Right to use-Deposition taken by coparties.
event the said railroad shall discontinue the said point as a depot for the said road, and said ground shall no longer be useful for said purposes, or should the road be discontinued when built, then said [grantors] have the right to resume the possession of said property, allowing to said railroad company the right to remove any improvements they may have put thereon; or in default of this, and at the election of the said railroad company, it may, by paying to [theositions which were taken by his co-defendants, 1. A defendant cannot read in evidence depgrantors] the present value of said property, entitle itself to the absolute fee-simple; and said as to whom the action has since been dismissed, [grantors] will, in this contingency, execute any and which have not been crossed by him.-Watfurther conveyance that may be necessary to such son v. Miller, (Tex. Sup.) 17 S. W. 1053. vesting of the absolute title." Held, that the erection of the depot was the consideration of the grant, and the railroad company could not remove its depot and retain possession of the land for other railroad purposes.-Owensboro & N. Ry. Co. v. Griffeth, (Ky.) 17 S. W. 277.
30. The grantor of a right of way for railroad purposes testified as to the terms of the conveyance, the deed having been lost, that the railroad company was to build two double-track bridges "across that cut, [on grantor's land.]
That was the words of the contract.
It was part of the contract that they were to build these bridges immediately after the road-bed was finished." Held, that the portion of the contract relating to the bridges was not a condition subsequent, failure to perform which would forfeit the grant.-Roanoke Investment Co. v. Kansas City & S. E. R. Co., (Mo. Sup.) 17 S. W. 1000.
Reversion to grantor.
31. Land for a right of way was conveyed to a railroad company "and its assigns forever, so long as the said land hereby conveyed shall be used for railroad purposes," and the road-bed was graded on it. Afterwards the successor of the grantee company completed the road by a new route, and refused to construct it on the land so conveyed, on the ground that the grade was too heavy. The owner of the tract through which the right of way was conveyed occupied the right of way for five years after the completion of the road by the new route, and put valua ble improvements on it without objection from the railroad company. Held, that the right of way was abandoned, and reverted to the owner of the tract of which it was originally a part.Roanoke Investment Co. v. Kansas City & S. E. R. Co., (Mo. Sup.) 17 S. W. 1000.
Interest conveyed by co-tenant. 3. A grantor who owns an undivided fourfifths of a tract of land, and conveys "a full half interest in all the right, title, and interest in and to" the land, conveys an undivided half interest in the land, and not in his interest.-Cocks v. Simmons, (Ark.) 17 S. W. 594.
33. The certificate of the county clerk, that a certain deed, claimed to have been lost, was of record in his office, is competent, in connection with other facts, to prove its existence, but not its execution, delivery, or contents.-Allen v. Read, 17 S. W. 115, 66 Tex. 13.
Defective Appliances.
See Master and Servant, 7-11.
Of deed, see Deed, 18-21.
Before action, see Trover and Conversion, 2.
To fix liability of indorser, see Negotiable Instru-
ments, 5.
Demonstrative Legacies.
2. A deposition of a testator, taken in a suit between himself and his children, was properly admitted on the contest of his will by some of his children whom he had disinherited, to show the cause of his estrangement from his disinherited children; and it was immaterial whether the deposition was properly taken, where no objection was raised on the ground that the statements therein contained were not made by testator.-Chaddick v. Haley, (Tex. Sup.) 17 S. W. 233.
DESCENT AND DISTRIBUTION.
See, also, Executors and Administrators; Wills.
Action to recover distributive share of estate,
venue, see Venue in Civil Cases, 3-7.
Illegitimate children.
1. G., a bastard, not legitimized by marriage,
died in Texas in 1836, leaving no wife or child.
Land was patented to his heirs by virtue of a
bounty warrant issued to him in 1838. His
mother was living at his death, and plaintiffs
are her legitimate heirs by her marriage to one
Held, that G. came within
D., after G.'s birth.
the class bastardo espurio, as defined by the
Spanish civil law in force in Texas at his death,
which law recognized the right of a mother to
inherit from such child, and through her plain-
tiffs were entitled to the land.-Pettus v. Daw-
son, (Tex. Sup.) 17 S. W. 714.
