a determination of the sufficiency of the averments contained in the information.

(Syllabus by the Court.)

Appeal from district court, Stafford county; J. H. Baily, Judge.

E. S. Decker was convicted of unlawfully removing buildings from mortgaged property, and appeals. Reversed.

Campbell & Taylor, for appellant. John T. Little, Atty. Gen., and O. C. Jennings, for the State.

JOHNSTON, J. This is a prosecution for the unlawful removal of buildings from mortgaged real estate without permission. Gen. St. 1889, par. 3900. There was a conviction, following which the defendant was adjudged to pay a fine of $100, and be imprisoned in the county jail for a period of 60 days.

The principal question presented upon the appeal arises upon the allegations of the information. It charges the removal of a barn from a certain lot in the city of St. John, Stafford county, upon which there was an unsatisfied mortgage of record, which is described; that the same remains unsatisfied; and then follows the averment "that said barn was removed from said lot 8 by the defendant, E. S. Decker, without first obtaining from the mortgagee or his agent written permission for the removal of said barn," etc. The information contained no allegation that permission for the removal had not been obtained from the assign of the mortgagee. This was an essential averment. Under the statute, the act of removal becomes criminal only when it is made without written permission "from the mortgagee, his agent or assign." In this case it appears from the foreclosure proceedings that the mortgage and note which it secures have actually been transferred by the mortgagee to another, and, if Decker obtained permission to remove the barn from the person to whom they were transferred, no offense was committed. The want of permission being an essential element of the crime, it was necessary for the state to allege it.

In charging the jury, the trial court states that the prosecution must prove the want of permission from the mortgagee, his agent or assign, but it did not require it to be alleged, and we find no attempt to prove a want of permission from the person to whom the mortgage was transferred.

Counsel for the state contend that the question cannot be raised now, for the reason that the objection was not raised by a motion to quash, or by a motion in arrest of judgment. No motion to quash was filed, but in the motion for a new trial the sufficiency of the information was distinctly challenged. One of the grounds for setting aside the verdict was "that the information does not state facts sufficient to constitute an offense against the statute." This averment was sufficient to challenge the attention of

the court, and to require our consideration of the sufficiency of the information. State v. Jessup, 42 Kan. 422, 22 Pac. Rep. 627. Treating the motion, then, as one in arrest of judgment, we are compelled to hold that the information is insufficient to sustain the conviction, and hence the judgment will be reversed, and the cause remanded for further proceedings. All the justices concurring.

HUNTER v. CROSS.

(Supreme Court of Kansas. Nov. 11, 1893.) APPEAL-DISMISSAL-SERVICE OF CASE.

Where the only thing in the record to show service of the "case" on defendant in error is an indorsement thereon that "the foregoing is O. K.," signed by his attorney, and dated after the expiration of the time given by the court in which to make a case, the writ of error will be dismissed.

Error from district court, Wilson county; L. Stillwell, Judge.

Action by Marion Cross against Robert Hunter. There was a judgment for plainDismissed. tiff, and defendant brings error.

Geo. P. Uhl, for plaintiff in error. C. S. Reed, for defendant in error.

PER CURIAM. The record fails to show any service of the case which is attached to the petition in error on the defendant in error, or his counsel, and for that reason objection is made to its consideration. On February 24, 1890, defendant's motion for a new trial was overruled, and he was given 60 days to make a case. The only thing in the record tending to show service on the plaintiff is an indorsement as follows: "The foregoing is O. K. May 27, 1890. T. J. Hudson." This, it will be perceived, was long after the expiration of the 60 days, and counsel had no power to extend the time allowed by the court. No extension was granted by the judge at any time. Insurance Co. v. Koons, 26 Kan. 215; Dunn v. Travis, 45 Kan. 541, 26 Pac. Rep. 247. The case will be dismissed.

MORIARTY et al. v. BOARD OF COM'RS
OF MORRIS COUNTY.
(Supreme Court of Kansas. Nov. 11, 1893.)
LIABILITY OF COUNTY-PRINTING OF TAX LIST.

Printers who publish a delinquent tax list, and fail to make and transmit to the county treasurer the affidavit required by section 108, c. 107, Gen. St. 1889, cannot recover pay for such publication from the county. (Syllabus by the Court.)

Error from district court, Morris county; M. B. Nicholson, Judge.

Action by Moriarty & Waller against the board of county commissioners of Morris county to recover for printing done for defendant. There was judgment for defendant, and plaintiffs bring error. Affirmed.

