the power of courts of record to punish for actual contempt is left free to the actual necessities of the wrong. A poor farmer who resists the proeess of the court may be fully punished by a fine of one hundred dollars; but a railroad magnate, who tries to rob the county or defies the process of the court, would laugh at such a fine. The legistature has wisely left the power of the court equal to the wrong attempted. Any resistance of the power or process of a court of record of this State may be punished by a fine large enough to recompense the State for any loss it may suffer, and large enough to deprive the offender of any profits he may hope to receive from his wrong. That this power is a vast one, may be conceded; that its exercise may sometimes be necessary, is clear; and to guard against any wrongful exercise of this power by the lower courts, is the reviewing power of this court, and as to all courts the power of impeachment and the severe review of public opinion. With these checks it would seem that the power, though vast, is safely lodged. All power is in a certain sense dangerous; but with an elective judiciary, a free press and the power of impeachment, the people can soon relieve themselves of a corrupt or partial judge. Power must reside somewhere-power to compel or restrain action, and the vast volume of the testimony of experience is that nobody is so safely trusted with power as the courts.

A second proposition of counsel is that the district court of Cowley County, the county in which these proceedings were had, had become adjourned by operation of law, and therefore that this entire proceeding was extra-judicial and void. The facts are these: This proceeding was commenced and trial had on the 17th day of May, and judgment rendered on the 18th. The 17th was the day fixed by law for the commencement of the term of the district court in Sedgwick County; and in fact both on the 17th and 18th, and at the times these proceedings were had, the district court of that county was in session, a judge pro tem. having been elected in the absence of the regular judge. It also appears that the district court of Cowley County, which had been in session for some time. was on the 13th adjourned over the 14th and 15th, and to the 17th, the day for the commencement of the Sedgwick County term. Now upon these facts it is contended that two terms of the district court can not be held in the same district on the same day, and that as the 17th was the day fixed by law for the commencement of the Sedgwick County court, the adjournment of the Cowley County court to that day was virtually an adjournment sine die; or at least, that the Cowley County court could not be held upon that day, or until some adjournment had been made of the Sedgwick County court. In the case of State v. Montgomery, 8 Kas. 358, it was decided that the district court could adjourn the term in one county to a day subsequent to that fixed by law for the commencement of the regular term in another county of the same district. But this presents a very different question. Here we

find the district court, which by the constitution has but one regular judge, being held in two counties by two judges. If this be proper, then in every county in the district, court may be held continuously, presided over in all but one by judges pro tem. This might have one advantage in preventing an accumulation of business, but it is against the spirit of the Constitution. That organic law of the State provides for one district judge in each judicial district, to be elected by the people of the district. Const., art. 3, sec. 5. Clearly, the idea is that this single elected judge is the sole responsible judicial officer for the district court of the entire district. Whatever provision exists for judges pro tem.. is not for the purpose of duplicating or increasing the judicial force, but to preserve a continuous though single force. They act for and in the absence, sickness, or disqualification of the elected judge. “The general principle is that the judiciary are elective." State, ex rel., v. Cobb, 2 Kas. 53. Litigants are entitled to have this principle recognized and enforced. The commencement of a term is a legislative command to the elected judge to be present and discharge the judicial duties devolving upon him in that county. It operates as a suspension of his duties in all other counties in his district, and suspends, or closes, the terms in those counties. The legislature provides for terms, in order to secure his personal attention to the litigation in each county. It prescribes the commencement of each term, leaving the time of closing to the discretion of the judge acting upon the necessities of business. It does not leave the commencement to his discretion, because it intends that each county shall have the benefit of his presence and labors at a certain and known time. The people of the entire district elect the jndge. Each county is entitled to the benefit of his learning and experience. And the legislature by terms names the time of his attendance. Impliedly, thereby commanding him to attend in one county, it equally commands him to leave all the others. The case of Grable v. State, 2 G. Greene, 559, is strongly in point. Under similar provisions, the Supreme Court of Iowa there held that the term in one county was closed on the day the term was by law to commence in another. It says: "From the constitution of our judicial system, it is apparent that the court can not be held in two counties in the same district on the same day, and by one and the same judge." So we say here, there is but one district court and one district judge in a district. The officer is not to be duplicated, and when a term commences in one county, the court everywhere else in the district is closed, or suspended. A judge pro tem. is only a substitute, and never a duplicate.

