Volume 92 — Missouri Reports

— Hon. Qavon D* Burgess, Judge. (1) The judge erred in considering and deciding the question of jurisdiction on the motion. R. S., sec. 5550 j State v. Sherwood, 42 Mo. 179. (2) The judge erred in construing and applying the statute defining and fixing the tribunal before which the case should be heard and determined. R. S., sec. 5554.

— Hon. James D. Fox, Judge. (1) The appointment of Spickerman as guardian was made in April, 1883. The application to set aside- and annul such appointment was not made until May, 1884, and after a lapse of four several terms of said probate court, and it was too late for the probate judge-to say he had not, as judge, approved his acts as clerk, if any such approval was necessary. Jones v. Hart, 60-Mo. 351; Wilson ®.

— Hon. Noai-i M. GI-ivan, Judge. (1) The agreed statement of facts included all the facts that were before the court, and was equivalent to a special verdict; the motion in arrest called the attention of the court to its errors in the decree. Cage v. Gates, 62 Mo. 412; Shaw v. Padley, 64 Mo. 519. (2) But the errors complained of appear on the face of the record; neither motion for a new trial, nor in arrest, was necessary for an appellate court to review them.

— Hon. GK IT. Burokhartt, Judge. (1) The court erred in refusing to allow a continuance until the succeeding term of the court on the ground set forth in the motion and affidavit of defendant.

<p>1. Homicide: sudden passion : lawful provocation. Passion suddenly aroused from a lawful provocation will reduce a homicide from murder to manslaughter, because there is then no malice aforethought.</p> <p>3.---:---:---: INSTRUCTION. An instruction that there was no evidence to show the existence of such passion, or of a lawful provocation, held improperly given in this case ; such instruction destroying the effect of those given by the court on manslaughter, and the evidence in the case warranting an instruction on murder in the second degree.</p> <p>3. Murder in First and Second Degrees: intent to kill, when presumed. While there can be no murder in either the first or second degrees, without an intent to kill, yet this intent need not always be a specific one ; for where the act is malicious and .manifestly dangerous to human life and produces death, the law will presume the intent.</p> <p>4. Murder in Second Degree : great bodily harm. Where the intent was not to take life, but only to do great bodily harm, it is murder in the second degree if death results.</p> <p>5. ;--. Murder in the second degree embraces all eases of murder at common law in which there was no specific intent to kill, but in which the law presumes an intent to kill, and which are not made manslaughter or murder in the first degree by statute.</p>

Louis City Circuit Court. — Hou. G. W. Lubice, Judge. The only questions presented for consideration in this court, are: (1) If benefits are duly assessed against certain lots, are said lots liable to a special judgment in an action duly brought against the owners of said lots at the time of bringing and prosecuting suit ?

— IIon. O. M.. Spenoee, Judge. (1) The father of appellant having been duly naturalized in 1854, and his mother having been naturalized by the operation of section 2 of the act of congress approved February 10,1855 (10 U. S. Stat. at Large, 604) and the appellant having been under the age of twenty-one years, and having then, and ever since, resided in the United States, he is a citizen of the United States, by virtue of the provisions of section 2172, page 382, of the…

Louis Court of Appeals. (1) The only question before the court on an issue-in a plea in abatement to an attachment, alleging that the defendant has fraudulently conveyed or assigned his property, is whether he has so conveyed or assigned his property, and it is, therefore, entirely immaterial whether the trustee, Schureman, has any title to the-property conveyed here. Binders v. Bichards, 33 Mo. 598.

Louis Court of Appeals. (1) The right to recover the excessive payments made by plaintiff to the defendant is sustained by the decisions; the payments are not considered by the courts as voluntary. Railroad v. Steiner, 9 Law & Eq. Eep. 39; Railroad v. Railroad, 79 111. 121; Hays v. Railroad, 12 Fed. Eep. 309, and note; Nicholson r. Railroad, 5 C. B. [N. S.] 366.

