know each other, the mind pauses and reflects before assenting to the proposition that every person who enters the service of such a corporation takes the risk of the prudence and carefulness of every other engaged in its multiplied duties and departments of business."

Now if, as has often been said, the intrinsic difficulties in making such a classification are such as to render it impossible to frame a rule of practical utility based thereon, then we say that, inasmuch as the protection of the lives and safety of all her subjects should be the objects of the highest care in the law, to which all other considerations should be made to bend, public policy requires that that rule should be adopted which will best subserve this end. Such a rule is that which holds the master answerable to each of his servants who may be injured without personal fault through the negligence of another of his servants; because its natural tendency will be to insure a higher degree of care on the part of the common master in selecting his employees.

In March last,a bill was introduced in the British House of Commons affecting this question, the object of which was to hold the master to the same degree of liability towards his servants as towards third persons-to abolish the defense of a "common employment." We have not learned the fate of the bill, but in debate thereon it was generally conceded, and especially among those of the legal profession, that the rule of the master's exemption had been carried entirely too far, and that some modification of it must be made.

ASSUMPSIT-INSURANCE-NOTICE OF Loss.-This was assumpsit on a policy of insurance. There was a trial in the lower court, and judgment for the plaintiff. The policy was dated October 5, 1871, by which the plaintiff was insured for one year on a foundry and other property. It is insisted on the appeal that there was no sufficient proof of notice as required by the policy. The property was destroyed in the "great fire" of October 9, 1871. Notice in writing was given to the secretary and accepted by him without objection on November 13th. The policy provides that in case of loss the assured shall give immediate notice thereof in writing. BREESE, J., who delivered the opinion, says: "When we consider the confusion and derangement of business which such a conflagration occasioned, it can not be said the notice was not a compliance with the terms of the policy." Affirmed.-Knickerbocker Ins. Co. v. McGinness.

STATUTE-BURNT RECORD ACT-CONSTITUTIONALITY.-This was a proceeding under the Burnt Record

Act of April 9, 1872, instituted by the plaintiff to establish and confirm his title. The main question which arises in the case is as to the constitutionality of the act, although the question also arises as to the power under the statute to re-open a decree made within more than a year after the entry of the decree. DICKEY, J., says as to this latter question: "As to the time within which an application must be made for opening the decree for answer, this statute expressly limits that time to one year after the entry of the decree, and the allusion to sec. 15, of ch. 21, in Revised Statutes, entitled 'Chancery,' found at the end of section 21 of the Burnt Record Act, has no reference to the matter of the time for filing such petition." As to the question of constitutionality, he says: "The position taken that the Burnt Record Act is unconstitutional is not sustained. It is in effect a statute of limitations, and under the circumstances was not unreasonable. It was demanded as a matter of safety in a great emergency. It was not calculated to take any reasonable being by surprise. We can not doubt the power of the General Assembly to pass the act." Affirmed.-Bertrand v. Taylor.

*

PRACTICE-FILING ADDITIONAL PLEAS.-This was an action of assumpsit. Defendants came into court and filed two pleas: 1st. General issue; 2d. Set-off. Some time after, and before the filing of a replication by plaintiff, defendant filed a third plea, containing a new defense. On motion of the plaintiff, the third plea was stricken from the files. Defendant excepted and appealed. DICKEY, J., who delivered the opinion, says: "Appellants insist it was error to strike their third plea from the files, and claim that defendants have a right under our statutes to file additional pleas at any time before the issues upon pleas already filed are fully made on the record. The statute reads; 'The defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, or may plead the general issue and give notice of specific matter intended to be relied on for a defense on a trial,' etc. This by no means gives to the defendant the right to present from time to time additional pleas whenever it may suit his convenience or fancy. When a defendant appears the court may give a reasonable time to plead, and at any time before he is in some way put in default the defendant may present his defense. He may in doing so present the same in one plea, or in several, but when he has once presented that defense he has no right afterwards to file an additional plea without leave of the court." Affirmed.-McCarty v. New.

RENT-DISTRESS-WARRANT-AFFIDAVIT OF MERITS.-This was a proceeding to collect rent due upon a lease by a distress-warrant. On the return day of the summons the court allowed the plaintiff in the action to file an amended distress-warrant, and an affidavit of claim. The defendant pleaded to the action, but the plea was stricken from the files for the reason that the defendant refused to file therewith an affidavit of merits, as he was ruled to do. Default was taken, and judgment rendered for the plaintiff. The principal question presented is whether, under ch. 80, Revised Statutes of 1874, entitled "Landlord and Tenant," in a proceeding of this character a plaintiff can, by filing an affidavit of claim, require the defendant to file with his plea an affidavit of merits. CRAIG, J., who delivered the opinion, after discussing the question at length, and comparing the remedy and process for collection of rent at common law, and that by the statute in Illinois, says: "After the service of summons the suit is required to proceed in the same manner as an action of attachment. The distress-warrant is made the declaration, the defendant has the right to plead, and a proceeding by a distress-warrant

IF A COMMON CARRIER IS CHARGEABLE with knowledge that the article carried is intended for market, and unreasonably delays its delivery, and there is a depreciation in the market value of the article at the place of consignment, between the time it ought to have been delivered and the time it was in fact delivered, such depreciation will, ordinarily, constitute the measure of damages. Opinion by GILMORE, J.-Devereux v. Buckley.

A VERBAL PROMISE, BY A Judgment Creditor, to indemnify an officer, bolding an execution, against loss or damage from the seizure and sale of property claimed by the debtor to be exempt from execution, is not void as being against public policy, nor is such promise within the statute of frauds. PER CURIAM. -Mayes v. Joseph.

NONCUPATIVE WILL-EVIDENCE.-In a suit to contest the validity of a noncupative will, it is competent to prove that the testamentary words reduced to writing and probated are not the words spoken by the testator, and it is not error for the court to instruct the jury that if the words reduced to writing and probated are not substantially the same as those spoken, the will is invalid. Opinion by WHITE, C. J,-Rolles v. Harris.

A JUSTICE OF THE PEACE received money in his official capacity in satisfaction of a judgment on his docket, and deposited the same in bank to his private account. The bank failed before the sum deposited was drawn therefrom. Held, that the justice was liable to the judgment creditor for the amount so received and deposited. Opinion by BOYNTON, J.-Shaw v. Bauman.

may have notified the company that they would not be liable for debts, upon the assumption that the corporate existence was without authority of law. Judg ment affirmed. Opinion by WRIGHT, J. SCOTT, J., dissenting.-Gaff v. Flesher,

ASSIGNMENT FOR BENEFIT OF CREDITORS-SALE -PAYMENT BY CHECK-DELAY IN PRESENTMENT.— 1. In case of an assignment by an insolvent debtor for the benefit of creditors, the rights of the assignee in the property assigned are no greater than those of the debtor prior to the assignment. 2. Where goods are sold for cash, delivery and payment are concurrent conditions of the sale; and a delivery made in expectation of immediate payment is conditional only; so that if payment be refused, the vendor may reclaim the goods. 3. Where payment is made by a check, drawn by the purchaser on his banker, this is a mere mode of making a cash payment, and not the acceptance of a security. Such payment is conditional only and if the check upon due presentation is dishonored, the vendor's right to retake the goods from the purchaser remains in full force. 4. Nor will such right be affected by a delay in presentment for four days, where the drawer has not sufficient funds in the hands of the drawee for the payment of the check, and no injury arises to the drawer from such delay. 5. Under such circumstances, the right of the vendor to rescind the contract will not be lost, as between the parties, by a delay in its exercise, which is not indicative of an election not to rescind, and is not to the injury of the other party. Opinion by SCOTT, J.-Hodgson v. Barrett, ass.

WILL-CONSTRUCTION—"HEIRS.".-1. A civil action for partition, where the case depends upon the determination of questions of an equitabe character, is appealable. 2. The controling principle in the construction of wills is the ascertainment of the intention of the testator; but where the intention remains in doubt, resort must be had to settled rules of construction for aid in the solution of the difficulty. 3. The law favors the vesting of estates, and in the construction of devises of real estate, the estated will be held to be vested in the devisee at the death of the testator, unless a condition precedent to such vesting is so clearly expressed that the estate can not be regarded as so vested without directly opposing the terms of the will. To this end, words of seeming condition will, if they can bear that construction, be held to have the ef fect of postponing the right of possession only, and not the present right to the estate. 4. A devise to one when he arrives at a given age-the intermediate estate being devised to another-vests on the death of the testator, and is not defeated by the death of the devisee before the specified age. The words of futurity importing contingency, are not inconsistent with the immediate vesting of the estate, but may be regarded as merely postponing the possession. 5. A devise, though not otherwise expressed, is implied in a direc tion in the will to divide an estate amongst specified devises: and the rule vesting legacies-bequeathed only by a direction to pay or divide--at the time fixed for the payment or division, does not apply to devises of real estate. 6. Where a testator devised his whole estate to his wife, until his youngest son became of age, "when" it was to be "divided amongst all his children then living, or their heirs;" and he made no other disposition of the remainder during the term of of years, nor of the estate in case his wife declined to to take under the will, or died before the time fixed for the division; and it appears that he had no other motive in making the will then the creation of the estate for years for the benefit of his wife and certain other beneficiaries: Held, 1. That the disjunctive phrase, "or their heirs," does not refer to the children living when the youngest arrives at age, but relates to

such of them as may then be dead. 2. That the word "heirs" is not used as a word of purchase, creating a a new class of beneficiaries, but is used as a word of limitation, so that in case of the death of a child, his share shall not go to the survivors, but pass as if inherited from the deceased. 3. That the estate vested in the children at the death of the testator, subject to the estate for years, and was not divested by the death of a child during the term, but his share descended to his heirs, who take the same by inheritance and not as devisees under the will. Judgment for defendants. Opinion by DAY, J.-Linton v. Laycock.

EXECUTIONS-LEVY- SUBSEQUENT LEVY-SHERIff-Order oF SALE.-1. Where an actual and valid levy of an execution has been made on personal property, the property so levied upon is, in contemplation of law, in the custody of the officer; and if it is returned to or left with the judgment-debtor, such levy is not per se void as against subsequent levies. 2. Whether such levy is valid, or becomes fraudulent and void as against subsequent levies, is a question of fact, depending on the character of the property, and all the surrounding circumstances of the case. Goods and chattels of the execution-debtor are as against subsequent levies, bound from the time they are seized in execution, but where an officer, under promise of indemnity for his neglect, and to enable the debtor to raise money to satisfy the execution, by the prostitution of his business, merely indorses a paper-levy on the execution in his hands, and allows the debtor to retain absolute possession and control of the property, with power of use and sale in the usual course of business, such levy is void, and the goods and chattels are subject to seizure in execution in favor of other creditors. 4. Where a valid levy has been made upon goods and chattels in the hands of the officer, a constructive levy of subsequent executions coming into his hands before sale may be made by indorsement merely, but when the original levy is a mere paperlevy and therefore void, a constructive levy of other executions will not bind the property against subsequent executions actually levied thereon. 5. Where a sheriff or other officer has been amerced for failure to make the money on an execution, and pays the judgment, or where he pays off a judgment to avoid amercement, he has such an interest in the collection of such judgments as disqualifies him from executing process to collect the same. 6. Where a sheriff has been amerced, and compelled to pay a judgment which he has not collected, he is permitted to sue out execution in the name of the original plaintiff for his use, under section 457 of the civil code, but the process should be directed to the coroner as provided in sectioh 582 of the code. 7. An order of sale of personal property under section 430 of the code presupposes a previous valid levy, but where there is but a mere paper levy which is void, or where there has been a valid levy which has become fraudulent and void as against subsequent creditors, such an order of sale is inoperative as against subsequent executions actually levied on the property. 8. Where an order of sale, founded on such void levy, contains a clause for an additional levy, under section 431 of the code, it is valid as a fi. fa. execution only, which may be levied on the property specified in the original void levy, as well as upon other property. Judgment reversed and cause remanded. Opinion by JOHNSON, C. J.-Murphy v. Swadner.

delivered to the railroad township bonds in payment therefor. Prior to the township vote on the question, B and other parties, with a view to secure a vote in favor of subscription, proposed to the trustees and the electors of the township, that they would indemnify the township against all loss arising from such subscription by taking the stock to be subscribed for, and paying either to the trustees or the holders of their bonds, the interest and principal thereof as it should become due. Subsequently, but before the subscription was made by the trustees, B, in pursuance of his proposition to indemnify, executed and delivered to the trustees his bond, referring in its recitals to his agreement to indemnify the township and binding himself to pay to the trustees, or the holders of their bonds, the interest and principal to become due on $500 of the township bonds, providing that a corresponding amount of the stock subscription should be transferred to him by the trustees; and to secure his compliance with the terms of the bond, he executed and delivered to the trustees a mortgage upon certain real estate, which he afterward sold and conveyed to H H. A portion of the township bonds was negotiated and transferred to R H before maturity by the R. R. Co., with its guaranty of payment. Interest being in arrears on the bonds, R H, by a proceeding in mandamus, sought to compel the trustees of the township to levy a tax for the payment thereof. In that proceeding the supreme court of the state held that the subscription and bonds of the township were wholly unauthorized by law, and were utterly void, and created no obligation in the hands of the R. R. Co., or of the holder. Upon the maturity of the township bonds, H H, to whom the mortgaged premises had been conveyed by B, filed a petition seeking to remove the cloud upon his title arising from B's mortgage. The holders of the township bonds were made defendants, and R H., by answer and cross-petition, sought to subject the mortgaged premises to the sstisfaction of the township bonds. Upon demurrer to this cross-petition-Held, 1. That the contract of B was made only with Brown Township, and had for its sole object the indemnity of the township against such liabilities as might arise from its subscription to the stock of the R. R. Co. 2. That the R. R. Co. having accepted the subscription and bonds of the township, with knowledge of its contract with B, the mortgagor, it can not be allowed to claim that it dealt with the township as the agent of B. 3. That as no liability arose against the township by reason of its unauthorized subscription, or from its bonds which were issued without authority, there has been no breach of the condition of the bond and mortgage given for its indemnity, 4. In the absence of any privity of contract between the mortgagor and the holders of the township bonds, the mortgagor is not estopped to deny the validity of the bonds. Judgment affirmed. Opinion by SCOTT, J. JOHNSON, C. J., dissenting.-Hopple v. Hipple.

REPLEVIN PROPER PARTIES.- Where a sheriff seizes the personal property of A on an attachment against the property of B, and upon a valid order of sale issued after judgment sells the same at public sale, and then delivers the actual possession of the property to the purchaser, and thereafter has no actual nor constructive possession of the property, nor

any interest therein, contingent or conjoint, and no part or connection with the detention of the property from A: Held, such sheriff is not a proper party defendant in an action of replevin brought after such sale to recover the property and damages for its detention. Opinion by HORTON, C. J. Reversed. All the justices concurring.-Moses v. Morris.

IMPLIED WARRANTY-RESCINDING CONTRACT.-A vendor impliedly warrants goods sold by him, without any opportunity of inspection on the part of the buyer, to be of a merchantable quality and reasonably fit for the purpose intended, and if when the goods are delivered to the buyer they are unmerchantable and unfit for use, the buyer may return them without unnecessary delay and rescind the contract; and if the goods on being returned to the vendor are injured or damaged without any fault or negligence on the part of the buyer, such injury does not prevent a rescission of the contract. Opinion by HORTON, C. J. Affirmed. All the justices concurring,-Bigger v. Bovard.

INJUNCTION UNDERTAKING PRINCIPAL AND SURETY.-1. An injunction undertaking is given to secure to the party injured the damages he may sustain, if it be finally decided that the injunction ought not to have been granted. A judgment on the merits of the action against the party obtaining a preliminary injunction is a final decision that the injunction ought not to have been granted, and in such a case a liability arises on the undertaking, whether such injunction was or was not granted in the first instance upon notice and proof, and whether a formal order dissolving the injunction be entered of record or not. 2. Where a judgment is rendered against principal and surety, in which the relations of principal and surety are properly certified, the surety can not thereafter obtain an injunction to stay the levy of an execution upon his property, on the ground that prior to the judgment the creditor agreed with the principal, in consideration of the latter withdrawing his answer, that he would not attempt to collect the judgment off from the principal until he had exhausted the surety's property, nor on the ground that the creditor had delayed issuing execution on the judgment until the principal, who had personal property sufficient to satisfy the judgment, had become insolvent. Opinion by BREWER, J. Affirmed. All the justices concurring. -Fox v. Hudson.

GENERAL INCORPORATION ACT OF 1855 - LIMITATION OF EXISTENCE-REPEAL-ACCOUNTING AMONG MEMBERS.-1. The general incorporation law, passed August 24, 1855, limited the existence of every corporation to the period expressed in its charter, or, if no period of limitation was expressed in its charter, then said general incorporation law limited its existence to ten years. Laws of 1855, p. 186. On August 30, 1855, an act was passed to incorporate the Paola town company. Laws of 1855, p. 829. This act did not limit the existence of said town company as a corporation to any particular period of time. Under it the Paola town company organized October 13, 1855. Held, that said town company was created to exist as a corporation for the period of ten years and no longer. 2. Said general incorporation law also provided for the alteration, suspension or repeal by any subsequent legislation, of any charter granted to any corporation after said general law was passed, and also provided for closing up the affairs of any corporation upon its dissolution. In 1859, the act incorporating the Paola town company, and also the general incorporation law were repealed. Laws of 1859, p. 317, section 37; p. 326, of 1855, sec. 67; p. 544, sec 1. Held, that if said repeal did not have the effect to abolish said Paola town company as a corporation in 1859, neither did it have the effect to extend its corporate existence indefinitely or

beyond the year 1865. 3. From the year 1855 up to the commencement of this action, the Paola town company owned various town lots in the town or city of Paola. The different members of the town company received lots from the company, and received the proceeds of lots sold by them but belonging to the company: Held, that after the year 1865, when the company ceased to exist as a corporation, an action could not be maintained in the name of the Paola town company as a corporation against one of its own members who had received property from the company, or had received more than his share of the property of the company, or owed the company; but the only proper remedy in such a case would be an action by one or more of the members against the others for an accounting and to settle and close up the affairs of the company. 4. And, although a member of the company after the year 1865 might have sold the lots belonging to the company, and might have received the proceeds thereof, and in doing so might have dealt with the company as a corporation, and recognized its existence as such, still in an action brought against him for such proceeds and brought in the name of the company as a corporation, he would not be estopped from setting up the defense that the company had, prior to that time, ceased to exist as a corporation, and that therefore it no longer had any capacity to sue its members as such; for there is no rule of equity or public policy authorizing an estoppel to be interposed in such a case, but, on the contrary, it would be against equity and would also be against public policy as indicated by the statutes. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Krutz v. Paola Town Company.

VENUE, CHANGE OF.-A motion supported by affi davits, stating in substance that because of comments made and reflections cast upon defendant's character in the public papers, causing undue excitement and prejudice against defendant by the inhabitants of the community, is good, and should be sustained. Opinion by DAY, J.-State v. Canada.

FEES OF OFFICERS-LIABILITY OF ATTORNEY FOR. -Where services were made by plaintiff, a county sheriff, for persons for whom defendant was attorney, and petition in substance states that they were charged to defendant; that he consented thereto, and promised to pay the same; that it was customary to charge such fees to the attorneys, of which custom the defendant was informed, the attorney is not liable for the payment of the fees. Opinion by ADAMS, J.-Doughty v. Paige.

CONCEALING MORTGAGED CHATTELS-CONSTRUCTION OF STATUTE.-An indictment found under sec. 3895 of code which makes it an indictable offence for disposing of or concealing mortgaged chattels is not good where there is no stipulation in the mortgage prohibitory of the removal or sale in another county, and an open and unconcealed removal and sale, made in the usual course of business, is not larceny by the statute. State v. Julian.

SEDUCTION - RAPE. Complainant testified that prisoner had sexual intercourse with her on two occasions, and on both occasions she resisted him. De

fendant asked court to instruct the jury as follows: If you find that the intercourse was against the will of the complainant and accomplished by force, then the offense charged is not established, and you must acquit. Held error to refuse the instruction. If the intercourse was accomplished by force and against the will of the prosecutrix, the crime was rape and not seduction. State v. Lewis.

"CIVIL DAMAGE" LAW-EVIDENCE-EXEMPLARY DAMAGES. 1. Where a married woman brings an action for damages because of the sale to her husband of intoxicating liquors, it is competent for her to show the number and ages of her children if she also shows that the defendant knows that she has such children and that they are in danger of being injured or compelled to leave home, and the defendant after such knowledge wantonly continues to sell the plaintiff's husband liquor, by reason of which she acquires a right of action; the evidence is pertinent to the question of exemplary damages. 2. Plaintiff is not entitled to recover for money paid by her husband for whiskey. The amount paid is immaterial, except as a fact tending to show the injury plaintiff had received in her means of support. For such purpose the statement of the husband as to about how much he paid is admissible. 3. It is competent for the defendant to show that the plaintiff had commenced an action against another person, covering the same grounds as in this action; and the ruling of the court excluding such evidence is error. 4. Evidence tending to show that plaintiff purchased liquor for her husband, to avail to the defense, must show, first, that she wrong. fully procured liquor for her busband, and thereby contributed to her own damage, and of the support of which she complains. Therefore, testimony showing that the plaintiff's husband compelled her to got liquor, and at three other times she procured it to keep him out of saloons would not defeat her right of recovery. 5. The mental suffering and anguish occasioned by physical injuries inflicted on plaintiff's person by the husband when intoxicated is a ground for damages, this case not being governed by that of Kearney v. Fitzgerald, 43 Ia. 58. 6. It is not necessary for plaintiff, though having the burden of proof, to prove her case beyond a reasonable doubt, as in criminal cases; a preponderance of evidence is all that is required. 7. Actual and exemplary damages should be included in the general verdict, but a verdict will not be disturbed because of an alleged misapprchension on the part of the jurors when such misappretion could not reasonably be inferred from the instructions of the court. Opinion by ADAMS J.— Ward v. Thompson.

