Volume 114 — Missouri Reports

—Hon. James Gibson, Judge. (1) The descriptions of this property for the years sued for, as contained in the tax-books, and as stated in the petition, were so vague and indefinite as to fail to support a judgment. It is impossible to tell from the description what part of the property was assessed by the state board of equalization, and what part, if any, was assessed, or intended to be assessed, by the • local assessor, and for that reason it cannot be located.

Louis City Circuit Cou/rt.—Hon. James A. Seddon, Judge. Such portions of the plats of Eiler’s and Mackay’s surveys as are referred to in the opinion of the court are indicated by the copies on the adjacent pages. On Eiler’s map appears the following statement not reproduced on the copy, viz.: “Remarks. On the river Mississippi is left a tow of about seventy feet, english measure.

—Hon. R. H. Field, Judge. (1) The action was not barred as against any of the plaintiffs at the time the suit was brought. Gray v. Tates, 67 Mo. 601; Jackson v. Johnston, 5 Cowen, 74; Wilson v. Betts, 4 Denio, 208. (2) Julius Hinters made no claim of adverse possession either by act, word or deed; the co-tenants were as much in possession as he was. Greer v. Trifp, 56 Cal. 209; Parker v. Locks, 3 Met. 91.

<p>1. St. Louis Charter: JURISDICTION 03? POLICE COURTS: APPEAL. The charter of the city of St. Louis gives to the police courts of the city jurisdiction of all eases arising from violations of the city ordinances, with the right of appeal to the court of criminal correction where trial ele novo is had, as in cases of appeal from justices' courts.</p> <p>2. Practice in Supreme Court: appeal: exceptions. On appeal or writ of error from the St. Louis court of criminal correction to the supreme court, nothing can be reviewed except the action o,f the former court; and the ruling of the court of criminal correction on a motion to quash is a matter of exception, and, when not questioned in that court, cannot be reviewed in the supreme court.</p>

—Hon. Thomas H. Bacon, Judge. (1) The court erred in the admission of evidence; Rogers v. Troost, 51 Mo. 476; State v. Thomas, 99 Mo. 257; Myers v. Hauger, 98 Mo. 439. (2) The court should have given proponents’ instruction number one. There is nothing in the evidence which even tends to show that Henry or John Maddox exercised any influence over their father in procuring the will. Jachson v. Hardin, 83 Mo. 184; Higgins v. Carlton, 28 Md. 118.

—Hon. James D. Fox, Judge. (1) The statute declares the homestead to be exempt to the housekeeper or head of a family from' attachment or execution in all cases “except as herein provided.” Revised Statutes, 1889, sec. 5435; State v. Pitts, 51 Mo. 133; Blandy v. Asher, 72 Mo. 27; Davis v. Land, 88 Mo. 436. (2) The terms “housekeeper,” or head “of the family,” as used in the homestead exemption statute, are not synonymous. The occupant need have no family.

—Hon. John W. Henry, Judge. (1) A demurrer to the evidence ought to have been sustained. The firm of Railey & Crowburger contracted to take the rock out of appellant’s cellar at forty cents per perch, using their own means and methods for accomplishing this result. The contract was completed without any interference on appellant’s part. The contract constituted Railey & Crowburger independent contractors, and the relation of master and servant in no wise existed between them.

Louis City Circuit_ Cotvrt.—Hon. D. D. Fisher, Judge. (1) Tire court erred in permitting tlie plaintiff Stone to testify. Coughlin v. Haeussler, 50 Mo. 126, is not a sound decision. It is judicial legislation. When one of the parties is dead, the other party stands in regard to testifying precisely as if the statute allowing parties to testify had not been enacted. Bing v-. Jameson, 66 Mo. 424; Angelí v. Hestis, 64 Mo. 144.

Certified from St. Louis City Coivrt of Appeals. (1) Tbe amount of $976.11, due McLanewhen he absconded, was a valid legal claim for tbe recovery of which be, McLane, could then have maintained an action against tbe city. Yeats v. Ballentine, 56 Mo. 530; Eyermann v. Cemetery Ass’n, 61 Mo. 489; Ahern v. Boyce, 19 Mo. App. 552; Austin v. Keating, 21 Mo. App. 30.

Louis City Circuit Cowrt.—Hon. Gr. A. Madill, Judge. (1) The instructions given by the trial judge were warranted by the evidence, covered the points in the case and announced the law correctly. (2) There was nothing in the evidence to show that the rules in question were not uniform as to those for whom they were designed. The fact that the rule was not always strictly enforced does not warrant the impeachment of the rule itself.

—Hon. R. H. Eield, Judge. (1) The court erred in compelling plaintiff to carry the burden of proof through the trial.

