upon the American Bank Building based upon his knowledge of its cost. It was not shown that the stock had no marketable value, and, if it had been, no effort was made to show the value of the assets of the corporation. Certainly it was not proper to ask the value of the building separate from the ground, or the ground separate from the building. The court did not exclude evidence as to what the real estate as it stood, with the building on it, was worth as a whole. The witness was nowhere asked what the market value of the building was at the time. This evidence was only received to show the value of stock in the absence of better evidence. It had already been shown that the stock itself had a value, and the inquiry, at most, should have been confined to the market value at the date of the assignment or failure. This is the full extent to which Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440, went. In that case it was shown the corporation had never put its stock on the market, and we permitted proof of the market value of the plant, the only property it had, in order to determine whether the stock had been negligently sacrificed. Neither was there any error in excluding Mr. Hanna as a witness to the value of the Denison Building & Land Company. He himself testified he sold his stock in the company in 1892, and did not know its value July 10, 1893. When Albert Marty was on the stand, it was sought by defendant to show the value of the American Bank Building Company's stock by giving the value of the land and building separately, whereupon the criminal court ruled "that he may testify to the reasonable market value of this property on July 10, 1893." This was correct. Defendant introduced his evidence on this theory, and had the full benefit of it. The exclusion of the testimony of W. F. Reed to prove what the supreme court of Kansas had decided with reference to the Buchanan law, and the effect of tax deeds, is not shown to be prejudicial in any way. It would seem that it had, or was supposed to have, some relevancy to a tax deed in evidence; but, as neither the tax deed nor the Kansas law has been preserved in the bill, we would not be able to apply the decision of the supreme court of Kansas to the facts, and hence must presume the circuit court correctly excluded it. We have not overlooked, or failed to consider, other objections to evidence, but we do not deem it necessary to lengthen this opinion, already too long, by minute reference thereto. It will suffice to say we find no reversible error either in the admission or rejection of evidence.

3. The court's instructions are challenged. Instruction No. 7 has been approved so often in this state that we must decline to enter upon its defense. State v. Carlisle, 57 Mo. 102; State v. Brown, 104 Mo. 365, 16 S. W. 406; State v. Wisdom, 119 Mo. 539, 24 S. W. 1047. The ninth and tenth instructions directed the jury that if Mrs. Vogt,

either alone, or with some other person, deposited the money for and in behalf of herself and other persons, the owners of said money, then, for the purposes of the trial, they would consider the money was deposited by Mrs. Vogt. As the evidence disclosed beyond controversy that she was the president and a member of a voluntary charitable association, to whom the money belonged, and, as such, had been intrusted with the money, unquestionably the indictment and instructions properly laid the ownership in her, as against all wrongdoers and tort feasors, and there was no variance in the proof. It is said by defendant that the fourteenth instruction is erroneous, in not defining what it meant therein by "assenting to the reception in said bank of a deposit of three hundred dollars of money, of the value of thirty dollars or more," after he had knowledge that said bank was in failing circumstances. These words are all plain, simple, English words, and express very clearly what would constitute a criminal taking or reception of the money. An attempt to simplify would end only in mystifying. This demand for explanation of such common expressions, readily understood by all people of ordinary intellect, is without reason. It assumes an ignorance on the part of jurors which, if true, would stamp the jury system as a fraud. We have not found the ordinary juror so ignorant, and are unwilling to believe he is incapable of comprehending an instruction so simple as this. Moreover, the fifteenth instruction advised the jury as to the law if an employé under defendant received the deposit. The defendant argues that, to make defendant liable for the reception of the deposit by one of the employés acting under his direction and authority, such authority must have been given after he knew the bank was in failing circumstances. This cannot be true. The moment he became aware the bank was in failing circumstances, the law devolved upon him the duty of revoking the authority of any employé under him, and subject to his control, to receive any further deposit; and his failure to prevent further deposits must be construed as a continuing authority to receive them, and an assenting thereto, because by one word it was in his power to close the bank, or notify all parties that no more deposits would be received. This was the plain measure of his duty, as prescribed by the law, which he was conclusively bound to know. The seventeenth instruction is in these words: "The court instructs the jury that the failure of the banking institution in this case is prima facie evidence of knowledge on the part of its cashier that the same was in failing circumstances on July 10, 1893. The court instructs the jury that prima facie evidence is such that raises such a degree of probability in its favor that it must prevail unless it be rebutted, or the contrary proved." This in

