W. R. Cowley, for appellant. Charles Stevens, Co. Atty., for the State.

SCHOONOVER, J. The appellant was charged with embezzlement under the latter part of section 95, c. 100, Gen. St. 1897. The gist of the crime as charged is the refusal to deliver on demand, and the first question presented is, was there a demand? The defendant, W. H. Pierce, at the time he accepted the agency, lived in Columbus, Cherokee county Kan. At the time of his arrest he lived in Cherokee, Crawford county, Kan. The prosecuting witness, Reuben Gaston, lived in Guthrie, Okl. He could not read or write. At his dictation, R. S. Elliott, of Guthrie, wrote a letter to W. H. Pierce, and gave it to Reuben Gaston. The testimony of R. S. Elliott is as follows: "Q. Mr. Elliott, I will ask you if you wrote a letter at the instance of Mr. Gaston? A. Yes, sir. Q. Well, you may state what you wrote in that letter to Mr. Pierce. A. I said to Mr. Pierce to send me that is, I have reference to Gaston-to 'send me what

money you owe me, as I am needing it badly, as my wife is sick, and I cannot come at present,' was the substance of it. Q. What name did you sign to it? A. Inside? Reu ben Gaston. Q. Do you remember about when you wrote that letter? A. Some time near the holidays. I can't remember the date. Q. Do you know what became of it after you wrote it? A. I gave it to Mr. Gaston." There is no evidence that this letter was ever directed, stamped, or mailed. The appellee contends that Pierce admits he received this letter, and calls our attention to the testimony of Reuben Gaston: "Q. Do you know where the last letter is that was written for you by Mr. Elliott to Mr. Pierce? A. Mr. Pierce told me he had it." But there is no evidence that this letter containing a demand was the last letter written for Mr. Gaston by Mr. Elliott to Mr. Pierce. Our attention is also called to the testimony of Mr. Pierce: "Q. In the meantime did you receive any letters that purported to come from Mr. Gaston to you? A. Yes, sir. Q. Do you have those letters? A. Yes, sir. Q. Where are they? Is this Exhibit H, identified by the state, the letter that you received, purporting to come from Mr. Gaston? A. Yes, sir." Exhibit H, identified by the state, cannot be found in the record, and there is no letter or exhibit purporting to have been written by Mr. Elliott for Mr. Gaston to Mr. Pierce making a demand. This is all the evidence contained in the record to which our attention has been called, or that we have been able to discover, tending to prove a demand. There is no conflicting testimony upon this point. The evidence contained in the record and set forth in this opinion is not sufficient to establish a demand. The gist of the crime is the refusal to deliver upon demand, and a demand must be proved before any conviction can be had. The case will be reversed and remanded. All the judges concurring.

HALE v. SWEET.

(7 Kan. App. 409)

(Court of Appeals of Kansas, Southern Department, E. D. May 19, 1898.)

APPEAL JURISDICTION-STATEMENT OF CASE-TAX DEED-DESCRIPTION.

1. A statement in a case-made that "the amount involved herein, in this suit, and the matter in controversy, exceeds the sum or value of one thousand dollars, exclusive of interest and costs," is sufficient to confer jurisdiction.

2. "A tax deed is void upon its face if it fails to state, by description, acres, or otherwise, the property bid for at the tax sale, and the granting clause of the deed fails to cure or supply such defect. In such a case the description of the land purporting to have been bid off at the tax sale, and conveyed in a tax deed, is not sufficiently specific or definite, and therefore is not designated with 'ordinary and reasonable certainty.'" McDonough v. Merten, 35 Pac. 1117, 53 Kan. 120.

(Syllabus by the Court.)

Error from district court, Crawford county; J. S. West, Judge.

Ejectment by Charles P. Hale against C. B. Sweet. Judgment for defendant, and Reversed. plaintiff brings error.

Morris Cliggit and Cogswell & Gregg, for plaintiff in error. W. R. Cowley, for defendant in error.

SCHOONOVER, J. The right of this court to review the judgment of the court below is challenged for the reason that the amount in controversy, exclusive of costs, does not exceed $100. The record contains the following statement: "The amount involved herein, in this suit, and the matter in controversy, exceeds the sum or value of one thousand dollars, exclusive of interest and costs." This statement is sufficient to confer jurisdiction. In the case of Loomis v. Bass, 48 Kan. 26, our supreme court says: "Under paragraph 4642, Gen. St. 1889, the record brought to this court must affirmatively show that the court has jurisdiction, or the case will be dismissed. Such jurisdiction can be shown by making the record show that the amount or value of the controversy exceeds $100, or by incorporating therein a certificate of the district judge showing that the case is within the exception of such statute."

