complied with the terms of the recognizance. Section 256 of the Criminal Code provides: "Where any convict shall be sentenced to any punishment, the clerk of the court in which sentence was passed shall forthwith deliver a certified copy thereof to the sheriff of the county, who shall, without delay, either in person or by a general or usual deputy, cause such convict to receive the punishment to which he was sentenced." The sheriff made two excuses for not taking the prisoner into custody at the time he offered to surrender himself, namely, that he had no papers by which to hold him, and no place to keep him over night. Neither of these excuses was good. The law makes it the duty of the clerk to forth with deliver the sheriff a certified copy of the judgment, and, where the party himself raised no objection to being taken into custody on the ground of want of papers, we do not think the sheriff himself can make it. But a very brief time would be required for the clerk to make up the record, and certified copy thereof, required by the statute. As to the other objection, it is the duty of the sheriff to take prisoners into his custody, and keep them. If he has no convenient place for doing so, he must use one that is not so convenient. Sureties on criminal recognizances are not bound to answer for the conduct of a prisoner after it becomes the duty of the sheriff to take him into custody after judgment, and after the defendant has submitted himself for that purpose. The words, "not depart without leave," in the bond, do not mean that the defendant will not escape from the custody of the sheriff. The "leave" means leave of the court. So far as the record shows, the sentence was final, and to be executed at once. There is nothing showing that the court granted any stay, or directed the de fendant to appear in the court at any future time. Under the ruling in Re Strickler, (Kan.) 33 Pac. Rep. 620, the operation of the sentence began at once, and it was the duty of the sheriff to carry it into effect. See, also, Moorehead v. State, 38 Kan. 490, 16 Pac. Rep. 957; McGarry v. State, 37 Kan. 9, 14 Pac. Rep. 491. Judgment will be reversed, with the direction to enter judgment on the findings of the trial court, in favor of the defendants, for costs. All the justices concurring.

CONSTANT v. LEHMAN et al. (Supreme Court of Kansas. Nov. 11, 1893.) RESCISSION OF CONTRACT-PARTIES-FRAUD-DAM

AGES-EVIDENCE.

1. The rescission of a contract must be made by a restoration to each of the parties thereto of that which has been received under it, and, in order to obtain such rescission, all of the parties interested in the property involved must be brought before the court.

2. In an action to recover damages for fraudulently inducing the plaintiff to enter into

a joint purchase of lands with the defendants, where the fraud charged is that the defendants were part owners in the land, and concealed such fact from the plaintiff, the measure of the plaintiff's recovery is the difference between the price paid and the fair market value of the property at the time of the purchase.

3. To prove such market value, the evidence need not be confined to the very day, but proof of value within a reasonable time before and after the transaction may be received and considered by the jury.

(Syllabus by the Court.)

Error from district court, Harvey county; L. Houk, Judge.

Action by Adeline B. Constant, administratrix of the estate of Hiram Constant, deceased, against S. Lehman, A. D. Gilbert, T. J. Templar, and Willis Moore. Defendants had judgment, and plaintiff brings error. Reversed.

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

This action was brought by plaintiff's intestate, Hiram Constant, who died after the trial of the case in the district court, and the cause was thereafter revived, and prosecuted in the name of the administratrix. The petition charges the defendants with having induced him and other persons, who resided at Hutchinson, to enter into a joint purchase of two 40-acre tracts of land in the vicinity of Newton, by fraud. It appears that one tract, known as the "Briggs 40 Acres," lying west of the city of Newton, was purchased from a Miss Briggs for $16,000. The title to the other tract was in one M. L. Stewart, and was purchased for $12,000. The fraud charged against the defendants consists in the facts that Lehman and Gilbert were in fact half owners in the east 40; that they did not disclose their interest to the Hutchinson parties, and induced them to believe that their only interests in the transaction were as purchasers with the others. Lehman and Gilbert lived at Newton, and it is alleged that they were men of high standing and character, both as to integrity and business sagacity; that they represented that they had reliable information from the officers of the Atchison, Topeka & Santa Fe Railroad Company that said company intended to make very large improvements in the city of Newton within the next six months, which would greatly enhance the value of real estate in that vicinity; that plaintiff and the rest of the Hutchinson people relied on the judgment of the defendants as to the value of the property purchased, and the future prospects of Newton. It is claimed that the defendants Templar and Moore conspired with Lehman and Gilbert to perpetrate this fraud, and that Moore also had an additional interest in the matter by reason of his holding an option on the west 40 acres for $15,000, for which he had paid $250; that he also concealed this interest in the transaction, and derived a profit of $1,000 therefrom. A syndicate was formed, composed of

