cording to law, and to apply the proceeds, after the payment of costs, upon plaintiffs' judgment.

Over the objection of appellant, respondents introduced the letters of administration on the estate of Ralph Hammond Pybus. The court gave the following instructions for respondents, to which appellant objected:

"(1) If the jury believe and find from the evidence that the garnishee, Mrs. Anna Knapp, received from Ralph Hammond Pybus, in 1902, the sum of $5,000; that the said sum was not in good faith paid to the garnishee as compensation for the maintenance, education, and support of Ralph Hammond Pybus during his minority, and the said sum was paid by said Ralph Hammond Pybus with the purpose, intent, and design on his part to hinder, delay, and defraud his creditors; and if you further find the garnishee had knowledge of said purpose and design on the part of said Ralph Hammond Pybus at the time she received said money, and that she received the same to aid said Ralph Hammond Pybus in said purpose and intent-then your verdict should be in favor of the plaintiff and against the garnishee.

"(2) If the jury shall believe and find from the evidence that the garnishee, Mrs. Anna Knapp, received from Ralph Hammond Pybus, in 1902, the sum of $5,000; that said sum was paid to the garnishee as a compensation for the maintenance and education furnished to Ralph Hammond Pybus during his minority; and that said sum was paid by the said Ralph Hammond Pybus and received by the garnishee with the purpose, intent, and design on the part of both the said Ralph Hammond Pybus and the garnishee to hinder, delay, and defraud the creditors of the said Ralph Hammond Pybus -then your verdict should be in favor of the plaintiff and against the garnishee."

John S. Leahy, for appellant. Jones, Jones & Hocker, for respondents.

BLAND, P. J. (after stating the facts). 1. Appellant makes the point that her demurrer to the evidence should have been sustained, on the ground that the order of April 19, 1904, reviving the original judgment against the administratrix of Ralph Hammond Pybus, merged that judgment in the one as revived, and had the legal effect to waive the lien of attachment on the property in the hands of the garnishee. In respect to this point. if there was an instruction offered by appellant to the effect that, under the law and the evidence the respondents could not recover, sometimes erroneously termed a demurrer to the evidence, it failed to get into the record. The service of process of garnishment on appellant had the effect of attaching in her hands all personal property, money, rights, credits, etc., of the defendant in the execution, Ralph Hammond Pybus

(section 3436, Rev. St. 1899); but did not create a specific lien in favor of the respondents upon the money or property of Pybus in the garnishee's hands, but created only such a lien as gave the respondents the right to hold appellant personally liable for it or its value (McGarry v. Lewis Coal Co., 93 Mo. 237, 6 S. W. 81, 3 Am. St. Rep. 522; Calumet Paper Co. v. Haskell Show Ptg. Co., 144 Mo., loc. cit. 339, 45 S. W. 1115, 66 Am. St. Rep. 425; Marx v. Hart, 166 Mo., loc. cit. 524, 66 S. W. 260, 89 Am. St. Rep. 715). By the service of the garnishment on appellant, the process or suit to enforce the attachment against the money, etc., in her hands was begun (Marx v. Hart, supra; Westheimer & Sons v. Giller, 84 Mo. App. 122); and where, as was done in this case, the answer of the garnishee to the interrogatories propounded to her is denied, and the garnishee replies to the denial, the issue or issues raised by the denial and the reply, by section 3451, c. 33, entitled "Garnishment," Rev. St. 1899, is declared to be the sole issue or issues to be tried; hence the questions raised by appellant's second and third points, that the execution and return of the service of garnishment were not offered in evidence, are not available on a trial of the issues raised by the denial and the reply. The only method by which the sufficiency of the service of the garnishment could have been properly brought to the attention of the trial court was, under the circumstances, either by a plea in abatement or by motion to quash the return of the officer of the service of garnishment. By filing her answer to the interrogatories, the garnishee appeared generally to the proceedings, and this generai appearance was a waiver of any defect in the service of the process, if there was any, and especially is this so where it is stated, as did the appellant in her answer, "that having been summoned as a garnishee in the above-entitled cause, makes answer to the interrogatories of said plaintiffs as follows." By this declaration in her answer appellant admitted that she had been summoned as garnishee in a lawful manner and for a lawful purpose. Keith v. Territory (Okl.) 57 Pac. $34. The term "duly summoned" signifies that appellant was properly and regularly served with notice of garnishment. Robertson v. Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 686; Bank v. City of Port Townsend (Wash.) 47 Pac. 896.

