of, or to withhold any evidence thereof, is punishable by confinement at hard labor for a term not exceeding five years. Crimes Act, § 161. If the consideration for the note was that Miller should withhold or suppress material evidence, and prevent further prosecution of the charge, or if these things were a part of the consideration for the note, it would vitiate the whole, and no recovery could be had upon it. Gerlach v. Skinner, 34 Kan. 86, 8 Pac. Rep. 257; Hinnen v. Newman, 35 Kan. 709, 12 Pac. Rep. 144; Haynes v. Rudd, 102 N. Y. 372, 7 N. E. Rep. 287. There is testimony that part of the satisfactory. It could not direct a verdict in favor of Miller unless the opposing parties entirely failed to offer proof tending to establish something essential to the maintenance of their defense. Railway Co. v. Couse, 17 Kan. 571; Brown v. Railroad Co., 31 Kan. 1, 1 Pac. Rep. 605; Christie v. Barnes, 33 Kan. 317, 6 Pac. Rep. 599; Sullivan v. Insurance Co., 34 Kan. 177, 8 Pac. Rep. 112. An examination of the testimony and of the rulings of the court, together with its explanatory remarks, convince us that there should be another trial of the cause. There was testimony tending to show that when the note was given a criminal prosecution | consideration for the note was that Miller was pending in the courts of the territory of Utah against Friend and Osborn upon a charge of forgery. This was shown by a record of the proceedings in the Utah court, authenticated as the law requires. The contention that the proceedings were not sufficiently authenticated to entitle them to be used as evidence in the courts of this state is not good. The court can take notice of the constitutions of other states constituting courts, and it can also take notice of the acts of congress providing for the organization of territories and the creation of courts therein, so far as the jurisdiction of such courts is shown. Dodge v. Coffin, 15 Kan. 277; Haynes v. Cowen, Id. 637. Within the rule of these authorities, the authentication in question was amply sufficient, and justified the admission of the record. More than that, it was admitted and considered by the court, and may justly be considered by this court in determining whether there was sufficient testimony offered to take the case to the jury. There was testimony tending to show that the prosecution was begun at the instance of Miller, who had employed counsel to assist in the prosecution, and had spent money to procure evidence to sustain the charge. There was other testimony tending to show that he had the control and possession of written testimony important and material to a successful prosecution. A number of civil actions between these parties had been commenced, and to settle all differences between them an agreement was made for the compromise and dismissal of the civil actions; and this agreement appears from some testimony to have involved also the discontinuance of the prosecution in Utah, and the surrender by Miller of the testimony of which he had control that might be used in that prosecution. In consideration of these agreements the note in question was given. There can be no question that an agreement for the purpose of stifling criminal prosecutions, or for the withholding of proof so as to obstruct the course of public justice, is absolutely void. The defendants in the prosecution were charged with a for gery, and the compounding of such an offense is itself a felony. An agreement or understanding, express or implied, to conceal a felony, or to abstain from a prosecution there should surrender the instrument alleged to have been forged, together with certain depositions pertaining to the same matter, and that Miller said that, if the note or the money were not given to him, the criminal prosecution in Utah could not be dismissed, and the deed and evidence could not be surrendered. It was also testified that a part of the agreement was reduced to writing and a part was not, Miller saying that if the agreement with reference to the Utah mat ter was reduced to writing it ould criminate him. The written agreement, which is in evidence, after providing for the settlement of other controversies, provided that Miller should "not employ or assist in the employment of counsel or other persons to conduct or assist in conducting a certain action now pending in the territory of Utah wherein the people of the territory of Utah are plaintiff and H. F. Friend and N. E. Osborn are defendants, or to furnish or provide any money or obligation for the payment of money to assist in the prosecution of such action, or furnish money to procure the presence of any parties at said trial." It is contended that the written agreement must be presumed to have embraced the whole understanding of the parties, and that testimony showing a different understanding or agreement than that reduced to writing should have been excluded, and, although not excluded, was entitled to no consideration by the court. It is probable, as contended, that the provisions of the written agreement not to employ counsel or other persons to assist in conducting the prosecution in Utah, and not to provide money or obligation for money to carry on the prosecution, or to procure the presence of witnesses at the trial, may not be in violation of law or morals, but this writing will not prevent the parties from showing the exact consideration for the note, although it might to some extent be at variance with the writing. Parol