. Woods and wife to Francis Ann Miller conveyed to her all the title and interest of the grantor Woods. General Statutes, 1865, sec. 8, p. 444; Revised Statutes, 1889, sec. 2402; Altringer v. Capehart, 68 Mo. 441.

— Hon. O. W. Sloan, Judge. The action is for damages for personal injuries. Plaintiff liad a verdict and judgment for $10,000 from which defendant appealed.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. The plaintiff by this equitable proceeding, instituted January 15, 1889, sought to compel the defendant bank to transfer to her fifteen shares of its stock then standing on its books in the name of her husband, James M. Leete, defendant, and also to account to her for dividends declared thereon, alleging that such shares were purchased by defendant James M. Leete with money which came to her by the bequest of her father…

— Hon. J. H. Slover, Judge. (1) The risk incurred in O’Mellia’s reckless attempt to mount upon the moving engine from between the rails of the track was his own. He conld not make the attempt and hold the master responsible for the result. Bunt v. Co., 138 IT. S. 485; Solomon v. Railroad, 103 N. Y. 437; Wood on Master & Servant, sec. 372; Shearman & Eedfield on Negligence, sec 96; Moran v. Broivn, 27 Mo.

— Hon. W. D. Hubbard, Judge. (1) The land in which respondent seeks to recover dower, having been held and treated by appellant and the husband of respondent as partnership… Held: respondent’s husband did not at any time have such an interest in said land as to entitle him to a decree vesting in him the legal title thereto, as against appellant; and respondent as his widow, having no greater interest than her husband under whom she claims, is not entitled to dower therein.

— Hon. John W. Henby, Judge. (1) No damages should have been assessed. 10 American & English Encyclopedia of Law, 814; Foster v. Bank, 58 Vt. 658; TJhrig v. St. Louis, 47 Mo. 528. (2) The debt due Sheidley was improperly allowed as damages. First. Neither the statute (Revised Statutes; 1889, sec. 5498) nor the injunction bond contemplated security for the debt. High on Injunctions [3 Ed.] secs. 1668, 1674; Moore v. Hallum, lLea, 511; Staples v. Handley, 12 S.W. Rep.

— Hon. J. H. Slovee, Judge. i(l) There was no agreement in this case that the title should not pass to the vendee. If the vendor had intended to hold the title in himself he should have had the goods consigned to himself and then sent the bill of lading to some local bank to have been delivered to the vendee on the delivery of the note or the payment of the cash. Brunswick v. Martin, 20 Mo. App. 158; Bwrgman v. Railroad, 104 Mo. 77.

— Hon. O. M. Spencer, Judge. (1) The title to the streets vests in the city as trustee of the public with power to improve the same at the cost of the locality fixed by law. This is the exercise of the sovereign taxing power and is one with which the courts have nothing to do. Cooley on Taxation [1 Ed.] sees. 416, 452; Keith v. Bingham, 100 Mo. 300; Farrar v. St. Louis, 80 Mo. 379; Garett v. SL Loins, 25 Mo. 505.

Mandamus. (1) The act of April 4, 1891, is not unconstitutional as being in contravention of section 4, article 11 of the constitutiion. First. The constitutional provision is not self-executing, and is “inoperative until aided by legislation,” and “is operative' only to the extent the supplemental legislation imparts vitality.” Cooley’s Constitutional Limitations [6 Ed.] 98, et seq.; Brown v. Seay, 5 South. Rep.

— Hon. Richabd Field, Judge. (1) The court erred in refusing to give the first and third instructions asked by defendants. First. Because the only negligence attempted to be shown on the part of defendants was in running the train which struck the plaintiff at a rate of speed in excess of the limit prescribed by the ordinance of the city of Moberly, which did not apply to the place where the accident occurred. Second.

