Volume 149 — Missouri Reports

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The order of distribution made by the probate court under 'authority of Revised Statutes, sections 241, 242 and 243, is the judgment of a court of record, and as such is subject to the usual incidents of such a judgment. R. S. 1889, secs. 241, 243 and 246; Ladd v. Stephens, 147 Mo. 212; Elliott’s Estate, 98 Mo. 379; Coquard .v. Marshall, 14 Mo. App. 30; State v. Grigsby, 92 Mo. 419.

— Hon. E. J. Beoaddus, Judge. (1) It was error to allow Miller’s vest to be exhibited to the jury, without proof showing- that it was in same condition as when taken from his body. State v. Moxley, 102 Mo. 381; State y. Buchler, 103 Mo. 208. (2) It was error to allow the State on cross-examination of McLaughlin to inquire as to matters in no manner referred to in the direct examination. State y. McGraw, 14 Mo. 513; State v. McLaughlin, 16 Mo. 320; R. S. 1889, sec. 4218.

— Hon. Jambs D. Eox, Judge. . (1) The charter of defendant expressly authorized it to make such contract as sued upon, and the cost of the improvement contracted for defendant’s charter provided should be paid from an assessment upon all the taxable property within the limits of the city. R. S. 1889, secs. 1495 and 1514; Poplar Bluff to use v. Hoag, 62 Mo. App. 672.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) Tbe plaintiff, Mrs. Maffat, tbe holder of the note has the right to treat the parties to it in the character they have assumed on the face of the paper. The paper “must tell its own story.” Green was the maker and principal debtor, so far as she was concerned, and primarily and not secondarily liable.

— How. Reuben E. Rot; Judge. (1) The act of March 12, 1859, undertaking to repeal that part of the plaintiff’s charter which appropriated to its use the fines, penalties and forfeitures accruing to Pike county, is in violation of those provisions of both the State and Federal Constitutions, which forbid the enactment of any law impairing the obligations of a contract. Sec. 1, art. X, U. S. Constitution; sec. 17, art. XIII, Mo.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Plaintiffs are entitled to institute this proceeding for the benefit of the Blackstone Building & Loan Association and-its stockholders. Slattery v. Transfer Co., 91 Mo. 217; Albers v. Merchants Exchange, 45 Mo. App. 206; R. S. 1889, sec. 2513. (2) It was not necessary to make the receiver a party to this suit. Blair v. 111. Steel Co., 159 111. 359.

— Hon. W. N. Evans, Judge. (1) This case should not have been submitted to the jury, except on a peremptory instruction to find for plaintiff; interpleader knew of the fraud in the sale in time to stop the payment of his draft. It was his duty to do so. Arnholt v. Hartwig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 532; Young v. Kellar, 94 Mo. 581. (2) The plaintiffs instructions number 13, 14 and 15 correctly declare the law and should have been given.

— Hon. W. W. Wood, Judge. (1) The record shows that the court had not then acquired jurisdiction to try the case. The summons issued by the clerk was a nullity. Williams v. Monroe, 125 Mo. 574. (2) The court (1) The court had jurisdiction of the subject-matter and the parties, and its proceedings were binding. Union Depot Co. v. Frederick, 117 Mo. 138.

— Hon. W. S. Byram, Special Judge. (1) The construction heretofore given section 2608, Revised Statutes 1889, in reference to the penalty of $20, is clearly in conflict with section 8, article XI, of the Constitution of Missouri.

— Hon. Richard ' Eield, Judge. (1) The court committed no error in refusing to give respondent’s instruction numbered 21. E. S. 1889, secs. 6774 and 6781; Orrv. Wilmarth, 95 Mo. 212.

Louis Gity Circuit Court. — Hon. Jacob Klein, Judge. (1) It appearing from plaintiff’s petition, and from the nncontradicted and undisputed evidence, that if the city of St. Louis was liable in this case, the Farmers’ Elevator Company was also liable, no judgment should have been rendered against the city of St. Louis, unless judgment was also rendered against said Fanners’ Elevator Company. Charter of St. Louis, art. XVT, sec. 9; Schweiekardt v. St. Louis, 2 Mo.

