troversy to Holmden, and Holmden took the same at its full value, making no deduction on account of any defect that might exist in the title. Joseph D. Greer is the son of James R. Greer, deceased, and as such son and heir inherited a portion of the estate, and also a part of the land which his father received from Janes and Holmden as part payment upon the land in this action. If Janes and Holmden, having paid for the land in controversy to James R. Greer, never got anything, then they had a right of action against the estate of James R. Greer for breach of contract; but the promise of Joseph D. Greer to them to carry out the agreement of his father, which was accepted and acted upon by them, prevented them from bringing any action against the estate, and also preserved to Joseph D. Greer and the other heirs of James R. Greer the real estate which was divided by them. With this view, there was ample consideration for the agreement of Joseph D. Greer, and the second part of the syllabus in the opinion heretofore filed (21 Pac. Rep. 591) was based upon the theory that the agreement of Joseph D. Greer was a valid one, with a sufficient consideration. We have ordered a new trial only. If it shall appear upon the retrial 'that James R. Greer left no estate, and that Joseph D. Greer received no share of the 24 acres referred to, then, we think, his promise and statement were without consideration, and not binding on him. The motion for a rehearing will be overruled. All the justices concurring. (43 Kan. 167) FRIEND V. GREEN. (Supreme Court of Kansas. Feb. 8, 1890.) SERVICE OF PROCESS-CERTIFICATE OF OFFICERREPLEVIN JUDGMENT-COSTS. 1. Where a summons is issued by a justice of the peace, and served by a constable, by leaving a true copy, with all the indorsements thereon, at the usual place of residence of the defendant, but no certificate is made by the officer that such copy is a true copy of the original summons, held, such omission renders such service violable only, and not void. 2. Where an action in replevin is brought by a judgment debtor to recover possession of specific personal property taken upon execution by an officer, and the property is delivered to the plaintiff, and judgment is afterwards rendered for the return of the property to the officer, or, in case return cannot be had, for its value, held, that such judgment for the value of the property cannot exceed the amount for which the execution was issued, and costs. 3. Where an action in replevin is brought by a judgment debtor, to recover specific personal property, against an officer in possession of the same by virtue of a levy of an execution thereon, and such judgment debtor recovers possession of only a part of the property, and judgment is rendered in favor of the officer for the remainder, held not error for the court to divide the costs. (Syllabus by Clogston, C.) Commissioners' decision. Error from district court, Norton county; LOUIS K. PRATT, Judge. This was an action in replevin, brought by Joseph Friend against Ira W. Green, to re cover certain specific personal property. Judgment for plaintiff for the possession of part of the property, and judgment for defendant for the remainder. Plaintiff now brings the case here. Wilson & Decker, for plaintiff in error. Jones & Thompson, for defendant in error. CLOGSTON, C. Plaintiff in error complains of numerous errors, many of which we shall not notice, but shall mention only such as we think are entitled to consideration. The record shows that an action was brought in justice's court against plaintiff in error, and default was made and judgment rendered in said court against him, and upon such judgment an execution was issued, and the property in controversy in this action was levied upon to satisfy such judgment. The plaintiff in error brought this action against defendant in error as constable, he having levied that execution. The first complaint we shall notice is as to the jurisdiction of the justice of the peace who rendered the judgment upon which the execution in question was issued. Plaintiff insists that the court had no jurisdiction, for the reason that the pretended service in that case was made by leaving a pretended copy at his place of residence in his absence, and that he never received the copy until after the judgment was rendered; and, second, that the copy of the summons so left was not certified by the constable to be a true copy of the original summons. The first of these complaints is without foundation. The statute provides for constructive service by leaving a copy of the summons at the usual place of residence of the defendant, and that was done in this The second claim of error is one that has given us considerable trouble, as no case has been found parallel with it. The requirement of the statute is that the copy of summons to be left or served upon the defendant must be certified to as a true copy, and, if this requirement is essential to the jurisdiction of the court, then the court had no jurisdiction of the defendant; but if the service is only voidable, and not void, then upon this indirect attack the jurisdiction of the justice court must be sustained. We are inclined to the latter view. The summons left at the defendant's residence was a command, in the name of the state, to appear before a certain court. Upon its face it was regular, and gave the defendant all the information that he could have gained if it had been properly certified to. If it had been attacked below, or in a direct manner, the service would have been set