(1) By the petition for an order to sell real estate, the order of publication and proof of publication, the probate court obtained jurisdiction of. the subject-matter, and of all persons “interested in the estate. ” General Statutes, 1865, ch. 122, secs. 10, 25, 26, pp. 497-8, (2) This order of sale was a final adjudication of the following facts: Phrst. That there were valid debts allowed against the estate. Second. That there was no sufficient personal assets. Third.

Louis City Circuit Court.—Hon. L. B. Valliant, Judge. This is an action in ejectment for the possession of certain real estate'in the City of St. Louis. Both parties trace title to a common source, Dr. James H. McLean. On the fifth of March, 1878, Dr. James H. McLean and his wife, Sarah L. McLean, executed a deed for the adoption of the defendant, 0.

—Hon. A. M. •Woodson, Judge. (1) The vendor of real estate has the same right in equity to enforce specific performance as the vendee. Paris v. Haley, 61 Mo. 453; Rogers v. Wolf, 104 Mo. 1; Pomeroy on Specific Performance of Contracts, sec. 6, p. 6.

—Hon. B. E. Turner, Judge. This case falls within the decision of Barnard v. Knox Co., 105 Mo. 382. It is neither denied nor questioned that the required levy under the constitution Was made. So any levy to exceed fifty cents on the $100 valuation is unconstitutional for' any debts except for the erection of public buildings or indebtedness existing prior to November 30, 1875. Black v. McGonigle, 103 Mo. 192; Barnard v. Knox Co., 105 Mo. 382.

—Hon. O. W. Sloan, 'Judge. 1 (1) The homestead, law is intended for the benefit of the family and is to receive a liberal construction with that end in view. Vogler v. Montgomery, 54 Mo. 577; State ex rel. v. Diveling, 66 Mo. 375; Cox v. Wilder, 2 Dillon C. 0. 46; Morgan v. Steam, 41 Yt. 398. (2) It may be shown that a deed absolute in form was intended as a mortgage; and, when this is shown, the rights and incidents of a mortgage merely and not a conveyance attaches thereto.

Louis City Circuit Cou/rt.—Hon. Daniel Dillon, Judge. (1) The bond sued on having been executed May 31, 1884, and the ejectment suit in which it was given having been without appellants’ consent transferred by this court to the supreme court of Missouri, as required by legislative act of this state dated March 4, 1885, and which was not in existence and did not become a law for almost a year after the bond was signed, and could not have been contemplated by appellants at the…

—Hon. BenE. Turner, Judge. (1) The name Siemson is idem sonans with Simon-son. 16 American & English Encyclopedia of Law, p. 122; Chamberlain v. Blodgett, 96 Mo. 482. (2) The proceedings and sheriff’s deed are sufficient to vest the legal title in the defendants. This case is different in facts from Guffey v. O’Reilley, 88 Mo. 418. (1) The names Siemson and Simonson are not idem sonans.

<p> Quo Warranto. </p> <p>(1) The assistant inspectors of grain at Kansas City were appointed, qualified and performed duties under and pursuant to law (Revised Statutes, 1889, secs. 5636-5644). Their duties concerned the public, hence they , were public officers. People v. Says, 7 How. Pr. (N. Y.) 248; Wood's Case, 2 Cow. (N. Y.) 29, note; Bradford v. Justice, 33 Gra. 332. (2) And in usurping their offices and assuming to act as inspectors of grain, the respondents Walker and Wagoner were guilty of a misdemeanor. Revised Statutes, 1889, sec. 5643; Butcher v. People, 11 Bradw. (111. App. Ct.) 312; Past St. Louis, etc., v. People, 105 111. 382. (3) The warehouses and elevators in proof are “public warehouses” within the meaning of the law. Revised Statutes, 1889, art. 3, ch. 87, sec. 5607. (4) It does not matter that these warehouses are owned and operated by private individuals who buy and sell in other states as well as in this, for the business is carried on exclusively in this' state and concerns the public, and the state has the right to prescribe these Regulations. Munn v. Illinois, 94 IT. S. 113. (5) The state has the right, under the Federal constitution, to make and enforce the act in question as an “inspection law” under the police power reserved to the state. Tiwner v. Maryland, 107 U. S. 38; Tiedeman on Limitations of Police Powei'S, sec. 89, and eases cited; Clintsmcm v. Northop, 8 Cow. (N. Y.) 45-6; 11 American & English. Encyclopedia of Law, 234, and cases cited, note 11. (6) And the legislature is the sole judge of the necessity for and expediency of laws of this class. Tyler v. People, 8 Mich. 320; Georgia v. Stanton, 6 Wall. 50; People v. Draper, 15 N. Y. 532; Sharpless v. Mayor, 21 Pa. 147; Bennett v. Boggs, 1 Bald. 74; Hamilton y. St. Louis, 15 Mo. 23. (7) The presumption is that the state has the right to enact an<j. enforce this law under the constitution. Humes v. Railroad, 82 Mo. 222; State v. Hope, 100 Mo. 347. (8) Under a similar state constitution, and long before we adopted it, this same law was held to be constitutional by the court of last resort of the state whence we borrowed it and by the supreme court of the United States. Munn v. People, 69 111. 80; Munn v. Rlinois, 94 U. S. 113; People v. Harper, 91 111. 357. (9) And the presumption is that Missouri adopted the construction thus put upon this law, and by that construction the court should be bound. 3 American & English Encyclopedia of Law, 681, and. citations under note 2; Slcouten v. Wood, 57 Mo. 380.</p>

