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unccntradicted testimony was that all the officers of the company got their fuel from the mill, and were never charged for it. The court instructed the jury that, if plaintiff caused fuel of value to be removed from the factory without paying for it, the verdict on the counterclaim should be in favor of the defendant for the reasonable value of the fuel at the time it was taken, unless the jury found it was not to be charged for by reason of a general understanding to that effect between the officers of the company. The defendant contends the latter part of the instruction was erroneous, and that the officers had no right to use the cull spokes and hubs for fuel without paying their reasonable value to the corporation, and, if plaintiff did so, the defendant was entitled to judgment against him for the value of the stuff used. The rule of law invoked by this assignment of error is of wide scope, and subject to several qualifications. Really, the evidence is not before us, to determine whether or not the court's instruction was correct. The testimony as presented in the appellant's ab stract is very short, and the respondent has submitted no brief. It does not appear what officers of the company were in the habit of getting their fuel in the manner described, and had an understanding about the matter, or whether all the officers were directors, or whether there were any stockholders of the company except the officers. Neither is it shown how long the custom had been followed by the officers, nor whether it was known to the stockholders. These are material data in passing on the accuracy of the court's charge! It is certain that, as a general proposition, neither the executive officers nor the directors of an incorporated company have a right to convert its assets to their own use, or give them away, or make any self-serving disposition of them against the interest of the company. Pressed Brick Co. v. Schoeneich, 65 Mo. App. 283; St. Louis Stoneware Co. v. Partridge, 8 Mo. App. 580; 3 Throop, Corp. § 4014. But it is equally certain that, when there are no stockholders except the directors and officers, the latter may, if they wish, give away an asset by unanimous consent, and the gift will be good, unless the rights of creditors are impaired. All the stockholders of a corporation may consent to an appropriation of an asset by an official, if the appropriation would not be detrimental to creditors. These are open dealings in fraud of the rights of no one concerned, and consistent with the high good faith exacted of fiduciaries. 3 Thompson, Corp. § 4025. It is true, too, that if the directors of the defendant company had authorized the officers to get their fuel from the cull products of the factory, and this had been going on for months, as the evidence suggests, and the stockholders knew all about it and made no protest, they might be estopped to complain. 3 Thompson, Corp. § 4025; 5 Thompson, Corp. § 6531; Burgess V. R. R., 99 Mo. 496, 509, 12 S. W. 1050. In

many instances small manufacturing companies carrying on business in rural places have no stockholders except the officers, and, as said, such officers, as the only parties in interest, might make an arrangement like the one asserted in the present case, and it would be valid, if it did not interfere with the rights of creditors. If the officers of the defendant company, with the knowledge of every one interested, were in the habit of getting their fuel as plaintiff did, and this custom had prevailed for a long time, the fuel would be regarded, doubtless, as additional compensation to the salary received by the officers. At least, if the custom was tolerated by everybody concerned, it would afford no basis for a counterclaim in a case like this. An equity court is the forum usually asked to redress conversions of corporate assets by a corporation officer with the consent of the directory. This is on the theory that the act is a voidable and not a void one, and hence must be set aside in equity. We have no call to say in this case that a court of law can never afford redress. The plaintiff, having sold his stock and resigned as president and general manager, wanted his back salary. It looks like this counterclaim for fuel may be a makeshift to defeat or offset his demand for payment, rather than a meritorious claim brought forward from a conviction that the plaintiff had wrongfully converted the company's property. Be that as it may, what we hold is that as the facts before us are so meager that we are unable to pronounce whether, under the circumstances, the court's instruction was sound or not; and, as it devolves on an appealing party to show error, we shall rule the point against the defendant. As far as there is any showing regarding the stockholders, they were all officers of the company, and, of course, if every one interested in the company allowed the officials, including plaintiff, to get their fuel from the factory's cast-off products, and acquiesced in the course, the company cannot obtain the value of the stuff plaintiff took, on the theory that a tortious conversion occurred. A farmer who had hired hands to work for wages, and allowed them for months and years to supply themselves with fuel from his timber land, could as well refuse suddenly to pay the wages of his hands on the ground that they owed him for the value of the timber taken. Now and then such matters are treated as trivial by the parties, and so disregarded that it is apparent from their conduct that they thought no wrong was committed.

The judgment is affirmed. All concur.

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court officers, jurors, and witnesses, not including referees, precludes the issuance of a fee bill for the collection of referee's fees taxed under a stipulation.