2. The fourth point relied on by appellant is that the court erred in admitting the record of the prior equity suit between the parties. It is the well-settled law in both civil and criminal cases that, where it is essential to prove intent or motive to solve the question, it is admissible to prove that the party charged at or about the same time committed other frauds; in criminal cases for passing counterfeit money, forging, or putting in circulation other forged notes and the like, and in civil cases alleging fraudulent trans

fers of property by defendant, it is competent to show that he executed other fraudulent conveyances of his property with the intent to hinder and delay his creditors, if such conveyances were a part of the same system, conspiracy, or scheme made in furtherance of the same fraudulent purposes.

In respect to the admissibility of this character of evidence, the law is well stated by Judge Ellison in Tracy v. McKinney, 82 Mo. App., loc. cit. 512, as follows: "Where a fraudulent intent is a necessary element in a case, then other similar practices are admissible for the purpose of showing the intent. These questions frequently arise in both civil and criminal cases. The devices to hide a fraudulent purpose in civil transactions are as numerous as the excuses offered to avoid criminal responsibility, and so where the legal wrong depends upon the intent you may, in either case, show other similar acts for the purpose of characterizing the one on trial.

In receiving stolen goods, burglary, passing counterfeit money, fraudulent pretenses, etc., the act is frequently admitted by the accused, but the excuse of innocent purpose is interposed. In such cases other crimes or attempts of the same nature are admitted on that question. And the same is true of civil cases. Davis v. Vories, 141 Mo. 234, 42 S. W. 707; Wood v. U. S., 16 Pet. 342, 10 L. Ed. 987; Bottomley v. U. S., 1 Story, 135, Fed. Cas. No. 1,688; Trogdon v. Commonwealth, 31 Grat. 862."

Dr. Wharton states the doctrine as follows: "Where fraud in a transaction is the question in dispute, to solve this question it is admissible to prove that the party charged was guilty at the same time of other frauds, part of the same system." Wharton's Law of Evidence, § 33.

In Bottomley v. United States, 1 Story, 135, Fed. Cas. No. 1,688, the general doctrine is declared by Judge Story to be that, in cases of conspiracy and fraud, evidence of other acts in furtherance of the same general design is admissible, "first, to establish the fact that there is such a conspiracy and fraud; and, secondly, to repel the suggestion that the acts might be fairly attributed to accident, mistake, or innocent rashness or negligence."

In Wood v. United States, 16 Pet. 342, 10 L. Ed. 987, it was held: "The question was one of fraudulent intent or not, and upon questions of that sort, where the intent of the party is the matter in issue, it has always been allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate his intent or motive in the particular act directly in judgment." Hennequin v. Naylor, 24 N. Y. 139, and Whittier v. Varney, 10 N. H. 291, announce the same doctrine. Numerous cases from all the state courts, with a few exceptions, and from the courts of England, might be cited in support of the doctrine.

