in 1881; Laws 1881, c. 126, § 2;) second, because the said Rohl had agreed, for a sufficient consideration, that he would not institute any such proceedings in error. But the fact that the said Rohl had no right to institute any such proceedings in error will not render the aforesaid bond void.

The plaintiff had no right to ignore the proceedings in error. It was necessary for the plaintiff to appear in the supreme court and defend as to such proceedings; and in the mean time it would have been highly improper for the plaintiff to have had an execution issued to enforce said judgment. We think there was sufficient consideration for the bond sued on, and the bond is not void. Therefore the judgment of the court below will be reversed, and cause remanded for further proceedings.

(All the judges concurring.)

(32 Kan. 641)

BURTON and others v. BAUM.

Filed November 28, 1884.

FRAUDULENT CONVEYANCE-PURCHASE BY PARTNER FROM FIRM.

One partner may acquire title to partnership property by purchase from the copartnership, and if the purchase is not made with the intent to hinder, delay, or defraud the creditors of the copartnership, and the property purchased is such as is exempt from levy and sale on execution under the statutes of the state, may hold it as against creditors of the copartnership.

Error from Barton county.

Maher & Osmond, for plaintiffs in error.

G. W. Nimocks, for defendant in error.

HURD, J. Replevin for a quantity of tinners' tools and damages for their detention, brought by the defendant in error against the plaintiffs in error in the district court of Barton county.

In 1878 the defendant in error and one Moses Baum were partners in the hardware trade under the name and style of Baum & Baum, and on the eighth day of July, 1879, had a stock in trade amounting to about $10,000, and the tools sued for were then a part of the stock in trade. On or about the date last mentioned, Hulme & Negbaur became security in a redelivery bond for Baum & Baum, in a suit of D. P. Buford & Co. against them. On the same day Baum & Baum executed a chattel mortgage on their stock in trade, including the tinners' tools, to Hulme & Negbaur, for the purpose, as stated in the mortgage, of securing them against their liability as sureties on the redelivery bond. It was stipulated in the mortgage that Hulme & Negbaur should have the exclusive possession and control of the mortgaged property, and the right and authority to sell it in such manner as they might deem advisable, and to conduct the business. of selling the property at the old stand of the firm, or at such other place as they might deem best for all concerned. Hulme & Negbaur removed the property to their own store and mingled the goods with

their own, and commenced the sale of them under the mortgage. Soon after they took possession of the mortgaged property the defendant in error purchased from them the tinners' tools in controversy in this suit, and paid for them with his own money.

The defendant in error was a tinner by trade, a resident of the state, and the head of a family, and soon after the purchase of the tools removed them to his own premises, and used them in his business and trade as a tinner. While he was so using the tools they were levied upon by the sheriff on an execution issued on the judgment of Bridge, Beach & Co. against Baum & Baum, and they were afterwards sold under the execution to them. At the time of the levy, and also at the time of the sale, the defendant claimed the tools as his own individual property, and that they were exempt from levy and sale on execution. The plaintiffs claim title by purchase from Bridge, Beach & Co.

The case was tried by a jury, and under the instructions of the court the jury rendered the following verdict:

"We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find for the plaintiff that he have the return of the property described in the affidavit of the case, or, in case the said property cannot be returned, the full value thereof, assessed at $125; together with damages for the wrongful detention of said property by defendants, assessed at $175."

The jury also made the following special findings at the request of the defendants:

"(1) Who owned the property now in dispute at the time the sheriff levied upon it? Moses Baum. (2) Was Moses Baum a tinner by trade at the time of the sheriff's levy? He was. (3) Did Moses Baum, at the time of the levy, have such tools for his own use in carrying on his trade as a tinner? He did. (4) If you find that Moses Baum individually owned said tools, from whom did Moses Baum buy them? From G. H. Hulme."

The jury also made the following special findings at the request of the plaintiff :

"(1) Did B. D. Buford & Co. commence a replevin suit for the entire stock of goods of Baum & Baum and for the tools in controversy? They did. (2) Did Hulme & Negbaur execute a redelivery bond as sureties in case of B. D. Buford & Co. against Baum & Baum? They did. (3) Did Baum & Baum make a sale of all the goods replevied by B. D. Buford & Co. to Hulme & Negbaur to secure them for signing the redelivery bond, including the tools in controversy? They did. (4) Did Moses Baum purchase of Hulme & Negbaur the tools in controversy? He did. (5) Did Hulme & Negbaur have full possession and control of all the goods sold to them by Baum & Baum, including the tools? They did. (6) Did M. Baum learn the trade of a tinner? He did. (7) Did M. Baum follow the tinners' trade after all the goods were taken from him? He did. (8) Was Moses Baum the head of a family? He was. (9) What was the value of the tools taken from the plaintiff in this case? $125. (10) What was the value of the use of the tools in controversy? $175. (11) Did M. Baum notify the officer taking the tools that he claimed them as exempt? He did. (12) Did Moses Baum make a demand for the tools before bringing the suit? He did."

