The Southwestern Reporter

NEW TRIAL.

NORMAL SCHOOLS.

In criminal prosecutions, see "Criminal Law," See "Schools and School Districts," § 1. § 26.

Necessity of motion for purpose of review, see

"Appeal and Error," § 4; "Criminal Law," § 27.

NOTES.

Opening or vacating judgment, see "Judgment," Promissory notes, see "Bills and Notes." § 4.

Remand by appellate court for new trial, see "Appeal and Error," § 23.

Review of discretionary rulings, see "Appeal and Error," § 15.

Review of rulings on motion for as dependent on record on appeal or error, see "Appeal and Error," § 7.

§ 1. Nature and scope of remedy.

Action of trial court in granting new trial because of excessive verdict held not to be disturbed.-Morrell v. Lawrence (Mo. Sup.) 571. § 2. Grounds.

*A new trial will not be granted on discovered evidence which is merely cumulative.-Cahill v. Mullins (Ky.) 336.

*Where the mistake of a jury in rendering an excessive verdict can be harmonized with an honest regard for duty and with a proper comprehension of most of the salient facts in evidence, the court did not abuse its discretion in denying a new trial on the ground that the verdict was the result of passion or prejudice. -McGraw v. O'Neil (Mo. App.) 132.

*The fact that plaintiff, a very affable and sociable gentleman, during the recesses of the court, joined in general conversation with the jurors, and laughed at their jokes, was insufficient to warrant the granting of a new trial, where no design to bias or influence any of the jurors was shown.-McGraw v. O'Neil (Mo. App.) 132.

*A motion for a new trial on the ground of newly discovered evidence held such that it would be denied.-Neal v. Whitlock (Tex. Civ. App.) 284.

*Newly discovered evidence held not such as to require giving of new trial.-Western Union Telegraph Co. v. Hardison (Tex. Civ. App.) 541.

*That newly discovered evidence would be cumulative is not of itself an insuperable reason for refusing a new trial.-El Paso & Southwestern R. Co. v. Barrett (Tex. Civ. App.)

1025.

*Testimony held not newly discovered entitling defendant to a new trial on that ground.El Paso & Southwestern R. Co. v. Barrett (Tex. Civ. App.) 1025.

3. Proceedings to procure new trial. A party seeking a new trial on the ground of newly discovered evidence must make it clear that, by the exercise of reasonable diligence, he could not have discovered and produced the evidence on the trial.-Cahill v. Mullins (Ky.) 336. *Allegation as to diligence exercised to discover evidence previous to trial held insufficient.-Burgess v. Grief (Ky.) 984.

NEXT OF KIN.

See "Descent and Distribution."

NOMINAL DAMAGES.

See "Damages," § 1.

NONSUIT.

NOTICE.

As affecting particular classes of persons. See "Carriers," § 2; "Landlord and Tenant," $ 5, 8; "Principal and Agent," § 3. Purchaser of land, see "Vendor and Purchaser," § 5.

48 affecting particular rights, duties, and liabili

ties.

Liability as surety, see "Principal and Surety," § 1.

Priority of mortgage, see "Mortgages," § 3.

Of particular facts, acts, or proceedings not
judicial.

Claim for injury to shipment of live stock, see
"Carriers," § 2.
County election, see "Counties," § 2.
Existence of prior mortgage, see "Chattel Mort-
Loss insured against, see "Insurance," § 8.
gages," § 3.
Nonpayment or protest of bill or note, see "Bills
Notice to quit demised premises, see "Landlord
and Tenant," §§ 5, 8.
Protest of bill or note, see "Bills and Notes,"
Result of local option election, see "Intoxicating
§ 2.
Liquors," § 3.

and Notes," § 3.

Of particular judicial proceedings.
See "Lis Pendens."

Taking of depositions, see "Depositions."
Vacation of judgment, see "Judgment," § 4.

NOVATION.

Where an original contract of employment was void under the statute of frauds, a new contract subsequently executed, which obviated such defect, did not constitute a novation.-San Antonio Light Pub. Co. v. Moore (Tex. Civ. App.) 867.

NUISANCE.

Accrual of right of action, see "Limitation of Actions," § 2.

1. Public nuisances.

A railroad company held not responsible for a public nuisance caused by an embankment built by another, in order to make a connection between his switch and their tracks, since under Const. § 216, they had no control over his acts.-Louisville & N. R. Co. v. Commonwealth (Ky.) 382.

