DEMURRER.

"The defendants jointly and severally demur to the first cause of action in plaintiff's amended petition, for the following reasons, viz.: (1) Because so far as said first cause of action alleges facts, and to recover a judgment for money only, the court has no jurisdiction of the persons of defendants, said defendants not residing in, nor having been summoned in, the county of Allen. (2) Because the plaintiff shows, by his petition, that he cannot rescind in toto,-he returning to defendants all of the property received by him. (3) Because said first cause of action does not state facts sufficient to constitute any cause of action against defendants, or either of them."

RULING OF THE COURT ON DEMURRER.

"And now comes said cause on to be heard upon demurrer of defendant to the first cause of action set up in plaintiff's amended petition, and the court sustains said demurrer as to the first and third grounds set up in said demurrer, and overrules the same as to the second ground of demurrer; to which action of the court, so far as it sustains said demurrer, the plaintiff excepts." L. W. Keplinger and G. A. Amos, for plaintiff in error. C. F. Hutchings, for defendant in error.

SIMPSON, C., (after stating facts as above.) Two assignments of error are strongly insisted on; the first being the ruling on the motion to strike out and dismiss the second cause of action set out in the amended petition; and the other being the ruling sustaining the demurrer to the first cause af action alleged in the amended petition.

1. The action, as originally commenced in the district court of Allen county, was one to rescind a real-estate contract, whereby the plaintiff in error exchanged real estate situated in the city of Humboldt, in Allen county, for farming land situated in the state of Missouri. The plaintiff in error (plaintiff below) was a resident of Allen county; the defendants were residents of Lawrence, Douglas county. The exchange had been consummated by the execution of warranty deeds to the property, by each of the parties, long before the action was commenced. The action was properly instituted in Allen county, because a part of the property exchanged was situated in that county, (section 46, Code;) and a summons for the defendants issued to and was served by the sheriff of Douglas county, (section 60, Code.) The defendants appeared, and filed a demurrer to the petition; but that was overruled, and then they filed an answer. The plaintiff then obtained leave to file an amended petition, and, in accordance therewith, amended his cause of action for a rescission of the contract, and then added an entirely new cause of action, demanding damages for a breach of the covenants of warranty in the deed by which the defendants conveyed the Missouri lands to the plaintiff in error. A motion was made to strike out and dismiss the second cause of action, for damages for a breach of the covenants of warranty. This was sustained by the court, and we think there was no error in such ruling. The action for the cause alleged in the original petition was local, and it was only by reason of that, and that alone, that Reynolds and wife could be compelled to litigate in Allen county, they being residents of Douglas. Whenever it was sought to depart from the local action, and substitute therefor, or add thereto, an action transitory in its nature, it ought to have been dismissed, because it has been held by this court that the presumption is in such a case that the statement of the original cause of action was made wrongfully, to procure the service of a summons upon the defendants in violation of the spirit of sections 46, 55, and 60 of the Code. Brenner v. Egly, 23 Kan. 123. The counsel for plaintiff in error ingeniously contends that when the defendants are rightfully summoned under section 46, and appear, and contest allegations with reference to a cause of action transitory in its character, blended with those that are local, they have joined in a general fray, and cannot thereafter be heard to object to the mode

of attack, or the manner of fighting. As long as the causes of action are strictly confined to those enumerated in section 46 of the Code, the persons rightfully summoned have no cause of complaint; but the moment the plaintiff, by amendment, seeks to litigate a question not expressly enumerated in that section, he himself is violating the statute,-taking an undue advantage of the defendant, and imposing on the court; and there is nothing that the defendant may have done in the course of the previous stages of the proceeding that can estop him from saying that he is there to litigate the cause of action alleged in the petition,--that authorized the issue of the summons against him,--and none other.