2. Where fees of a referee were taxed under a stipulation of the parties before judgment, an order directing payment thereof by defendant pursuant to such stipulation, without any pleadings framed between defendant and the referee, was not a judgment for costs enforceable by execution, under Rev. St. 1899, § 1573, providing that, in a case where costs shall be awarded before or on final disposition of the case, execution shall be issued forthwith, unless otherwise ordered by the "party in whose favor the costs shall be awarded," since such provision applies only to a party litigant.

3. Where a stipulation provided that fees of a referee should be paid as soon as the report was filed by the party against whom the referee decided, such stipulation gave the referee a right of action only for his compensation against the party to whom his finding was adverse, and did not give the court jurisdiction to enter judgment in favor of the referee on such stipulation.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by George Manewal against James M. Proctor. From an order directing the issuance of a fee bill against defendant in favor of Henry H. Denison, referee, defendant appeals. Reversed.

R. M. Nichols, for appellant. H. H. Denison, for respondent.

Opinion.

GOODE, J. A suit was instituted February 7, 1899, in the circuit court of the city of St. Louis, by the plaintiff, George Manewal, against James M. Proctor, for an alleged breach of contract on the part of the defendant in failing to furnish a correct abstract of the title to certain real estate. The contents of the petition were put in issue by a general denial filed April 15, 1899. On October 11, 1900, the case was referred to the respondent in this appeal (Henry H. Denison) for a decision on all the issues. Prior to the taking of testimony before the referee, the following stipulation was entered into by the parties: "It is hereby stipulated and agreed by and between the parties to the above entitled cause that when the referee reports his findings to the court, if the finding is against the defendant, defendant will at once pay the referee's compensation, and if the finding is against plaintiff, plaintiff will at once pay the referee's compensation. Said payment shall not prejudice the rights of the party making it to recover such sums as he may advance under this stipulation if judgment finally goes in his favor." After the hearing of the evidence, the referee filed his report in the circuit court October 5, 1903, and with it a transcript of the testimony and exhibits. On October 21st, following, the referee moved to be allowed compensation for the services rendered by him, and was allowed $1,000 for services and $27 for expenses. The order of allowance is as follows: "Now at this day the motion of Henry H. Denison, Esq., for an allowance for his

services as referee herein, coming on to be heard, comes the said referee in his own proper person, and the parties to this cause appear by their respective attorneys, and the said motion is submitted to the court, and the court having heard and duly considered the same, as well as the arguments and statements of the said parties respectively, doth order that said referee be allowed the sum of one thousand dollars for his services herein, and the sum of twenty-seven dollars for expenses incurred by him, and that both said. sums be taxes as part of the costs of this proceeding. And it appearing to the court from the stipulation entered into by and between the parties to this cause, and which is made part of the record herein, that it was agreed between said parties that when the referee reported his findings to the court, if the finding was against the defendant, defendant would at once pay the referee's compensation, and, if the finding was against the plaintiff, plaintiff would at once pay said compensation, such payment, however, not to prejudice the rights of the parties making it to recover such sums as he might advance under said stipulation should judgment finally go in his favor; and it further appearing to the court from the referee's report that the finding of said referee was against the defendant-it is therefore ordered by the court that the defendant in this cause at once pay to said referee the said sum of one thousand and twenty-seven dollars allowed as aforesaid, less the sum of two hundred and fifty dollars heretofore advanced by the defendant to the referee on account of his said services." Thereafter, on February 1, 1904, the referee filed a motion reciting the facts of the allowance and the above stipulation between the parties, and prayed the court to direct the circuit court to issue a fee bill in his favor for the sum of $777 in accordance with the terms of the order, the fee bill to be directed to the sheriff of Boone county for collection. The court sustained that motion, and ordered the fee bill to issue. The order in question was as follows: "Now at this day the court, having heard and duly considered the motion of Referee Henry H. Denison, heretofore filed and submitted herein, for an order directing the clerk to issue a fee bill in his favor for the allowance heretofore made to him for his services as referee, doth order that said motion be sustained, and that the clerk of this court forthwith issue a fee bill in favor of said referee for the sum of seven hundred and seventyseven dollars, in accordance with the terms of the order heretofore made, with interest from October 23, 1903, directed to the sheriff of Boone county, state of Missouri, for collection; the residence of the defendant being in said Boone county." On March 2, 1904, the defendant, Proctor, filed a motion to quash the fee bill on the ground that it was not authorized by the statutes, was illegal, and that he was not liable to the referee for

the latter's costs until the termination of the litigation. It should be stated that the fee bill in the referee's favor was issued while the cause was still pending on the referee's report; in fact, we do not know whether it has been disposed of yet. The motion to quash the fee bill was overruled, and Proctor appealed from the order overruling it.