This is an action in the nature of ejectment. The plaintiff claims title to two certain lots in Pittsburg, Crawford county, Kan. The defendant's claim of title to the lots is based upon two tax deeds, the validity of which is the principal question in this case. Upon the trial the plaintiff in error (plaintiff below) objected to the introduction of the deeds, for the reason that they were incompetent, irrelevant, and immaterial; that the deeds were void on their face, and insufficient to convey title. The recitals in the deeds are identical in form, except as to the name of the purchaser, and the amount of the taxes. The recital of the sale, and the granting clause, are as follows: "Whereas,

Karst, of the

at the place aforesaid, Mrs. K. county of, and state of —, having offered to pay the sum of two dollars and twenty-six cents, being the whole amount of taxes. interest, and costs then due and remaining unpaid upon said property for the year 1887, which was the least quantity bid for, and payment of said sum having been by her made to the treasurer, the said property was stricken off to her at that price; and whereas, the said Mrs. K. Karst did on the 20th day of July, 1891, duly assign the certificate of the sale of the property as aforesaid, and all her rights, title, and interest to the said property, to J. D. Brailey; and whereas, the subsequent taxes for the year 1888, amounting to $11.64, and of the year 1889, amounting to the sum of $17.55, and for the year 1890, amounting to $22.14, amounting to the sum of fifty-three dollars and fifty-nine cents, have been paid by the purchaser as provided by law; and whereas, more than three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law: Now, therefore, I, J. C. Gove, county clerk of the county aforesaid, for and in consideration of the sum of seventyone dollars and fifteen cents, taxes, costs, and interest due on said land for the years 1887, 1888, 1889, and 1890, to the treasurer, paid as aforesaid, and by virtue of the statute in such cases made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said J. D. Brailey, his heirs and assigns, the real property last herein before described, to have and to hold unto him, the said J. D. Brailey, his heirs and assigns, forever, subject, however, to all rights of redemption provided by law." It will be observed that there is no description of the property, or any property, bid for at the sale, and there is no description in the granting clause of the property sold, or attempted to be conveyed. In the case of McDonough v. Merten, 53 Kan. 124, 35 Pac. 1118, Chief Justice Horton, in considering a similar deed, says: "The legislature intended that at least two descriptions should be included in every tax deed: First, a description of the property assessed, taxed, and offered for sale; and, following that, a second description, showing the least quantity bid for. It was the intention of the lawmakers that the granting clause of the deed should refer to and convey the property actually bid for at the sale. The property actually bid for being omitted, the granting clause refers to nothing; at least, it is vague and uncertain." Referring to this case, and applying the rules there stated to the deed under consideration, the failure to include a description of the property, showing the least quantity bid for, is a fatal omission, and the tax deed is void. The judgment of the district court must be reversed, and the cause remanded, with direction to the court below to render a judgment

2. A document purporting to be a motion for new trial was attached to a bill of exceptions, but not marked as an exhibit, and no reference was made to it in the bill. The judge's certificate recited that a motion for new trial was overruled, but did not identify the motion. Held, that the motion was not properly a part of the bill.

3. Omissions in a bill of exceptions cannot be supplied by affidavits.

4. Where an order overruling a motion for a new trial was not excepted to, the supreme court cannot review the order, or any errors which should have been presented by motion for new trial.

5. Though the court entering judgment possesses jurisdiction over the parties and subject-matter, the judgment may be impeached in another state for fraud in its procurement.

6. A finding of a court, respecting the fraudulent procurement of a judgment, not sustained by the evidence, is ground for a motion for new trial.

Error to district court, Weston county; Joseph L. Stotts, Judge.

Action by the Bank of Chadron against Martin C. Anderson. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Albert W. Crites, for plaintiff in error. E. E. Lonabaugh, for defendant in error.

