Volume 40 — Missouri Reports

Louis Circuit Court. I. The property was not in fact the property of the plaintiffs ; they had an interest in it, but no title to it either legal or equitable. The policy was void, because the true nature of the title was not disclosed in the policy.

<p>1. Evidence — Experts — Insurance. — A witness who has been many years an officer of an insurance company, and has become acquainted with the business of fire insurance, is competent to give his opinion as to the effect produced by the erection of additions to the buildings insured.</p> <p>2. Insurance — Policy—Rish.—When the alterations and additions to a building materially increase the risk, so that the insurer would be entitled to a higher rate of premium, the policy will be treated as absolutely void if the insured fail to give the notice required.</p> <p>3. Practice — Pleading—Exhibits.—No reference to papers which are mere exhibits in a cause can make the contents of such papers parts of the pleading.</p>

Louis Court of Common Pleas. The following declarations of law were asked by defendant and refused: 1. The writing read in evidence purporting to be an assignment made by Edward Dobyns to plaintiff, dated July 28, 1868, is not sufficient in law to vest in the plaintiff the right to claim or recover of the defendant the amount of interest sued for in this case. 2.

Louis Court of Common Pleas. I. The evidence is conclusive and overwhelming that the defendant never did agree to insure any other building than the one described in the written application and policy; and there is no testimony in this cause showing any other agreement than the one evidenced by the writings. II.

<p>Insurance — Policy—Risk.—The charter of an insurance company, which was printed on and made part of the policy, provided that the insurance should be void if any alteration were afterwards made in the building insured, or if any other building should be erected or placed contiguous thereto, whereby it might be exposed to greater risk or hazard than it was when insured, unless done with the consent of the directors. In a suit upon the policy, held, that the burden of proof was upon the company to show a violation of the terms of the policy ; and that it was properly left to the j ury to determine whether any contiguous buildings had been erected so as to increase the risk that had been taken.</p>

<p>1. Insurance — Policy.—A policy was sent to tlie assured with a note for the premium to be signed by the assured and endorsed by a responsible endorser; it being understood that until the note was returned the policy did not take effect. Held, that the execution of-the note was a condition precedent to the taking effect of the policy ; and that the parties to whom the sum insured was payable in case of loss, could have no greater right than the party under whom they claimed.</p> <p>2. Witness — Evidence.—The assignor of a policy of insurance is a competent witness to prove that there was no consideration for the assignment — Ferry et al. v. Siter et al., 37 Mo. 273.</p>

• Appeal from St. Louis Circuit Court. The facts sufficiently appear in the opinion. Held: and of the set-offs and defences against the same of the maker, will be taken to be the knowledge of the plaintiff; and if said notes were delivered to said Emery as a member of Livermore, Sweet & Co. as collaterals to secure said firm in any advances made or to be made by them in the purchase of castor beans for Mowry, and if said…

Louis Circuit Court. I. The instruction in regard to the witness Tallis, at instance of defendant, should have been refused ; because such instructions are improper. The old decisions would sustain it — State v. Mix, 15 Mo. 153; Gillett v. Wimer, 23 Mo. 79, and State v. Dwier, 25 Mo. 554.

Louis Land Court. A promissory note executed by a married woman is not void, and she may be sued on such note — Claflin v. Yan Wagoner, 32 Mo. 252. The justice had jurisdiction — R. C. 1855, p. 925, § 3. This has been repeatedly decided by the courts. In Barton v. Beers, 21 How.

<p> Appeal from St. Louis Circuit Court. </p>

<p> Appeal from St. Louis Law Commissioner’’s Court. </p>

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Appeal 'from, St. Louis Land Court. On the trial, which was before the court sitting as a jury, the respondents offered to read in evidence a writing as follows : “This agreement, made this 20th day of June, 1857, between Kenneth Mackenzie, agent for Volney S. Stevenson, of the first part, and George Bailey, of the second part, witnesseth : That whereas the said parties are proprietors of adjoining lots of ground, or parcels of land, in block 87 of the city of St. Louis,…

<p> Error to St. Louis Court of Common Pleas. </p>

Louis Land Court. This was a suit in equity by Nancy Sullivan to establish a debt against the estate of Andrew Dickson, deceased, and fix it as a lien on a tract of land owned by the widow and heirs at law of John H. Ferguson, deceased.

Louis Court of Common Pleas. By the refusal of the 4th instruction the court held that gas fixtures could in no case become a part of and pass with the realty as between grantor and grantee, although they be connected with or appurtenant thereto — Cohen v. Kyler, 27 Mo. 122; Winslow et al. v. Merchants’ Ins. Co., 4 Mete.

Louis Circuit Court. Upon the trial of the case, the plaintiff asked the following instructions: 1. After the execution and recording of the mortgage deed from John W. Miller to Samuel C. W. Miller, Samuel C. W. Miller had the right to leave John W. Miller in possession of the property, and such possession by John W. Miller is not of itself evidence of fraud in the execution of the deed of mortgage. 3.

<p>1, Conveyances — Evidence—Certified Copies. — Certified copies of conveyances may be read in evidence under the statute, R. C. 1855, p. 365, § 46, when the original is not in the control or possession of the party, his agents or bailees — Barton v. Murrain, 27 Mo. 235. A deed in trust will be presumed to be in the possession of the trustees or their beneficiaries.</p> <p>2. Practice — New Trials — 'Setting aside Non-suit — Mistake of Counsel. — Non-suit set aside upon payment of costs, under the circumstances, it appearing that the counsel had given a mistaken construction to the statute and the decisions of the court thereupon.</p>

Louis Land Court. This was an action of ejectment for a tract of land in the county of St. Louis, brought by Pauline Dalton, respondent, against the appellants. The plaintiff introduced and read in evidence — 1. Deed dated September 9,1851, from William S. Hereford and wife to John Dalton, the husband of the plaintiff; 2. Deed dated January 8, 1855, from Dalton and Pauline, his wife, to one William Fulton; 3.

<p>Equity — Mortgage—Ermd.—Where the sale, under a deed of trust to secure payment o£ a debt, was procured by fraud by lulling the owner of the land into security by the promise of the creditor not to sell without first making demand, the court set aside the sale and granted permission to redeem. (See S. C., 35 Mo. 95.</p>

Louis Circuit Court. I. The general rule is, that whatever is once annexed to the freehold becomes part of it, and can be removed by him only who is entitled to the inheritance. Modern innovations as between landlord and tenant have excepted improvements made by the tenant for purposes of trade or manufacture — Kelsey v. Durkee, 33 Barb. 410; Moore v. Wood, 12 Abb.