the defendants Lehman, Gilbert, Templar, and seven Hutchinson parties, each of whom contributed $2,800 in cash and notes; and thereupon the purchases were made, and deeds taken to the defendant Gilbert, as trustee for all the parties interested. Afterwards a corporation was formed, to which the lands were transferred, and stock was issued to each for his share in the purchase. Only a small portion of the land was sold, and the proceeds were applied in payment of taxes. The speculation proved a bad one. Plaintiff offers to transfer all his interest in the corporation, and in the lands purchased, to the defendants; asks a rescission of the contract, and a judgment for $2,800, with interest, as his damages. The case was tried before the court and a jury. After the plaintiff had offered all his evidence, the defendants interposed a demurrer thereto, which was sustained by the court. Motion for a new trial was overruled, and plaintiff brings the case here for review.

Bowman & Bucher and James McKinstry, for plaintiff in error. Whiteside & Gleason and W. E. Brown, for defendants in error.

ALLEN, J., (after stating the facts.) We have only to consider the case made by the evidence introduced by the plaintiff, and determine therefrom whether there was anything to go to the jury. It is conceded that it was a fraud for Lehman and Gilbert to enter into a joint purchase of this land with the Hutchinson parties, when they were interested as sellers, without disclosing that interest. The controversy in the case is as to the right of the original plaintiff in this action to rescind, and, if that be determined adversely to him, then as to the measure of his damages. To rescind is to revoke, to annul what has already been done, and implies that the parties shall be again placed in the same condition that they were in before the transaction. It never implies the making of a new contract for the parties by the court. The parties interested in this transaction purchased two tracts of land. In the east tract, Lehman and Gilbert were interested as sellers, as well as purchasers. In the west tract, they were interested only as buyers. A rescission of the contract would require, not merely a transfer of the interest of the plaintiff in the corporation to the defendants, nor alone the transfer by the corporation back to Stewart of the land in which Lehman and Gilbert held a half interest, but would also require a transfer of the west 40 acres of the corporation back to Miss Briggs. Now, it is not contended that any fraud was perpetrated either by Stewart or Miss Briggs. They are not parties to this action, and, if they were, no facts are disclosed, either by the pleadings or the testimony, which would authorize a rescission, as against them. If a rescission were warranted by the facts of the case, the necessary parties are not before the

court.

The corporation in which the title to the land is vested is not even made a party. The court, clearly, has no power to compel the defendants to purchase the plaintiff's stock in the corporation. Hardy v. Bank, 46 Kan. 88, 26 Pac. Rep. 423; Neal v. Reynolds, 38 Kan. 432, 10 Pac. Rep. 785; Jeffers v. Forbes, 28 Kan. 174, and cases there cited.

Was there any competent evidence to go to the jury on the question of damages? What is the measure of plaintiff's recovery? Plaintiff contends that she is entitled to recov er all that was lost by reason of her intestate's having entered into this transaction. and that that loss is measured by the difference between the amount of money paid and the value of the property obtained through the fraudulent purchase, measured by its value at the time of the trial; that the rule for the ascertainment of damages occasioned by fraud is different from that in an action on a covenant; that the plaintiff is entitled to have her whole loss made good; and that, in order to do so, she must be paid back all the money her intestate parted with, diminished only by the present value of the property obtained through the transaction. On the other hand, the defendants contend that the plaintiff's damages, if any be awarded her, must be measured as of the time of the transaction; that plaintiff's intestate had a right, at any time after the purchase, to dispose of his interest in the property; that if it was worth, or could be sold on the market, for as much as he paid for it, and he saw fit to continue to hold it, in expectation of an increase in value, it is his own speculation from that time on; and that the defendants are in no wise responsible for an adverse turn in the realestate market.