POTTER, C. J. A motion is made to dismiss this cause on the ground that the motion for new trial, the order overruling the same, and the exceptions reserved thereto are not embraced in the bill of exceptions, and that the record therefore presents no reviewable error. The motion and the entire cause were heard together. In opposition to the motion to dismiss, it is suggested that the motion for new trial was attached to the bill of exceptions at the time the same was presented, allowed, and signed, but by inadvertence it was not marked as an exhibit; and an affidavit of counsel for plaintiff in error to that effect is filed. The showing attempted to be made by the affidavit is that the bill, with the motion attached, is now in the same condition as when presented and allowed. It is further insisted that, based upon the findings alone, the judgment is erroneous, and should have been rendered in favor of plaintiff in error, and, as this appears without reference to the bill, the motion should be denied. Between the covers of that which is indorsed

as "Bill of Exceptions," the first four pages embrace what is entitled "Motion for New Trial." The following page contains the title of the case, the heading "Bill of Exceptions," and the caption of the bill; showing clearly enough that it is the beginning of the bill. The caption does not refer to any motion for a new trial; nor is such a motion elsewhere mentioned, until we come to the certificate of the judge. That certificate states, by way of recital, that a motion for new trial was overruled, but does not identify any particular motion; nor does it appear, by any statement in the certificate, or elsewhere in the bill, that an exception was reserved to the overruling of the motion. So that, even were we to consider that the motion is incorporated in the bill, we could not overlook the absence of an exception to the ruling of the court denying the same. Where the bill is unintelligible, confused, or conflicting, it will be interpreted against the appellant, and in support of the judgment, as the exceptant is responsible for all deficiencies therein. 3 Enc. Pl. & Prac. 509, and cases cited. Counsel for plaintiff in error seems to regard the rule of this court requiring the motion, the overruling thereof, and exception thereto, to appear in the bill, as additional to any statutory regulation, whereas the rule merely emphasizes that which follows from the statute. The motion is not made a part of the record by statute, although the pleadings are; hence the necessity for preservation by bill of exceptions, to give it a place in the record. We are unable to say, after a careful examination of the bill and the certificate of the judge, that it was intended to identify the motion itself as a part of the bill. It was said by this court in Van Horn v. State, 40 Pac. 964, that "it would be a loose and dangerous practice to supply omissions in the bill by affidavits of the counsel or others, and the statute does not permit it." As has been already indicated, the deficiency in the bill goes beyond the question whether the motion was and is in the bill. There is no showing,-either in the bill or in the record,-anywhere, that an exception was reserved to the overruling of the motion; and notwithstanding that, if error is disclosed by the record, independently of the bill of exceptions, the proceedings should not be dismissed, this court cannot review or consider any alleged errors which should have been presented to the trial court by motion for new trial. The exception to the ruling of the court denying the motion must appear in the bill, and we could not resort to any other record to supply it; and the reference above made to the failure of the entire record to show such an exception is mentioned merely by way of emphasis,--to show the more clearly, if possible, that, however much we might be inclined to favor the bill by every reasonable intendment, that would not permit us to supply an omis

sion of such an essential requirement as an exception to a ruling which is assigned as

error.

It is, however, seriously urged that upon the findings themselves the judgment cannot be sustained, and should be reversed. That matter we will now consider. The action was brought by the Bank of Chadron against Anderson upon a judgment obtained in the county court of Dawes county, in the state of Nebraska. The defense interposed was, in substance and effect, that the judgment had been procured through fraud, and that the notes upon which the judgment was rendered were obtained from Anderson through fraud, and were void in the hands of the original holders, and the bank as well, who held them as collateral security; that they had been adjudged void as to original holders by a decree of the district court of Nebraska, sitting in Dawes county, and the bank enjoined from collecting them, except as to such interest as it had acquired therein prior to the commencement of the suit in which the decree was entered. It was also charged that the bank had not acquired any interest in the notes. The principal facts are stated at some length in the opinion in Bank v. Anderson, 48 Pac. 197, when the case was before this court upon error from an order vacating a former judgment. The facts are practically the same in the case at bar, and we shall not attempt a restatement of them. Summarized, the findings of the trial court are: First, that the county court of Dawes county, Neb., had jurisdiction over the person of the defendant, and of the subject-matter of the controversy; second, that the judgment sued on was rendered for $161 in excess of the amount of notes and interest, and that such excess was fraudulently caused to be added to the judgment by plaintiff's counsel in that action, and, generally, that the judgment was procured by fraud on the part of the plaintiff and its counsel; third, that the notes were not purchased by plaintiff in good faith, or for a valuable consideration, and without notice of the defense of Anderson thereto; fourth, that the notes were not indorsed by the payees until after plaintiff had been fully advised by Anderson that they had been procured by fraud and were fraudulent, and that he had a valid defense thereto; and, fifth, that plaintiff had not at any time any legal or valid interest in, or title to, the notes, as against the maker thereof, and was not, and is not, entitled to recover any amount whatever from the defendant Anderson upon the notes, or the judgment of the county court, nor under the terms of the decree rendered by the district court of said Dawes county, Neb. The point insisted on is that, as the court found the county court to have possessed jurisdiction over the person of defendant and the subjectinatter of the action, none of the other facts found are sufficient to impeach the judg