—Hon. A. M. Woodson, Judge. (1) The appellant as the owner of the curtesy and an undivided one fifth in the remainder is entitled to partition. Beinders v. Koppelmmn, 68 Mo. 482-500; Preston v. Brant, 96 Mo. 552; Otley v. McAlpine, 2 G-ratt. 341; Freeman on Co-Tenancy & Partition [2 Ed] sec. 456; Blakely v. Colder, 17 N. T. 617. 2 Grattan is exactly in point.' (2) Under our statute any person interested in lands held as described may compel partition.

—Hon. C. A. ■ Anthony, Judge. (1) The court erred in refusing to allow defendant to sbow that he signed the instrument as surety under an agreement with Gay, the principal, that it should pot be delivered till one Wilkinson and others should sign it; and that it was in violation of such agreement delivered to plaintiff, without obtaining their signatures, and that plaintiff, without surrendering any security or other valuable thing, simply credited the note on a prior…

—Hon. Chas. W. Sloan, Judge. (1) No cause of action is stated in the petition, and the objection to the introduction of testimony and the amount in arrest of judgment should have been sustained, and also the demurrers to the evidence. Railroad v. Bay, 45 American & English Railroad Cases, 391; Railroad v. Bay, 35 Fed. Rep. 873, 876; Sorrel v. Railroad, 75 Ga. 509; Railroad v. Railroad, 19 Fed.

<p>1. Corporations: elections of directors: meetings of stockholders: increase of stock. Under the statute of this state providing that articles of association of a corporation shali state the city or town and county in which it shall be located, acts of the body corporate itself, such as the annual election of directors, votes to increase or diminish stock and other meetings of the stockholders should take place at the home office.</p> <p>2. -: MEETING OF STOCKHOLDERS IN FOREIGN JURISDICTION. •Where, as in this state, there is no prohibitory statute, and all the shareholders give their consent, the acts of the stockholders at a meeting held in a foreign jurisdiction are valid.</p> <p>3. -: -: CONTRACT FOR SALE OF CORPORATE PROPERTY: DEED. The directors of a corporation organized under the laws of this state may meet in a foreign state and contract for the sale of its property here and direct its president to execute a deed, and his acts in executing and delivering it there, although to a foreign corporation, are as valid as if performed at the office of the corporation here.</p> <p>4. ——: TRANSACTION OF BUSINESS IN FOREIGN STATE. Though corporations are mere artificial beings and creatures of the law where organized, they may hold property and transact business in a foreign state or country, when not prohibited by the laws of such country.</p> <p>5. -; ENGLISH MINING COMPANY: PURCHASE OF LANDS IN MISSOURI. A corporation organized under the laws of 'England empowering it to purchase, hold and operate mining lands in this state may do so, there being nothing in the laws of this state prohibiting it.</p> <p>6. -: -: -. Where the memorandum of association of a corporation, organized in England under the laws thereof, provides, among other things, for the purchase and operation of mining lands in Missouri and "elsewhere,” it has power to purchase and operate such lands in England as well as in this state.</p> <p>7. -: -: -. Although such English corporation is not, by its articles of association, empowered to own and operate mining lands there but is authorized to own and operate them in this state, it may do so here, such business not being opposed to'the policy of our laws and there being no statute of this state denying it the right to do so.</p> <p>8. —:—: fraudulent sale. The single fact that a Missouri corporation at the time of making a sale of its property to an English corporation failed to provide for the payment of a contested claim of $1,000, standing alone, does not warrant the inference that the' transfer was made to defraud creditors, where the circumstances all tend to show that the sale was made in good faith.</p> <p>9. -: CREDITORS AND STOCKHOLDERS; TRUST FUND FOR PAYMENT OF debts. The capital stock and other property of a corporation are in equity,. as between creditors and stockholders, deemed to be a trust fund for the payment of the debts; and where such property has been divided among the stockholders, leaving debts unpaid, the stockholders are bound to refund.</p> <p>10. ■-: -: -: remedy. Semble, that the creditor of a. corporation may enforce his claim against another corporation purchasing the property of the debtor pending suit, there being no actual fraud in the sale; but his remedy against the old stockholders- or the new corporation is by bill in equity.</p> <p>11. --: -: -: -. A purchaser at the execution sale under a judgment in favor of the creditor, in such ease is only entitled to be substituted to the latter’s rights to the extent of the amount of his bid with interest thereon.</p>

Court. — Hon. J. A. Ho ok ad ay, Judge. (1) The newly formed land should have been divided between the owners. Benson v. Morrow, 61 Mo. 355; Lanne' v. Buse, 70 Mo. 463; St. Louis v. Lemp, 93 Mo. 477. (2) The trial court erred in refusing to give instructions 8 and 9 asked by defendant.

