ing liquors from the list of merchantable articles by its determination that they are deleterious to the morals and health of its people. In Leisy v. Hardin, 135 U. S. 110, 10 Sup. Ct. 684, 34 L. Ed. 128, it was said: "That ardent spirits, distilled liquors, ale, and beer, are subjects of exchange, barter, and traffic, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of congress and the decisions of courts, is not denied." And being articles of commerce, it was held that the importation of them could not be prohibited without the consent of congress. The same view was taken in Re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, where it was remarked: "Unquestionably, fermented, distilled, or other intoxicating liquors or liquids are subjects of commercial intercourse, exchange, barter, and traffic between nation and nation and between state and state, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of congress, and the decisions of courts." To the same effect are Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632, and Vance v. W. A. Vandercook Co., 170 U. S. 438, 18 Sup. Ct. 674, 42 L. Ed. 1100.

Congressional action has been taken as to the importation of intoxicating liquors, but not such as to affect the question at bar. Shortly after it had been determined in Leisy v. Hardin, supra, that the right to import liquors into a state included the right to sell them in the original packages in which they were imported, congress enacted the Wilson bill, which provides that all intoxicating liquors "transported into any state or territory or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police power," to the same extent as if they had been produced in the state. This provision, however, did not affect interstate traffic in liquors farther than to devest imported liquors of the character of interstate shipments at an earlier period of time than would otherwise have been the case. The act was interpreted in Re Rahrer, supra, and Rhodes v. Iowa, 170 U. S. 412, 18 Sup. Ct. 664, 42 L. Ed. 1088, in which it was held to have been the intention of congress to allow state laws to operate on liquors shipped into one state from another, so as to prevent a sale in the original package in violation of the laws of the state; but while they were in transit, and until their delivery to the consignee, they were to be regarded as an article of commerce, and not within the operation of the state law. The effect of the act was to allow the state laws to apply to imported liquors after the shipment ended, and to deprive the consignee or other person of a sale of the same in the original package aft

er delivery. Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632, and Vance V. W. A. Vandercook Co., supra, involving the dispensary act of South Carolina, are closely in point, for the reason that the act contains a section substantially similar to the one under consideration, prohibiting and punishing the taking or solicitation of orders for the purchase or shipment of alcoholic liquors. In the latter case it was substantially held that, under the constitution of the United States, every resident is free to receive, for his own use, liquor ordered by him from another state, and the inhibitions of a state statute do not operate to prevent liquors from another state from being shipped into such state on an order of the resident for his own use; that the right of the resident to order and receive such liquors is reciprocal to and co-ordinate with the right of the nonresident to sell and ship; and that any law of a state which restricts the right of a resident to buy liquors from a nonresident, or the right of a nonresident to sell and ship the same into the state, is void. Accordingly it was held that a state law depriving a nonresident of the right to ship intoxicating liquors into the state unless previous authority is obtained from state officers was an unconstitutional regulation of interstate commerce, and, further, that a state regulation which compelled a resident of the state, who desired to order liquors for his own use from without the state, to first communicate his purpose to a state chemist, was invalid. In the case of In re Bergen (decided May 19, 1900) 113 Fed. -, in the circuit court of the United States for the district of Kansas, the identical question which we have here was determined. Judge Hook, in a carefully prepared opinion, held, under the authority of the supreme court, that a restriction or limitation upon a traveling salesman, coming from one state into another and soliciting orders for the sale of a commodity, is a burden upon interstate commerce; that intoxicating liquors are lawful subjects of commerce, and that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce; and that a state law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the constitution of the United States, and for that reason the section in question was held to be void. In Westheimer v. Weisman, 60 Kan. 753, 57 Pac. 969, a reference was made to the provision in question, and language was used which treated the provision as a valid one. However, the question at issue here was not involved in that case, and, as will be seen, the court expressly declined to enter upon a discussion of the constitutionality of the provision. Even if the question had not been reserved, and the provision had been determined to be valid. we would feel impelled to follow the supreme court of the United States, which is supreme authority on federal questions.