It is the propriety of the court's action on the motion to quash that we are called on to determine. This question appears to be settled by two decisions of this court. Conroy v. Frost, 38 Mo. App. 351; Dempsey v. Schawacker, 62 Mo. App. 166. Fee bills to collect the fees of certain court officers, jurors, and witnesses are authorized by section 3236 of the Revised Statutes of 1899 (Rev. St. 1889, § 4980; Rev. St. 1879, § 5595). The general theory in regard to the allowance and collection of the costs of litigation is that those matters are regulated by statutes, and the statutes will be strictly construed. Conroy v. Frost, supra. Now, a referee is not named among the court officials who are entitled to a fee bill, and the decision in the cases cited was that a fee bill cannot be used to collect a referee's costs, pending the final disposition of the cause. We have no doubt that a referee is an officer of the court appointed to perform certain work, and that compensation for that work may be taxed as costs in the case. Neither do we see any good reason why he should not have the right to a fee bill to collect his costs, the same as other officers have, instead of having to wait for final judgment. But the statutes have made no provision in his favor, and hence he does not enjoy the remedy which is available to the officers named in the statutes.

It may be urged that the fee bill in this case is equivalent to a special execution; that Mr. Denison was entitled to an execution for his costs, and, in substance, got it. The process issued in his favor is in the form of a fee bill, and on no theory known to us could he rightly obtain an execution. That none of the court officers, nor any one else except the parties litigant, is entitled to an execution for costs, was decided by the Supreme Court in an exhaustive opinion delivered by Judge Gantt. Hoover v. R. R., 115 Mo. 77, 21 S. W. 1076. That opinion treats all the statutes of the state bearing on the subject of costs, and reaches the conclusion that none of them authorizes an execution for the collection of costs to be issued in favor of any one except a litigant party. One section of the statutes (1573) says that, in a case where costs shall be awarded before or upon the tinal disposition of the case, execution shall be issued forthwith by the clerk, unless otherwise ordered by the party in whose favor such costs shall be awarded. That provision authorizes an execution in favor of a party to whom costs are awarded as soon as the award is made, and might be argued to favor this respondent. But the question arises as

to who are the parties intended by the statute, and in the case mentioned the Supreme Court held that no one could claim an execution for costs by virtue of that section except a party to the action, citing Beedle v. Mead, 81 Mo. 306. The suggestion has been thrown out that the order for payment of the referee's costs was in the nature of a judgment in a proceeding between the referee and the defendant, and therefore the former was entitled to an execution on it. The stipulation regarding the referee's costs, which Manewal and Proctor made, unquestionably gave Mr. Denison, as referee, a right of action for his compensation against the party to whom his finding was adverse. But we cannot regard the order of the circuit court for an allowance of his fees, though it purports to be based on that stipulation, as in any sense a judgment in an action between him and Proctor. There were no pleadings framed between them; Denison never filed a petition asking for a judgment against Proctor on the stipulation; Proctor was not called on to defend against the demand, nor brought into court by Mr. Denison. If the court's order is to be regarded as a judgment in favor of Denison and against Proctor, then it was a judgment entered in the case of Manewal against Proctor in favor of a party (Denison) who was no party to that controversy, and without any preliminary proceeding or process. Such an interloping judgment in favor of a stranger cannot be engrafted on a litigation. Paddock v. Vance, 94 Mo. 283, 6 S. W. 241; Smith v. Transfer Co., 92 Mo. App. 41. The order was not, properly speaking, a judgment in Denison's favor, because no judgment could be entered in the action pending before the court, except in favor of one of the parties to it. The order in one part directs the referee's fees to be taxed as costs in the action between Manewal and Proctor, and in another part refers to the stipulation, and directs Proctor, the defendant, to pay at once the referee's costs. But the order must derive validity from the power of the circuit court to tax the referee's fees as costs, not from any supposed power to enter summary judgment on a stipulation the parties had signed regarding the referee's compensation. The court had no power to enter judgment on the stipulation, which, indeed, was not made in open court. It follows, therefore, that the process issued to enforce collection of the referee's fees, even if regarded as a special execution, was unwarranted, because it was not in favor of one who, in any true sense, was a party to the litigation. Hoover v. R. R., supra. However, it was not an execution, but a fee bill. And, as a fee bill is not authorized in favor of a referee, it should have been quashed.

