him selling those cattle for a few days, and said, "Fred, you said you would not tell about me selling you these cows for a few days;" and defendant replied, "I haven't said anything to any one about it yet." After this conversation the witness, together with defendant and Harry Long, went to Protem, the defendant leaving the cows on the range near the place of purchase. In rebuttal, Emerson Rozell, testifying for the state, said that in 1915 he lived near the Chigre Hill schoolhouse, in Arkansas, within a quarter of a mile of Albert Sissom; that he was well acquainted with Sissom, but did not know that Sissom owned any cattle; that he (witness) supplied Sissom with mile that year. On cross-examination the witness said he never heard Sissom claim that he owned any cattle, but that "he might have had some hid out in the brush, on the range." D. F. McConkey, of Forsyth, and Moore, Barrett & Moore, of Ozark, for appellant. Frank W. McAllister, Atty. Gen. (Thomas J. Cole, of Joplin, of counsel), for the State. WILLIAMS, J. (after stating the facts as above). [1, 2] I. Appellant insists that the evidence is insufficient to support the verdict, and that the court erred in overruling his demurrer to the evidence offered at the close of the case. Cases involving the question of the larceny of stock from the range ofttimes present questions difficult of solution. One of the recent cases which presented a troublesome question of this kind was the case of State v. Lee (not yet officially reported) 182 S. W. 972, in which it was held by the court in banc that the evidence was not sufficient. After a very careful consideration of the evidence in this case we have reached the conclusion that it contains sufficient additional evidence to distinguish it from the Lee Case, and that the evidence is sufficient to make the question of guilt one for the jury's determination. The fact that the cow was driven at night a distance of 10 or 12 miles, and the next day sold and shipped away, and the further fact that defendant left the state at a time when he knew that he stood charged with the crime and that a warrant was out for his arrest, are facts sufficient within themselves to distinguish this case from the Lee Case, and when those facts are considered in the light of the whole evidence we think the evidence sufficient to make a case for the jury. The main point urged by appellant in behalf of his contention that the demurrer should have been sustained is that the evidence wholly fails to show that the cow driven away at night by defendant was in fact the cow alleged to have been stolen. We think the evidence in this regard was sufficient to warrant the jury in finding that the ed to have been stolen. The owner of the cow described his cow as follows: "She was a black cow, weighing one thousand pounds, wore a bell, and had white on her belly and white on her flank, and her right front foot was white." Defendant described the cow which he drove away on the night in question as a black cow, and further said: "As I said awhile ago, I think she weighed 920 pounds, and she had some white on her." It is true that one of the state's witnesses, after testifying that the cow which defendant had in his possession was a black cow weighing 900 or 1.000 pounds, further stated that "she had a little white on both hind feet"; yet on cross-examination concerning the white on the cow he said, "I don't remember; I remember noticing some white on her feet." It will be recalled that the bell which was worn by the cow belonging to the prosecuting witness prior to her disappearance from the range was later found along the road over which defendant drove the cow on the night in question, and at a point six or eight miles north of the range upon which the stolen cow was located prior to her disappearance. We think the evidence, considered as a whole, was sufficient to make the question of the identity of the cow one for the jury. [3] II. It is contended that the court erred in giving instruction No. 8. This instruction informed the jury of the presumption arising from the recent exclusive and unexplained possession of stolen property. The instruction given follows substantially (so far as the present facts justify) the form approved in the case of State v. Good, 132 Mo. 114, loc. cit. 125, 33 S. W. 790. The purpose of an instruction upon this question of law is to aid the jury in identifying the thief when it has first been found by the jury that a theft has in fact occurred. State v. Warden, 94 Mo. loc. cit. 651, 8 S. W. 233; State v. Lee, supra. In the cases cited the giving of an instruction on this subject was held to be erroneous, because in each of those cases it stood admitted that the defendant was the taker (the only issue there presented being whether the taking was or was not felonious); hence the instruction in those cases was unnecessary and apt to be misleading. In the case at bar, however, defendant does not admit nor does it stand conceded that defendant is the person who took the cow from the possession of the prosecuting witness. The person who took the cow from the range, where the prosecuting witness had placed her, was the felonious taker. There is no direct evidence as to who that person was. The identity of the felonious taker was therefore an issue in the case, and, as a permissible aid to the jury in solving this question, the instruction was proper. Other instructions appear to be in proper form, and we find no error in the case. The KANSAS CITY DISINFECTING & MFG. 1. APPEAL AND ERROR 302(5) ASSIGN- An assignment of error in the motion for a new trial that "the court refused proper declarations of law offered by the plaintiff" is not sufficient, even in a civil case to authorize review. 