'there is little similarity in the laws of the several states respecting the same. The cases cited by plaintiffs in error of decisions in other states are founded upon statutes unlike our own, and hence are not authority here.

In regard to the question of costs, a modification of the judgment seems to be necessary. From the record it appears that all the costs incurred in the proceeding were taxed against the opposing heirs, who are plaintiffs in error. By coming into the court, and resisting the probate of the will, they became adversary parties, so far at least as to make them liable for the costs arising from such opposition and contest. But this is the limit of their liability, and they cannot be taxed for costs that would have been incurred in the proceeding if no opposition had been made; and upon this basis the court should adjudge the costs in this proceeding. A question is made upon the finding of the court determining that two papers or instruments constituted the will; but as this can only be determined from all the testimony, and as none of it has been brought up in the record, the question is not properly before us. All that has been determined in the case is that the will shall be admitted to probate, and the decision of that question in favor of the will will not preclude any interested party from contesting its validity by a civil action in the district court at any time within two years after it was admitted to probate. The judgment of the district court will be affirmed, except as to the costs, and in that respect it shall be modified so as to divide the costs between the parties in accordance with the direction given in the opinion. The costs in this court will be divided.

All the justices concurring.

(39 Kan. 465)

WICHITA & W. R. Co. v. BEEBE et al.

(Supreme Court of Kansas. June 9, 1888.)

ACTION--SPLITTING ENTIRE CLAIM-EFFECT OF JUDGMENT.

An entire claim arising from a single wrong cannot be divided, and made the subject of several suits, however numerous the items of damages may be. A judgment upon the merits of any part will be available as a bar in other actions arising from the same cause.

(Syllabus by Holt, C.)

Commissioners' decision. Error to district court, Sedgwick county; Z. B. WALL, Judge.

Action by William Beebe, James W. Beebe, and Lawrence O. Beebe, partners as Beebe & Co., defendants in error, against the Wichita & Western Railroad Company, plaintiff in error.

Geo. R. Peck, A. A. Hurd, and Houston & Bentley, for plaintiff in error. E. C. Ruggles and Hatton & Ruggles, for defendants in error.

HOLT, C. This action was brought by defendants in error as plaintiffs, in Sedgwick district court, to recover damages to lands they had rented, by an overflow of water. In their petition they aver that in the spring of 1885 they were cultivating a tract of 40 acres off the south side of the S. E. 4 of section 26, township 27 S., of range 1 W., Sedgwick county, and had fully prepared to plant corn upon it; that the said defendant railroad company had then recently diverted the water of a stream from its natural water-course in the construction of its road-bed, and discharged it through an artificial channel; that on or about the 15th of May of said year, on account of heavy rains, a great quantity of water was discharged through this newly-made channel upon the land in question; and the water, overflowing and remaining upon the same for about six weeks, prevented the plaintiffs from planting, cultivating, and growing corn and other crops thereon, and by reason thereof they have been damaged in the sum of $500. It appears, further, that, on the 17th of August following, said plaintiffs commenced an action against this defendant

to recover damages caused by the water flowing through the same channel at the same time, and overflowing 60 acres of corn already planted. This action was tried, and judgment rendered for plaintiffs for $75. The defense urged, and properly raised and supported by the evidence, was that the judgment in the former action was a bar to this one. Defendant brings the case here for review. It appears that the plaintiff had rented 320 acres, half of said section 26, and that the 40 acres unplanted, for which damages are claimed in this action, was a part of this same tract, with the 60 acres which had been planted, and for which damages had been claimed and recovered heretofore. The defendant claims that the judgment obtained in the former action precluded the plaintiff from setting up any other and different damages than those claimed in that action, occasioned at the same time.

