accurate statement being made. It is insisted that the duty of this officer and his relation to the county court was such that the latter had the right to rely implicitly on the correctness of these statements, and that making a statement which did not fully and truthfully account for all fees collected is such a fraudulent concealment of the facts as would delay the running of the statute. But the county court is required to examine the statements and see that they are correct before approving them; it was not intended that they should accept as true any statement the officer should make. The evidence by which the truth could have been ascertained was at hand and open to their examination. In

deed, the statements themselves did not all purport to be accurate; they do not pretend to give an itemized account of the fees collected and from whom they virtually refer the court to the records of the officers for the evidence. The county court is given the power to audit the accounts of these officers, and it is made their duty to examine statements made by them and, if necessary, to hear the evidence of witnesses. A mere examination of the statements is not a proper performance of their duty. They should see that the statements are correct. This is particularly so when the statements on their face, as in this case, are not such as the law requires. It cannot be said that the county court was ignorant of facts which were open to its examination, and which it was its duty to know."

It is true that Judge Macfarlane was discussing the tolling of the statute of limitation by fraudulent acts, but he says much that is of interest here. The county court passes upon and allows charges of the county clerk. To state a good cause of action grounded upon fraud, the fraud practiced must be pleaded. This is as much requisite in a petition grounded upon fraud as it is a requisite to show fraud for the purpose of tolling the statute. We do not believe the pleader intended to ground the action upon fraud, but, if he did, the demurrer was well taken, because the facts alleged were insufficient. The five-year statute of limitation has no application to the first and second counts. But plaintiff says the three-year statute, supra, has no application, because the items of cash named were not received by defendant "in virtue of his office." We do not agree to this view. If they were not received "in virtue of his office," how were they

received? We can conceive of no other way or capacity in which they were received. They may have been wrongfully and, speaking from the statute, unlawfully received, but they were evidently received "in virtue of his office." In other words, they were received as an officer, not as an individual or agent. Take the alleged overcharge for the tax books. Whether the defendant was allowed or retained the proper or the improper amount for such services, yet whatever amount he did retain for such services was retained by him officially, for official work, and was received, had, held, and retained "in virtue of his office," as used in the statute. If these two counts (first and second) do not plead actions grounded upon fraud, as we have held, and if they do seek to recover from defendant money wrongfully held by

him, but received by him "in virtue of his office," then the three years' statute of limitations applies, and the cause of action stated in these two counts is barred by such statute. Upon this theory, the trial court was right in sustaining the demurrer as to these counts. Other grounds of demurrer are not well taken. We suspect plaintiff may have trouble in proving a case under counts 3 and 4 of the petition, but that remains to be seen.

stant judgment will be reversed, and the Under the views above expressed, the incause remanded. All concur.

DAVIS v. CARP. (No. 16751.) (Supreme Court of Missouri, Division No. 1. June 2, 1914.)

1. JUDGMENT (§ 910*) - ACTIONS ON JUDGMENT LIMITATIONS.

Where a judgment debtor's usual place of abode was within the state for more than 10 years after the date of the judgment, and during the entire period his family resided in the state, while he was temporarily absent, so that service of summons on him in the state could have been had, as authorized by Rev. St. 1909, § 1760, an action on the judgment, brought more than 10 years after its date, was barred by section 1912, requiring the bringing of actions on judgments within 10 years from their rendition, though it be assumed that the limitations prescribed may be tolled on proof of nonresidence of the judgment debtor.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1732-1737; Dec. Dig. § 910.*] 2. LIMITATION OF ACTIONS (§ 91*)-PreventING COMMENCEMENT OF ACTION-"ABSCONDING OR CONCEALING" STATUTORY PROVISIONS.

The absconding or concealing within Rev. St. 1909, § 1905, providing that, if any person by absconding or concealing himself prevents the commencement of an action, the action may be commenced within a time limited after the commencement of an action shall have ceased to be prevented, must be of such a character as to prevent the commencement of an action, and a judgment debtor, who merely conceals his name from the assignee of the judgment, does not thereby prevent the commencement of the action, which must be brought within 10 years after rendition of judgment, as required by sec

tion 1912.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 468; Dec. Dig. § 91.* For other definitions, see Words and Phrases, vol. 1, pp. 30, 31.]