ment rendered by that court, and sued upon in the present action. We held when the case was here before that the judgment could be impeached for fraud in its procurement. That question was fully discussed in the opinion then filed, and we adhere to the views therein expressed. The trial court found that the judgment was procured by fraud, and, having so concluded, found from the evidence that the notes themselves were fraudulently obtained, and that the plaintiff was not an innocent holder thereof, for value, without notice. If the judgment was fraudulently obtained, then every defense which the maker of the notes had as against the bank might properly be shown upon the trial. We cannot consider whether the finding of the court respecting the fraudulent procurement of the judgment is sustained by the evidence or not, for the reason that, if not, it was a ground for a motion for new trial, and what the motion was, and whether the ruling denying the same was excepted to, does not appear. We are therefore unable to assent to the proposition that the judgment is improper, as based upon the findings. If the findings are correct, and, for the reasons already stated, we must assume them to be so,-the appropriate judgment was rendered.

What has been said necessarily disposes of the case. Although the correctness of the findings are not sufficiently challenged in this court to authorize their review, we are satisfied, from an examination of the evidence, that no injustice has been done. The judgment must be affirmed. Affirmed.

CORN and KNIGHT, JJ., concur.

(7 Wyo. 457)

OWENS, Sheriff. v. FRANK. (Supreme Court of Wyoming. June 1, 1898.) PRIVILEGED COMMUNICATIONS-APPEAL-PRESUMP

TIONS.

1. Statements made in confidence to a fellow member of the Masonic order are not privileged communications, protected from disclosure by a witness.

2. Where evidence is erroneously rejected on the sole ground of incompetency, it is presumed to have been material, even though the record does not disclose the substantial nature of the conversation.

Error to district court, Weston county; Joseph L. Stotts, Judge.

Action by Meyer Frank against John Owens, as sheriff of Weston county. The judgment was for plaintiff, and defendant brought error. Reversed.

John R. Wilson, for plaintiff in error. R. H. Vosburgh, for defendant in error.

POTTER, C. J. This was an action to recover possession of certain specific personal property, which the sheriff held under attachment sued out at the instance of certain creditors of one Robert S. Douglas, who had

Aft

formerly been engaged in the mercantile business. Douglas had sold out his entire stock (including the attached property), fixtures, and accounts to the defendant in error; and thereafter the goods were attached as the property of Douglas, the sale being assailed, on the trial, as fraudulent and void. and as having been made to protect the debtor vendor. The cause was tried to the court, and judgment was rendered for the defendant in error, the plaintiff below, the findings being that he was the owner and entitled to the immediate possession of the property. One assignment of error only is insisted on, viz. that the trial court erred in ruling that a certain witness produced by the plaintiff in error was not obliged to relate a conversation which had occurred between the witness and defendant in error in reference to the sale by Douglas to him, the stock sold, and the financial condition of Douglas. er admitting that he had had a conversation of that character at about the time of the sale, the witness answered that he did not feel at liberty to relate it, for the reason that he received the communication in confidence as a Mason. The court asked him if the conversation was confidential, if it had been given and received in confidence, and if relating it would violate his obligation as a Mason, all of which questions were answered in the affirmative; and thereupon it was ruled that the witness would not be obliged to testify respecting it. Upon request of counsel who had offered the witness, the defendant in error, in open court, refused to release witness from his obligation not to divulge what had been said in the course of the conversation. The ruling of the court was excepted to. The error assigned involves the question whether a witness may refuse to answer a material question in relation to a material conversation on the ground that, having been given and received as a Mason, it is a privileged communication. The question at issue on the trial was whether, as against existing creditors of Douglas, his sale to Frank was fraudulent or not. The witness testified that in the conversation the financial condition of Douglas was discussed, and that he thought the matter of the sale was mentioned, although he professed some lack of recollection as to the matters which entered into the conversation. Counsel for defendant in error does not discuss the question as to whether the conversation was privileged or not, nor does he cite any authority in support of the ruling of the court; but it is contended, as there was no offer of proof, or statement of what fact the party producing him expected to prove by the witness, the error, if any, will not be regarded by this court, nor the conversation, whatever it may have been, assumed to have been material.

It is perfectly clear that at common law the conversation would not have been priv ileged. 1 Greenl. Ev. (15th Ed.) §§ 236-248: