Volume 1 — Kansas Reports

The facts of the case are stated in the opinion of the Court. I. The law presumes that the Board of Canvassers, under the election laws, meeting to canvass the returns of an election, know what officers arc to be elected, by such vote, and they will rightfully only canvass the votes for such officers. They are not, by law, authorized to canvass votes for other officers. 1,1. There was no law authorizing an election of Grover nor in the fall of 1861. 1.

The facts in the case fully appear in the opinion of the Court. I. The ruling of the Court below on the demurrer was erroneous, because’ 1. The writing sued upon is not negotiable by the law merchant. (Chitty on bills 188 and cases cited.) 2. The receipt is payable in “current funds.” To be negotiable, it should be payable in money. (Chitty on bills, p. 595, 12th ed.; 4 Mass. R. 245; 5 Cow. R. 186; 10 Serg. and Raiole 94; 3 Blackford 153; 14 Peters.) 3.

<p>The accused may stand upon the presumption of innocence until every material allegation and every ingredient of the crime are proved.</p> <p>A few tacts, or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show that the prisoner committed the crime, but they must all be inconsistent with any other rational conclusion.</p> <p>The fatal effect of a separate and an erroneous charge to a jury, upon a material point, is not cured by the Court having, in other parts of the charge, given .the true rule of law as applicable to that point.</p> <p>A charge to a jury, that the defendant and another person " might both be guilty oí this itmrde'-,” is a mixed one of law and fact.</p> <p>As a charge of fact, it intimates that this was murder, which is a fact or a conclusion from facts, the determining of which is the special and exclusive province of the jury. As a charge of law, it announces that two persons may be guilty as principals in one crime. This is true, and a proper instruction; but mixed with the fact of this being murder, it is error, because the jury wef.e not informed that they were the exclusive judges of the facts.</p> <p>The Court has a right to present the facts in his charge, but must, in that case, .inform the jury that they are the exclusive judges of all questions of fact</p>

The facts of the case appear in the opinion of the Court. The plaintiff in error claims that in no view of the premises judgment should have been entered against both defendants in the Court below as principals. I. Defendants, Kupfer and Crowell, by failing to enter their appearance admitted all the allegations set forth in the plaintiff’s petition (§ 137, Code Civ.

Petition in error founded on proceedings had in the District Court, county of Douglas, at the October term thereof, 1859. John Doy, defendant in error, obtained a judgment before E. D. Ladd, Esq., Justice of the Peace in said county, against Wm. H. Bush, plaintiff in error; wherupon Bush filed, in due time, the proper bond for appealing from said judgment to said district court.

In addition to the facts that appear in the opinion of the Court, it was shown by affidavit of the relator that there were certain records of deeds and mortgages and other instruments of writing effecting real estate in that portion of Madison county annexed to Breckinridge county by the act of January 31st, 1861, in the books of the office of register of deeds of Madison county.

The facts of the case appear in .the opinion of the Court. I. The defendant, Mallory, tendered himself as a witness on the trial, on the day of trial, the plaintiff being present. The plaintiff objected, and the Court sustained the objection.

. The opinion of the Court contains a full statement of the case. 1. The judgment is contrary to the evidence. The petition contained' every allegation sufficient to . constitute a cause of action. By the failure of defendant to deny, they were taken .as true, which made out a perfect cause of action, and the Court should have charged the jury to find for the plaintiff. {Oode, §§ 137, 138.) II.

The opinion, of the Court gives a full statement of the case. I. The petion was had because it contained no averment of an attempt on the part of plaintiffs to collect the note from Pemberton & Co., in Kentucky. The indorsement on the note contains a condition precedent to bé performed by the payees.

A full statement of the case appears in the opinion of the Court. The error complained of in this record is in the Court overruling the demurrer and in refusing to give the instructions set forth in the record. The same question is raised on the demurrer that is presented in the instructions that were refused. By the sixth section of the Probate Court act of 1855, page two hundred and twenty-seven, the Probate Court is made a court of record.

This was an action brought by Elliott, plaintiff below, against the defendants, to recover^ damages for the taking, injuring and destroying of a printing press and other personal property belonging to the plaintiff.

This suit was tried in the District Court of Franklin county, State of Kansas, then a Territory.

