ing, made an order disallowing the claim of the United States Investment Company, Limited, from which it appeals, and allowing the claims of the Oregon Marble & Lime Company and of R. Sargent et al., from which the other creditors appeal.

The testimony clearly shows that the lime was sold and delivered by the Oregon Marble & Lime Company to the insolvent debtor, and there is no dispute as to the amount due therefor. We do not think it necessary to pass upon the question whether the debtor could deal in lime, since the contract under which the lime company makes its claim had been fully executed, the lime had been delivered to and disposed of by the debtor, and the proceeds arising therefrom formed a part of its assets. The assignee holds the legal title to the property of the insolvent debtor, and the fund arising from the sale thereof, for the payment of the just claims against the estate, and he can acquire no greater or better title than his assignor had. He is subject to the same duties and obligations with reference to the estate, and must pay, so far as he is able, any and all claims which could have been enforced against the debtor if no assignment had been made. The test should be, could the claim, to which the exceptions are taken, have been enforced against the debtor? The sale of lime was not prohibited by the debtor's articles of incorporation, nor was it prohibited by statute. If no assignment had been made, the debtor could not have kept the lime, and refused to pay for it, because it was not hardware; nor could it keep the proceeds arising from the sale thereof. It must either return the goods or pay for them. To say that it may retain the proceeds which have come into its possession, without making any compensation whatever to the person from whom it has obtained them, savors very much of an inducement to fraud. Green's Brice, Ultra Vires, (2d Amer. Ed.) 721. There would be no equity in a rule which would permit the creditors of an insolvent estate to reap the benefit of the assets derived from such a source, and then plead that it was ultra vires. The debtor having received the benefit, the assignee, who stands in his place, should pay the claim as any other.

As to the claim of R. Sargent et al., the evidence shows that the insolvent debtor was incorporated with a capital stock of $20,000, and that subscribers thereto gave their notes, amounting to $12,000, in payment thereof; that on January 24, 1889, at a special meeting of the board of directors, a resolution was adopted which authorized the secretary to negotiate a loan not to exceed $12,000, and the president and secretary were authorized to give the notes of the corporation, and sign the same, for the amounts desired, and also to deposit, as collateral security, the notes of the individual stockholders; that, in pursuance of this resolution, R. Sarv.33P.no.10-35

gent, as president, and M. J. Green, as secretary, on September 30, 1889, borrowed from the Farmers' Savings Bank of Walla Walla, Wash., $5,000, and gave the note of the corporation therefor, payable in three months; that to meet the payment of this note one Simon Selling, of Portland, Or., on February 20, 1890, loaned $5,000, and the said president and secretary, with J. M. Elgin and B. Selling, directors of the corporation, signed a note therefor, payable in one year, but through inadvertence and mistake omitted to sign the name of the corporation thereto; that on February 21, 1890, the money received from Selling on account of said loan was deposited in the Pendleton National Bank, of Pendleton, Or., and on the same day was. by check of the corporation, paid over to the Farmers' Savings Bank of Walla Walla, together with $215.60 interest, and the note of that bank was surrendered to the insolvent debtor; that when the Simon Selling note matured, R. Sargent, one of the joint makers, paid the same, and since that time B. Selling, another joint maker, has repaid Sargent one-fourth thereof; that this note was presented as a claim against the estate, to which the other creditors except for the reasons heretofore given. "The liability of a principal depends upon the facts that the act was done in the exercise and within the limits of the power delegated, and especially that it was the intent of the parties that the principal, and not the agent, should be bound." Ang. & A. Corp. 294. That the money was borrowed from the Farmers' Savings Bank by the corporation in the exercise and within the limits of the power delegated, and that it was the debt of the corporation, cannot be questioned. The agents of the corporation, under the resolution, were also authorized to borrow the money from Selling to repay the loan from the Farmers' Savings Bank. The parties who joined in making the Selling note pledged their credit as security therefor as much as though their stock subscription notes had been deposited as collateral security, and the evidence shows that it was the intention of the parties that the corporation should be bound as principal. "Corporations may borrow money by their syndic; but if he borrows more than he had authority for, the community is not answerable for it, unless the money come to their use." Ang. & A. Corp. 297. The resolution of the board of directors authorized the president and secretary to deposit the stock subscription notes as collateral security, but Selling demanded the joint note, and, as the amount of the loan went to the use of the corporation, it was a loan to it, and not to the joint makers. The evidence shows that the failure to sign the name of the corporation to the Selling note was an oversight on the part of the officers, and, since equity will consider that done which was intended, it follows that the note was a