Children born after will made.
2. Gen. St. Ky. c. 113, § 25, provides that if, when a will is made, the testator has a child living, and a child is born afterwards, such after-born child, if not provided for by any settlement, and neither provided for nor expressly excluded by the will, but only pretermitted, shall succeed to such portion of the testator's estate as it would if the testator had died intestate. A testator, when he made his will, had a child living with him. His wife was also living with him, and was seven months gone with child. Without expressly excluding the living child by name, or mentioning any fact that tended to show that the unborn child was excluded, the testator made his wife the sole beneficiary of the will. Held, that this was an exclusion of the unborn child.-Leonard v. Enochs, (Ky.) 17 S. W. 437.
Personalty - What laws govern distri
3. The personal property of a decedent must be distributed and dower allotted under the laws of the state where the domicile of decedent was at the time of his death.-Hewitt v. Cox, (Ark.) 17 S. W. 873.
4. Property of an intestate, directed by Gen. St. c. 31, § 11, to be set apart to a widow, vests eo instanti, by operation of law, in the widow on the death of her husband.-Mallory's Adm'r v. Mallory's Adm'r, (Ky.) 17 S. W. 737. Liability of heirs.
5. Where a brother and sister occupied her farm together, under a verbal agreement that the latter will give her land to the brother in consideration of $100 a year and her living with him on the land, and he did not pay the $100 a year except by attending to her stock, which he used,
and made improvements not exceeding the value | Instructions.
of the rents, he is entitled to no credit for such
payments and improvements in an action against
her heirs as they are offset by the use of the stock
and the rent. 15 S. W. 877, affirmed.-Glass v.
Gaines, (Ky.) 17 S. W. 161.
6. In computing the value of an advancement
made by a deceased father to one of his chil-
dren, interest should be charged on the advance-
ment from the death of the father.-McKelvy v.
Burrow, 17 S. W. 1035, 89 Tenn. 101.
7. A father made a parol gift of land to his
daughter, placing her and her husband in pos-
session. Several years thereafter he gave her a
deed thereof. Held that, treating this as an
advancement, it was made, and accordingly
should be valued, at the time of the parol gift.-
McKelvy v. Burrow, 17 S. W. 1035, 89 Tenn. 101.
8. A father, in purchasing land, had the deed
executed in the name of his son, less than two
years of age. He had but little property besides
the money used to purchase the land, and a part
of this money was his brother's. He had before
the purchase lived on the land, and he made
no provision for his wife or other members of
his family. Held, that the presumption that the
conveyance was intended as an advancement was
rebutted.-Hall v. Hall, (Mo. Sup.) 17 S. W. 811.
Order of distribution-Notice.
9. Under Mansf. Dig. Ark. § 151, which pro-
vides that no order of distribution of any estate
shall be made until notice has been given to the
other parties entitled to distributive shares, no-
tice must be given to an infant daughter of a de-
cedent interested in the distribution of his estate.
-Neal v. Robertson, (Ark.) 17 S. W. 587.
Liability of distributee for debts of tes-
tator.
10. Testator directed that his personalty be
sold for the payment of debts, among which was
a note for $1,000. The administrator, testator's
son-in-law, instead of selling the personalty and
paying this note, took up the same by executing
his own note therefor, and received credit there-
for as a payment in settlement of his accounts.
Held, in an action by a surety on the note of
the administrator, who was also surety on his
administration bond, to charge the lands of testa-
tor in the hands of his devisees-the administra-
tor's wife and children-with the payment of
the note, that the land in question was not liable
therefor, the original debt having become a
personal liability of the administrator.-Huss v.
Rice, (Ky.) 17 S. W. 869.
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2. On a trial for keeping a disorderly house
the court charged that "a disorderly house is one
kept for the purpose of public prostitution, or as
a common resort for prostitutes and vagabonds;
* that a disorderly house could be proven
by circumstantial evidence, and if
fendant was or is proprietor of said house, and it
was used for purposes stated in indictment, you
will find her guilty;
that defendant is
presumed to be innocent until otherwise proven.