Maloy & Kelley, for plaintiffs in error. J. K. Owens, for defendant in error.

ALLEN, J. The plaintiffs in error presented the board of county commissioners of Morris county a bill of $396.90 for printing a delinquent tax list for the year 1889. The board disallowed the claim, because the printer's affidavit had not been filed within 14 days after the last publication of the list. Plaintiffs appealed to the district court, where judgment was entered against them. Section 108, c. 107, Gen. St. 1889, provides: "Every printer who shall publish such list and notice shall immediately after the last publication thereof, transmit to the treasurer of the proper county an affidavit of such publication, made by such person to whom the fact of publication shall be known; and no printer shall be paid for such publication who shall fail to transmit such affidavit within fourteen days after the last publication." It is conceded that the plaintiffs failed to file the affidavit required by the statute within 14 days after the last publication. The validity and effect of this requirement of the law has been passed upon and upheld by this court. Fox v. Cross, 39 Kan. 350, 18 Pac. Rep. 300; Blanchard v. Hatcher, 40 Kan. 350, 20 Pac. Rep. 15. There is no force in the contention that this section of the statute gives the board of county commissioners power to enforce a penalty, and is unconstitutional for that reason. It merely provides that printers shall not be paid out of the public funds unless they comply with the law. It is only by virtue of the provisions of the law that they obtain any claim on public funds, and the legislature has seen fit to provide that they must comply with all its provisions in order to be entitled to pay. Plaintiffs would invoke the taxing power for their benefit; yet because of their neglect, within the decisions above cited, the collection of taxes for their benefit is prevented. The judgment is affirmed. All the justices concurring.

dismissed his appeal, and he brings error. Affirmed.

M. C. Reville, for plaintiff in error. W. B. Ham, for defendant in error.

ALLEN, J. On the 9th day of July, 1888, Lewis Bigge, as administrator of the estate of Philip Behrens, deceased, presented to the probate court of Rooks county an unverified statement, purporting to be an account of his administration of said estate. No action, however, was taken by the court thereon. Afterwards he gave due notice of final settlement, and on June 3, 1889, presented to said court what purported to be a final account of his administration, containing a number of items, among which is included: "By balance due last [July 9, '88] settlement, 164.77." In the settlement first filed is the item, "Cash to balance 1, 16277." The hearing of the final settlement was continued to July 20, 1889, when the court made an order disallowing certain charges for interest, commission, and services, and allowing in lieu thereof 5 per cent. on the amount of money collected. Thereupon the administrator appealed to the district court. After testimony had been introduced by both sides, the district court found that the probate court had not passed upon nor finally considered said settlement as a whole, and that the same was still pending in the probate court undetermined. and thereupon ordered said appeal to be dismissed. There is nothing in the record showing final action by the probate court of Rooks county on any other matters included in the settlement than the specific items disallowed, nor does the oral testimony offered in the district court show final action to have been taken by that court. It therefore follows that the district court ruled correctly in dismissing the appeal. Though it is not necessary to a decision of the case presented, we remark that the administrator's appeal appears to us without merit. Judgment affirmed. All the justices concurring.

Appeal of BIGGE.

(Supreme Court of Kansas. Nov. 11, 1893.) ADMINISTRATORS-SETTLEMENT OF ACCOUNT-PREMATURE APPEAL.

Before an appeal can be taken from the action of the probate court on any part of the final settlement of an administrator, it must appear that the probate court has taken final action on the settlement, and has passed on the whole account presented.

(Syllabus by the Court.)

Error from district court, Rooks county; Charles W. Smith, Judge.

Settlement of the estate of Philip Behrens, deceased. Lewis Bigge, administrator, appealed to the district court from an order on final settlement disallowing him charges for commissions, etc. The district court

Geo. P. Uhl, for plaintiff in error. S. S. Kirkpatrick, for defendant in error.