<p>Appeal from St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p>(1) Tbe petition does not state a cause of action. McQuillin Plead. & Prac., sec. 280; Cook v. Putnam Co., 70 Mo. 668; Bredel v. Alexander, 8 Mo, App. 110; State ex rel. v. Martin, 77 Mo. 676; Jackson v. Railroad, 118 Mo. 199; Railroad v. Calderwood, 7 So. 360; Booth’s Street Ry. Law, sec. 354; Worthington v. Railroad, 72 Mo. App. 162. (2) The demurrer to the evidence should have been sustained. Clotworthy v. Railroad, 80 Mo. 220; Strauss v. Railroad, 75 Id. 185. (3) The case submitted to the jury by plaintiff’s instructions was different from that stated in the petition or shown by the testimony. Ely v. Railroad, 77 Mo. 34; Abbott v. Railroad, 83 Id. 271; Price v. Railroad, 72 Id. 414; Waldhier v. Railroad, 71 Id. 514; Gurley v. Railroad, 93 Id. 445; Sehlereth v. Railroad, 96 Id. 515; Ilaynes v. Trenton, 108 Id. 132; Jacquin v. Cable Co., 57 Mo. App. 327; Worthington v. Lindell, 72 Id. 162. (4) The court erred in the degree of skill and care to which it held the conductor in respect to the signals that passed between him and the plaintiff. Palmer v. Railroad, 111 N. Y. 488; Kelly v. Railroad, 112 Id. 433; Booth Street Ry. Law, sec. 337; Railroad v. Hinds, 53 Pa. St. 512; Meriwether v. Railroad, 45 Mo. App. 533; Boyd v. Railroad, 105 Mo. 371.</p> <p>(1) After the case has proceeded beyond answer and verdict, appellant’s counsel asks this court to consider and determine the sufficiency of the petition upon the same rules which would be applicable were this a hearing upon a demurrer to the petition or a motion to make the same more definite and certain. That practice is condemned by this court as being unfair. McDermott v. Claas, 104Mo. 21; Young v. Iron Co., 103 Mo. 324; Bank v. Soalzo, 127' Mo. 189; Corpenny v. Sedalia, 57 Mo. 88; Edmonson v. Phillips, 73 Mo. 57; State ex rel. v. Williams, 77 Mo. 463; Bowie v. Kansas City, 51 Mo. 454; Grove v. Kansas City, 75 Mo. 672; Knox Co. v. Brown, 103 Mo. 223; Hurst v. Ashgrove, 96 Mo. 168; Lynch v. Railroad, 111 Mo. 601; Bank v. Leyser, 116 Mo. 51. (2) As to the second objection to the effect that there is no allegation in the petition that defendant’s servants in charge of the car knew plaintiff was in the act of alighting from the car, or might have known it by the exercise of ordinary care, we submit that said allegations are clearly comprehended in the general charge that defendant’s servants negligently started the car while plaintiff was in the act of alighting. Crane v. Railroad, 87 Mo. 594; Johnson v. Railroad, 96 Mo. 345; Mack v. Railroad, 77 Mo. 232; Cliubbuclc v. Railroad, II Mo. 593; Hall v. Railroad, 14 Mo. 298; Bowie v. Kansas City, 51 Mo. 456; Ellet v. Railroad, 16 Mo. 518, 535; Schneider v. Railroad, 15 Mo. 295; Sullivan v. Railroad, 91 Mo. Ill; Shaw v. Railroad, 104 Mo. 648; Pope v. Railroad, 99 Mo. 404; Dickson v. Railroad, 104 Mo. 502; Le May v. Railroad, 105 Mo. 360; Troth v. Nor-cross, 111 Mo. 631; Poster v. Railroad, 115 Mo. III. (3) Where the question of negligence is one of fact, the Supreme Court, so far as concerns a demurrer to the' evidence, will only look to see if there is sufficient evidence to support the verdict. Winters v. Railroad, 99 Mo. 509; Pope v. Railroad, 99 Mo. 400; Barth v. Railroad, 142 Mo. 549; Baird v. Railroad, 146 Mo. 265. (4) Appellant’s contention is that the high degree of care which a common carrier is required to exercise for the safety of its passengers is limited to matters of construction and equipment, and does not include the management and service of the company. We take it that this question has been settled to the contrary by several decisions of this court. Och v. Railroad, 130 Mo. 51; Burnish v. Railroad, 102 Mo. 451; Barth v. Railroad, 142 Mo. 550; Thompson on Carriers of Passengers, p. 202; 23 Am. and Eng. Ency. of Law, p. 1006. (5) The verdict is for the right party and should not be disturbed. Railroad v. Hale, 90 Ala. 12; Dougherty v. Railroad, 81 Mo. 325; Coudy v. Railroad, 85 Mo. 85.; Clark v. Railroad, 121 Mo. 210; McDonald v. Railroad, 121 Mo. 138; Schafer v. Railroad, 128 Mo. 64; Hite v. Railroad, 130 Mo. 131; Madden v. Railroad, 50 Mo. App. 615.</p>