— IIon. John L. Thomas, Judge. (1) The contract was taken out of the operation of the statute of frauds by the act of the defendant in paying part of the purchase money. Galway v. Shields, 66 Mo. 313, and cas. cit.; 3 Pom. Eq., sec. 1297, note 2. (2) The defendant’s taking possession of the real estate, under and by virtue of his contract with the plaintiff for the purchase thereof, removed the case from the operation of the statute of frauds. Young «.

— Hon. J. P„ Strother, Judge. (1) The circuit court erred in admitting the records of the deeds and mortgages instead of the originals. If the original deeds, or mortgages, were lost or destroyed, proof of their loss or destruction should have been made. If they were in existence, but not in possession or power of respondents, steps should have been taken to procure them, or, at least, evidence should have been introduced to account for their non-production in some way.

— Hon. W. P. G-eigek, Judge. (1) Plaintiff Turner cannot recover because Ms demand is stale. 'Plaintiff Howell took his assignment of a half interest subject to all equities urgeable against Turner. The full period of the statute of limitations is not required by a court of equity to bar a stale demand where the circumstances have changed. 1 Story’s Eq.

— Hon. Andrew Ellison, Judge. The tax deed should have been admitted in evidence. The statutes in force at the time of its execution did not prescribe any form for a tax deed. 2 W. S., secs. 110, 111. The recitals in the deed show that the proceedings which resulted in the deed were regular and valid, and the objections made to it were not well taken. Guffey v. O'1 Beiley, 88 Mo. 424; Bailey v.. Guinn, 76 Mo. 263.

— How. Elijah Robiwsow, Judge. (1) The action of the court, in excluding from evidence or exhibition to the court the record of the judgment for appellant on the trial of the issue of attachment, was erroneous, because the facts involved in the attachment were fully tried before a jury and were finally settled. Defendant made no effort to have said trial reviewed, as he might have done under section 439, Revised Statutes, 1879.

— Hon. Elijah Robinson, Judge. (1) The trial court committed error in sustaining the general demurrer. The demurrer ought to be special unless the objection is fatal to plaintiff’s case, as well as to the petition. R. S., secs. 3515, 3516; Almett v. Leper, 48 Mo. 319; McC lurg v. Phillips, 49 Mo. 315 ; Morgan v. Bouse, 53 Mo. 219. (2) Auchley was liable on the bond, as it was agreed at the time of making the contract that Auchley was to be obtained as additional security.

— Hon. Chas. G. Burton, Judge. (1) The evidence of witnesses, Kincaid, Moss and Wells, was incompetent and should not have been admitted against the objections of the defendants. It did not tend to prove any issue made by the pleadings. It is true plaintiff charged that he had been overreached and swindled, but nowhere in the petition does he intimate that the advantage gained over him was on account of his own imbecility. No such issue was tendered.

— Hon. John P. Strother, Judge. (1) Neither of the counts in the petition states facts sufficient to constitute a cause of action. Each shows that the property of defendant was regularly and legally assessed by the state board for each tax year, beginning with August 1, 1875, and ending August 1, 1878.

<p>The Decision in State ex rel. Brown, Collector, v. The Missouri Pacific Railway Company, ante, p. 137, followed and affirmed.</p>

Louis City Circuit Court. — Hon. Wi. H. Horner, Judge. (1) The judgment of the county court in this case-was appealable, there being no provision of law ex-jiressly prohibiting such appeal. R. S., sec. 1210. The appeal was taken in the same manner as an appeal from. a justice of the peace to the circuit court. The case, therefore, should have been tried anew in the circuit court, under section 1210 of the Revised Statutes above referred to.

Louis Court of Appeals. (1) Plaintiffs having bought the land, pending the litigation, cannot maintain this suit. They are purchasers of a mere litigation right. Bispham’s Eq., sec. 166; 2 Story’s Eq. 1040; BeHoughton v. Money Law, 2 Chan. Ap. 160 ; Smith v. Harris, 43 Mo. 557; Wallen v. Railroad, 74 Mo. 522; Railroad ®. Railroad, 20 Wis. 183; Prosser v. Edmonds, 1 Younge and Coll. 481, 499 ; French «. Shotwell, 5 Johns. Ch. 566 ; McMahon ». Allen, 34 Barb. 56; Gardner ®.

