the partnership property was sold, and a satisfactory agreement made by which this note was to be given up and canceled. If this was true, and plaintiff had full knowledge of the fact, the note would be of no avail.

The third error alleged is that the court erroneously instructed the jury. The record shows that the court instructed the jury substantially as follows: "That the burden of proof was on the plaintiff to establish the fact that he purchased the note in controversy before maturity, for a valuable consideration, without notice of any fraud or want of consideration." This instruction was erroneous. See Mann v. Bank, 34 Kan. 746, 10 Pac. Rep. 150. And while this instruction was wrong, and perhaps misled the jury, yet the record shows that no exception was taken to the giving of it, without which no error can be considered. This has been the rule laid down in this as well as all other courts. Allen Co. v. Boyd, 31 Kan. 765, 3 Pac. Rep. 523; Crowther v. Elliott, 7 Kan. 235; Lalonde v. Collins, 5 Kan. 361. We therefore think that, under the pleadings, evidence, and findings of the jury, the judgment of the court must be sustained. It is recommended that the judgment below be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(39 Kan. 176)

HARRINGTON v. STONE, Sheriff. (Supreme Court of Kansas. April 7, 1888.) APPEAL-REVIEW-WEIGHT AND SUFFICIENCY OF Evidence.

A general finding and judgment for the defendant in error will not be reversed here because there is some conflict about a fact material to the issue, and necessarily embraced in the general finding, even if this court should be of the opinion that the weight of evidence was with the plaintiff in error; there being some evidence to sustain the finding of the trial court. (Syllabus by Simpson, C.)

Commissioners' decision.

BASSETT, Judge.

Error to district court, Brown county; R. C.

Action of replevin brought by Eldred Harrington against A. J. Stone, sheriff, to recover 328 bushels of corn. Judgment in favor of defendant, and plaintiff appeals.

W. D. Webb, for plaintiff in error. James Falloon, for defendant in error.

SIMPSON, C. This is an action of replevin, instituted by Harrington against Stone, who was a constable, and had possession of 328 bushels of corn, that was claimed to be the property of Harrington. One Herman was the owner of the corn, and had cribbed it on the farm of Beatty. Harrington was a buyer and shipper of corn at Baker, in Brown county. He claims to have bought this corn from Herman on or about the 19th day of December, 1884. As evidence of his purchase, he introduced the following written instrument: "This certifies that I have sold this day to E. Harrington 500 bushels of good, sound corn, to be delivered at Baker, in the ear, on or before January 10, 1885; price 19 cents. Received on the same $60. [Signed] A. H. HERMAN.” As there was no immediate delivery of the corn, and no change of possession, Harrington, for the purpose of identification, was permitted to state the conversation between Herman and himself, as explanatory of the written instrument as to what particular corn was sold, and the substance of that statement was that Herman claimed that "the corn was cribbed on Jeremiah Beatty's farm, Mission township, Brown county, and that it was raised on his farm." On the other side, there was some evidence tending to show that Harrington did not know where this corn was cribbed after his purchase from Herman. He testifies himself that he would have accepted any good corn, without reference to where it come from, if it had been offered by Herman as

a compliance with the written instrument. He stated to one witness that he supposed the corn that he bargained for with Herman was cribbed on the Hayes farm. He asked another witness where Herman's corn was cribbed, -whether on the Hayes or the Beatty farm? On this state of facts, the court below rendered a judgment for the defendant in error, and we are asked to reverse it, because "there was no evidence upon which to base it:" and because "Stone, the defendant in error, was a mere trespasser." The record shows that, while the trial court struck out all of the oral evidence tending to show that Stone held the property under an attachment, there is an admission that Stone had taken possession of the corn. The plaintiff in error must recover on the strength of his right to the possession of this particular corn by reason of his contract with Herman, and not on the weakness of Stone's right to the possession of the property. His written instrument is a contract by Herman to sell 500 bushels of corn, and could be complied with by the delivery of so much merchantable corn, no matter where raised or how produced. The effort of Harrington to render it certain and specific by explanatory evidence in aid of his claim, that it was the corn cribbed on the Beatty farm, is antagonized by his statements to the Neffs, father and son. In the estimation of the trial court, he failed in his attempt; and as there are no special findings of facts, and as there is evidence tending to support the general finding necessarily included in the judgment in favor of Stone, we cannot It is recommended that the judgment be affirmed.

reverse.

