principal, is a matter of record. In view of the facts of this case, we are not required to decide whether the release was executed in strict compliance with law. Under the cir cumstances, Harriet A. Gore is estopped from questioning the authority of Charles J. Gore, or from denying that the release is effectual. Charles J. Gore had acted as the agent of his mother in collecting interest and in other matters pertaining to this loan. With a full knowledge of the facts in the case, she instructed him to release the mortgage upon lot 8, if he deemed the lien on lot 9 was sufficient security for the debt. Royse had asked for the release in order that he might use the lot to obtain a further loan of money. She left it entirely to the judgment of her son as to whether the release should be made. Baker loaned his money upon the faith of this release. Harriet A. Gore not only consented that the release should be made for this purpose, but she acquiesced in the action of her agent after he reported that the release had been executed. In a letter written to Royse several months afterwards, she acknowledged that she had released the mortgage. By her own testimony it appears that she expected that a portion of the money obtained upon the Baker mortgage would be used as a payment upon her claim. It is evident that she expected the loan to be made, and trusted Royse to make the promised payment. Her son, upon whose judgment she relied, frankly states that the release was executed upon written and oral authority which he received from his mother. In signing the release, he abbreviated his mother's Christian name, but that is of little consequence, since it appears that a letter of her own, which she introduced in evidence, was signed in the same manner. Under the circumstances, we think she cannot be heard to say that there was no authority for the execution of the release. Baker was entitled to a prior lien upon lot 8, and therefore that part of the judgment of the trial court will be affirmed. What are the rights of G. C. Hixon & Co.? They furnished lumber and material for the improvements that were made upon lot 9. Before the release was executed, they had obtained an equity in the lot, and the agent of Harriet A. Gore had inspected the improvements that had been made under her direction. From some of the testimony in the case, it appears that she was aware of the fact that the claims for the improvements made had not been paid and satisfied. The mechanic's lien attached on March 26, 1889, and at that time lot 8 was of the value of $2,500, almost equal to the amount of the Gore lien. If no third party had intervened, G. C. Hixon & Co. would be entitled to have the securities marshaled, and to demand the sale of lot 8, to satisfy the mortgage lien of Harriet A. Gore, before subjecting lot 9, or any part thereof, to the satisfaction of her mortgage. The doctrine of marshaling securities applies in favor of mechanics' lien claimants as against mortgage creditors. In a recent case it was stated that "the general rule in equity is that a creditor who is secured by a mortgage or mortgages on several pieces of property, who has actual notice of a junior mortgage on only a portion of the property, is bound to exhaust all his security for the satisfaction of his debt; and if he releases any part of his security, or pays the mortgagor the proceeds derived from a sale of any portion thereof after actual notice of the rights of the junior lienholder, he does so at his peril, and must account to the junior lienholder for any surplus realized, or which ought to have been realized, from all of his securities." Burnham v. Bank, 55 Kan. 545, 40 Pac. 912. As Harriet A. Gore released the property knowing that the value of lot 9 had been largely enhanced by reason of the material furnished and the improvements made, she must be held to have made the release at a sacrifice of her own security, and not at a sacrifice of the existing equities of those who had furnished the material and made the improvements. They are entitled to occupy the position they would have held if no release had been made. As they could have compelled Harriet A. Gore to have resorted to the lien upon lot 8, in the first instance, for satisfaction, the amount derived from the sale of that lot should be deducted from the amount of her claim or lien upon lot 9. They will therefore be entitled to the difference between the proceeds of the sale of both lots and the amount of the judgment of Harriet A. Gore. To this extent the judgment of the district court will be modified. All the justices concurring. (56 Kan. 744) GODDARD v. HARBOUR et al. (Supreme Court of Kansas. May 9, 1896.) RETURN OF WRIT-CONCLUSIVENESS. The return of a sheriff