Ken

JOHNSTON, J. Robert Hunter brought this action against A. P. Hamilton to recover damages for the alleged wrongful sale and disposition of a pledge. The pledge was a promissory note for $250, executed by James H. White in favor of D. S. Kennett, who turned it over to Hamilton as collateral security for the payment of an indebtedness of $52, which Kennett owed Hamilton. nett sold the note to the plaintiff, Hunter, subject to the claim of Hamilton for $52, the payment of which Hunter assumed. White failed to pay the note when it be came due, but no steps were taken by Hamilton to enforce its collection. Hamilton afterwards sold the note for the amount of the debt which it was given to secure. Hunter claims that when the note became due he urged Hamilton to enforce the collection against White, by suit if necessary, but he refused, and subsequently sold it without authority or the taking of any legal steps for its collection. The claim of Hamilton was that White, the maker of the collateral note, was insolvent; that Hunter was repeatedly requested to pay the Kennett note, which he had assumed, and to take up the collateral note, but he declined, saying he would not invest any more money in White's paper, and that Hamilton might sell it to any one who would pay the amount of the Kennett debt. He claims that in pursuance of this authority he sold it for that sum, and at once informed Hunter of what he had done, who responded that the sale was satisfactory to him, but that afterwards Hunter tendered the amount of the debt secured, and demanded the collateral note. The claim of Hamilton was sanctioned by the jury upon sufficient testimony, and hence we are relieved from any further concern as to the findings. If there was a wrongful disposition or conversion of the note, Hunter was cutitled to the difference between the value of the note and the debt for which it stood as a pledge. insists that Hamilton could not sell the pledge with or without authority from him, and that the only legal course was to collect the note, apply sufficient of the proceeds to the debt due, and pay over any residue to him. This position is not tenable. The disposition to be made of a pledge in case of default or in any other contingency may be controlled by the agreement of the parties, providing such agreement be not fraudulent, is not in contravention of statute, nor against public policy. In the absence of an agreement as to the remedy to be pursued, a pledgee may ordinarily upon default sell any chattel deposited with him as a pledge; but a different rule has been held in some courts in respect to a pledge of commercial paper as collaterai security for the payment of a debt. By some of the au

He

thorities cited it is held that without express authority the pledgee cannot sell the paper, but that it is his duty to collect it when it falls due, apply enough of the proceeds to pay his debt, and then return what remains to the pledgor. Trust Co. v. Rigdon, 93 III. 458; Zimpleman v. Veeder, 98 Ill. 613; Fletcher v. Dickinson, 7 Allen, 23; Roberts v. Thompson, 14 Ohio St. 1; Daniel, Neg. Inst. § 833. Upon this question there is a diversity of opinion, some of the authorities holding that there are no good reasons to sustain such an exception. Potter v. Thompson, 10 R. I. 1; Brightman v. Reeves, 21 Tex. 70; Davis v. Funk, 39 Pa. St. 243. We are not called upon, however, to determine whether Hamilton had a right to sell the note independent of an agreement, as the issue presented and tried was whether Hunter authorized Hamilton to make the sale, and this issue has been resolved by the jury in favor of Hamilton. The authorities are uniform upon the question that the disposition to be made of a pledge may be regulated by the. contract of the parties. The case was fairly submitted to the jury, and the law governing it correctly stated by the court in its charge. We find no error in the record, and hence the judgment of the court will be affirmed. All the justices concurring.

RICHMOND v. BRUMMIE. (Supreme Court of Kansas. Nov. 11, 1893.) SUPREME COURT-APPELLATE JURISDICTIONAMOUNT OF JUDGMENT.

1. No appeal or proceeding in error can be had or taken to the supreme court, in any civil action, unless the amount or value in controversy, exclusive of costs, exceeds $100, except in certain cases specified in the statute. Section 542a, Civil Code; section 1, c. 245, Sess. Laws 1889.

2. Where the damages claimed in a civil action by the plaintiff exceed $100, but the judgment is for the plaintiff for $100 only, exclusive of costs, and the defendant prosecutes in error, the supreme court has not jurisdiction, for the amount or value in controversy, as to such defendant, is fixed by the judgment. (Syllabus by the Court.)

Error from court of common pleas, Sedgwick county; Jacob M. Balderston, Judge.

Action by Otto Brummie, administrator of the estate of Margaret Brummie, deceased, against S. W. Richmond. Plaintiff had judgment, and defendant brings error. Dismissed.