I.The bill of exceptions shows that the note was delivered upon the sale of New York Indian lands. 1. No argreement for the sale of such land can be sustained. (U. S. stat, 849, § 11, Dunlap eel.) 2. A contract involving a violation of law is void. 3. The note was given not for improvements, but for a “ claim.” Such a sale is inhibited, even where there is a right of pre-emption. (U. S. stat. 990, § 12.) II.

This case was tried in the district court of Leavenworth county, territory of Kansas, before Pettit, C. J. The petition showed the appointment of defendant Todd, to the office of sheriff of… Held: that the sureties could not object that the bond was not approved by the court, nor that the constable was not sworn. (Churchvs. Clark, 7 Blackf., 570.) Debt on sheriff’s bond.

<p>The petition set forth that defendant, by his promissory note, filed therewith, promised for value, to pay plaintiffs, partners, <fcc., a sum, giving it, which defendant failed to pay, except, Ac., that plaintiffs are non-residents of the territory of Kansas; that a sum, giving it, is due plaintiffs, for which they pray judgment, verified by the attorney on belief. Held, that it states facts sufficient to constitute a cause of action.</p> <p>This petition, filed August 7, 1858, “in the clerk’s office in the district court for Leavenworth county, sotting for the trial of causes arising under the constitution andlaws of the United States,” was entitled “in the first district court of the first judicial district of the territory of Kansas,” and the summons duly issued thereon, was served according to law, on defendant in Leavenworth county. Held, that a demurrer thereto on grounds that the court has no jurisdiction of the person of defendant, nor of the subject matter of the action, that the petition is not verified as required by law, and fails to show either of plaintiffs to be citizens of another of the United States or of the territory of Kansas, and that they have not legal capacity to serve in this court, was property overruled.</p> <p>The “organic act” authorized the district courts to exercise such jurisdiction as might be conferred upon them by territorial law.</p> <p>The territorial statutes of 1855 (p. 469) adopted the common law of a general nature (prior to 4 James I. except statutes for the punishment of crimes) so far as consistent with existing laws, “as the rule of action and decision,” and ■ therein as to rights of action and forms of remedy, and (p. 224,) gave exclusive jurisdiction to the district courts in all cases of equity, and in all civil cases within their respectiue districts when over one hundred dollars was in controversy, except where concurrent jurisdiction may be given to some other as the probate courts.</p> <p>The defendant having been served in Leavenworth county, the district court therein setting had jurisdiction over his person. The code of 1858, (repealing and supplying the laws of 1855, pertaining to practice,) provided that actions like the one at bar should be brought in the county in which the defendant resided, or might be summoned.</p> <p>The organic act contemplated that causes arissng under the constitution and laws of the United States, and causes arising under the laws of the territory would be triable at every term, and in one court, and not that a district court of distinct jurisdiction, should be held for each of these classes of causes.</p> <p>Leavenworth City, in Leavenworth county, was the placed fixed, pursuant to section sixth of the act of congress of August 16th, 1856, by the judges of the supreme court, for holding the district court in the first district.</p> <p>The act of congress of June] 2th, 1858, leaves the district courts as theretofore existing untouched as to jurisdiction and time and place of the holding thereof, but authorized the judges in each district to hold other courts in any oí the counties of his district, at such time and place as the legislature mignt prescribe. “for the purpose of hearing and determining all matter and cases, except those in which the United States is a party.”</p> <p>The legislature prescribed the time and place for holding the new court in Leav- . enworth, as in other counties of the first district, with a jurisdiction extending to all cases cognizable in the old, except those wherein the United States was a party.</p> <p>The jurisdiction of these two courts was concurrent, except in the one class of cases reserved in the act of congress from the new court; and over the case at bar, it seems either would have had jurisdiction without an allegation in the petition as to citizenship.</p> <p>[¡Note. — The brief of Wheat, attorney for defendants in error, was lost, and his name accidently omitted. — Reporter.]</p>

I. The act which corresponds with council bill number thirty-nine ofthe session of the legislature of 1861, originated in the council, and not in the house, as the constitution requires. (See State Const., § 12, Art. 2: Enrolled Bill and Council Journal, 133.) II. The hill was never presented to the governor within the meaning of the constitution and of the organic act.