We believe the law to be well settled that no party is permitted to split his causes of action into different suits. If he does, and obtains judgment upon any part, such judgment is a complete bar to a recovery upon any remaining portion thereof. The splitting up of claims is not permitted in the case of contracts, and the same rule which prevents a party from doing so applies with equal force to actions arising in tort, and the same act cannot be the foundation for another suit, although the items of damages may be different. In this action the act complained of was the discharge of the water upon the 15th day of May; and this claim for damages might have been litigated in the first action, and should have been set forth in the petition therein. If plaintiffs neglected to do so, they should be barred from further relief. It was the same storm, and the water was discharged, through the same culvert, upon land which was a part of the same tract that plaintiffs had rented. "The principle is settled beyond dispute that a judgment concludes the right of parties in respect to the cause of action stated in the pleadings in which it is rendered, whether the suit embraces the whole or only a part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim, ensuing either upon a contract or from a wrong, cannot be divided, and made the subject of several suits; and, if several suits be brought for the different parts of the same claim, * * * judgment upon the merits in either will be available as a bar in the other suits. * * * In case of torts, each trespass or conversion or fraud gives a right of action, and but a single one, however numerous the items of wrong or damage may be." 1 Herm. Estop. § 77. If the rule were otherwise, the tract might have been divided up into 5, 10, or 15 acre tracts, and there might have been a series of vexatious law suits. "It is for the public good that there be an end to litigation." This view is well supported by authority. Whitaker v. Hawley, 30 Kan. 317, 1 Pac. Rep. 508; Commissioners v. Plumb, 20 Kan. 147; Commissioners v. Bondi, 23 Kan. 119; Madden v. Smith, 28 Kan. 798; Brannenburg v. Railroad Co., 13 Ind. 103; Folsom v. Clemence, 119 Mass. 473; Hemstead v. Des Moines, 63 Iowa, 36, 18 N. W. Rep. 676; Baird v. U. S., 96 U. S. 430; Herriter v. Porter, 23 Cal. 385; Morey v. King, 51 Vt. 383; Milroy v. Mining Co., 43 Mich. 231, 5 N. W. Rep. 287; Memmer v. Carey, 30 Minn. 458, 15 N. W. Rep. 877; Railroad Co. v. Henlein, 56 Ala. 368; 1 Herm. Estop. 247, 248, 251. We recommend that the judgment be reversed, and cause remanded.

PER CURIAM. It is so ordered; all the justices concurring.

(39 Kan. 441)

WALKER et al. v. DOUGLAS.

(Supreme Court of Kansas. June 9, 1888.)

APPEAL-REVIEW-SUFFICIENCY OF EVIDENCE.

In an action of ejectment, brought by a tax-title holder against the original owner, the tax deed was based on a sale, in 1877, for the taxes of 1876. The trial court found

that the taxes of 1876 were paid by the defendant to the treasurer of the county before the tax deed was executed. There being some evidence to support such finding, this court will not weigh the evidence on that question, nor reverse the case because the weight of the evidence might show that there was no such payment. (Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Jackson county; R. CROZIER, Judge.

Lowell & Walker, for plaintiffs in error. . S. Hoaglin, for defendant in

error.

SIMPSON, C. The plaintiffs in error commenced an action in ejectment against the defendant in error in the Jackson county district court, on the 6th day of January, 1884, to recover possession of the S. W. 4 of the S. W. ≥ of the S. W. of section No. 5, in township No. 6. of range No. 14, containing 10 acres of land in said county, and for rents and profits. The plaintiffs claim under a tax deed for the taxes of 1876, based on a sale in 1877; the deed including the subsequent taxes of 1877 and 1878, and dated January 12, 1883., The defendant in error relies on a payment of the taxes. The case was tried to the court without a jury, with special findings, and a judgment for the defendant in error. It might be said inferentially that the record contains all the evidence that was offered by either side at the trial; but there is no positive statement that it does, and the utmost liberality must be indulged in to arrive at such a conclusion. The trial court finds expressly "that the taxes for the year 1876 were paid by the defendant to the treasurer of Jackson county before the deed above described was executed." There is certainly some evidence supporting this finding, and under our rule it cannot be disturbed, even if we should feel inclined to have taken a different view, if it had been our province to have determined this question of fact. The operation of this rule necessarily compels us to recommend an affirmance of the judgment.

PER CURIAM. It is so ordered: all the justices concurring.