If by law and evidence you find the defendant
guilty, the punishment is fine; * * * otherwise
you will acquit." Held insufficient and erroneous,
and that the court should have given the follow-
ing requested instructions: "The jury are the ex-
of the evidence, and the defendant is presumed
clusive judges of the credibility and the weight
to be innocent until her guilt is established by
legal and competent evidence, to the satisfaction
of the jury beyond a reasonable doubt; and that,
if the jury shall have a reasonable doubt
before defendant could be convicted under cir-
of the guilt of defendant, they will acquit. That
relied on by the state *
cumstantial evidence alone, the circumstances
* must be such as
would lead the mind to no other conclusion but
defendant's guilt. That the burden of proof rests
upon the state to show defendant's guilt beyond
a reasonable doubt; and before the jury can con-
vict the evidence must show that the defendant
kept the house, as alleged, prior to
and
not more than two years anterior thereto. "-
Gamel v. State, 17 S. W. 158, 21 Tex. App. 357.
2. In Texas, a petition for divorce is sufficiently
certain where it alleges that plaintiff for more
than six months has been a bona fide citizen of
the state, and that defendant resides in Massa-
chusetts; that plaintiff and defendant were mar-
ried in New Hampshire, and lived together as
man and wife in Massachusetts until 1850, when
defendant, without cause, voluntaily abandoned
plaintiff with the intention of finaly separating
from him, and continued to live aprt up to the
filing of the petition, though often equested by
plaintiff to return. -Morey v. Morey, Tex. Sup.)
17 S. W. 838.
conveyance of land in their individus, names,
1. Plaintiff's husband and anothe took a
giving their individual notes as part the pur-
chase price. They farmed the land as partners,
but it did not appear that they were partners
when the purchase was made, though the firm
afterwards paid part of the purchase money,
Held, that it was Lot partnership property, and
that plaintiff's dower right attached as against
creditors of the firm. 14 S. W. 960, modified.-
Ratcliffe v. Mason, (Ky.) 17 S. W. 438.
2. Under Rev. St. Ky. c. 47, art. 4, § 6, which
provides that a wife shall not be endowed of any
fand sold to satisfy a lien for the purchase price,
where the land was sold under a trust-deed for
the benefit of the husband's creditors for the
unpaid purchase money of the land and other prop-
erty, plaintiff could not claim dower out of the
land, but must look to the surplus arising from
such sale after payment of the balance of such
price. 14 S. W. 960, modified.-Ratcliffe v. Ma-
son, (Ky.) 17 S. W. 438.
3. Gen. St. Ky. c. 52, art. 4, §5, provides that a
wife shall not be endowed of land sold to satisfy
alien for the purchase money. Held, that where
a guardian bought land belonging to his wards,
but afterwards became insolvent, and was able
to satisfy only the amounts due some of the wards,
his widow could not claim dower in that portion
of the land sold to satisfy the liens of the other
wards. Johnson v. Cantrell, (Ky.) 17 S. W. 206;
Same v. Ohara, Id.
Personalty in hands of foreign admin-
istrator-Allowance in lieu of.
4. On a petition for assignment of dower in
the personalty of decedent, part of which was in
New York, when deceased was domiciled in
Arkansas, the petitioner will not be allowed any
sum of the estate in Arkansas for any personal
property that may be in the hands of any ancilla-
ry administrator in New York, unless those hav-
ing the custody of the property in New York
should refuse to deliver to petitioner her share,
when she might become entitled to an order as-
signing such dower to the extent of the person-
alty in Arkansas. BATTLE, J., dissenting. 15
S. W. 1026, modified. -Hewitt v. Cox, (Ark.) 17
1. The owners of land fronting on the Mis
sissippi river conveyed a lot which lay a quarter
of a mile from the river front, a portion of the
land being between it and the river. The deed
recited that the lot was conveyed, "together with
the free use of the river front," and described
the land as part of the R. place. The grantee
bought the lot to get the privilege of using the
river front. Held, that the privilege of using
the river front was appurtenant to the lot. -Weis
v. Meyer, (Ark.) 17 S. W. 339.
By implication-Right to flood land.