— Hon. E. M. Hughes, Judge. (1) Tbe court erred in permitting tbe patent from tbe United States to be introduced, as it in no wise described tbe land sued for, and all tbe evidence shows that tbe legal title to the land in controversy, that is, tbe twenty-six and one-fourth acres, is in tbe United States; therefore plaintiff, not having tbe legal title, can not recover, even on tbe theory of tbe statutes of limitation, as tbe statutes do not run against tbe government.

' Appeal from St. Louis Oity Circuit Court. — Hon. Thomas A. Russell, Judge. (1) The insertion of the name of William H. Daniels as grantee in the deed was authorized by the Wiggenhorns. The filling in of the blank in the deed for the grantee’s name was legal and proper, even, though the deed itself had been delivered in blank. Field v. Stagg, 52 Mo. 534; Burnside v. Wyman, 49 Mo. 356; Drury v. Foster, 2 Wall. 24; Otis v. Browning, 59 Mo.

— -PIon. J. PE. Sloveu,. Judge. (1) The court erred in holding that defendant was liable to anyone under section 2615, Revised Statutes 1889, for property destroyed by fire which did not abut upon or adjoin defendant’s property, and to which the fire was not eommuni.'cated from defendant’s engine, but from the burning of another building.

Louis City Circuit Court. — -IIon. Daniel Dillon, Judge. (1) The petition in this case fails to state a cause of action, in this, that it appears from the petition that the condition of the bond sued on was that the Manhattan Rubber Manufacturing Company should “indemnify the said Henry Troll, sheriff, against all damages and costs which he may sustain in consequence of such seizure and sale of the property aforesaid under said writ.” And the petition fails to state that…

— Hon. E. M. Hughes, Judge. (1) That part of defendants’ answer stricken out sets up a good equitable defense. It shows that the adjoining owners recognized and acquiesced in the fence as the line and used the same fence by building to it on the line. Blair v. Smith, 16 Mo. 273; Dolde v. Yodicka, 49 Mo. 98; Eice v. Bruce, 49 Mo. 231; Majors v. Eice, 57 Mo. 384; Evans v. Kunze, 128 Mo. 671; Ersting v. Gleason, 137 Mo. 594.

Louis County Circuit Court. — Hon. Budolph Hirzel, Judge. (1) The court is the sole judge of the legal effect of the deeds read in evidence taken in connection with all the evidence in the case and must so instruct the jury. Tyler v. Hall, 106 Mo. 313; Slayback v. Gerkhardt, 1 Mo. App. 333; Nicholson v. Golden, 27 Mo. App. 132.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The appellant was entitled to- relief by injunction on the undisputed facts and evidence in tbe case: (a) Because the respondent has never complied with the provisions of ordinance numbered 17,047, requiring the respondent to make proper connections with appellant’s tracks at the intersection of Grand and Lafayette avenues, (b) Because the respondent failed to comply with the provisions of said ordinance numbered 17,047,…

<p>Appeal from St. Louis City Circuit Court. — Hon. John M. Wood, Judge.</p>

<p>Appeal from St. Louis Gity Circuit Gourt. — Hon. Selden P. Spencer, Judge.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The court had no power to render the interlocutory decree, for the lease had terminated so far as appellant was concerned, and lie was the owner of the improvements in the same ratio in which he was owner of the fee title to the realty. R. S. 1879, sec. 6371; Withnell v. Pezold, 104 Mo. 409; 2 Woods’ Landlord & Tenant (2 Ed.), sec. 529; Loughran v. Ross, 45 N. Y. 792; 2 Taylor’s Landlord & Tenant (18 Ed.), sec. 552.