Louis City Circuit Court—Hon. James E. Withrow, Judge. (1) The trustee’s deed to Virginia Wilkerson was improperly admitted in evidence. The deed to Wilkerson’s trustee required, upon default, the publication of notice of sale to be for thirty days in some newspaper. The deed offered showed the publication was in two papers, but in neither of them for thirty days. Kellogg v. Carrico, 47 Mo. 157.

Louis City Circuit Court.—Hon. L. B. Yalliant, Judge.: (1) The English doctrine in regard to sales in market overt is not applicable in the United States where no such usage or institution exists. Benjamin on Sales [6 Ed.] p. 37; Tiedeman on Sales, sec. 317; Usher on Sales, sec. 37; 25 American Decisions, p. 609; Fawcett v. Osborn, 32 111. 411.

Louis City Gircmt Court.—Hon. Jacob Klein, Judge. (1) The plaintiff having been received as a passenger upon defendant’s car and on the step of the front platform, and being ready to pay his fare as such, and defendant having provided no better or safer place for plaintiff to ride as such passenger, he, as such passenger on said step, was entitled to the highest practical care for his protection there. Wilmotv.

Louis City Circuit Court.—Hon. Jacob Klein, Judge. (1) The circuit court erred in excluding evidence under the seventh defense of defendant Bartle’s answer, and in ruling that said seventh defense constituted no-defense to this action.

Mandamus. The statute provides “a peremptory writ of mandamus shall be granted, without delay, for him for whom judgment shall be given, as might if such return had been adjudged insufficient.’’ Bevised Statutes, 1879, sec. 3260; Bevised Statutes, 1889,-sec. 6817. By section 600, Bevised Statutes, 1889, it is provided that “executions may issue upon a judgment at any time within ten years after the rendition of such judgment. ” Bevised Statutes, 1879, sec. 2739.

—Hon. D. A. DeArmond, Judge. (1) The ruling of the court below in giving declaration of law, asked by the plaintiff, number 3 was correct.

Louis City Circuit Court.—Hon. D. D. Fisheb, Judge. (1) First. A contract results from a proposal and acceptance. The acceptance in such case must be unequivocal, unconditional and without variance of any sort between it and the proposal; otherwise there is no mutual assent of the parties to the same thing, and hence no contract. A contract can only result when the offer made is met by an acceptance which corresponds with the offer in every particular.

(1) The justice was without jurisdiction. Revised Statutes, 1889, sec. 6124. (2) The justice had no jurisdiction over the person of Nell; no summons was issued and he did not appear. Revised Statutes, 1879, sec. 2849; Freeman on Judgments, sec. 118; Bersch v. Schneider, 27 Mo. 101; Jeffries v. Wright, 51 Mo. 220; McCloonv. Beattie, 46 Mo. 392; Cunningham v. Railroad, 61 Mo. 33.

—Hon. E. M. Hughes, Judge. • (T) Plaintiff’s first instruction is misleading. Defendant might not have “intended to hold all the land first fenced,” yet limitation began as to the land he claimed adversely, that is, up to the surveyed line, before the fence was moved back to it.

J. H. Slover, Judge. (1) Unless the suit to enforce a mechanic’s lien be brought so as to bind the interest of the owner, in this case also contractor, the lien cannot be sustained against the other parties interested in the property. 2 Revised Statutes, 1889, see. 6713; Willing v. Power, 25 Mo. 599; Fury v. Boeckler, 6 Mo. App. 24; Foster v. Wulfing, 20 Mo. App. 87; Steinman v. Strimple, 29 Mo. App. 478.