struction is a rescript of the statute, and was expressly approved, after an exhaustive examination and discussion, in State v. Buck, 120 Mo. 479, 25 S. W. 573. But we are now asked to reconsider that case, and say that this instruction should not be given without the further modification suggested in these words: "In the absence of any evidence tending to explain or modify that presumption." This would be tautological. The court had already told the jury the presumption was subject to be rebutted and overturned by the other evidence. Along with this instruction. the court was careful to instruct the jury they must acquit unless they found defendant guilty beyond a reasonable doubt, upon the whole evidence. It is true, it has been said that a prima facie case is not sufficient in a criminal prosecution. If it is meant by these cases, as we think it is, that the state has the burden throughout a criminal prosecution to show the guilt of the defendant beyond a reasonable doubt, then we heartily concur in that view; but if, on the other hand, it is meant that the presumptions indulged by the law in civil cases have no effect in a criminal case, we do not agree to it. From time immemorial, in the prosecution of prisoners for larceny and burglary, the common-law courts have uniformly instructed the juries that recent possession of stolen property was prima facie evidence that the person in whose possession it is found was the thief, and, if he failed to account for his possession of such property in a manner consistent with his innocence, this presumption became conclusive against him. In such a case, is it not self-evident that the prima facie case is sufficient and conclusive, unless rebutted by the other evidence in the case? After a most careful and patient review of the effect of presumptions in such cases, in State v. Kelly, 73 Mo. 608, Sherwood, C. J., deduced this result: "In cases of this sort the state, by reason of the presumption arising from the fact of possession, has adduced prima facie evidence of theft; and evidence of this description is said to be such as is sufficient to establish the fact, and, if not rebutted, becomes so conclusive as to require a verdict in accordance therewith;" citing Kelly v. Jackson, 6 Pet. 622; 1 Greenl. Ev. 33, note; U. S. v. Wiggins, 14 Pet. 334; Com. v. McGorty, 114 Mass. 299; State v. Dickson, 78 Mo. loc. cit. 447. Strong as the presumption of theft from recent possession of stolen property is, it stands upon no surer foundation than the presumption of knowledge which the law presumes the cashier and managing officers had of its failing condition from the failure itself, in the absence of evidence rebutting that knowledge. It is entirely possible that the bank may be ruined by the crime or fraud of subordinate employés, or by a sudden and unexpected panic, and the officers innocent of all wrong. In this case the deposit was v.33s.w.no.1-4

made about 3 o'clock in the afternoon, and before 8 o'clock that night the deed of assignment was drawn up and executed, ready for recording the next morning. As cashier of the bank, it was defendant's duty to know the condition of the bank's finances. He knew there was only $11,000 in the vault, and that the liabilities amounted in round numbers to $2,000,000. It is utterly contrary to human and business experience that the man most intimately acquainted with the bank's resources could have been ignorant of the impending failure. We think the presumption accords with the common experience of mankind, and casts the burden upon the one whose duty it is to account for the moneys confined to his keeping. We have gone carefully through all the other instructions, and are of opinion that the court fully and fairly instructed the jury upon every point; and, this being true, there was no error in refusing instructions prayed for by the parties.