(39 Kan. 492)

FULLER v. CHAMPAIGN TWINE & BAGGING CO.

(Supreme Court of Kansas. June 9, 1888.)

JUSTICE OF THE PEACE-CERTIFICATE TO BILL OF EXCEPTIONS-IMPEACHMENT.

A certificate of a justice of the peace, regular on its face, to a bill of exceptions, and bearing date within 10 days after judgment, cannot be impeached by a certifi cate of the same justice, made more than a month thereafter, which sets forth the circumstances under which the original certificate was made.

(Syllabus by Holt, C.)

Commissioners' decision. Error to district court, Shawnee county; JOHN GUTHRIE, Judge.

L. J. Webb, for plaintiff in error. J. W. Campbell, for defendant in error.

HOLT, C. On the 4th day of February, 1886, the plaintiff in error, as defendant, in an action then pending before R. H. C. SEARLE, a justice of the peace in and for the state of Kansas and county of Shawnee, recovered a judgment against defendant in error, plaintiff in said action, for $92.95 debt, and $10.45 costs. The plaintiff company afterwards prepared and presented to said justice of the peace a bill of exceptions, to which he attached the following certificate: "State of Kansas, Shawnee County-ss.: I, R. H. C. SEARLE, justice of the peace for the city of Topeka, Shawnee county, Kan., do hereby certify that the above and foregoing bill of exceptions contains true and perfect copies of all the pleadings in said action, true and perfect copies of all written instruments introduced in evidence, and all the evidence introduced at the trial of said action, and all the proceedings had in said action; and I do hereby, on this 13th day of February, 1886, and within ten days from the date

of judgment in said action, allow, make, sign, and seal the same as a true and perfect bill of exceptions in said case. [Signed] R. H. C. SEARLE, Justice of the Peace." Afterwards, on the 22d of March, 1886, at the request of the defendant, said justice made the certificate following: "I, R. H. C. Searle, justice of the peace for the city of Topeka, Shawnee county, Kan., hereby certify that the above and foregoing is a true and perfect copy of a bill of exceptions presented to me by J. W. Campbell, attorney of record of the plaintiff in the above-entitled action, on the 13th day of February, 1886; that at the time the said bill of exceptions was presented to me I was at home, sick, and as this was the last day under the law in which such bill could be allowed by me, I consented to and did compare said bill with the original papers in the case, and told the said J. W. Campbell that I could certify the same to be a true copy of all the pleadings and evidence filed in writing in the above-entitled cause, but that I was not in a condition to say that there might not have been other material evidence introduced at the trial, and was not willing to sign said bill of exceptions until the attorney for the defendant had had an opportunity of reading the same; and if he should recall to my recollection evidence that I deemed of importance, I should require the same to be inserted therein before signing. He, the said Campbell, informed me later in the day that he had notified L. J. Webb, attorney for the defendant, that I wished him to read the said bill, and suggest any other evidence, if any there was, that was offered material to this case. L. J. Webb did not come to my house during the said 13th day of February. On the following Sunday morning, February 14, 1886, I signed said bill of exceptions as of the date of February 13, 1886, believing it incorporated all material evidence offered on the trial of the cause, but on the following day, Monday, February 15, 1886, defendant's attorney called my attention to several items of testimony material to the case that had been omitted, and left written memorandum of the substance of such testimony. Knowing this omitted evidence to have been used on the trial, and that the certificate I had signed as aforesaid was not true, I at once erased my name from said certificate, and refused to sign and allow said bill of exceptions unless all material evidence used at the trial was shown therein. I presented on the same day to the said J. W. Campbell said bill of exceptions, so marked, together with written memoranda of substance of the testimony so omitted, and asked him to make a new bill of exceptions which incorporated all that was implied by my certificate thereto; that he could have any reasonable time not exceeding two or three weeks in which to prepare and furnish the same; that I would sign and allow it as if it had been filed, thus complete,' under the date of February 13, 1886; that defendant's attorney waived all rights to any objection by reason of the delay aforesaid in the said filing; and that said defendant authorized me to so notify him, the said J. W. Campbell, of such waiver of right to object; since which time said plaintiff has taken no steps in the matter until this time. The original, of which the above and foregoing is a copy, has been in my possession since February 13, 1886. In witness whereof I hereunto set my hand this 22d day of March, 1886. [Signed] R. H. C. SEARLE, Justice of the Peace." On presentation of the case to the district court it was reversed; from that judgment the defendant brings the case here for review. In his brief he raises the question of whether the 15th day of February was within the time in which the justice of the peace could sign said bill of exceptions, or whether his erasure of the signature upon that date would have destroyed the validity of the bill of exceptions, and whether his signature on Sunday, the 14th day of February, was a nullity. None of these matters can be considèred under the record as it appears here. The certificate of the 22d of March, so far as it shows the transactions of the bill of exceptions to be different from the certificate dated February 13th, cannot be considered as evidence. It is no part of the duties of a justice of the peace, nor is he authorized by law, to make a certificate containing evidence similar