The trial court seems to have regarded the testimony introduced as wholly insufficient to challenge the consideration of the jury. The land was purchased in May, 1887. There is evidence tending to show that an inflation in the market value of real estate in the vicinity of Newton began about February, 1887; that just prior to the boom this land was worth from $50 to $75 an acre; that thereafter it increased in price very rapidly; that the inflation of prices lasted about six months, after which there was a shrinkage. It appears that in January, 1887, the east 40 was purchased by Gilbert and others for $4,000. Defendant Gilbert testified that there had been a general depreciation in property ever since the 1st of August, 1887, and that the present value of property is lower than before the commencement of the boom. The plaintiff of fered to prove the present value as a measure of damages, and this evidence was rejected. Plaintiff's counsel contends that prices of real estate at the time of the purchase were inflated, fictitious, and temporary, and, for that reason, that they did not constitute & safe guide for the measurement of damages,

nd cites in support of his contention Carer v. Binninger, 33 N. J. Law, 513; Kountz . Kirkpatrick, 13 Amer. Rep. 687; and some ther cases. The facts in these cases were xceptional in character, and the rule laid own in them is confessedly a departure rom the main current of the authorities. a Sedgwick on the Measure of Damages, section 1027,) it is said that, in actions for aud in the sale of land, "it has usually een held that the measure of damages is he difference in value between the land as it ould have been if as represented, and as actually was. Such difference in value must be estimated at the time of the sale." nd Sutherland on the Measure of Damages section 1171) is to the same effect. So, also, aulden v. Shehee, 24 Ga. 438; Brisbane v. omeroy, 13 Daly, 358; Marvin v. Prentice, 4 N. Y. 295; Van Epps v. Harrison, 5 Till, 63. We think the true measure of damges, in this case, is the difference between he price actually paid, and the fair market alue at the time of the purchase. The only raud charged against the defendants was ne concealment of their interest in a poron of the property purchased. There is no aim of misrepresentation as to the quality r location of the land. The only prejudicial fluence which the fraud of the defendants ould have exerted was upon the plaintiff's dgment as to the present and prospective rices; and if the defendants but induced he plaintiff to purchase property at what was fairly worth at the time, and could ave been sold for, the fraud is certainly not ʼn a very aggravating character. The plainff and his associates went into a speculaon. They bought at a very high price, peraps, but they bought in anticipation of reeiving a still higher one. If it were shown hat market values of real estate in the viinity of Newton were the fictitious creaons of defendants, either alone or acting in oncert with others, possibly a different queson might be presented, but, so far as the ecord in this case discloses, all the parties > this action were alike tinged with the revailing madness of the time. All were peculating. All took chances on the fluctuaons of the market. The court appears to ave held the view that the plaintiff must rove the market value of the land at the ery time of the purchase, and that evidence s to the value shortly before and shortly fter the transaction is not worthy of any onsideration whatever. In this, we think he court erred. Values of real estate can eldom be fixed at the very place, and on the ery day, of a given transaction. The realstate market is quite unlike the market for hose articles of daily use which are contantly bought and sold in the market, are recisely alike in every essential particular, nd constantly changing hands between buyand seller. No two pieces of real property re precisely alike, and sales, except under onditions of speculation and excitement,

in any given community, are usually made only at considerable intervals of time. We think the evidence shows the value of this land about January preceding the purchase. It shows that there was an increase in market value thereafter, and then that it steadily fell until it was lower than before the inflation. Now, while the rights of these parties are to be measured by the condition of the market at the time of the transaction, and while evidence of values at that very time would be better than that in fact introduced by the plaintiff, we think there is some evidence in the case tending to show that the price paid was more than the value of the land at the time of the transaction, and that the court erred in taking the case away from the jury.

It is contended on behalf of the defendants Templar and Moore, who appear by separate counsel, that, whatever conclusion may be reached by the court as to the liability of Lehman and Gilbert, the demurrer was rightly sustained as to them. The evidence tends to show that Templar and Moore were active in bringing about the purchase of the property. It appears that Gilbert afterward took Templar's interest off his hands, and that Moore realized a profit of a thousand dollars from the sale of the Briggs 40. The defendants are all charged with conspiracy to defraud, and under such a charge the range of inquiry is necessarily wide, and the force to be given to particular circumstances mainly a question for the determination of the jury. Without expressing an opinion as to the weight of the testimony, and inasmuch as the case must be retried, we think there was some evidence against all of the defendants. All the justices concurring.

SIMPSON v. OSBORN et al. (Supreme Court of Kansas. Nov. 11, 1893.) ELECTIONS AND VOTERS-CERTIFYING NOMINATION -MANDAMUS-WHO MAY MAINTAIN.

1. Where nomination papers in apparent conformity to the provisions of the Australian ballot law, nominating a candidate for judge of a judicial district, have been filed with the secretary of state more than 30 days before the day of election, and where such nomination papers have not been held insufficient by the secretary of state, auditor of state, and attorney general, or a majority of them, it is the duty of the secretary to certify to the county clerk of each county within the judicial district the name and residence of the candidate named in such nomination papers, not less than 15 days before the election, notwithstanding the fact that objections thereto have been filed, and remain undetermined.