administrator of Shannon v. Austin, on the note, to which a plea of the statute of limitations was interposed: Held, that the action was not barred by the lapse of ten years between the making of note and the payment thereon, the suit having been brought within ten years after such partial payment was made. Our statute (2 Wag. Stst., sec. 30, p. 921), providing that "nothing contained in the two preceding sections shall alter, take away, or lessen the effect of a payment of any principle or interest made by any person whatsoever," is an exact copy of the act of 9 Geo. IV., ch. 14, commonly called Lord Tenterden's act, and the decisions in Englaud on that act will govern the construction here. The English cases seem to concede, or rather assume, that part payment, within the statutory period (here ten years), before suit brought, will take the case out of the operation of the statute, whether before or after the lapse of ten years since the cause of action accrued. Burr v. Boulton, 2 C. B. 476; 15 Law J. C. P. 47; Miller v. Fowkes, 7 S. C. 444; 5 Bingh. N. C. 455; Borden v. Peay, 20 Ark. 203; Inhab. of Bridgton v. Jones, 34 Mo. 471; 18 B. Monroe, 643; 15 Barb. (N. Y.) 565. Affirmed. Opinion by NAPTON, J.-Branscomb v. Austin.

CONTRACT-ACTION ON SPECIAL, CAN NOT RECOVER ON QUANTUM MERUit-Waiver of Error. -In an action on special contract, containing stipulation that plaintiff would "dig an additional pond or throw up dam over creek which ran through pasture of plaintiff so as to furnish sufficient water for defendants cattle during grazing season," an instruction was given by court on trial that, "if jury believe from the evidence, that there was water sufficient in the old pond for defendants cattle as long as said cattle remained in said pasture, although the new pond was not built, then they must find for plaintiff for the time said cattle were allowed to remain in said pasture by defendants." Instruction seems to allow plaintiff to recover on a quantum meruit, although action was on special contract which was alleged to have been faithfully kept by plaintiff. Held, the instruction was erroneous. Where a party fails to conform to the obligation imposed on him in an agreement, he can not recover, on the special contract; but if his services or materials are of value to the other party, and accepted by such party, he is entitled in a suit on a quantum meruit, to recover the actual value of the work or materials, not exceeding the contract price, deducting such damages as have resulted from a breach of the contract. Yeates v. Ballentine, 56 Mo. 530; Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 490. But where defendants ask a series of instructions based on the same theory as instructions complained of, which are given by the court and a verdict rendered for plaintiff, defendants can not, after judgment thereon, be heard to object to a technical blunder growing out of the form of the action, which they waived on the trial by adopting the error. Affirmed. Opinion by NAPTON, J.-Davis v. Brown.

GUARANTOR CAN NOT BE JOINED IN SUIT WITH PRINCIPAL-JUDGMENT BY DEFAULT AGAINST BOTH ERRONEOUS. Plaintiff, Graham, instituted suit in Cape Girardeau Common Pleas against defendant, Ringo, as maker, and defendant Hector as guarantor of a certain promissory note. Hector resided in Cape Girardeau County, but Ringo resided and was served with process in Scott County. Both made default, and final judgment was rendered against both. Afterward, at same term, defendant Ringo appeared specially and moved to set aside judgment, for reasons that he could not be joined in same action with defendant Hector, and being a resident of Scott County the court acquired no jurisdiction of his person by service of process on him in Scott County. Motion sustained and judgment set aside. Plaintiff thereupon took non