— Hon. W. O. Meade, Special Judge. (1) The court erred in overruling defendants’ demurrer to the evidence offered and admitted on part of the plaintiff. (2) The court erred in sustaining the objections of the plaintiff thereto and holding that the first deed offered in evidence by the defendants was void upon its face.

— Hon. W. F. Geiger, Judge. (1) Plaintiff cannot recover in ejectment unless the-legal title was vested in Mm at the time of bringing the suit. Large n. Fisher, 49 Mo. 307 ; Norfleet ». Russell, 64 Mo. 176; Ford n. French, 72 Mo. 250; Dunlap ro. Henry, 76 Mo. 106.

Louis Criminal Court. — Hon. Gr. S. Yah Wagohee, Judge. (1) The court erred in refusing to allow defendant to reexamine the jurors. N. S., secs. 1897,1898 and 1903 ; Const., art. 2, sec. 22; State r. Collins, 86 Mo. 245 ; State v. Culler, 82 Mo. 623. (2) The court erred in permitting Neuben Ward to testify; he was incompetent by reason of his conviction of a felony in 1876.

— Hon. Theodore Brace, Judge. (1) The court erred in giving plaintiff’s second instruction. It is too general and indefinite. It told the jury that if they found certain acts of negligence on defendant’s part, and that plaintiff, while exercising’ due care on his part, fell down the embankment and was injured, they must find for the plaintiff. This is simply an abstraction.

Louis Court of Appeals. (1) Independently of tbe relation of master and servant, defendant, Conlon, cannot be held liable on the-ground that Archibald was Ms agent in doing tbe digging wbicb destroyed tbe building, and acted under bis directions, unless the evidence- showed to tbe satisfaction of tbe jury that defendant either directed, authorized* ratified, or adopted the acts of Archibald in doing said digging.

—Hon. Chas. Gr. Burton, Judge. (1) Tbe judgment of tlie Bade circuit court, in tlie cause of the Merchants' Bank of St. Louis v. John N. Ferguson and Marshall G. Stephens, was not void, and the sheriff’s deed thereunder should have been admitted in evidence, and appellant’s first declaration of law should have been given, and respondent’s seventh should, have been refused.

— Hon. W. F. Geiger, Judge. (1) The relation of landlord and tenant did not exist between the father and son, and plaintiff, therefore, cannot maintain this action. There was no express tenancy. (2) Nor was there an implied tenancy. The payment of rent does not of itself constitute a tenancy, nor is the receipt of rent anything more than a prima facie acknowledgment of tenancy. Taylor on Land, and Ten., sec. 23.

— Hon. F. M. Black, Judge. (1) It was not competent to show by parol evidence that the claim assigned was one against the Arkansas corporation. This is not a case of latent ambiguity. Jackson r>. Sill, 11 Johns. 215 ; Means v. La Vergne, 50 Mo. 343; King v>. Fink, 51 Mo. 209. (2) Defendant’s declaration, number three, should not have been given. (3) The contract with the company by its'terms cannot be assigned.

— Hon. C. H. S. Goodman, Judge. (1) Tlie court erred in admitting parol evidence Of tbe contents of former wills. Ranlcin v. RanMn, 61 Mo. 295. (2) The court below erred in giving defendants’ instructions and particularly the first, which attempts to define sufficient mental capacity and what it takes to constitute undue influence, and by what proof these should be established. Harvey v. JSullens, 46 Mo. 147.

Louis City Circuit Court. — Hon. Wm. H. Horner, Judge. (1) Plaintiff’s instruction correctly states the law of this case as it has been settled by this court. Iron Mt. Bank n. Armstrong, 62 Mo. 70 ; Tumalty n. Bank, 13 Mo. 276; Farmers' Bank n. Garten, 34 Mo. 119, 122. (2) The pleadings tendered the proper issue, to-wit: Did the defendant, under the law and facts shown, indorse the note in suit?

— Hon. J. L. Thomas, Judge. On an appeal from the justice of the peace to the circuit court, the appearance of the respondent, on the second day of the return term, gives him the right to have the cause tried or continued, but does not entitle Mm to an affirmance for failure to prosecute the appeal, and a judgment of affirmance thus obtained is void. Smith v. Railroad, 20 Mo.