Finally, it is urged that the judgment must be reversed because the jury rendered a general verdict of guilty, and did not specify the count. The evidence shows but one transaction,-the receipt of the deposit, and the issuing of the certificate of deposit. When the several offenses charged in the different counts of an indictment, though distinct in law, spring out of one and the same transaction, or are so connected in their facts as to make them parts of one transaction, the defendant cannot be prejudiced by the joinder, and the court will not compel an election, and will sustain a general verdict. 1 Bish. Cr. Proc. § 457, note 3, and sections 458, 459; State v. Testerman, 68 Mo. 408; State v. Core, 70 Mo. 491; State v. Noland, 111 Mo. 473, 19 S. W. 715. Being unable to sustain any of the errors assigned, the judgment is affirmed.

1. It is not error to refuse an application to make a receiver of a corporation party to an action by it for injunction begun before his appointment, the application being made, not by him, but by attorneys for the corporation, and just before the cause is to be called for trial, under circumstances that would necessitate its going over the term if the application were granted, though the receiver was appointed six months before, and no excuse is shown why application should not have been made earlier.

2. A party can, by the express provision of Rev. St. 1889, § 2258, be given but one change of venue.

3. Notice of one or two hours is not sufficient, within Rev. St. 1889, § 2262, providing

for consideration of an application for change of venue if reasonable notice be given the adverse party.

4. Under Rev. St. 1889, § 2261, requiring affiant to state "when he obtained his information and knowledge of the existence" of the cause assigned for his application for change of venue, it is not enough to state merely that he obtained it "since" the last term of court; it not thus being shown whether diligence was exercised in making the application.

5. An application for change of venue on the ground that the opposite party had an undue influence over the mind of the court is properly refused, it having been prepared before and presented immediately after an application by the party that a receiver be made a party.

6. The clerk of the court having stated that he could not find certain pleadings in the case, and defendant's counsel having stated that they were in the possession of an attorney for plaintiff, who was not present, that he consented to his taking them away over a year before, and this being uncontradicted, and no objection being made by the attorney for plaintiff, who was present, when defendant's counsel stated to the court that he would file certified copies in case the originals could not be found, permission to file such copies thereafter given, over the objection of plaintiff's counsel that notice of intention to file them had not been served on or waived by him or plaintiff, will not be held error, it not being intimated that the pleadings thus supplied were not correct copies.

7. Refusal of continuance for absence of counsel familiar with the facts in the case is not error, no excuse for his absence being given.

Appeal from circuit court, Carter county; John G. Wear, Judge.

Action by the St. Louis, Cape Girardeau & Ft. Smith Railway Company against Hiram N. Holladay and another. Judgment for defendants. Plaintiff appeals. Affirmed.

M. R. Smith, for appellant. Dinning & Byrns, for respondents.

SHERWOOD, J. This cause originated in Wayne county, and was begun November 6, 1890. The ostensible object of this proceeding was to restrain defendant Holladay from collecting a judgment recovered by him in the Wayne circuit court in October, 1890, against the plaintiff company, as garnishee of Flaherty & Deavignon, for the sum of $1,630, who, it seems, were contractors on plaintiff's 1oad, and to whom plaintiff owed that sum. The other defendant, Johnson, is the sheriff of Wayne county. The petition admits that judgment was rendered against it on garnishment process in manner as above said; but there is no intimation, pretense, or excuse in the petition to the effect that any attempt was made by the garnishee plaintiff to plead some of the matters alleged in the petition to be true, and which, if true and had been pleaded, would have prevented any judgment from going against the incorporated gar

nishee.