The plaintiff in error filed a motion for a new trial on the grounds

"(1) Excessive damages, appearing to have been given under the influence of passion and prejudice; (2) error in the assessment of the amount of recovery for the detention of the property in dispute; (3) that the verdict and decision is not sustained by sufficient evidence, and is contrary to law; (4) error of law occurring at the trial and excepted to by the defendants."

This motion was argued, and by the court overruled, and the defendant excepted. The court rendered judgment in favor of the defendant in error and against the plaintiffs in error for the possession of the chattels described in the petition, or the value thereof, $125, and damages for the unlawful seizure and detention of the chattels in the sum of $175, and, in case the chattels are not returned, a total money judgment of $300, with interest at the rate of 7 per cent. per annum from the date of the judgment.

The defendants below bring the case to this court for review, and now submit these propositions:

"First. Whether Moses Baum, being one of the mortgagors, could, by a sale under the mortgage, acquire a title which would be good against the creditors of Baum & Baum. Second. Whether a chattel mortgage, given by Baum & Baum to Hulme & Negbaur, was not null and void against the creditors of Baum & Baum."

In the case of Winsted v. Hulme, recently decided by this court, (32 Kan. —, S. C. 4 PAC. REP. 994,) the validity of this chattel mortgage was contested by the creditors of Baum & Baum, and it was held that the mortgage was fraudulent and void. Conceding that the mortgage is fraudulent and void, then the purchase was in law made from Baum & Baum through Hulme & Negbaur as their agents. This purchase was made before the rights of creditors of Baum & Baum had attached by a levy, and while Baum & Baum had the right to dispose of the property. The stock in trade, including the tools in controversy, was kept by Baum & Baum for sale to any person who might desire to purchase. The undisputed testimony is that Moses Baum bought the tools, and paid for them with his own money, took possession and removed them to his own premises, and remained in the exclusive possession of them until they were levied on under the execution in favor of Bridge, Beach & Co. There seems to be no question but that the purchase was in good faith, for a valuable consideration, and was not made to hinder, delay, or defraud the creditors of Baum & Baum. We think the title to tools in controversy, under the facts in this case, passed to Moses Baum, and that he was the sole owner of them when they were levied on. this ownership of them did not prevent judgment creditors of Baum & Baum from levying upon and selling them, unless they were exempt from levy and sale under the laws of the state. Were they so exempt? We think they were. The undisputed testimony and the findings of the jury are that Moses Baum was a tinner by trade, the head of a family, and a resident of the state, and that he used and employed the tools in controversy in carrying on his trade, and was

But

so using them at the time they were levied on; and he notified the officer making the levy that he claimed them as exempt.

We find no error in the record, and the judgment is affirmed. (All the justices concurring.)

(32 Kan. 698)

HARDY v. ATCHISON, T. & S. F. R. Co.

Filed November 28, 1884.

1. CONSTITUTIONAL LAW-INTERSTATE COMMERCE.

Under article 1, § 8, of the constitution of the United States, the power of congress to regulate commerce among the states,-interstate commerce,-which consists, among other things, in the transportation of goods from one state to another, is exclusive.

2. SAME-POWER OF STATE.

The fact that congress has not seen fit to prescribe any specific rules to control or regulate the transportation of goods from a place in one state to a place in another, interstate commerce,-does not empower the states of the Union to regulate such commerce. Its inaction on the subject, when considered with reference to its other legislation, is equivalent to a declaration that interstate commerce shall be free and untrammeled.

3. SAME-REGULATION BY ACT OF CONGRESS OF JUNE 15, 1866.

Query: Has not congress legislated upon interstate commerce by the act of June 15, 1866, authorizing all railroad companies to transport passengers and freight from state to state, and empowering them to receive and accept compensation therefor? Rev. St. U. S. 1878, § 5258.

4. SAME-COMP. LAWS 1879, CH. 23, § 57.

Section 57, c. 23, Comp. Laws 1879, known as the "maximum freight rate law of 1868," had no application to fix or limit the charges for transportation of freight from another state into this state, because, if it was intended to apply to such interstate commerce, it was in violation of article 1, § 8, of the constitution of the United States, and therefore void.

Error from Reno county.