<p>1. Expert Testimony. An expert is one who by practice or observation has become experienced in any science, art or trade.</p> <p>2. -: architects and builders. Architects and builders are well known as persons engaged as a business in planning, constructing, remodeling and adapting to particular uses buildings and'other-structures, and if their experience and observation are sufficient they may be regarded as specially skilled in such business and qualified prima facie to testify as experts.</p> <p>3. -: -. Where such witnesses are shown to have been engaged in the business a number of years, they are presumed to have acquired special knowledge of it and are prima facie qualified to give their opinion on any question regarding the construction, strength and sufficiency of buildings which may be a proper subject, for opinion evidence.</p> <p>4. -:-. Where the condition of the walls and the sufficiency or insufficiency of the foundation of a building are facts susceptible of direct proof, expert opinions that the separation of the walls may have resulted from their defective construction or the giving away of the foundation are inadmissible to prove that the walls were defective or that the foundation had given away.</p> <p>5. -: practice. Before a witness will be allowed to give his opinion as an expert upon a state of facts, a knowledge of which he derives from other witnesses, he must be put in possession of all the facts as ascertained or supposed on the question about which the inquiry is made. An opinion given upon a partial statement of the facts would be of no value.</p> <p>6. Master and Servant: duty of master to provide safe place FOR SERVANT TO WORK: PROVISION AGAINST STORMS. It ÍS the duty of the master to provide his servant a safe place in which to work, but he is not required to provide against storms, extraordinary and unprecedented in their character in the locality in question, but only such as could reasonably have been anticipated.</p> <p>7. -:-: -: presumption. The mere falling of a building from its own weight and inherent weakness or from the effect of ordinary storms raises a fair presumption of its insufficiency and unfitness for use. But, where plaintiff’s evidence to prove the-destruction of the building also discloses the fact that it was destroyed during the prevalence of an unprecedented storm of sufficient violence to tear away a span of a bridge across the river and demolish a number of other buildings in the locality, the destruction of the building in question must be primarily attributed to the storm-rather than to defects in the building and the use of machinery in it.. The prima facie ease made by the falling of the house is in such case-rebutted and the burden still left upon plaintiff to show the insufficiency and unfitness of the building for the uses to which it was applied.</p> <p>8. Practice in Supreme Court: remanding cause for new trial. Where evidence offered by plaintiff is erroneously held by the trial court to mate a prima facie case without requiring further proof, the supreme court will remand the cause for new trial, as the error was one at law as to what was necessary to be proved by plaintiff, and the evidence offered may not have shown the strength of her • case.</p>

—Hon. C. 0. Bland, Judge. (1) The court erred in striking out the special defense set up in the answer. Laflin v. Railroad, 106 N. Y. 136; Railroad v. Arnold, ,84 Ala. 159. (2) First. An agreement to admit that the absent witnesses named in an application for a continuance would, if present, testify to the facts set out in the application, concedes the sufficiency of the application. Revised Statutes, 1889, see. 2127, p. 557; State v. Loe, 98 Mo. 609.

—Hon. James M. Sandusky, Judge. In this equitable proceeding the plaintiff seeks to set aside, on the ground of fraud on himself and other creditors, a deed executed by Mrs. Wing, 'the mother, to her daughter, the defendant, Mrs. Free, on the third day of November, 1884. Mrs. Wing died intestate in March, 1885.

—Hon. D. P. Steatton, Judge. No jurisdiction was ever acquired in the tax suit in question. The statute, Revised Statutes, 1889, section 2027, had not been complied with, hence there was no-basis for an order of publication, the petition in said case being unverified and containing none of the allegations required by said section. State ex rel. v. Staley, 76 Mo. 160; Quigley v. Bank, 80 Mo. 297; Charles v. Morrow, 99 Mo. 646, and cases there cited.

<p>1. Pleading: negligence: railroad. A petition in an action against a railroad for personal injuries caused by tie company’s negligence in running over plaintiff’s leg when he was in a known exposed position in its yards is not fatally defective because'it does not aver whether plaintiff’s relation to the company was that of trespasser or servant.</p> <p>2. Negligence: railroad: evidence. The trial court did not commit error in the admission of evidence that the engineer and fireman were in charge of the colliding engine.</p> <p>3. -: -: -. Nor was there error in the admission of evidence as to plaintiff’s occupation before the injury and as to the state of his health, these being facts necessary to enable the jury to estimate the damages, if any.</p> <p>4. Evidence: waiver. The admission of evidence previously excluded renders the propriety of the exclusion immaterial.</p> <p>5. Negligence: railroad: trespasser: question for jury.—The evidence tended to show that plaintiff stepped on defendant’s track in its yard, that almost immediately the engineer of the approaching locomotive sounded the danger whistle, when plaintiff turned his head and looked back in the direction of the engine and at once fell backward on the track and seemed to be struggling to get off, that the train was running from seven to twelve miles an hour and could have been stopped in a distance varying from seventy-five to four hundred feet, but that the engineer did not reverse the locomotive or apply the sand box and ran over plaintiff’s leg. Held, that even if plaintiff was a trespasser it was for the jury to determine whether the company’s servants used ordinary care, after plaintiff's peril became known, to avert the accident.</p> <p>6. ■-■:-:-. The engineer after seeing plaintiff’s exposed position was required to use all means in his power consistent with his own safety and that of those on board to avoid injuring him.</p> <p>7. -: -: -. The engineer was not required to stop his train until he saw plaintiff was in a condition of peril.</p> <p>.8. -: -: INSTRUCTION: ERROR IN APPELLANT’S FAVOR. An instruction given at defendant’s instance which exonerated the company from liability unless the injury to plaintiff was wilfully committed, although erroneous and also inconsistent with instructions given in the ease, will not cause a reversal of the judgment, it being error in appellant’s favor.</p> <p>9. Negligence: trespasser. The law is well settled in this state that the defendant is liable even to a trespasser if it fail to use ordinary care to avoid injuring him after discovering his peril.</p>