2. A railroad company owned laud along a
river, and in its construction threw up an em-
bankment. Afterwards it laid the land out into
town lots, and conveyed the same without res-
ervation. During a freshet the embankment
caused the land to be overflowed, whereby a stock
of goods belonging to the vendee was destroyed.
Held, that there was no implied right to flood
the land, and the company's vendee might rea-
sonably presume that it had so constructed its
embankment as not to impede the natural flow of
the water.-Sellers v. Texas Cent. Ry. Co., (Tex.
Sup.) 17 S. W. 32.
Extinguishment.
3. The owners of land fronting on a river
conveyed a lot which lay a certain distance from
the river, the privilege of using the river front
passing as appurtenant to the lot. By the en-
croachment of the river, the land was washed
away, up to and including the lot. Held, that
those claiming under the grantee had no right to
the use of any other portion of the grantor's place
on the river front for shipping and receiving
freight.-Weis v. Meyer, (Ark.) 17 S. W 339.
4. The mere non-user of a right of way grant-
ed to a railroad company will not extinguish the
right in the absence of adverse possession by the
servient owner, or of such acts on the part of
the railroad company as evince a clear intention
ment Co. v. Kansas City & S. E. R. Co., (Mo.
to abandon the right of way.-Roanoke Invest-
Sup.) 17 S. W. 1000.
5. A husband contracted to convey land, but
the wife did not join in the contract.
chasers went into possession, and so remained.
The husband died, and his children sued the wife
for assignment of her dower, but the purchasers
were not joined in the suit. Her dower was as Of passengers, see Carriers, 42-44.
signed, and 17 years afterwards action was brought
to enforce her dower right in the land conveyed.
Held that, as Rev. St. 1879, § 2206, made her in-
choate dower absolute at the husband's death,
and gave her a right of action to enforce it, the
action was barred by limitation.-Long v. Kansas
City Stock-Yards Co., (Mo. Sup.) 17 S. W 656.
Inchoate dower right-Judicial sale of
land.
6. A tract of land covered by a mortgage
was conveyed by the mortgagor in separate lots
to separate vendees. The whole tract was ad-
vertised for sale by the sheriff under order of
court. Held, that the inchoate right of dower
of the wife of the junior vendee, in the lot
conveyed to him, was such an interest therein as
entitled her to require the sheriff to offer the
land for sale in parcels, instead of the whole,
and that such right was not affected by the ad-
vanced age of the wife.-Crosby v. Farmers' Bank,
(Mo. Sup.) 17 S. W. 1004.
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See, also, Adverse Possession; Trespass to Try
Title.
Between co-tenants, see Tenancy in Common and
Joint Tenancy, 7, 8.
Equitable estoppel as a defense, see Estoppel, 12.
Title to support.
1. In ejectment, where both parties claim
through the same person, it is not necessary for
plaintiff to show such person's title from the com-
monwealth.-Barnett v. Minnix, (Ky.) 17 S. W.
tiff has gone to trial on the strength of his tax-
2. In an action to recover land, where plain-
title was invalid, he cannot complain that no
title and been defeated on the ground that his
title was shown by defendant.-Martin v. Mc-
Diarmid, (Ark.) 17 S. W. 877.
Defenses.
3. In ejectment, plaintiff introduced a deed
from his father, in 1865, to one B., and a deed
from B. to plaintiff, in 1867, for a valid consid-
eration. Held, that defendant, claiming under
a deed executed by plaintiff's father after his
deed to B. and the latter's deed to plaintiff,
could not defend on the ground that the deed to
B. was in fraud of creditors of the grantor and
without consideration, it not having been shown
that plaintiff was a party to the fraud.-Barnett
V. Minnix, (Ky.) 17 S. W. 334.
notice not signed by the sheriff, and not giving the
4. In ejectment it appeared that defendant date of the enactment of the law, was not a com-
used the land for pasture and farming purposes, pliance with the act, as it was impossible for
that a dwelling-house thereon was occupied by the voters to tell whether or not the notice was
his housekeeper and cook, and that he had rent-
official; and, as others besides the voters would
ed a portion of the land to a third person. Held,
be affected by the result of the election, the
that the action was properly brought against failure to give the proper notice could not be re-
him, and that it was not necessary to show act-garded as a mere irregularity, but was a fatal
ual occupancy.-Phillips v. Phillips, (Mo. Sup.) defect, invalidating the election.-Commonwealth
v. Barrett, (Ky.) 17 S. W. 336.
