stroyed, if, indeed, its purpose would not be almost entirely annihilated, by holding that the crime depends upon the distance to which the injured person is transported, or the period he or she is detained. Great wrong to the individual might be, and generally is, by the commission of such crime, accomplished very soon after the initial steps of the removal, if any offense other than the forcible removal is intended. The carrying away itself has therefore very wisely been declared a heinous offense. Had she been returned within a few hours, or the next day, the offender would nevertheless have been amenable to the statute; the crime of kidnapping would have been complete; and yet, in such an event, the disobedience of the subpoena would not have resulted from the act of removal. It can hardly be possible | that this is correct,-and we think its soundness cannot be questioned,-and that, nevertheless, for the reason that the child is taken out of the state, and detained several days, the very same act which before or when it occurred was not kidnapping has become such; that the effect of the act upon a public prosecution has, from that consideration alone, determined the crime to be that of kidnapping.

If John was guilty of the crime charged in this case, then Mrs. Sutton, the mother, was equally guilty of the same crime; she having consented, aided, and abetted him. We are not prepared to assent to the idea that, because Jennie John was desired and had been summoned as a witness, her mother became charged with the duty of preventing her departure from home until the requirements of the court's process had been fully satisfied, to such an extent that a crime entirely independent of any disobedience of the process would be perpetrated by a willful neglect or violation of that duty alone, and that by allowing the child so to depart with another she has been guilty of kidnapping. The act, in the absence of the process of subpoena, would have been lawful; and we fail to observe any logic in the argument that the child has been kidnapped, merely because she was under a legal obligation to respond at some future time as a witness, and the mother and father were aware of that fact, and desired to avoid it.

The legislature has made provision for the punishment of offenders who obstruct or impede the administration of justice, or who, by force, threats, or threatening letters, endeavor to influence, intimidate, or impede any witness in the discharge of his duty, and the penalty for such an offense is a fine or imprisonment in the county jail not to exceed 60 days; and a witness who refuses to obey a subpoena served upon him may be punished by a fine not to exceed $500, to which may be added imprisonment in the county jail for a period not longer than 90 days. Chapter 73, Laws 1890, §§ 121, 122. To obstruct the execution of legal process, or to forcibly liberate any person from legal arrest, know

ingly, is but a misdemeanor. Chapter 73, Laws 1890, § 120 To assist a person to escape from jail, where he is lawfully confined, is likewise but a misdemeanor, authorizing a fine of not more than $500, and imprisonment in the county jail not to exceed one year. Not witlistanding all this, we are asked to hold that if the consequence of taking a child from her place of residence with the consent of her lawful guardian and custodian, which would not otherwise offend against the statute under consideration, is the obstruction of justice or the disobedience of a subpona, the purpose and motive of the act being that such result may ensue, the offender may be convicted of such an offense, by reason alone of such consequence and such motive, as will subject him to imprisonment in the penitentiary for possibly 14 years. We do not so understand the law, and are unable to so construe the criminal statutes. The plaintiff in error, and his former wife, may have been extremely derelict in the observance of their parental obligations. The conduct of this man may have been, and doubtless was, highly disgraceful and reprehensible. It is possible that he is accountable therefor, under some criminal statute, and merits punishment. But the conclusion we are inclined to consider quite clear is that, by the act complained of, he did not commit the crime of kidnapping, assuming the facts to be as we understand them from the record in this case, with respect to the conduct of mother an 1 child, and that the instructions given regarding that matter were misleading and erroneous. With more particular reference to the proposition that Mrs. Sutton could not consent to an unlawful act, viz. the avoidance of the mandates of the process of subpoena, we will only add that, while that is unquestionably correct, its application to this case is of no avail. Her consent to the act of plaintiff in error in taking the child away, within the contemplation of the crime of kidnapping, did not necessarily imply or involve an assent to the unlawful consequence which receives so much attention, and to which is attributed so much importance, by counsel. Neither were such unlawful consequences the natural or necessary result of the act of carrying away, which is the essential element of kidnapping. Had the criminal complaint in this case been the obstruction of justice,-impeding a witness, or aiding a witness to avoid or disobey a subpœna or other process of the court,-the consent of the mother could not have tended to exculpate the defendant, and would have been no defense. The principle contended for would, in such a case, have been applicable. therefore follows that the judgment must be reversed, which is ordered, and the case will be remanded, with directions to the district court to vacate the verdict and grant a new trial.