— Hon. Andrew Ellison, Judge. (1) Sections 7058 and '7060 must be construed together as referable to the same subject-matter and as parts of the same act (Acts, 1885, pp. 83-84), and, being so construed, they are in violation of section 16, article 2 of the constitution of Missouri, which provides: “That imprisonment for debt shall not be allowed except for the non-payment of fines and penalties imposed for violation of law.” The act in question is in substance an act…

R. H. Field, Judge. (1) The instruction given for plaintiff was erroneous, because it based plaintiffs right to recover upon the finding of a single fact (and did not properly state the law as to that fact), while it ignored every other question in the case. Clark v. Hammerle, 27 Mo. 55, 70; Birtiohistle v. Woodward, 95 Mo. 113; Bank v. Metcalf, 29 Mo. App. 384.

John W. Henky, Judge. (1) The court erred in finding that any part of the sewer was upon private property. (2) The court erred in finding that the owners of lot 70 had no knowledge of the construction of the sewer and that neither of them consented to its construction. (3) The court erred in finding that a considerable portion of the property in the sewer district, owing to the topography of the land, can never make use of the sewer.

— Hon. A. H. Livingston, Special Judge. (1) The defendant, not having been brought to-trial before the end of the third term after the finding of the indictment, and the delay not being on his application or for want of time to try the case, was-entitled to his discharge. Revised Statutes, 1889, sec. 4223. (2) Where there is evidence explaining the flight, and tending to show that it was not from a consciousness of guilt, further instructions should be given.

Louis Criminal Court. — Hon. G. A. Castleman, Judge. (1) There must be a wrongful and felonious purpose in the mind of the accessary before he can be convicted. State v. Hollenscheit, 61 Mo. 302; State v. Hicham, 95 Mo. 322.

— Hon. Joseph Cbavens, Judge. Instructions 1 and 2 do not contain all of the elements of grand larceny. They should have told the jury that the taking of the cow must have been wrongful or with a felonious intent. State v. Moore, 101 Mo. 316, and cases cited. The motion for a new trial should have been sustained.

— Hon. T. H. Bacon, Judge. The new trial should have been awarded on the ground of newly discovered evidence. The facts of the case met the requirements of the rule laid down in State v. Pay, 53 Mo. 345. Although the courts regard with disfavor applications of this kind, the courts have-not refused in proper cases to grant the second trial. State v. Murray, 95 Mo. 103; State v. Wheeler, 94 Mo. 252; State v. Bailey, 94 Mo. 311.

— Hon. W. N. Evans, Judge. (1) The indictment is sufficient. It follows the language of the statute. Revised Statutes, 1889, sec. 3498; State v. White, IQ Mo. 96; State v. Croolcer, 95 Mo. 389. (2) It was unnecessary to instruct the jury upon the question of defendant’s intent. State v. White, supra. Or to define the words “feloniously” or “willfully.” State v. Snell, 78 Mo. 242; State v. Harkins, 100 M’o. 666; State v. Doyle, 107 Mo. 36.

— Hon. E. J. Broaddus, Judge. (1) The indictment in this case is insufficient, and the court will take notice of its insufficiency, although the appellant did not raise point in motion in arrest. Price Heirs v. Evans, 26 Mo. 30; Price Heirs v. Evans, 5 Mo. 260; Miner v. Cordell, 37 Mo. 350. (2) The court erred in allowing the prosecuting attorney in his closing argument to the jury to refer to what the defendant might have testified to hut did not.

— Hon. W. I. Wallace, Judge. (1) The evidence was sufficient to authorize the verdict of guilty by the jury. Revised Statutes, 1889, sec. 3661; State v. 'Rucker, 93 Mo. 88; State v. Yerger, 83 Mo. 83. (2) Defendant’s motion for new trial on the ground of newly discovered evidence was properly overruled. No affidavit filed in support pf it contains the allegation that it is not cumulative, or so material that it would probably produce a different result.

A.ppeal from Audrain Circuit Court. — Hon. E. M. Hughes, Judge.

— Hon. W. N. Evans, Judge. (1) No objections were made or exceptions saved at the time to the admission or exclusion of evidence, and the defendant will not be heard to complain. State v. Taylor, 98 Mo. 245. (2) The only way exceptions can be saved to matters occurring during the trial is by bill of exceptions. State v. Musick, 101 Mo. 260.

— Hon. T. H. Bacon, Judge. (1) The declarations of the party assaulted, made some time after the assault, although in palliation of defendant’s act, are inadmissible. State v. Jackson, 17 Mo. 544. '(2) Statements made to third parties by the injured party, subséquent to the injury, are inadmissible when alleged to have been made some time after the injury, and clearly not in articulo mortis.