Ballots.
5. In ejectment it is not necessary for plain-
tiff to prove his title back to the commonwealth,
when those under whom he claims have been
in adverse possession for more than 15 years. -
Taylor v. Arnold, (Ky.) 17 S. W. 361.
6. Where plaintiff in ejectment offers in evi-
dence a chain of title, but fails to show by
what means he acquired any title from the per-
son last named in said chain, it is not sufficient
to justify a jury in giving plaintiff a verdict.—
Whitmore v. Crawford, (Mo. Sup.) 17 S. W. 640.
7. In ejectment to recover land over which
defendant's railroad was being operated, plain-
tiff's title was admitted, but her parol grant by
her, per her husband, and her acquiescence in the
building of the road over her land, was relied
upon as a defense; also that the road was being
used for public purposes. There was evidence
that plaintiff never consented to the construction
of the road over her land; that she knew of it,
and objected; that her husband objected, and
forbade the engineer and those in charge of the
workmen entering. The evidence was conflict-
ing as to whether plaintiff had consented. The
action was brought within two months after the
road was built. Held error to peremptorily in-
struct the jury to find for defendant.-Holloway
v. Louisville, St. L. & T. Ry. Co., (Ky.) 17 S.
8. In ejectment, where the defense is adverse
possession, and plaintiff's evidence of title as
well as defendant's is involved, an instruction
to find for plaintiff if the jury do not consider
the defense as established, without also requir-
ing a finding on the plaintiff's facts, offered to
show title in him, is properly refused.-Mather
v. Walsh, (Mo. Sup.) 17 S. W. 755.
Mesne profits.
9. On trial in ejectment 18 months after
ouster there was evidence that from 100 to 150
acres of the land was in cultivation, worth $3 per
acre per annum. Held, that on recovery by
plaintiff an assessment of his damages at $540
was not excessive.-Phillips v. Phillips, (Mo.
Sup.) 17 S. W. 974.
ELECTIONS AND VOTERS.
Election to determine whether liquor shall be sold
in county, see Intoxicating Liquors, 1-3.
Nomination.
1. The "Australian Ballot Law" (Rev. St.
1859, c. 60, art. 3) does not limit the range of
choice of voters in Missouri to the persons nomi-
nated in the modes prescribed by it.-Bowers v.
Smith, (Mo. Sup.) 17 S. W. 761.
2. The "Australian Ballot Law" should be
construed in subordination to the constitution
and laws of the state wherein it is adopted.-
Bowers v. Smith, (Mo. Sup.) 17 S. W. 761.
Notice of election.
3. Act Ky. May 12, 1890, declaring that, after
the end of that year, it shall be unlawful to have
any kind of wire save that which is smooth and
round in any fence along the public roads of
C. county, further provides that its becoming
effective shall be conditioned on its approval
by a majority of the voters of the county at an
election to be held on a designated date, and
also provides that the sheriff shall give notice of
the election in three consecutive issues of the lo-
cal newspaper. Held, that the publication of a
4. The fact that the ballots used in a certain
precinct at an election contain the names of the
nominees of a party which did not poll the req-
uisite 3 per cent. of the entire vote at the last
previous election, as required by Rev. St. 1889, §
4760, (the "Australian Ballot Law, ") constitutes
no ground for rejecting the returns of such pre-
cinct as to the other candidates whose names
are printed thereon.-Bowers v. Smith, (Mo.
Sup.) 17 S. W. 761.
Death of candidate on election day-
Right of survivor.
5. Where one of two candidates for an elective
office dies on election day, the survivor, failing
to receive a majority of the votes cast, is not en-
titled to the office. -Howes v. Perry, (Ky.) 17 S.