<p>1. Landlord and. Tenant — Improvements. — It is not enough for the tenant to offer to fulfil the covenants of his lease so as to obtain permission from his landlord to remove the improvements he has erected upon the demised premises. He must first fulfil his covenants, and then he may have the legal right to remove his improvements without any permission.</p> <p>2. Judgment — Estoppel — Record — Evidence.—The record of a judgment, in a former suit between the same parties, to constitute an estoppel, must show that the same subject matter had been passed upon and adjudicated in that suit.</p>

<p>Landlord and Tenant — Assignee — Possession.— The assignee of the landlord by deed may recover, under alandlord’s warrant, possession of the premises demised upon making demand of the rent due and exhibiting to the tenant in possession the deed under which he claims title — B. C. 1855, p. 1018.</p>

Louis Circuit Court. I. Tlie court below erred in refusing to give the first instruction asked by the defendants, namely, that upon the whole evidence the plaintiff was hot entitled to recover. This instruction was asked, at the close of the plaintiff’s case, as in effect a demurrer to the evidence.

<p>Corporations — Franchise — Execution Levy. — The franchise of a corporation cannot be levied upon and sold under execution.</p>

<p> Error to St. Louis Land Cou/rt. </p>

<p>Limitations — deeming of Action — City of St. Louis —Under the provisions of the charter of the City of St. Louis (February 23, 1853), providing for the condemnation of property for streets and alleys, where the title to the land taken for a street was in dispute between parties, no cause of action accrued against the city for the damages assessed until the question of title was determined by a court of competent jurisdiction in favor of the claimant.</p>

<p> Appeal from St. Louis Land Court. </p>

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. This was an action by Henrietta Meyer, widow of August Meyer, deceased, against defendant, for damages for the death of her husband. The action was instituted under the second section of the “ Act relating to damages,” R. C. 1855, ch. 147. The accident occurred at the depot of defendant at St. Louis. The Franklin accommodation train was at the station.

<p>1. Evidence — Res Gesta. — What the defendants said in relation to their having paid an account presented to them, is part ot the res gesta when testimony is given of the presenting the account and of the defendants’ refusal to pay.</p> <p>2. Practice — Repositions — Trials. — 'Exceptions to questions and answers, made during the taking of a deposition, must be presented to the court and passed upon at the trial. The whole deposition cannot be excluded because part of the testimony is objectionable.</p>

<p>Practice — Trials — Jury — Supreme Court. — It is the province of the jury to decide upon the credibility and weight of testimony ; and where evidence is presented legally tending to support the issues, the Supreme Court will not review the finding of the jury.</p>

Louis Court of Common Pleas. The amended petition was as follows : “Plaintiffs state that they as partners, doing business under the name and style of Langford, Stephenson & Co., entered into a contract or articles of agreement,.in writing, with the above named defendants, doing business under the name and style of Sanger, Camp & Co., on the sixth day of February, eighteen hundred and fifty-five, for the framing and erection of fifteen bridges upon the Illinois division of…

<p> Error to St. Louis Circuit Court. </p>

Louis Circuit Court. This was an action in ejectment brought in the St. Louis Circuit Court to recover possession of a piece of land described as “fifty acres of land of that tract or parcel of land situated and being in. tlie county of St. Louis and State of Missouri, in U. S. survey 3094, in township 6 north, range 5 east, and containing five hundred and ten acres, more or less; bounded on the west by Créve Coeur lake, on the north by land formerly belonging to Mullanphy,…

<p>Practice — Supreme Court. — Verdict for the right party.</p>

Louis Circuit Court. The refusal of defendant’s instructions was error; for, to constitute defendant’s declarations matter of estoppel in pais, it must have appeared — 1. That they were inconsistent with the fact sought to be proved, viz., that he was a resident; 2. That they were made wilfully and with intent to induce plaintiff to believe he was a non-resident; 8. That they were sufficient to induce a reasonable man to believe it; 4.

Louis Law Commissioner’s Court. This was an action instituted in March, 1865, against appellants for four hundred dollars, for injuries done to plaintiff’s carriage by the careless and negligent driving of a dray by defendants. The answer was a general denial, and alleged that the' accident occurred by plaintiff’s neglect.

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Louis Circuit Court. I. “Where the party or his counsel are absent through misapprehension or necessity, and the cause goes to the jury undefended, and there are merits, the court will relieve by setting aside the verdict” — 1 Gra. & Wat. New Trials, 162; Rex v. Tracy, 2 Strange, 1208; Schonck v. Woolsoy, 8 Cai. (N Y) 100; 2 Salk. 645; Beazley v. Shapleigh, 1 Price, 201; Peebles v. Ralls, 1 Litt. (Ky.) 24; Sayer v. Einck, 2 Cai. 336; Sherrard v. Olden, 1 Halst.

Louis Court of Common Pleas. I. Hafkemeyer had the right to claim the property, and the sheriff was authorized to demand the bond in question. The only person excluded from making claim to the property levied on is the defendant in the writ. Every other person having an interest in the property may claim the same. The statute does not require the legal owner to claim the property levied on, but any person having “any interest therein” may claim the same.

Louis Court of Criminal Correction. I. Tlie provision is a violation of § 24, art. 1, of the Constitution of the State of Missouri, which provides that “ no person can, for an indictable offence, be proceeded against criminally by information,” &c. The question as to what is meant by an “ indictable offence,” in this section of the Constitution, has been fully established in this State by the decisions of this court in the three following cases: State v. Stein, 2 Mo. 67;…

<p> Appeal from St. Louis Circuit Court. </p>

Louis Court of Common Pleas. This was an action of trespass de bonis asporlatis brought by the plaintiffs, consisting of several mercantile firms of the city of St. Louis, against the defendants, also consisting of a number of firms in the same city.

Louis Court of Common Pleas. The court gave the instructions asked by each party, as follows : Plaintiff’s instructions. — 1.