We think it was clearly competent to prove that the garnishee had been a party to other fraudulent acts and doings with the intent to hinder and delay the respondents in the collection of their debt, and it only remains to decide whether or not the judgment roll in the equity case was admissible for the purpose of showing that she was a party to the fraudulent conveyances declared. fraudulent in that suit. Respondents were plaintiffs in the equity suit, and Anna Knapp was one of the defendants. One of the issues in the equity suit was whether or not Anna Knapp and her son, Ralph Hammond Pybus, and her daughter, Georgia Knapp, had entered into a fraudulent conspiracy or agreement to hinder and delay the plaintiffs. in the collection of their judgment against Pybus, and whether or not, in furtherance of said conspiracy, they had executed certain conveyances of real estate with the intent to hinder and delay the respondents in the collection of their debt. The difference in the two suits is in respect to the subjectmatter. The equity suit was to set aside fraudulent conveyances of real estate. brought by respondents and against Anna Knapp as one of the defendants. The ground relied on to set aside the conveyances was that they were made with intent to defraud the respondents as creditors of Pybus. The ground relied on to charge the garnishee is that Pybus, her son, transferred the $5,400 or $5,500 to her for the fraudulent purpose of hindering respondents in the collection of their debt. The principal question for solution in both proceedings was whether or not the conveyances in the one case and the transfer of money in the other were both for the same fraudulent purpose of hindering and delaying the respondents in the collection of their debt. The record in the equity case shows that Anna Knapp and her son, Ralph Hammond Pybus, were parties to fraudulent conveyances of real estate executed for the express purpose of hindering and delaying the respondents in the collection of their judgment against Pybus, the same debt they are now endeavoring to collect of Anna Knapp, as garnishee. If, as the record conclusively shows, the conveyances of the real estate were fraudulent, it (the judgment) is a collateral fact tending to show that the transfer of the money by Pybus to his mother was with the intent to hinder and delay the creditors of Pybus, and that the conveyances of real estate and transfer of the $5,400 were in furtherance of the same system or scheme to defraud the re

spondents. In fact, the issue of intent to defraud respondents having been raised and adjudged against the garnishee in the equity suit, it seems to us that, on the principle that a judgment as to all points and questions litigated and determined by it is conclusive between the parties, the judgment was not only admissible but was conclusive evidence that the garnishee had participated in the fraudulent conveyances of real estate for the purpose of hindering and delaying respondents in the collection of their debt, and that she is estopped by the judgment to deny in the present suit that the conveyances of real estate were not made for the purpose of defrauding the respondents. Black on Judgments, § 609.

In Hahn v. Miller, 68 Iowa, 745, 28 N. W. 51, it was held that a judgment for defendant in an action for obstructing a water course, if based upon the ground that there was no water course to be obstructed, was conclusive in a subsequent action of the nonexistence of the water course.

"A judgment," says Freeman (1 Freeman on Judgments, § 256), "necessarily affirming or denying a fact, is conclusive of its existence whenever it becomes an issue between the same parties."

As a collateral fact tending to prove the principal issue on trial, to wit, whether or not the transfer of the money was made with intent to defraud, the judgment was an issue of fact collateral to the main fact, whether or not the garnishee had been a party to other fraudulent conveyances and transfers of property with the intent to hinder and delay respondents in the collection of the judgment. We think the equity judg ment was not only admissible to show this collateral fact, but that it was conclusive proof of it; for it is well settled law that, where the effect of a judgment is to settle a particular issue of fact, that issue must be held res judicata as to the adversary parties to the suit, and it is not essential to the conclusiveness of the judgment that all the parties to both proceedings are the same. Nave v. Adams, 107 Mo. 414, 17 S. W. 958, 28 Am. St. Rep. 421; Young v. Byrd, 124 Mo. 590, 28 S. W. 83, 46 Am. St. Rep. 461; Wiggin v. St. Louis, 135 Mo. 558, 37 S. W. 528. The case of Gutzweiler's Adm'r v. Lackmann, 39 Mo. 91, cited and relied on by appellant, is not in point. The alleged fraudulent conveyance sought to be introduced in evidence in that case was in no wise connected with the transfer of the property under investigation. Of course, if transactions are wholly disconnected and have no bearing one upon another, the proof of one can in no wise affect the other.

3. The letters of administration on the estate of Pybus were objected to as evidence, on what ground is not stated. The judg ment against Pybus was revived against his administratrix on stipulations of the parties which necessarily assumed and admitted that

letters of administration had been granted. There was no necessity for introducing the letters, and no ground to object to them when offered, except that they prove an admitted fact in the case.