It

GROESBECK, C. J., and CONAWAY, J.,

concur.

latter was to pay the freight. A regular bill of lading was prepared, showing the receipt of the property by the railway company, and the agreement by it to convey the same to Pratt, Kan., and that the consignee was C. Toms, the plaintiff. The bill of lading was taken by F. D. Toms, and afterwards given to plaintiff. While in transit, the goods having arrived at Green River, in this state, they were levied upon by defendant under a writ of attachment in the suit aforesaid, and taken from the railway company by the defendant. Both Clarkson Toms and F. D. Toms testify positively respecting the agreement to pledge the goods, and that, in pursuance thereof, they were delivered and consigned as above stated, and that the plaintiff accepted the goods at Pocatello, and the delivery to the railway company constituted the delivery of possession to the plaintiff, who is not shown to have been present at Pocatello at the time. These facts stand uncontradicted.

The agreement and delivery of the goods to the carrier at Pocatello, consigned to the plaintiff, amounted, in our opinion, to a valid and complete pledge of the property. To constitute a pledge, the pledgee must take possession. The delivery of possession must be such as would be requisite to transfer the property in the same chattels in case of a sale of them. Jones, Pledges, § 23; Story, Bailm. (8th Ed.) § 297.

F. D. Toms testified that he delivered the goods to the railroad company or its receivers, and they were received by the agent of the company as the property of Clarkson Toms. This may amount to a conclusion of law, but if so, under the undisputed facts, it was a correct statement of the law. Such delivery in case of a sale would have passed the property eo instanti to the consignee. During the trial, the defendant introduced the depositions of certain witnesses, taken at Pocatello. One witness had assisted in packing the goods, and he testified that F. D. Toms said that he (the witness) was working for said F. D. Toms, and no one else; and he also testified that F. D. Toms claimed the goods as his after they were packed and delivered at the depot. This testimony was elicited in answer to the following question: "He claimed the goods as his, after they were packed and delivered to the depot, did he?" And the witness replied, "Yes, sir." What Toms actually said or did in that respect was not stated by the witness. Two other witnesses were clerks in the freight office of the railway company at Pocatello, and they testified that, after the goods had been shipped, the freight agent at that point received a letter from F. D. Toms in regard to the goods, in which the latter stated that he had not received them, had been expecting them every day, and requesting that they be hurried up, that he needed them badly. The letter was not introduced or offered, the witnesses testified from recollection as to its contents, and it sufficiently appeared that it

was out of the state of Idaho, or could not be produced. The witnesses stated that they did not know where it was, but it was sent from the Pocatello office to some other office. All this testimony was objected to, and, upon the trial, counsel for plaintiff moved to strike it out, which objections and motions were overruled, and exceptions duly taken. This, together with the testimony of the plaintiff and F. D. Toms, constituted all the evidence in the case, excepting the evidence touching the proceedings in the suit before the justice. The attention of F. D. Toms was not called to the letter, nor to the statement or claims made by him to the witness who assisted in packing the goods; hence such testimony was not admissible to impeach his testimony. Dayton v. Bank, 1 Wyo. 263. If admissible at all, it must have been upon some ground which permits the declarations and acts of a vendor of personal property to be shown as against the vendee in a suit wherein the vendor is not a party. The admissions of such vendor while in possession of the property are competent, and his acts and declarations anterior to the transfer are admissible to prove fraud on his part, at least, if they are so connected with the transfer as to explain its character, or to form, in connection with it, one continuous transaction. But his subsequent declarations in opposition to the title of his vendee are hearsay, and inadmissible, unless they are made in the presence of the vendee or in the furtherance of a conspiracy to defraud creditors; and, to become admissible upon this last ground, there must be some independent evidence in the case tending to establish such conspiracy, and that, at the time the declarations are made, the object of the conspiracy has not been accomplished. It is said that, where it is a question in the case whether there has actually been a change of possession or not, such question is for the jury; and, if it be found that the vendor was in possession when the declarations were made, then they become competent, and therefore are admissible, the same, however, to be given no consideration if it be found that there had been in fact a change of possession, and the vendor making the admissions or declarations was out of possession when they were made. Williams v. Casebeer, 53 Mo. App. 644; Steward v. Thomas, 35 Mo. 202; Weirich v. Porter, 47 Mo. 293; Sutter v. Lackmann, 39 Mo. 91; Benjamin v. McElwaine-Richards Co., 10 Ind. App. 76, 37 N. E. 362; Tyres v. Kennedy, 126 Ind. 523, 26 N. E. 394; Bishop v. Redmond, 83 Ind. 157; Moore v. Shields, 121 Ind. 267, 23 N. E. 89; Railroad Co. v. Noel, 77 Ind. 110; Waite, Fraud. Conv. §§ 278-280; 1 Greenl. Ev. § 111; Jones v. Simpson, 116 U. S. 609, 6 Sup. Ct. 538; Manufacturing Co. v. Creary, 116 U. S. 161, 6 Sup. Ct. 369.