joint one, with the corporation as principal and the other joint makers as sureties.

The second objection to this claim, that it was given in payment of stock subscriptions, is not supported by the evidence, which conclusively shows that R. Sargent, who paid off the Selling note, had on August 1, 1889, fully paid his subscription to the capital stock of the corporation, and that he now owns three-fourths and B. Selling one-fourth of the Simon Selling note, which should be paid out of the assets of the estate.

The United States Investment Company, Limited, presented to the assignee the following claim: "Pendleton, Or., Mch. 2, '91. Pendleton Hardware & Impl'm't Co. to the United States Investment Company, Limited. To note dated Dec. 7, 1890, 3 mos., made by P. H. & I. Co. to U. S. I. Co., L., and interest to date, Mch. 7th, '91, for money loaned at date of said note, $6,150.00." To this claim the objecting creditors interposed the exceptions heretofore stated. The claimant, to support its claim, introduced the following note:

"$6,000. Portland, Or., 15th Dec. 1890. Ninety days after date, without grace, for value received, in gold coin of the United States, we jointly and severally promise to pay to National Bank of Pendleton or order, at the London & San Francisco Bank, Limited, in this city, the sum of six thousand dollars, with interest from date until paid at the rate of ten per cent. per annum, payable monthly; both principal and interest payable in like gold coin. In case suit is instituted to collect this note or any portion thereof, we promise to pay such additional sum as the court may adjudge reasonable as attorneys' fees in said suit. The Pendleton Hardware & Implement Co. M. J. Green. Watson & Luhrs. Benj. Selling. Jacob Frazer. Jesse Failing. No. 1,006." Indorsements as follows:

"July 1. Memo. note made for Int. to June 20, $153.91.

"12-31-91. Memo. notę made for Int. to 12-31-91, $326.65."

-To which the other creditors objected, on the ground that it was irrelevant, incompetent, and immaterial. T. F. Rourke testified that the corporation borrowed $6,000 from the United States Investment Company for the purpose of paying a note of similar amount in favor of the National Bank of Pendleton, which was given to the latter bank for money used in the insolvent debtor's business. We think the evidence clearly shows the authority of the parties to execute the note in behalf of the insolvent debtor, that it was for money used by the corporation in its business; and the question is presented whether the claimant, in the absence of an indorsement from the National Bank of Pendleton, can treat the latter bank as a fictitious payee, and recover on the note against the makers as upon a note payable to bearer. "In the case of a note payable to

