Volume 121 — Missouri Reports

<p>1. Railroad: negligence: Receivers. Receivers who have exclusive charge and control of the property belonging to a railway company and of the management of its business, are hound to exercise the same degree of care required of its hoard of directors and are in like manner, liable, in their official character, for injuries resulting from the negligence of themselves or their agents and employees.</p> <p>2. Practice: receivers: act op congress. The act of congress of March 3, 1887, permitting suit against a receiver without the authority of the appointing court for any act of his in conducting the business connected with the property in his charge applies to a passenger’s action for injuries caused by failure to repair a station platform. .</p> <p>3. -: personal injuries: surgical examinations. The trial court can, in a personal injury action, direct a personal examination of the plaintiff by special physicians appointed by the court.</p> <p>4. Railroad: passenger: platform: negligence. A carrier of passengers owes ■ to those approaching or leaving its trains the duty of keeping its station platforms in a reasonably safe condition for convenient use.</p> <p>5. -: -: -: -. A passenger, when leaving a train, has the right to assume, in the absence of information to the contrary, that the platform is in such reasonably safe condition.</p> <p>6. -: -: -: -. It is gross negligence on the part of the receivers of a railroad company to permit a hole eight inches wide and six feet long to remain in the floor of a part of its station platform, commonly used by passengers, for the period of four days after knowledge of its condition by their agents.</p> <p>7. —-: -: -: instruction. Where the evidence in an action by a passenger for injuries sustained from falling into such hole is conflicting as to whether he was injured in the spine and hips, an instruction assuming the existence of such injuries and leaving to the jury merely the question of injuries because of being ruptured is erroneous.</p>

Lotus City Circuit Cotvrt. — Hon. Jacob Klein, Judge. (1) The court erred in the matter of the measure of damages.

— Hon. J. H. Sloyeb, Judge. (1) A city is under obligation only to keep its streets in a condition reasonably safe for persons using them with ordinary care. Blake v. St. Louis, 40 Mo. 569; Brennan v. St. Louis, 92 Mo. 487; Mans v. Springfield, 101 Mo. 613; Walker v. City of Kansas, 99 Mo. 652; Hanniforcl v. Kansas City, 103 Mo. 181.

— Host. Richard Field, Judge. (1) The question of interest should have been left to the jury under Revised Statutes, 1889, section 4430, authorizing allowance of interest, if the jury shall think fit to allow it. • See Riggins v. Sargent, 2 B. & C. 384. Interest is the creature of the statute, and in no case not provided for by statute can it be recovered.

<p>Appeal from St. Louis City Circuit Court. — Hon. D. D. Eisher, Judge.</p> <p>(1) That the records of the board contained sufficient authority in writing to satisfy the statute of frauds, will very clearly appear from an examination of the following authorities. Tufts v. Gold Mining Co., 14 Allen, 407; Chase v. Lowell, 7 Cray, 33; Waterman on Spec. Perf. of Contracts, sec. 242; Argus v. Mayor, 55 N. Y. 500; Himrod v. Railroad, 22 Ohio St. 457; 1 Reed on Statute of Frauds, sec. 340. (2) The evidence' shows that the board approved of the sale. (3) l&r. Player was, in August, 1890, the secretary of the defendant, was the person who kept its books and records, and the one person above all others who had apparent authority to notify plaintiff what the action of the board was as to this land. His declaration is clearly within the scope of his authority and operates as an estoppel against the corporation. Bigelow on Estoppel [5 Ed.], p. 598, reads: “The rule of estoppel "between parties covers, of course, the misrepresentations of agents, even agents of corporations, when made in the scope of their employment. Where an agency really exists, the principal is estopped to deny •the truth of thé agent’s statements, express or tacit, Just as much as if he had himself made them, subject to the same limitations that would prevail in that case. 'Thus, a county or a city or other municipality mgy be ■.estopped by the conduct of its- agents.” See, also: .Sexton v. Chicago, 107 Ill. 323; Cooh v. Harms, 108 Ill. .151; Chicago v. Railroad, 105 Ill. 85; Chicago v. JicGraw, 75 Ill. 566; 1 Dillon on Mun. Corp. [4 Ed.], p. 382, note.</p> <p>(1) No contract for the sale of lands made by an .agent is binding upon the principal, unless such agent is authorized in writing to make said contract. R. S. 1889, sec. 5186. (2) The question of the statute of ■frauds was properly raised by general denial. Springer ■p. Kleinsorge, 83 Mo. 152; Allen v. Richard, 83 Mo. 55. (3) The sale was made subject to approval by respondent but was never approved by it.</p>

— Hon. James M. Sandusky, Judge. (1) A purchaser at an administrator’s sale buys at bis peril. If be obtains no title, because tbe deceased bad no title, be loses bis money. It is only where tbe ■deceased bad a title to tbe property purchased, and tbe purchaser fails to obtain it by reason of some omission ■or irregularity in tbe proceedings, and has paid tbe purchase price, that be is entitled to an accounting.