It follows from these considerations that the adjournment of the Cowley court to the 17th was void, and the proceedings on the 17th and 18th in that county were extra-judicial and void. There was no court then in session in that county. Habeas corpus will lie in such a case, and the petitioner is entitled to a discharge. Such is the order which must be entered in this case; and in

the appeal, the order will be, that the judgment apparently rendered in court-time will be reversed, and the appellant discharged. The same order will be entered in the two cases of William Allison. Under these circumstances, it is unnecessary and probably improper for us to consider the other questions presented and discussed by counsel.

All the justices concurring.

ABSTRACTS OF RECENT DECISIONS.

NOTES OF RECENT DECISIONS.

RESTRAINT OF TRADE-AGREEMENT NOT TO FOLLOW CALLING WITHIN SPECIFIED LIMITS. — The plaintiff, for a sufficient consideration, bought of the defendant his business as a dentist, and the latter executed a contract not to practice dentistry within a radius of ten miles of Litchfield." The town of Litchfield has an extensive territory and irregular outline, and contains the village of Litchfield, in which the defendant dwelt and had his office at the time, and where the contract was drawn and executed. Held, that the above expression meant "within ten miles of the center of the village of Litchfield." And held that the contract was not void in not fixing a period within which the defendant was not to practice dentistry within those limits. It seems that where such a contract is reasonable when made, subsequent circumstances, such as the covenantee's ceasing to do business, do not affect its operation. New trial not advised. Supreme Court of Errors of Connecticut. Opinion by LOOMIS, J.Cook v. Johnston. 22 Alb. L. J. 412.

--

WHEN DEMAND BEFORE ACTION FOR CONVERSION NOT NECESSARY. Where one in good faith purchases personal property from one having no authority to dispose of the same, an action to recover such property may be commenced by the true owner against the purchaser without demand, and the statute begins to run from the time of the purchase. Affirmed. Supreme Court of California. Opinion by SHARPSTEIN, J. MYRICK and MCKEE, JJ., dissenting. Harpending v. Myers. 22 Alb. L. J. 413. CRIMINAL LAW RECEIVING STOLEN GOODS MARRIED WOMAN-MAY BE CONVICTED WHEN ACTIVE IN CRIME-PRESUMPTION FROM POSSESSION. -Defendants, who were husband and wife, were jointly indicted for receiving stolen goods, knowing them to be stolen. The goods, which were stolen from R, were found in a room of which defendants had control, adjoining the room occupied by defendants and communicating with it by a door. In her husband's absence the wife, by words and active opposition, attempted to prevent the searching officers from entering the room where the goods were. At the trial the judge instructed the jury that in law the wife was presumed to be under the control of the husband, and to have been driven to the offense by him, and consequently should be acquitted, unless the evidence was, in their judgment, sufficient to overcome or rebut the presumption. Held, that there was no error in thus submitting the question of the wife's guilt to the jury. The court charged that "the possession of stolen goods immediately after the larceny, if under peculiar and suspicious circum

stances, when there is evidence tending to show that some other persons stole the property, such possession not being satisfactorily explained, would warrant the jury in convicting the accused of receiving stolen goods knowing them to have been stolen." Held, not error. Aflirmed. New York Court of Appeals. Opinion by DANFORTH, J.-Goldstein v. People.

SLANDER-DAMAGES-SUBSEQUENT REPETITION OF SLANDEROUS WORDS- EVIDENCE OF MALICE.-In an action of slander the plaintiff can recover damages only for the s'anderous words charged in the declaration. Where the same slander has been since repeated, evidence of the repetition is admissible for the purpose of showing malice in the original speaking, but not as a ground in itself for additional damages. Where a defendant maliciously, and for the purpose of spreading and perpetuating the slander, pleads the truth of the words in justification and fails to prove it, it may be regarded as evidence of malice in the original speaking of the worls, and may thus tend indirectly to increase the damages; but it is not of itself a cause for which damages may be directly assessed. 18 Conn. 472; 31 Id. 289. Supreme Court of Errors of Connecticut. Opinion by GRANGER, J.Ward v. Dick.

SUPREME COURT OF THE UNITED STATES.

October Term, 1880.