testimony is admissible, not to contradict the instrument, but to show that it is illegal and altogether void. "The rule' which forbids the introduction of parol evidence to contradict, add to, or vary a written instrument does not extend to evidence offered to show that a contract was made in furtherance of objects forbidden by statute, by common law, or by the general policy of the law." Martin v. Clarke, 8 R. I. 389; Pecd v. McKee, 42 Iowa, 689; Greenl. Ev. § 284; Browne, Par. Ev. §§ 33, 34; Jones, Com. & Tr. Cont. § 191. Under the rule of these authorities, some of the testimony which was excluded should have been admitted; but there was enough of that which was admitted to carry the case to the jury. It is true that the evidence respecting the agreements of the parties as to the Utah prosecution is weak and somewhat contradictory, and possibly, if submitted, the jury might have brought in such a verdict as the court directed. The plaintiffs in error, however, were entitled to have the testimony with all its contradictions and inconsistencies submitted to the jury, and the value and sufficiency of the same were questions for their determination. The averments of the answer were somewhat general with respect to the illegal agreement, but they were not attacked upon this ground, except by objections to testimony when the court refused to permit an amendment. Under the circumstances, we think that the proof offered was entitled to consideration. As there must be a new trial of the cause, the averments of the answer may be made as specific as is necessary. The error of withdrawing the case from the jury and directing a verdict compels a reversal of the judgment, and the remanding of the cause for another trial. All the justices concurring. (52 Kan. 116) DAVIS, Sheriff, v. McCARTHY. (Supreme Court of Kansas. Oct. 7, 1893.) FRAUDULENT CONVEYANCES-DEBTOR TO CREDITOR -APPEAL-RECORD. 1. A creditor may, to protect himself and secure his claim, purchase from a failing debtor his entire stock of merchandise, providing that he acts in good faith, and pays a fair price for the same. 2. As the record does not purport to contain all of the instructions given by the court, or all that were given upon any particular branch of the case, the objections attempted to be raised thereon cannot be sustained. 3. The findings and verdict of the court examined, and found to be sustained by sufficient evidence. (Syllabus by the Court.) Error from district court, Jefferson county; Robert Crozier, Judge. Action in replevin by C. C. McCarthy against George Davis, sheriff. Plaintiff had judgment, and defendant brings error. Affirmed. For former report, see 19 Pac. Rep. 356. Wm. A. Porter, for plaintiff in error. W. F. Gilluly, for defendant in error. JOHNSTON, J. This was an action of replevin brought by C. C. McCarthy against George Davis, as sheriff of Jefferson county, to recover the possession of a stock of merchandise which had been seized by the sher iff upon an order of attachment issued in an action brought by R. N. Hershfield against Stienberg & Bro. Stienberg & Bro. were indebted to McCarthy in the sum of $185, and to one Brown in the sum of $15. In order to obtain a settlement of these claims, a purchase of the stock was negotiated by McCarthy for the consideration of $300. After paying the indebtedness there was $100 due, which was paid by McCarthy in cash to Stienberg & Bro. Hershfield had a claim against Stienberg & Bro. for more than $900, and in his behalf it is contended that the sale to McCarthy was made with the intent to hinder, delay, and defraud other creditors. It is claimed, and testimony is offered tending to prove, that the goods purchased by McCarthy were worth more than $600; that the sale was made without an inventory, and out of the usual course of business, while the Stienbergs were in failing circumstances. In answer to special questions the jury found that McCarthy did not know that the Stienbergs were in failing circumstance at the time of the purchase, and further at he did not, in making the purchase, ac' fraudulently, or with intent to hinder, delay, or defraud Hershfield in the collection of his debt. It was also found that Stienberg & Bro. were in failing circumstances at the time of the sale; that no inventory of the stock was taken; that the sale was made out of the usual course of business; but that the value of the stock at the time of the sale was but $300. The general verdict was in favor of McCarthy, sustaining the good faith and validity of the sale. Although the sufficiency of the evidence is challenged, we regard it to be sufficient to uphold the verdict. It may be remarked that there was more testimony offered in favor of McCarthy than there was at the first trial of the cause. Davis v. McCarthy, 40 Kan. 18, 19 Pac. Rep. 356. The debt of McCarthy was a bona fide one, and he was certainly entitled to protect himself, and secure his claim, by the purchase of the goods, providing he acted in good faith, and paid a fair value for the same. The fact that the sale was made after business hours, and without a written inventory, does not necessarily imply bad faith, nor a design to defeat or defraud other creditors. There is proof that a careful inspection of the quantity and value of the goods was made by McCarthy, and at his request a third party, who had dealt in jewelry, examined them, and appraised their value at $300. This was the value determined upon by the jury, and there is ample testimony