Mandamus. (1) The 8256th section of the Revised Statutes of Missouri [Ed. of 1889], amongst other things, provides •as follows: “andprovided that in cases of appeal and ■on motion for new trial the transcript of ' the evidence ■shall be furnished to the defendant upon the order of the court without cost to the said defendant.’1 (2) 'This transcript must be furnished either by the clerk •or the stenographic reporter.

Certified from St. Louis Court of Appeals. (1) Under the condition: “This entire policy shall be void, if any change [other than by the death of the insured] take place in the interest, title or pos-sesssion of the subject of insurance, whether by legal process or judgment or by voluntary act of the insured, or otherwise/’ the will of Anthony E. Trabue and his subsequent death avoided the policy. Sherwood v. Agricultural Go., 73 N. Y. 447; Burbank v. Rockingham.

<p>The Case of Trabue v. Dwelling Rouse Inswanee Company, cmte, p. 75, approved and followed.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The court erred in sustaining the demurrer to defendant’s answer.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The judgment is erroneous, and the circuit court erred in overruling the motion in arrest of judgment because, upon a road being marked out and surveyed, as prayed for in a petition, to establish a public road, and an assessment of benefits and damages occasioned by the establishment of such road made pursuant to the order of the court, a part only of ■such road can not be established as a public highway.

— Hon. James D. Eon, Judge. (1) Appellants maintain that under the petition and subsequent pleadings in this cause the court should, have re-examined the title to the land described in petition, if for no other purpose than to rightly determine the question of good faith on the part of appellants in making the improvements for which they are asking compensation.

— Hon. James D. Eos, Judge. (1) The supreme court alone has jurisdiction of this appeal, the amount in controversy and claimed by the appellants being largely in excess of $2,500, and the title of real estate (the fixtures in question) being ■directly in issue. Const. 1875, art. 6, sec. 12; Gerke v. Gerke, 100 Mo. 237; State ex rel. v. Lewis, 96 Mo. 146; Co. v. Guggemos, 24 Mo. App. 144; Willi v. Lucas, 40 Mo. App. 70; Gardner v. Terry, 99 Mo. 523; Searen v. Blackwell, 40 Mo.

— Hon. Angus Cox, Judge. (1) There was no evidence to warrant an instruction for murder in the first degree. The killing was not by means of poison, lying in wait, or in the attempt to perpetrate any of the five felonies mentioned in section 3459, Revised Statutes, nor by any means or in any mode ejusdem generis therewith.

— Hon. Gr. D. Bubg-ess, Judge. (1) Defendant McLeod, in bis separate answer, averred that be was a partner with Sbipp during bis lifetime in tbe business of buying and selling tbe lands in question, and as it was both proved and admitted in the pleadings that Sbipp was dead, McLeod was not a competent witness in the case for any purpose. Chapman v. Dougherty, 87 Mo. 617. (2) The lands in question were not partnership assets.

— Hon. W. I. Wallace, Judge. (1) It is provided by section 5627, Revised Statutes, 1879, that the defendant, Dent, might retain fees by him collected to the amount of $1,100 for his salary for each year he was clerk of the county court.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) It is not true as stated in instruction number 1 given for respondents that “the railroad company is entitled to the exclusive possession and control of its right of way across Clark’s land; and neither Clark nor any one claiming said land, or any part thereof, has a right to cross said railroad tracks, except upon a street or alley.” The appellant railroad company acquires only an easement in the strip of land in…

— Hon. W. W. Edwards, Judge. (1) The hypothetical question as to the distance in which a car can be stopped should embody all the facts relating to the subject. Sewn v. Railroad, 108 Mo. 142. (2) The petition fails to state a cause of action in that it does not state that the deceased was-unmarried. R. S. of Mo. 1889, sec. 4425; Barker v. Railroad, 91 Mo. 86; Sparks v. Railroad, 31 Mo. App. 190; Dulaney v. Railroad, 21 Mo. App. 597; McIntosh v. Rail/road, 103 Mo. 131.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The trial court erred in refusing defendant’s instruction of nonsuit offered at the close of plaintiff’s case and at the close of all the evidence in the case. The evidence failed to show negligence on the part of defendant’s • employees and did show that the negligence of the Missouri Pacific Railway Company’s employees was the cause of the accident.