that he has served a summons on the defendants personally, being a matter as to the truth or falsity of which he has personal knowledge, is conclusive between the parties, and cannot be questioned in an action afterwards brought to enjoin the enforcement of a judgment based on such service on the ground that the court was without jurisdiction of the person of the defendants. (Syllabus by the Court.) Error from district court, Chase county; Lucien Earle, Judge. This action was brought by John J. Harbour and Frances J. Harbour against E. A. Kinne, sheriff of Chase county, J. H. Goddard, Erastus Replogle, and Herbert E. Ball, to enjoin the enforcement of a judgment rendered in favor of Goddard against the plaintiffs for the sum of $2,209.70, and foreclosing a mortgage on their homestead, on the ground that the judgment was rendered without jurisdiction. It appeared on the trial that a summons in due form was issued and delivered to the sheriff of Chase county, where the parties resided, and that his return was duly indorsed thereon in the following words: "Received this writ this 10th day of Dec., A. D. 1888, at 10 o'clock a. m. Dec. 12, A. D. 1888, served the same by delivering a copy thereof, with the indorsements thereon duly certified, to the within-named John J. Harbour, Frances J. Harbour, and Erastus Replogle, personally. E. A. Kinne, Sheriff." It was shown without dispute that personal service was duly made on John J. Harbour by the undersheriff, but as to the service on Frances J. Harbour the evidence was somewhat conflicting. All the witnesses agree that a copy of the summons was left at her place of residence. On the part of the plaintiff the evidence tended to show that it was inclosed in a sealed envelope, addressed to J. J. Harbour; that it was not opened by Mrs. Harbour, and that she never saw the copy of the summons, and had no knowledge of the commencement of the suit until after judgment had been rendered. A. H. Brown, who was the mail carrier to Wonsevu, testified that he was a deputy sheriff, and that he served the summons on Mrs. Harbour by delivering it to her personally. On this testimony the trial court perpetually enjoined the enforcement of the judgment. J. H. Goddard brings error. Reversed. Wheeler & Switzer, for plaintiff in error. Madden & Bros, for defendants in error. A ALLEN, J. (after stating the facts). motion is made to dismiss this proceeding because the sheriff and Herbert E. Ball, who were parties in the court below, are not made parties here. While they were proper parties in the district court, the sheriff had no interest in the litigation, but was made a defendant merely because he held an order of sale issued on the judgment, which he was about to execute; and Ball is shown by the pleadings to have had no interest in the litigation, being merely the trustee named in the original mortgage. They are not necessary parties in this court. The record presents squarely the question whether a sheriff's return as to matters concerning the truth or falsity of which he must know is conclusive on the parties to the suit. The sheriff in this case returned that he had served the summons on the defendants personally. He knew whether he had or had not done so. It is true that in this case the evidence of the sheriff, undersheriff, and Brown all shows that no service was made by the sheriff himself, but that a copy was delivered to John J. Harbour by the undersheriff, and whatever service was made on Frances J. Harbour was by Brown concerning whose appointment as deputy prior to that time the evidence is conflicting. The sheriff has the right, however, to act through deputies, and is responsible for their doings to the same extent as for his While it would be better, perhaps, in all such cases to have the return show that own. the sheriff executed the process by the deputy, thus placing on record the exact truth, a return signed by the sheriff in his own name alone is undoubtedly sufficient where the service is actually made by a deputy. But the real question in the case is whether there may be any contradiction of the retur outside of the record in the case itself. In England it has been the established law from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false retura is by an action against the sheriff on his official bond, in which case alone the truth or falsity of the return may be inquired into. 19 Vin. Abr. 210; 6 Com. Dig. 242. In this country there is much diversity of judicial opinion on the subject, but the decided weight of authority seems to support the position that as to matters falling within the personal knowledge of the sheriff his return is conclusive as between the parties to the record unless the falsity of the return is