aside. It was so irregular that any court, when informed of the irregularity, would have set aside the judgment. case. When comparing this service with the service that is required to be made in actions commenced in the district court, it is found, and has been held, not necessary that the summons issued by the district court should be certified to by the sheriff or officer serving the same. While there is no direct statute in that case requiring such certificate yet it tends to show that the certification of a summons is not essential to its validity. So it is with all other process issued out of the district court, such as subpoenas and other orders. A copy, without certilicate, is all that is required. We therefore conclude that the service was not void, but only voidable. The second The next complaint is that the district court erred in its judgment--First, in the amount of the judgment; and, second, in dividing the costs. The judgment upon which the execution was issued was for $146.19, and the district court in rendering judgment for a return of a part of the property found its value to be $220, and, in case the property was not returned, a judgment was rendered for the defendant in error for the sum of $220. This was error. The defendant in error, as constable, was only interested in the return of the property to the extent of the amount set out in the execution under which he held the property, and the only jurisdiction he had over the property was to secure the payment of the judgment upon which the execution was issued, and in no event could it exceed the amount of the original judgment and costs. The judgment must therefore to that extent be modified. complaint is that in rendering judgment the court divided the costs, and plaintiff in error contends that, as he recovered a judgment for a part of the specific property, no costs could be taxed against him, but such costs must follow the judgment. This claim would be correct, provided the plaintiff had recovered a judgment for all the property. In that case the statute provides that, in a judgment for the return of specific personal property, the costs must follow the judgment; but in this case the judgment was for both plaintiff and defendant, and judgment for the plaintiff for the possession of the re-. mainder, and we think the court correctly divided the costs. This is the rule laid down by this court in Dresher v. Corson, 23 Kan. 313. It is therefore recommended that the cause be remanded to the court below, with directions that the judgment be corrected as indicated herein, and when so corrected that it be affirmed. PER CURIAM. tices concurring. (43 Kan. 197) of the other allegations of the original petition upon which the plaintiff relied to recover, and the defendants answered again fully to the merits of the action, but without setting forth any new matter, only more elaborately stating the defenses of their first answer, held, another reply was unnecessary. 3. The mere discounting of negotiable paper by a bank, and placing the amount thereof to the credit of depositors having already a balance to their credit, will not alone constitute the bank a purchaser for value so as to cut off equities. The bank becomes, however, a debtor to the depositors, and if, before notice of any infirmities of the paper, it pays out on the checks of the depositors the full amount due thereon, including the discount, it thereby becomes an innocent purchaser for value. Fox v. Bank, 30 Kan. 441, 1 Pac. Rep. 789. (Syllabus by Holt, C.) Commissioners' decision. Error from dis trict court, Ellis county; S. J. OSBORN, Judge. A. D. Gilkeson, for plaintiffs in error. Reeder & Reeder and W. P. Montgomery, for defendant in error. HOLT, C. This was an action in the Ellis district court on a negotiable promissory note. Trial by jury. The court directed them peremptorily to find for the plaintiff for the unpaid balance of the note. The defendants, as plaintiffs in error, complain of this direction of the court, and of certain rulings concerning the pleadings. The action was commenced by the First National Bank of Battle Creek as plaintiff. Afterwards the court permitted a supplemental petition to be filed, wherein none of the allegations of the original petition were repeated upon which the plaintiff relied to recover, but simply stated that after the commencement of this action the First National Bank of Battle Creek and the Second National Bank of Battle Creek had been consolidated under the name of "The National Bank of Battle Creek." This supplemental pleading was authorized by section 144, Civil Code. Clark v. Spencer, 14 Kan. 398; Simpson v. Vose, 31 Kan. 227, 1 Pac. Rep. 601. The defendants answered the original petition by a sworn denial, and also by setting up other matters of defense. The plaintiff replied by a general denial. After the supplemental petition was filed, the defendants again answered fully as to the merits of the action, but set up no new matter, only more It is so ordered; all the jus- elaborately and fully stating their defenses DRILLING et al. v. FIRST NAT. BANK. (Supreme Court of Kansas. Feb. 8, 1890.) PLEADING SUPPLEMENTAL PETITION-ANSWER-NEGOTIABLE INSTRUMENTS-INNOCENT PURCHASER. 