—Hon. John W. Wofford, Judge. The defendant, a negro,indicted for the murder of one of his own race, George Cameron, by shooting him with a pistol, being put upon his trial, was found guilty of that offense in the first degree, and judgment having been rendered on the verdict and sentence passed upon him, he appeals to this court. The indictment is in due form and the verdict complies with the law in specifying the degree of the crime of which the defendant was found guilty.

—Hon. J. M. Sandusky, Judge. (1) The circuit court erred and improperly and unsoundly exercised its discretion in overruling appellant’s motion to reopen the case and permit Thomas B. Rogers to testify. 1 Thompson on New Trials, sec. 348; Walker v. Walker, 14 Ha. 250; Hilliard on New Trials, sec. 62, p. 331; Worthington v. Hiss, 70 Md. 172; 19 Md. L. J. 919; 16 Atl. Rep. 534; 17 Atl. Rep. 1026; West v. Cameron, 39 Kan. 736; 18 Pac. Rep. 894.

Certified from St. Louis Court of Appeals. Cl) The court erred in admitting in evidence tlie certified copy of the deed of trust. Sufficient foundation was not laid therefor. (2) The minor appellants had and have a homestead right in the property, and nothing their mother could do could prejudice them, and hence it was error to permit respondent to testify in regard to Mrs. G-ieselmann paying him rent.

<p>1. Practice: deposition of party: statute. A defendant -who is made a party to a suit after other defendants have taken plaintiff’s deposition is not bound by such previous testimony, but may require him to testify again. Revised Statutes, 1889, see. 8920.</p> <p>'2. -: -: -. The fact that the attorney for some of the defendants stipulated with plaintiff’s attorney to continue the cause until the supreme court should decide another suit then pending, afforded no reason why the defendant subsequently brought in or the other defendants should not prepare for trial by taking plaintiff’s deposition as authorized by the statute. Revised Statutes, 1889, sec. 8920.</p> <p>3. -: subpoena: service by party to suit. The service of a subpoena may, under Revised Statutes, 1889, sec. 8937, be made by a party to the suit.</p> <p>■4. -: TENDER OP MILEAGE AND FEES: NON-RESIDENT WITNESS. The provision of the statute requiring mileage and fees to be tendered a witness residing over forty miles from the place of trial does not apply to a witness residing without the state.</p> <p>■ 5. -: REFUSAL OP PARTY TO TESTIFY: DISMISSAL OF CAUSE: DISCRETION. The trial court held, under the facts of this case, not to have abused its discretion in refusing to reinstate plaintiff’s cause, it having been dismissed and judgment rendered for defendants under Revised Statutes, sec. 8924, because of plaintiff’s refusal to testify -by deposition as required by one of the defendants.</p>

—Hon. W. D. Hubbard, Judge. (1) The court erred in overruling the motion to strike out part of the separate answers. (2) The misrepresentations complained of, made by Onstott and Smallstig, were simply puffing their wares, promissory in their character, and not representations of any existing state of facts. Evidence of fraud must be clear and convincing. Dunn v. White, 63 Mo. 186; Jackson v. Wood, 88 Mo. 76; Keiser v. Gammon, 95 Mo. 219.

—Hon. Joseph Cbavens, Judge. The trial court certainly misconceived the testimony and the law. The plaintiff certainly made a prima facie case. Bale v. Faivre, 43 Mo. 556; Bavis v. Thompson, 56 Mo. 39; Norfleet v. Bussell, 64 Mo. 176; Crochett v. Morrison, 11 Mo. 3; Schultz v. Arnot, 33 Mo. 172; Bledsoe v. Simms, 53 Mo. 305; 6 American & English Encyclopedia of Law, p. 227; Christy v. Scott, 14 How. (U. S.) 282.

'-—Hon.' D. P. Stratton, Judge. (1) The sale of real estate by an administrator without an order of court to sell, is void, and an administrator’s deed will not pass title to land not described in the order of sale. Greene v. Holt, 76 Mo. 678; Evans v. Snyder, 64 Mo. 516; Henry v. McKerlie, 78 Mo. 433.