PLEADING-FORMER BILL DISMISSED NECESSARY AVERMENTS IN PETITION.-(Full opinion.) "Upon the case made by the bill, the appellant is not entitled to recover. Paragraphs 9 and 10 of the bill are as follows: '9. Complainant further states that he filed his bill of complaint in said court against said defendant and said Kappell, on or about the 19th day of July, 1870, praying that said sale should be set aside, and for other matters, which will more fully appear by reference to said bill, which bill was afterwards dismissed for want of prosecution upon the part of the attorney for complainant. 10. Complainant further states that on or about the 16th day of October, 1871, he filed his second bill in said court, praying for the same relief, and that the defendant plead thereto, which bill was also dismissed for the reason of the default of a replication to said plea, the attorney of the complainant having died during the pendency of said last-mentioned bill.' Here is an express admission of record, that a bill for the same identical cause of action now sued on was dismissed for the reason that a plea which had been filed and not denied presented a good defense. What the plea was does not appear; but as the bill was dismissed absolutely, the presumption is it went to the merits. A mere averment that there has been no adjudication upon the merits, is not enough. To overcome the effect of the other allegations, the nature of the defense set up in the plea should have been stated, so that it could be seen that it did not present a bar to the action." Affirmed. Appeal from the Supreme Court of the District of Columbia. Opinion by Mr. Chief Justice WAITE.-Leary v. Long.

APPEAL ORDER ADJUDGING FINE FOR CONTEMPT OF INJUNCTION-FINAL ORDER.-F, the defendant in error, brought a suit in equity below to restrain H, the plaintiff in error, from using a certain patented device. In this suit an interlocutory injunction was granted. Complaint having been

made against H for a violation of this injunction, proceedings were instituted against him for contempt which resulted in an order by the court that he pay the clerk $1,389.99 as a fine, and that he stand committed until the order was obeyed. To reverse this order H sued out this writ of error, which F now moves to dismiss, on the ground that such proceedings in the circuit court can not be re-examined here. Held, that if the order complained of is to be treated as part of what was done in the original suit, it can not be brought here for review by writ of error. Errors in equity suits can only be corrected in this court on appeal, and that after a final decree. This order, if part of the proceedings in the suit, was interlocutory only. If the proceeding below, being for contempt, was independent of and separate from the original suit, it can not be re-examined here either by writ of error or appeal. This was decided more than fifty years ago in Kearney's Case, 7 Wheat. 39, and the rule then established was followed as late as New Orleans v. Steamship Co., 20 Wall. 392. It follows that we have no jurisdiction, and the motion to dismiss is consequently granted. In error to the Circuit Court of the United States for the Southern District of New York. Opinion by Mr. Chief Justice WAITE. -Hayes v. Fischer.

CONSTITUTIONAL LAW-INTER-STATE COMMERCETAXATION.-1. A statute of Texas regulating taxation, enacts: That there shall be levied on and collected from every person, firm or association of persons, pursuing any of the following named occupations, an annual tax, as follows: For selling spirituous, vinous, malt, and other intoxicating liquors, in quantities less than one quart, $200; in quantities of a quart and less than ten gallons, $100; provided, that this section shall not be so construed as to include any wines or beer manufactured in this State, or when sold by druggists for medicinal purposes."' Held, following Welton v. State, 3 Cent. L. J. 116, that the statute is unconstitutional so far as it makes a discrimination against wines and beer imported from other States, when sold separately from other liquors. A tax can not be exacted for the sale of beer and wines when a foreign manufacture, if not exacted from their sale when of home manufacture. 2. If a party be engaged exclusively in the sale of these liquors, or in any business for which a tax is levied because it embraces a sale of them, he may justly object to the discriminating character of the act, and on that account challenge its validity; but if engaged in the sale of other liquors than beer or wines, he can not complain of the State tax on that ground. In the present case the petitioners describe themselves as engaged in the occupation of selling spirituous, vinous, malt, and other intoxicating liquors, that is, in all the liquors mentioned, and others not mentioned. There is no reason why they should be exempted from the tax when selling brandies and whiskies and other alcoholic drinks, in the quantities mentioned, because they could not be thus taxed if their occupation was limited to the sale of wine and beer. In error to the Supreme Court of Texas. Affirmed. Opinion by Mr. Justice FIELD.-Tiernan v. Rinker.