1. The filing of a supplemental petition setting forth facts occurring after the original petition was filed, material to the determination of the case, is authorized by section 144 of the Civil Code. 2. Where a general denial was filed to the original answer of the defendants, and afterwards a supplemental petition was filed simply alleging that the plaintiff, a bank, had consolidated with another, and the new bank thus organized was the owner of the note sued on, but did not repeat any as set forth in their first answer. After this second answer there was no reply filed. None was necessary. The allegations of the answer had been once denied substantially by the reply to the defendants' original answer. This was sufficient. Brookover v. Esterly, 12 Kan. 149; Cooper v. Machine Co., 37 Kan. 231, 15 Pac. Rep. 235. At the trial the plaintiff showed that it bought the note before due without knowledge of any defenses there might be to it. The note was given in payment of a threshing-machine. In the sale of this machine a warranty was given; and the defense urged was that there had been a breach of the war ranty, and therefore a failure of consideration. The court required of the defendants, before proof of this warranty and its breach could be offered, that they should show that the note was either transferred after due, or else was not transferred for a valuable consideration; or that, if plaintiff took it before due, he took it with notice of the defenses which defendants had against it. The defendants proffered evidence to show the warranty and its breach, but neither offered or attempted to establish either one of the three propositions suggested by the court. The defendants complain of this ruling, first, because the court arbitrarily directed their order of proof. It had the right to do so, and did not abuse its discretion in its requirements. In fact, it was the proper order for the court to make. Ordinarily, a party has latitude in introducing his testimony; but in this case it would have been an idle thing to have introduced testimony concerning the warranty and its breach when it had been fairly established, by evidence prima facie, that plaintiff was a bona fide purchaser of the note before maturity. All defenses which might have been urged against the original payee thereof were cut off in an action by the holder, who purchased before maturity, without notice, and for a valuable consideration. them purchasers. It is conceded that the bank did not buy the note outright, and pay for it, at that time; but they certainly were debtors to Nichols, Shepherd & Co. for its amount; and the general rule as to the application of payments, when there are no special facts to interfere, is that the first payments go to the oldest debts. Under this rule, the bank paid for it by allowing Nichols, Shepherd & Co. to check against and exhaust the amount of their credit at that time. This note was a part of that credit. It paid for it by cashing checks drawn upon it, and thus became a purchaser of the same for value. Fox v. Bank, 30 Kan. 441, 1 Pac. Rep. 789; Mann v. Bank, 30 Kan. 412, 1 Pac. Rep. 579; Rand. Com. Paper, § 994. The other errors complained of do not require mention, and we recommend that the judgment be affirmed. Where a defendant did not intend to charge the plaintiff anything for various items when they were furnished, and so testified, he cannot, after an action has been commenced, make charges for them, and recover thereon. (Syllabus by Holt, C.) Error from district court, Shawnee county; JOHN GUTHRIE, Judge. Wm. R. Hazen, for plaintiff in error. Frank Herald, for defendant in error. The defendants urge, secondly, that the evidence offered by the plaintiff does not show it to have been a bona fide purchaser of the note. The testimony established that the First National Bank of Battle Creek took this note at its face value before due, and gave Nichols, Shepherd & Co., the original payees of the note, credit on their account. When the note was taken, Nichols, Shepherd & Co. had a balance at the bank to their credit of over $10,000; and it was proven that up to the time of this action their balance had never been less than $10,000. The testimony of Victor P. Collins, president of the bank, shows that the amount of the credit of Nichols, Shepherd & Co. at the bank when this note was placed to their credit has since been drawn out many times, and replaced by new deposits, so that the amount to the credit of Nichols, Shepherd & Co., though often changed in character, had not been materially diminished in amount, but had been kept good by other notes, drafts, and moneys deposited subsequently. It is probably true that simply discounting a note, and crediting the amount thereof on the indorser's account, without parting with any value for it, is not enough to constitute such bank a bona fide purchaser of the note. this instance, however, this transaction was simply placing the note to the credit of Nichols, Shepherd & Co. alone; for they sub-del v. Stadel, 40 Kan. 646, 20 Pac. Rep. 475. sequently checked against it, and exhausted the amount of their credit at the time this note was placed to their account, including the amount of this note. We think the fact of thus paying out the full amount makes In HOLT, C. This action was commenced by the plaintiff in error, as plaintiff, before a justice of the peace, where a trial was had, and a judgment rendered in his favor. Upon appeal it was tried in the district court by a jury, and a verdict rendered for defendant, and judgment in his favor for costs. The testimony shows mutual, neighborly, and friendly dealings for a considerable length of time. Afterwards their friendly relations were broken, and this action was commenced. Of the complaints made by the plaintiff we shall notice only one, the refusal to give the following instruction asked by plaintiff: "The court