disclosed by some other portion of the record of the case. Hunter v. Stoneburner, 92 Ill. 75; Cully v. Shirk (Ind.) 30 N. E. 882; Stewart v. Griswold, 134 Mass. 391; Green v. Kindy, 43 Mich. 279, 5 N. W. 297; Tullis v. Brawley, 3 Minn. 277 (Gil. 191); Stewart v. Stringer, 41 Mo. 40; Bolles v. Bowen, 45 N. H. 124; Barrows v. Rubber Co., 13 R. I. 48; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908; Bank v. Downers, 29 Vt. 332; Stewart v. Stewart, 27 W. Va. 167; 22 Am. & Eng. Enc. Law, 193. These cases hold that the return of the officer is conclusive on the question of jurisdiction. It is not necessary now to inquire how far the court may go in setting aside a service when challenged in the suit in which it is made before judgment. In this case the only ground on which the judgment of the trial court can be maintained is that the court was without jurisdiction to render the judgment in the prior action. The following cases seem to support the doctrine that a want of jurisdiction may be shown at any time, and that the return of the sheriff is only prima facie evidence of the facts stated. Dunklin v. Wilson, 64 Ala. 162; Watson v. Watson, 6 Conn. 334; Quarles v. Hiern, 70 Miss. 891, 14 South. 23; Pollard v. Wegener, 13 Wis 569. The courts of Georgia and New York, while recognizing the existence of the general rule, hold that under the practice prevailing in those states the officer's return is not conclusive. Dozier v. Lamb, 59 Ga. 461; Ferguson v. Crawford, 70 N. Y. 253. It was said in the opinion in the last mentioned case: "The learned annotators of Smith's Leading Cases, Hare and Wallace (1 Smith, Lead. Cas. 842), sum the matter up by saying: 'Whatever the rule may be where the record is silent, it would seem clearly and conclusively established by a weight of authority too great. for opposition, unless on the ground of local and peculiar law, that no one can contradict that which the record actually avers, and that a recital of notice or appearance, or a re turn of service by the sheriff in the record of a domestic court of general jurisdiction, is absolutely conclusive, and cannot be disproved by extrinsic evidence.' It is quite remarkable, however, that notwithstanding the formidable array of authority in its favor, the courts of this state have never sustained this doctrine by any adjudication, but, on the contrary, the great weight of judicial opinion, and the views of some of our most distinguished jurists, are directly opposed to it." Counsel for defendants in error cite Bond v. Wilson, 8 Kan. 228; Starkweather v. Morgan, 15 Kan. 274; Chambers v. Manufactory, 16 Kan. 270; McNeill v. Edie, 24 Kan. 108; and Jones v. Marshall (Kan. App.) 43 Pac. 840,-as supporting the proposition that a sheriff's return may be disputed, even in regard to personal service. In the cases heretofore decided by this court the right to controvert the sheriff's return has been expressly limited to matters not coming within his personal knowledge, and the opinions in all the cases, including also Mastin v. Gray, 19 Kan. 458, recognize this distinction. We do not approve the rule declared in the opinion in the case of Jones v. Marshall that a sheriff's return may be controverted as to matters falling within his personal knowledge. Much can be said by way of argument for and against the rule which makes the sheriff's return conclusive. We deem it the safer course to yield our assent to a rule which has met with the approbation of so large a majority of the courts, and incline to the opinion that the weight of reason rests with that of authority. This case fairly illustrates the dangers and difficulties arising if the opposite rule is followed. Where there is a return of personal service, ordinarily the person served will be the only witness who can flatly contradict it, unless the officer himself does so. The service on John J. Harbour was entirely regular, and a summons was left at the residence of Frances J. Harbour, if not in fact handed to her in person, as testified by Brown. To set aside and annul a judgment duly entered on such slight proof of what can hardly be termed more than a technical defect in the service, is certainly establishing a bad precedent, and, in our view, a much more dangerous one than the rigid rule which we deem best to follow in this case. Under all the authorities, the proof required to controvert a sheriff's return must be clear and convincing. But, if we were to permit an inquiry into its truth, we should be met in every case brought to this court by the other rule that the decision of the trial court on a disputed question of fact is final. We should then rest under the necessity of affirming judgments like the one now under consideration, or of weighing conflicting testimony. The hardships which may possibly result from the rule adopted are not so great nor so probable as might at first appear, when it is considered that the sheriff acts under V.44P.no.11-67 oath, and is responsible on his official bond. If he makes a mistake, the court to which the process is returned may permit him to amend. The proceedings of our district courts are matters of general notoriety. Judgments are not entered here, as in New York, by the clerk in vacation, but must always be taken in open court. In giving conclusiveness to a sheriff's return as to those matters coming within his personal knowledge, we do no more than give it the same credit as the parts of the record written by the clerk, any of which may be corrected under the direction of the court when application is duly made, but cannot be contradicted by parol testimony. The judgment is reversed. All the justices concurring. (112 Cal. 674) (Cr. No. 123.) May 22, 1896.) PEOPLE v. CAVANAUGH. The "Purity of Elections Act" (St. 1893, p. 12), entitled "An act to promote the purity of elections by regulating the conduct thereof, and to support the privilege of free suffrage by prohibiting certain acts and practices in relation thereto, and providing for the punishment thereof," does not apply to primary elections, which are merely creations of political parties and associations, and may be held at such times and places, and on such terms and conditions, as may seem fit. Department 1. Appeal from superior court, Sacramento county; Lucien Shaw, Judge. B. W. Cavanaugh was indicted for a violation of the "Purity of Elections Act." A general demurrer to the indictment was sustained, and the state appeals. Affirmed. Atty. Gen. Fitzgerald, for the People. Johnson & Johnson and C. T. Jones, for respondent. St. GAROUTTE, J. The defendant was charged by indictment with the commission of a felony. A general demurrer was sustained to the indictment, and the people appealed. The prosecution is based upon an alleged violation of the "Purity of Elections Act." 1893, p. 12. The charging portion of the indictment alleges that defendant "did then and there willfully, unlawfully, feloniously, and knowingly give to one George Vice a certain sum of money, to wit, the sum of one hundred dollars, in lawful money of the United States of America, to induce said George` Vice to procure, at a certain Republican primary election which was duly and regularly called by the Republican county central committee of the Republican party at Sacramento county, in the state of California, and was to be and was duly and regularly held in Sacramento county, state of California, on the 25th day of August, 1894, the election of certain persons, to wit [naming them] as delegates to a certain Republican county conven tion to be held in Sacramento city, state of California, on Tuesday, the 28th day of August, 1894, which said convention was duly and regularly called for the purpose of nominating candidates for the various legislative, county, district, township, and city offices to be voted for at the next general state election." It will be observed that defendant was charged with attempting, by the use of money, to influence the election of certain delegates at a Republican primary election. It is now claimed that the "Purity of Elections Act" does not apply to primary elections, and this court is in accord with such contention. A primary election is purely a creation of political parties and associations. These parties and associations may hold such elections, or they may not. It is not compulsory upon them, and, if they do hold such elections, they may hold them at such hours, at such places, and upon such terms and conditions, as to them may seem fit. While there is a law upon the statute books providing the machinery for holding primary elections, it is not in any sense mandatory upon political parties to invoke its provisions, but, upon the contrary, a resort to its provisions is a mere matter of choice. It follows from the foregoing that no importance can be attached to the words found in the indictment stating that this primary election was "duly and regularly called"; for these words are not equivalent to the statement, and do not even convey the idea, that it was held under the provisions of the Political Code, inasmuch as such election could have been "duly and regularly called" in entire disregard of the provisions of that Code, for, as we have seen, political parties are a law unto themselves, as to the conduct of primary elections. Another question presents itself, which cuts deeper than the one to which we have already adverted. The attorney general has been able to place his finger upon but a single provision of