<p>1. Taxes: prior lien. Unpaid taxes constitute a lien on the land which is prior and paramount to all other liens.</p> <p>2. Tax Lien: Judgment: notice. A tax lien is created and disclosed by public records and one who buys the land from the owner purchases with notice of it and of the judgment enforcing it, and is bound to go further and see whether the judgment has been satisfied; and where such inquiry discloses an execution sale of the land, he takes with notice of it and.is bound by it, and, as between him and those claiming under the sheriffs deed, he has notice of such deed although not recorded at the time of his purchase.</p> <p>3. -: -: -: relation. In such case, even had the sheriff failed to execute the deed until after the purchase from the owner, still the deed, when executed, would relate back at least to the date of the judgment and cut out the purchaser.</p> <p>4. -: -: merger. A tax lien is not merged into a judgment lien, so as to expire in three years, as in case of a general judgment.</p>

—Hon. R. H, Field, Judge. (1) The mechanic’s lien law is to be liberally construed. Be Wittv. Smith, 63 Mo. 263; Gibsonv. Nagel, 5 Mo. App. 597. (2) Stone flagging used as the covering or roof of an area way, which is constructed at the same time as the building and used in connection with it, is properly subject to a lien, although it be outside of the lines of the lot and although it be used as a sidewalk. Pullis v. Hoffman, 28 Mo.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) The circuit court erred in overruling the exceptions of intervenors to the report of the commissioner, and in refusing to decree the sum of $4,282.89 to be a trust fund in the hands of plaintiff for the payment of intervenors’ claim, and in failing to give intervenors a lien thereon prior to the claims of other persons. 2 Story’s Equity Jurisprudence [13 Ed.] sec. 1231, p. 577; Pinch v. Anthony, 8 Allen, 536; 1 Jones…

<p>Railroad: condemnation proceedings. Certain condemnation proceedings held valid upon the principle declared in Railroad v. Shambaugh, 106 Mo. 557.</p>

—Hon. W. N. Evans, Judge. It was said in Logan v. Barton Co. Cowrt, 63 Mo. 340, that the collector was “not only authorized but required to receive county warrants in payment oí county taxes,” notwithstanding the warrant in that case was more than ten years old. United States v. Macon Go., 45 Fed. Rep. 400; Revised Statutes, 1889, sees. 3205, 7604.

—Hon. C. A. Anthony, Judge. This present action cannot be maintained because the original judgment is absolutely void for two reasons : First. Because the petition upon which the judgment was rendered was radically and fatally defective in failing to state a cause of action. Second. Because the plaintiff, Holt county, had no interest in the subject-matter, directly or indirectly, and no authority under the law to maintain such an action.

Avpetil from Jackson Circuit Court.—Hon. John W. Henry, Judge. (1) The sole question in this case is whether Dickinson’s knowledge of the contemporaneous contract, showing for what the note was given, can be imputed to the bank. (2) Dickinson acted for the bank when he fixed the rate of discount (a material matter) and attended to the necessary preliminaries. When so acting his knowledge was that of the bank.

—Hon. John L. Thomas, Judge. (1) The petition of plaintiff does not state a cause of action. First. For the reason that it states no equity. It does not state facts showing either a mutual mistake of the parties or fraud on the part of the defendant Deal. The general allegation of fraud or mistake is not enough. Bliss on Code Pleading [2 Ed.] sec. 211. Second.

—Hon, Thos. H. Baoon, Judge. (1) The court erred in permitting the paper writing called the will to be admitted in evidence. The attesting witnesses were not questioned as to the testator’s sanity and said nothing on the subject. See Revised Statutes, 1889, sec. 8870: Swift v. Wiley, 1 B. Mon. 114; Senish v. Nason, 22 Me. 441; Heed v. Watson, 27 Ind. 448.

—Hon. D. P. Stratton, Judge. (1) This action is one at law, based upon a contract sued upon, introduced in evidence and relied upon by plaintiffs, which contract provides, “that the ties are to be subject to inspection by any inspector ■defendant might be pleased to furnish.” Plaintiffs themselves testified that defendants accepted' and paid for all the ties that passed inspection; therefore plaintiffs cannot recover on said second assigned breach.

Louis City Circuit Cotirt — Hon. James E. Withrow, Judge. ■ (1) The court erred iu excluding testimony of the witness Anna Steinhauser. (2) The court erred in refusing'to permit plaintiff to file the amended petition. Weber v. Railroad, 83 Mo. 262; Carrv. Moss, 87 Mo. 447; Blair v. Railroad, 89 Mo. 383; McMurry v. Martin, 26 Mo. App. 437. (3) The court erred in excluding testimony of the witness Michael Steinhauser and also of Susan Goetz.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. Aefibmed. (1) Section 6023, Revised Statutes, 1889, provides that “if one or more plaintiffs in a judgment or decree shall die before the same is satisfied or Carried into effect, the judgment or decree, if concerning the personalty, shall survive to the executors or administrators of such deceased party.” Gaston v. White, 46 Mo. 489; Welch v. City, 12 Mo. App. 516; Simmons v. Hernán, 17 Mo.