<p> Appeal from St. Louis Court of Common Pleas. </p>

Louis Circuit Court. The plaintiffs brought suit for $359.80 on an agreement in writing, which read as follows: “We, the undersigned, agree to receive from Messrs. Stevens & Young about five hundred (500) barrels selected jeniton apples, at Quincy, at two dollars and five cents ($2.05) per bbl., at their cellar. Also, about one hundred barrels, same kind, at Clarksville, Mo., at one dollar and seventy-five cents ($1.75) per bbl. Clarksville, March 18, 1862.

Louis Circuit Court.. I. Though the deed in controversy from McDowell to Stevens may have been fraudulent in fact as to both those parties, yet if these note holders stand in the position of subsequent purchasers in good faith without any notice that such original conveyance was fraudulent, they take a good title to the extent of their interest to the property, and are unaffected by the nature of the original deed as regards both the grantor and grantee — R. C. 1855, p. 808,…

Louis Circuit Court. The “Fanny Barker” having been sold by order of the St. Louis Circuit Court, notice was published requiring all persons having lien claims to file the same in said court. Pursuant to such notice, the appellants on the 4th day of October, 1866, filed an account containing one item, viz., “ supplies, consisting of moneys furnished for the use of said steamboat at the request of the agent thereof, $10,000.

Louis Circuit Court. ■ This is a suit brought for supplies furnished. The petition was filed on the 29th January, 1866. The date of the first item of the account was August 80, 1864 — for cash advances to the owner for buying stores and supplies for the boat, $500.

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. The claim was properly presented in the name of Aiken & Go. Neither the account itself nor the lien growing out of it was ever attempted to be transferred, but the note, which is merely the evidence of the existing debt, and which the boat and vessel act (§ 52, p. 759) permits the lien holder to take without affecting his right of lien, was transferred to a third person by delivery, who, as the evidence tended to prove, took it on the faith of the lien.

<p>Boats and Vessels. — See Gibbons et al. y. St. Bt. Banny Barker, ante p. 253.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>The points made against plaintiffs’ claims are understood to be mainly these: . 1. They took a note for about $3,000.19, signed by Nolan & Oaffrey, for part of their account; 2. They took the company’s note for $1,872.74 for another part; and 3. They endorsed and discounted these notes in the Second National Bank.</p> <p>It is well settled that the taking of a negotiable note or bill o£ exchange of the owner, master or assignee does not destroy the lien, if the note, &c., matures within the time of the existence of the lien — Harris v. Kensington, 8 Amer. Law Reg. 184; 24 J. R. 404; 2 Browne, 297; 9 Mo. 58, 63; R. C. 1855, p. 316, § 50; 9 Mo. 59; id. 67; Olcott, 286 ; Goff v. Papin, 34 Mo. 177; Grant v. Mills, 2 Yes. & B. 309 ; 22 Mo. 139 ; Flanders’ Mar. Law, p. 191, § 247 ; 30 Mo. 458.</p>

Louis Circuit Court. I. The desertion of the boat during the voyage by the defendant, without just cause, created a forfeiture of all wages antecedently due him ; and the defendant’s first instruction, which was fitted to the facts, should have been given — 3 Kent, 197. II. The instruction given by the court at plaintiff’s instance was erroneous. It applied the rule of forfeiture only to wages earned after leaving the last port.

<p> Appeal from St. Louis Circuit Court. </p>

Louis Court of Common Pleas. I. The rule in England and Missouri is, that the personal estate while in the hands of the executor is the primary and natural fund which must be resorted to in the first instance for the payment of debts of every description contracted by the testator — Wms. on Ex’rs, 1149; Stokes v. O’Eallon, 2 Mo. 29.

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. The facts of the case and the circumstances under which the questions arose sufficiently appear in the foregoing syllabus and the opinion of the court. Held: that he took a vested and descendible interest. And see Mansfield v. Dugard, 1 Eq. Ca. Abr. 195 ; Doe d. Haywood v. Whitby, 1 Bur. 228 ; Den d. Abrahams v. English, 2 Harrison, 290 ; Doe v. Moore, 14 East, 601; Doe v. Provost, 4 J. E. 61; Summers v. Burtis, 4 Edw.

Louis Court of Common Pleas. This was an ejectment 'to recover possession of a common-field lot conceded to William Bizet, February 7, 1769, and confirmed to his legal representatives by act of Congress of July 4, 1836 (Dec. 286), and surveyed as U. S. survey No. 3,340, and being the same lot cultivated by John B. Provenchere prior to December 20,1803, and conveyed by Mary Provenchere and John Louis Provenchere to Risdon H. Price by deed dated August 29, 1816.

Louis Circuit Court. The court gave the following instructions on behalf of plaintiff: 2. The jury are instructed that the calls for the Mississippi river in the deeds or conveyances read in evidence from one private individual to another private individual, do not give or create riparian rights. 3.

Louis Circuit Court. This was an action of ejectment. The plaintiff’s evidence was the same as in the Risley case. The defendants read in evidence a concession to Charles Leveille (or Leveiller), dated 1st of March, 1788, by which Manuel Perez, Lieut.

Louis Land Court. This was an action brought by plaintiff against the defendants at the March term, 1864, in the St. Louis Land Court, to recover a tract of land containing about thirteen acres in the southern part of the city of St. Louis.

<p> Appeal from St. Louis Circuit Court. </p>

Louis Court of Common Pleas. The plaintiff filed his petition in. equity against the defendants on September 18,1862, in the St. Louis Land Court, as junior patentee under one Brazeau, patent dated… Held: upon this identical title, to the same effect in the cases of West v, Cochran, 17 How. 412-17, and Magwire’ v. Tyler, 1 Black, 198; see also Burgess v. Gray, 16 How. 48, 65, and Stanford v. Taylor, 18 How.

<p>Evidence — Carrier.—In a suit against a carrier for the non-delivery of a trunk shipped, testimony to show what were the contents of the trunk at the time it was packed, some weeks before its delivery to the carrier, is admissible, although the carrier can only be held responsible for the contents of the trunk at the time of its receipt.</p>

Louis Circuit Court. The court refused all the instructions asked by defendants, and gave the following: “ I£ the jury believe from the evidence that the certificate of confirmation dated the 22d day of April, 1825, made by Theodore Hunt to Francois Duchouquette, and the will made by Fran§ois Duchouquette in 1883 and the deed from Henry Bompart to William Prairy in 1848, are genuine, and that said confirmation, will and deed embrace the land in question, and that the…

Louis Circuit Court. The court gave the following instructions to the jury: 1.