He

DOSTER, C. J. This is an appeal from a judgment of conviction of manslaughter. The appellant was a city marshal. One Gonske was creating a disturbance in a restaurant by loud, profane, and vulgar talk. The marshal attempted to arrest and eject him. resisted, and, as the evidence showed, made motions as though to draw a concealed weapon. The marshal testified that he believed he was about to draw the weapon, and that, in order to protect himself from a threatened and imminent deadly assault, he struck him on the head with a policeman's club. Wounds were inflicted from which the man died. Numerous errors are assigned, but only one is deemed by us to be sufficiently material to justify a reversal. One Poston had been city marshal preceding the term appellant was filling. He knew Gonske, the deceased, and, in his capacity as marshal, had specially observed his character and habits, and had informed himself concerning his reputation. IIe was asked whether he knew the general reputation of the deceased for being a fighting, quarrelsome, vindictive, and dangerous man, and, if so, what that reputation was. The court permitted the question to be answered on condition that "counsel for defendant intends to connect this general reputation with defendant's personal knowledge of it," and, as at another time expressed, "on the condition that the defendant himself knew of the man's character at that time." The ques

tion was asked several times in varying forms, to which the witness stated that he knew the reputation in question, and that it was bad. With the court's first statement of the condition under which answer to the question would be allowed, counsel for defendant promised to comply; but, after a final question and an objection thereto he stated he could not do so, except, as he said, he could so far comply as to show the defendant's knowledge of the character of the deceased for vindictiveness and hostility to city marshals, whereupon the objection of the state was sustained. The previous answers of the witness to questions of the same import, given under the condition laid down by the court, were not formally ordered withdrawn from the jury; but the condition was stated in the presence of the jury, and they could not fail to understand that the evidence became a proper subject of consideration only in the event of the fulfillment of the condition. Distinctions between character and reputation are drawn in some of the books. It is clear, however, that the subject of inquiry in this instance was the man Gonske's character,-the actual fact as to his moral propensities, rather than the estimate made of them by others. The words "character" and "reputation" seemed to be used interchangeably by both court and counsel, but, clearly, as we interpret the record, in the sense of the former word, not the latter. The question last asked of the witness, and on which the final adverse ruling was made, was as follows: "Do you know what the character of the deceased was for being a fighting, quarrelsome, vindictive, and dangerous man?" Under a plea of self-defense, and when the nature of the assault or menace against which the defense is made is in doubt, evidence of the character of the assailant as a quarrelsome and dangerous man is admissible. Keefe, 54 Kan. 197, 38 Pac. 302. The rejected evidence was admissible under the very condition laid down by the court. The court's condition to the reception of evidence of the general character of the deceas ed for violence and vindictiveness was the defendant's knowledge. The defendant's counsel stated his ability to comply so far as knowledge of the characteristic of hostility towards city marshals was concerned. Now, it was the attitude of mind of the deceased towards city marshals which, more than towards any other class or all classes generally, was the pertinent subject of inquiry. To rule that the defendant might not ask concerning the general vindictiveness of the deceased towards all classes, because his, the defendant's, knowledge of the general characteristic related only to the particular class of which he was a member, was refining to a high degree, considering the fact that it was the question of the hostility of the deceased towards city marshals-the very class of which the defendant was a member-that,

State v.

could it have been solved, would have shed most light on the controversy. The offer of evidence cannot be viewed in any other light than an offer to show the character of the deceased for vindictiveness and hostility towards the class to which the defendant belonged. It should have been received.

The judgment of the court below is reversed, and a new trial ordered. All the justices concurring.

(65 Kan. 551)

TUCKER v. SMITH et al. Supreme Court of Kansas, Division No. 1. March 8, 1902.)

ATTACHMENT-BOND TO SHERIFF-ACTIONDEMURRER.

Where, by the terms of a bond of indemnity given to a sheriff by plaintiffs in an attachment case, it is apparent that the obligors intended to save such officer harmless as against all persons making claim to the property seized, and where, in an action on such undertaking brought by the sheriff, it is alleged that in a suit brought against him by one who claimed to own a part of the property "attached as aforesaid" a judgment was rendered against said officer, which he has been compelled to pay, the petition will be sustained as against a general demurrer, although some of its averments may be informal and indefinite.

(Syllabus by the Court.)

Error from court of appeals, Southern department, Central division.

Action by J. A. Smith against Edwin Tucker and others. Demurrer to the complaint was sustained. Judgment of the district court was reversed by the court of appeals, and defendant Tucker brings error. Judgment of court of appeals affirmed, and that of district court reversed.