PRACTICE-ADVANCING CASE ON DOCKET OF SUPREME COURT.- (Full opinion.) "We decided at the last term that this case did not present questions which entitled it to a hearing in advance of others standing before it on the docket. It is now suggested that No. 181, U. S. v. New Orleans, involves the consideration of the same questions and the construction of thesame statute, and we are asked to advance this case to be heard with that. To this the defendant in error objects. When a case is advanced to be heard

with another which has precedence on the docket, the rule is to require the two to be argued as one. This rule is never departed from except under very peculiar circumstances. As we can not compel a party against his will to argue his case with another, we have always heretofore denied motions of that kind when they are resisted. There are no such special circumstances in this case as to make it proper that it be advanced and heard separately from the other. The motion to advance is, therefore, overruled, but counsel may submit printed arguments in the other case on the questions presented in that which are common to the two, provided twenty copies of such arguments are filed with the clerk at least six days before that case comes up for hearing." In error to the Supreme Court of Louisiana. Opinion by Mr. Chief Justice WAITE.-State v. City of New Orleans. NEGOTIABLE PAPER-GUARANTY-PARTNERSHIP— PRACTICE-SET-OFF.-1. In Illinois, if a person not a party to a note, that is to say, not the payee or maker, writes his name on the back of the note at the time the note is made, the presumption is that he has assumed the liabilities and responsibilities of a guarantor; this presumption, however, is liable to be rebutted by the proof. 2. Where, under the Illinois statute (cap. 110, § 34), one is sued as a guarantor of a note, and he verifies his plea in the general issue by affidavit, this is an admission of the execution of the note, and the plaintiff need only prove the execution of the guaranty. 3. In an action against a partnership on a guaranty executed by one of the parties: Held, that the defendant could not prove that there was an agreement between themselves as partners, that neither of them should assume any liability on behalf of the firm out of the line of its regular business without the consent of the others, and that one of the defendants did not know that the liability sued was incurred until long after the notes were made and indorsed, and that since he learned it he has always repudiated it. 3. In such an action it was not error to instruct the jury that if, as between the plaintiff and the maker of the note, the maker could not use an account on its books as a set-off against the note, the defendants as guarantors could not. In error to the Circuit Court of the United States for the Northern District of Illinois. Judgment affirmed. Opinion by Mr. Chief Justice WAITE.-Andrews v. Congar.

on

SUPREME COURT OF IOWA.

October, 1880.

PARENT AND CHILD-LIABILITY OF STEP-FATHER -PRACTICE.-1. An exception to the rule that the father is bound to maintain his infant child, and no allowance will be made to him for this purpose out of his property (Tyler on Infancy, 289), obtains where the parent's estate is limited, while that of the child is abundant. 2. A man who takes a child of his wife by a former marriage into his family stands in the same relation to him as to his own children. When this relation exists between the parties, the child can not recover for services rendered, and the step-father can not ordinarily recover for the support and maintenance of the child. When a man stands in loco parentis, he is entitled to the rights and subject to the liabilities, of an actual parent, although he may not have been legally compelled to assume that situation. 3. A demurrer is not the proper mode of raising an objection to a guardian's report; it should be by motion

for a more specific statement. Reversed. Opinion by ROTHROCK, J.-Gerdes v. Weiser.

REPLEVIN

DAMAGES INNOCENT WRONGDOER. -1. In replevin, where the plaintiff seizes the property upon his writ, and the defendant succeeds in the action and is found to be the absolute owner of the property, and is therefore entitled to its return, the value should be assessed as of the time of the trial. 2. The rule that where a wrongdoer expends labor on the property of another, he can not claim compensation thereto, does not extend to innocent wrongdoers. Therefore, where one, under a claim of title to grain in the stack, threshed and marketed the same, and afterwards it was determined that he had no title thereto, it was held, that it was not error to allow him for the expense of threshing and marketing. Reversed. Opinion by ROTHROCK, J.-Clement v. Duffy.

CIVIL DAMAGE LAW-EVIDENCE.-1. In an action under the Civil Damage act for injuries caused by the sale of intoxicating liquors, in order that the defendant may show that he was only liable for part of the injuries complained of, he should prove that the plaintiff received compensation in the other suits for sales made during the same time he was charged with making unlawful sales. 2. In such an action, brought by the wife, evidence of her loss of standing in society and her wounded feelings, by reason of the change consequent on her husband's drunkenness, is inadmissible. Reversed. Opinion by ROTHROCK, J.— Jackson v. Noble.