Louis Circuit Court. At plaintiff’s request the court gave the following instructions, to the giving of which defendants excepted: 1. If the bond read in evidence was executed in blank, to be filled up afterwards by the addition of a list of the goods taken, or of any other part thereof,-the addition of such matter after the signing will not affect the validity of the bond, or discharge the obligors. 2.

Louis Land Court. This suit was commenced at the March term, 1854, of the St. Louis Land Court, by Mary Reily, to recover her dower in one undivided two thirds part of lot No. 28 in John P. Reily’s addition, &g. The defendant answered, admitting the demandant’s right; but in his answer, to avoid the payment of allowance in lieu of an assignment in kind, offered to have set off to her a quantity of land greater than she was entitled to.

Louis Circuit Court. The.court gave the following instruction for the plaintiff, which was excepted to : “ If the jury believe from the evidence that the plaintiff by his servant was in possession of the premises, and the defendants, by threats, words or actions calculated, to excite fear and apprehension of danger, entered upon the premises in question, or any part thereof, and turned the complainant or his servant out, then the defendants are guilty of forcible entry and…

Louis Court of Common Pleas. Instruction given for plaintiff: 1.

<p> Appeal from St, Louis Circuit Court, </p>

<p> Appeal from St. Louis Circuit Court. </p>

<p>Equity — Substitution— Conveyances — Notice.—A., without actual knowledge of an attachment, purchased land subject to the encumbrance of a deed of trust, which was paid out of the purchase money and released upon the record, the title having been reported upon as subject only to the encumbrance of the deed of trust. Under the judgment in the attachment suit the land Was subsequently sold. Held, that A. had no equity, to have entry of satisfaction set aside, to be substituted in the place of the original cestui que trust, and to have the property sold to pay the amount originally secured by the deed of trust; and that he must be treated as a purchaser with full notice.</p>

<p> Appeal from St. Louis Circuit Court. </p>

Louis Court of Common Pleas. Instructions given for the plaintiff: 1.