<p>1. Practice: plat: evidence: exceptions. The objection that a plat or survey of a street was improperly admitted in evidence in an action for damages against the eity, because it had never been acknowledged or recorded and was not the official map of the county Purveyor, cannot be reviewed on appeal, where, the plat is not incorporated in the bill of exceptions.</p> <p>2. -: presumption. It devolves upon a party who alleges error to establish it, and, where this is not done, it will bo prosumcd that the ruling of tho trial court was correet.</p> <p>3. Municipal Corporations: streets and sidewalks: negligence. Municipal corporations are bound to keep their streets and sidewalks in a reasonably safe condition for the convenience of travel, either by day or by night; in failing to do so they become liable for all resulting injuries suffered without fault or negligence of the injured party; and this is so notwithstanding the person traveling along the sidewalk on a dark night was injured at a place he knew to be dangerous and unprotected by a railing.</p> <p>4. -: -: --r evidence. Plaintiff’s knowledge of the dangerous condition of the sidewalk at the point where he was injured' is admissible in evidence in an action for the injury for the purposo of showing contributory negligence on his part.</p> <p>5. -: -•: -: -. The fact that one of plaintiff’s attorneys, in an action for damages against a city was city attorney at the time of the accident and procured the passage of an ordinance with regard to the street upon which the accident occurred, can in no way affect plaintiff’s rights, and evidence of such fact is properly rejected.</p> <p>C. -; practice: estoppel. Where defendant was sued and summoned as a corporation, ajipeared, filed answer and defended as such and failed to deny under oath the allegation that it was a corporation, as required by statute (Bevised Statutes, 1889, sec. 2186), and was shown to be in the full exercise of its corporate power, it will be estopped from denying on appeal that it had been incorporated.</p>

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) The duty of making a valuation and assessment of all taxable property within the state is by .general statute imposed uponN the various county assessors. Revised Statutes, 1889, sec. 7564.

—Hon. Joseph Cravens, Judge. Appellant could not take an appeal on the plea in abatement until after the trial on the merits. Consequently an order of the circuit court allowing an appeal before the trial on the merits is void. Revised Statutes, sec. 562, p. 226; Fagley v. Vail, 11 Mo. App. 601; Duncan v. Forgey, 25 Mo. App. 310; Metzenberger v. Keil, 31 Mo. App. 130.

—Hon. W. N. Evans, Judge. (1) The widow is entitled to dower when there is a seizin by the husband during the marriage, and unless it is relinquished by the wife in the manner prescribed by law it becomes absolute at the husband’s death, and the husband by no act of his during his lifetime could defeat it. Revised Statutes, sec. 4525; ■ Grady v. McCorhle, 57 Mo. 172. (2) Is the widow estopped by any act of hers? We think not.

Louis City Circuit Court.—Hon. J. E. Withrow, Judge. (1) It is a well settled rule in this state that a preference of a bona fide creditor by an insolvent debtor is lawful and valid, and a corporation debtor has hitherto not been excepted from this rule. Foster v. Planing Mill, 93 Mo. 79; Shelly v. Boothe, 73 Mo. 74; Dougherty v. Cooper, 77 Mo. 528.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action against Heman Construction Company, and the proof made did not make a prima facie case against the Heman Construction Company. Hudson v. Railroad, 14 S. W. Rep. 20; 1 Shearman & Redfield on Negligence, secs. 25, 26 and 96.

—Hon. John W. WOEEORD-j Judge. (1) The court should have sustained appellant’s motion to quash the indictment. In all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation. (Bill of Rights, sec. 22.) In indictments for felonies greater strictness is required than for misdemeanors. State v. Pemberton, 30 Mo. 376.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) Before any final judgment can be rendered against an infant he must be served with summons. Bevised. Statutes, 1879, sees. 3345-6-7; Smith v. Davis, 27 Mo. 298; FulTbrightv. Cannefox, 30 Mo. 428; Shaw v. Gregoire, 41 Mo. 407; Railroad v. Campbell, 62 Mo. 585; Campbell v. Gas Light Co., 81 Mo. 366; Sargeantv. Roivsey, 89 Mo. 617; Hullv. Gavanagh, 6 Mo. App. 147; Nagal v. Shilling, 14 Mo. App. 576.

—Hon. Richard Field, Judge. (1) A school district in this state is a creation of the statutes, with its powers explicitly defined by the statutes under certain constitutional restrictions. It follows, therefore, that its powers are limited by law to those which are expressly conferred by the statute; and the manner of putting in operation its statutory powers is confined strictly to the mode pointed out in the statutes. Buchanan v. School District, 25 Mo. App. 85.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) The defense pleaded in the answer is not a counter-claim existing in favor of the sureties. It would not be a counter-claim in favor of William E. Davidson, If alive, or in favor of his executor if he were a party against whom a judgment is asked.