The relator by petition showed that defendants, Robinson, secretary of state, Hillyer, auditor, and Dutton, treasurer of the state of Kansas, as the board of state officers autohrized by an act of the legislature entitled “an act to provide for the state printing,” approved May 15th, 1861, to let the state printing, did, during the first week in November, 1861, give notice in four different newspapers, printed in different sections of the state, for sealed proposals for the…

I. The judge had no authority to hear the motion to discharge the property from the attachment, in vacation. (.Bey-burn vs. Brachett, Decision' Sup. Court; Henderson vs. Officers of Franhlin County, Jan. Term, 1862.) II. If the motion could be heard in vacation, the motion should have been overruled.

<p>The confirmation of a sale of land is an order that can only be reversed by the court making it, after the term at which it was made. »</p> <p>If the proceedings are by motion, under section five hundred and forty-six of the codé, the motion itself must show the grounds on which it was made.</p> <p>“ That a sale was made under an excessive levy,” * * * that “too much property was levied on and sold to satisfy a debt,” are not sufficient grounds to bring a case within any of the causes for whieh judgment or order can be reversed, on motion, after the term at which the judgment or order was made.</p>

I. Had the cause been appealed and tried under the statutes of 1855, they would not have had authority to try it. (Stat. 55, p. 639.) The proceedings were under the code of 1858. (§ 602, p. 167.) Code of 1858 took effect the first of April, 1858. (§ 614, p. 169.) II. The organic law says that the proceedings in error shall be regulated by law. (§ 27, p. 36.) III.

A statement of the facts of the ease appears in tlie opinion of the court. Wilson Shannon submitted: I. The contract of sale of the three hundred and ninety-four sacks of flour, was a contract in writing, entered into by Delahay, by his agent Stockton, on the one part, and Bemis, the defendant below, on the other. The contract cannot he altered, varied or changed by parol evidence. The representations or statements of Stockton, one of the firm of Becker & Co., hind the firm.

The petition was in the usual form, on a promissory note, dated at Davenport, Iowa, July 21st, 1856, payable six months after date. The petition was filed February 11th, 1861.

<p>A chattel mortgage may "be void for uncertainty as well as a mortgage of res.estate.</p> <p>The description of property in a chattel mortgage to be good, should contain either some hint which would have directed the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third persons to identify the property, aided by inquiries which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles.</p> <p>A description in the words following “one hundred and twenty-four head of mules now in the territory of Kansas," and “one pair ofclaybank horses,” held not sufficient.</p> <p>A delivery or change of possession, either actual or constructive of chattels mortgaged, is essential to the validity of the morgage as against third parties.</p> <p>The registration of a chattel mortgage in Platte county, Missouri, the residence of the mortgagor and mortgagee on chattels, at the time, in Kansas, is not, in an action in the State between the attaching creditor of the mortgagor and the mortgagee, equivalent to a delivery of the possession of the chattels mortgaged at the time thereof.</p>

In the case of Jones vs. The State ex. rel. Held: at the first of which no place having received a majority of all the votes cast, a second election was held, without the commissioners of said county having issued a proclamation of the result of the first. At this election Leroy received a majority of all the votes cast.

A .statement of tb facts of the*case appears in the opinion of ike chief justice. I. The court errQ in refusing to submit to the jury, under proper instructions/ho question whetherthe house was apart of the realty or wasi fixture. (Coivcn vs. Kyler, 27 Mo., 122; Onibony vs. Jones, 19 N. Y., 234; GrandLodge vs. Knox, 27 Mo., 315.) II. The court should have instructed the jury as requested in the plaintiffs’ third prayer for instruction. (19 New York, 234.) III.

The facts of the case appear in the opinion of the court. Plaintiff’s first ground of error is, that the court erred in sustaining the demurrer of Reynolds to the second defense set forth in the answer of Dudley below, to-wit: That after the maturity of the note, Dudley paid Reynolds one hundred and seventy-five dollars, and that in consideration of said payment, Reynolds agreed to reduce the rate from five per cent, to two per cent, per month.