Louis County Circuit Court. — >Hon. W. W. Edwards, Judge. (1) First. The verdict as to amount of damages is against the law, the uncontradicted evidence and weight of evidence. Second. The jury disregarded the evidence in determining the amount of damages. Lionbergerv. Pohlman, 16 Mo. App. 398; ' Borgraefe case, 22 Mo. App. 148; Reichenbach case, 22 S. W. Rep. 573. Third, the damages are grossly inadequate. Schultz v. Moon, 33 Mo.

<p>1. Notes: defense: bona fide holder. Defendant executed negotiable notes in favor of a life insurance company’s agent with the understanding that the notes were to be returned if policies were not issued on defendant’s application for insurance. The agent agreed to exchange the notes with plaintiff if policies were issued and after their issuance the exchange was effected. Held, that it was no defense to an action on the notes that defendant was induced by the agent to apply for a distribution policy when he intended to apply for an endowment policy and that it was agreed that the notes should not bo used till the policies were delivered and found satisfactory, it not appearing that plaintiff lmew of such representations and understanding.</p> <p>2. -: -: -. Plaintiff was sufficiently diligent in taking the notes, if he inquired whether, the policies had been issued and his indorser owned the notes.</p>

— Hon. E. M. Hughes, Judge. (1) The court improperly ordered a sale of the property upon the undisputed facts shown by the testimony. A division of the property in kind is the primary mode contemplated by the statutes of this state and actual partition, so far as real estate is concerned, is more favored by all of the courts in this country, whenever it is practicable.

Louis City Circuit Cou/rt. — Hon. D. D. Fisheb, Judge. (1) A verdict upon the pleadings and the evidence should have been directed for the defendant upon ■ the grounds: First, of his contributory negligence; second, of the failure to associate in causal relation the speed of the train, and the plaintiff’s injury, (a) Plaintiff admits that it was his positive duty to watch for and keep out of the way of this train as well as all others; that it was plain to be seen, at least,…

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Action on three promissory notes, begun April 30, 1890. Notes dated November 1, 1879; one for $3,000, due one year; other two for $120 each, due six and twelve months. Plaintiff, payee; defendant, maker.

<p>1. Constitution: kailroad: mres: statute. The act of the legislature of 1887 (Laws, p. 101; Ibid., Revised Statutes, 1889, see. 2615) making a railroad company absolutely liable for damage to property from fires communicated by its locomotive is not unconstitutional as-impairing, by subjecting it to an increased burden, the rights given it by its previously granted charter to propel its cars by steam.</p> <p>2.-: -: -: --■. Such law is not unconstitutional as denying to the company the equal protection of the laws.</p> <p>3. -: -: -: -. Nor is it unconstitutional on the* ground that it deprives the company of its property without due process of law.</p> <p>4. -: -: -: negligence. The liability under the statute for the injury resulting from fire being an absolute one, proof of diligence and care on the part of the railroad does not relieve it from, liability.</p> <p>5.- -: -: -: insurance. Where the statute making a railroad company liable for injuries to property caused by its locomotives setting fire thereto gives them an insurable interest in property along their routes, it is no defense in an action for destruction of trees, shrubs and plants that their insurance was impracticable, and evidence in support of such defense is properly excluded.</p> <p>6. -: -: -: contributory negligence. The iaet that plaintiff permitted weeds to remain on his land adjoining the company’s right of way after they had become dried does not show such contributory negligence as will defeat or lessen his recovery in such action.</p> <p>7. -: -: -: negligence. Where a statute makes a railroad company an insurer against fires communicated to property by its locomotives, no negligence short of fraud will bar a property owner’s right to recover for loss arising from such fires.</p> <p>8. Railroad: eires: statute: damages. Although a statuteNmakes railroad companies liable for fires communicated to property by their locomotives and gives them an insurable interest in property along their routes, a company which has not so insured is not entitled, in an action against it for damages arising from such fire, to an abatement to the amount the property owner has received on his own insurance.</p> <p>9. -: -: --- — —. Nor is it a defense to such action that in the condemnation proceeding brought by the railroad for a right of way through plaintiff’s land, he claimed and was allowed compensation for damages from “fire for all time to come.”</p>