S. M. Tucker, for plaintiff in error. J. N. Haymaker and Holmes & Haymaker, for defendant in error.

HORTON, C. J. Otto Brummie, as administrator of the estate of Margaret Brummie, deceased, brought his action against Dr. S. W. Richmond to recover $10,000 damages alleged to have accrued by reason of the unskillful treatment, as a physician, of Mar

garet Brummie, his wife. The jury returned a verdict for plaintiff below for $100. Judgment was entered for $100, with costs. Richmond, defendant below, brings the case to this court for review. Otto Brummie contends that the case should be dismissed upon the ground that this court has not jurisdiction. Section 542a of the Civil Code reads: "No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars," except in certain cases specified in the statute. Section 1, c. 245, Sess. Laws 1889. As the judgment rendered against the defendant was for $100 only, exclusive of costs, it is apparent that there is, on the part of Richmond, nothing in controversy beyond that amount. Consequently, he is not entitled to an appeal, or any proceeding in error in this court to review the alleged errors. As the plaintiff below is satisfied with the judgment, the amount in controversy, as to the defendant below, is fixed thereby. Smith v. Honey, 3 Pet. 469; Walker v. U. S., 4 Wall. 163; Merrill v. Petty, 16 Wall. 338; Railroad Co. v. Trook, 100 U. S. 112; Ex parte Sweeney, 126 Ind. 583, 27 N. E. Rep. 127. In the case of Railway Co. v. Grames, (Ind. Sup.) 33 N. E. Rep. 896, it was decided that "under Act Feb. 16, 1893, § 1, giving the appellate court jurisdiction of appeals in actions for the recovery of money only, where the amount in controversy, exclusive of costs, does not exceed $3,500, interest should not be computed on the judgment below, in determining whether the appellate court has jurisdiction." Evidently, this court has not jurisdiction, as the amount or value in controversy, exclusive of costs, does not exceed $100. The case will therefore be dismissed. All the justices concurring.

1. The case of State v. Cassady, 12 Kan. 550, followed.

2. The case of State v. Mosley, 2 Pac. Rep. 782, 31 Kan. 355, referred to and commented upon.

3. Under the statutes of this state, one who procures, counsels, or commands a criminal offense may be considered as principal, and may be punished as the principal, and it is not necessary to name such principal in the information or indictment.

4. As an accessory before the fact may be charged, tried, and convicted in the same manner as if he were principal, it necessarily follows that he may be convicted of that degree of the crime which the evidence against him establishes; and the fact that the principal, through failure of proof or caprice of the jury, has been convicted of a lower grade, or even acquitted, cannot affect the question of his

guilt or innocence. State v. Bogue, 34 Pac. Rep. 410, 51 Kan.

5. The uncorroborated testimony of an ae complice is legally sufficient to sustain a ver dict, and the degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury; but it is the duty of the trial judge in a criminal cause, if requested so to do, to advise the jury not to convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence as to some material fact.

6. The trial judge was requested by the defendant to instruct the jury: "If any wit ness had been impeached in the case, they would not be justified in believing such witness if not corroborated by other evidence, circumstances, and facts concerning the same matter." Also: "If any witness had hereto fore made different statements under oath, they should discard and disbelieve such witness entirely, unless corroborated by other evidence, facts, and circumstances." The court refused so to do, but did instruct the jury: "You are the exclusive judges of the evidence, the facts proven, and the credibility of the witnesses; and it is for you, and you alone, to say from the evidence whether the defendant is guilty or not. And if you believe any witness has sworn falsely to any material fact in this case, then you are at liberty to disregard the whole of his testimony." And: "If you should find from all the evidence that any witness who has testified in this action has heretofore been guilty of perjury in testifying falsely concerning the same matters about which he has testified in this case, then, and in that event, you ought to carefully and minutely consider all his evidence in this case, and should carefully com pare all his statements in this case, together with all the other evidence in this case: and if, after having so done, you are unable to say whether such witness has or has not testified truthfully in this case concerning the matters about which he has testified, then, and in that event, you ought to discard and disbelieve the evidence of such witness entirely. But if you are satisfied that any such witness has testified truthfully as to the matter in this case, then you should not arbitrarily disregard his testimony, notwithstanding you may believe that he had heretofore made a different statement." Held, that no error was committed in view of the instructions given.

7. Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is proper for the trial court to give to the jury the law of such inferior offenses.

8. The evidence examined, and held suffi cient to sustain a conviction against the defendant of murder in the second degree.

(Syllabus by the Court.)

Appeal from district court, Cowley county; A. M. Jackson, Judge.

A. W. Patterson, having been convicted of murder in the second degree, appeals. Affirmed.

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

On the 18th day of March, 1893, George W. Scott, county attorney of Cowley county, filed an information in the clerk's office of the district court of that county, in words and figures as follows, (omitting caption, verification, and indorsements:) "In the name, by the authority, for, and on behalf of, the state of Kansas, I, George W. Scott, county attorney of Cowley county, Kansas, me now here and give the court to understand.