— Hon. J. Gr. Wear, Judge. The defendant was indicted for, that, being a dramshop-keeper, he set up, kept and used in and about the premises of his dramshop, and “run” in connection with such dramshop, a pool table, etc., etc. The indictment is based on section 1 of laws, 1889, p. 104, now section 4597, Revised Statutes, 1889. The section as originally enacted, so far as necessary to quote it, and its title, are as follows: Dramshops: Grambling devices in.

— Hon. C. W. Sloan, Judge. (1) The state’s second instruction ought not to have been given. It does not properly declare the law. The general rule is, where the goods have been delivered to a common carrier for transportation to the purchaser, the delivery to the common carrier passes the title, so that the risk of loss in the course of transit falls on the vendee. Tiedeman on Sales, secs. 85, 95, and notes; Kerwan é Co. v. Doran, 29 Mo.

— Hon. Silas Woodson, Judge. (l).The indictment does charge a crime against the state. Revised Statutes, 1889, secs. 742, 746, 747. (2) The statute does not require, as an ingredient of the offense, that the wheat should have been stored for hire. The indictment need only follow the words of the statute.

— Hon. / W. N. Evans, Judge. (1) The court was authorized to assess the punishment where the ju'ry found the defendant guilty but failed to agree as to his punishment.. Revised Statutes, 1889, sec. 4230; State v. Bobb, 90 Mo. 30; State v. Dennison, 108 Mo. 541. (2) The instructions in this case fairly present the law and have each been often approved by this court. State v. Thomas, 78 Mo. 337; State v. McDaniel, 94 Mo. 301.

— Hon. H. P. White, Judge. (1) The court erred in not instructing the jury upon murder of the second degree. “From the simple act of an (intentional) killing, the law presumes murder of the second degree.

— Hon. Chas. W. Sloan, Judge. (1) One who seeks relief in equity on the ground of fraud in procuring his signature to an instrument must prove the fraud alleged by substantial evidence, and the evidence must be clear and convincing. Jaclcson v. Wood, 88 Mo. 76; Shields v. Hicltey, 26 Mo.' App. 194. (2) Where actual fraud is charged, as in this case, it must be proved, not conjectured. Facts which give rise only to suspicion of its existence do not establish it.

<p>Practice: filing bill of exceptions: extension of time. The trial court or judge cannot, in vacation, after the expiration of the time granted for filing a hill of exceptions, extend such time.</p>

— IIon. Andrew Ellison, Judge. Defendant’s application for a continuance was properly overruled.

— A. A. Underwood,.Esq., Special Judge. , . (1) The questions as to the introduction, admission and exclusion of evidence or remarks of the prosecuting attorney, suggested by defendant’s motion for new trial, will not be considered by this court, since the same are not preserved in the bill of exceptions. Bevised Statutes, 1889, sec. 4221; State v. DeMosse, 98 Mo. 340; State v. Griffin, 98 Mo. 672; State v. Meyers, 99 Mo. 107; State v. JDay, 100 Mo. 242; State v, Hope,TOO.

— Hon. W. W. Edwards, Judge. (1) The indictment is unintelligible, it does not inform the defendant of the offense with which he is charged. State v. Daugherty, 30 Tex. 360; Jones v. State, 21 Tex. App. 349; Edmonson v. State, 41 Tex. 496; State v. Edwards, 70 Mo. 480; State v. Reahey, 62 Mo. 40. (2) The intrusion of the prosecuting attorney upon the grand jury was in violation of the statute. (Revised Statutes, sec. 4077.) Rothschild v. State, 7 Tex.

Richard-Field, Judge. (1) A party who by means of the confidential relations between the parties by deceit and imposition obtains property of ,the other will be compelled, in a proper case, by a court of equity, to restore the same to the party injured. Dickerson v. Dickerson, 39 N. W. Rep. (Neb.) 429; Huguenin v. Beasley, 14 Yes. 290; Taylor v. Taylor, 8 How. 183; Blancly v. Kimber, 24 Beav. 148; Goddard v. Carlisle, 9 Price, 169; Boneyv. Hollingsworth, 23 Ala. 69.

Louis City Circuit Court: IIon. L. B. Yalliant, Judge. (1) If the facts in evidence are such that two inferences may be drawn from them, the one, importing negligence, the other not importing negligence, then the law is that the case must be referred to the jury, to determine which of these inferences should be drawn from the evidence. Petty v. Railroad, 88 Mo. 306; Wilkins v. Railroad, 101 Mo. 93; Usher v. Railroad, 100 Mo. 194; Taylor v. Railroad, 26 Mo. App. 336; Coxv.

H. Benton, Esq., Special Judge. (1) The error in giving judgment against the evidence offered and the inferences therefrom, that, defendant, Malone, directed the timber cut, knew it-came from plaintiff’s land,-received it and appropriated it to his own use should cause a reversal. Schenclt v. Sautter, 73 Mo. 46; Noeninger v. Vogt, 88 Mo. 589; Bine v. Railroad, 100 Mo. 228; Holliday v. Jackson, 21 Mo. App. 660.

— Hon. Thomas H. Bacon, Judge. (1) The court should have sustained appellant’s objection to the introduction of the deeds in evidence as found on page 7 of the abstract. It is in effect admitted by the answer that the deed was forged; the answer counted on specific performance, which concedes that the deed was. never made by appellants. The forgery was an illegal act and did not bind the appellants. 1 Evans on Agency, 92.

— Hon. John A. Hockaday, Judge. Dependants appeal from a judgment for plaintiff in ejectment. Held: that the action of the county court could only be shown by its record. Maupinv. Franklin Co., 67 Mo. 327; City of Kansas v. Railroad, 81 Mo. 285; Johnson Co. v. Wood, 84 Mo. 489. (4) If the releases were void, then the notice given at the sheriff’s sale was immaterial and rightfully excluded.

<p>Appeal 'from Chariton Circuit Court. — Hon. Gr. D. Burgess, Judge.</p>

Certified from the St. Louis Court of Appeals. (1) The original complaint stated no canses of action at common law, because it contained no averment of negligence. Negligence is the very gist' and essence of the transaction. Johnson v. Bailroad, 76 Mo. 553; Melvin v. Bailroad, 89 Mo. 106; Clemings v. Bailroad, 21 Mo. App. 606; Kendig v. Bailroad, 79 Mo. 207; Taylor v. Bailroad, 83 Mo. 386; Bobertson v. Bailraod, 84 Mo. 119; Witting v. Bailroad, 101 Mo. 631.

— Hon. C. W. Sloan, Judge. (1) A political party may nominate candidates in either of the three ways, viz.: by convention, by primary election or by electors. Eevised Statutes, 1889, sec. 4757; acts 1891, p. 134; acts 1892, sec. 27, p. 10. (2) The only official knowledge the county clerk has of the nominee is by the certificate of the secretary of state, and he can do no more than print the tickets as certified to him.

— Hon. D. A. DeAemond, Judge. (1) That the legislature intended to and did confer full and unrestricted power to authorize the city of Clinton to levy the assessment on the property held by the defendant in this case is perfectly certain, and the fact that both constitution and statutes expressly exempt this and other property from taxation, but nowhere from local assessment, demonstrates such intent.

(1) Section 4388a Revised Statutes, 1889, prohibits the extension of the limits of Westport to within two miles of a city of the first, second or third class, unless the cities are in different counties. The above statute should be so construed. Sutherland on Statutory Construction, sec. 324; United States v. Babbit,. 1 Black 61; Inhabitants v. Commissioners, 83 Mo. 346; Young v. Boardman, 97 Mo. 187; Small v. Small, 129 Pa.