— Hon. 3. R. Woodside, Judge. (1) Tlie court erred in excluding the administrator’s deed. Wither son v. Allen, 67 Mo. 502; Bugle r. Webster, 55 Mo. 247; Fénix v. Fénix, 80 Mo. 80. (2) Even though the administrator’s deed had been void, the plaintiff was entitled to judgment, notwithstanding. Boyd v. Jones, 49 Mo. 202 ; Matney v. Graham, 59 Mo. 190. (3) The declaration of law asked by defendant should not have been given. Page v. Hill, 11 Mo. 161; Boyd v. Jones, 49 Mo. 202.

— Hon. F. M. Black, Judge. (1) Instruction number one, asked on bebalf of the plaintiff, should have been given by the court. A mortgagee becomes a trespasser by going upon the premises of the mortgageor, accompanied by an officer having no legal process, and taking possession of property without the active resistance of the mortgageor. To obtain possession under such a show or pretense of authority, is to trifle with the obedience of citizens to the law and its officers.

Louis Criminal Court. — Hon. J. C. Nobmile, Judge. (1) The court erred in overruling defendant’s motion for a continuance. Const, of U. S., amend. 14, sec. 1; Const, of Mo., art. 2, sec. 22; State v. Berldey, ante, p. 41; State v. Jennings, 81 Mo. 193, dissenting opinion of Judge Sherwood. (2) Defendant’s challenges to jurors Lang and Ryan should have been sustained. Maloy v. Duden, 25 Fed.

— Hon. W. W. Edwards, Judge. (1) There is no record evidence of the fact that respondent Block was ever appointed receiver of the Bank of Pike County, or that he was, by order of any court, authorized to sue in his own name to collect any debts or obligations due the said bank.

— Host. E. L. Edwaeds, Judge. The act approved March 29, 1883 (Acts 1883, page 90), under which the defendant was convicted, is amendatory of the act of March 26, 1881 (Acts 1881, page 130), and the act amended is not set forth in full as amended, in accordance with the requirement of section 34, of article 4, of the constitution. See State v. C Tiambers, 70 Mo. 625; Trigg r>. Boonville, 46 Mo. 288.

— Hon. Chas, Gr. Burton, Judge. (1) The report of the referee was equivalent to a special verdict. Held: and the clear weight of authority sustains the doctrine, that, where a person holds an office two successive terms, the securities on his official bond for the second term are only, liable for such moneys as were actually in his hands at the time of the execution of such bond. Arlington v. Merricke, 2 Saund. 403 ; Bruce *.

— Host. J. B. Gantt,. Judge. (1) The deed from Barton Holderman to J. A. is sc voluntary conveyance of the fee-simple absolute, without condition or words of trust, or holding to the use of grantor or others.

— Hon. R. P. Owen, Judge. (1) The judgment is for the plaintiff, when it should have been for the defendant, and the court erred in not instructing the jury to find a verdict for the defendant, as requested to do at the close of plaintiff’s evidence, and of the whole case. Powell v. Railroad, 76 Mo. 83 ; Harris v. Woody, 9 Mo. 113; Commissioners n. Ciarle, 94 U. S. 284.

— Hon. E. L. Edwards, Judge. (1) Plaintiff’s agent, Frost, accepted the bill of lading, without any fraud or imposition being practiced upon him, and without making any objections to its terms. It was, therefore, the sole agreement under which the stock was shipped, and plaintiff is bound by its terms. Hutchinson on Carriers, sec. 265; Lawson on Cont. of Carriers, sec. 102, and authorities cited; Snider ®. Adams Ex. Co., 63 Mo. 376; O Bryan ®. Kinney, 74 Mo. 125; Railroad ®.

<p>1. Corporation: corporate name : duty op secretary op state : mandamus. The secretary of state must exercise his discretion in determining whether a company asking of him a certificate of incorporation has adopted a name that is the same as, or an imitation of, that of an existing corporation, as prohibited by sections 762 and 926, of the Bevised Statutes, and he will not be compelled by mandamus to issue a certificate, until it appears that the law has been complied with by the company in the adoption of its name.</p> <p>2. ---:--. A company organized for the purpose of dealin g in real estate, stocks, and other property in Kansas City, under the name of “ The Kansas Gity Beal Estate Exchange,” will not be entitled to a certificate of incorporation from the secretary of state, under sections 762 and 926, of the Bevised Statutes, when there is already in existence in the same city a duly incorporated company, engaged in the same business, under the name of “ Kansas City Beal Estate and Stock Exchange.” The names are substantially the same.</p>

— Hon. J. M. Davis, Judge. (1) The testimony showed that the fellow-servants of deceased were out upon the track, without written orders, in violation of the rules of the company, and were thereby guilty of negligence, which was the immediate cause of the injury complained of. Thomas v. Railroad, 51 Miss. 687; Woolsey v. Railroad, 33 Ohio St. 227; Wright v. Railroad, 25 N. Y. 562; Wood v. Railroad, 70 N. Y. 195. (2) The train dispatcher and deceased were fellow-servants.

— Hon. Tiieo. Bbaoe, Judge. (1) Tfie admission in evidence on part of defendant of tlie trust deed to Lighter, trustee, and also testimony of the agreement between plaintiff and defendant in regard to taxes, anterior to deed was error. The general denial puts in issue the facts pleaded in the petition, not the liability. Bliss on Code Pleading, sec. 352.

— Hon. John A. Cross, Judge (1) There was no evidence of any statutory dedication, or conveyances of any kind, to Caldwell county, hence a common-law dedication is all that could be claimed, and to constitute such a dedication of private property to public use, two things are necessary: (a) There must be a plain and unequivocal intention, on the part of the owner, to appropriate the property to public use.

— Hon J. D. Foster, Judge. (1) The relations of plaintiff and the defendant to each other being that of partners, the utmost good faith was required of them in all business transactions pertaining to the partnership; each was trustee for the other in the management of the partnership affairs. 1 Story’s Eq. Jur. [8 Ed.] secs 321, 322, 323; Story on Part. [5 Ed.] secs. 174, 348; Jamison v. Glasscock, 29 Mo. 191; Pomeroy v. Benton, 57 Mo. 531.

Louis Criminal Court. — Hon. Gr. S. Van Wagoner, Judge. (1) The appellant was arrested by a police officer, without warrant or other process, and confined in the calaboose for over twenty hours without being charged with any offence, by the oath of a credible person, and was entitled to be restored to his liberty, under section 1490, Revised Statutes, and the motion to quash the indictment and discharge him should have been sustained. State v. Stern, 4 Mo.

<p>Criminal Practice: co-defendant’s evidence. Under Revised Statutes, section 1918, co-defendants jointly indicted with the defendant, but not put upon their trial, are competent witnesses to testify in his behalf.</p>

— Hon. NoahM. Gi-ivan, Judge. (1) An administrator is the trustee of an express' trust, in whose favor the statute of limitations does not commence to run until there is some denial of the trust. Ruby v. Barnett, 12 Mo. 3; Smith v. Ricords, 52 Mo. 581 ; Ricord v. Watkins, 56 Mo. 553 ; Keeton v. Keeton, 20 Mo. 530; Butler v. Lawson, 72 Mo. 227.

Quo warranto. To say that respondent’s term of office is extended to the first day of April is in conflict with section 8, of article 14, of the constitution of the state of Missouri, which provides that the term of no officer shall be extended for a longer period than that for which such officer was elected or appointed. The amendment of section 5362, directly extends the office of treasurer in counties having adopted township organization.

— How. C. C. Bland, Judge. Tlie verdict is not sustained by the testimony, and tlie judgment should be reversed. Instruction number ten is clearly not the law. It assumes that defendant invited or brought on the difficulty. Defendant had a right to arm himself. The deceased had threatened him and tlie nature of the threats had been communicated to defendant.

— IIon. T. A. Gill, Judge. (1) The court erred in admitting the opinions of plaintiff’s witnesses in evidence, as to the comparative safety to employes of blocked, and unblocked, frogs and switches. Hopkins r>. Railroad, 74 111. 32 ; Chicago v. McGiven, 74 111 347. (2) The defendant’s instruction, in the nature of a demurrer to the evidence, should have been given. There was no conflict in the evidence, and nothing for the jury to find. Cummings r>.

— Hon. C. H. S. Goodman, Judge. (1) A tax deed which simply recites that notice of ■sale was given according to law, without reciting the manner of notice, is void. Abbott v. Lindenbower, 42 Mo. 162; Lagroue v. Raines, 48 Mo. 536 ; Bpurlock v. Allen, 49 Mo. 178; Abbott v. Doling, 49 Mo. 302 ; Large ■v. Fisher, 49 Mo. 307 ; Hubbard v. Gilpin, 57 Mo. 441.

Louis Court of Appeals. (1) The trustee’s right of action was lost when he ceased to. be trustee. Huckabee v. Billingsley, 16 Ala. 414; De Bermse v. Sanford, 1 Hoff. Ch. 195. (2) While two counts in the petition to meét the proof are permissible (.Brinkman n. Hunter, 73 Mo. 172), there can be but one recovery and satisfaction. Owens v. Railroad, 68-Mo. 394 ; Brinnelln. Railroad, 47 Mo. 239 ; City, etc., v'. Allen, 53 Mo. 49.

— Hon. Elijah Robinson, Judge. (1) A citizen cannot be deprived of Ms property without due process of law. Const, of U. S., art. 14, sec. 2; Const, of Mo., sec. 21, art. 2. (2) Property cannot be taken, or damaged, for public use, unless compensation be paid. Const, of Mo., sec. 30, art, 2. (3) The establishment of a public highway over a railroad is a taking within the meaning of the constitution.

— Hon. B. E. Turner, Judge. (1) The circuit court erred in sustaining plaintiff’s motion to strike out defendant’s amended plea, in the nature of a plea in abatement, and in entering judgment sustaining the attachment. Nor veil v. Porter, 62 Mo. 309, 312; Gillcesonv. Knight, 71 Mo. 403, 406; R. S., sec. 439. (2) The court erred in overruling defendant’s motion to set aside the order striking out the plea of abatement,, and to grant defendant a new trial thereon.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) A party can only become a plaintiff and only be made a defendant under the provisions of the statute. (2) The rights of an abandoned wife, at the time of said contract, are limited, by the provisions of section 3296, Revised Statutes, 1879, and only in 1883 (see Session Acts, 1883, p. 113), assumed its present proportions, neither of which authorizes a proceeding as here sought to be enforced.

Louis Qourt of Appeals. (1) The plaintiff should have been non-suited. Prom the testimony given by the only witness who saw the accident, it is clear that the condition of the street was not the cause of the injury. The plaintiff, an infant of three years of age, was thrown down by a companion, who ran, or fell, against her. Both children fell to the ground, the plaintiff being underneath, and receiving injury.

Louis County Circuit Court. — Hon W. W. Edwards, Judge. (1) No act, after commission of common enterprise is ended, is admissible. State v. Duncan, 64 Mo. 262-6; State v. Barham, 82 Mo. 67 ; 2 Bisbop Crim. Proc. 230 ; 2 Wharton Law of Evid., sec. 1206. Evidence of other offences is not admissible saving in a restricted manner, i. e., by instruction. Brand v. Commonwealth, 13 Merr. 290 ; and recent case of State v. Bayne, 88 Mo. 601.

— Hon. Jno. W. Emerson, Judge. It is hardly necessary to cite authorities to prove that, being a member of the exchange, respondent is charged with notice of its rules. Morawetz on Corp., ■sec. 870, and cas. cit. in note; :Simeral v. Ins. Co., 18 la. 322; Coles v. Ins. Co., 18 la. 431; Mitchell v. Ins.. Co., 51 Pa. 402.

— Hon. J. D. Foster, Judge. (1) Upon the,agreed statement of facts, the injunction should have been dissolved, and judgment rendered for defendants. Dallas Qounty v. Merrill, 77 Mo. 573. (2) The court, in its judgment, attempted to adjudicate the property rights of individuals without first giving them their day in court. This it could not do. Const, of Mo., art. 2, sec. 30.

Loms Court of Appeals. (1) Plaintiff’s first instruction is qualified by the-' fourth. There is nothing misleading. It is, in the main, right. There is no reversible error, if any.

— Hon. Elijah Robinson, Judge. (1) It is always proper to show that a witness is-interested in the result of the suit. And the appellant should have been allowed to read the deeds in evidence-to show that the witnesses, John and Prank Hulett, were the owners of the lands out of which any judgment in appellant’s favor would necessarily have been collected.

Louis City Circuit Court. — Hon. Geo. W. Lubiie, Judge, r (1) The court erred in overruling plaintiffs’ challenges for cause directed against jurors Sawyer, Voorhis, Whyte, and Purcell. Each of the jurors named had a disqualifying bias. Sawyer answered that he did have a bias against such a case; that he was prejudiced against all damage cases. There would have to be evidence, i. e., to remove prejudice.

Louis Criminal Court. — Rots. G. S. Van Wagoner, Judge. The defendant, appellant here, was indicted at the October term, 1885, of the St. Louis criminal court, for the murder, in the first degree, of Charles Arthur Preller. The indictment contained three counts charging the crime to have been committed on April 5, 1885, in the city of St. Louis: (1) By chloroforming the deceased until unconscious, and then choking and strangling him to death.

Louis Court of Appeals. (1) When a contract admits of two different constructions, it is a rule of law that the construction which is consistent with duty, honesty, and fair dealing, shall be adopted in preference to one which involves fraud and wrong-doing. Johnson County v. Wood, 84 Mo. 489 ; 2 Whar. on Cont., sec. 654; Lorillard v. Clyde, 86 N. Y. 384.

<p>1. Corporation: liability as stockholder : stock held as collateral. One who accepts a certificate of stock of a corporation, under an agreement in writing that it is held by him only as collateral security, is not 'thereby rendered hable as a stockholder, either to the corporation or its creditors.</p> <p>2. -: -. One’s liability as a stockholder of a corporation to the creditors thereof depends upon his legal relation to the corporation. If he is a stockholder, as between himself and the corporation, he will be liable, as such, to the creditors of the corporation, but otherwise not.</p> <p>3. -: --: VOTING OR STOCK HELD AS COLLATERAL. Where stock of a corporation is held under a written agreement only as-collateral security, the act of voting it, by the parties so holding it, would not make them absolute stockholders, either as between themselves and the corporation, or creditors of the corporation, .and in either case such holders would have the right to show that they held the stock as collateral security.</p>

— TIon. A. J. Seay, Judge. (1) A devise of real estate does not deprive a widow of her homestead. M'eech v. Meecli, 37 Yt. 419; Aikin u Geiger, 52 Ga. 407. (2) The will in the case at bar does not deprive the widow of either dower, or homestead. Rose s. McHose, 26 Mo. 590; Richardson s. Richardson,, 49 Mo. 29 ; Pierce s. Ridley, 25 Am. Rep. 769; s. c., 1 Baxt.

— Host. T. A. Gill, Judge. (1) It does not appear upon the face of either of the executions, nor in the sheriff’s deed, that a transcript of the justice’s judgment was filed, indexed, and recorded, in the office of the clerk of the Kansas City circuit court, as required by the city charter. Kentzer v. Railroad, 47 Mo. 641; Carr v. Youse, 39 Mo. 346.

— Hon. James B: Gantt, Judge. (1) The evidence submitted by plaintiff shows no breach of the bond, and, therefore, no cause of action against defendants. (2) The relator should be remitted to his action on the bond for the guardian’s failure to comply with the order of the court, in failing to make an actual bona fide sale. The sale was a bogus one, for his own private ends, and the breach of the bond alleged was not proved.

— Hon. T. A. Gill, Judge, (1) The court erred in sustaining the demurrer to plaintiff’s bill. (2) A court of equity has jurisdiction to protect itself against fraud, as well as parties litigant, and will, in the exercise of its functions, set aside not only statutory, but even constitutional provisions, where private rights are infringed, be they choate or inchoate.