The judgment is reversed, and the cause remanded with directions to the court below to sustain the motion of the defendant to quash the fee bill. All concur.

STATE v. DAVIS.

(St. Louis Court of Appeals. Missouri. May 2, 1905.)

EMBRACERY-JURORS-INFLUENCE—EVIDENCE.

Evidence that defendant approached a juror who had been sworn to try a person charged with murder, and stated to the juror that the person so charged was "a good fellow," and that the juror inferred that defendant desired to talk to him in behalf of such person, was insufficient to sustain a conviction of embracery, within Rev. St. 1899, § 2045, providing that every person who shall attempt improperly to influence any juror in a criminal case, etc., shall be guilty of a misdemeanor.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Franklin Davis was convicted of embracery, and he appeals. Reversed.

Defendant was indicted in the circuit court of Wayne county on a charge of embracery, under section 2045, Rev. St. 1899 with having attempted to corruptly influence one Ward, a juror in a certain case wherein one Sam Jones was on trial in said court for murder. The indictment upon which this case was tried, evidently through some oversight, failed to be incorporated in the record before us. As the case will be disposed of favorably to defendant, we will presume the indictment was sufficient, under the statute. The evidence on the part of the state tended to show that one Sam Jones had theretofore been indicted and tried for murder in said court; that one Ward was one of the jurors, impaneled on the trial of said Jones; that defendant in this case met Ward, the juror, at the livery barn in Greenville, while the juror was putting up his horse in the morning after he had been sworn as a juror, and of the day on which the trial was to proceed, and commenced a conversation with him about the Jones case; that Ward told the defendant that he had been sworn on the jury, and that he kept on talking about the case; and that the juror declined to join in the conversation. Ward, the juror, does not show what was said to him, nor does he say that there was any attempt to bribe him or influence him, or any promise of any kind made to him. He simply reiterates that defendant talked to him about this case, and when asked the question, "How did you know he was talking about the Jones case?" he answered, "From the way he approached me, and I presumed the meaning of it." The only words or substance of words which defendant is alleged to have used in the conversation in speaking of Jones, is as follows: "He is a good fellow." Ward further said: "From the way he approached me, I thought be was on the side of Jones. #

Q.

You just inferred he was in favor of Sam Jones, and wanted to talk to you in his behalf? A. Yes, sir." There was no other evidence on the part of the state. This was all of the evidence. Defendant requested the court 87 S.W.-3

to peremptorily instruct the jury for his acquittal, which the court declined to do. The case was submitted to a jury, which returned a verdict of guilty. Defendant appealed to this court, and insists that the evidence is insufficient to sustain a conviction.

J. H. Raney, V. V. Ing, and Almon Ing, for appellant. Robt. H. Davis, for the State.

NORTONI, J. (after stating the facts). Embracery, with which appellant is charged, was an offense at common law, and is of ancient origin. It consists, in short, of an attempt to corruptly influence a jury. Bishop, New Crim. Law (8th Ed.) 384; State v. Williams, 136 Mo. 293, 38 S. W. 75. The books say: "Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like." Bishop, New Crim. Law (8th Ed.) § 384; Hughes on Crim. Law & Proc. § 1534; 1 Blackstone, Com. 140. "It seems clear that any attempt whatsoever to corrupt or influence or instruct a jury, or in any way incline them to be more favorable to one side than to the other, by money, promises, letters, threats, or persuasions, except only by strength of evidence and the arguments of counsel in open court, at the trial of the cause, is a proper act of embracery, whether the jurors on whom such attempt is made give any verdict or not, or whether the verdict given be true or false." Hawkins, Pl. of Crown, vol. 1, c. 851; Bishop, New Crim. Law (8th Ed.) § 384. Our statute (section 2045, Rev. St. 1899) upon which the indictment is based reasserts the commonlaw rule, and makes it an offense, by substi tuting the word "improperly" for "corruptly," to attempt to influence the jury or one summoned as a juror, and extends the law so as to cover the case of referees and arbitrators as well. The statute is as follows: "Every person who shall attempt improperly to influence any juror in any civil or criminal case, or anyone summoned as a juror, or any one chosen an arbitrator or appointed a referee in relation to any matter pending in the court or before the officer before whom such juror shall have been summoned or sworn, or pending before such arbitrator or referee shall, upon conviction, be adjudged guilty of a misdemeanor." It seems from the authorities supra that the common law treated any improper attempt to influence the jury as a corrupt attempt, and, embracery being an attempt as well as a consummated injury, there is no such thing as an attempt to commit it, as an attempt is the offense itself. Bishop, New Crim. Law (8th Ed.) 389.