Respecting the statements made by F. D. Toms while the goods were being packed, and while they were clearly in his posses

sion, we think they were competent for the purpose of proving fraud upon his part. It may be said that the question was in issue as to whether there was a delivery of possession to the plaintiff at any time, and that, therefore, the other declarations were admissible; but we are of the opinion that, upon the undisputed testimony in the case, there was a change of possession, as a conclusion of law, and the declarations made in the letter were not admissible under the facts in the case. If the claims of F. D. Toms to the ownership of the goods made to the witness who had assisted in packing them after the delivery of them at the depot were so made after the receipt by the railroad company and consignment to plaintiff, then they were likewise incompetent, for the reason that neither said statements nor the declarations in the letter were shown to have been made or written in the presence of the plaintiff, nor that he knew of them; and there is no other evidence of any kind tending to show a conspiracy to defraud the creditors of F. D. Toms.

Upon the whole case, however, fraud in the making of the pledge was not established. Even should all the acts, declarations, and statements of the pledgor be allowed in evidence, they are insufficient in themselves -and they stand alone-to avoid the transaction as fraudulent. It is not shown, or attempted to be shown, that F. D. Toms was indebted to any one, except that he was indebted to the attachment plaintiff in the other suit; and this was only shown by the judgment which was rendered upon default, without personal service of summons, in a suit wherein Clarkson Toms was not a party. Whether F. D. Toms had permanently removed from Pocatello does not appear, except that he testifies that his residence was at that place when he gave his deposition, although the latter was taken in Kansas. There is no evidence tending to establish any knowledge upon the part of the plaintiff that his pledgor was indebted to any one other than himself. If the facts are that F. D. Toms was in such circumstances as to indicate fraud in making the pledge, they are not disclosed; nor does it appear that the plaintiff knew of any such facts or circumstances, or had any reason to suspect their existence. If F. D. Toms had or has any other property or not, the fact is not shown, nor is any hint one way or the other to be discovered in the evidence. So far as his statement is concerned to the effect that the witness Peter Sheriff was working for him, and nobody else, in packing the goods, and delivering them at the depot, it neither tends to disprove delivery of possession to the pledgee, nor to establish fraud in the transaction. His claim of ownership at that time was not inconsistent with the pledge. Before change of possession, he was the owner for all purposes; and, if he was not, the defendant could have acquired no lien in any event.

After the change of possession, he was still the general owner, but the pledgee had the right to exclusive possession until the debt due him was paid. The amount of the debt exceeded the most liberal estimate put upon the value of the goods. At the time of the attachment levy, the plaintiff was in rightful possession, and had the right to the possession. The defendant's writ did not authorize him to levy upon the property of Clarkson Toms, the plaintiff. It matters not, therefore, how perfect and unassailable the attachment proceedings may have been, they could not affect the property of any person other than F. D. Toms. To uphold the judgment of the district court, then, it is necessary to conclude, primarily, that either there was, in fact, no sufficient delivery to constitute a pledge, or that the pledge was fraudulent and void as to creditors. We have indicated that we can do neither. Our conclusion, therefore, is that the plaintiff, upon the uncontradicted testimony in the case, there being an absence of any evidence upon which fraud can be imputed, had a special interest in the property as pledgee to secure the payment of an indebtedness due to him from the owner, greater in amount than the value of the property, and that he was entitled to the exclusive possession thereof. The same was taken by the defendant without his consent. The judgment for defendant was erroneous, for these reasons, and must be reversed, and the case remanded for a new trial.

GROESBECK, C. J., and CONAWAY, J.,

concur.

(6 Wyo. 231) STOLL v. BOARD OF COM'RS OF JOHNSON COUNTY.

(Supreme Court of Wyoming. March 3, 1896.) COUNTY LIABILITY FOR COSTS ON CHANGE OF VENUE-ORDER FOR PAYMENT OF WITNESSES' FEES.

1. Under Rev. St. 1887, § 3276, providing that the costs accruing from a change of venue in criminal cases shall be paid by the county in which the indictment is found, said county is liable in the first instance for the payment of said costs.

2. Certificates issued by the clerk of the court which tried a criminal case on change of venue, reciting that a person named therein attended as a witness a certain number of days, and is entitled to a certain sum payable by the county in which the indictment was found, is not an order upon said latter county for the payment of said sum.

Reserved case from district court, Johnson county; W. S. Metz, Judge.