2. The fact that the person named in such nomination papers as the candidate of the petitioners is also the candidate of another political party does not affect the right of petitioners to have his name printed on the official ballot, in a separate column, under the heading of their party name, as their candidate.

3. The petitioners nominating a candidate for a public office have such special and peculiar interest in having his name appear on the offi

cial ballots as is necessary to entitle them to maintain an action to require the secretary of state to certify the fact of his nomination to the various county clerks in the district.

(Syllabus by the Court.)

Original action by Robert Simpson against R. S. Osborn and others for mandamus. Writ granted.

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

On the 5th day of October, 1893, there was filed in the office of the secretary of state a petition signed by the plaintiff and 24 other qualified voters of the thirty-fifth judicial district of this state, nominating William Thomson as the candidate of the "Miners' aud Laboring Men's party" for judge of said district, to be voted for at the ensuing election. On the 23d of October, at 10:25 P. M., objections to said nomination paper were filed by other electors of said judicial district. Thereupon, the defendants fixed the time and place for a hearing upon said objections before the attorney general, auditor, and secretary of state, on Monday, October 30, 1893, at 9 o'clock A. M., at the office of the secretary of state. The secretary regarded it as his duty to withhold certificates of such nomination, which are required, under section 13 of the Australian ballot law, to be forwarded to the county clerks of the several counties in the judicial district, until after the objections pending should be determined by the special tribunal of state officers before named. This action is brought to compel the secretary to issue such certificates. In the objections filed, it is alleged that two persons whose names purport to be signed to the nominating papers never did, in fact, so sign them. Upon said paper is an affidavit of one George Sturnam, stating that he personally saw each of the petitioners subscribe his name to the paper, and knows that each is a qualified voter of the thirtyfifth judicial district. No evidence was introduced to the contrary. William Thomson is also the candidate of the Republican party, and it is alleged in the answer that the Miners' and Laboring Men's party, have not made any nomination of a candidate for any other office to be voted for at the ensuing election.

J. T. Pringle, S. B. Bradford, and David Overmyer, for plaintiff. Gleed, Ware & Gleed, for defendants.

ALLEN, J., (after stating the facts.) We are called on, in this case, to construe certain provisions of chapter 78 of the Laws of 1893, known as the "Australian Ballot Law." The plaintiff and 24 others signed, and caused to be filed with the secretary of state, under the provisions of section 5 of the act under consideration, a paper nominating William Thomson for judge of the thirty-fifth judicial district. Section 5 is as follows: "Sec. 5. Nominations for candidates for any office

to be filled by the voters of the state at large may also be made by nomination papers, signed in the aggregate for each candidate by not less than five hundred (500) qualified voters of the state. Nominations of cantdates for office to be filled by the elector of a county, district or other division less than a state, may be made by nomination pepers, signed in the aggregate for each can didate by not less than twenty-five (25) qualfied voters of such county, district or dirision. Nominations of candidates for offices to be filled by the electors of a city, town, precinct or ward may be made by nomingtion papers signed in the aggregate for each candidate by not less than ten (10) qualified voters of such city, town, precinct or ward Each elector signing a certificate shall add to his signature his place of business and postoffice address." Section 10 provides: "Sec. 10. The certificates of nomination and nomination papers being so filed, and being in apparent conformity with the provision of this act, shall be deemed to be valid, unless objection thereto is duly made in writing. Such objec tions or other questions arising in relation thereto in the case of nomination of state officers or officers to be elected by the vot ers of a division less than the state and greater than a county shall be considered by the secretary of state, auditor of state and attorney general, and the decision of a majority of these officers shall be final.

In any case where objection is made, notice shall forthwith be given to the candidates affected thereby, addressed to their place of residence as given in the nomination papers, and stating the time and place when and where such objections will be considered." Section 13 reads: "Sec. 13. Not less than fifteen (15) days before an election to fill any public office, the secretary of state shall certify to the county clerk of each county within which any of the electors may by law vote for the candidates for such office. the name and residence of each person nominated for such office, as specified in the certificates of nomination or nomination papers filed with the secretary of state." The objections, in this case, were not filed with the secretary of state till late in the evening of October 23d.