<p> Appeal from St. Louis Circuit Court. </p> <p>v This case was tried upon the issues made by the petition and answer.</p> <p>The plaintiff in her said petition, after alleging that she was the wife of Michael Liddy, and that the defendant was a corporation possessed of a street railway along Broadway and Fifth street in the city of St. Louis, averred “that it was the duty of said defendant at all times, when running their cars along said streets, to keep a vigilant watch for all vehicles and persons on foot, either on the track or moving towards it, and on the first appearance of danger to stop the cars in the shortest time and space possible, and to otherwise observe and perform all the municipal regulations and rules imposed upon said defendant by city ordinance No. 4564, entitled ‘ An ordinance in relation to street passenger railways,’ approved December 27,1859. But plaintiff says the said defendant, on or about the 31st day of December, A. D. 1864, wholly disregarding its duty in every respect and the provisions of the aforesaid city ordinance, by its agents, servants, and employees, so negligently, unskilfully and with criminal intent run and conducted one of its said cars along the aforesaid streets that the same was run over Michael Liddy, husband of plaintiff, as aforesaid, without any fault upon his part, whereby he was killed, and that his death resulted from the injuries then and there caused by the negligence, unskilfulness and criminal intent of th e said defendant, its agents and servants as aforesaid, whereby and by reason of the statute in such cases made and provided defendant has forfeited and become liable to pay plaintiff the sum of five thousand dollars damages, for which she asks •judgment.”</p> <p>Defendant by its answer to the amended petition put in issue the material allegations of the petition — denied negligence, carelessness or criminal intent on the part of its agents and servants — and averred that if Michael Liddy received the injuries complained of, it was in consequence of his own negligence and carelessness, and not through any fault of defendant.</p> <p>Albert L. Allen, for plaintiff, stated that on the evening of the 31st of December, 1864, between 7 and 7-|- o’clock, he was standing on the west side of Broadway, opposite Bates street, when “ a car of the Fifth-street railroad line was coming up defendant’s track from the Arsenal, proceeding north towards Bremen ; it was going at the rate of from seven to eight miles an hour, which is faster than they generally drive. It was a starlight night and the gas-lamp at Chapman & Thorpe’s corner, as well as the lamp on the other side of Bates street, were lit. I could see a man a half square by that light, and a car or train at least a square or two off. * * * I saw deceased for the first time just before the horses’ heads reached him; he was coming over from the east to the west side of the street; I had not noticed him before that moment of time ; he hallooed, ‘ Oh!’ fell, and the car passed over him. * * * The car went on ten or fifteen yards after it run over him before it stopped.”</p> <p>Upon cross-examination, he stated that the deceased was just at the horses when witness first observed him; that he has seen cars run on Broadway, opposite his house, eight miles an hour every day; that he has at times seen cars driven as fast, and perhaps faster, than the car in question; that he has seen carriages driven through the streets faster than this car, and that he has never found it impossible to get out of the way of a carriage or car driven as fast as this car was driven at the time of the accident. Being interrogated whether he had not, at the previous trial, said he could not tell the rate of speed at which the car was going, he answered in the affirmative, and said that he “merely guessed” that they were going at that rate, being the rate of seven to eight miles an hour.</p> <p>Hubert Scliilt, plaintiff’s second witness, said, that he and a friend of his, on the occasion in question, were on the east side of Broadway, about 80 yards north of Bates street; that he could see a man at Bates street, and a car 400 to 500 yds. off to the south. In reference to the occurrence itself, he said: “ The car was coming up very fast, going from south to north; the man, who was afterwards killed, was in the street; he was going across the street, with chickens in one hand; lie was going over the street kind of crossways towards the west. My friend said: ‘ If that man don’t look out, he will be hurt.’ The car continued on, and the man was struck either by the tongue or the horses; he fell and the car went over him; I saw him afterwards at the police station — he was dead.”</p> <p>On cross-examination, he stated: “When I first saw the deceased, he was about half way in the street between the curbstone on the east side of Broadway and the railroad track; the car was perhaps 40 or 50yards from him,perhaps more — I can’t say; he was going diagonally across the street; I can’t say how far he' was south of the flat-stone crossing on Bates street. * * * He continued to walk on ; I don’t know whether he noticed the car or not; I don’t know whether he saw it or heard it, but he did not stop ; I can’t say whether he stumbled and fell, or whether the horses or tongue hit him; he was run over.”</p> <p>Patrick Fleming said: “I was a passenger in the car that night, and felt a jolting as if the car was going over a big rock; it went over and 10 or 15 yards beyond; the car was going at fast speed.” Quest, by plaintiff: “How many miles per hour was the car going at, at that time ?” Objected to by defendant because “it does not appear that witness is competent to judge of the rate of speed of a street car, or that he has ever had charge of the running of a car, or any experience in the running and management of street cars which will enable him to form or express a correct opinion as to their rate of speed when moving.” Objection overruled, to which defendant then and there duly excepted ; and the question being repeated, the witness answered as follows: “The car was going at the rate of 7 or 8 miles per hour.”</p> <p>Cross-examination. “I did not know Michael Biddy in his lifetime. I have never had the management of a team; I am a laborer. The lamps were lit in the car. I don’t know why I recollect that the cars were going fast, but I do recollect it. I have seen cars driven as fast, and carriages faster. I thought it was a rock on the track. When the car stopped, we got out, and found the man on the track; he was after-wards taken away.”</p> <p>This was plaintiff’s testimony as to the occurrence; she also introduced the coroner to prove the character of the injuries received by the deceased, and two witnesses to prove her marriage and the identity of the deceased, and closed.</p> <p>At the close of the plaintiff’s testimony, defendant asked the following instruction, viz.: 1. “Upon the evidence in this cause, the plaintiff is not entitled to recover”; which the court refused to give, to which defendant excepted.