W. 575.
6. Where the county court has designated a
city as one precinct of the county for election
purposes, the fact that the votes therein are
taken at two polls in the court-house, situated
about 75 feet apart, and by two sets of officers,
one poll receiving voters whose names begin
with letters from A to K, and the other those
with letters from L to Z, is not such an ir-
regularity as will render the election invalid in
the absence of a statute to that effect, or a show-
ing that a full and fair expression of the popu-
lar choice has been thereby prevented.-Bowers
v. Smith, (Mo. Sup.) 17 S. W. 761.
Issue of certificate.
quiring the comparing boards to give a certifi
7. Under Gen. St. Ky. c. 33, art. 5, § 2, re-
cate of election to the person who has received
tition to compel the board to issue such certificate
the highest number of votes for any office, a pe.
is insufficient where it fails to state that plain-
tiff received the highest number of votes. -Howes
V. Walker, (Ky.) 17 S. W. 576.
8. The certificate of an examining board,
stating the result of an election under the com-
mon-school laws for the appropriation of money,
is open to impeachment on the ground of fraud
or mistake.-Riggs v. Stephens, (Ky.) 17 S. W.
1016; Garvey v. Dulaney, Id.
Contests.
9. Since, by Rev. St. 1889, § 4778, errors or
omissions by the clerk in publishing the names
or descriptions of candidates nominated for office
or in printing the ballots may be corrected on
application to the proper judge, a candidate, who
makes no timely objection to the ballots as
printed and used, cannot, after the election, con-
test the result on the ground that names were
printed on the ballot which were not entitled to
be there. -Bowers v. Smith, (Mo. Sup.) 17 S. W.
761.
10. In an election contest, the poll-books and
certificates of the township election officers, re-
turned to the county clerk, are prima facie evi-
dence of the votes of the respective townships,
and are entitled to be counted as such, without
proof being first made that the votes so returned
are legal votes.-Merritt v. Hinton, (Ark.) 17 S.
W. 270
11. Where it appears that the poll-books and
returns from a designated township were lost or
destroyed, and that no return of the votes from
this township was made, evidence of persons
present when the returns were completed and
EMBEZZLEMENT.
Indictment-Against officer.
1. Rev. St. 1889, § 3555, inflicts a penalty on
any officer, etc.," who shall convert to his own
or shall make way with or secrete,
any portion of the public moneys, or any moneys
that may have come to him by virtue of his offi-
cial position;" and an indictment charging that
defendant "did unlawfully and feloniously make
way with, secrete, and convert to his own use,
etc., charges but a single offense, as the words
used are not inconsistent with one another.-
State v. Manley, (Mo. Sup.) 17 S. W. 800.
2. An indictment for embezziement, alleging
that defendant, "then and there being an officer
duly elected,
to wit, a constable for
and within the sixth district of the city of S.,
did," etc., clearly and distinctly alleges defend
ant to be an officer, though the word "being" is
used instead of "was," and the word "qualified"
is omitted.-State v. Manley, (Mo. Sup.) 17 8.
W. 800.
3. An instruction, on a trial for embezzling
public money, under Rev. St. 1889, § 3555, that,
if the jury find from the evidence that the de-
fendant unlawfully, fraudulently, and felonious-
ly converted to his own use money he had col-
lected by virtue of his official position, they
should find him guilty, is not erroneous, as ignor-
ing the criminal intent.-State v. Manley, (Mo.
Sup.) 17 S. W. 800.
1. Under Const. art. 2, § 20, providing that,
whenever an attempt is made to take private
property for a use alleged to be public, the ques-
tion whether the contemplated use be really pub-
lic shall be a judicial question, and as such ju-
dicially determined, the question as to whether
the taking is for public use is for the court, and
can generally be determined from an inspection
of the petition or other pleading by which the
proceeding is instituted. -State v. Engelman,
(Mo. Sup.) 17 S. W. 759.
2. In a proceeding by a city to condemn prop
erty for the purpose of an alley, the determina-
tion of the question, under Const. art. 2, § 20, as
to whether the use to which the property is to
be applied is a "public use, " is only one issue in
the cause, which is to be determined as any other
issue; and an affirmative finding that such use is
a public use is not a final determination of the
proceeding, but only an incident thereto. -State
v. Engelman, (Mo. Sup.) 17 S. W. 759.