Where a railroad company quartered laborers on its right of way, who disturbed the peace of the neighborhood, it may be convicted of having suffered a common nuisance on its premises. -Southern Ry. Co. in Kentucky v. Commonwealth (Ky.) 882.

OBJECTIONS.

Necessity for purpose of review, see "Appeal Before trial, see "Dismissal and Nonsuit." and Error," § 4; "Criminal Law," § 27. *Point annotated. See syllabus.

OBSTRUCTIONS.

Of easements, see "Easements," § 2.

Of water course, see "Waters and Water Cours-
es," § 1.

OFFER.

Of proof, see "Trial," § 2.

Proposals for contract, see "Contracts," § 1.

OFFICERS.

Arrest by, see "Arrest," § 1.
Injunctions affecting, see "Injunction," § 1.
Mandamus, see "Mandamus," § 2.
Official position of as consideration for contract
of carriage, see "Carriers," § 4.
Presumptions as to acting within scope of au-
thority, see "Evidence," § 2.

Particular classes of officers.

See "Judges"; "Justices of the Peace"; "Re-
ceivers"; "Sheriffs and Constables."

Habeas corpus to determine custody of child, see
"Habeas Corpus," § 1.

Liability of parent for assault on child, see "As-
sault and Battery," § 1.

PAROL EVIDENCE.

In civil actions, see "Evidence," § 10.
In criminal prosecutions, see "Criminal Law,"
§ 12.

PARTIES.

Death ground for abatement, see "Abatement
and Revival," § 3.

Defects ground for abatement, see "Abatement
and Revival," § 2.

Domicile or residence as affecting venue, see
"Venue," § 2.

Interpleading, see "Interpleader."

Misconduct ground for new trial, see "New
Trial," & 2.

Parol or extrinsic evidence as to parties to con-
tract, see "Evidence," § 10.

Persons concluded by judgment, see "Judg-
ment," § 8.

Corporate officers, see "Corporations," §§ 3, 4. Receiver as party to action, see "Receivers,” § 1.
County officers, see "Counties," § 1.
Highway officers, see "Highways," § 2.

Municipal officers, see "Municipal Corpora-
tions," § 2.

Of association, see "Associations."

OPEN AND CLOSE.

See "Trial," § 1.

OPENING.

Judgment, see "Judgment," §§ 1, 4.

OPINION EVIDENCE.

In civil actions, see "Evidence," § 11.

In criminal prosecutions, see "Criminal Law," §
13.

OPTIONS.

In actions by or against particular classes of
persons.

See "Brokers," § 3.

In particular actions or proceedings.
See "Attachment," § 1.

Condemnation proceedings, see "Eminent Do-
main," § 3.

For commission of broker, see "Brokers," § 3.
Foreclosure, see "Mortgages," § 6.

On bond of municipal contractor, see "Municipal
Corporations," § 4.

On pledged right of action, see "Pledges."
Judgment and relief as to parties, and parties
affected by judgments or proceedings thereon.
See "Judgment," § 2.

Review as to parties, and parties to proceedings
in appellate courts.

Appeal from justice's court, see "Justices of the
Peace," § 3.

On appeal or writ of error, see "Appeal and
Error," § 3.

For sale of land, see “Vendor and Purchaser," Parties 'entitled to allege error, see “Appeal and

§ 1.

To renew lease, see "Landlord and Tenant," § 4.

ORDER OF PROOF.

At trial, see "Trial," § 2.

ORDERS.

Of court for local option election, see "Intoxicat-
ing Liquors," § 3.
Review of appealable orders, see "Appeal and
Error."

ORDINANCES.

Municipal ordinances, see "Municipal Corpora-
tions," § 4.

Municipal ordinances relating to fire escapes on
hotels, see "Innkeepers."

Regulating liquor traffic, see "Intoxicating Liq-
uors," § 2.

PARENT AND CHILD.

See "Guardian and Ward"; "Infants."

Error," 13.

To conveyances, contracts, or other transactions.
See "Contracts," § 1.

PARTITION.

Of land held by tenants in common, see "Ten-
ancy in Common," § 1.

§ 1. By acts of parties.

Conveyances of land held to show an agree-
ment to divide land equally after deducting
that sold previously.-Whitaker v. Farris (Tex.
Civ. App.) 456.