instructs you that if you believe from the evidence that Martin did not intend to charge Collins for all or any of the items set forth in his answer till after Collins commenced this suit, then he cannot make such charges after the commencement of this suit." Abstractly, this instruction correctly enunciates the law. Sta It is claimed, however, there was no material evidence demanding it. By an examination of the record we find that the defendant himself testified, speaking of pasturing the colts and calves of plaintiff, as follows: “Question. Did you intend at that time to charge him anything? Answer. No, sir; but I did not intend he should charge me for a great many things which I did not get. Q. At the time you came back from Massachusetts, and found this hay uncut, did you intend to charge him with any of these things that you have here? A. I did not. Q. You so testified in the other court? 4. That I did not intend to. Q. The charges were made since he commenced this suit and commenced this litigation? A. I wanted to get rid of him without any trouble. Q. Right square out, is not that so? A. State the question again. Q. You never intended to charge him anything you have figured here, until he sued you? A. No, sir; I did not intend to charge him anything. I intended to get rid of him the easiest way I could." It will be observed that he not only spoke of the item of pasturage, but also embraced in his testimony all items named in his bill of particulars, i. e., “any of these things you have here." Under this evidence, the plaintiff was entitled to the instruction asked, or one similar to it. None was given by the court touching this phase of the evidence. Manufacturing Co. v. Nicholson, 36 Kan. 383, 13 Pac. Rep. 597. For this error in refusing to give this instruction we recommend that the judgment be reversed. consent of the parties, referred the case to R. F. B., Esq., to hear and determine the case, and report his findings of fact and conclusions of law. At the May term, 1887, of the district court, he made the following report: (1) That the plaintiff and defendant entered into a copartnership under the firm name of Moser & McGillvray on the 11th day of April, 1881, in the city of Hiawatha, Brown county, Kansas, for the sale of farm machinery and agricultural implements, by the following written agreement: Hiawatha, Kansas, April 11th, 1881. Moser & McGillvray: We, Elias Moser and P. C. McGillvray, have this day entered upon a partnership under the firm name of Moser & McGillvray, at No. 104 Oregon street, Hiawatha, Kansas, to engage in the sale of farm machinery and agricultural implements, under the following agreement: Elias Moser shall be the manager of the business, and shall approve of all sales made, and receipt for and pay out all cash. The partners are to share equally in all losses and gains, and Mr. Moser shall be entitled to 10 per cent. interest on all sums of money advanced by him on the account of P. C. McGill vray, from the date of its advancement until the sale is repaid. The said McGillvray also waives all rights or claims to any stocks, notes, or accounts of the firm until said Moser is fully PER CURIAM. It is so ordered; all the reimbursed on his investment in the business justices concurring. (43 Kan. 219) MCGILLVRAY v. MOSER. (Supreme Court of Kansas. Feb. 8, 1890.) PARTNERSHIP-ACCOUNTING-JUDGMENT-COSTS. 1. Where the report of a referee in an action of accounting between partners shows that there is property in the hands of the defendant belonging to the firm undisposed of, it is error for the court to render a personal judgment for money only against the plaintiff before the partnership affairs are fully settled, and the partnership property either divided or converted into cash. 2. In actions for accounting between partners, the taxation of costs lies within the sound discretion of the court. (Syllabus by Holt, C.) Commissioners' decision. Error from district court, Brown county; R. C. BASSETT, Judge. This action was brought in the Brown district court by Peter C. McGillvray, plaintiff in error, as plaintiff, against Elias Moser. In his petition he alleges that a partnership was entered into between them in 1881 at Hiawatha, for the sale of farm machinery, agricultural implements, buggies, etc., and that by mutual agreement the firm was dissolved January 1, 1883. The plaintiff asked an accounting, and that the defendant be adjudged to pay to plaintiff such sums as might appear to be justly due him, and that some proper person might be appointed by the court as receiver to take charge of the books and collect moneys owing to said firm. After the issues were joined the court, by the on the account of said McGillvray. Elias Moser on his part invests in the business cash in bank, $500.00; P. C. McGillvray on his part invests in the business the following: Open accounts and machinery and agricultural stock to the amount of $325.90.' This "(2) That the plaintiff and defendant carried on and did business under said agreement until the 1st day of January, 1883, when they dissolved partnership by the following written contract of dissolution: contract of dissolution of the copartnership heretofore existing between Elias Moser and P. C. McGillvray, under the name and style of Moser & McGillvray, doing business at Hiawatha, Kansas, witnesseth: That the said Moser shall take all stock on hand, the same having been inventoried in a book now in the possession of John A. Myers, with the cost price set opposite to each article, to which shall be added the