4. The contention made by appellant that the subsequent creditors cannot attack a conveyance or transfer successfully, without showing a fraudulent intent to defraud creditors existing at the date of the transfer, or a specific intent to contract debts and not pay them, has no application to the facts in this case, for the reason it is conclusively shown that Pybus' indebtedness to respondents was contracted prior to the transfer of the money by Pybus to his mother.

5. It is contended that instructions Nos. 1 and 2 for respondents submitted the case to the jury on an erroneous theory. There is no foundation for this contention, and besides appellant's instructions given show that she adopted the same theory. Having adopted this theory, she cannot assert a different one on appeal. Christian v. Ins. Co., 143 Mo. 460, 45 S. W. 268; Drug Co. v. Self, 77 Mo. App. 284; Grocery Co. v. Smith, 74 Mo. App. 419.

The case was fairly tried, and the judgment is manifestly for the right party; therefore it is affirmed. All concur.

HUBBARD v. MOBILE & O. RY. CO. et al. (St. Louis Court of Appeals. Missouri. May 2, 1905.)

CARRIERS-BAGGAGE-WHAT CONSTITUTES-NATURE OF LIABILITY-EXTENT OF LIABILITYCONNECTING CARRIERS-THROUGH CONTRACTS -TERMINATION OF LIABILITY-DELIVERY TO TERMINAL ASSOCIATION-LIABILITY OF WAREHOUSEMAN-BURDEN OF PROOF-PLEADINGALLEGATIONS OF NEGLIGENCE APPEAL QUESTIONS REVIEWABLE.

1. A contract by a railroad to carry a passenger and baggage from a point in Illinois to a point in Missouri, when made in Illinois, is an Illinois contract, governed by the laws of that state, and is not affected by Rev. St. 1899. § 5222, making a carrier liable for the loss of property caused either by its own or some connecting carrier's negligence.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 965.]

2. The law of Illinois must, in the absence of proof, be presumed to be the common law.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Common Law, § 14; vol. 20, Cent. Dig. Evidence, § 101.]

3. Where a carrier receives goods for transportation to a destination beyond the end of its line, its common-law liability terminates with the delivery of the property to the succeeding carrier for further transportation, unless it binds itself by an express or implied contract for the whole distance.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, $$ 751, 760, 770, 779-781.]

4. Where plaintiff bought a ticket to a certain station in a certain city, and her baggage was checked to the same place, and both she and it were deposited by the railroad at that place, and there was no evidence that the rail

road's line ended elsewhere, the contract of carriage would be deemed a through one to that station and city.

5. A carrier which agrees to transport a passenger and her baggage to destination is, in the absence of a special agreement limiting its responsibility, liable throughout the journey for the loss of the baggage by itself or by any other carrier which assists in performing the contract. [Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1550, 1551.]

6. A carrier is, in respect to baggage, under the responsibility of a carrier of freight, and is thus, in the absence of a special restriction of liability, an insurer against every loss except one due to the act of God or of a public enemy. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1519.]

7. Evidence that a passenger's trunk was received by the carrier in good condition, and that articles packed in it by the passenger were gone when it was restored to her at her destination, makes a prima facie case in her favor. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1565.]

8. In the absence of a special agreement, the carrier's common-law liability for baggage, of the nature of which it is ignorant, embraces only such articles as are baggage in a technical

sense.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1520.]

9. Articles of jewelry, such as opera glasses, watches, bracelets, pins, and rings, carried in a woman's trunk, to be worn for her personal use and oruament, may be found by a jury to be baggage.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1522, 1524.]

10. The fact that articles of jewelry carried by plaintiff in her trunk, and lost while in defendant carrier's charge, were not shown to be suitable to plaintiff's station in life was a matter of defense, which defendant could not raise on appeal, where it offered no testimony on the subject, and asked no instruction with respect thereto.