§ 2. Actions for partition.

overthrow the report of commissioners as to
*In partition, evidence held insufficient to
the division of land.-Mead v. Mead (Ky.) 330.

*Under Civ. Code, § 499, subsec. 13, and Ky.
St. $889, costs in partition held correctly ap-
portioned equally between the parties.-Mead
v. Mead (Ky.) 330.

PARTNERSHIP.

Declarations as to birth or pedigree, see "Evi- Validity of agreement between partners, see

dence," § 7.

Domicile of child, see "Domicile."

Evidence as to validity of deed from parent to
child, see "Deeds," § 3.

"Contracts," § 1.

§ 1. The relation.

The question whether or not a partnership
relation existed was to be determined by the

*Point annotated. See syllabus.

terms of the agreement between the parties and
the nature of the transaction, rather than by
what the parties called themselves.-Sain v.
Rooney (Mo. App.) 1127.

*The fact that plaintiff agreed to divide with
another a commission for selling land was in-
sufficient to constitute them partners; no losses
or expenses being contemplated or involved.-
Sain v. Rooney (Mo. App.) 1127.

A contract held not to create a partnership,
but to make the parties thereto joint owners.
Beaumont Rice Mills v. Bridges (Tex. Civ.
App.) 511.

§ 2. Mutual rights, duties, and liabili-
ties of partners.

In the absence of an express agreement or
of such facts and circumstances as imply an
agreement on the part of the other partners to
pay for services, a partner is not entitled to
pay therefor.-Caldwell v. Lang (Ky.) 972.
§ 3. Rights and liabilities as to third

persons.

Under Rev. St. 1899, § 746 [Ann. St. 1o06, p.
731], an unverified reply held sufficient to put in
issue the fact of the existence of a partnership
alleged in the answer.-Sain v. Rooney (Mo.
App.) 1127.

*A firm held liable on a note given for it
in the name of one of the partners.-Dockery
v. Faulkner (Tex. Civ. App.) 501.

4. Retirement and admission of part-

ners.

Partnership property held liable for firm
debts, though one partner bought the interest of
the other without knowing of the indebtedness.
-Dockery v. Faulkner (Tex. Civ. App.) 501.

§ 5. Dissolution, settlement, and ac-
counting.

*The court, on an application by a partner for
the appointment of a receiver of partnership
assets, held not required to pass on the question
of the rights between the partners, though it
will not appoint a receiver unless the partner
is entitled to a dissolution of the partnership.-
Rische v. Rische (Tex. Civ. App.) 849.

*Under Rev. St. 1895, art. 1465, the court
held entitled to appoint a receiver of partner-
ship property on the petition of a partner ousted
from the partnership management and refused
an adjustment of the partnership matters.-Ris-
che v. Rische (Tex. Civ. App.) 849.

*Petition for appointment of a receiver of
partnership property held to sufficiently allege
the existence of the partnership to warrant the
appointment on a proper ground being shown
therefor.-Rische v. Rische (Tex. Civ. App.)

849.

*An agreement between the owners of adja-
cent lots with respect to a party wall to be con-
structed on the boundary line between their
lots, held to constitute a covenant running with
the land; the right to recover one-half the cost
of building the same and the liability to pay
following the ownership of the respective lots.
-Ferguson v. Worrall (Ky.) 966.

PASSENGERS.

On settlement of a partnership, one of the
partners held entitled to the whole of the pro-
ceeds of the goods remaining after payment of
the firm debts.-Greenwell v. Negley (Ky.) 961.
*In an action to settle a partnership, evidence See "Carriers," §§ 3-9.
examined, and held insufficient to support the
judgment.-Caldwell v. Lang (Ky.) 972.

*Where plaintiffs were entitled on demand to

4, 6.

PASSES.

a settlement and a dissolution of a partnership, For carriage of passengers, see "Carriers," §§
which was denied them by defendants, thereby
entailing an action to enforce a settlement, de-
fendants were liable for the expenses of settle-
ment. Caldwell v. Lang (Ky.) 972.

*Where a surviving partner is sued by the
heirs of the deceased partner for a debt due
the firm in an individual capacity and for an
amount of firm debts collected by him, the
claims are claims between partners to which the
four-year statute of limitation applies under
Rev. St. 1895, art. 3356.-Wylie v. Langhorne
(Tex. Civ. App.) 527.

Where the court is satisfied of the existence
of a partnership, it will appoint a receiver on
the application of one of the partners, notwith-
standing a denial of the existence of the part-
nership is made by the copartner.-Rische v.
Rische (Tex. Civ. App.) 849.

*Under Rev. St. 1895, arts. 1465, 1492, a
partner applying for the appointment of a re-
ceiver of partnership property held not required
to prove that the property is in danger of being
lost.-Rische v. Rische (Tex. Civ. App.) 849.

*A partner, applying for a receiver of the
partnership assets who shows that he has been
wrongfully excluded from participation in the
management of the property, is entitled to the
appointment of a receiver, without proving the
insolvency of the copartner.-Rische v. Rische
(Tex. Civ. App.) 849.

PASSION.

Instructions as to passion in prosecution for
homicide, see "Homicide," § 7.

Killing in heat of passion, see "Homicide," § 1.

PAYMENT.

See "Accord and Satisfaction."

Of particular classes of obligations or liabilities.
See "Insurance," § 5; "Judgment," § 9; "Mort-
gages," § 5.

County warrants, see "Counties," § 2.
Note secured by chattel mortgage, see "Chat-
tel Mortgages," § 7.

Price of land sold, see "Vendor and Purchas-
er," § 4.

§ 1. Pleading, evidence, trial, and re-
view.

Evidence held sufficient to show that decedent
paid part of the consideration of a bond for
title.-Scranton v. Campbell (Tex. Civ. App.)

285.

*Statement of pleading of payment, under
Sayles' Civ. St. 1888-89, art. 1266.-Brown v.
Rash (Tex. Civ. App.) 1041.

*Point annotated. See syllabus.

PEDIGREE.

Declarations as evidence, see "Evidence," § 7.

PENALTIES.

Pleading limitations in action for, see "Lim-
itation of Actions," § 3.

Validity of laws imposing, see "Statutes," § 1.
Venue of action to recover, see "Venue," § 1.
For particular acts or omissions.
Cutting fence, see "Fences."
Delay in appeal, see "Costs," § 2.
Violation of license laws, see "Licenses," § 1.

§ 1. Nature and grounds, and extent of
liability.

Act Feb. 16, 1899 (Acts 1899, p. 20, c. 19, §
3), imposing a penalty on foreign corporations
doing business in the state, without complying
with certain conditions, held not invalid, nor to
prevent the imposition of a greater penalty, be-
cause providing only a minimum penalty.-
Western Union Telegraph Co. v. State (Ark.)

748.

§ 2. Actions and other proceedings.
Under Kirby's Dig. § 7797, a penalty incurred
before repeal of statute held recoverable there-
after.-Western Union Telegraph Co. v. State
(Ark.) 748.

PENDENCY OF ACTION.

Admissions by failure to plead, see "Plead-
ing," §§ 2, 3.

Amendment of pleading, see "Pleading," § 5.
Applicability of instructions to pleading and
evidence, see "Trial," § 8.

Argument and conduct. of counsel, see "Trial,"
§ 3.

Construction of instructions, see "Trial," § 10.
Determination and disposition of cause on ap-
peal, see "Appeal and Error," § 23.
Evidence of customs, see "Customs and Usages."
Examination of witnesses, see "Witnesses." § 3.
Harmless error, see "Appeal and Error," § 19.
Harmless error in instructions, see "Appeal and
Error," § 20.
Impeachment of witnesses, see "Witnesses," § 4.
Motions relating to pleadings, see "Pleading,"
§ 8.

Necessity and subject-matter of instructions, see
"Trial," § 6.

Opinion evidence, see "Evidence," § 11.
Presentation in lower court of grounds of re-
view, see "Appeal and Error," § 4.

Province of court and jury, see "Trial," § 5.
Requests for instructions, see "Trial," § 9.
Res gestæ, see "Evidence," § 4.

Effect as to property involved, see "Lis Pen- Sufficiency of evidence, see "Evidence," § 13.

dens."

PERJURY.

Harmless error in instructions, see "Criminal
Law," § 30.

Sufficiency of instructions, see "Criminal Law,"
$ 21.

§ 1. Prosecution and punishment.

An indictment held to sufficiently charge the
commission of perjury, under Cr. Code Prac. §
134.-Commonwealth v. Combs (Ky.) 312.