</p> <p>Defendant, by three witnesses, offered evidence tending to prove that the car, on the occasion in question, was driven at a usual and moderate rate of speed not exceeding from 4J-5 miles an hour; that the signal lights were up in the car; that the horses had bells on; that the car was in proper condition, the brakes in good order, the horses properly geared, the driver and conductor at their posts and attending to their duty; that the night was cloudy and foggy; that when the car got near the south crossing of Bates street, the conductor, wishing to let out a passenger, rang the bell as a signal to the driver to stop, when the latter immediately applied the brakes, but, after giving them one twitch, the horses plunged forward, carrying the car with them and over an object, which afterwards turned out to be the deceased. The driver swore that “if a man had been standing up in the street, I reckon I could have seen him when I got near Bates street. I could not have seen a man lying on the track ; the night was dark, and that part of the street was not in the range of the lights. I kept a sharp watch on my horses and of the track ahead, but saw no man in the street. If he had been standing up in the street, I would have seen him. I did not notice anything until the horses jumped and jerked the car ahead.”</p> <p>It also appeared that the corpse of the deceased, after the car had passed over him, was lying about midway between the crossings in the centre of the street, with his head to the south and his feet to the north.</p> <p>The plaintiff thereupon prayed the following instructions, which the court gave:</p> <p>1. If the jury believe from the evidence that plaintiff was at the time of the injury to and death of Michael Liddy the lawful wife of said Liddy, deceased, and that said Liddy died from an injury resulting from or occasioned by the negligence, unskilfulness or criminal intent of the defendant’s agents or servants while running, conducting or managing one of their cars, and deceased used ordinary or reasonable care at the time to prevent said injury, the defendant is liable in this action, and the jury will find for the plaintiff.</p> <p>2'. The fault or negligence of the deceased which will preclude a recovery by the plaintiff if there was imitual negligence, is not the least degree of fault or negligence, but it must be such a degree as amounted to the want of ordinary or reasonable care on the part of the deceased at the time of the injury. By ordinary or reasonable care is meant that degree of care which may be reasonably expected of a person in deceased’s situation.</p> <p>3. Although deceased may have been guilty of misconduct or negligence which contributed remotely to the injury, yet if the misconduct, negligence, unskilfulness or Criminal intent of the defendant, its agents or servants, was the immediate cause of the injury, and with the exercise of prudence- and care defendant might have prevented the injury, then it is liable and the jury will find for plaintiff.</p> <p>4. If the jury find for the plaintiff, they will assess damages at five thousand dollars, that being the amount fixed by law.</p> <p>5. The jury are to determine as to the credibility of the-witnesses, and should give to the evidence of each just such weight as they may think it entitled to; and if they believe any witness in the case has wilfully sworn falsely as to any material matter, they may disregard all of his or her testimony.</p> <p>To the giving of which instructions, and to each and every one of them, defendant then and there duly excepted.</p> <p>And defendant thereupon asked the following instructions, namely:</p> <p>2. The j ury are instructed that if the driver and conductor of the defendant’s car were at their posts of duty, and were exercising that degree of care and prudence in the management of said car which men of common sense and common prudence ordinarily exercise under like circumstances, then there was no negligence on the part of the defendant, and the plaintiff cannot recover. If they should believe, however, that said driver and conductor, or either of them, did not exercise this degree of care or prudence, but were negligent and careless in the management of said car, then they will inquire whether there was any negligence or imprudence on the part of the deceased without which the injury could not have happened ; and if they find that there was such negligence and imprudence on his part, then they will find for defendant, notwithstanding they may also believe that the agents and servants of defendants were guilty of negligence and carelessness.</p> <p>3. If the jury believe that the deceased, before attempting to cross Broadway, could have observed the approach of the car, but failed to look or listen, this was negligence on his part; if he saw its approach and yet attempted to pass when it was so close upon him as to endanger his safety; this was likewise negligence, and in either case the plaintiff is not entitled to recover.</p> <p>Which instructions the court refused to give; to the refusing of which defendant excepted.</p> <p>And defendant also asked the following instructions:</p> <p>4. To entitle the plaintiff to recover, she must prove affirmatively : First — That she was the lawful wife of Michael Liddy, deceased, at the time of the latter’s death. Secondly — That the deceased was guilty óf no negligence or carelessness on his part in the collision which caused his death; Thirdly — That his death resulted from injuries occasioned solely by the negligence or carelessness of the agents and servants of the defendant, and that he in nowise contributed to bring about the occurrence which caused his death ; and if the deceased in any way contributed to the injuries which produced his death, it is immaterial to inquire who was more in fault, whether the deceased or the defendant, for unless the deceased was entirely free from fault the plaintiff cannot recover. If the plaintiff has failed to establish any one of these propositions to the satisfaction of the jury, the verdict must be for the defendant.</p> <p>Which instruction the court refused to give, but of its own motion interlined the same, and gave it to the jury as follows : . '</p> <p>4. To entitle the plaintiff to recover, he must prove affirmatively : First — That she was the lawful wife of Michael Liddy, deceased, at the time of the latter’s death. Secondly — That the deceased was guilty of no negligence or carelessness on his part in the collision which caused his death, and which directly contributed thereto. Thirdly — That his death resulted from injuries occasioned solely by the negligence or carelessness, or criminal intent, of the agents and servants of the defendant, and that he in nowise directly contributed to bring about the occurrence which caused his death ; and if the deceased in anywise directly contributed to the injuries which produced his death, it is immaterial to inquire who was more in fault, whether the deceased or the defendant; for unless the deceased was entirely free from fault as to any act which directly contributed to his death, the plaintiff cannot recover. If the plaintiff has failed to establish any one of these propositions to the satisfaction of the jury, the verdict must be for the defendant.</p> <p>To the giving of which instruction as interlined by the court the defendant then and there duly excepted.</p> <p>Defendant also asked the following instructions, which were given:</p> <p>5. If-the jury believe that the death of Michael Liddy was the result of accident or misadventure, the plaintiff is not entitled to recover.</p> <p>6. If the jury believe that Michael Liddy either by accident stumbled and fell, or that he was knocked down by some force or agency before defendant’s car reached him, and was run over in consequence of thus lying upon the track, and without the fault of defendant’s servants, then the jury will find for defendant.</p> <p>The case being submitted to the jury under the foregoing instructions as given by the court, a verdict was returned for the plaintiff in the sum of fiye thousand dollars.</p> <p>I. The demurrer should have been sustained.