As the garnishment judgment was suffered to go without any plea or proof to arrest its progress, of course it would be contrary to fundamental principles to permit questions settled by that judgment to be reopened and reagitated in a subsequent proceeding, without some allegtion sufficient on proof thereof to over

come, restrain, or set aside any other judgment at law. Association v. Parker, 58 Mo. 327, and cases cited. The petition in this case is, indeed, a nondescript. It is filled with a mass of irrelevant matter, wholly foreign to the mere purpose of enjoining the collection of the judgment mentioned; seeks an accounting on matters entirely extraneous to and independent of the garnishment judgment; asks a recovery in the sum of $5,000; and seems to have been framed, adapted, and designed to speak thus of its chaotic allegations with the sole purpose in view of delay. To this petition appear the names of William Carter and Wilson & Whitelaw, as attorneys, and it is sworn to by Louis Houck, as president of the corporation. Plaintiff company gave bond, and obtained a temporary injunction, restraining the collection of the judg ment. Defendant Holladay, at the March term, 1891, filed an answer to the petition, claiming that plaintiff owed him $17,800 over and above the judgment aforesaid, denied the principal allegations of the petition, and sought to recover judgment for the amount thus claimed, and upon this filed his motion to dissolve the temporary injunction, which motion does not appear to have been acted on. After the answer of defendant had been filed, the parties agreed of record that the cause should be passed to the June adjourned term, 1891, for trial. At that term, plaintiff applied for and obtained a change of venue from Wayne county, and from the TwentySixth judicial circuit. The application therefor is in effect the following: (1) Undue influence of the adverse party over the mind of the court (Judge James F. Greene) is charged; and the allegation made that it cannot have a fair and impartial trial on this account. (2) It is alleged that a fair and impartial trial cannot be had by plaintiff in said county of Wayne, because the inhabitants of that county are prejudiced against it, the applicant railroad company, and (3) because the opposite party has an undue influence over the inhabitants of Wayne county. and therefore the petitioner cannot have a fair and impartial trial. This application is signed by William Carter, William H. Miller, and M. R. Smith, as attorneys, and is sworn to by Edward F. Blomeyer, general superintendent of the plaintiff corporation, on June 3, 1891, at Cape Girardeau, before Rudolph Bohn, notary public. The cause being sent to Carter county in another circuit, at the October term, 1891, of that court, the parties, by entry of record, agreed that the cause should be continued till the 4th Monday in January, 1892, and be tried at Poplar Bluff, Butler county, Mo., and the judgment to be rendered therein in term time in Van Buren, Carter county, as early as convenient thereafter, but no such trial took place. In June, 1892, plaintiff filed an amended petition in the Carter circuit court, and, on the same day, defendant Holladay filed his answer thereto. Neither the amended petition nor defendant

Holladay's answer differs in any material respect from their predecessors in pleadings, and the petition is signed by William Carter, W. H. Miller, and M. R. Smith, and is sworn to by Louis Houck, as president of the plaintiff corporation, on the 26th of January, 1892, though not filed till nearly four months thereafter. Soon after the amended petition and answer thereto were filed, to wit, in June, 1892, as shown by the testimony of E. P. Settle, one of defendants' counsel, M. R. Smith, one of plaintiff's counsel, was permitted, by consent of said counsel, to take said papers away with him from Carter county, and he (Settle) had never seen said papers since, nor could the clerk of the court, Coleman, find said papers after diligent search for the same, and said clerk had not seen said papers since June, 1892.

At the October term, 1892, of the Carter circuit court, by agreement of parties, the cause was continued, presumably to the next term thereafter. The October term, 1893, of the Carter circuit court, began on Monday, the 2d day of that month. Moses Whybark, who had been employed on the 27th of September, 1893, as additional counsel in this case on behalf of plaintiff, arrived in Van Buren at about 3 o'clock in the afternoon of Monday, October 2d, from Cape Girardeau, where Louis Houck, the president of the plaintiff railroad, resides. Whybark, who lives in Marble Hill, Bollinger county, on Sunday afternoon, the 1st of October, set out from his home, and took a train for Cape Girardeau. Why he went there, or whom he went to visit, his affidavit does not tell us; but, at any rate, he went there, and remained there all night. On Monday morning early he took the train, and reached Van Buren at 3 o'clock in the afternoon of Monday, October 2d, as already related, on the first day of the term. On his arrival, Whybark's first care was to file a motion on behalf of plaintiff for a rule on Louis Houck, president as aforesaid, to show cause why he should not be made a party to this proceeding. This motion was signed by Miller, Smith, and Whybark, as counsel. The orders of the Cape Girardeau court of common pleas, which accompanied the motion, showed that Houck had been appointed receiver of the plaintiff corporation on the 4th of March, 1893, with full powers, etc. This motion for a rule, being taken up, was denied. Had it been granted, it is easy to see that under the provisions of section 2035, Rev. St. 1889, it would, as the distance to Cape Girardeau is shown to be 70 miles from Van Buren, have taken at least seven days in order to serve the rule on Houck after the motion had been granted, saying nothing as to a reasonable time which should have been given him in which to answer the rule, so that it would have required a much longer time to have the rule served and answered than is usually allotted for a term of the circuit court in the rural districts; so that this would have