<p>Morgan, Gelstou and IsTichols <!t Morton, plaintiffs below, each filed a separate mechanic’s lien, on the premises of Connell, defendant below, for work and material used, under contract with Connell, in building a house thereon. Connell held the lot under an agreement in writing from Harsh — made a defendant below on his own motion — to thf effect that Harsh was to convey by warrantee deed, in fee simple, on the receipt of one thousand dollars, which contract was unrecorded.</p> <p>Held, that these several plaintiffs below were not interested in the subject of action, nor jointly interested in obtaining the relief demanded so as to be joined ns plaintiffs, under section forty-one of the civil code, nor we ;e they “ united in interest,” so as to be joined, under section forty-three.</p> <p>Held, that these several causes of' action do not “ affect all the parties to the action,” so as te be united in an action, under sections eighty-nine and ninety of the code ; and</p> <p>Held, therefore, that a motion to consolidate the separate actions brought by the different plaintiffs below, to foreclose the respective liens, even if made by defendant, should be denied.</p> <p>Held, that the several plaintiffs below, under sections sixteen, seventeen and eighteen of “ an act for securing liens to mechanics aud others,” approved February 3d, 1859, could claim no greater or higher interest in the lot than Connell had.</p> <p>Held, that a judgment in a consolidated suit of these several plaintiffs below against Connell, foreclosing the several liens, which directs the sale of the lot, without the consent of Harsh, is unwarranted, and contrary to law, and should be reversed.</p>

The opinion contains a full statement of the facts. When the evidence is contradictory, and the jury might find either way, the court will not set aside the finding.

The facts shown in the record appear in the opinion of the court. No briefs or names of attorneys for either party have boon obtainedgby the reporter.

The facts of the case appear in the opinion, of .'the oonrt. If the justice had no jurisdiction he. erred in giving judgment for the defendant, and his judgment should have been set aside by the district court.. There was a judgment rendered against the plaintiff for three dollars and eighty cents, from which he took an appeal in due form, and the district court should have either affimed or reversed that judgment.

The facts of the case appear in the opinion of the court. In August, 1859, the defendant in error brought suit in the district court of Anderson county, Kansas, against the plaintiff in error to recover a certain sum of money alleged to be due from the defendant to plaintiff, by reason of the conversion of certain chattels belonging to the said plaintiff below, v To that petition the defendant below interposed a demurrer, alleging, first, a misjoinder of causes of action;…

I. The exceptions to the depositions should have been sustained on account of the lack of the indorsement on the envelope. (§ 357, Code.) II. The record shows that the jury found their verdict on entirely incompetent testimony, viz.: The statement of Grant that the butter sold for thirty cents per pound, which statement was hearsay. The verdict as it now stands, is the verdict of the court, and not of the jury. III.

The facts of the case appear in the opinion of the court.' The court erred in sustaining the demurrer of the state of Kansas to defendant’s plea. (See Const. State of Kan., BiV of Bights, § 10.) By this section the defendant is entitled to a speedy trial. The discretion of the court under this clause is limited by section one hundred and ninety-nine, page two hundred and sixty-five, compiled laws.

At the October term of the district court a judgment was entered in this case below, among other things providing : And now comes William W. Cleminson and Alfred F. Byler by their attorney, L. Dow, and thereupon came a jury of twelve good and lawful men of the counties of Shawnee and Osage, to wit: Daniel Herne and eleven others, thereupon on the proofs and allegations submitted, who, on their oaths, do find, on the issue joined, in favor of the said plaintiff, in these…

At the November term, 1862, of the district court in the county of Shawnee, on the trial of this case, the court below charged the jury that if they believed, from the evidence, that defendant mixed, mingled and ministered cantharides to Ann L. Smith, with the intent to have carnal knowledge of her, and that as a result thereof she received personal injury, which is a fact for the jury to determine, from the evidence, then the jury would be justified in finding the defendant…

The facts of the case appear in the opinion of the court. cited sections one- -hundred and eighty-nine and three hundred and ninety-six of the civil code, and contended that on account of the insufficiency of the answer, plaintiff was entitled to judgment on the petition. Other points made by plaintiff’s counsel relate only to errors set forth in the rejected bill of éáceptions.