2. APPEAL AND ERROR 242(5)—ADMISSION OF EVIDENCE-OBJECTION OR EXCEPTION. Where evidence was admitted, "subject to the objection" of plaintiff, who made no further effort to obtain a definite ruling, and where there was no definite ruling thereon, the Supreme Court could not know whether the court considered the evidence or not, and hence could not review its admission. Appeal from Circuit Court, Bates County; C. A. Calvird, Judge. Action by the Kansas City Disinfecting & Manufacturing Company against Bates County. Judgment for plaintiff for less than claimed, and it appeals. Affirmed. Plaintiff sued Bates county for the sum of $140, being the purchase price of 70 gallons of Killbug Insecticide, bought in September, 1911, by a sheriff of that county for use in the jail, the poorhouse, and the courthouse. On a trial before the circuit court, sitting as a jury, judgment was rendered in favor of plaintiff for the sum of $20 only, and plaintiff appealed. lons to the poorfarm, and "so much" (meaning the remainder probably) to the courthouse. Plaintiff took the order from one, the said Bullock, then sheriff of Bates county, through a certain C. W. Meyers, as agent, to which latter as a commission for obtaining the order from Bullock, 40 per cent. of the amount of the order, or $56, was paid. Speaking of the valuable and lethal qualities of what the witness amiably, but perhaps euphuistically, denominated "these goods" he said: If "If there are any roaches shows up [sic] around the building it is used for them. there are prisoners brought in, they spray their clothes and sometimes as you know, it is necessary to spray their person with it too. It is an insecticide. We sell it for insecticide, but it is a standard disinfectant. You can use it in a room like this, or any other room, say where one has had smallpox, or something like that. that. It is all right to be used for that, but It is not for toilets, it is too expensive for we do not recommend it for toilets, it is too expensive. * The name shows it will kill any bugs or germs it comes in contact with, any insects." It also sufficiently appeared from this witness' testimony that many demands had been made upon defendant for payment, but that payment had never been made. Bullock, sheriff when the Killbug Insecticide was purchased (utterly reckless of the inherent prohibitive richness of this concoction as a deodorizer for sewers et id omne genus), testified that he bought it as a disinfectant, or deodorizer, to discourage an of The facts are brief, but unique and illumi-fensive odor which came from the jail sewnating. Whether the case originated in the county court and traveled thence to the circuit court by appeal, or whether it was begun originally in the circuit court, is dark and doubtful. Be this as may be, the proceeding is bottomed upon an account for bug exterminator, which, date and merely ornamental externals omitted, reads thus: "Sold to Bates County, Missouri, 70 gallons Killbug Insecticide at $2, $140. Killbug Insecticide, guaranteed by the K. C. Disinfecting & Mfg. Co., under the Insecticide Act of 1910. Serial No. 175." To this account is appended the O. K. of one W. J. Bullock, with the statement, to wit: er, which sewer passed through or near the basement kitchen of the jail wherein the witness resided. He also said that during his term of office he might have bought as much as 320 gallons of disinfectant, and that there was already a barrel on hand when the witness took office, which latter, however, he had never used because he did not recognize it as disinfectant, but thought it was bridge paint. He was, he said, compelled to administer this insecticide to this sewer in portions of 3 or 4 gallons at a time. Other testimony came into the case (over plaintiff's objection, but subject thereto), to the effect that when the case was tried (some two years after the sale here under discus "I ordered and received the above bill of goods sion), there were yet on hand of divers disfor Bates county, as sheriff." Upon the trial the president of plaintiff testified by deposition, and in order, possibly, to show the extent of the infection, he stated that plaintiff sold "this Killbug" to numerous counties in Missouri, Oklahoma, and Kansas, and the witness "judged" that a 70-gallon order was "a reasonable supply for a county like Bates county." The witness stated that, being advised that "these goods" would be delivered for use to the jail, the poorfarm, and the courthouse, he shipped the goods in 10-gallon cans, so that 20 gallons could be conveniently sent to the jail, 20 gal infectants more than 320 gallons, a supply, some of the witnesses say, more than sufficient to last Bates county for ten years. Of this supply on hand more than 60 gallons thereof were made up of the remainder of the identical 70 gallons of Killbug Insecticide bought from plaintiff and now here in dispute. Testimony also came in over plaintiff's objection, and which was likewise admitted subject thereto, that the usual and customary price