occasioned still further delay, and sent the case over to the next term. Besides that, it was entirely within the discretion of the circuit court whether the receiver should be permitted to intervene and be made a party to the litigation, even if he had made a personal application for permission to do so, because a receiver is a mere officer, the hand of the court exercising his functions in the interest of neither plaintiff nor defendant, but for the mutual benefit of all the parties litigant. litigant. Patrick v. Eells, 30 Kan. 680, 2 Pac. 116; High, Rec. (3d Ed.) § 1. And it is held that the receiver himself is the proper person to make the application to intervene and be joined with the corporation over which he is appointed, and that to refuse such application when made by the corporation is not error. Insurance Co. v. Jaynes, 87 Ill. 199; Beach, Rec. § 708. In many instances it is not necessary to bring in the receiver; certainly not where the parties in interest are sufficiently represented before the court to enable it properly to determine the controversy (High, Rec. §§ 259, 260, and cases cited); and this is the situation in the case at bar. Again, a receiver is a stranger to all proceedings instituted and in progress prior to his appointment, and this status remains until he has been made a party to the action by the order of the court. Beach, Rec. § 708. So that, if an action be commenced against a corporation before the appointment of a receiver, there is no legal objection to the continuance of the action in that form until final judgment is obtained. Tracy v. Bank, 37 N. Y. 523; Railway Co. v. Beggs, 85 Ill. 80; Heath v. Railway Co., 83 Mo. loc. cit. 621. In the foregoing circumstances, therefore, there was no error in denying the motion for a rule on the receiver to show cause, etc., even admitting that such was the proper course to pursue in order to make the receiver a party, as to which point there is no warrant or authority to be found. Nor, in this connection should it be forgotten that assuming as true that Houck was appointed receiver on the 4th of March, 1893, no reason is shown, nor excuse given, why application to make him a party, etc., should not have been made at the April term, 1893, instead of waiting six months thereafter, and until the cause had been docketed for trial.

Immediately after the denial of the preceding motion, plaintiff's attorney Whybark filed an application, which he had with him already prepared, for a change of venue. This application was signed by Smith, Miller, and Whybark, and is sworn to at Cape Girardeau by McCarty, the general manager of the plaintiff railroad. This affidavit is dated September 30, 1893, which was the Saturday next before the Sunday when Whybark went on his trip to Cape Girardeau. The application and affidavit charged the judge of the circuit court, Judge Wear, with prejudice against the plaintiff railroad, and

that defendant Holladay had an undue influence over the mind of said judge, and that, in consequence of these grounds, the plaintiff railroad could not have a fair and impartial trial, and that the information on which the application for a change of venue was based had come to the knowledge of the affiant since the last term of the Carter circuit

Dinning, attorney for defendants, on presentation of the intended application, admitted that notice was given him at 3 o'clock of the same afternoon. It will be remembered that in the affidavit for a change of venue it was alleged that the opposite party had an undue influence over the mind of Judge Greene.