DEBTOR LEAVING STATE CONSTRUCTION OF "START."--The Code of Iowa,§ 3076, provides: "Where the debtor of the head of a family has started to leave this State, he shall have exempt only the ordinary wearing apparel of himself and family, and such other property in addition as he may select, in all not exceeding $75 in value," The court below found that the plaintiff had his wagon close to the house, ready to be loaded with goods; that a part of the goods was in boxes, out of the house; that the house indicated a state of preparation for removing; and that the plaintiff made such declarations as to his destination being out of the State, as would bind him in the event he had started, and thereupon ruled that these facts did not constitute a "starting," within the meaning of the law. Held, error. It seems that the court below was of opinion that, to constitute a starting to leave the State, it was necessary that the plaintiff should actually have set out upon the journey. If he had caused but one revolution of the wheels of his wagon, it is probable that the court would have held he had started to leave the State. The word start, however, is not limited to setting out upon a journey or a race. It means as well the commencement of an enterprise or an undertaking. Reversed. Opinion by DAY, J. ADAMS, C. J., and ROTHROCK, J., dissenting: If mere preparation to leave is starting to leave, then the purchase of horses or an outfit, or the winding up of one's business, with the view of leaving, is starting to leave. There is a well-defined and easily recognized distinction between preparing to leave the State and starting to leave.-Graw v. Man

SUPREME COURT OF KANSAS.
November, 1880.

ATTORNEY-POWER TO RELEASE PAYMENT.-An attorney employed to collect a note is, in the absence

of special directions, only authorized to receive money in payment thereof, and does not bind his client by an agreement to receive county warrants or other property, real or personal, in payment and discharge of the debtor's liability on the note. Reversed. Opinion by BREWER, J. All the justices concurring.Herriman v. Showman.

TAX SALES-WHEN INVALID FEES FOR ADVERTISING.-1. A county can not legally collect a larger sum for advertising a tract of land in a delinquent tax list than it pays to the publisher. 2. A tax deed, founded upon a sale including the sum of seventeen cents in excess of the actual costs of advertising, will be adjudged invalid and set aside, if challenged before the running of the statute of limitations, where it clearly appears that such excess was intentionally included within the amount for which the land was sold, the excess being something for which the treasurer had no right to sell the land. Reversed. Opinion by HORTON, C. J. All the justices concurring. — Genther v. Lewis.

JUDGMENT-SALE-EFFECT OF SUBSEQUENT VACATION OF JUDGMENT.- Where a party plaintiff, who has obtained upon service by publication a judgment in his favor in an action in the district court to quiet his title, conveys in good faith the land to a stranger, before an application is made to open the judgment under section 77 of the Code, the subsequent vacation of the judgment does not divest the purchaser of his title. Affirmed. Opinion by HORTON, C. J. All the justices concurring.-Howard v. Entreken.

ELECTIONS-Two BOARDS oF JUDGES, WHICH LEGAL. At a city election in a city of the third class, where the regular judges fail to attend or refuse to act, and two election boards are elected by the bystanders, at different times, but both are elected before eight o'clock in the morning: Held, that both are elected prematurely; but that the one last elected and last organized before eight o'clock in the morning, will be deemed to be the legal board, unless something else transpires to render it illegal; and further held, under the circumstances of this case, that the board last elected and last organized was the legal board. Judgment for plaintiff. Opinion by VALENTINE, J. BREWER, J., dissenting. HORTON, C. J., concurring.-Kirkpatrick v. Vickers.

POWER OF EQUITY TO RESTRAIN SUITS IN ANOTHER STATE.-1. A court of equity may restrain a defendant who is within its jurisdiction and subject to its processs from prosecuting any action or proceeding,either in the courts of this or of a foreign State. 2. But no such restraining order will be made simply because the litigation is in a foreign State, or to enforce a mere legal right, even though such right be granted by the statutes of the State, but only when there is a manifest equity which compels such restraining order. 3. A and B were residents of Kansas. A owed B a just debt. He went into Missouri, taking certain personal property with him. This property was exempt by the laws of Kansas. B commenced action in Missouri by attachment before a justice of the peace, seizing this property. Held, that upon the mere showing that the particular property seized was exempt, and without any showing as to A's liability to pay, or his possession of none save exempt property, or as to whether the debt was fraudulently contracted or not, or as to any fraudulent disposition of property since the contraction of the debt, a court of equity in Kansas would not restrain the prosecution of said action in Missouri. Affirmed. Opinion by BREWER, J. All the justices concurring.-Cole v. Young.