— Hon. E. L». Edwards, Judge. (1) Where the evidence was very close, as in this case, as to whether the defendant’s engine set fire to the buildings or whether they took fire from other-causes, and where the evidence did not show from what particular engine or engines the fire escaped, it-was prejudicial error to permit the witness, Mrs. Greenup, to testify that, about two weeks before this fire, cinders from some one of defendant’s engines set. fire to some corn .shucks in…

— Hon. Henry M. Ramey, Judge. (1) The evidence adduced by plaintiff was competent and sufficient to establish the south boundary on the north line of the private road as the one intended to be described in the deed. Jones v. Poundstone, 102 Mo. 240; Turner v. Baker, 64 Mo. 218; Fuchv. Treat, 41 Wis. 404; Broadway v. Buxton, 43 Conn. 282; Andretos v. Andrews, 81 Me. 337; Boot v. Cincinnati,. 54 N. W. Rep.

.Appeal from Franlclin Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) A legislative act which concerns the public generally is a public act of which the courts taire judicial notice. Potters Dwarris on Statutes, p. 53. (2) Courts take judicial notice of such events as form, a part of the history of the state, of geographical facts, and of the state’s disposition of public lands.

<p>1. Mechanics’ Lien: Remedial legislation. The mechanics’ lien law should be liberally construed as remedial legislation.</p> <p>2. -: parties: prior mortgagee. Under a law declaring that all persons interested in the land charged with the lien may be made parties to a suit to enforce it, but that “such as are not made parties shall not be bound by any such proceedings” (R. S. 1889, see. 6713), field, that the interest of a mortgagee under a prior mortgage of the land on which the lien is claimed is not affected by a judgment of lien against the land or buildings thereon in proceedings to which he was not a party.</p> <p>3, -: mortgage: priority. The lien law enters into a mortgage subsequently made, in respect of property to which that law applies, but the priority of a mechanic’s lien upon buildings as against,the holder of an earlier incumbrance must be established in the mode prescribed by the law.</p> <p>4, -: building. Under the mechanics’ lien law of this state, a lien may be fixed upon a building, although the entire land may not be subject to the indebtedness.</p> <p>5, -: notice. A law sanctioning a charge upon property without. notice to the owner or an opportunity for a hearing would have to be at least very clear and leave no reasonable room for any other construction.</p>

<p>The Case of Hides v. Scofield, ante, p. 881 followed and affirmed.</p>

— Hon. H. C. O’Bryan, Judge. (1) The deed from Henry Blessing and wife to their children, Charles and Sarah, who were then, respectively, about thirteen and fifteen years of age, is a voluntary deed, and, as such, void as to creditors, prior and subsequent. R. S. 1889, sec. 5170; Snyder v. Free, 114 Mo. 360.

— Hon. C. C. Bland, Judge. (1) The appellant offers the following authorities on the objectionable evidence admitted by the trial court. It is error to permit the state to give evidence of otfyer acts, committed at other times, upon other persons. State v. Turner, 76 Mo. 350; State v. Beams, 71 Mo. 420; State v. Greenwacle, 72 Mo. 299; State v. Beed, 85 Mo. 194.

— HoN. P. C. Stepp, Judge. The first count in the indictment, the one under •which defendant was convicted, is fatally defective, in that it fails to charge that the assault was done with a felonious… Held: that a new indictment may he preferred against him.

Louis Criminal Court. — HoN. H. L. Edmuííds, Judge. The defendant, a G-erman, indicted for the murder of Cora Thompson, a negress, by shooting her with a pistol, was convicted of that crime in the second degree, his .punishment being assessed at twenty years’ imprisonment in the penitentiary, and he appeals to this-court.

— Hon. J. W. Henry, Judge. (1) On the pleading and evidence the decree should have been for the'plaintiff; and the court erred in rendering the decree it did; and erred in refusing to grant appellant’s motion for a new trial.' See authority cited below. (2) A deed obtained by fraud would be void. It would be a fraud if falsely read to a person and the person induced to sign it.

Louis Criminal Court. — Hon.'Henby L. Edmunds, Judge. (1) The motion for new trial does not assign as error the exclusion of any testimony offered by the defendant, but only the admission of improper evidence over his objection. The record discloses that the only evidence thus admitted, to which any exception was saved, was the dying declaration. There was no error in the admission of this statement of deceased.