Argued before DOSTER, C. J., and JOHNSTON, ELLIS, and POLLOCK, JJ. W. S. Marlin, for plaintiff in error. A. L. Redden and James Shultz, for defendants in error.

ELLIS, J. This is an action brought in the district court of Greenwood county by J. A. Smith against Edwin Tucker and others, upon none of whom service was made except defendant Edwin Tucker, who entered his appearance therein by filing a general demurrer to the petition. The plaintiff below sought to recover upon a bond of indemnity given by said Tucker as surety, and the other defendants as principals, to indemnify plaintiff as sheriff against loss or damage by reason of the levy, detention, sale, or disposal of certain cattle seized by him under a writ of attachment at the request of the Missouri, Kansas & Texas Live Stock Commission Company, in a suit brought by that company in said court. An amended petition was filed in the district court herein on the 20th day of May, 1897, and on the 25th day of the same month the defendant Tucker filed a demurrer thereto

upon the ground that said petition did not state a cause of action against the defendant. Such amended petition, omitting title, together with a copy of the bond, follows:

"Amended Petition. The plaintiff says: That on the 11th day of July, 1895, the Missouri, Kansas & Texas Live Stock Commission Company, a corporation, by its president, the defendant S. L. Brooking, caused an order of attachment to be issued from the district court of Greenwood county, Kansas, in an action wherein said corporation was plaintiff, and William Freeman, M. J. Herrick, and D. H. Herrick were defendants, which said order of attachment was delivered to plaintiff, who was then sheriff of said county. That plaintiff, at the request of said corporation. The Missouri, Kansas & Texas Live Stock Commission Company, levied said order of attachment upon a certain lot of cattle, as belonging to said defendant William Freeman. That at the time said order of attachment was delivered to plaintiff the cattle upon which it was afterwards levied were claimed by one W. II. Freeman, and also by the firm of Willis & Errickson. That the said Missouri, Kansas & Texas Live Stock Commission Company, in consideration of and upon the promise of this plaintiff to levy said order of attachment on said cattle, agreed with him to execute and deliver to him a bond of indemnity, to secure him against any and all loss and damage by reason of the levy of said order of attachment upon said cattle, or the sale thereof under said levy, or on account of the claim of said W. H. Freeman, or Willis and Errickson, or any person or persons whomsoever. That thereupon the plaintiff levied said order of attachment upon said cattle, and took them into his possession by virtue of such levy. That on or about the 30th day of September, 1895, while said attached property was in the possession of plaintiff, by virtue of said levy of said order of attachment, the said defendant S. L. Brooking, as president of said Missouri, Kansas & Texas Live Stock Commission Company, took possession of all said attached property, consisting of about two hundred and eighty-eight head of cattle, without the knowledge or consent of plaintiff, and appropriated the same to the use of said corporation. That on the second or third day of October, 1895, plaintiff demanded of said S. L. Brooking, president aforesaid, that he return to him said attached property, which he refused to do. That in truth and in fact said cattle had before that time been sold by said Brooking for said corporation, and for that reason it was impossible for plaintiff to repossess himself thereof. Thereupon plaintiff demanded the bond of indemnity, which said corporation agreed to execute and deliver to him as aforesaid, but which, up to that time, October 2 or 3, 1895, had not been given, and said defendants, at said time last above