2. The demurrer to the original cause of action was sustained. This was the cause of action to rescind the real contract. It appears that the exchange had been made some time before the action was commenced, and since its consummation Neal had sold a part of the land. In the nature of things, if this contract is to be rescinded, the parties who made it are to be placed, with reference' to the property, in the identical situation they were before it was made. The contract must be rescinded in toto, if at all. Jeffers v. Forbes, 28 Kan. 174. It is not permitted a party to speculate for a time on the probabilities of an advantageous bargain, after he has discovered cause for rescission, but he must act promptly to compel it. He must not only allege that he is in position to restore all that he has received, but he must show that he is able and willing to place the other party in the exact condition that he was before the exchange. If he has sold or disposed of a part of the property received in exchange, and then discovers defects in the title of the balance, his remedy is an action for damages, either for fraud and deceit in the sale, or for a breach of the covenants. Curtiss v. Howell, 39 N. Y. 215. The amended petition stated causes of action entirely inconsistent with each other. One cause of action was based upon the affirmance of the contract of exchange; the other seeks to set aside and rescind the contract for causes that, if well founded, would make it inequitable to enforce it. It is true that the motion to dismiss the second cause of action alleged in the amended petition was heard and sustained before the ruling on the demurrer as to the remaining causes of action was made; but this only emphasizes the fact that the pleader was in doubt as to his remedy, and, in his eagerness to avail himself of all, he did not fairly state a cause of action that entitled him to one. As we view the case, there was no error in the ruling on the demurrer.

It is recommended that the judgment of the district court of Allen county be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(38 Kan. 408)

In re DAVIS.

(Supreme Court of Kansas. February 11, 1888.)

1. DEPOSITION-ABUSE OF PROCESS-WITNESS-CONTEMPT-HABEAS CORPUS.

The taking of the deposition of a party in a pending case, merely to fish out in advance what his testimony will be, and to annoy and oppress him, and not for the purpose of using the same as evidence, is an abuse of judicial authority and process; and a party committed by a notary public for refusing to give his deposition in such a case will be released on habeas corpus.

(Syllabus by the Court.)

Error to district court, Sedgwick county; H. C. SLUSS, Judge. This was an application on the part of C. Wood Davis for a writ of habeas corpus before the judge of the district court of Sedgwick county. In his petition he stated that "your petitioner, C. Wood Davis, is unlawfully imprisoned, detained, confined, and restrained of his liberty, by John Fisher, Esq., sheriff of Sedgwick county, Kansas, at Wichita, in the county of Sedgwick,

state of Kansas. That said imprisonment, detention, confinement, and restraint are illegal in this, to-wit, that the petitioner heretofore brought four suits against the St. Louis & San Francisco Railway Company, and the same are all at issue, and pending in the United States circuit court within and for the district court of Kansas, and are assigned for trial at the coming November term of said court. That in said causes so pending the defendant took the deposition of your petitioner, at Pittsburg, Kansas, one week ago, to-wit, October 31, 1885. That on November 4, 1885, at 4 o'clock P. M., the attorney of your petitioner received a telegram in Fort Scott, Kansas, of which a copy is hereto attached, marked Exhibit A,' and made a part hereof. That your petitioner received no other notice, nor did any of his attorneys receive any other notice, except that petitioner received a so-called subpoena on November 4, 1885. A copy of said so-called subpoena is hereto attached, marked Exhibit B,' and made a part hereof. That afterwards, about 11 o'clock a. M. of said November 7, 1885, an attachment was issued by one A. T. Owen, directed to Mr. John Fisher, sheriff of said county. Said Owen was a notary public, duly commissioned under and by virtue of the laws of the state of Kansas. Under said writ of attachment the said sheriff attached the petitioner, and brought him into the presence of the said Owen. A copy of the said writ, with all indorsements, is hereto attached, marked Exhibit C,' and made a part hereof. At this point of time the petitioner served upon the defendant's attorney a notice of which Exhibit A, hereto attached and made a part hereof, is a true copy. Since which time said defendant has served notice upon your petitioner that it will take your petitioner's deposition at Springfield, Mo., on November 11, 1885, together with that of other witnesses. Thereupon the defendant caused to be served upon your petitioner a so-called subpoena in the presence of the notary, the same being signed and sealed by said notary. Said subpoena is hereto attached, marked E,' and made a part hereof. Thereupon said notary, at the request of the attorney of said defendant, ordered the petitioner to stand up and be sworn, and your petitioner refused. Your petitioner objected to the jurisdiction of said notary. Thereupon said notary issued a writ of commitment to the sheriff of said county, directing him to commit your petitioner to the common jail of said county, and to keep him there confined. A copy of said writ is hereto attached, marked Exhibit F,' and made a part hereof. Under said writ the said sheriff of Sedgwick county, Kansas, then took possession of the body of your petitioner, and has him now in custody. Your petitioner says that such custody and confinement is unlawful by the sheriff of said county, and is furthered against your petitioner oppressively by said defendant, not for the purpose of obtaining a deposition that said defendant intends to offer in evidence on its own behalf, but for the purpose of fishing out the plaintiff's evidence. Wherefore your petitioner prays that a writ of habeas corpus may be granted, directed to the said John Fisher, Esq., commanding him to have the body of your petitioner before your honor at a time and place therein to be specified, to do and receive what shall then and there be considered by your honor concerning him, together with the time and cause of his detention and said writ, and that he may be restored to his liberty."