Action by Walter R. Stoll against the board of county commissioners of Johnson county to recover the amount of certain witnesses' fees. The case was reserved from the district court for the opinion of the supreme court upon certain questions certified to be important and difficult.

C. H. Burritt and W. R. Stoll, for plaintiff.

POTTER, J. The plaintiff brought this action in the district court to recover from the county of Johnson the amount of certain witnesses' fees, the claims for which had been assigned to the plaintiff. The fees thus claimed are alleged to have accrued to sundry witnesses who were in attendance upon the trial of a certain criminal prosecution originally instituted in the district court of the county of Johnson, taken on change of venue to the county of Laramie, and there tried; that claims for such fees were made to the district court of the latter county; that they were allowed by such court, and certificates therefor issued by the clerk of that court. The petition alleges the due presentation to the defendant for allowance of an account for such fees, duly itemized and verified, together with the certificates therefor so issued, and the disallowance of the same. A demurrer was interposed to the petition, on the ground, among others, that it fails to state facts sufficient to constitute a cause of action. The other grounds of demurrer are not material to the questions before this court. Upon consideration of such demurrer, the district court reserved the case to this court for its opinion upon the following questions: First. Had the clerk of the district court of the county of Laramie any authority to draw an order in the shape of court scrip against Johnson county, as the same appears from the petition of plaintiff in this cause, and are the certificates of such clerk sued on in this case void? Second. Is Johnson county liable in the first instance for the costs of the criminal action mentioned in plaintiff's petition, taken on change of venue from Johnson to Laramie county, and there tried?

We will, for convenience, consider said questions in reverse order. It will be unnecessary to recite or discuss in detail the statutory regulations concerning changes of venue in criminal cases, and we will content ourselves by a reference only to the statute making provision for the payment of costs accruing after the change has been allowed. The last clause of section 3276 of the Revised Statutes of 1887 controls this matter, and is as follows: "The costs accruing from a change of venue shall be paid by the county in which the indictment was found." We are given to understand, although we have no brief on behalf of defendant, that the ultimate liability of Johnson county is not questioned, but that the contention is that Laramie county is first required to pay such costs, and then recover from the county of Johnson. It is the duty of the board of county commissioners of each county to examine and settle all accounts of the receipts and expenses of the county, and to examine, settle, and allow all accounts chargeable against the county, and, when so settled and allowed, to issue county orders therefor, as provided by law. Rev. St. 1887, § 1801. The requirements that the costs accruing from a

change of venue shall be paid by the county in which the indictment was found renders such costs chargeable against the county wherein the prosecution originated. They do not in any sense constitute a debt or liability of the county to which the case is taken, and it is difficult to see how it can be seriously claimed that such latter county should audit, allow, or pay the accounts or claims arising out of any of the costs of such trial. The commissioners of such county are only authorized to audit and allow accounts which are chargeable against it. The commissioners of Johnson county should not be held concluded, in the absence of a statute to that effect, by any such allowance or payment by another county, if made, as the duty is imposed upon them to audit and allow such accounts if chargeable against their county. The costs being payable by Johnson county, we are of opinion that it is liable in the first instance.

The first question requires our decision as to the authority of the clerk of the court of Laramie county to draw an order in the shape of court scrip against Johnson county, as appears from plaintiff's petition, and whether or not the certificates sued on are void. It is only when an important or difficult question arises in an action or proceeding pending before the district court that the same is authorized to be reserved and sent to this court for its decision. If the question propounded does not arise in the action or proceeding, we are not required in a reserved case to express our judgment thereon, and, for obvious reasons, should hesitate to do so. An inspection of all the allegations of the petition convinces us that the cause of action sued upon is not the certificates of the clerk of court, out the claims or accounts themselves of the sundry witnesses for their respective fees for attendance and mileage; and we are quite clear that, in the consideration and disposition of the demurrer, it is not at all material whether the certificates referred to in the petition are void or not; but it may not be improper for this court to say that, with respect to the first subdivision of the question, such certificates do not purport to constitute an order upon Johnson county, or any other county. Each one merely states that a certain person attended as a witness at the November, 1892, term of the court, a certain number of days, and is entitled to two dollars per day therefor, and also mileage for a specified number of miles of actual and necessary travel, and that the same is payable by Johnson county. Indorsed on the back appears the following statement: "Any person purchasing this certificate does so at their own risk, as this certificate is simply an unaudited bill against the county." This indorsement clearly indicates the scope of the instrument, so far as the purpose of the officer issuing the same is concerned. It cannot be said, in any sense, to amount to an order upon the county liable