a fictitious person, it appears to be well settled that any bona fide holder may recover on it against the maker as upon a note payable to bearer." Daniel, Neg. Inst. (4th Ed.) § 139. "When a note, however, is made payable to the name of some person not having any interest, and not intended to become a party in the transaction, whether a person of such name is or is not known to exist, the payee may be deemed fictitious. The name is assumed merely to give form to the instrument. In such case it has been adjudged that a recovery can be had on the money counts by the actual creditor, where money passed between the parties in the action." Foster v. Shattuck, 2 N. H. 446. While the note was made payable to the National Bank of Pendleton or order, the evidence conclusively shows that the United States Investment Company furnished the money which constituted the loan, and this fact would make it the equitable owner thereof. If the Pendleton National Bank had advanced the money, and then assigned the note without indorsement to the United States Investment Company, this fact would give it the equitable title thereto, but subject to any equities existing between the original payors and payee, (Daniel, Neg. Inst. § 471,) so that, in either event, the United States Investment Company was the equitable cwner of the note, and entitled to present the same as a claim against the estate, since no equities are attempted to be shown between the insolvent debtor and the Pendleton National Bank. The objecting creditors contend that the claim of the United States Investment Company is not supported by the evidence. The original act, approved October 18, 1878, with some amendments, now constituting sections 3173-3187, Hill's Code, were borrowed from Iowa, in which state it was held, under similar objections, that, "this being a special proceeding authorized by Code, § 2121, wherein no directions are found for pleadings, further than exceptions by creditors, and prescribing that therein the court shall proceed to hear the proofs of the parties, it is quite probable that no further pleadings are required." In re Guyer, 69 Iowa, 585, 29 N. W. Rep. 826. Nor do we understand that this rule is changed by the opinion of Thayer, C. J., in Mitchell v. Powers, 17 Or. 491, 21 Pac. Rep. 451, in which he says: "The presentment of a claim in such a case requires more than a mere demand of a sum of money. A statement under oath of the debt or liability which is alleged to exist against the insolvent debtor should be made out and delivered or transmitted to the assignee. The creditor may not be required to state all the facts out of which the debt arose as fully as in the case of a confession of judgment, but he should set out sufficient facts to apprise the parties interested in the estate of the nature and consideration of the debt. If the debt is for money loaned or advanced, or goods sold, it should be stated,

and the statement should not be limited to a specification of the evidence of it. Persons interested in an insolvent's estate have a right to know something more than the fact that the insolvent executed to the claimant his promissory note of a certain date; they should be informed with reasonable certainty what the consideration of the claim was." The United States Investment Company allege that their claim is "for money loaned at date of said note." Claims against the estate of an insolvent debtor should rest upon their justice, and not upon the sufficiency of their allegations; and if it appear that the claimant had at the instance of the debtor performed labor, sold and delivered goods, loaned or advanced money, such claims, upon proof, should, in equity, be a charge against the estate. The decree of the court below will be modified, and one here entered in accordance with this opinion.

(51 Kan. 710)

WYER V. LAROCQUE et al. (Supreme Court of Kansas. July 8, 1893.) TAX DEED-VALIDITY-SALE IN GROSS-EVIDENCE. Where a tax deed shows that different lots were sold together in a single sale, such tax deed is void. Such a tax deed cannot be cured by testimony tending to prove that each lot was sold separately, not in gross. Hall's Heirs v. Dodge, 18 Kan. 277; Cartwright v. McFadden, 24 Kan. 662.

(Syllabus by the Court.)

Error to district court, Cloud county; L. J. Crans, Judge pro tem.

Action by J. I. Wyer against Frederick Larocque and another to recover realty. Defendants had judgment, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by HORTON, C. J.:

On the 3d day of December, 1887, J. I. Wyer commenced his action against Philomena Larocque and Frederick Larocque to recover the possession of lots 1 to 18, inclusive, in block 72, in the city of Concordia, Cloud county. The defendants answered, admitting possession, but denying Wyer's title. Trial was had, and, in accordance with the statute, set aside, and then retried before Hon. L. J. Crans, as judge pro tem. Wyer's title was derived from the government, through a deed from the mayor of Concordia. Philomena Larocque claimed title under a tax deed. After the action was commenced she deeded her interest to Frederick Larocque, and before the cause was called for trial she died. The deed to J. I. Wyer from the mayor of the city of Concordia was dated the 8th of January, 1878. The tax deed under which the defendants claimed was dated the 20th of January, 1883, and was filed for record the next day. The deed recited that the lots described therein were subject to taxation for 1878, and were sold to M. Keisner on the 3d and 4th days of September, 1879, for the sum

of $5.01, the amount of taxes, interest, and costs then due and remaining unpaid. The subsequent taxes for the years 1879, 1880, and 1881 amounted to $7.63, which were paid by the tax purchaser. The second trial was had on the 11th day of January, 1890. The court made a general finding in favor of the defendant Frederick Larocque, and rendered judgment accordingly. Wyer excepted, and brings the case here.