A writ having been duly issued, John Fisher, the sheriff of Sedgwick county, appeared in court with the body of Davis; and thereupon the following proceedings ensued, as shown by the bill of exceptions: "W. H. Phelps, Atty., appeared for said John Fisher and for the St. Louis & San Francisco Ry. Co., and E. F. Ware appeared as attorney for and on behalf of said C. Wood Davis. Thereupon the parties appeared and announced themselves ready for trial. It was admitted in open court, on behalf of said Fisher and said railway company, that the allegations set up in the petition were true. It was admitted by said E. F. Ware, for and on behalf of said Davis, that said Davis and Ware came to Wichita, Kansas, intending to contest the right of said rail

way company to take said Davis' deposition, but ready and willing to appear and proceed with the taking of J. R. Wentworth's deposition; and it is further admitted that said Davis lived and resided more than one hundred miles from Topeka, Kansas, the place where said cases in the U. S. court were triable. The foregoing was all the evidence adduced in the trial." The court refused to discharge the petitioner, and dismissed his petition. Davis excepted, and brings the case here for review.

Ware, Biddle & Cory, for plaintiff in error. W. H. Phelps and E. D. Kenna, for defendant in error.

JOHNSTON, J., (after stating the facts as above.) The notary public held the petitioner to be in contempt for refusing to give his deposition in a case pending in the circuit court of the United States for the district of Kansas, wherein the petitioner was plaintiff and the St. Louis & San Francisco Railway Company was defendant, and for this refusal committed him to custody of the sheriff, to be imprisoned in the common jail of Sedgwick county. By this proceeding the petitioner seeks to be relieved from imprisonment, which, he contends, is illegal on account of the insufficiency of the notice to take depositions, defects in the subpoena and commitment served upon him, and also a lack of authority in the notary public to compel one who is a party to an action in the federal court to give his deposition, and finally that the attempt to take the petitioner's deposition was not made in good faith, or with any intention of using the deposition when taken as evidence, but the only object being to oppress and injure the petitioner.

The last ground of illegality alleged is all that we need to examine, and it is clearly sufficient to accomplish the discharge of the petitioner. There is an express admission by the railway company that they were not acting in good faith in the matter, and did not intend to offer in evidence the deposition proposed to be taken, but were acting oppressively, and for the purpose of fishing out the plaintiff's evidence. This being conceded, the attempt to compel him to testify, and his imprisonment for refusing, is a clear abuse of judicial authority and process. The law permits depositions in a pending case to be taken upon certain conditions; but it proceeds upon the theory that the testimony, when taken, will be competent, and is intended in good faith to be read in evidence in the trial of the cause. Remoteness from the place of trial, which may make the personal attendance of the witness impracticable, and age and infirmity rendering the witness unable to travel and appear at court, are some of the conditions under which a party is permitted to take a deposition de bene esse. The right of taking the deposition of the petitioner is placed on the condition that he resided more that 100 miles from the place of trial; and the claim is that he is not excluded from so testifying by the fact that he was a plaintiff in the action. But, assuming that a party may be compelled to give his deposition in a common-law action in the federal court, it certainly never can be taken unless there is a bona fide purpose to use the testimony if the statutory contingency on which it is permitted to be taken exists when the trial occurs. The privilege of taking depositions should not and cannot be employed to fish from a witness facts that are irrelevant or incompetent to the issues in the case to be tried. Nor can any quality of testimony be thus taken out of curiosity or spite, or to annoy or injure the witness, nor to be used for any other purpose than as evidence in the pending cause. Ordinarily, the good faith of the proceedings would be presumed; but here the conduct and concessions of the parties disclose a purpose to use the machinery of the law to accomplish an improper purpose, and to annoy and injure the petitioner. His deposition was taken in the same case, and at the instance of the same party, at Pittsburg, Kansas, on October 31, 1885. Four days later he was notified that they would take his deposition at Wichita, Kansas, on November 7, 1885; and while they were at Wichita, they notified him that they would take the depositions

