1 judgment and a new trial of the cause, but may named in the bill of particulars and affidavit be corrected in this court." filed in the justice court, the defendant is entitled to a modification of the judgment to conform to the amount named in the bill of particulars and affidavit filed in the justice court. The incompetent testimony complained of is presented by the deposition of William C. Mueller, and, after a careful review of said evidence, we are of the opinion that, if error was committed in the admission of any part of said testimony, such error was without injury, the case being tried to the court, and there being sufficient evidence outside of said depositions to fully sustain the judgment rendered. We have carefully considered all the evidence, and are of the opinion that said evidence fully sustains said judgment, and that a demurrer thereto was properly overruled. It is therefore ordered that the alternate judgment for the value of the house in this case be modified so as to reduce it to the sum of $150, and that, as so modified, said judg ment be affirmed, and that the costs in this court be divided between the parties, under section 5261, Revised Laws. PER CURIAM. Adopted in whole. (67 Okl. 320) TITLE GUARANTY & SURETY CO. OF We are of the opinion that the former opinion in this case (A. J. Welch v. W. W. Church, 155 Pac. 620) fully sustains the ruling of the trial court in overruling the demurrer to the petition, and, that opinion being the law of the case, we deem a further consideration of (Supreme Court of Oklahoma. Feb. 12, 1918.) the demurrer to the petition unnecessary, and uphold the said action of the court upon the authority of A. J. Welch v. W. W. Church, supra. In the opinion in the former appeal in this case, it being held under the evidence, which is substantially as the evidence in the second trial of the case, that the house in controversy was personal property, even if the trial court, as insisted by defendant, but which insistence is not sustained by the record herein, held that the presumption was that the house was personal property, such holding would have been error, such error was without injury. It follows that the court did not err in overruling the motion for a new trial. On February 15, 1917, the plaintiff filed in this court a remittitur of $100 of the alternate judgment rendered in this case, and in his brief insists that while the rendition of such alternate judgment in the sum of $250 was error, the same is not a reversible error, and should be corrected by a modification of the judgment as asked by the remittitur filed, and in this contention the defendant virtually agrees, saying in his brief: "If the excessive judgment were the only error, and if it were not so much in excess of the jurisdiction of a justice of the peace, and so contrary to the law and evidence, as to show either bias, prejudice, or an absolute failure to understand the law, we might ask that the judgment be modified, and the costs of this appeal be equally divided, as provided in section 5261, R. L.” --and, as we find no error in the trial of the cause in the court below, except as to the amount of the alternate judgment, we think that this is a virtual confession, on the part of the parties to the cause, that this cause should not be reversed, but the judgment modified, and with these contentions we agree, therefore, it clearly appearing that the court committed error in finding the value of the house in excess of the amount (Syllabus by the Court.) 1. GUARDIAN AND WARD 182(1)—WARD'S ACTION FOR ACCOUNTING-PARTIES DEFEND ANT. Where a guardian dies without an account- ing and settlement of his affairs as guardian BILITIES. Where a statute of limitations excepts persons laboring under disabilities from its operainfants are within the saving clause of the stattion, without mentioning infants specifically, ute, and the statute does not run against them during such disability, even where such infant in his or her name, provided the title or right of has a guardian who might maintain the action action is in the infant. 4. WARD'S ACTION FOR ACCOUNTING-SUFFICIENCY OF EVIDENCE. Record examined, and held that the judgfor the full amount thereof. ment rendered is supported by sufficient evidence KANE, J. This was an action upon a guardian's bond, commenced by the defendant in error, by her guardian and next friend, plaintiff below, against the plaintiff in error, defendant below. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendant," respectively, as they appeared in the trial court. The bond sued upon was given by S. Burton, a former guardian of the plaintiff, since deceased, and was to idemnify her against any loss occasioned by the failure of said guardian to well and faithfully account for and turn over for the use of said minor ward all moneys, rents, profits, or other thing of value which he might receive from the leasing of a certain tract of land belonging to the ward for oil and gas purposes. The petition alleged that S. Burton, deceased, had received as bonus and royalty money accruing from said oil and gas lease the sum of $1,785.97, and died without accounting for any part of said sum to said minor or her estate. By way of defense the defendant pleaded, first, that after the death of the former guardian his wife, Maud F. Burton, the mother and present guardian of Gladys Burton, filed a sworn report in the county court of Tulsa county, the county wherein the guardianship was then pending, setting forth the condition of the estate of said minor at the time of the death of S. Burton; that said report shows that after accounting for the receipts and expenditures made by S. Burton as guardian there was due said ward from said guardian the sum of $249, which sum Mrs. Burton asserted she was ready and willing to assume and pay at such time and in such manner as may be required by the probate court; that this report and the approval thereof by the county court constitute a valid final settlement of the account of said S. Burton as guardian by a court of competent jurisdiction, which order of approval, being unappealed from, became final and absolute, and therefore a bar to the present action. Upon trial to the court there was judgment for plaintiff, to reverse which this proceeding in error was commenced. The principal grounds for reversal relied upon by counsel for defendant may be briefly stated as follows: (1) Inasmuch as the petition failed to state facts sufficient to show any final settlement of the account of S. Burton, as guardian, by a court of competent jurisdiction, it did not state a cause of action against the defendant; (2) the evidence adduced at the trial conclusively showing that the account of S. Burton as guardian had been satisfactorily settled subsequent to his death by a valid judgment of the county court, such judgment constitutes a bar to this action against the sureties upon his official bond; (3) the action was barred by section 6582, Rev. Laws Okl. 1910, which provides: "No action can be maintained against the sureties on any bond given by a guardian, unless discharge or removal of the guardian; but if at it be commenced within three years from the the time of such discharge the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed." [1] The first proposition was decided adversely to the contention of the defendant in Donnell et al. v. Dansby et al., 159 Pac. 317, wherein it was held: "Where a guardian dies without an accounting and settlement of his affairs as guardian having been made in the county court, his former wards may maintain an action in the superior or district court against his personal representatives and the sureties on his bond as guardian for such accounting and settlement." to agree with counsel for defendant that the [2] On the next proposition we are unable settlement of the account of S. Burton, as guardian, made by his wife after his death, in the circumstances detailed in his answer and the approval thereof by the county court constitutes a bar to this action. It is true that it is held in a number of states that an action at law connot be brought on a guardian's bond against the sureties until the principal has been first called to account in some court of competent jurisdiction, and this, although he be dead, in which case it is the function of his personal representative to account. Connelly v. Weatherly, 33 Ark. 658; Perkins v. Stimmel, 114 N. Y. 359, 21 N. E. 729, 11 Am. St. Rep. 659; Tudhope v. Potts, 91 Mich. 490, 51 N. W. 1110. But in the states which hold as we do, that where a guardian dies without an accounting and settlement of his affairs as guardian having been made in the county court, his ward may maintain an action in the district court against the sureties on his official bond, it is uniformly held that such settlement and accounting can be had only in a court possessing the powers and jurisdiction of a court of equity, by a proceeding against the executors and other necessary parties. The authority of the executor or personal representative of the deceas ed guardian to make such settlement is denied upon the ground that the presentation of such account is no part of the duties in volved in the administration of the estate of the deceased guardian, for although the property which was under his control as guardian may have come into the hands of his executor, yet the guardianship was a personal trust which did not pass to him on the death of the guardian, and the property held by him as guardian did not become assets in his hands to be administered; he merely holds it for its preservation until the persons whose estate it is, and for whose benefit it is held, can obtain a settlement of the trust, terminated by the death of the guardian, in the proper forum, where the rights of all parties to the trust may be defi nitely determined. Donnell et al. v. Dansby et al., supra; Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782, 136 Am. St. Rep. 97. In the matter of the Guardianship of Allgier et al., 65 Cal. 228, 3 Pac. 849; Reither, Adm'r, etc., v. Murdock et al., 135 Cal. 197, 67 Pac. 784; Zurfluh v. Smith, Adm'r, et al., 135 Cal. 644, 67 Pac. 1089. If the executor or personal representative of a deceased guardian is not authorized to settle his guardianship account in the county court, it would seem to follow that such action on the part of his wife, who was neither executor nor administrator of the deceased, nor guardian of the property of the ward, would be wholly futile. For the reasons stated, the judgment of the court below is affirmed. All the Justices concur. (67 Okl. 322) CHASE v. CABLE CO. (No. 8489.) 