this law which looks towards the support of this indictment, and that provision is subdivision 3 of section 19. Among other things, section 19 provides: "It shall be unlawful for any person, directly or indirectly, by himself or through any other person: (1) To pay, lend or contribute, or offer or promise to pay, lend or contribute, any money or other valuable consideration to or for any voter, or to or for any other person, to induce such voter to vote or refrain from voting at any election * * (2) To give, offer or promise any office, place or employment, or to promise to procure or endeavor to procure any office, place or employment, to or for any voter, or to or for any other person, in order to induce such voter to vote or refrain from voting at any election. * (3) To make any gift, loan, promise, offer, procurement or agreement, as aforesaid. to, for or with any person in order to induce such person to procure, or endeavor to procure, the election of any person or the vote of any voter at any election." The word "election," as here used in subdivision 3 and the other subdivisions of section 19, does not refer to primary elections. The "Purity of Elections Law" is entitled "An act to promote the purity of elections by regulating the conduct thereof, and to support the privilege of free suffrage by prohibiting certain acts and practices in relation thereto, and providing for the punishment thereof." In the body of this act may be found the word "election" a hundred times or more, and it may be said in every instance that it is plainly apparent that the word is not used as applying to primary elections. The words "primary election" are found in the act, in subdivision 8 of section 19, and in section 25, but in neither of these places in the law does this indict. ment find any support. For the foregoing reasons the judgment is affirmed. We concur: VANCLIEF, J.; HARRISON,J. (5 Cal. Unrep. 356) LOOSE v. STANFORD. (S. F. 11)1 (Supreme Court of California. May 8, 1896.) APPEAL-REVIEW-EVIDENCE-CONTRACTS. Plaintiff, while his mare was on the ranch of defendant's decedent, entered into negotiations for its sale to decedent, through an agent authorized to sell only the mare. Subse quently, after the mare had given birth to a colt, the agent testified that he sold both to decedent, the communications between the parties being by telegraph. Plaintiff permitted decedent to retain possession of the colt for 12 years, during the first three of which the colt developed as a wonderful trotter, and, during the time, asked decedent to give him an additional sum as a gratuity, on account of his good luck in the purchase. Held, that a finding that plaintiff sold both the mare and colt to decedent would not be disturbed. Commissioners' decision. Department L Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge. Action by W. A. R. Loose against Leland Stanford, which, on the death of defendant, was continued against Jane L. Stanford, his executrix. There was a judgment for defendant, and plaintiff appeals. Affirmed. Reddy, Campbell & Metson, for appellant. W. H. L. Barnes and Frank Shay, for respondent. SEARLS, C. This action was brought December 2, 1891, against the testator, Leland Stanford, to recover possession of a trotting mare commonly known as "Hinda Rose," or for the recovery of $50,000, the value of said Hinda Rose, in case a delivery of said mare cannot be had, and $25,000 damages, etc. Defendant answered, denying the ownership of plaintiff; averred that about February, 1880, he purchased said Hinda Rose from the plaintiff, and ever since has been, and still is, the owner of, and in possession of, said mare, etc. Defendant further pleads 1 Rehearing denied. the bar of plaintiff's cause of action under subdivision 3 of section 338 of the Code of Civil Procedure. The defendant departed this life pendente lite, and Jane L. Stanford, the executrix of his last will, was substituted as defendant. The claim of plaintiff was presented to the executrix for allowance, and was by her rejected, which matters were set up by supplemental complaint. The cause was tried by the court without the intervention of a jury, written findings filed, in favor of defendant, upon the issues of ownership and the statute of limitations, upon which findings judgment went for defendant, from which judgment and from an order denying his motion for a new trial, plaintiff appeals. The entire question in the case turns upon the sufficiency of the evidence to sustain the findings of the court. Counsel for appellant contend that there is practically no dispute as to the facts, and that the issues involved are of law. They then proceed to demonstrate that, upon the facts as assumed by them, Leland Stanford was the bailee of a mare known as "Beautiful Bells"; that, while in his possession, this mare gave birth to the colt Hinda Rose; that plaintiff sold the mare, but not the colt, to Stanford; that as a result the animal Hinda Rose remained in possession of Stanford, as bailee, for some 12 years, when plaintiff demanded possession of her, which was refused; that this refusal operated as a conversion; and that, as the action was brought within three years next thereafter, the cause of action is not barred by the statute of limitations, and hence that plaintiff is entitled to recover. Assuming the premises of appellant's counsel to be correct, we agree fully with their conclusion. We think, however, that, while there is no substantial conflict in the evidence as to the main probative facts, the inferences to be deduced therefrom-the ultimate facts upon which the case turns-are open to grave doubt; and while, upon the case as presented by the record, we are not impelled with mathematical certainty to the result reached by the court below, there are yet cogent reasons leading to such result. The testimony is too lengthy for recapitulation. The following summary will convey some idea of its trend. The plaintiff lived at Bodie, Mono county, and was the owner of Beautiful Bells, a brood mare. Defendant, Leland Stanford, was the owner of Palo Alto ranch, upon which he was conducting the business of stock-breeding, and rearing trotting and running horses. In March, 1879, plaintiff caused his mare Beautiful Bells to be sent to Stanford's stock farm, where she was mated with Electioneer, a stallion owned and kept by Stanford. The mare remained on the ranch until the following spring, when, on February 27th, she gave birth to a coit, the subject of the litigation in this cause. Early in the winter, Stanford had seen and admired Beautiful Bells, and had authorized Harris F. Covey, his superintendent, to purchase her, if he could do so at a reasonable figure. F. W. Covey, who was at times secretary, and at others assistant superintendent of the stock farm, held a power of attorney from plaintiff authorizing him to sell Beautiful Bells to Stanford for $2,000. This was more than Stanford was willing to give, and the negotiations were broken off until the month of March or 1st of April, 1880 (after the birth of the colt), when plaintiff telegraphed accepting an offer on behalf of Stanford to pay $1,200, and remit a bill of $200 and upward, ranch fees, etc., upon the mare. The money was paid to plaintiff, and the mare and colt sold to Stanford, or, as the witness F. W. Covey says: "Under that power of attorney, I sold Beautiful Bells and her filly, and made the transfers on the books of the Palo Alto stock farm at that date. The books show placed to the credit of Leland Stanford." The negotiations for the sale were both before and after the birth of the filly, of which last fact plaintiff was advised; and Stanford understood, and has always claimed, that he purchased both the dam and colt. Thus matters rested for, say, 11 years, during which the filly, Hinda Rose, was trained as a trotter, making phenomenal speed, and in her yearling, two and three year old, form, beating the then world's record for trotters. At three years of age she broke down, and became useless as a trotter, whereupon she was placed in stock as a breeder, but has never produced any colts. In the month of November, 1891, plaintiff called at the Palo Alto stock farm, was introduced to Senator Stanford, and stated to the latter, according to the testimony of Marvin, one of the witnesses, "that as she had turned to be such a valuable brood mare, and as he had bought her from him, he thought he could afford to give him something. He stated, 'Senator, I have no claim on you whatever, but I think you could afford to give me something.' Several other witnesses who were present at the same conversation stated, in effect, that plaintiff claimed that, as Beautiful Bells had done so well, he thought Stanford would be willing to do something for him, etc. Hinda Rose was not mentioned in this conversation. Plaintiff was a witness in his own behalf, and only stated that he never sold, or authorized the sale of, Hinda Rose. The court below may well have reasoned something in this wise: (1) Plaintiff must have known of the renown attained by Hinda Rose, or he would not have been so deeply impressed with the success of Beautiful Bells, whose only claim to greatness, so far as appears, consisted in her being the dam of the former. (2) Knowing of the success of the colt, it is preposterous to suppose that he considered himself its owner, and yet for 11 years never mentioned the fact, or asserted his claim of ownership. (3) The claim that Beautiful |