The main question presented for our consideration is whether the secretary of state should delay certifying the nomination to the clerks of the counties included within the judicial district till after the objections to the nomination papers have been passed on by the special tribunal created by section 10, or must send forward the certificates 15 days before the election, notwithstanding the pendency of such objections. By section 7 of the act, it is provided that all nomination papers for any office to be filled by the electors of the entire state, or a district greater than a county, shall be filed with the see retary of state not more than 60, nor less

han 30, days before the day of the election. The nomination paper, in this case, was filed n October 5th. The only objections urged ere are such as appear on the fact of the etition. The secretary of state expresses is entire willingness to issue the certificate, f, under the law, it is his duty to do so. The petition has affixed to it 25 signatures, and an affidavit showing that all the signers re qualified voters of the thirty-fifth judiial district. The residence and post-office address of the first three is written out, 'Burlingame, Ks." That of the following names on the same page, however, is merely Indicated by ditto marks underneath the words “Burlingame, Ks.,” and, as to the last name on the first page of the petition, it is difficult to say whether there are any marks to indicate the petitioner's residence, or not; the dots for this name, and the one immediately above it, being somewhat confused.

This is the first time this act has been brought to the attention of this court for a construction of any of its provisions. The main purpose of the law, evidently, is to enable voters to express their real wishes by their ballots, freed entirely from all influences which might tend to corrupt or intimidate them, and also to provide for printng and distributing, at public expense, ballots which will afford all political parties, and considerable groups of electors, a fair opportunity to vote for the candidates of their choice. For the purpose of carrying out these eminently wise and beneficial purposes, the statute should receive the most liberal construction. The election, in any event, must be held on the day appointed by law. It is therefore of the utmost importance that the ballots should be printed in due time, and distributed as provided in the act. The law requires all nomination papers like that under consideration to be filed not less than 30 days before the day of election, and provides that all such papers shall be open for the inspection of the public. Persons desiring to make objections to any such papers may do so at once, but in this case the objections were delayed so long that it was physically impossible for the state officers named in section 10 to give notice, and have a hearing on such objections, in time for the secretary of state to comply with section 13, and certify to the county clerks the nomination 15 days before the election. May any elector of the district wait until so late a day, and then delay the forwarding of certificates for state and district officers, merely by filing objections? If so, an exception will be ingrafted on the provisions of section 13, not placed there by the legislature, which will practically nullify it. We are unable to see that very serious harm can come from the printing of the name of a candidate on the official ballot, even though the certificate of his nomination be informal. The people, on lection day, will vote only for the candi

dates of their choice, and are not likely to be seriously misled by any fraudulent or unauthorized nomination. On the other hand, most deplorable consequences might ensue if contentions over the regularity of nomination papers are to be prolonged past the time when the officers charged with the duty of certifying to nominations, and causing ballots to be printed, are required by law to act in preparing for the election. We think section 13 is strictly mandatory, and that the secretary must forward his certificate at least 15 days before the day of election.

Whether the objections to this petition under consideration are such as would warrant the special tribunal created by the statute in rejecting it, we need not determine. We are of the opinion that, in the absence of any such determination, it is not so wholly defective that it may be utterly disregarded, nor has it been so treated or considered by the secretary of state. If the secretary of state, attorney general, and auditor had held the petition insufficient, the petitioners, under the provisions of section 9, might remedy the defect by filing new papers, but, where no such adverse decision has been made, the certificate of nomination to supply the vacancy could not be made to comply with the provisions of section 9, and, if filed as an original petition less than 30 days before the day of election, it would be too late. If a decision on such objections adverse to the petitioners should be made at so late a day as to render it physically impossible for them to file certificates to correct the error, and have the name of their candidate placed on the ballot before election day, the petitioners might be wholly deprived of their rights under the law.

It is further objected that William Thomson is the candidate of the Republican party, and that, under the certificate of his nomination by that party, his name will be printed on the ticket, in any event, and that the law does not require that his name should appear under different headings. We think that each political party has a perfect right to select its candidates as it pleases, and have their names printed under its party heading; that there is nothing in the law, nor in reason, preventing two or more political parties, whether acting through conventions or by petitions, from selecting the same individuals for one or more of the offices to be filled. Nor does the fact that the Miners' and Laboring Men's party saw fit to nominate a candidate for judge, alone, in any manner affect their rights.

A final objection, that the plaintiff, Robert Simpson, is not a proper party, is made, and the cases of Bobbett v. State, 10 Kan. 9; Turner v. Commissioners, Id. 16; Nixon v. School Dist., 32 Kan. 510, 4 Pac. Rep. 1017; Clark v. Commissioners, 34 Kan. 632, 9 Pac. Rep. 756,-are cited as authorities against the plaintiff's right to maintain the action.