will not protect or exculpate Connelly. He must have known that the note was not due when he filed the affidavit for the order of attachment; and therefore we think, he must be held to be liable for all that resulted from the wrongful procurement of the order of attachment. As to him, the justice of the peace was without jurisdiction. Besides, no person should be allowed to commit such a wrong with impunity.

We have not been referred to any authority directly in point; but some of the authorities referred to have some analogy to this case. See Drake, Attachm. c. 5, and cases cited; Spice v. Steinruck, 14 Ohio St. 213; Gillett v. Thiebold, 9 Kan. 427; Hannum v. Norris, 21 Kan. 114; Hauss v. Kohlar, 25 Kan. 640; Ivy v. Barnhartt, 10 Mo. 151. This last case is cited by counsel for plaintiffs in error, but we do not think that it has much application to the present case, for the reason that the case was decided upon the technical rules of the common law, and not under the more liberal rules of the Code practice. The decision was that "an action of trespass will not lie against a party for suing out an attachment, although the debt on which the suit was founded was not due at the commencement of the suit;" and the court, in its opinion, uses the following among other language: "It is difficult to imagine the principle upon which an attempt is made to support an action of trespass on the facts of this case. The rule is stated in Chitty, 136, whenever an injury to a person is effected by regular process of a court of competent jurisdiction, case is the proper remedy; trespass is not sustainable." In this state, and under the more leasonable and liberal rules of the Civil Code, a party may simply state the facts of his case, and if he has a right to recover on such facts, he may recover in the action, whether the action is such as would at common law have been denominated an action of trespass or an action on the case, or some other kind of action. There has been no question raised in this court with regard to the sufficiency of the pleadings in the court below, and hence the decision of this court will be made upon the facts of the case, and not upon any technical or arbitrary rules of pleading. The plaintiff Woods did not set forth the facts of his case very fully in his petition, though he did in his reply; and the defendants, Connelly and Hunter, did not set forth the facts of their defenses at all, but simply filed general denials. The case, however, was tried by the court below as though the pleadings were entirely sufficient, and we shall decide the case in the same way. We shall decide the case upon the real facts of the case, as shown by the evidence and the findings of the jury; and, deciding the case in this manner, we think the justice of the peace should be held to be not liable, and the plaintiff in the action before the justice of the peace should be held to be liable. Therefore, as to the justice of the peace, the judgment of the court below will be reversed, and, as to Connelly, it will be affirmed.

(All the justices concurring.)

AULTMAN-TAYLOR Co. v. MCGEORGE and others.

Filed February 7, 1884.

1. It is a general rule that where two or more notes, secured by a single mortgage, fall due at different times, they should be paid out of the mortgage fund in the order of their maturity, unless some agreement or some paramount equity would require a different order of payment.

2. And where two or more notes, secured by a single mortgage, fall due on the same day, and the mortgage fund is not sufficient to pay the entire amount of the notes, the notes should be paid, pro rata, out of the mortgage fund, unless some agreement or paramount equity would require a different mode of payment.

3. And these rules apply, whether the notes are still held by the original mortgagee, or are held by him and others, or entirely by others.

4. Where T., as the agent of A., sold agricultural implements to M., and took several prommissory notes in payment therefor, executed by M. to A., or order, to become due at different times, and also took a chattel mortgage, executed by M. to A., on these agricultural implements to secure the payment of these notes, and, in accordance with a previous agreement and understanding between T. and A., two of these notes were delivered to T., for his services and as a commission for effecting the sale, and the other notes were retained by A., some of which became due before and some of them at the same time as the notes delivered to T., and afterwards T. sold his notes to W., and transferred the same merely by delivery, and no assignment, written or otherwise, was ever made, either of the notes or the mortgage, or any interest in the mortgage, except by a mere delivery of the said two notes, held, that the notes delivered to T. and then sold and delivered to W., and falling due at the same time or subsequently to those retained by A., are not entitled to priority of payment out of the mortgage fund over those retained by A.

Error from Cloud county.

F. W. Sturges, for plaintiff in error.

Theo. Laing, for defendant in error.

VALENTINE, J. On August 2, 1879, Julian McGeorge and William C. Marshal executed eight promissory notes to the Aultman-Taylor Company, or order, for the amounts hereafter stated, to become due on or before the dates hereafter stated, and each drawing interest at the rate of 10 per cent. per annum. The amounts of the notes and the dates when they respectively became due, are as follows: (1) $50, lue December 1, 1879; (2) $100, due November 1, 1880; (3) $83, due December 1, 1880; (4) $34.50, due December 1, 1880; (5) $100, due January 1, 1881; (6) $143.50, due December 1, 1881; (7) $34, due December 1, 1881; (8) $100, due January 1, 1882. These notes were given by McGeorge and Marshall for agricultural implements sold to them by the Aultman-Taylor Company through the agency of Thomas & Co. At the same time that these notes were given, McGeorge and Marshall executed a chattel mortgage to the AultmanTaylor Company on said agricultural implements to secure the payment of the notes. The sale, as before stated, was effected through the agency of Thomas & Co., who acted as the agents of the Aultman

Taylor Company; and as compensation for their services, and as a commission for effecting the sale, Thomas & Co. received the fourth and the seventh of said promissory notes. This was in substantial conformity with a previous contract entered into between the Aultman-Taylor Company and Thomas & Co., under which contract Thomas & Co. were to receive a commission generally of about 10 per cent. on all the sales of agricultural implements made through their agency.

The first two notes were paid when they became due, and the other six notes have not yet been paid. The said two notes received by Thomas & Co. were transferred to them by the Aultman-Taylor Company merely by delivery. Afterwards, and after the said two notes had become due, Thomas & Co. sold the same to James I. Wyer, and transferred the same to him merely by delivery. No written assignment was ever made of either the notes or the mortgage, and no assignment of the mortgage or any interest therein was ever made except merely by the delivery of the notes. Afterwards Wyer, without the knowledge or consent of the Aultman-Taylor Company, took possession of a portion of the mortgaged property, and sold the same to Moses Marshall, receiving therefor $89, which paid the said two notes held by him, and left a surplus in his hands of $3.52. Afterwards the AultmanTaylor Company commenced this action against McGeorge, William C. Marshall, Wyer, and Moses Marshall, for the purpose of recovering a judgment for the amount of the four notes still held by them, and for the purpose of having determined the priority of liens upon the mortgaged property, and of obtaining such other and further relief as would be right and proper in the case. The plaintiff, the Aultman-Taylor Company, obtained a judgment against McGeorge and William C. Marshall for $606, the amount of the four notes, with interest, still held by the plaintiff, and also obtained an order that the remainder of the mortgaged property be sold to satisfy such judgment; and such property was afterwards sold for $68.90. Afterwards. a trial was had between the Aultman-Taylor Company and Wyer, before the court without a jury, and the court, after making certain special findings of fact and of law, rendered a judgment in favor of the Aultman-Taylor Company and against Wyer for the said $3.52, but also rendered a judgment in favor of Wyer and against the Aultman-Taylor Company for costs. The Aultman-Taylor Company now brings the case to this court, and seeks a reversal of this judgment.

We think the judgment of the court below should be reversed. It is a general rule that where two or more notes, secured by a single mortgage, fall due at different times, they should be paid out of the mortgage fund in the order of their maturity, unless some agreement or some paramount equity would require a different order of payment, (Richardson v. McKim, 20 Kan. 350, and cases there cited; 2 Jones, Mortg. pars. 1, 699, and cases there cited;) and where two or more notes