3. LIMITATION OF ACTIONS (§ 99*)-PREVENTING COMMENCEMENT OF ACTION-"IMPROPER ACT."

The "improper act" referred to in Rev. St. 1909, § 1905, providing that where any person, by absconding or concealing himself, or by any ment of an action, the action may be comother "improper act," prevents the commencemenced within the time limited after the commencement of an action shall have ceased to be prevented, must be one in the nature of a fraud that will prevent the commencement of an action, and a judgment debtor, who merely conceals his name from the assignee of the judgment, is not guilty of an improper act, which prevents suit.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 477-479; Dec. Dig. § 99.*]

4. LIMITATION OF ACTIONS (§ 91*)-PREVENTING COMMENCEMENT OF ACTION-ACTS CON

STITUTING.

Where a judgment debtor concealed his name from the assignee of the judgment, and informed him that he did not know where the judgment debtor was, but believed that he was in business in a designated city, and offered a nominal sum for the judgment, and the assignee within two days thereafter brought action on the judgment, but did not give the sheriff any directions where to look for the debtor, and the sheriff was unable to make service, the misconduct of the judgment debtor was not an absconding or concealing, or other improper act, within Rev. St. 1909, § 1905, so as to toll the 10-year limitation prescribed by section 1912. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 468; Dec. Dig. § 91.*] Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Manton Davis against Samuel Carp. From a judgment for defendant, plaintiff appeals. Affirmed.

Stanley D. Pearce and James G. McConkey, both of St. Louis, and James A. Potter, of Aurora, for appellant.

LAMM, J. Dates are material. On the 26th of January, 1898, in the circuit court of St. Louis, the receiver of the Mullanphy Savings Bank recovered a small judgment against Rosenberg and two Carps (Max and Sam). On the next day in the same court he recovered another. On the 4th of August, 1904, he assigned the judgments on the margin of the record for value received to plaintiff.

(Note: We assume the receiver made a clearance sale of uncollectible or desperate assets in a job lot to clear the way for a settlement of his receivership and his acquittance; the record showing the following, plaintiff loquitur: "A. I do not know what I paid for these judgments, Mr. Bloss. I paid $310 for this and a lot of other paper. Q. Can you give any idea of the amount of claims you received? A. No, sir. Q. No idea at all? A. No. There was a lot of hotchpot stuff barred by statute of limitations and otherwise, and I haven't any idea how much stuff there was.")

On March 13, 1907, plaintiff, as such assignee, sued the Carps on both said judgments, in the same court. Failing to get service on the present defendant, he dismissed as to him, and took judgment against Max Carp for the rise of $700.

On the 12th of February, 1909, the present suit was brought in the Christian circuit court on both of the original judgments, and service was had. Presently plaintiff took a change of venue, and the case went to the Lawrence circuit court. Presently defendant took a change of venue, and the case went to the Jasper circuit court. There it was tried to the court, without the aid of a jury, and plaintiff (cast on the merits) appeals here in due form; our jurisdiction depending on constitutional questions.

The Pleadings.

The case was tried on a third amended petition in two counts containing conventional averments relating to the recovery of the judgments, their assignment and nonpayment. To toll the statute of limitations each count alleged, in substance, that having instituted suit on the judgments in the circuit court of the city of St. Louis on the 13th of March, 1907, and issued summons, the sheriff made return that he failed to find "defendant Sam Carp in the city of St. Louis, Mo."; that said Carp was a resident of said city at the time of the rendition of the original judgments, and continued to be such resident day of May, A. D. 1907"; until "the that he then left the state of Missouri, and has continuously resided out of the state thereafter, is now a nonresident, and has no usual place of abode in the state where service of process might be had on him. To the same end. the petition makes the following averment:

"And plaintiff further states that prior to his departure from the state of Missouri, as aforesaid, the defendant herein absconded and concealed himself in this state so that the ordinary process of law could not be served upon him, from and after, to wit, the 11th day of March, and plaintiff further says that the defendant A. D. 1907, until, to wit, the - day of May, A. D. 1907, was guilty of a wrongful and improper act preventing the service of process on him, in this: That he misrepresented his identity to the plaintiff when the said plaintiff was attempting to locate and identify the defendant Sam Carp in order to have process served upon him."

The answer, excepting therefrom the allegations specially admitted, is a general denial. It then goes on to admit the recovery of the original judgments, but denies they have never been paid as alleged. Contra, it alleges they have been fully paid and settled before suit, and that plaintiff has no right to maintain the action. Moreover, as a separate defense, it alleges that more than 10 years have intervened since the rendition of the judgments and the bringing of this suit, and therefore said judgments are barred by the statute. Denying that he was a nonresident of the state or kept himself concealed for the purpose of preventing the service of process on him, defendant "asks to go hence without delay [sic] and recover his costs herein laid out and expended."

The replication denied the new matter.
The Facts.

By Ingersoll's deposition plaintiff showed that he (witness) was a detective; that in September, 1907, he saw defendant in a store at Greenville, Ill., at work there with his two boys. Later in the same month he saw the boys there again. This detective had a kodak, and was there for the purpose of taking a snapshot picture of defendant. He took a snapshot of him, but the negative did not develop well. In October of that year he went back on a like venture, and, spying about, saw him busy in the store, but failed to get a snapshot because defendant did not come out. It seems this detective was employed by the Pinkerton Detective Agency to get a picture of defendant for the purpose of some insurance controversy the agency was employed in. This fact was developed in crossexamination, and, further, that the detective made no inquiry in St. Louis where defendant lived; that on one of his visits to Greenville he talked with defendant, but did not tell him what he came for, or that he was a detective, nor did he ask his consent to take his picture, but made several attempts to do so (furtively, as we understand it) while he was in the store, but did not succeed because the light was insufficient. The detective made three trips to Greenville, and saw de fendant twice, the first and last time. He testified that on the second trip defendant was not in Greenville, but was in St. Louis. He made no inquiry as to where defendant's wife resided, and did not know, and did not know where his family was; in fact the detective was not employed to find defendant's residence, but was employed to get his picture, and "did not care" where he lived.

By the deposition of Max Carp plaintiff showed that he, Max, was defendant's brother; that in 1897 defendant went to Aurora, Mo., with his family and worked there for another brother, H. Carp, for about five years. In 1902 defendant returned to St. Louis, and there and then opened a cleaning and repair shop under the name of "S. Carp" on Jefferson avenue, and continued that business at that point and on Broadway until some time in 1907, living in St. Louis (possibly on Missouri avenue) with his family, consisting of a wife and nine children, all minors. Some time early in 1907 defendant rented some rooms from witness on Carr street, and took up his residence there, continuing to live in those rooms with his family until later. In March, 1908, defendant moved his family to Greenville, Illinois, and since then they have lived there. Prior to taking his family to Illinois (i. e., some time in 1907) defendant went there to try and see if he could establish a business, intending to take his family later if he succeeded, which he did, as said.

times on Sundays and sometimes in the middle of the week. This witness further testified that while defendant worked for his brother H. Carp in Aurora he went under the name of "S. Carp," and that such was the name he usually went under. It also turns out that his true name is "Sol. Carp," and On crossthat Samuel is the father's name. examination it was shown that when defendant moved his family to Carr street to the rooms rented of witness, he brought his furniture and kept house there; that the run from St. Louis to Greenville is about 1 hour and 20 minutes on a fast train; that when he found out that he could make a living at Greenville, in March, 1908, he moved his family there, telling witness: "Now I am going to live there."

Plaintiff testified in his own behalf (and over the objection of defendant) that the two judgments remained wholly unpaid; further that two days before he instituted the suit on the judgments in the St. Louis circuit court, to wit, on the 11th of March, 1907, he started out to locate his judgment debtors, the Carps. Having studied the directory and obtained what information he could on inquiry at the houses he visited, he finally found defendant at 2251 Missouri avenue, in the kitchen in the back part of his house, a residence, and not a business house, having his lunch. Witness did not know him, but informed him he (witness) was looking for Max and Samuel Carp, asked him if he was either of the two, and, if not, to direct him Defendant told him his where they were. name was Eagle Carp. Asked to spell it, he spelled it I-e-g-l-e. Let witness tell the balance in his own words:

"He further told me he didn't know exactly where Samuel Carp was, but thought he was in business in Cairo, Ill.; inquired further as to my errand, and I told him all about these judgments, and thereupon he told me he didn't think Samuel Carp was worth anything, but as a mere matter of business [elsewhere witness testified that he remembered his peculiar pronunciation of the word'] he would give me $15 for the judgments. That was practically the whole of the conversation I had with Mr. Carp at

that time."