Louis Oity Circuit Court. — Hon. James E. Withbow, Judge. (1) Tbe court erred in commenting, in the presence and hearing of the jury, on the testimony of Minnie Hartung, a witness for plaintiff, while said witness was being examined at the trial. State v. Breeden, 58 Mo. 507; Hair v. Little, 28 Ala. 236; State v. Meagher, 49 Mo. App. 571; G-reenl. on Ev. (Redfield’s Ed.), sec. 462; Green v. Cochran, 43 la. 545.

— Hon. John G-. Wear, Judge.. (1) The judgment of relators has no precedence over the warrants composing the balance of said bach or past indebtedness, and the warrants constituting the back or past indebtedness, including those upon which said judgment was rendered, should be paid out of the fund raised for their payment in the order in which they were issued and presented. E. S. 1889, secs. 3166 and 3167.

Louis Gity Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The contract in suit was abandoned by mutual consent of the parties, before appellant accepted the option thereby given him, and a new agreement was consummated by means of the telegrams and letters which passed between the parties on March 18, 1893.

— Hon. John A. Hockaday, Judge. (1) J. B. Martin had general authority to ship the jack from Armstrong to Moberly, and was therefore empowered to make the contract of shipment read in evidence. Nelson v. Railroad, 48 N. Y. 499; New York v. Railroad, 3 Wall. 107; Lawson on Carriers, secs. 223-225; Railroad v. Morrison, 19 111. 130; Owen v. Brockschmidt, 54 Mo. 290. (2) Tho contract covers the animal shipped.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The intention of the testator is plain. He devises to Sarah Cross a life estate, and to her heirs (children) the remainder in fee simple. Held: then the devise to Sarah Cross and her heirs, is a fee -tail, and under our statute of 1835, Sarah Cross would take the life estate and her children the remainder in fee simple absolute. R. S. 1835, sec. 5, page 119; Carr v. Estill, 16 B. Mon. (Xy.) 309.

— Hon. W. S. Herndon, Judge. (1) Tbe court erred in refusing the first declaration of law prayed for by the defendant. It is not disputed that at the time these plaintiffs received from the defendant the $1,000 in full settlement of all their indebtedness against him, the two notes in evidence were more ’than two years under due. The receipt by them of the $1,000 was a valid consideration and sufficient to support said settlement.. Henson v. Stever, 69 Mo.

<p>1. Arbitration: motion to vacate award: submission to jury. Where parties have, under a statute, submitted their differences to arbitrators, neither is entitled to have submitted to a jury the issues raised by a motion to set aside the award, if those issues are fraud or partiality on the part of the arbitrators or statutory grounds. And this ruling does not violate the constitutional guaranty of the right to trial by jury.</p> <p>2. -: -: practice. Proofs to sustain, motions to vacate the award of arbitrators should be taken by affidavits, and the appellate courts should hear and review the judgment as in equity eases.</p> <p>3. -: what it IS. The statutory method of arbitration maybe designated as “a quick bill in equity.”</p> <p>4. -: lumping award. And where defendant has agreed to be responsible to plaintiff both for his own debt and that of other parties named, and no stipulation is made for separate awards, the arbitrators may determine on one lumping sum as the amount due.</p>

<p>Koerner v. Leathe, ante, p. 361, followed and approved.</p>

— Hon. L. B. Woodside, Judge. (1) Appellant contends that his plea in abatement of the indictment was a good plea. He insists that he should not be required to plead to'the merits; that through her attorney the State had entered into an agreement to discharge him on a consideration in the agreement expressed. His part of this agreement, giving testimony in the cause, the appellant performed.

— Hon. A. M. Woodson, Judge. (1) Tbe deed executed by Mrs. Tbornton to the guardian of her children, contemplated in law the contingency of her death. It contemplated that upon the happening of that event the law would cast the fee upon the children. This she could not prevent except by a will. The transaction contemplated also that in the event of her death her personal estate would still be liable, and that the note might be collected from the father alone.

— Hon. J. O. Lamson, Judge. (1). The indictment herein charges that the robbery was committed “in the presence and against the will” of the owner by putting him “in fear of some immediate injury to his person.” Instruction numbered 1 told the jury that if they found that the robbery was “from the person and against the will by force and violence to the person,” they should convict. Section 3230, R. S. 1889; State v. Montgomery, 109 Mo. 645.

— Hon. Henry O. Riley, Judge. (1) The court erred in not permitting defendant to offer sworn oral testimony in support of his application for a change of venue in lieu of affidavits. The sworn oral testimony of a witness before a court is substantially an affidavit.

<p>Appellate Jurisdiction: involving revende law: suit against drainage DISTRICT. In an action for services as attorney against an incorporated drainage district, a demurrer to the petition does not involve a construction of Revised Statutes 1889, section 6528, providing that as soon as such district shall be. organized, to defray the expenses of a survey, constructing ditches, etc., and to pay such officers, employees, etc., as are allowed compensation by law, a certain tax shall be assessed, and consequently bring the general reve, nue law of the State under review on appeal from the ruling thereon, so as to give the Supreme Court jurisdiction.</p>

<p>1. Criminal Law: instructions: by whom asked. It is the duty of the court, in a criminal trial, to instruct the jury on all questions involved in the ease, and it is immaterial whether the instructions are prepared by the counsel and given at their request, or by the court.</p> <p>2. -: APPELLATE PRACTICE: REMARKS OE PROSECUTING ATTORNEY: how preserved in record. Merely assigning remarks of a prosecuting attorney, which are claimed to be outside of the record, as a ground for a new trial and setting them out in the motion, neither proves they were made nor makes them a part of the record.</p> <p>3. -: --: severe and unusual verdiot. Where, in a criminal case, the trial court approves the verdict of the jury, the Supreme Court will not interfere on the ground that it is unusual and severe, in the absence of a showing that it was manifestly the result of passion or prejudice.</p>

— Hon. L. B. Woodside, Judge. (1) The court erred in giving instruction number 1 for the State, (a) It tells the jury that defendant could be found guilty of larceny if he stole “any goods, wares and merchandise” from said building while he was only punishable for stealing such as were charged in the indictment and proven to have stolen therefrom. State v. Babb, 76 Mo. 503; State v. McGraw, 74 Mo. 574; State v. Taylor, 111 Mo. 541.

<p>The ease of State v. Wesley Sprague, ante, p. 409, followed.</p>

— Hon. Andrew Ellison, Judge. (1) The language and meaning of the will is beyond question. Testator did not want to give the property to the wife Elizabeth — he did not do it. He gave it to “the children of D. N. Thomas” of whom she was then the mother; not because they were her children, but because they were his. In the light of the language used, the laws of human nature and the thing done, this much is clear: he did not stop there in language or intent.

— Hon. L. B. Woodside, Judge. • The instrument sent to the clerk of this court and filed by the clerk as the bill of exceptions in the case does not disclose when it was filed in the office of the clerk of the court below, nor does it appear to have ever been signed by the judge. This court has universally held that bills of exceptions must be filed within the time allowed by the trial court and must be signed by the judge of such court, els© the same will not be considered.

Louis Circuit Court. — Hon. Daniel Dillon, Judge. (1) Tbe petition states no cause of action against defendant Judson M. Thompson and bence tbe judgment rendered in tbis case was erroneous and should be reversed. It is settled that tbis court will reverse a judgment obtained upon a petition which fails to state a cause of action, though no objection was made thereto in the lower court.

Transferred from Kansas Gity Court of Appeals. We desire to suggest that this case was improperly certified to this court by the Kansas City Court of Appeals, and it should therefore be remanded to said court for the following reasons: 1, the amount involved in this controversy is only $663.25 and less than $2,500; 2, the amount determined by the court below, was a motion to quash an execution issued on judgment enforcing a mechanic’s lien, before any sale thereunder; 3, the…

— IIon. W. W. Eucker, Judge. The sheriff’s deed under which plaintiff claims, does not describe part of the land claimed in the petition and for which judgment was rendered, to wit: The fifteen acre tract. The deed, in describing the land by metes and bounds, closes the description by using these words: “Thence west” twenty rods to the place of beginning. It should have said thence east twenty rods to place of beginning.

— Hon.-0. A. Anthony, Judge. ' Unless exceptions be taken and presented by the bill of exceptions to the action of the court in overruling a motion for a new trial, there is nothing before the appellate court for review except the record proper. Ross v. Railroad, 141 Mo. 390; State v. Murray, 126 Mo. 526; Danforth v. Railroad, 123 Mo. 196; State v. Gillum, 110 Mo. 1; State v. Harvey, 105 Mo. 316.

<p>Incest: indictment: evidence: well-tried case. From a conviction, of incest defendant appeals. Held, that since the indictment is good, the instructions proper, and the evidence fully sustains the verdict of the jury, and the ease well and fairly tried, the judgment will he affirmed.</p>

— Hon. W. N. Evans, Judge. (1) The defendant should have been granted a continuance on his application. The defendant’s affidavit meets •every requirement of section 4181, Revised Statutes 1889. It shows the materiality of evidence of the absent witnesses. It showed that due diligence had been used to obtain the evidence of said absent witnesses.

— Hon. John W. Henry, Judge. (1) Albo Miller conveyed to George D. Fearey the contents of a shoe store in trust to secure the payment of certain of the debts of said Miller to third parties named in the deed. This instrument did not operate to convey any title to the property therein described to the plaintiff, Fearey, until the beneficiaries therein named accepted it. Huh v. Garvin, 125 Mo. 563.

W. W. Sucker., Judge. (1) The remarks of the assistant counsel on the part ■of the State, were outside of the record, a personal attack on the defendant, highly prejudicial, and warrants this court in reversing the judgment. State v. Young, 99 Mo. 683; State v. Jackson, 95 Mo. 653; State v. Ulrich, 110 Mo. 365; State v. Warlord, 106 Mo. 65; State v. Eairlamb, 121 Mo. 150. (2) The evidence was insufficient to support the ver-dict.

Transferred from Kansas City Oouri of Appeals. (1) Emit trees are not articles of merchandise, and the only proper way to arrive at their value is to compare the value of the land after their destruction with its value before. That being true, the court erred in receiving the conjectural testimony offered by plaintiff as to the value of the trees. Shannon v. Railroad, 54 Mo.

L. B. Woodside, Judge. (1) The condition of the woman with reference to being pregnant, together with the testimony of the witnesses to whom defendant made statements to the effect that he had on a certain occasion and at a certain place had sexual intercourse with her is sufficient to. fasten a verdict and finding of guilt upon him.

— Hon. John G. Wear, Judge. The court erred in permitting the State to prove by witness Hawkins, that defendant had been guilty of other and distinct offenses, and that the witness had heard of defendant being charged with certain specific acts of immorality. “Special acts” and “other-specific acts of immorality” on the part of defendant are wholly incompetent for the purposes of impeachment.

Transferred from Kansas City Court of Appeals. (1) The provisions of the contract requiring Howard to pay for all work and material and to furnish statements of the same, with receipted bills, to the city; and authorizing the city at any time to apply any part of the contract price to the payment of such claims, were legal and valid; and such provisions under the allegations of the petition, gave the materialmen an equitable lien upon the portion of the contract price yet…

— Hon. John Q-. Wear, Judge. (1) The court erred in defining manslaughter in the second degree. E. S. 1889, sec. 34Y0; State v. Edwards, YO Mo. 480. (2).

— ITon. O. A. Anthony, Judge. (1) The court erred in admitting the evidence of witnesses G. W. Kelly, Arch Thornhill, Dr. H. M. Wilson, and Jas. Dyche over the objection of the plaintiffs, of the statements of the deceased, William Banks, in his lifetime as to Joe Banks’ illegitimacy.

— Hon. C. L. Dobson, Judge. (1) Tbe trustee, by the terms of the deed of trust was, upon default, entitled to the possession of the mortgaged property. Jones on Chat. Mort.

Louis City Circuit Court. — Hon. Pembrook R. Flitcraet, Judge. (1) The petition herein fails to state facts sufficient to constitute a cause of action. The petition does not allege the value of the land before the overflow, and the value of the land-after the overflow; or the fair rental value of the land from the time when the injury commenced to the date of suit. Gould on Waters, sec. 211; Paddock v. Somes, 51 Mo. App. 321.

— Hon. C. C. Bland, Judge. (1) The petition states an executory contract to convey real estate in Wright county, Missouri, and before McClain could bring suit against Winningham, he must terminate such contract by first giving to him reasonable notice in writing; that he,at certain specified time,would terminate the contract; thatis,areasonabletime, accordingtothe circumstances of the case, within which he would expect the title to be made as contracted at the peril of…

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1) When property that may be sold under execution is blended witb wbat can not be sold so tbat it is difficult to separate tbem tbe court will quash the whole proceedings. Ammant v. Turnpike Co., 13 Serg. & R. 210.

<p>Appeal from Daviess Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

— Hon. Reuben E. Roy, Judge. (1) The demurrer to the evidence should have been sustained. All the evidence, shows the bridge to have been properly constructed and sufficient to withstand the effects of all ordinary storms and floods.

— Hon. James H. Lay, Judge. (1) The court should have' granted a new trial on the ground of the newly discovered evidence. State v. Murry, 91 Mo. 95; State v. Bailey, 94 Mo. 311; Howland v. Reeves, 25 Mo. App. 458; Anderson v. State, 43 Oonn. 514; Wilcox Silver Plate Co. v. Barclay, 48 Hum. 56; Morse v. State, 108 Ind. 599; Kochel v. Bartlett, 88 Ind. 231; Wilson v. Plank, 41 Wis. 94.

— Hon. Cyrus A. Anthony, Judge. (Í) The court committed error in failing to render judgment for the appellant, on finding that the levy of the county court was fatally defective. , The trial court, in its subsequent action, arrogated to itself duties which the law cast on the county court, and which the circuit court had no power to exercise.

— Hon. James D.. Fox, Judge. (1) An examination of the record will disclose but one continuance had at the request of the State. After the indictment was returned there were three continuances had. The first at the instance of the court without the request of either party to the record. Under the circumstances it will be considered as having been made by the court of its own motion on account of not having time to try the same.

— Hon. E. M. Hughes, Judge. Tbe order of publication was void. Spurlock v. Dougherty, 81 Mo. 171; Lagrone v. Rains, 48 Mo. 536. In State v. Einn, 11 Mo.

— Hon. William S. Herndon, Judge. (1) Under the statutes of this State a citizen can not acquire title to the right of way of a railroad company, by adverse possession. The statute provides that “nothing contained in any statute of limitation shall extend to any land given, granted, sequestered, or appropriated to any public, pious, or charitable use, or to any lands belonging to this State.” Sec. 6772, R. S. 1889.

— Hon. W. H. Bkownlee, Special Judge. (1) The two commissioner’s deeds from Lee to Kennedy were nnantborized, and wholly ineffectual to divest Chariton -county of the legal title, (a) Said commissioner’s deeds can not be upheld under the local law of 1861, relating to the conveyance of swamp lands in Chariton county for two unanswerable reasons; first, because said local law of 1861 did not empower the county court to appoint a deed commissioner to convey said lands, but, on…

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The writing in of. the name of Foster, as grantee, whether by mistake or not, completed the document as a deed. Albright v. Albright, 36 N. W. 254. (2) And the erasure of the one name and the insertion of another ^eudered the deed void. Evans v. Foreman, 60 Mo. 449; Bank v. Ericke, 75 Mo. 178; Morrison v. Garth, 78 Mo. 434; Bank v. Armstrong, 62 Mo. 66; Miller v. Gilleland, 19 Pa.