of standard disinfectants was from Other necessary 75 cents to $1 per gallon. facts, if such there be, will be set out in our discussion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. O. Jackson, of Butler, for appellant. D. C. Chastain, of Butler, for respondent. FARIS, J. (after stating the facts as above). [1] Plaintiff complains that the court erred in refusing instructions numbered 1, 2, and 3, which were offered by plaintiff, but learned counsel does not favor us with any reasons for the faith which we assume is in him, nor does he furnish us with any authorities for the position which he takes. He merely assigns the error and lets it go at that. Moreover, the only assignment of error in plaintiff's motion for a new trial which is at all apposite is the general one that "the court refused proper declarations of law offered by the plaintiff." This is not sufficient as an assignment of error even in a civil case. Polski v. St. Louis, 264 Mo. 250, 175 S. W. 197; Wampler v. Railroad, 269 Mo. 464, 190 S. W. 908; State v. Rowe, 271 Mo. 88, 196 S. W. 7. [2] It is also urged that it was error in the court nisi to admit evidence tending to show that at the time the Killbug Insecticide here in question was bought by the sheriff, he had on hand more than 250 gallons of other disinfectants and insecticides. Like wise that it was error to admit evidence of the price at which other disinfectants were selling at the date of this purchase. Regardless of whether there be inherent error in admitting this evidence or not, it was all admitted by the court "subject to the objection" of plaintiff. In one case the trial court expressed the opinion that the evidence was not admissible, but admitted it subject to plaintiff's objection. Plaintiff made no further effort to obtain a definite ruling, nor was any such definite ruling at any time made upon plaintiff's objections by the trial court. In such case we cannot know whether the court considered this evidence or not. His language when he came to render judgment would indicate that he did not allow it to enter into the case as a deciding factor. No other errors are called to our attention, although it is suggested, apposite to the whole case mayhap, but not in such wise as to call for review by us, that the sheriff had power to bind the county. It is probable that even this suggestion is too broad a statement of the controlling law. We took occasion to say in the case of Lamar v. Lamar Twp., 261 Mo. loc. cit. 189, 169 S. W. 15, Ann. Cas. 1916D, 740, that: the reasons which operate to render recovery of money voluntarily paid under a mistake of law by a private person applies to an officer. The law which fixes his duties is his power of attorney; if he neglect to follow it, his cestui que trust ought not to suffer. In fact, public policy requires that all officers be required to their legal authority." perform their duties within the strict limits of It is not doubted that the statutes (sections 1571, 1573, R. S. 1909) and the construction thereof by this court in a case to an extent analogous (Harkreader v. Vernon County, 216 Mo. 696, 116 S. W. 523) furnish authority to a sheriff of a county to purchase such articles and supplies as are requisite and necessary to keep and maintain the county jail "in good and sufficient condition and repair." But such authority absent an order of the county court, who might pro hac vice make him its agent, would not extend to purchases made for the poorhouse or the poorfarm, the custody and control of which are vested by statute in the county court and not in the sheriff. Section 1343, R. S. 1909. Likewise, the county court is by statute vested with the control of the courthouse (section 4081, R. S. 1909), and while it is made the duty of the sheriff "to furnish fuel, stationery and other things necessary for the use of the court" (section 3887, R. S. 1909), this duty is delimited by the appended provision directing performance thereof "whenever ordered by the court" (section 3887, supra). This latter conditional duty is disassociated from control of the premises, and is a general one which the sheriff owes to the circuit court, to the probate court, and even to the county court itself, though the latter court is the general statutory contracting, auditing, and fiscal agency of the county. Clearly, such an order should either be express or plainly implied from the necessities of the situation. If so it be that Killbug Insecticide is connoted within the extremely general designation of "other things necessary," as contained in the statute last above mentioned (touching which we venture no opinion), we are able to appreciate the pertinency of the qualifying provision that a sheriff in furnishing such other necessary things should act only whenever ordered by the court. For it would be to place too great a burden upon even a sheriff's omniscience to require him to know when Killbug Insecticide becomes an absolute necessity for the sanitation, and comfort of any of these several courts. On the other hand, it might well happen that the duty of providing 70 gallons of Killbug Insecticide for the immediate use of a court would become, upon occasion, so urgent and pressing as to furnish legal warrant for the sheriff's acting without a solemn order of the court to that end, and that such act might in law be excused upon the ground of necessity, or