Two days later plaintiff instituted his St. It does not appear that he gave Louis suit. the sheriff any directions where to look for the Carps, or either of them, and he says he did not assist the sheriff in trying to find defendant, nor does it appear he made inquiry of Max Carp, or gave the sheriff what information he had. Witness never saw Mr. Carp until the time depositions were taken in his office (presumably the depositions of Max Carp and the detective used in this case). The recognition came about in this way:

"I never," said witness, "recognized him exactly at the time the deposition was taken until it was over. I had a hazy recollection this was the man. After the deposition was over Mr.

"Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever." Defendant asked and received (plaintiff objecting and excepting) an instruction applicable to each count, to the effect that the

court declares the law to be that under the

pleadings and evidence the judgment should

be for the defendant.

On his part plaintiff asked instructions, all refused, to wit (No. 1), to the effect that section 1912, supra, is inoperative and void in that it is violative of section 1, art. 6, of the Constitution of Missouri, in seeking to deprive the courts of a judicial power vested in them; and another (No. 2), to the effect that said section 1912 is unconstitutional in that it denies to plaintiff "certain remedy for defendant's injury to plaintiff's property, and denies right and justice to the plaintiff," contrary to section 30, art. 2, of the Constitution; and another (No. 3), to the effect that section 1912, supra, is violative of section 10, art. 2, of the Constitution, in that it deprives plaintiff of his property without due process of law; and another (No. 4), that section 1912, supra, is violative of article 3 of the Constitution as an attempt on the part of the Legislature to exercise the powers of the government vested in the judicial department; and, finally, another one reading:

"(5) The court declares the law to be that if defendant, Samuel Carp, prevented the process of service upon himself in an action pending in the circuit court of the city of St. Louis, Mo., from March 13, 1907, to April 4, 1907, brought by the plaintiff against the defendant on the same cause of action herein sued on, and that if this was done by the defendant misrepresenting his identity to the plaintiff on or about the 11th day of March, 1907, then such act was a wrongful and improper act on the part of the defendant, and the period of the pendency of such action shall not be counted in determining whether or not the plaintiff is precluded from recovery in this case by operation of the provisions of section 1912 of the

On the foregoing record it is apparent three questions arise:

First. Conceding (for the purposes of argument only) that section 1912, R. S. 1909, supra, relating to a conclusive presumption of payment of a judgment in 10 years, is so far forth a statute of limitations that it may be tolled on proof of nonresidence, or by proof that the judgment defendant concealed himself or absconded, then the mandatory instruction given for defendant challenges the sufficiency of the proof, and the first question relates to such sufficiency.

Second. The next question is: Is section 1912, strictly speaking, such a statute of limitations as may be tolled at all? That is, is it subject to the ordinary incidents of statutes of limitations relating to the commencement of suits, to wit, nonresidence, concealment, of fraud, etc., by improper acts?

Third. The last question is: If it cannot be tolled, and if it is not subject to the usual incidents of the ordinary statute of limitations in other respects, then is it constitutional? Let us attend to them seriatim.

Of the Sufficiency of the Proof. [1] (a) In this case (admitting for the purposes of the point that the statute in judg ment may be tolled) plaintiff's proof was insufficient. The petition assumes defendant's residence in this state until in May, 1907. Now, under plaintiff's proof, defendant's residence, his usual place of abode, was in this state until in March, 1908; that is, for more than 10 years after the date of the original judgments. True it is that for a few months prior to March, 1908, defendant was temporarily (for the purpose of testing out the establishment of a business) in Greenville, Ill. True, too, he intended to establish a residence there if his venture succeeded. But his experiments in that way were ordinary ones in business matters-not an absconding or concealment. His absence was casual and temporary. He still had "his usual place of abode" in St. Louis. His family continued to reside in that city. He had not abandoned them and taken up his residence separate from them in Illinois. Legal service of a summons on him in St. Louis could have been made by serving it on some member of his family over 15 years of age at his usual place of abode on Carr avenue. 1909, § 1760.

R. S.

[2, 3] Nor does the evidence show an absconding or concealment or any improper act of a certain brand or character, to wit, one preventing "the commencement of an action" within the purview of section 1905, R. S. 1909. That section reads:

"If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented."

[4] Obviously defendant, as said, did not