1. APPEAL AND ERROR 1033(5)—RIGHT TO plain to instruct the jury that plaintiff was 2. TRIAL 295 (1)-INSTRUCTIONS considered as a whole, fairly present the law of ROR. [3] On the remaining proposition we are of the opinion that the cause of action stated falls within the protection of the restraining part of the statute invoked by defendant, and therefore was not barred by lapse of time, although commenced three years after The mere fact that a witness for plaintiff the death of the former guardian. In the held a conversation with a juror will not vitiinstant case we have no doubt that the in- ate a verdict unless the communication was of fant plaintiff is the person "entitled to bring such a nature as was calculated to corrupt or such action," within the meaning of the stantial prejudice to the losing party. prejudice the mind of the juror or produce subrestraining clause of the statute. Notwith-4. EVIDENCE 174(1) ADMISSIBILITY standing the minority of the plaintiff, it is PHOTOGRAPHIC COPY. her action, and the mere fact that the stat-dence, and no reason or excuse appears for the Where an original mortgage was in eviute (section 4686, Rev. Laws Okl. 1910) re-introduction of a photographic copy of the origquires such action to be brought by her inal, such copy was properly excluded. guardian or next friend does not make her any the less the real party in interest. The guardian is merely managing agent for his ward; nobody is interested in his conduct except the ward, and his duty is primarily to account to his ward, rather than to the court. The very situation which the bond herein was given to meet is presented by the record before us. The guardian converted the money of his ward to his own use and died, leaving no estate from which his ward might be reimbursed. By the very terms of the bond, his sureties must pay and the enforcement of their liability ought not be fettered by rules except those of substance. Mitchell v. Kelley, supra. The applicable general principle is stated in 25 Cyc. 1260, as follows: "In many jurisdictions, by express statutory enactment, or by judicial construction, where the statute excepts persons laboring under disabilities from its operation, without mentioning infants specifically, infants are within the saving clause of the statute, and the statute does not run against them during such disability, even where such infant has a guardian who might maintain the action in his or her name, provided the title or right of action is in the infant." [4] There is some contention to the effect that the evidence adduced at the trial is not sufficient to support the judgment for the full amount for which it was entered. On this point it is sufficient to say that we have examined the record with considerable care, and are satisfied it is supported by sufficient evidence. 5. CHATTEL MORTGAGES 60—ATTESTATION. 6. PLEADING 243-AMENDMENT-EXHIBIT. 7. WITNESSES -CREDIBILITY. 345(1)-CROSS-EXAMINATION asked whether he has ever been convicted of a Error from County Court, Tulsa County; Replevin by the Cable Company against A. Affirmed. C. N. Simon, of Tulsa, for plaintiff in error. Robinson & Mieher, of Tulsa, for defendant in error. HARDY, J. The Cable Company brought replevin in the county court of Tulsa county for possession of one piano, the possession of which was alleged to be wrongfully held by defendant, A. L. Chase. The parties will be designated in accordance with their respective titles in the trial court. Plaintiff claimed possession of said piano by virtue of a chattel mortgage alleged to have been executed by defendant. Defendant filed answer denying the execution of the mortgage and alleged same had been forged. Trial to a jury resulted in a verdict in favor of plaintiff for possession of the piano or its value which was fixed at $277. Motion for new trial was overruled, and defendant prosecutes error. port of this ground of his motion defendant offered in evidence certain affidavits that H. C. McMillon, witness for plaintiff, was seen to engage in a conversation with two members of the jury during the progress of the trial. The affidavit does not set out the nature of the conversation, nor is it made to appear that any prejudice to defendant resulted therefrom. Counsel cite no authorities in support of their contention that the mere effect of a conversation between a witness and a juror of itself in a civil case is sufficient to set aside the verdict rendered. There is no merit in this contention. 