On February 1, 1883, George W. Hardy filed his bill of particulars with a justice of the peace of Reno county, demanding judgment against the Atchison, Topeka & Santa Fe Railroad Company for $100, alleged excessive damages made by the company, and paid by the plaintiff, on goods, wares, and merchandise shipped by the plaintiff over the road of the company. Trial before the justice on February 12, 1883, the defendant not appearing. Judgment was rendered in favor of the plaintiff for $100 and costs. The railroad company appealed to the district court. At the September term of the court for 1883, the case was tried to the court upon an agreed statement of facts, a jury being waived. The facts agreed upon were as follows:

"It is hereby stipulated and agreed in the above-entitled cause that the same shall be submitted to the above court at the present term, (September 21, 1883,) upon the following statement of facts, which, it is agreed, are all the facts in said cause, and the same shall be tried in this and all other courts upon the facts herein set forth, and no other, to-wit:

"(1) That each of the shipments of merchandise mentioned in plaintiff's bill of particulars was from St. Louis, Missouri, under a contract there made for transportation through from St. Louis, Missouri, to Hutchinson, Kansas,

for the usual through rate charged upon such class of goods from St. Louis, Missouri, to Hutchinson, Kansas.

"(2) That the defendant received, under arrangements mutually agreed upon between it and the St. Louis & San Francisco Railroad Company, the sum of seventy cents on first-class freight; sixty-two, on second-class; fiftyfour, on third-class freight; forty-seven cents on fourth-class freight; thirtyseven cents on class 'A;' class B,' twenty-three cents; class C,' nineteen cents per hundred pounds on freight mentioned in plaintiff's bill of particulars, shipped via Halstead station, and, by mutual arrangement with the Missouri Pacific Railway Company, received on all freights mentioned in said plaintiff's petition, shipped via Emporia junction, the sum of, first-class, seventy-eight cents per hundred pounds; second-class, seventy cents; third-class, sixty cents; fourth-class, forty-one; class A,' forty; class B,' twenty-five; class C,' twenty.

6

"(3) That the through rate for all freight mentioned in said plaintiff's petition, and charged and collected by said defendant, was in every instance the same as charged by mutual arrangements of all railroads connecting with said defendant's railroad for similar shipments from St. Louis to Hutchinson.

"(4) That the through rate for said shipments is in all cases made up by adding to the rate agreed upon by the Southwestern Pool Association from St. Louis to the Missouri river, the rate of said defendant from the Missouri river to Hutchinson, and by mutual arrangement between said defendant and the St. Louis & San Francisco Railroad Company and the Missouri Pacific Railroad Company. Said through rate is divided between said defendant and said railroads, where freights are delivered to said defendant west of the Missouri river, by allowing to said defendant the proportion of said rates mentioned in the second article of this agreement.

"(5) The through rate as made up as above stated, from St. Louis to Hutchinson, is, first class, one dollar and fifty-two cents per hundred pounds; second class, one dollar and twenty-seven cents; third class, one dollar and two cents; fourth class, eighty-two cents; class 'A,' sixty-one cents; class 'B,' forty-nine cents; class C,' thirty-nine cents,-which rate was charged over every road out of St. Louis, by whatever route the same were delivered to defendant.

"(6) The rates charged by defendant for freights from Kansas City, Missouri, to Hutchinson, Kansas, two hundred and thirty-four miles, were as follows for through freight: First class, eighty-seven cents per hundred pounds; second class, seventy-seven cents; fourth class, fifty-seven cents; class A,' forty-four cents; class B,' twenty-nine cents; class C,' twentyfour cents.

"(7) That the rates charged by defendant on local shipments from Emporia to Hutchinson are as follows, to-wit: First class, sixty-three cents per hundred pounds; second class, fifty-six cents; third class, fifty cents; fourth class, forty-two cents; class 'A,' thirty-two; class B,' twenty-two; class C,' nineteen.

"(8) That the rates charged by defendant from Halstead to Hutchinson were as follows: First class, twenty-four cents per hundred pounds; second class, twenty cents; third class, eighteen cents; fourth class, fourteen cents; class 'A,' twelve cents; class B,' eight cents; class C,' eight cents.

"(9) That the through rate on all shipments mentioned in plaintiff's bill of particulars, charged by said railroads, and collected by said defendant, and divided between said defendant and said railroad, as above set forth, was in every instance less than the sum of the local rates from St. Louis to Emporia or Halstead, respectively, added to the local rates of said defendant from Emporia or Halstead to Hutchinson, respectively, as set forth in the seventh and eighth clauses of this agreement.

"(10) That the local rates for all of said shipments from St. Louis to Hal