*An indictment for perjury, alleged to have
been committed at an examining trial for homi-
cide, conducted by a justice of the peace, under
Cr. Code Prac. § 71, subsec. 3, held not defective
for failure to allege the facts necessary to con-
fer jurisdiction on such justice.-Commonwealth
v. Combs (Ky.) 312.

An indictment for perjury held not objection-
able because it alleged that the material ques-
tion on the prior trial was whether defendant
charged for prescribing such drugs and medicine
to persons under his treatment without naming
them or stating times and places.-Collins v.
State (Tex. Cr. App.) 992.

PERSONAL INJURIES.

Subjects and titles of statutes relative to dam-
ages for, see "Statutes," § 3.

Particular causes or means of injury.

See "Negligence."

Waiver of defects in pleading, see "Pleading,"
§ 10.

Waiver of irregularities at trial, see "Trial," §

13.

PETITION.

For local option election, see “Intoxicating Liq-
uors," § 3.
In pleading, see "Pleading."

PHYSICIANS AND SURGEONS.

As expert witnesses, see "Evidence," § 11.

*In an action for physician's fees, evidence
held sufficient to go to jury on the question as
to the existence of an implied contract to pay
therefor.-Morrell v. Lawrence (Mo. Sup.) 571.

Evidence of physician's good reputation
held inadmissible in an action by him on an im-
plied contract for services.-Morrell v. Law-
rence (Mo. Sup.) 571.

Evidence of physician's learning and skil
is competent to be shown in estimating the
value of his services.-Morrell v. Lawrence (Mc.
Sup.) 571.

In an action by a physician for services, ev
dence of pecuniary condition of patient held
admissible.-Morrell v. Lawrence (Mo. Sup.)

571.

*In an action by a physician for services,

Assault by deputy sheriff, see "Sheriffs and Con- evidence of pecuniary condition of person er
stables," § 1.

Defect in bridge, see "Bridges," § 1.
Defective conditions of demised premises, see
"Landlord and Tenant," § 6.

Defects in streets, see "Municipal Corpora-
tions," § 6.

Operation of railroads see "Railroads," §§ 6, 7.

Particular classes of persons injured.
Employé, see "Master and Servant," §§ 2-10.
Hotel guest, see "Innkeepers."

dering services held inadmissible.-Morrell v.
Lawrence (Mo. Sup.) 571.

*Measure of recovery in an action on an in-
plied contract for physician's services stated
-Morrell v. Lawrence (Mo. Sup.) 571.

Acts 26th Leg. p. 320, c. 180, repealing Acts
25 Leg. (1897) p. 49, c. 18, subd. 14, taxing
physicians and surgeons, held not to repeal subd.
13.-Fouts v. State (Tex. Cr. App.) 223.
*Point annotated. See syllabus.

PLATS.

Dedication by, see "Dedication,” § 1.

PLEA.

In civil actions, see "Pleading," § 2.

1273

facts from which a remote inference of fraud
might arise, without setting out the fraudulent
acts themselves.-Dorman v. Hall (Mo. App.)
161.

A petition held not objectionable because it
alleges value of property before and after injury,
leaving it to a simple calculation to arrive at
the amount of diminution in value.-Ft. Worth

In criminal prosecution, see "Criminal Law," & R. G. Ry. Co. v. Harrold (Tex. Civ. App.)
§ 5.

PLEADING.

Admissions in abandoned pleading, as evidence,
see "Evidence," § 6.

Amendment of as affecting limitation, see "Lim-
itation of Actions," § 2.

266.

In an action for breach of a contract of em-
subsequent date held not objectionable as a cou-
ployment, an allegation that it was ratified on a
Co. v. Moore (Tex. Civ. App.) 867.
clusion of the pleader.-San Antonio Light Pub.
§ 2. Plea or

Amendment of on appeal from justice's court,
see "Justices of the Peace," § 3.
answer, cross-complaint,
Applicability of instructions to pleadings, see by the carelessness of defendant's servants, and
and affidavit of defense.
"Trial," § 8.
*An answer denying that plaintiff was injured
Conformity of judgment to pleadings, see "Judg-held not a denial of plaintiff's allegation that
affirmatively pleading contributory negligence,
duties at the direction of his foreman after in-
he was injured while performing a brakeman's
v. Calbert (Ky.) 314.
forming him that he was inexperienced.-Oliver

ment," § 2.

In justice's court, see "Justices of the Peace,"
§ 2.