named, executed and delivered to plaintiff a bond of indemnity, conditioned that said principal and sureties bind themselves to pay plaintiff all damages and costs that he may sustain by reason of the detention or sale of the property levied on in the suit of the Missouri, Kansas & Texas Live Stock Commission Company against William Freeman, M. J. and D. H. Herrick, by virtue of a certain order of attachment issued in said suit, and indemnifying said plaintiff against all persons whomsoever on account of release of said levy. A copy of said bond is hereto attached, marked 'Exhibit A' and made a part of this petition. That after the levy of said order of attachment, after said S. L. Brooking, for said corporation, took said attached property from the possession of plaintiff as aforesaid, and after the execution and delivery to plaintiff of said bond of indemnity, the said action in which said order of attachment was issued was by said plaintiff corporation dismissed, at its costs, as to all the defendants therein, and all said attachment proceedings thereby became null and void. Plaintiff says that while said bond of indemnity is ambiguous, imperfectly, ‘inartistically,' and clumsily drawn, yet it was the agreement, understanding, and intention of the obligors and obligee named therein and signed thereto that it should save plaintiff harmless from any loss or damages in any manner, shape, form, or fashion, as the result of, or in any way connected with, or growing out of, the aforesaid attachment proceedings, and the plaintiff's levy of the said order of attachment, and as security for plaintiff against any loss or damage that he might sustain or suffer in case said attachment should be discharged or become void for any reason, and he be unable to return said attached property to the persons lawfully entitled to the same, on account of the acts or proceedings concerning said property by the plaintiff in the action in which said order of attachment issued, to wit, the Missouri, Kansas & Texas Live Stock Commission Company, or any other person or persons. That on the 20th day of February, 1896, said William Freeman brought an action against this plaintiff in the district court of Greenwood county, Kansas, for the recovery of the value of one hundred and eighty-eight head of cattle attached as aforesaid, and on the 20th day of November, 1896, recovered a judgment in said court against this plaintiff for the sum of $683.64 and costs of the action, taxed at $94.98, and amounting, in the aggregate, to the sum of $778.62. That on the 26th day of February, 1897, the said William Freeman caused execution to be issued on said judgment, and placed in the hands of the sheriff of said county, and this plaintiff was compelled to pay said judgment and costs. That plaintiff duly notified the defendants herein of the institution and pendency of said action against him, and they employed counsel to

defend the same for him. That judgment was so rendered against plaintiff in said cause as aforesaid, and before the commencement of this action he demanded of said defendants herein that they reimburse him for the amount of said judgment and costs so as aforesaid rendered against and paid by him, but they have failed and neglected to pay the same and save harmless this plaintiff, as provided in said bond of indemnity. Wherefore plaintiff prays judgment against said defendants, and each of them, for the sum of $778.62, with lawful interest thereon and the costs of this action. James Shultz, T. L. Davis, Attorneys for Plaintiff."

"Exhibit A. In the District Court of Greenwood County. The Missouri, Kansas & Texas Live Stock Commission Company, Plaintiff, vs. William Freeman, M. J. and D. H. Herrick, Defendants. We, the undersigned principal and sureties, bind ourselves hereby to pay to J. A. Smith, as sheriff, all damages and costs that he may sustain as such sheriff by reason of the detention or sale of the property levied on in this suit by virtue of a certain writ of attachment herein, and now claimed as the property of W. H. Freeman, in an action against said sheriff by said W. H. Freeman in said court for conversion, and indemnifying said sheriff for release of said levy against all persons whomsoever. S. L. Brooking, PresiIdent M. K. & T. L. S. Comm. Co. S. L. Brooking. Edwin Tucker."

Upon a hearing the district court sustained the demurrer, and the plaintiff, electing to stand on his petition, took the case to the court of appeals, Southern department, Central division, where, in due time, the judgment of the district court was reversed (Kan. App.) 63 Pac. 19, and Tucker prosecuted a proceeding in error to this court to reverse such decision of the court of appeals.

The right of the court of appeals to entertain the case is here challenged, because of imperfections in the transcript of the record. As the allegations of plaintiff in error, Tucker, are not supported by evidence which may be here considered, his contention cannot be upheld. We are at a loss to know upon what ground the district court sustained the demurrer. It seems to be contended, however, by counsel for plaintiff in error, Tucker, that the court of appeals decided the case upon the ground that plaintiff below was entitled to recover for a "release of levy," and that no sufficient allegation of such a breach of the bond was made. It may be conceded that the allegations of the petition are not definite and certain, and a motion directed to such defects would have been justified. Still it sufficiently appears from the averments of the petition that the plaintiff has been damnified by reason of the official acts performed by him under the writ of attachment, at the request of

the plaintiff in that action, and the nature and extent of the injury which he has sustained is fairly apparent. It is evident that the bondsmen undertook to indemnify the sheriff against such a loss as did in fact accrue to plaintiff below in the premises. As these facts are averred, though “clumsily," in the pleading, and the conclusions are a reasonable deduction therefrom, it follows that the district court erred in sustaining the demurrer.

The judgment of the court of appeals is affirmed, that of the district court reversed, and the case remanded for further proceedings in accordance with this opinion. All the justices concurring.