even, if we may borrow a "Officers are creatures of the law, whose duties are usually fully provided for by statute. In a way they are agents, but they are never general agents, in the sense that they are hampered by neither custom nor law and in the sense that they are absolutely free to follow their own volition. Persons dealing with them do so always with full knowledge of the limitations of their agency and of the laws which, prescribing their duties, hedge them about. They are trustees as to the public money which comes to their hands. The rules which govern this trust are the law pursuant to which the money is paid to them and the law by which term from the criminal law, upon the ground But these important puzzling and conflict- was some friction between the families. But ing questions are not confronting us. We merely suggest them as considerations of grave importance to all courts, whom sheriffs are required to serve, reserving our solemn adjudication till a concrete case shall arise wherein we shall meet these points face to face. Since no errors are urged in a manner meet for review, the case ought to be affirmed. Let this be done. All con cur. MOON v. WORKMAN et al. (No. 18624.) 1. DEEDS 196(2) — VALIDITY - BURDEN OF Where a weak-minded son was living with his father when he conveyed land to the latter, the burden was on defendants, claiming the land under the father, to show that the latter acted in good faith and without fraud in obtaining the conveyances. 2. DEEDS~211(3) DENCE-VALIDITY. SUFFICIENCY OF EVI it does appear, from the evidence for plaintiff, that her grandfather met her mother in the road and asked her to make her home at his house, and she did not accept the offer. The wife and daughter made their home with relatives. While at his father's house David did chores and went on errands, but did not make a hand on the farm. He talked little except to himself. He mumbled at his meals. He would frequently, whether alone or in the presence of others, make speeches and gesticulate. One witness said, "He would talk like a preacher or a lawyer addressing a jury." On such occasions, when asked, "What are you doing?" he would answer, "Nothing." In 1887 the wife sued David for maintenance, and got a judgment for $2.50 per week. John Workman, on November 15, 1887, purchased at sale under execution on such judgment five acres, the south end of said tract, for $125; and three days thereafter David conveyed to his father the remaining 75 acres of the tract for the expressed considerIn a daughter's action to set aside convey-ation of $700. That land was then worth ances from her deceased father to her grandfather, evidence held sufficient to discharge the burden of defendants, claiming under the grandfather, to show that he acted in good faith without fraud in the transactions with his son, who was weak-minded and living with him. Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge. Suit by Florence Moon against Francis Workman and others. From decree for defendants, plaintiff appeals. Affirmed. Plaintiff sued to set aside certain conveyances made by and to her deceased father, David Workman. From an adverse decree she has appealed. $20 or $30 an acre. On May 25, 1889, David's wife obtained a divorce from him with $35 as alimony. John Workman paid a fee of $25 to David's lawyer in that case. It does not appear whether he paid the alimony. Three days afterward the divorced wife quitclaimed the land in controversy to John Workman for the expressed consideration of $25, and David quit-` claimed to his former wife 44 acres of land The evidence for the plaintiff shows the tween the parties. During John's life he following facts: loaned some money in David's name and Plaintiff's parents, David and Martha Ann kept a separate bank account of it. Workman, were married in 1865. Three years afterward John Workman, David's father, conveyed to David 80 acres of "good smooth land," described as the W. 1⁄2 of the S. W. 4 of section 18, township 65, range 35, in Nodaway county. The consideration is not shown. David lived with his family on that land from that time until 1886, when his house was burned. He then had an only child, this plaintiff. His mind had very appreciably failed for several years, so much so that his wife, who was "a hustler," had assumed the management of affairs. Prior to the fire on some occasions in winter time John Workman, who lived about four miles away, would take David's cattle to his own place and care for them because they (the cattle) were in poor condition. After the fire David went to his father's to live. The daughter, this plaintiff, was there a while. There is evidence indicating that the wife wanted to rebuild and continue on the farm, but that David refused, and also that there In 1894 John reconveyed a life estate in the land to David for the expressed consideration of $1 and love and affection, and died in 1902. He could not write, and signWilliam F. ed his name by making a cross. Gray, who appears to be a relative of the plaintiff and testified for her, was constrained to say, "Uncle Johnny was a strong, selfwilled man, and whatever he told you you could depend on." Early in 1903 this plaintiff instituted proceedings to have her father adjudged to be of unsound mind, which resulted in putting him under guardianship, his money and notes then amounting to about $1,750. David thereafter