Allegations as to particular facts, acts, or trans-
actions.

See "Damages," § 6; "Judgment," § 10; "Pay-
ment," § 1.

Statute of limitations, see "Limitation of Ac-
tions," § 3.

In actions by or against particular classes of
persons.

See "Brokers," § 3; "Carriers," §§ 1, 7; "Mas-
ter and Servant," §§ 1, 8; "Partnership." §
3; "Principal and Agent," § 3; "Principal
and Surety," § 2; "Street Railroads," § 1.

In particular actions or proceedings.
See "Fraud," § 2; "Libel and Slander," § 2;
"Malicious Prosecution," § 3; "Negligence," §
2; "Replevin," § 2; "Trespass," § 1; "Trover
and Conversion," § 2.

Certiorari to justice's court, see "Justices of the
Peace," § 3.

For breach of contract, see "Contracts," $ 3.
For commission of broker, see "Brokers," § 3.
For failure to furnish means of transportation,
see "Carriers," § 1.

For injuries caused by taking of or injury to
property in exercise of power of eminent do-
main, see "Eminent Domain," § 4.
For personal injuries, see
"Master and Servant," § 8; "Railroads," §
"Carriers." § 7;
8; "Street Railroads," & 1.
For price of land, see "Vendor and Purchaser,"
§ 6.
For wrongful discharge of servant, see "Master
and Servant," § 1.

com-

Indictment or criminal information or
plaint, see "Indictment and Information."
On bill or note, see "Bills and Notes." § 2.
On insurance policy, see "Insurance," § 10.
On reconvention for breach of cropping con-
tract, see "Landlord and Tenant," § 9.
Pleas in criminal prosecutions, see "Criminal
Law," § 5.

To establish trusts, see "Trusts," § 3.

Review of decisions and pleading in appellate
courts.

Harmless error in rulings on, see "Appeal and
Error," 18.

Review of issues as dependent on presentation
in lower court of grounds of review, see "Ap-
peal and Error," § 4.

Review of rulings on as dependent on record on
appeal or error, see "Appeal and Error," § 7.

1. Form and allegations in general.
*In a proceeding to set aside a judgment for
fraud, a petition is bad which merely states

to assert that plaintiff did not acquire title to
Defendants held estopped by their pleadings
ter (Mo. Sup.) 586.
the special tax bill sued upon.-Dickey v. Por-

3. Replication or reply and subse-
quent pleadings.

sufficiently traversed by the reply.-Hatcher v.
*Certain allegations of an answer held not
Fitzpatrick (Ky.) 933.

*In an action for injuries to a servant, allega-
tions of the answer held a mere affirmative de-
nial of the issue tendered by the petition, and
were not therefore admitted by plaintiff's fail-
(Ky.) 982.
ure to reply.-Murphy v. Illinois Cent. R. Co.

4. Demurrer or exception.

Failure of a statement to recover for the

wrongful cutting of plaintiff's fence in violation
of Rev. St. 1899, § 4573 [Ann. St. 1906, p.
ant's failure to urge the same as a ground for
2486], to allege that the fence did not lead into
defendant's inclosure, held waived by defend-
demurrer.-Frederick v. Bruckner (Mo. App.)

619.

discloses that the action was brought on the
good against a general demurrer, though it
*A petition showing a cause of action held
App.) 560.
wrong theory.-Thompson v. Mills (Tex. Civ.

5. Amended and supplemental plead-
ings and repleader.

*The refusal of an amendment pleading a
set-off not offered until after proof had been
taken and the case was ready for submission
held not error, in the absence of a showing that
the matters were not known to defendants at
the time they filed their original answer.-
Weimer's Adm'r v. Smith (Ky.) 327.

Under Civ. Code Prac. § 134, the court, on the
second trial of an action for personal injuries
negligently inflicted, properly denied defendant's
application for leave to file an amended answer
R. Co. v. Houchins (Ky.) 924.
to secure the closing argument.-Illinois Cent.

ing plaintiff's fences and crops by a fire, the
permitting of an amendment to the complaint
*In an action against a railroad for destroy-
Louis & S. F. R. Co. (Mo. App.) 156.
and the giving of an instruction for a recovery
on such amendment held error.-Riley v. St.

juries through negligence, there was
In an action against a street railway for in-
parture between an original petition, alleging
no de-
*Point annotated. See syllabus.

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