to this sought to be offered here by the certificate of the 22d of March. More especially is this true after the expiration of the 10 days allowed by statute in which to settle and sign a bill of exceptions. The certificate of the 13th of February, upon its face, shows that the bill of exceptions was properly and regularly settled and signed, and as there is no legal proof offered in this court to disturb such certificate, we must hold that it is valid, and in doing so we dispose of this case. There was no complaint or contention that the judgment of the district court was incorrect under the bill of exceptions signed and settled on the 13th day of February. The judgment of the district court was correct, and must be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(39 Kan. 432)

COUNTIES

PFEFERLE v. LYON COUNTY.

(Supreme Court of Kansas. June 9, 1888.) LIABILITIES-NEGLIGENCE IN KEEPING JAIL.

A county is not liable to the inmates of its county jail for negligently permitting such jail to become and remain in such a bad condition that the inmates thereof become sick and diseased.1

(Syllabus by the Court.)

Error to district court, Lyon county; CHARLES B. GRAVES, Judge. Oswald Pfeferle commenced an action in the district court of Lyon county against the board of county commissioners of that county, and in such action filed the following petition, omitting title and signature, to-wit: "The plaintiff in the above-entitled cause, for his cause of action against the said defendant, states that the said defendant was, is, and for more than five years last past has been, a duly-organized county of the state of Kansas for judicial purposes, under the name of Lyon county, situate in the 5th judicial district of the state of Kansas; and that the said defendant now has, and during all the aforesaid time has had and owned, a jail, situate at the county-seat of said county, provided for it by the county commissioners of said Lyon county. That the said jail now is, and during all of the aforesaid time has been, of sufficient strength and tightness to safely hold and retain all prisoners confined therein. That the said jail now is, and during all of the aforesaid time has been, dug out of and situate in and under and below the surface of the ground and level of the earth, in which the same is constructed; and the walls of the same now are, and during all the aforesaid time have been, so loose and open that the water falling on the ground adjoining said walls, from rains, dews, and other causes, oozes and percolates through said walls into said jail, and has so done during all the aforesaid time; and now does, and during all the aforesaid time has kept the inside walls and the entire interior of said jail in a sweat, and state of moisture and dampness; and the said jail, being underground as aforesaid, has no means of permitting the sun to shine into the same, or of letting any reasonable quantity of light therein, and has not had, during all the aforesaid time; and the interior of the said jail now is, and during all the aforesaid time has been, without ventilation, and ingress and egress to the air either for breathing or for carrying off the poisonous gases emitted from the lungs of the inmates, or generated from any and all other means; and by reason thereof the said jail now is, and during all the aforesaid time has been, in a dark, damp, unhealthy, malarious, miasmatic,

1See Eastman v. Clackamas Co., 32 Fed. Rep. 24, and note; Manuel v. Cumberland Co., (N. C.) 3 S. E. Rep. 829, and note; Abbett v. Johnson Co., (Ind.) 16 N. E. Rep. 127; Watkins v. County Court, (W. Va.) 5 S. E. Rep. 654; Downing v. Mason Co., (Ky.) S S. W. Rep. 264.