2 Thompson on Trials, §§ 2553, 2558. [4] The original mortgage was offered in evidence and was before the jury, and, as there was shown no reason or excuse for the introduction of a copy thereof, the offer by defendant of a photographic copy of the original instrument was properly refused. 17 Cyc. 420 and 517; Wigmore on Evidence, § 797, p. 905. [1] The court instructed the jury that plaintiff was only required to make out its case by a fair preponderance of the evidence, and defendant assigns error upon the giving of this instruction, and cites in support of his contention the opinion in St. L. & S. F. Ry. Co. v. Bruner, 156 Pac. 649, where it was held that the giving of an instruction that a slight preponderance of the evidence will sustain the burden of proof as applied to an issue of fraud was prejudicial. This was so because proof of fraud must be clear, strong, and convincing, and slight proof thereof is not sufficient. The authority cited is not in point. There is a conflict of authority as to the propriety of using the words "fair" or "clear" in addition to the word "preponderance" when instructing as to the degree of proof required. Some of the courts hold the use of these words misleading be cause they are liable to be construed as requiring a higher degree of proof than is furnished by a preponderance alone, while others hold the use of such words proper. 38 Cyc. 1751, 1752. So, if the court commit- Bannerman, 7 Okl. 499, 54 Pac. 710; Frick ted error in giving this instruction, defendant cannot complain, because the effect would be to place a greater burden upon plaintiff than the law requires: [5] There was no issue as to the genuineness of the signature of the witnesses to the original mortgage. Defendant's plea of forgery only went to the question of whether the mortgage had been executed by him. The signature of witnesses to the instrument were not necessary to its validity as between the parties, but are required merely for the purpose of entitling the instrument to be filed of record. Strahorn, etc., Co. v. Florer & Co. v. Oats et al., 20 Okl. 473, 94 Pac. 682. The plaintiff therefore was not required to prove the genuineness of the signatures of the attesting witnesses, and, no issue being [2] The court also instructed the jury as made thereon in the pleadings, such testifollows: "On the other hand, if from the facts and circumstances in evidence in this case you find that the mortgage and note introduced by plaintiff in this case were not as a matter of fact made, executed, and delivered by the defendant to the plaintiff, then your verdict should be for the defendant." mony was wholly immaterial, and there was no error in rejecting evidence offered to show that the purported signature of one of the attesting witnesses was not genuine. [6] It appeared during the trial that there was some slight variance between the copy of the mortgage attached to plaintiff's petiDefendant claims this instruction is erro- tion and the original one offered in evidence. neous in that it places the burden of proof Upon this being made to appear, plaintiff upon him to make out his defense. Taken in asked and was granted leave to amend his connection with instruction No. 2, and instruc- pleadings by attaching a correct copy of the tion No. 3 as a whole, of which the quoted mortgage as an exhibit which was accordlanguage forms a part, there is no justifica-ingly done. This was permissible under the tion for placing such construction thereon. statute. Section 4784, Rev. Laws 1910. The clear import of these instructions is that plaintiff must make out its case by a fair preponderance of the evidence in order to recover, and there is nothing contradictory or misleading in the two instructions, and, when considered together, they fairly state the law of the case. This is sufficient. C., R. I. & P. Ry. Co. v. Newburn, 39 Okl. 704, 136 Pac. 174; Chickasha Street Ry. Co. v. Marshall, 43 Okl. 192, 141 Pac. 1172; Chickasaw Compress Co. v. Bow, 47 Okl. 576, 149 Pac. 1166. [3] It is urged that the court should have granted a new trial because of misconduct of plaintiff and some of the jurors. In sup [7] Upon cross-examination of defendant he was asked whether he had ever been convicted of a felony or any crime involving moral turpitude. Section 5046, Rev. Laws 1910, provides that: "No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a tion of a crime; but such interest or conviction party or otherwise, or by reason of his convic may be shown for the purpose of affecting his credibility." Under this section it was not error to ask the question. A conviction would not disqualify defendant as a witness, but such conviction may be shown for the purpose of affecting the credibility of the testimony giv- that said representations were false, in that en by him. Upon an examination of the entire record, we reach the conclusion that substantial justice has been done, and, no prejudicial error being made to