The court took up the application for a change of venue, and refused to grant it, giving as reasons that-"First, the application comes after the cause has been twice called on the docket for trial; second, because there has been one change of venue granted the plaintiff heretofore; third, because the application was not made until after the application for a rule to bring in the receiver had been made by plaintiff, and the ruling thereon had; fourth, because the application states that the facts came to plaintiff since the last adjournment of this court, and there is nothing to indicate that notice of this application could not have been given to defendant before this cause had been called for trial on the docket." There can exist no doubt of the correctness of this ruling. Our statute is explicit that but one change of venue shall be granted either party. Rev. St. 1889, § 2258. This point alone would be sufficient to dispose of the case in affirmance of the ruling made. But there was no notice given of the intended application for a change of venue; that is to say, no reasonable notice. An hour or two's notice does not answer the requirements of section 2262, Rev. St. 1889. Section 2261 requires that affiant shall state "when he obtained his information and knowledge of the existence" of the cause assigned as the basis of the application. Here the statement made is that such information reached affiant "since the last term of the Carter county circuit court." How long "since" that term does not appear. Obviously, such a statement is not a compliance with the statute, and does not enable the court to determine what diligence, if, indeed, any, has been employed, after discovering the ground therefor, in applying for the change. But the worst feature in the matter of this application is the fact that, with the sworn information in his pocket that the "opposite party had an undue influence over the mind of the judge," counsel holds this in reserve, while he files a motion for a rule, etc., and, so soon as he sees this unsuccessful, draws forth and presents the application for a change of venue. Such conduct will not be tolerated in a court of justice. A party will not be permitted to submit himself to the jurisdiction of a court

when he pretends to have information which should prompt him at once to oust that court of its jurisdiction. He cannot take the chances in any such way. State v. Matlock, 82 Mo. loc. cit. 457..

After the change of venue was denied, the court ordered the cause to proceed, whereupon counsel for defendants informed the court that the last amended petition and answer could not be found, and asked for a rule on the clerk, and the clerk responded as already set forth; and then the statement was made by one of defendants' counsel, which is uncontradicted, that the lost papers were in the possession of M. R. Smith, counsel of plaintiff, and that he was, by consent of counsel for defendants, allowed to take them away in June, 1892, and they had never been seen since. Then counsel for defendants informed the court, in the presence of plaintiff's counsel, that he would file certified copies of the original pleadings in case the originals could not be found. There was no objection made by plaintiff's counsel to the lost papers being thus supplied. This ended the first day's proceedings. On the second day of the term (Tuesday, October 3, 1893), defendants' attorney renewed his statement that the lost pleadings were in the possession of M. R. Smith, one of counsel for plaintiff, and that he was informed by Moses Whybark, then present, that Smith, one of his co-counsel, would be present in court at 3 o'clock of that day. Thus ended the second day of the term. On Wednesday, the third day of the term, and 4th day of October, 1893, Smith having failed to arrive, and the papers not being produced, counsel for defendants were allowed to supply the missing files. The only objection urged by plaintiff's counsel to this was "because no notice of such intention was served to file said papers, had been served on him or plaintiff, or waived by him or plaintiff." These copies of pleadings were duly verified by one of counsel for defendants, who was familiar with the originals, and had helped prepare the answer, and he also testified, as heretofore stated, that Smith had taken the lost papers away with him in June, 1892. No error is seen in this ruling of the circuit court. Independent of the statute, a court has the power of supplying its missing papers, records, or files. State v. Simpson, 67 Mo. 647. Generally speaking, notice would have to be given to counsel having the papers to produce them, before supplying them, but this was unnecessary in the circumstances of this case. It is not intimated that the files thus supplied were not in all respects substantial, if not literal, copies of the originals; and in these circumstances it should be held no ground for reversal that the copies were not supplied in strict conformity to the statute. See Ivy v. Yancey (Mo. Sup.) 31 S. W., loc. cit. 938, for an analogous rule. Reversals should not occur because of nondetrimental error.