— Hon. J. J. G-ideon,. Judge. (1) The record proper clearly shows that the bilí of exceptions was not filed within the time allowed by •court. This being true, the judgment must be either .affirmed or reversed upon the record. State v. Britt, '23 S. W. Bep. 771; State v. Seaton, 106 Mo. 198; State ■ v. Mosley, 22 S. W. Bep. 804; State v. Apperson, 22 S. W. Bep. 375; State v..

— Hon. C. A. Anthony, Judge. The defendant was convicted of forgery in the third degree, and his punishment assessed at two years imprisonment in the penitentiary, and he appeals to this court.

Louis Criminal Court. — Hon. H. L-Edmunds, Judge. (1) Defendant proved by the record of the church,, that the prosecutrix was born the last of May, 1874, so-that at the time of the alleged seduction (latter part of July or August, 1892), she was over eighteen years-old; hence the defendant could not be guilty. This record evidence is in due form (sections 4848, 4849), complies with the statute and was admitted without objection.

— Hon. Joseph E. Black, Special Judge. (1) On the evidence the judgment ought to be reversed, the facts not warranting the decree entered. (2) No fraud can be predicated of a neglect to pay a debt. (3) The concession made by plaintiff that the trustee and cestui que trust acted in all things Iona fide operates to preclude him from relief in this suit. (4) The Sextons should have been made parties.

— How. ~W. ~W. Rucker, Judge. The indictment in this case charges no crime. It alleges a promise of marriage made by appellant “to one Annie Mason,” but fails to allege who it was he seduced! The judgment should be reversed. The indictment in this case follows the language of the statute creating the offense, clearly charges the crime of which defendant has been convicted, and gave notice to him of the accusation he was required to meet. R. S. 1889, sec. 3486.

Certified from St. Louis Court of Appeals. (1) At common law a person using dangerous instruments or mechanisms does so at his peril, and is responsible for any damages not caused by natural occurrences, or by the interposition of strangers. .Wharton’s Law of Negligence [1 Ed.], p. 716, sec. 851.

— Hon. J. M. Sandusky, Judge. (1) The court erred in giving instruction number 3, above set out, of its own motion, because said instruction is calculated to mystify and mislead the jury and did mislead the jury, as to the facts necessary to be found by them. He should have given instructions 1 and 2 asked for by plaintiff. Thomas v. Babb, 45 Mo. 384; Jacobs v. Moseley, 91 Mo. 457; Keenv.

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. Indictment in two counts, the first charged defendant with having abducted Maggie Leona Centennial Roots, a female, etc., for the purpose of prostitution; the second count for the purpose of concubinage, under which count defendant was tried and convicted, and his punishment assessed at five years’ imprisonment in the penitentiary.

— Hon. R. H. Field, Judge. (1) This was an executed contract and defendant had a right to make his proffered conveyance to plaintiff, his immediate grantee, correcting the error in his former deed — if it was erroneous, for it was a mutual mistake of fact — and make it conform to the original contract, and convey to plaintiffs the identical lot, thirty-four and one-half feet frontage, that they purchased, of which particular lot possession was given to, andis still held and…

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. (1) The court erred in refusing appellant’s instruction in the nature of a demurrer to the evidence at the close of the state’s case. (2) The court erred in instructing the jury upon the question of grand larceny as there was no proof that the watch was worth more than $3.50. (3) The court erred in its instruction to the jury upon the petit larceny theory dn using the word feloniously.

— Hon. John W. Wofford, Judge. With two others, defendant was indicted for'the murder of one Jane Wright by choking her to death. This murder was committed for the purpose of robbery. Deceased was an aged woman, owner of an employment agency in Kansas City,Missouri, who had at the time of the murder, accumulated considerable money, - which she carried around with her concealed in her clothing and abopt her person.

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. (1) The indictment is not had for duplicity, since the offenses of burglary and larceny may properly be •charged in the same count. R. S. 1889, sec. 3529. 'The burglary is charged in the language of the statute. R. S. 1889, sec. 3520. The charging of a former conviction is not the charging of another offense. “It is only the averment of a fact which may affect the punishment.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Tbe trial court erred in refusing the plaintiffs* instruction marked 1, and in giving the instruction of its own motion, holding that by the plat of October 18, 1867, the land here sued for was dedicated under the statute of the state. First. The land in question was not included in the subdivision made by the plat. Second.