freight and drayage on the same, and the whole amount shall be discounted five ($500) hundred dollars on the said property hereby inventoried, and shall be, and the same is now, the property of said Moser. All accounts and notes belonging to said firm shall be retained by said Moser, as herein set forth; the said Moser to use reasonable diligence in collecting the same, using the firm name for that purpose. That with the proceeds of sale from the firm to himself, and the said notes and accounts as the same shall be collected, the said Moser shall discharge and pay all indebtedness of the firm, including all advances made by the said Moser over and above the amounts con tributed by the said McGillvray, with interest thereon at the rate of 10 per cent. per annum. And whereas, the said firm is largely liable on contracts of indorsements and guarantyship, as also is the said Moser on partnership business, therefore the said Moser shall retain from the money realized after payment of all firm indebtedness sufficient to indemnify and pay all liabilities. But if the said indemnity fund shall bring money into the hands of said Moser in any amount, then the said Moser shall pay and account for interest on the same at the rate of 12 per cent. per annum, and can use the same in his own private business. The money coming to Moser's hands after payment of the firm's indebtedness, and above the said indemnity fund, shall be divided equally between the said Moser and the said McGillivray. And the liability of the firm, or either member thereof, arising in the partnership business, as it shall be discharged and paid, the said indemnity fund shall be lessened and divided proportionately as above. The money belonging to McGillvray on division shall be paid by said Moser to S. A. Fulton as the agent of said McGillvray. The copartnership heretofore existing between the said Moser and the said McGilvray be, and the same is hereby, dissolved, and the said Moser alone closes the partnership business. Books of account and notes shall be placed in the hands of J. N. Davis to post and correct, and also to ascertain the accounts of the individuals with the firm. Said posting, correction, and ascertaining shall be final and conclusive between the partners hereto. All notes and accounts shall be placed in the First National Bank of Hiawatha, Kansas, for collection, and, if the same shall not be paid or fully secured within thirty days after receipt by same bank, then the same bank shall turn all accounts and notes uncollected or not secured into the hands of James Falloon for collection. Also secured notes not paid at maturity, and after notice, shall be placed in the hands of said Falloon for collection. Said bank and said Falloon shall account to said Moser for all collections made. Partnership property overlooked, and not inventoried, shall be sold to said Moser the same as the property inventoried. Witness our hands this 1st day of January, A. D. 1883. ELIAS MOSER. P. C. MCGILLVRAY. Witness: H. B. VEY. D. A. VANDERPOOL.' "(3) That the stock on hand (machinery, implements, office furniture, etc., including freight added) of the firm of Moser & McGillvray mentioned at time of dissolution, realized the sum of $5,780.02; deducting the $500 provided for in the contract of dissolution, the amount realized by the firm from the stock on hand was the sum of $5,280.02. "(4) That since the dissolution of the partnership the defendant has collected and received on notes and accounts belonging to the firm the sum of $7,888.83., nership the defendant had paid firm indebtedness, including expenses since dissolution, to the amount of $3,792.33. "(6) That the plaintiff has drawn from the firm before and since the dissolution, over and above what he has paid into the firm, the sum of $471.93. "(7) That the defendant at the time of the dissolution of the partnership had advanced, in the years 1881 and 1882, the sum of $8,331.43 over and above what he had drawn out. "(8) That the interest at 10 per cent. on the amount advanced by the defendant, over and above what he had drawn out of the firm, amounts to $650. "(9) That the defendant's account with the firm, before and since the dissolution of the partnership, is as follows: "That there remains on hand in the possession of the defendant the following property, including notes and accounts not collected, which belongs to the firm: One gelding; lots 21 and 25 on Pottawattomie street, in the city of Hiawatha, Brown county, Kansas; book accounts amounting to about $900, and notes amounting to $1,205.81, exclusive of interest; also judgments for $268.73. "CONCLUSIONS OF LAW. "(1) That the plaintiff is indebted to the defendant in the sum of $38.42. "(2) That the plaintiff and defendant are each entitled to one-half interest in the partnership property now on hand.” C. W. Johnson and Albert Perry, for plaintiff in error. James Falloon, for defendant in error. HOLT, C., (after stating the facts as above.) None of the testimony submitted to the referee is brought here, but there is a controversy concerning the opportunity, or want of opportunity, of the plaintiff to present a bill of exceptions to the referee before his report was filed in court. Upon this issue there is quite a voluminous amount of conflicting and contradictory testimony, which it would be profitless to discuss. It is enough to say that we shall not disturb the ruling of the district court against the plain "(5) That since the dissolution of the part-tiff on this phase of the case, as it is upheld v.23p.no.1-7 |