PER CURIAM. It is so ordered; all the justices concurring.

(39 Kan. 144)

FURNEAUX . FIRST NAT. BANK OF WHITEWATER.
(Supreme Court of Kansas. April 7, 1888.)

JUDGMENT-EFFECT OF-DEFENSE TO ONE OF SEVERAL NOTES.

Where a defense is made to an action on a promissory note that was given in part payment of the purchase of machinery, and other notes were given as a part of the same transaction and for the same consideration, a defense to one of these notes must be conclusive as to all; and, as long as the judgment stands unreversed, a party cannot be heard to again urge that defense.

(Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Brown county; D. MARTIN, Judge.

Action on a promissory note brought by the First National Bank of Whitewater, Wis., against John Furneaux. Judgment for plaintiff, and defendant brings error.

W. D. Webb, for plaintiff in error.

James Falloon, for defendant in error.

CLOGSTON, C. This was an action on a promissory note, brought by the First National Bank of Whitewater, Wis., against John Furneaux, upon a note executed by Furneaux to Esterly & Son, and by them indorsed and transferred to the plaintiff, defendant in error. The execution of the note was admitted by the defendant, and in answer he alleged that this note was given in part payment for a harvester and twine-binder purchased of Esterly & Son; that said harvester was the sole and only consideration for said note, and was purchased under a warranty given by said Esterly & Son, by which said harvester and binder were warranted to be of good material, and would, if properly handled, do good work; and, in case of failure to do good work, defendant was to notify the agents through whom said harvester was purchased of that fact, and upon the receipt of said notice they were to either repair and put said harvester in good working order, so that it would do good work, or, if the same failed thereafter, then said machine was to be returned by defendant to the agents, and a new machine was to be furnished in its place, or the notes given in payment therefor were to be returned. Defend

ant alleged that the machine was of poor material, and would not perform good work, and was wholly worthless, and that he notified Esterly & Son and said agents of that fact, and they attempted to repair the same, but said machine failed to do and perform as warranted, and that it was thereafter returned, according to said contract; but that said Esterly & Son and said agents refused to surrender and give up the notes, or furnish a new machine; that, by reason of said failure, the consideration of the notes wholly failed. Defendant also alleged that plaintiff received said note from Esterly & Son after maturity, and with a full knowledge of all the facts. In reply, among other things, the plaintiff alleged that the note in controversy was one of a series of three notes executed by defendant to Esterly & Son for the purchase of a harvester and twine-binder, as alleged in defendant's answer; that, when the first of these notes became due, the same was not paid, and suit was brought thereon by Esterly & Son in the district court of Brown county, Kan.; that in said action defendant alleged and set out the same want of consideration, and the same warranty, and the same defect, in the harvester and binder, and made identically the same defense, as in this action, and plaintiff alleged that said foriner adjudication was a complete bar to the defense alleged and set out in this action. Thereupon, and upon agreement, the action was submitted to the court without a jury upon the question of res judicata; and, in support of the reply, the files of the said former action were offered in evidence, being the petition, answer, and judgment, which showed that the same defense alleged and set out in this action was alleged and set out in defense of the action brought by Esterly & Son against the defendant upon the first note of the series of notes executed in payment of said harvester, and that said adjudication and judgment was rendered in favor of Esterly & Son, and against the defendant, for the amount of said note. Upon the evidence the court found that the former judgment was a complete bar to this action, and rendered judgment for the plaintiff for the amount of said note and interest.