of himself and other witnesses at Springfield, Missouri, on November 11, 1885. Coupled with this conduct is the admitted fact that the information which they obtained and were endeavoring to abstract from the witness was not intended to be used as evidence at all. It is an abuse of the process and authority of the law which cannot be tolerated; and upon this ground alone the imprisonment must be held illegal.

The judgment of the district court will be reversed, and the cause remanded, with the direction that the petitioner be discharged.

(All the justices concurring.)

(38 Kan. 629)

DAVIS et al. v. EPPLER et al.

(Supreme Court of Kansas. February 11, 1888.)

1. NEGOTIABLE INSTRUMENTS PRESENTMENT FOR PAYMENT

RESIDENCE.

1

IGNORANCE OF MAKER'S

Where the holder of a negotiable promissory note does not know the place of residence or business of the makers, and makes diligent inquiry without obtaining knowledge thereof, a demand for payment of the makers is excused if he has the note when due, ready to be presented at the place where it is dated.

2. SAME-PROTEST AND NOTICE-BY MAIL-SUFFICIENCY OF DIRECTION.

Where notice of the dishonor of a note is sent through the mails, directed to the indorser at the post-office where the note was dated and indorsed, it will be deemed sufficient when the only evidence about his residence is that he testified he lived in "Jefferson Township," but said nothing, when a witness, concerning his post-office address.1

3. SAME-WAIVER OF PROTEST AND NOTICE-EFFECT.

The placing of "Waive notice and protest" over the name of an indorser in blank of a promissory note, converts his contingent into an absolute liability. 4. SAME-ALTERATIONS.

Any material alteration, although innocently done, in the indorsement of a promissory note, made without the knowledge of the indorser, invalidates the indorse

ment.2

(Syllabus by Holt, C.)

Commissioners' decision.

HUTCHINSON, Judge.

Error to district court, Republic county; E.

This cause was tried in the Republic district court at the January term, 1886, by the court without a jury. Judgment was rendered in favor of Davis, Steele & Co. against N. Harper and J. T. Harper, and in favor of C. Eppler against Davis, Steele & Co., for his costs. There were no special findings by the court. Davis, Steele & Co. bring the case here for review. The action was brought upon a promissory note, executed by N. Harper and J. T. Harper, March 11, 1884, and due January 11, 1885. John Farrell was the nominal payee. He indorsed the note to C. Eppler, who was the real payee, and shortly after its execution he sold and indorsed it to Davis, Steele & Co., who are now the owners. After Eppler had sold the note to Davis, Steele & Co., they, wishing to use it as collateral in the east, indorsed it and placed over the names of Farrell, Eppler, and their own, the words "waive notice and protest." Before the note became due, it was returned to the plaintiffs, and the names of Davis, Steele & Co. were reversed, but "waive notice and protest" was allowed to remain. The note was dated Belleville, Kansas, but the testimony shows that neither of the Harpers ever lived there, nor obtained their mail at that post-office. In the certificate of protest it is stated that the note was presented to N. Harper and J. T. Harper at Belleville for payment; that payment was refused, and notice of the dishonor of the note was sent to N. Harper and J. T. Harper in an envelope, with postage prepaid, directed to

As to what is sufficient notice of non-payment to bind the indorser, see Bank v. Shaw, (Me.) 10 Atl. Rep. 67; Bank v. Shaw, (Mass.) 11 N. E. Rep. 666; Riggs v. Hatch, 16 Fed. Rep. 838, and note; Wilson v. Richards, (Minn.) 9 N. W. Rep. 872

See note at end of case.