Kennett & Peck, for plaintiff in error. Laing & Wrong, for defendants in error.

HORTON, C. J., (after stating the facts.) It appears from the tax deed preserved in the record that all the lots embraced therein are not numbered consecutively, but that they were all sold together. One lot is in block 145, and other lots in block 72. This and the evidence outside of the deed shows that all the lots included in the deed are not in fact contiguous. The tax deed is therefore void. Hall's Heirs v. Dodge, 18 Kan. 277; Cartwright v. McFadden, 24 Kan. 662. The court below seems to have ruled in the case that, even if the tax deed was void, Larocque was entitled to the lots under the tax sale, upon the ground that his grantor had the right to a perfect deed, and that such a deed might issue at any time. This theory of the law cannot be applied to cure a void tax deed, under which a party in possession claims the property. After the void tax deed was issued a tender was made by the plaintiff, and, if the tender was sufficient, no other deed could issue. As the tax deed is void, and Frederick Larocque has no other claim or title, he ought not to recover. The judgment of the district court will be reversed, and cause remanded. All the justices concurring.

STATE v. ELLVIN.

(51 Kan. 784)

(Supreme Court of Kansas. July 8, 1893.) CRIMINAL LAW DEATH OF DEFENDANT AFTER CONVICTION AND APPEAL INTOXICATING LIQ. UORS INFORMATION VERIFICATION COSTSCONTINUANCE EVIDENCE.

1. A defendant appealed to the supreme court from a conviction for the unlawful sale of intoxicating liquors, where he obtained a stay of the execution of the judgment. Before the appeal was heard the defendant died. Held, that the death of the defendant did not abate or destroy the judgment for costs, and that, upon the substitution of his legal representative, the court may review the errors assigned, and determine the regularity and va lidity of the judgment rendered for costs. State v. Fisher, 15 Pac. Rep. 606, 37 Kan. 404.

2. The sufficiency of affidavits taken before the county attorney under the provisions of the prohibitory liquor law and the verification of the information become immaterial where the defendant voluntarily gives a recognizance, and obtains a discharge from custody.

3. Where the information contains several counts, and the trial thereon results in a conviction upon a single count, the defendant can only be held liable for the costs that arise upon the trial of the charge upon which he was

convicted. An objection to the improper assessment of costs is not available in this court unless a motion was made in the district court to retax the same.

4. Where the defendant, near the close of his trial for a misdemeanor, renders himself unable to attend the trial by the voluntary use of intoxicating liquors, and an application is made for a continuance of the trial upon that ground, a denial of the same will not be held to be fatal unless there is a clear abuse of discretion; and, held that, under the circumstances of this case, there was no abuse of discretion.

5. The evidence examined, and held to be sufficient to sustain the verdict and judgment. (Syllabus by the Court.)

Appeal from district court, McPherson county; Lucien Earle, Judge.

Nels Ellvin was convicted of selling intoxicating liquors unlawfully, and appealed. Affirmed.

Milliken & Galle, for appellant. John T. Little and Chas. W. Webster, for appellee.

JOHNSTON, J. On October 7, 1892, Nels Ellvin was convicted of the unlawful sale of intoxicating liquors, and the judgment of the court was 45 days' imprisonment in the county jail, and that he should pay a fine of $250 and costs. He appealed to the supreme court, and obtained a stay of the execution of the judgment by giving bond as provided in section 287 of the Criminal Code. Before the appeal was heard, and on March 26, 1893, the appellant died. Counsel for the appellant filed a motion for dismissal, but, upon the suggestion of the death, the administratrix of the estate of the deceased was brought in as a party, in order that the liability of the estate for the costs of the prosecution might be determined. It is still insisted that no inquiry can be made, nor any action taken in the case, except to note the fact of abatement and make an order of dismissal. This question was presented to the court in the case of State v. Fisher, 37 Kan. 404, 15 Pac. Rep. 606, where it was decided that the death of the defendant did not abate or destroy the judgment for costs. The judgment was stayed, and, in a certain sense, suspended by the appeal, but a dismissal of the same ordinarily leaves the judgment unimpaired and in full force. While the death of the appellant necessarily ends further prosecution, and prevents a recovery of the fine imposed as punishment, it does not relieve his estate from liability for the costs which had passed into judgment during his lifetime. It has been determined that the costs adjudged against one convicted of crime do not constitute a part of the punishment inflicted upon him, and this although the judgment may provide that he be imprisoned in the county jail until such costs are paid. It was further held that an unconditional pardon would not relieve the party from liability for costs adjudged against him. It was said that "such a judgment is merely a means of enforcing the legal obligation resting upon the defendant

to pay the costs which he by his original wrongful act and his subsequent acts has caused to be made, and which have accrued in the prosecution subsequent to the act for which he is punished; and these costs have not accrued to the public merely, but have accrued to individuals, and are given to such individuals as compensation for their services performed in the prosecution; and the right of these costs, and the means for their collection, are vested rights, which cannot be disturbed or abridged or lessened by, any pardon which the governor may grant." In re Boyd, 34 Kan. 570, 9 Pac. Rep. 240. The costs, although incidental to the punishment inflicted, constitute a separate civil liability in favor of the parties to whom they are due, and from which the estate of the defendant cannot be relieved except by a reversal of the judgment. A review proceeds here at the instance of the administratrix and for the benefit of the estate. In case of a reversal, of course no new trial can be had, and necessarily no further liability for costs can arise.

The first ground urged for a reversal of the judgment is that the affidavits which were used as a basis for the information were informal and insufficient. The aver ments contained in the information sufficiently describe the offense, and it is verified by the county attorney upon information and belief, and the objection made to the affidavits which were taken by and verified before the deputy county attorney and filed with the information have become immaterial. After the arrest of the defendant upon the warrant, he voluntarily gave a recognizance, and obtained a discharge from custody. This was done before any objection to the warrant or the information was made, and the defendant has thereby waived all right to complain of defects or irregularities in the affidavits and in the issuance of the warrant. State v. Bjorkland, 34 Kan. 377, 8 Pac. Rep. 391; State v. Longton, 35 Kan. 375, 11 Pac. Rep. 163; State v. Ladenberger, 44 Kan. 261, 24 Pac. Rep. 347; State v. Tuchman, 47 Kan. 726, 28 Pac. Rep. 1004.

It is next contended that the testimony is insufficient to sustain the conviction. The information contained 26 counts, all charging unlawful sales of liquors, except the last one, which charged the keeping of a nuisance. Although there was much testimony tending to show numerous unlawful sales by Ellvin, the jury found him guilty only upon the third count of a sale to William Ferguson, and upon that count the state elected to rely for a conviction upon the third sale made to Ferguson. It was charged that the sales to Ferguson were made in 1891, and he testified to obtaining from four to ten bottles of beer from Ellvin during the summer of that year. His testimony, although indefinite in some respects, shows that he purchased beer from the appellant, a bottle at a time; that there were three

or more purchases; and that the price paid was 25 cents for each bottle. He was unable to state all the details and circumstances attending each sale that was made, but we think there was sufficient testimony tending to show the sale to Ferguson relied on for conviction, and the finding of the jury thereon, sanctioned as it has been by the trial court, ends the controversy upon that point. It is next urged that the court erred in imposing all of the costs of the entire trial upon the defendant. It appears that some of the witnesses were called and the costs accrued in an attempt to sustain charges in the information which were subsequently dismissed, or upon which the defendant was found not guilty. The defendant can only be held liable for the costs that arose upon the trial of the charge upon which he was convicted, and should not be required to pay costs accruing under the counts upon which he was acquitted. State v. Brooks, 33 Kan. 708, 7 Pac. Rep. 591. This objection is not available at this time, for the reason that no motion was made in the district court to retax the costs, nor any request made to separate those which he should recover from those which he should pay. Appeal of Lowe, 46 Kan. 255, 26 Pac. Rep. 749; In re Gilson, 34 Kan. 644, 9 Pac. Rep. 763. As was said in the case last cited: "Doubtless, upon a motion to retax the costs, the court will correct the judgment."