The evidence wholly fails to show that appellant attempted to improperly influence a juror to the side of Jones by promises, persuasions, entreaties, money, entertainments, and the like. In fact, the evidence wholly fails to show that appellant did or said any. thing other than that Jones was a good fel

low. The appellant, being the defendant in a trial before a jury, where the only charge against him was what he said, and the manner in which it was said, had the right to have the words he used, or their substance, at least, detailed to the jury, so that the jury might judge as to whether or not he attempted to improperly influence the juror Ward. The mere statement of Ward that appellant talked to him about the case, and that he presumed and inferred from the way he approached him that he was on the side of Jones, is not enough to support a finding of guilty. The charge is a serious one. The law presumes appellant to be innocent thereof, and he stands innocent until the state overcomes this presumption by proof showing facts from which the jury might reasonably infer beyond a reasonable doubt that he sought to improperly influence the juror. It is not enough to show that in the opinion of Ward, the juror, he sought to improperly influence him, because it is not upon the opinion of Ward on the facts that he should be acquitted or convicted, but it is upon the opinion of the jury summoned, impaneled, and sworn to try his case. It is not enough to show that appellant talked to the juror Ward about the case, but it must also be shown that he attempted in some manner to improperly influence the juror by his conversation or conduct, and what he did tending to improperly influence the juror, or what he said, or substantially what he said, tending to improperly influence the juror, should be given in evidence, that the jury may know and understand and be able to pass intelligent judgment upon the intent and purpose thereof. A juror approached might feel that the party approaching him was seeking to improperly influence his mind and judgment, and be so impressed with the thought that he would take an oath to that effect on the witness stand; and, when all of the evidence as to what was said and done was detailed to a fair and impartial jury under oath, that jury might be persuaded and hold that there was nothing in the conduct or conversation on the part of the party charged which showed him to be guilty of an attempt to improperly influence such juror. The Constitution guaranties appellant the right to the opinion of the jury upon what he said and did, and whether its purport, intent, and purpose were to improperly influence the juror Ward. Appellant is not bound by the expressions of opinion by Ward that he (Ward) presumed or inferred that he intended to improperly influence him; and his conviction upon such opinion evidence, without any statement of facts showing conduct on his part which would convince a fair mind that he had attempted to improperly influence Ward, cannot be sustained. The mere fact that he said Jones was a good fellow, alone, without some other statements, is not enough to convict a man of attempting to improperly influence the person in whose hearing or to whom the words were

uttered. The court erred in refusing the request for a peremptory instruction directing appellant's acquittal.

For the reasons given, the judgment is reversed and the appellant discharged. All

concur.

WESTBAY v. STONE.

(St. Louis Court of Appeals. Missouri. May 2, 1905.)

NOTES-INDORSER-LIABILITY-NOTICE OF DIS

HONOK-FAILURE TO GIVE NOTICE
-SURETY-RELEASE.

1. The extension of a note on maturity without notice to the surety released him. [Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Surety, § 196.]

2. An indorser on a note is released by a failure to demand payment or to give notice of dishonor at maturity.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 997.]

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by James Westbay against R. C. Stone. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

A. V. Darroch, for appellant. A. W. Lyon, for respondent.

Opinion.

GOODE, J. This was an action for a balance due on a promissory note. The note was dated December 20, 1894, and executed to the Bank of Monett. Originally the principal was $1,500, drawing interest after maturity (90 days from date) at the rate of 8 per cent. per annum. It was signed by four parties by the name of Roop, constituting the firm of E. W. Roop & Sons, and by the respondent, R. C. Stone. Several defenses are pleaded, but the only one we care to consider is that Stone was a surety on the note of E. W. Roop & Sons, and the Bank of Monett extended the time of payment of the note after it matured in consideration of the principals, E. W. Roop & Sons, paying the interest in advance. The appellant, Jas. P. Westbay, purchased the note at a sale by the general assignee of the original payee, the Bank of Monett. The case was tried without a jury, and no declarations of law were requested by either side. At the conclusion of the evidence the court rendered a verdict and judgment in favor of the respondent.

It is doubtful if the appellant has perfected his appeal so that he is entitled to have his cause reviewed by this court; but, as we have looked into the testimony, and think the judgment was fully warranted by the evidence, we prefer to decide the case on the merits of the appeal. Stone and a man named Prickett were the owners of a milling establishment in the town of Monett. Stone afterwards bought out Prickett's interest in the mill, and operated it for a while himself. He then sold the establishment to E. W.

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