lived with his brothers and nephews, dying in 1912, at which time his property in his guardian's hands amounted to $2,068.80, of which $1,729.83 was paid to plaintiff. The evidence indicates clearly that during all the time after the burning of his home David was treated with kindness and affec For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes itself. Even the plaintiff paid her grandfather a deserved compliment by not asking that he be put under bond as his son's guardian. Very soon after his death she instituted proceedings to have her father adjudged insane. David then had in money and notes about $1,750. One of plaintiff's witnesses said of John Workman, "Whatever he told you you could depend on." His name needs no statute of limitations to protect it from the charge of fraud and unfair dealing. The judgment is affirmed. tion by those with whom he stayed, and that he conveyed to the son a life estate in the ne to the extent of his powers was faithful | land. He faithfully kept David's money to as a watchdog to those who cared for him. The petition alleged mental incapacity to make the deed which he made to his father in 1887, and also alleged fraud and undue influence on the part of his father in procuring said deed, and sought to have. said deed to the father set aside. The petition does not offer to return the consideration expressed in the deed. The answer states that John Workman took said deed in good faith and for a fair consideration, and pleads the statute of limitations. It alleges that plaintiff is barred by the statute of limitations, "even if it be true, as alleged by her, that the said David Workman was of unsound mind on November 18, 1887, when he made the deed in controversy of the land above described to the said John Workman." Appellant's brief in this court disclaims the idea that David was of unsound mind when the deed was made in 1887, but insists that he was of weak mind and under the domination of the stronger mind of his father. W. E. Wiles, of Cherokee, Okl., for appellant. Shina bargar, Blagg & Ellison, of Maryville, for respondents. ROY, C. (after stating the facts as above). [1] We think that $700, the consideration named in the deed from David to his father, made in 1887, was about half the value of the property. We also recognize the fact that the relations between David and his father at that time were such as to cast the burden upon these defendants of showing that the father acted in good faith and without fraud in that transaction. [2] On the other hand, we are of the opinion that the defendants have fully discharged that burden. After the fire John Workman took David and cared for him. He offered the wife a home which she did not accept. She went elsewhere, as she had the right to do, but she got judgment against her husband for maintenance. That judgment was threatening to eat up the land. John knew that the land was subject to dower and to a lawsuit. WHITE, C., concurs. PER CURIAM. The foregoing opinion of ROY, C., is adopted as the opinion of the court. All the Judges concur. CITY OF LANCASTER v. REED. (No. 18930.) (Supreme Court of Missouri, Division No. 2. COURTS 231(23)-SUPREME COURT JURIS- In a prosecution for violation of a city ordinance, defendant's motion to quash the complaint because the ordinance on which it was based was unconstitutional and void, and infringed on the rights of personal liberty, etc., did not give the Supreme Court jurisdiction of his appeal, since the provision of the Constitution involved must be pointed out to give Constitution, state or federal, not being suffisuch jurisdiction; a general reference to the cient. Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge. Prosecution by the City of Lancaster against Wes Reed. From judgment sustaining motion to quash the complaint, the City appeals. Case transferred to the Kansas City Court of Appeals. Claude C. Fogle, of Memphis, for appellant. S. W. Mills, of Kirksville, and Higbee & Mills, of Lancaster, for respondent. WHITE, C. The city of Lancaster appeals from the judgment of the circuit court of Schuyler county, sustaining a motion to quash a complaint filed in said circuit court against the defendant. The amount paid by him for the land is probably more than any one else under the circumstances would have paid. One of plaintiff's witnesses expressed his opinion of such a deal by saying, "I wouldn't buy such a title." That was too pessimistic, but the plaintiff should not entirely repudiate the opinion The defendant was charged with violating of her own witness. While the son was Ordinance 195 of the city of Lancaster. Secmumbling at his meals and "talking loud tion 1 of this ordinance provides that any like a preacher or a lawyer," the father person who shall be guilty of an act of pubwent into the "first ditch" to save the land lic indecency shall be guilty of a misdeif he could. Did he do that for self or for meanor. Section 2 defines such an act, and, the son? The indications are that he gave among other things, provides that whenever the land to the son in 1868. In the winter two or more persons of opposite sex are as time, when David's feed was exhausted, the sociated together upon the sidewalk or streets father took the half-starved cattle of his of the city, one of them being a person of boy and fed them until grass came. In 1894 ill repute, such association is an act of in |