The only matter left for consideration is that the defendant was absent from the court during a portion of the trial. Near the end of the trial the defendant became unfit to attend court by reason of the excessive use of intoxicating liquors voluntarily taken by him, and an oral application for a continuance of the cause was made. An adjournment was taken for half of a day, when it was found that the defendant was still absent, owing to intoxication, or its effects. The court then concluded to proceed with the trial, and denied the adjournment. The presence of the defendant at a trial for misdemeanor is not indispensable. Crim. Code, § 207; State v. Baxter, 41 Kan. 516, 21 Pac. Rep. 650. In this case the defendant was personally present when the judgment of the court was pronounced. In view of the voluntary disability of the defendant, and other circumstances, we cannot say that there was an abuse of discretion in denying the application. We see no grounds which would justify a reversal, and hence the judgment for costs must stand. All the justices concurring.

for such appointment, must be taken within 60 days after such judgment or order is entered.

2. Where two petitioners for letters of administration on the estate of a deceased are heard together, under Code Civil Proc. § 1374, but no issue is joined as to any fact alleged in either petition, and no objection is made as to the competency of either party, a motion for a new trial is unauthorized, and no appeal will lie from an order denying the same.

Department 2. Appeal from superior court, Mendocino county; Robert McGarvey, Judge.

Petitions by R. B. Markle and another for letters of administration on the estate of Frederick Heldt, deceased. The petitions were heard together, under Code Civil Proc. 8 1374, and letters of administration were granted to Markle. From the order granting such letters, and from an order denying his motion for a new trial, the other petitioner appeals. A motion was made to dismiss the appeals. Appeals dismissed.

J. H. Seawell, for appellant. J. A. Cooper, for respondent.

PER CURIAM. There are two appeals in this case. The first is from a judgment or order of the superior court granting letters of administration upon the estate of Frederick Heldt, deceased, to R. B. Markle, and refusing appellant's application for such letters; and the other is an appeal from an order denying appellant's motion for a new trial in the same matter. The respondent moves to dismiss both appeals, and we think the motion should be granted.

1. The appeal from the judgment or order appointing an administrator, and denying appellant's application for such appointment, was not taken within 60 days after the same was entered, and therefore was not taken in time. Code Civil Proc. § 1715; Estate of Harland, 64 Cal. 379, 1 Pac. Rep. 159; Estate of Burton, 64 Cal. 428, 1 Pac. Rep. 702; Estate of Fisher, 75 Cal. 523, 17 Pac. Rep. 640; Estate of Wiard, 83 Cal. 619, 24 Pac. Rep. 45; Estate of Backus, 95 Cal. 671, 30 Pac. Rep. 796.

2. In this case both the appeilant and respondent filed a petition asking for the issuance of letters of administration upon the estate of the deceased, in each of which petitions the applicant stated that he had been requested to act as such administrator by the widow of the deceased, and both of the petitions were heard together, as provided by section 1374 of the Code of Civil Procedure. But no issue was joined as to any fact alleged in either petition, nor any objection made as to the competency of either of the parties. In such a proceeding, when no issues of fact are made by the pleadings, a motion for a new trial is not authorized; and if such a motion is made, and not entertained, or is denied by the court, no appeal will lie from such an order. This is not in conflict with what was decided by us in Estate of Bauquier, 88 Cal. 313, 26 Pac. Rep.