to sustain it, as we think there was to sustain the finding that McCarthy did not act fraudulently, or with the intent to hinder, delay, or defraud Hershfield in the collection of his debt. Some questions are sought to be raised upon the instructions that are not available. For instance, it is said that the court told the jury that "a man in failing circumstances, having a number of creditors, and among them one for $500, to whom he sells a $2,000 stock of merchandise, and receives therefor $1,500 in cash, the sale is void." It is contended that, whether this instruction is correct or not, it became the law of the case, and it was the duty of the jury to obey it. This was given by way of illustration, and it is immaterial whether correct or not. Another instruction which appears in the record is that "the fact that McCarthy paid to Stienberg $100 in cash would not necessarily vitiate the sale, if McCarthy was endeavoring to secure his claim, and could only do so by buying the whole stock, and paying $100 in addition thereto. It is for the jury to determine from all the evidence in the case whether it was the purpose of McCarthy, and what he did, to hinder and delay the other creditors in the collection of their claims." There is no reason to complain of this instruction, and the jury evidently followed it. The correctness of the charge of the court, however, is not open to inquiry, as the record does not purport to set forth the instructions in full as given by the court, nor is there any statement that those contained in the record were the only statement of the law upon any particular branch of the case. Under these circumstances, no review of the charge can be had. Winston v. Burnell, 44 Kan. 367, 24 Pac. Rep. 477. The judgment of the district court will be affirmed. All the justices concurring. (52 Kan. 104) ST. LOUIS & S. F. R. CO. v. KIRKPATRICK. (Supreme Court of Kansas. Oct. 7, 1893.) ATTORNEY AND CLIENT-COMPENSATION -REVIEW OF EVIDENCE ON APPEAL. 1. A railroad company employing an attorney to perform services connected with the construction of a connecting line, which it contemplates operating as an extension of its road, is liable for his services, and cannot defeat an action for the recovery of his compensation on the ground that its general officers had no power to bind the corporation for such services. 2. The findings of the trial court on disputed questions of fact, when fairly supported by competent evidence, are conclusive. (Syllabus by the Court.) Error from district court, Harper county; C. W. Ellis, Judge. Action by W. R. Kirkpatrick against the St. Louis & San Francisco Railroad Company. Plaintiff had judgment, and defendant brings error. Affirmed. A. A. Hurd and Robert Dunlap, for plaintiff in error. Geo. E. McMahon, for defend ant in error. ALLEN, J. This action was brought by defendant in error to recover compensation for his services as attorney. The defendant denied liability, claiming that plaintiff never was employed by it as its attorney; that whatever services were in fact perform. ed were for another corporation, known as the St. Louis, Kansas & Southwestern Railroad Company, and that for those services he was paid in full by an annual pass over the defendant's road. Various objections were made to the introduction of testimony, and, among others, to a question asked the witness Love, with reference to the value of the services for which plaintiff claimed compensation. It is urged that the question includes services not shown by the evidence to have been performed by him. In order that a witness may be permitted to testify as to the value of services for which compensation is claimed, it is not necessary that the rendition of the services be conclusively shown, but is suicient if there is testimony fairly tending to establish the claim. We think there was such evidence in this case. While the question is somewhat objectionable because it includes a number of items concerning which it would have been better to make separate inquiries, in view of the fact that on cross-examination these separate matters were fully inquired into, we see no material error in the ruling of the court. The other questions raised on the admission of testimony we do not deem of sufficient importance to require a special mention, but perceive no substantial error in the rulings of the court. The railroad company contends that it did not in fact employ the plaintiff as its attorney; that the road was built by the St. Louis, Kansas & Southwestern Railroad Company; and that, even if it were shown that the officers of the defendant company did in fact employ the plaintiff to perform services connected with the construction of the road, the defendant company would not be bound, because such officers would have no power to bind the defendant company for such services. As to the question of fact the testimony was conflicting, and the trial court resolved the doubt in favor of the plaintiff. This finding is conclusive on us. As to the power of the officers of the St. Louis & San Francisco Railroad Coinpany to bind it by a contract with an attorney to perform services connected with the building of a line of road belonging to another railroad corporation, while we incline to the opinion that under some circumstances they could not do so, under the facts disclosed in this case, it appears that the defendant company hau a direct interest in the construction of this road; that it was not only a connecting line, but that, immediately after the road was completed, it was operated by the defendant company. If the new line of road was but an extension of the defendant's line, constructed under the name of a Kansas corporation, with a view either to a consolidation, or the operation of the new road under a lease, it would not be reasonable to say that the defendant had no interest in its construction, and could not bind itself by a contract for services to be rendered in connection with its construction. We think in dealing with Mr. O'Day, who was vice president and general counsel of the defendant company, as he himself testifies, the plaintiff had the right to presume that he was authorized to contract for legal services, and especially so where the acts of the plaintiff, and debts contracted by him under his employment, were ratified and paid by other officers of the company, as shown by the evidence. We do not think that the fact that the trial court deducted $100 from what it found to be the value of plaintiff's services on account of the pass issued to plaintiff shows that the court decided the case on any theory of allowing damages to the plaintiff for the failure of the defendant to continue the pass. The court found the value of plaintiff's services to be $900. The plaintiff sued to recover the value of his services. We do not see that the defendant has any right to complain of the $100 deduction. We perceive no substantial error in the rec ord, and the judgment will be affirmed. the justices concurring. (52 Kan. 132) All GUY et al. v. BOARD OF COM'RS OF HAMILTON COUNTY. (Supreme Court of Kansas. Oct. 7, 1893.) REVIEW OF EVIDENCE ON APPEAL. Where there is a fair conflict in the evidence, the finding of the trial court on a disputed question of fact is conclusive. (Syllabus by the Court.) Error from district court, Hamilton county; A. J. Abbott, Judge. Proceedings by I. J. C. Guy & Son against the board of county commissioners of Hamilton county to recover commissions as brokers. Defendant had judgment, and plaintiffs bring error. Affirmed. Hopkins & Hoskinson and S. M. Tucker, for plaintiffs in error. George Getty, for defendant in error. ALLEN, J. Plaintiffs in error presented a claim of $720, which they alleged was due them from Hamilton county for commission for negotiating the sale of $36,000 of the funding bonds of said county to the board of county commissioners, who disallowed the claim. Plaintiffs appealed to the district court, where a jury was waived, and the court found for the defendant. The plaintiffs in error concede that they failed to show a legal contract with the board of commissioners for the performance of the services charged for in their bill, but they claim that the evidence shows a subsequent ratification by the board, and that the county received the benefit of their services. v.34P.no.4-26 TOOTLE et al. v. MINER, (CAHN et al., Interveners.) (Supreme Court of Kansas. Oct. 7, 1893.) ATTACHMENT-PRIORITY OF LIENS. Property was attached at the instance of several creditors, two of whom were contending for priority. Under an order of the court the attached property was sold, and the proceeds brought into court, and placed in the hands of the clerk to await its further order. After the levies were made, one of the contesting creditors, whose levy was first in point of time, voluntarily dismissed his action, and began another, in which he sought to garnish the funds in the hands of the clerk. Prior to this time, and to the dismissal of the former action, the debtor assigned and transferred all his right and interest in the funds in the hands of the clerk to the other contesting creditor. Held that, as the assignment and transfer were made in good faith, they became effective as against the first attaching creditor upon the dismissal of his action, and gave to the second attaching creditor the superior claim and right to the funds in the hands of the clerk. (Syllabus by the Court.) Error from district court, Clark county; Francis C. Price, Judge. Action by Tootle, Hosea & Co. against E. S. Miner. Plaintiff had judgment, and an order continuing the lien of an attachment previously issued. Joseph Cahn & Co., intervening, moved to set aside the attachment so far as the same appeared to be superior to an attachment in their favor against the same defendant. From a judgment sustaining the motion, plaintiffs bring error. Reversed. Reed, James & Randolph, for plaintiffs in error. George O. Blake, for defendant in er ror. JOHNSTON, J. A retail dealer in merchandise at Ashland, named Miner, failed in business, and the result was that several separate attachment actions were brought against him by creditors, among whom were the parties to this proceeding. Several of the actions were prior in point of time to those of the parties herein, and in all of them judgments were rendered at the following term of court, in March, 1888. No controversy exists as to the actions first brought, or as to the attachments first levied. In one of the prior actions an order was made by the court for the sale of the attached property, which was of a perishable nature, under which the proceeds of the sale were placed in the custody of the clerk of the court, to be kept by him subject to its further order, which was done. On July 30, 1888, Miner made a written transfer and order upon the clerk of the court, who was in custody of the funds, to pay to Tootle, Hosea & Co. the amount of their judgment, which order was accepted by the clerk on the same day, and subsequently an assignment and transfer to Tootle, Hosea & Co. was made by Miner of two promissory notes which were in the hands of the clerk, and had been received for a portion of the goods that had been sold. This assignment was made in duplicate, and one copy delivered to and received by the clerk on the 1st or 2d day of August, 1888. On the 30th day of July, 1888, motions were made by E. S. Miner in each of the actions brought against him by Joseph Cahn & Co. and Tootle, Hosea & Co. to set aside the judgments previously rendered, upon the ground that he was a resident of Ohio at the time the service of summons was made at his former place of business in Kansas. The motion in the case of Tootle, Hosea & Co. was heard on July 30th, when the judgment was set aside, but not the proceedings in attachment. In the case of Joseph Cahn & Co. the motion was heard upon August 8, 1888, and the judgment formerly rendered in that case was set aside, and, on the following day, Joseph Cahn & Co., upon their own motion, secured a dismissal of the cause without prejudice to a future action. On August 9th, Miner appeared in the case of Tootle, Hosea & Co., waived the issuance of process, entered his appearance, and confessed his indebtedness to nat firm for $3,856.58, and agreed that judgment might be rendered against him for that sum. The court thereupon rendered judgment in their favor for that amount, and further ordered and adjudged that the attachment which had been previously issued in the action should be sustained. On the same day, and after the dismissal of their former action, Joseph Cahn & Co. instituted another action against E. S. Miner, and immediately obtained service of summons upon him. At the same time an order of garnishment was obtained, and served upon the clerk of the court, by which they undertook to garnish the funds which had been placed in his hands under an order of the court, and which were the proceeds of the sale of the attached property. It appears that the order of garnishment was served before the judg ment in the case of Tootle, Hosea & Co. was entered. On the same day, Joseph Cahn & Co. filed their motion in the action of Tootle, Hosea & Co. wherein they had obtained judgment, asking the court to vacate and set aside the attachment lien of Tootle, Hosea & Co. so far as the same appears to be prior and superior to that of Joseph Cahn & Co., and to adjudge the same to be junior and inferior to theirs. The clerk of the district court moved, also, to be discharged as garnishee in the last case brought by Joseph Cahn & Co., and several months after wards these two motions were heard together. The court found and adjudged that the lien of Joseph Cahn & Co. was prior and superior to that of Tootle, Hosea & Co., and ordered the clerk of the court to apply the funds in his hands to the payment of the judgment of Joseph Cahn & Co., and discharged Stockton, the clerk, as garnishee. The ruling made against Tootle, Hosea & Co. was excepted to, and is here for review. We are unable to sustain the decision of the court giving priority of lien or right in the fund to Joseph Cahn & Co. When that firm dismissed its action, on August 9th, it lost its lien, or any claim of lien, obtained in that action. Prior to that time, Miner had assigned and transferred to Tootle, Hosea & Co. all his interest in the proceeds of the sale, which were in the hands of the clerk, subject to the liens of the attaching creditors who were prior in point of time and right to the contesting parties in this case. This assignment and transfer had been received and accepted by the clerk before any new action was begun by Cahn & Co., or any garnishment process had been served. The debt and judgment of Tootle, Hosea & Co. against Miner, for which the assignment was made, exceeded in amount the remaining proceeds in the hands of the clerk. When the action of Cahn & Co. was dismissed, the assignment and transfer became effective, and left nothing in the hands of the clerk to be seized by the process of garnishment or attachment. More than that, on August 9th a judgment was rendered in favor of Tootle, Hosea & Co., whose action was not dismissed, in which the attachment proceedings previously obtained were sustained, and ordinarily the lien of an attachment thus sustained would relate back to the original levy of the writ. It is true, the summons by which an attempt was made to garnish the clerk appears to have been served a few minutes before the entry of judgment in favor of Tootle, Hosea & Co.; but, even if the latter had not already acquired a superior right over Cahn & Co., it is doubtful if the attempted garnishment would have been of any force. The property had been seized by attachments in other actions, and by order of the court it was sold, and the proceeds placed in the custody of the clerk to await its further orders. Funds so held by an officer are generally regarded to be in the custody of the court, and hence not to be reached by garnishment of the officer. But, however that may be, Tootle, Hosea & Co. had previously acquired the right and interest of Miner in the funds, and we find nothing in the record which impeaches the good faith and honesty of the transaction. The debt of Tootle, Hosea & Co. was bona fide, and no blame is to be attached to them for making diligent endeavor to secure priority and preference, nor is there any reason why Miner might not prefer one creditor over another. The |