— Hon. John W* Woffobd, Judge. Defendant was indicted for the crime of murder in the first degree, perpetrated by shooting with a revolver, Gerald Olune. Nora Jones, his paramour, was indicted as an accomplice in the crime.

— Hon. John W. Wofford, Judge. (1) The court erred in permitting the. Whalen letters to be received and read in evidence over the objection of the defendant. 3 Greenleaf on Evidence [13-Ed.], sec. 92; 1 Ibid., sec. Ill; State v.Daubert, 42Mo. 239; State v. Walker, 98 Mo. 95; State v. Melrose, 98-Mo. 594; Ledford v. State, 55 N. W. Rep. 263.

— Hon. John W. ■Woeeobd, Judge. (1) It is well settled that what is said and done hy a conspirator after the crime is committed and not in the presence of the other is not admissible in evidence against one not making the statements or admissions. State v. Minton, 116 Mo. 605; State v. Hildebrand, 105 Mo. 318; State v. Melrose, 98 Mo. 594. (2) In criminal cases the admission of improper testimony is not cured by an instruction excluding it.

— Hon. E. M. Hughes, Judge. (1) In order to render the master liable for the negligent act of his servant, the act of the servant must be done in the course of Ms employment. The master is never liable for the acts of the servant, which are not connected with the particular service he has employed the servant to perform. If the negligence occurred' while the servant was doing something inconsistent with his duty to his master, the master can not be held liable.

T — Hon. John E. Ryland, Judge. (1) The fifth instruction for the state is misleading, in that it leaves out of view the question of intent, which is the very essence of this case. (2) The fifth, seventh and ninth instructions for the state tend to confuse the jury as to what constitutes the offense charged, and give the jury to understand that they may convict, regardless of the intent with which the assault was made.

— Hon. Silas Woodson, Judge. The indictment in this cause charges that Luther Moberly, Joseph Howard and Dena Elliott, on the twenty-fourth, of April, 1891, made a felonious assault on Emmett 0. Wells, by shooting him with a shotgun. A severance being granted defendant, he was put upon his trial and a mistrial was the result; this was in 1891.

Louis Circuit Court. (1) The two orders of the county and district courts of Butler county purporting to subscribe to the capital stock of the Cairo & Fulton Railroad Company are dated October 24,1854, and December 6, 1855, •respectively. These subscriptions were, therefore, not made under the acts of December 7, and December 10, 1855, or either of them.

— Hoe. Richard Field, Judge. (1) The circuit court erred in sustaining the demurrer to the petition. The facts stated entitled the plaintiff to equitable relief. The deed of trust was apparently valid. All the parties acted under a mistake of fact, and under the mistaken belief that the deed of trust was for a Iona fide debt. The sheriff’s sale should be set aside. A court of equity will interfere in cases of mistake.

Charles Circuit Cowrt. — Hew. E. M. Hughes, Judge. (1) The 'court below erred in refusing to give defendant’s instruction, in the nature of a demurrer to plaintiff’s evidence, at the close of his case. If the engineer negligently performed this duty, it was the negligence of a fellow servant of plaintiff, and he can not recover. McKinney on Fellow Servants, p. 282; Ragsdale v. Railroad, 62 Tenn. 426; Railroad v. Martin, 17 Am. and Eng.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) Appellant was entitled to a trial by jury. Constitution of Missouri, art. 2, sec. 28; R. S. 1889, sec. 7145; 4 Kent’s Com., 412, and cases cited. (2) Equity would never decree a partition until title bad been settled by a jury. 4 Kent’s Com., 412, and cases.

— Hon. M. G-. McG-begob,. Judge. (1) The trust of the legal estate results to the man who furnishes the purchase money. Story’s Equity, sec, 1201. It is presumed that the conveyance to the third party is a matter of convenience. Ibid. The controlling question in inquiries of this nature, is the ownership of the purchase money. When this fact is established the trust is established by implication of of law.

— Hon. James H. Sloveb, Judge. (1) The court erred in admitting the trustee’s deed, from Nat. H. Yincent to Mary S. Morgan, dated February 14, 1887. R. S., sec. 7093. (2) The court erred in finding appellants bound by the settlement of' December 3,« 1888. It was not their voluntary act. Davis v. Luster, 64 Mo. 45; Turley v. Edward, 18 Mo. 677; Collins v. Westlery, 2 Bay, 211; Eadiev. Slimmon,. 26 N. Y. 12; Miller v. Miller, 68 Pa. St. 486; White v.. Reylman, 34 Pa.