11. A carrier which contracts to carry a passenger and baggage through to destination is liable for the baggage, either as carrier or warehouseman, until delivery to the passenger at destination: but its liability as warehouseman, after its capacity as such commences, only extends to a loss of the baggage by negligence.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1519, 1539–1543.]

12. The status of warehouseman sets in and that of carrier ceases when the passenger has had a reasonable time in which to take his baggage away after it has reached its destination and been unloaded from the train.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 1542.]

13. In an action against a carrier for the loss of baggage, the burden is on the carrier to show that it had discharged its duty as carrier by unloading the baggage at its destination in good order, and keeping it a reasonable time subject to the passenger's orders, and that any damage to, or loss of, the baggage occurred subsequently while it was acting merely as warehouseman. 14. Where a carrier undertook to deliver a passenger and her baggage to destination, the mere fact that the passenger received the baggage from a terminal association does not, in the absence of evidence showing how the terminal association obtained possession of the baggage, show that the carrier had performed its duty of delivering the baggage, and exempt it from responsibility, both as carrier and as warehouseman, for a loss of certain articles of baggage.

15. A petition against a carrier for the loss of baggage is not converted into a petition for negligence, so as to require proof thereof, by mere allegation that the loss was occasioned by the negligence of defendant's employés.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Byrd M. Hubbard against the Mobile & Ohio Railroad Company and another. From a judgment for plaintiff, defendant named appealed. Affirmed.

R. P. & C. B. Williams, for appellant. Vital M. Garesche, for respondent.

Statement.

GOODE, J. The appellant in this case is the Mobile & Ohio Railroad Company, a corporation organized under the laws of the state of Alabama. The other defendant, the Terminal Railroad Association, is a corporation organized under the laws of the state of Missouri. On or about June 19, 1903, plaintiff became a first-class passenger on a train of the Mobile & Ohio Railroad Company at Cairo, Ill., her destination being St. Louis, Mo., to which point she paid her fare. She delivered her trunk to an employé of said railroad company at Cairo, Ill., to be transported to St. Louis, and received from the employé a baggage check for the trunk. Plaintiff had packed in a leather box in her trunk these articles of jewelry: "Opera glasses and stick in lavender plush bag; one gold watch and chain; one enamel watch and fleur-de-lis pin, set with pearls; one pair gold bracelets, ruby set in each; one odd bracelet; one set, gold breastpin and earrings, one diamond setting in each; one gold breastpin and earrings, containing five diamond settings; one gold crescent breastpin, set with pearls; one enameled four-leaf clover stick pin, set with pearls; one handsome cameo ring; one turquoise ring, five stones; one opal ring, three stones; one emerald ring, one stone; one amethyst ring, one stone; one opal shirt stud."

Plaintiff reached the Union Station at St. Louis about 7:30 p. m., June 19th, and was met there by her brother, to whom she gave the check for her trunk. She went to her home at No. 4949 Fountain avenue that evening. The next morning her brother delivered the check to the Reliance Express Company, and told that company to get plaintiff's trunk from the station and deliver it to her at her residence. The driver of one of the wagons of the express company called at the baggage department of the Union Station for the trunk, which was then in the custody of the Terminal Railroad Association, and on presentation of the check the trunk was delivered to him. The lock had been broken open, and a rope tied around the trunk to keep the top on. The expressman refused to receive the trunk in that condition unless a notation was made by the agent of the Terminal Association showing that it had been broken open prior to the time it

was turned over to the expressman. The trunk was taken from the Union Station about 5 o'clock Saturday afternoon, and was delivered to the plaintiff the same evening in the condition it was in when the expressman received it. On looking over its contents plaintiff found the jewelry mentioned above had been abstracted. This action is to recover the value of the missing articles. No evidence was introduced by the defendants. That for the plaintiff goes to show the trunk was securely locked, with the jewelry in question in it, when received and checked by the Mobile & Ohio Railroad Company at Cairo, Ill. The testimony of the expressman was that the trunk had been opened before it was delivered to him, and that whatever property was taken from it had been taken before then. Neither the ticket nor the baggage check issued to the plaintiff by the Mobile & Ohio Railroad Company was put in evidence, and all we know about the nature of her contract with said railroad company is that she paid her passage from Cairo to the Union Station in St. Louis and checked her trunk over the entire route.