appear, the judgment is affirmed. All the Justices concur. (67 Okl. 324) WELCH et al. v. COTTON. (No. 8412.) the said stallion was not duly and officially registered upon the stud books of the American Percheron Horse Breeders' Association, as represented and stated, or registered therein under any name or number; that the plaintiff, the present holder of the note, well knew the facts herein before set out, and knew the consideration for which said note was given, the representations made to procure said note, and that the same were false, and that he took said note under such cir (Supreme Court of Oklahoma. Feb. 12, 1918.) cumstances as should have charged him with (Syllabus by the Court.) APPEAL AND ERROR 757(1)-BRIEFS-RE Rule 26 of the Supreme Court (47 Okl. x, 165 Pac. ix), which provides that in all cases, except felonies, the brief of the plaintiff in error in substance shall set forth the material parts of the pleadings, proceedings, and facts upon which reliance is had for reversal, so that no examination of the record itself need be made in said court, is mandatory, and where it is not observed, and counsel for the defendant in error in their brief insist that such rule has not been complied with, and plaintiff in error permits said cause to be submitted with the briefs in that condition, the alleged errors will not be reviewed. Error from District Court, Haskell County; W. H. Brown, Judge. Action by Fred Cotton against Harry Welch and others. Judgment for plaintiff upon a directed verdict, and defendants bring error. Affirmed. A. L. Beckett, of Okmulgee, for plaintiffs in error. Geo. S. Ramsey, of Muskogee, Edgar A. De Meules, of Tulsa, Malcolm E. Rosser, of Muskogee, Villard Martin, of Tulsa, and J. Berry King, of Tahlequah, for defend ant in error. KANE, J. This was an action upon a promissory note, commenced by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below. Hereafter, for convenience, the parties will be designated "plaintiff" and "defendants," respectively, as they appeared in the trial court. The petition was in the short form provided for by statute, and admittedly stated a cause of action. The answer of the defendants admitted the execution of the note and its delivery to the Arkansas Valley Breeding Company for the purchase price of a stallion, purchased by one of the makers, and by way of defense alleged, in substance, that one W. H. McMurray, as agent of the Arkansas Valley Breeding Company, represented to the purchaser of the stallion that said stallion was a Percheron stallion, duly and officially registered in the stud books of the American Percheron Horse Breeders' Association under registry No. 40681, and was designated therein by the name of "Robert"; that such representations were material consideration for the execution of said note; knowledge of the same; that said stallion was purchased for breeding purposes only, and without proper and official registry said horse was wholly worthless for said purposes, and because of the failure of the warranty aforesaid, the horse so purchased was worthless to the defendant, and the consideration for said note has wholly failed, wherefore, premises considered, the defendants pray judgment for their costs in this action expended. The reply of the plaintiff was a general denial. At the close of the evidence the court instructed the jury to return a verdict for the plaintiff which was done, and upon this verdict judgment was rendered for the defendant for the sum of $716, to reverse which this proceeding in error was commenced. The grounds for reversal, as stated by counsel in their brief, are as follows: (1) The court erred in overruling the demurrer of the plaintiffs in error to the evidence of the defendant in error, to which action of the court the plaintiffs in error excepted; (2) the court erred in refusing to allow evidence offered by the plaintiffs in error, and objected to by the defendant in error, to which action of the court the plaintiffs in error excepted; (3) the court erred in instructing the jury to return a verdict for the defendant in error, to which action of the court the plaintiffs in error excepted; (4) the court erred in overruling the motion of the plaintiffs in error for a new trial of the cause below; (5) the court erred in rendering judgment in this case in favor of the defendant in error and against these petitioners. At the threshold of the case we are met by the contention of counsel for plaintiff that, on account of the failure of counsel for defendants to comply with rule 26 of this court (47 Okl. x, 165 Pac. ix), it is impossible for this court to have a full understanding of the questions presented for decision by the foregoing assignments of error without an examination of the record itself. The rule provides in effect that the brief of the plaintiff in error shall contain an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts, and documents upon which he relies, together with such other statements from the record as are necessary to a full |