(64 Kan. 516)

MUNKRES v. McCASKILL et ux. (Supreme Court of Kansas, Division No. 1. March 8, 1902.)

SALE OF REALTY-RESCISSION OF CONTRACT -FRAUD-DOCUMENTARY EVIDENCE.

1. When in a contract for the exchange of real estate it is expressly stipulated the contract when made shall not be binding upon the parties thereto, but is made subject to an investigation of the property of one party by the other, and made to depend upon the result of such investigation proving satisfactory to the other party, the party so agreeing to make investigation assumes the responsibility of making such full and complete examination of the property as he may desire to satisfy himself as to the truth or falsity of the representations made by the other party, and the advisability of making the exchange; and if after making an examination of the property he signifies his satisfaction therewith by closing the trade and exchanging title papers, he cannot rescind the contract upon the ground he was induced to make it in reliance upon false representations made by the other party to induce the trade, unless some fraud is practiced upon him by the other party which prevents his making a full, fair, and complete examination of the property..

2. A certified copy of a plat on file or of record in a public office in a foreign state is not admissible in evidence in the courts of this state. Such plat must be produced and identified by the custodian thereof, and a copy therefrom proved by the oath of such custodian to be a true and correct copy of the original plat on file or of record in his office, before it will be received in evidence.

(Syllabus by the Court.)

Error from district court, Chase county; W. A. Randolph, Judge.

Action by John J. MeCaskill and wife against W. O. Munkres and others. Judg ment for plaintiffs, and defendant Munkres brings error. Reversed.

Argued before DOSTER, C. J., and JOHNSTON, ELLIS, and POLLOCK, JJ.

Madden Bros. and Cochran & Butler, for plaintiff in error. F. A. Meckel and Redden, McKeever & Hayden, for defendants in er

ror.

POLLOCK, J. Defendant in error John McCaskill owned a ranch of 1,700 acres in Chase county, incumbered to the extent of

about $10,000, which he desired to trade for unincumbered property, and leave himself free from debt. Plaintiff in error owned a tract of land in what is known as "Cat Island," in the Missouri river, in Andrews county, Mo., which he represented to contain 3524 acres, and a large body of accretions made to said tract by operation of the river. Negotiations between the parties for an exchange of properties were brought about by one Arnold, to whom McCaskill had expressed his desire to sell his land, and, in the event a purchaser was found, to pay a commission. In May, 1899, Munkres visited the McCaskill place, looked the ranch over, and the subject of a trade was fully discussed between the parties. No trade was consummated at this time, and nothing further looking thereto appears to have been done between the parties until October 2d thereafter. On this day Munkres again visited the McCaskill place, and the matter of trade was again discussed. This interview culminated in the parties entering into the following written agreement: "Cottonwood Falls, Oct. 2, 1899. Terms of trade between John McCaskill and W. O. Munkres: McCaskill to give a good title to south one-half section 7, all section 8, west one-half 17, and all section 18, to said Munkres, subject to a lien of $10,000, two thousand of which will be due and draw ten per cent. interest from date of trade; eight thousand dollars of which will be due October 1, with six per cent. interest paid up to October 1, 1899. To give immediate possession of pasture and lower corral, also of small house in which McCaskill now lives. Said W. O. Munkres will in consideration of above deed give to McCaskill a warranty deed to 352 acres of land near St. Joe, Mo., as described in the deed and abstract shown. Also a quitclaim deed to all his rights and title to certain adjoining land formed by accretion from the Missouri river. Also, to give said McCaskill full possession of all the said land in time to rent and work for crop of 1900. The deed given by McCaskill to Munkres is to be left with the State Exchange Bank, to be delivered to Munkres at any time he shall pay the $2,000 due, mentioned above, etc., and surrender to McCaskill his notes for that amount. representing said notes. This trade is subject to an investigation of the Munkres land by McCaskill, and the above agreement is made as an outline for said trade, provided that the Munkres land is satisfactory to McCaskill. John McCaskill. W. O. Munkres." Immediately after the making of this agreement the parties went to Missouri; McCaskill went upon and examined the Munkres land; while upon the property making the examination Munkres was asked by McCaskill to point out the lines and corners of the land, and was informed by Munkres he did not know where they were. Some talk of having the land surveyed to ascertain the boundaries was engaged in, but the project