<p>1. Mutual Account. A mutual account arises where there- are mutual dealings and the account is permitted to run, with a view of an ultimate adjustment by a settlement and payment of the balance.</p> <p>, 2. -: statute of limitations. Where, in such case, the last item on either side is not barred by the statute of limitations, the whole account is saved from its operation.</p> <p>3. -: -. The fact that the items are all on one side of the account does not, in this state, prevent the last item from drawing after it all the other items, so as to save the bar of the statute of limitations. (Bine,tv. Jamison, 66 Mo. 4S4).</p> <p>4. -: -. Where a mutual account exists between persons having transactions in cattle, and money is loaned by one to the other at different times, and after the cattle transactions cease no settlement is had, but other loans are made, the presumption arises that the open account continues to such loans.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court should have given a peremptory instruction to the jury to find for the defendant upon the second count. A verdict should hot be allowed to stand where, to reach the same, the jury must have disregarded the clear, consistent evidence of a competent and unimpeached witness, uncontradicted by any evidence in the case. Lionberger v. Pohlman, 16 Mo. App. 392; Borgraefe v. Knights of Honor, 22 Mo.

— Hon. Eichaed Field, Judge. (1) Even if McMahan had been guilty of any negligence at the time and place complained of, the defendants cannot be held liable therefor, because McMahan was a special policeman and not the servant of defendants, and his alleged acts were not in the line of any duty as a servant of the defendants. Farter v. Railroad, 32 Mo. App. 378; Tolchester Reach Improvement Co. v. Steinmeier, 20 Atl. Eep. 188; Thornton v. Railroad, 42 Mo.

— Hon. H. C. O’Bryan, Judge. ■ (1) The court erred in refusing the instructions asked by plaintiff. It defined the legal effect of the government field notes and fixed the location of the line between the two surveys at the point of dispute. The rule in determining the rights of the parties in case of two overlapping surveys depends on priority of confirmation of grant and not upon priority of survey.

Louis City Circuit Courti -(1) All the allegations of the petition are admitted by the demurrer, and if a cause of action can be gleaned therefrom the circuit court erred in sustaining the demurrer. The petition states á good cause of action. Railroad v. Schaubacher, 57 Mo., 583; Julia Building Ass’n v. Telephone Co., 88 Mo. 262.

Louis Criminal Court. — Hon. James C. • Normile, Judge. (1) The verdict is against the evidence, and must be ascribed to partiality, prejudice, passion or a misunderstanding and misconception of the testimony and the law. In such cases it is the duty of the supreme court, and it will not hesitate, to reverse the judgment.

— Hon. Andrew Ellison, Judge. (1) The common law doctrine of vendor’s liens is in force m this state, the same never having been changed or modified by statute. And it is conceded that the mere loaning of money to the vendee, which is used to pay the purchase money of land, or the voluntary and unauthorized payment of the same, does not establish a lien in favor of one so loaning or paying the 'money. Truesdell v. Callaivay, 6 Mo. 605.

— Hon. GL D. ■ Burgess, Judge. Tbe indictment charged tbe defendant with tbe murder of bis wife by an act of violence wbicb broke the cervical vertebras, thereby causing her death. Another count charged tbe death to have been caused by strangling, etc., etc. There were several counts wbicb varied tbe method of chargingthe offense. Tbe homicidal act charged to be murder in tbe first degree is alleged to have occurred on tbe twelfth of October, 1885.

Louis City Circuit Court. — Hon. Daniel, D. Eishee, Judge. (1) Where there is a repugnance between a general and a particular description in a deed, the latter will control. Railroad v. Green, 68 Mo. 169; Hampton v. Helms, 81 Mo. 631; Braclshato v. Bradbu/ry, 64 Mo. 334; Fenwick v. Gill, 38 Mo. 510; Evms v. Green, 21 Mo. 207; Bates v. Bauer, 17 Mo. 550; Cooley v. Warren,. 53 Mo. 168; Shewalter v. Pirner, 55 Mo. 219; Gittv.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. Action for damages for collecting surface water by means of a large open ditch and then discharging the water thus collected by-means of two conduits or drains under Page avenue upon plaintiff’s land, in a body.

Charles Circuit Gowrt. — Hon. W. W. Edwards, Judge. The instruction referred to in the opinion on the measure of' damages is as follows: ‘-‘If the jury under the evidence- and instruction of the court, find in favor of the plaintiff, they should assess his damages at such a sum as they believe from the evidence will be a fair compensation to him. First, for any pain of body or mind. Second, for any loss or damage by reason of disability to labor.