The defendant now insists that this was error, for the reason that said action was not a bar; that, to constitute a bar, the subject of the action must be the same as well as the parties; and as this was an action upon a different promissory note, and between different parties, therefore defendant was not barred from pleading the same defense. In this we think the defendant is mistaken. It is true, the plaintiff's answer does not show when the transfer of this note was made,-before or after the former adjudication; but the defendant in his answer alleged that it was received by the plaintiff, or transferred by Esterly & Son to the plaintiff, after the maturity of the note. Taking the allegations of the defendant with the proofs, it must be held that this note was received by plaintiff from Esterly & Son after the former adjudication, or at least after the note became due. The plaintiff then stood in the same relation to the defendant in this action as though the suit had been brought by Esterly & Son, and he had the right to make the same defense to the answer that they could have made. Where a party makes a defense to an action on a note that was given in part payment of the purchase price of machinery, and other notes were given as a part of the same transaction and for the same consideration, a defense to one of these notes must be conclusive as to all. As long as the judgment stands unreversed, a party cannot be heard again to urge that defense. He has had his day in court, has had his grievances passed upon by a tribunal, and such decision is final. Foster v. Konkright, 70 Ind. 123; Guest v. City of Brooklyn, 79 N. Y. 624; Machine Co. v. Farmer, 27 Minn. 428, 8 N. W. Rep. 141; Danziger v. Williams, 91 Pa. St. 234; Hanna v. Read, 102 Ill. 596; Whitaker v. Hawley, 30 Kan. 317, 326, 327, 1 Pac. Rep. 508; Freem. Judgm. § 249. It is recommended that the judgment of the court below be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(39 Kan. 163)

WHEELER et al. v. STATE ex rel. ROBBINS.

(Supreme Court of Kansas. April 7, 1888.)

1. RECOGNIZANCE-COMPLIANCE.

A recognizance given under section 5 of the act relating to illegitimate children, requiring the defendant to remain and abide the judgment and orders of the court, is complied with and fully performed when, after a verdict of guilty and judgment and an order of commitment to the jail of the county on the failure of the defendant to give the bond, he is taken to the county jail, and confined there in pursuance to the order of the court.

2. ESCAPE-WHAT CONSTITUTES-LIABILITY ON RECOGNIZANCE.

The facts that the defendant is taken by the sheriff or his deputy into the court house yard to help trim the trees, or gather up and haul away the brush, and do other small jobs of work around the court-house, and is permitted by the sheriff to go across the street and vote at an election, do not constitute an escape for which any liability is created on the recognizance given in pursuance of section 5 of the act. (Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Brown county. D. MARTIN, Judge.

B. F. Killey, for plaintiffs in error. R. F. Buckels, S. F. Newton, and James Falloon, for defendant in error.

SIMPSON, C. This was an action upon a recognizance given in a prosecution under the bastardy act, in accordance with section 5, c. 47, Comp. Laws 1885, p. 469. The material part of the recognizance is in these words: "That is to say, that George H. Wheeler, against whom, on the complaint of Ida E. Robbins for bastardy, is now pending in this court, shall be and appear before this court on the 1st day of the next term thereof, to be holden in Hiawatha, Brown county, Kan., on the 3d Monday of January, 1885, there to remain and abide the orders and judgments of this court on pain of a present forfeiture herein." This was taken and approved in open court, and was signed and acknowledged by the plaintiffs in error. Wheeler appeared, stood trial, was convicted, and was adjudged to pay, for the support of the child, the sum of $1,000 in 20 semi-annual payments, and the costs of suit, taxed. at $379.73. He was required to secure the payment of said judgment and costs; and, being unable to do so, was ordered into the custody of the jailer of the county, to be confined in the county jail. He was taken to the county jail, and has been confined there ever since the date of the commitment, up to and including the time at which this suit was tried. It was agreed, and was so found by the trial court, that Wheeler had never paid said judgment, or any part thereof, or secured the payment; that Wheeler has complied with all of the conditions of said recognizance, unless his failure to pay the judgment, or to secure the payment of the same, as therein provided, is not a compliance with the terms and conditions of the recognizance; that Wheeler was committed to the county jail, and has remained there ever since, except that on several occasions in April, 1885, the sheriff required him to accompany him for an hour or so into the courthouse yard, in which the jail is situated, to trim the trees, and haul away the brush from said yard; that in April, 1885, he was taken by the sheriff across the street from the court-house, to vote at an election; that in the latter part of April he assisted the sheriff for three hours in hauling brush from the court-house yard, about 1,140 feet from the jail, and was then returned to the jail; that on these occasions he was out of jail without any order or permission of the court, or the judge thereof, but was never out of jail except accompanied by the sheriff or a deputy. The trial court, on this state of facts, rendered a judgment for the full amount stated in the recognizance, with interest. All proper exceptions were saved, and we are asked to reverse this judgment.

The contention supporting the judgment is twofold: First, that the terms of the recognizance obligated those signing it to pay the judgment and costs;

second, that these absences from the jail were an escape, and rendered the recognizors liable.

The first contention is disposed of by the case of McGarry v. State, 37 Kan. 9, 14 Pac. Rep. 491.

The second contention is founded upon a strict technical definition of the word "escape," as given in a class of cases that have reference to persons confined for non-payment of debts, and not to the common legal definition of that term, that means "a violent or private evasion out of some lawful custody." The statutory definition of escape (see section 182, c. 31, Comp. Laws 1885) is still stronger. But it is useless to prolong this discussion. There was no escape as contemplated or defined by any modern authority. It may be, in view of the McGarry Case, that this last question is not involved, as the recognizance was fully complied with when Wheeler was committed to the county jail. The judgment is wrong. None of the matters alleged are violations of either the terms or conditions of the recognizance, and we recommend that the judgment be reversed.

PER CURIAM. It is so ordered; all the justices concurring.

(Supreme Court of Kansas. April 7, 1888.)

1. WRITS-PUBLICATION-SUFFICIENCY OF AFFIDAVIT.

An affidavit for publication, which states "that the defendant has property within this state sought to be taken by attachment in this action,-a provisional remedy, -is sufficient to bring it within the provisions of section 72 of the Civil Code. It is not necessary that such affidavit should state that a cause of action exists against defendant. Gillespie v. Thomas, 23 Kan. 138.

2. SAME.

An affidavit for publication, which is made some time after the petition is filed, and which states that the defendant resides out of the state, and is a non-resident thereof, is sufficient.

3. PLEADING AMENDMENT.

A petition on a contract for money had and received, may be amended by stating that "defendant wrongfully, knowingly, fraudulently, and unlawfully appropriated and converted the money to his own use," without changing the nature of the action, when it is evident that the amended petition is concerning the same transaction set forth in the original one.

4. ASSUMPSIT-MONEY HAD AND RECEIVED-DEMAND.

In an action for money collected, the failure to make demand for same before the action is brought, will not prevent a recovery when it is established that the defendant, before the commencement of the action, concealed the collection, and denied the receiving of the money, and afterwards in his answer admitted that he had collected the full amount, claimed that he was entitled to it as his own, and denied the plaintiff's right to it.

(Syllabus by Holt, C.)

Commissioners' decision. Error to district court, Allen county: L. STILLWELL, Judge.

This action was brought by J. C. Gordon against A. C. Bogle, after the dissolution of partnership between them, to recover one-half the amount of attorneys' fees collected by defendant in a suit undisposed of at the date of dissolution. Judgment for plaintiff, and defendant brings error.

Henry A. Ewing and Richards & Benton, for plaintiff in error. Knight & Foust, for defendant in error.

HOLT, C. On February 20, 1883, C. A. Bogle and J. C. Gordon, two young attorneys at Iola, Kan., formed a copartnership, which was dissolved by mutual consent in October of the same year. At the time of the dissolution, two cases against the St. Louis, Ft. Scott & Wichita Railroad Company, for damages, were undisposed of. All other business of the firm was settled. A. C. Bogle afterwards obtained fees to the amount of $200 for services in these