The court instructed the jury, in effect, that if they believed plaintiff was a passenger from Cairo, Ill., to St. Louis, riding on a first-class ticket which read from Cairo, Ill., to the Union Station, St. Louis, Mo., and plaintiff had delivered her trunk containing the articles in controversy to the Mobile & Ohio Railroad Company at Cairo, Ill., securely locked, and said railroad company accepted the trunk and contents as plaintiff's baggage, and the articles in controversy were being carried by plaintiff as part of her bag gage and wearing apparel and for her personal use, and the trunk was delivered to plaintiff at the Union Station by the employés of the Mobile & Ohio Railroad Company within a reasonable time after its arrival, and that when the trunk was delivered to plaintiff the lock had been broken open and the articles enumerated stolen or lost in transit, the verdict should be for the plaintiff against the railroad company, and the damages awarded should be the reasonable value of the articles as found from the evidence. The court refused a direction for a verdict in favor of the appellant, but granted that direction in favor of the Terminal Railroad Association. The appellant requested an instruction that if the jury found the plaintiff had delivered her trunk to it in good condition, to be checked to St. Louis, and thereafter the said railroad company delivered it to the Terminal Association, the presumption is that the trunk was in the same condition it was in when plaintiff delivered it to the Mobile & Ohio Company at Cairo, Ill. This instruction was refused. The appellant also requested an instruction that if the jury believed the trunk was delivered to it at Cairo, and was afterwards delivered by it (the Mobile & Ohio Railroad) to the Terminal Railroad Association to deliver to the plaintiff,

then before plaintiff can recover against said Mobile & Ohio Railroad Company she must show the damages occurred while the trunk was in its possession. Appellant excepted to the adverse rulings. The jury returned a verdict in favor of the plaintiff for $750.

Opinion.

It is contended the court below erred in refusing to instruct that if the trunk and its contents were delivered to appellant in good condition at Cairo, and afterwards delivered by it to the Terminal Association, the presumption is the trunk and its contents were in the same condition at the time of the latter delivery as when received by appellant, and that plaintiff could not recover against appellant except on proof that the missing property was lost while the trunk was in appellant's possession. These theories rest on the assumption that appellant was liable only to the end of its line, and relieved itself of further responsibility by delivering the trunk at that point to the Terminal Association. There is nothing to show when or where the trunk was turned over to the Terminal Association, or that it or any other carrier, except the appellant, had anything to do with its transportation from Cairo to the Union Station at St. Louis. The fundamental fact on which an initial carrier in some circumstances may cast liability for lost freight on a succeeding one is absent from this record. There is no evidence that the trunk was delivered to appellant to be transported over part of its journey by the appellant and over part by a connecting carrier. Nothing appears concerning the connection of the Terminal Association with the trunk, except the bare fact that when the expressman called for it at the Union Station he found it in the custody of the Terminal Association's employés and received it from them. For aught that is shown, the trunk was carried the entire distance by the appellant, and, doubtless, this was true. The inference to be deduced from the evidence is that on its arrival at the Union Station on appellant's train it passed into the custody of the Terminal Association pursuant to some business arrangement between the two defendants. Not only was the appellant the carrier over the entire route, but its contract with the plaintiff was for through carriage. Its agreement was to carry her from Cairo, Ill., to the Union Station, St. Louis, and, as incident to this contract for personal carriage, to carry her baggage too. In support of their position that the appellant, as the contracting carrier, was responsible for the trunk and contents for the whole route, plaintiff's counsel invoke the Missouri statute, which provides that if a common carrier receives property for transportation from one place to another it shall be liable for the loss of the property, caused either by its own or some connecting carrier's negligence. Rev. St. 1899, § 3222. But