Payment as a condition precedent.
damages for land taken by the company shall
give the land-owners notice of the time when
they will view the land and assess the damages,
but does not require any notice of the applica-
tion for the appointment of the viewers to be
given, such latter notice is not necessary; but
the notice by the viewers of the time when they
will view the land and make the assessment is
sufficient.-St. Joseph & I. R. Co. v. Shambaugh,
(Mo. Sup.) 17 S. W. 581.
compensation to be paid for private property
5. Const. Mo. art. 2, § 21, provides that tho
taken for public use "shall be determined by a
jury or board of commissioners of not less than
three freeholders, in such manner as may be pre-
scribed by law." Article 12, § 4, after declaring
that the right of eminent domain shall never be
so construed as to prevent the taking of property
of incorporated companies, provides that "the
right of trial by jury shall be held inviolate in
all trials of claims for compensation, when, in
the exercise of said right of eminent domain,
any incorporated company shall be interested
either for or against the exercise of said right."
Held, that the report of the commissioners might
be questioned by either party by demanding a
jury, not only in cases where it is sought to con-
demn the property of a corporation, but also
where an incorporated company seeks to condemn
the property of an individual.-Chicago, S. F. &
C. Rv. Co. v. Miller, (Mo. Sup.) 17 S. W. 499.
6. Const. Mo. 1875, art. 12, § 4, provides that
"the right of trial by jury shall be held inviolate
in all trials of claims for compensation," where
an incorporated company shall seek to exercise
the right of eminent domain. The schedule (sec-
tion 1) declares that "the provisions of all laws
which are inconsistent with this constitution
shall upon its adoption cease." Held, that all
laws, general and special, which provided for
the ascertainment of compensation for land taken
by virtue of the right of eminent domain other-
wise than by a jury, existing at the time the con-
stitution was adopted, were thereby repealed.-
St. Joseph & I. R. Co. v. Shambaugh, (Mo. Sup.)
17 S. W. 581.
Commissioners' compensation.
7. Under a city charter, providing that, in
court proceedings to condemn land for public
use, "the commissioners may be allowed a rea-
sonable compensation for their services," a mu-
nicipal ordinance, fixing such compensation at
three dollars per day, is invalid, since it is for
the court, and not the city, to determine what is
a reasonable compensation. SHERWOOD, C. J.,
and BLACK, J., dissenting. --Green v. City of St.
Louis, (Mo. Sup.) 17 S. W. 496.
8. When a court allows compensation at the
rate claimed by a commissioner for services in
condemnation proceedings, the latter is not in
position to complain that that rate was unreason-
ably low, though the court may have been au-
thorized, if claim had been made therefor, to al-
low a greater amount.-Green v. City of St. Louis,
(Mo. Sup.) 17 S. W. 496.
9. The city charter of Cape Girardeau (arti-
cle 4, § 18) gives the recorder exclusive jurisdic-
tion over all cases arising under any ordinances
of the city, subject, however, to appeal in all
cases to the court of common pleas, which ap-
peals shall lie upon the conditions imposed by
the laws of the state. Article 7, § 5, gives him
special jurisdiction also over proceedings to con-
3. A judgment of a county court awarding demn private property for public streets, and
land for a public road, and fixing the amount of for this purpose to appoint commissioners, re-
damages, and ordering its payment, is not pay-ceive their verdict, and, if the verdict be not set
ment, within the contemplation of Const. art. 13,
14, which provided that no land should be tak-
en for public purposes without payment first be-
ing made.-Carrico v. Calvin, (Ky.) 17 S. W. 854.
Procedure.
4. Where the charter of a railroad company
provides that the viewers appointed to assess
aside, to "render judgment" thereon condemning
the property and assessing damages. Rev. St.
1889, § 1524, providing for the condemnation of
property for streets, authorizes an appeal to be
made in the same manner and in the same time
as from judgments of justices of the peace. Sec-
tion 6327 allows any person aggrieved by the
judgment of any justice to appeal. Held, that
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