secured by a single mortgage fall due on the same day, and the mortgage fund is not sufficient to pay the entire amount of the notes, the notes should be paid pro rata out of the mortgage fund, unless some agreement or paramount equity would require a different mode of payment; and these rules apply whether the notes are still held by the original mortgagee, or are held by him and others, or entirely by others. In the present case there is nothing to take the case out of the general rules for the order of payment or the mode of payment. No contract was made or understanding had between the parties authorizing the two notes delivered to Thomas & Co. to be paid prior to those retained by the Aultman-Taylor Company; and there is nothing in the case, of an equitable nature or otherwise, requiring that they should be paid prior to the other notes falling due-prior to their maturity. There is nothing in the entire case that gave to Thomas & Co. any equitable rights paramount to those of the Aultman-Taylor Company, and Wyer has simply succeeded to the rights of Thomas & Co. Thomas & Co. themselves transacted all the business at the time these notes were given, and they, as well as the payees and the Aultman-Taylor Company, determined the priorities of their payment. They determined which of the notes should be paid first, and which last; and the transaction was supposed to be one mutually beneficial to both the Aultman-Taylor Company and Thomas & Co., and was in accordance with their previous contract, and was satisfactory at the time; and the priorities of payment should be as they then agreed that they should be. It is true that the notes, as they were originally made, were all negotiable, for they were made payable to the Aultman-Taylor Company, or order; but the two transferred, first to Thomas & Co. and then to Wyer, lost their negotiability, for the reason that they were transferred merely by delivery, and not by indorsement, and were transferred to Wyer after they became due; and, as before stated, the mortgage was never transferred by assignment at all, except, constructively, by the mere delivery of the said two notes. Hence, neither Thomas & Co. nor Wyer ever obtained any equity in the mortgage fund prior to that held by the Aultman-Taylor Company for the payment of notes maturing at the same time or earlier than the two notes held by Thomas & Co. and by Wyer. Many cases might be suggested where the assignee of a note secured by a mortgage, and falling due subsequently to some other note secured by the same mortgage, should be first paid out of the mortgage fund; but this is not one of that class of cases. This case, as before stated, comes within the general rule of payment in such cases.

The judgment of the court below will be reversed, and cause remanded, with the order that judgment be rendered upon the special findings in accordance with this opinion.

(All the justices concurring.)

STATE v. MARTIN.

Filed February 7, 1884.

Appeal from Lyon county.

W. A. Johnston, Atty. Gen., J. W. Feighan, and J. Jay Buck, for the State.

Peyton, Sanders & Peyton, for appellant.

PER CURIAM. A careful examination of the record convinces us that the judgment ought not to be set aside upon the ground that the verdict was not supported by sufficient evidence. It appears from the record that the deceased, Loraine M. Keiger, died May 23, 1882, from strychnine. The theory of the appellant is that Mrs. Keiger, being a comparative stranger in Emporia, in this state, where she died, without a home, money, or relatives, save a daughter, a young unmarried woman, then pregnant with a child, but also without a home or money, and weary of life, voluntarily poisoned herself. On the part of the state, evidence was introduced upon the trial that the appellant obtained a $5,000 policy of insurance on the life of Mrs. Keiger, a short. time before her death, in the Centennial Mutual Life Association; that the policy was payable to her son, E. D. Mosley, (charged as accessory before the fact;) that shortly after the policy was issued, Mrs. Keiger went to live with the defendant, and remained there until her death; that the son, Mosley, had seduced her daughter; that to get Mrs. Keiger out of the way and obtain the money on the policy issued on her life the appellant first administered arsenic to her, but that not causing death, on account of her stomach throwing it off, she gave her the strychnine from which she died. There was sufficient testimony to overthrow the theory of suicide and establish the charge that the appellant was guilty of murdering the deceased by means of strychnine. Twelve jurymen heard the living voices of the witnesses, saw the parties who uttered it, and the trial judge approved their verdict; therefore we have before us not only the verdict of the jury, but also the indorsement of that verdict by the trial judge, and this court cannot decide upon the record that the judge and jury ought to have believed and found the deceased committed suicide by poisoning herself. Even if the court erred, under the authority of Kelsey v. Layne, 28 Kan. 313, in permitting the witness Wasson, for the purpose of impeaching the defendant, to testify that she told him she was 43 years of age, without sufficient foundation having been laid for the introduction of this evidence, it was not such an error, under the circumstances of the case, as would justify a reversal of