</p> <p>(a) The petition contains several causes of action.contained in one count. The plaintiff seeks to recover for the violation of a city ordinance, and also for injuries arising from the negligence of defendant’s servants — McCoy v. Yaeger, 34 Mo. 113 ; Clark’s Adm’r v. Han. & St. Jo. R.R., 36 Mo. 215.</p> <p>(5) The petition states no cause of action under section 2 of the statute “ for the better security of life, property, or character.”</p> <p>II. In order to recover, the plaintiff must show by affirmative proof, 1st, that deceased exercised ordinary care on his part; and 2d, that the injuries of which he died were the result of defendant’s negligence. “These essential elements of such a cause of action are as absolutely distinct from and independent of each other as are the two opposing parties, and each and both must be by itself in the case upon the evidence or there can be no recovery” — Wilds v. Hudson River R.R. Co,, 24 N. Y. 32; S. O. 29 N. Y. (2 Tiff.) 315; Gahagan v. B. & L. R.R. Co., 1 Allen, 187-90; Spooner v. Brooklyn O. R.R., 31 Barb. 419; Stinson v.- N. Y. O. R.R. Co., 32 N. Y. (5 Tiff.) 333.</p> <p>The instruction asked by defendant at the close of plaintiff’s testimony, to the effect that plaintiff was not entitled to recover, should have been given.</p> <p>(а) There was no sufficient proof of defendant’s negligence.</p> <p>(б) There was absolutely no proof that deceased had exercised due care. “ If the plaintiff fails to prove that he used due care to avoid the collision, the court should instruct that he is not entitled to recover” — Shaw v. Boston & W. R.R., 8 Gray, 73 ; Gehagan v. Boston & L. R.R. Co., 1 Allen, 187; Denny v. Williams, 5 Allen, 1; Warren v. Fitchburg R. R., 8 Allen, 227; Butterfield v. Western R.R. Co., 10 Allen, 532; 91 Eng. Com. L. 148-9; Stevens v. Oswego R.R. Co., 18 N. Y. 422; Toomey v. London R.R. Co., 3 C. B. (N. S. ) 146; 29 Conn. 208-9; Philad. R.R. v. Hammil, 44 Pa. 375; North Pa. R.R. v. Hilmann, 49 Pa. 60 ; Wilds v. Hudson River R.R. Co., 24 N. Y. 430 ; Clark’s Adm’r v. Han. & St. Jo. R.R., 36 Mo. 217; Boland et ux. v. Mo. R.R. Co., 36 Mo. 484; Smith v. Han. & St. Jo. R.R. Co., 37 Mo. 287.</p> <p>The case of Huelsenkamp v. Citizens’ Railty- Co., 37 Mo., does not sustain the plaintiff. Huelsenkamp was a passenger. There is a broad distinction between defendant’s liability to a passenger and its duty to a stranger. Towards a passenger the carrier must “ use the utmost care and diligence, whilst as to third persons it is required only to exercise such care and skill as a person of ordinary prudence would use about his business. Towards the one his liability arises from a contract upheld by an adequate consideration ; towards the other, he is under no obligations but that of justice and humanity” — Broad v. Troy & L. R.R. Co., 8 Barb. 378-80 , R.R. Go. v. Norton, 24 Pa. 465 ; State to use, &o. v. Balt. & O. R.R., 397 ; Bannon v. R.R. Co., 5 Amer. Law Reg. (N S.) 473.</p> <p>III. Defendant’s third instruction should have been given. Before attempting to cross a railroad track, a man should make a reasonable use of his sense of sight as well as of hearing in order to ascertain whether he will expose himself to a collision. If he fails to use his senses without reasonable excuse, he fails to use reasonable care — ButterheldW. Western R.R. Co., 10 Allen, 532.</p> <p>“ It is the duty of a traveller when approaching the intersection of a railroad with a common highway to look out for approaching trains or engines, and if he fails to take this precaution he is guilty of negligence, and the court should so declare as a matter of law” — North Pa. R.R. Co. v. Hilmann, 40 Pa. (13 Wright) 60. To the same effect are Wilds v. Hudson Riv. R.R., 24 N. Y. 440; S'. C. 24 N. Y. 328; Reeves v. D. & L. R.R. Co., 6 Carey, 464.</p> <p>I. The motion to strike out and demurrer to pleading having been overruled at October term, 1865, and no final judgment rendered on said action of the court below, and no bill of exceptions or appeal taken at said term, this court will not review such action on appeal from the judgment at October term, 1866 — R. C. 1855, p. 684, § 11; id. p. 1287, § 11; 8 Mo. 619; 9 Mo. 269 ; 27 Mo. 422; 13 Mo. 455, & p. 4 ; 26 Mo. 67; 4 Mo. 456 & 622.</p> <p>II. There having been no motion in arrest of judgment filed in the court below,this court will not review any errors now assigned in the pleadings — 13 Mo. 455 & 215 ; 10 Mo. p. 515; 7 Mo. 416; 15 Mo. 143; 4 Mo. 438 ; 6 Mo. 50; 9 Mo. 624.</p> <p>III. There being evidence of record from which the jury found their verdict, this court will not review their finding-in the absence of any marks of fraud or malicious intent on the part of the jury. The jury are judges of the facts from the witnesses before them, and this court can only review questions of law — Meyer v. Pacific R.R., ante 153.</p> <p>The 1st instruction given by the court at the instance of plaintiff declared the law properly. It is a statement of the statute under which this action was brought, with the addition of the modification given to it by the court, that “ deceased must have used ordinary or reasonable care at the time in order to recover” — R. C. .1855, p. 647, § 2.</p> <p>The 2d instruction given at the instance of plaintiff declared the law correctly. It was not the least degree of fault or negligence of deceased which would preclude the plaintiff from recovering, but it must have been such a degree as amounted to the want of ordinary or reasonable care in order to preclude plaintiff; and if he used ordinary or reasonable care he could not be deemed to have contribtited to the injury, and the instruction was proper — Huelsenkamp v. Citi-Railw. Co., 37 Mo. 537; 17 Barb. 94 ; IE. D. Smith, 36 ; 4 id. 21; 12 Cush. 197 ; 8 Gray, 79.</p> <p>The 3d instruction given for plaintiff declared the law applicable to cases of mutual negligence correctly. Every leading case from Lynch v. Meriden, Q. B., down to the recent decision of Huelsenkamp v.. Citizens’ Eailw. Co. and Meyer v. Pacific Eailw. Co., in this court, have affirmed the principle of the instruction that plaintiff can recover when his negligence was only the remote cause and that of the defendant the immediate cause of the injury. This is the settled law of every leading case. — English cases : Lynch v. Meriden, 1 Q. B. 29; 12 id. 437 ; 9 Car. & P. 601-13 & n.; 3 M. & W. 224; 10 id. 546 ; 1 Man. & Gr. 568 ; 5 Exck. 239-243.— American authorities: Eed. on Eailw. 330-1, marg.; Huelsenkamp v. Citizens’ Eailw. Co., 37 Mo. 537; 34 Mo. 127, 177, 235 ; 3 Ohio, 172 ; 2 Amer. Eailw. Cas. 118 ; 19 Conn. 566; 16 Conn. 420 ; 24 Yt. 487; 20 Ohio, 426; 9 Ohio, 397 ; 31 Miss. 156; 4 Zab. 824 ; 5 Denio, 255 ; 1 id. 91; 39 Me. 276; 22 Yt. 213, 224; 3 E. D. Smith, 103-9 ; 19 Conn. 507; 12 N. Y. 425-9; 9 Rich. 84; 23 Pa. 526 ; Pierce E.E. Law, 276 ; 4 Ohio, 474; 2 Pick. 621; 12 Mete. 417-18 ; 7 Cush. 155-61; 8 Gray, 131-2 ; 17 Barb. 94; Meyer v. Pacific E.E,, ante 153; McKay v. N. Y. Central E.E. Co., Am. Law Rég. for May, 1867, p. 617.</p> <p>The 2d and 3d instructions asked by defendant were properly refused by the court because they undertook to tell the jury what acts constituted negligence, which is the exclusive province of the jury to determine. The court would have usurped the functions of the jury if it had given either of them — Huelsenkamp v. Citizens’ Eailw. Co., 34 Mo. 45, and 37 Mo. 537; 19 Conn. 566 ; 33 Mo. 202; 6 Mo. 64; 10 Allen, 535 ; Meyer v. Pacific R.R., ante 153.</p> <p>The law was properly and fully declared in the instruction given, and it was not error to refuse other instructions although they might have been good declarations of law — 30 Mo. 191; 31 Mo. 585.</p>

Louis Circuit Court. R. S. McDonald, M. L. Gray, and F. Garvey, for appellant. I. The court erred in refusing the 1st instruction asked by the defendant, to-wit, “ that upon the proof made the the plaintiff could not recover.” Plaintiff alleged the loss of the cattle “ through the carelessness, negligence and improper conduct of defendant.” Defendant denied this, and thus the burden was on plaintiff to prove that they were lost by default of defendant.

Louis Circuit Court. The third instruction declared that a novation to be good against attaching creditors must be complete, absolute, unconditional, and mutually binding upon all the parties. The idea that a novation cannot be conditional is erroneous. The doctrine of novation was obtained from the civil law.

Louis Circuit Court. The court at request of respondent gave the following instructions : 1. Although it appear that the plaintiff holds the note in question for collection merely, he is still entitled to bring suit upon the same and recover thereon, provided the payees thereof were so entitled. 2.

<p>Appeal from St. Louis Circuit Court.</p> <p>The court erred in refusing to grant the instruction, which asked the court to declare that the plaintiff having a complete remedy at law against the People’s Passenger Railway Company, is not entitled to equitable relief in their action against defendant Foy—Grandin v. Jones, 2 Paige Ch. 509; Wiswell v. Wall, 3 Paige Ch. 303. Where remedy at law is complete, courts of equity will not assume jurisdiction—1 Sto. Eq. J. § 641; 3 Sanf. 463; Kortwright v. Buffalo Bk., 20 Wend. 91. In this last cited case, it was held that an? action of assumpsit lies against a monied corporation for refusing to permit a transfer of its stock upon the books of the corporation—The King v. Bank of England, Doug. 523 Parbury v. Bank of England, Doug. 529. In the case of the King v. The Bank of England, the court refused a mandamus to compel the bank to enter a transfer of stock on its-■books, on the ground that an action would lie for a complete-satisfaction equivalent to a specific relief, and afterwards■assumpsit was brought and the cause tried before Ld. Mansfield, without any exceptions to the remedy.</p> <p>In support of the above position the following additional cases are cited : — Danforth v. Schoharie Tpk. Co., 12 Johns. 230 ; 3 Mass. 381 ; 10 Mass. 402 ; 17 Mass. 503 ; 8 Pick. 98 7 Cranch, 299 ; 2 Kent’s Com. 289, 29; Ang. &, Ames Corp-. (5 ed.) § 376, § 381 ; 15 Abb. Prac. (N. Y.) 4; Ward v. Dewey, 16 N Y. 518 ; Langston v. Hallowback, 4 Barb. (S. C.) 9; 5 Johns. Ch. 252 ; 4 Johns. Ch. 84.</p> <p>I. The Circuit Court had plain jurisdiction of the controversy. It was essentially such a proceeding as might have been compelled by the People’s Railway Company, which was liable to be sued by two rival claimants, of one hundred: shares of stock, and was threatened with suit by the person-not holding the certificate. The company could with per-feet propriety have filed its bill, praying that these claimants should be made to interplead, and determine their rival claims, before vexing it with an action — 2 Sto. Eq. Jur. §- 806, and following tit. Interpleader; 1 Spence’s Eq. Jur. 65-9-60. It is not conceived that there can bo a necessity for saying more than this.</p> <p>II. If the proceeding be one which a court of c-quity would have compelled, it is a waste of time to detain the court by an argument to show that the plaintiff was justified in doing that which a court of equity would have ordered him to do-.</p> <p>III. The parties Hathaway and Eoy are then before the court making proof of their respective titles. On the part of Eoy, it appears that he made a subscription for the stock, which on the same or the following day he abandoned and surrendered to Hathaway, in consideration that Hathaway would pay the calls made in respect of it by the company; that Hathaway accepted these terms, paid the calls, and received from the company the certificate for the stock. Eoy never paid a penny towards these calls, and never made a pretence of a claim to the stock until three years and more aterwards, when it had become manifest that the stock was worth a large premium. Comment seems quite needless.</p>

Louis Circuit Court.- This cause was submitted upon the following agreeed case :' 1. That on 21th May, 1860, John J. Anderson & Oo. recovered judgment against John M-. Wimer for the sum o-f |!8,601.34, and that said judgment was assigned to plaintiff’s intestate. 2. That said judgment was rendered in the lifetime of said Wimer, and- that said Wimer died on the 13th- day of January, A. D. 1863. 3. That said.

Louis Circuit Court. The case made by the pleadings and evidence shows that the amount of the judgment recited in the execution in the hands of the defendant was paid to the attorneys of the party entitled thereto without a levy. In such cases a sheriff is entitled to half commissions on the amount so paid — Sec. 13, R. C. 1855, pp. 768-9. It is not questioned that the defendant is entitled to the commissions claimed by him if he is entitled to any commissions whatever.

Louis Circuit Court. The appellants contended that the¡ note was made and the contract of appellants was completed on Sunday, and that the contract is void — Ri C. 1855, p.630, § 33 ; 2 Pars. Cont. 262, see note and cases cited.

Louis Circuit Court.. I. The policy itself as well as the conditions annexed to it, and as well also the covenants of the application for the policy, make the notification of a subsequent insurance;. and the endorsement thereof on the policy, or an otherwise acknowledgment by the defendant in writing, a promissory warranty. These stipulations were therefore a condition precedent to any right of recovery on the policy — Hutchinson v. Western Ins.

Louis Circuit Court. I. The receipts or tickets are evidence, and should not have been excluded. Whenever the act of the agent is admissible, his declarations, at the time, are evidence as part of the res gestee — 1 Greenl. Ev. § 113 ; Gamble v. Johnson, 9 Mo. 616 ; Marr v. Hill, 10 Mo. 323 ; Pool v. Bridges, 4 Pick. 378; Odd Fellows’ Hall v. Musser, 24 Penn. 510; Crowther v. Gibson, 19 Mo. 365. II.

<p> Error to St. Louis Circuit' Court. </p>

Louis Circuit Court. The city could not surrender her jurisdiction over her streets so as to relieve herself of liability caused by their bad condition — Wallace v. Mayor of N. Y., 2 Hilton, 440; Mayor of New York v. Bailey, 2 Denio, 433-45 ; Mayor of N. Y. v. Ereuze, 3 Hill, 612, and references; Wendell v. Mayor of N. Y., 39 Barb. 329; Nelson v. Yt. & C. R.R. Co., 26 Yt. 717.

Louis Circuit Court. Does the plaintiff, who is but the representative of the administrator, enjoy any greater advantages than the administrator himself ? The administrator did not claim the proceeds of the sale in partition. His sale of the land, if valid for any purpose, passed the title to the land. It certainly merged the debt and all pecuniary claim of Mrs. Tyler. Her conveyance to the plaintiff was her receipt for money to be claimed of the defendants in this suit.

Louis Circuit Court. I. The demurrer was sustained in the court below on the doctrine of Hill v. Martin, 28 Mo. 78. II. The defendants’ possession is not adverse, but is only in right of his curtesy — Blakely v. Calder, 13 How. 477. III. Tenantcy by the curtesy is a life estate and similar to dower in its character ; and under § 1, R. C. 1865, p. 617, partition is authorized. There is a misjoinder of actions and of parties.

Louis Circuit Court. The City of St. Louis has authority under its charter to levy and collect, within the city, taxes not exceeding one per centum upon all property made taxable by law for State purposes. Shares of stock and all other interests held in steamboats, keel boats, wharf boats, and all other vessels, are made taxable bylaw for State purposes — Sess. Acts 1860-61, p. 62.

On the 7th of April, 1858, plaintiffs instituted a suit by attachment against John McDowell, in which the said Stevens was summoned as garnishee on the 10th day of April, 1858.

<p>Practice — Trials—Evidence—Exceptions.—If objection be made to the admissibilitj”- of a written contract sued upon, the reasons for the objection must be stated in the bill of exceptions.</p>

<p>Revenue — Municipal Corporations — Special Tax — Lien.—Under the charter' and ordinances of the City of St. Louis, the lien of the special tax for the making and repairing of streets and alleys, commences from the date of the assessment of the tax by the city engineer after the work is completed.</p>

<p>Practice — Supreme Court — Exceptions — Error.—The Supreme Court will not review the judgment of the court below unless error appear of record, or exceptions be taken and preserved.</p>