The plaintiff in error was convicted of murder in the first degree, at the June term, 1863, of the criminal court for Leavenworth county. Held: then and there unlawfully, feloniously, willfully, deliberately, premeditatedly and by and of his malice aforethought, did discharge and shoot off against and upon the said James Duke, and that the said Baily Smith, with the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by the force of the gunpowder…

The facts of the case wore argreed on as follows: Thai John Pipe, at the date of the ratification of the Wyandotte treaty, January 31st, 1855, was a member of the Wyandotte nation of Indians; was the head of a family, consisting of himself, his wife, Mary Pipe, and two children by a former wife, named Maria Pipe and Winfield Pipe; that said Mary Pipe was the daughter of George Spybuck, and sister of James Spybuck, the plaintiff, and died childless, in the year 1857, at…

<p>The defendants in error brought an action in the court below against the plaintiff in error upon a promissory note executed by him and one C. B. Campbell (defendant below not served) to E. A. Paulett & Co. There was no averment in the petition that the firm of E. A. Paulett & Co. was composed of Eleanor A. Paulett and Alexis Paulett. The answer of defendant admitted the making of the note, and set out a payment of one hundred and fifty dollars, and a request by defendant below that it bo applied on the note in suit, and prayed that said payment bo set off to the amount due on said note, “ and that the plaintiff may have judgment for the balance.” The reply of plaintiff was filed, the substance of which is given in the opinion of the court, as are also the proceedings upon the amendment thereof. After the introduction of the note in evidence on the trial, the plaintiff introduced Alexis Paulett as a witness to prove that the firm of E. A. Paulett & Co. was composed of Eleanor and Alexis Paulett, which evidence was objected to and ruled out. The court instructed the jury to find the full amount claimed by the plaintiffs in said petition, which was excepted to. The jury found in accordance with the instructions, and judgment was entered for that amount. The case comes to this court on a petition in error.</p> <p>I. There is no denial in the reply of the averment of payment, but it is said there was no agreement to apply the one hundred and fifty dollars to the note in question. A party who pays money may direct its application.</p> <p>The one hundred and thirty-seventh section of the code of civil procedure provides that every material allegation of new matter in the answer, not controverted by the reply, shall, for the purposes oí the action, be taken as true. No material allegation of the answer was denied. Payment was not denied. The section of the codo referred to has not changed the law as it formerly was administered. Issues arise out of the pleadings of parties — averments upon the one hand and denials upon the other; and without such denials there can be no trial for want of an issue, and the affirmative averments are taken as confessed. “Without such a denial the party can take advantage of the defect, at any stage of the ease or on trial.” (See Gould vs. Glass, 19 Barb., p. 185; Higgins vs. Freeman et el., 2 Piter, ¶. 650.)</p> <p>“ The defendant cannot avail himself of payment without pleading it, and when pleaded, if there is no reply there can he no trial for want of an issue.” (Hubler vs. Pullen, 9 2nd., p. 273.)</p> <p>It follows from the above that Irwin was entitled to have the amount, set up in' his answer as payment, applied pro tanto in discharge of the note, and the court erred in refusing his motion.</p> <p>II. The second and third grounds of error may bo considered together.</p> <p>The court erred in permitting the plaintiff below to add a count ©f general denial to a reply where they had filed a special plea. A party cannot thus plead. “ His plea must he special or general — not both.” (See Nash Prac., p. 65; see, also, How. P. 22., p. 246; 8 do., p. 193.)</p> <p>III. The other assignments of error will be considered together. If the court shall consider the objections of the plaintiff in error to the ruling of the court below well taken, the entire judgment must be reversed. The error here assigned grew out of the defective petition in the case. By reference to the record it will be observed that the action was upon a note executed to a firm, and in their partnership name. No averment is made in the petition that the firm was composed of the parties whose names appear in the title of the cause.</p> <p>Now, all the facts necessary to enable the plaintiff to recover should be averred in the petition; and if such necessary avi-rments are not made in the petition, the plaintiff can offer no proof under it. Thore'is no averment in the petition that the firm was composed of Eleanor A. and Alexis Paulett, and that they were the parties to whom the note was executed, and who are entitled to the amount duo on the note. It is not pretended that they were a corporation, and entitled to sue in their corporate name.</p> <p>It was held by the court, in his instructions to the jury, that the answer of Irwin had come to the aid of the petition of the plaintiff below, and set up the fact that the firm was composed of Eleanor A. Paulett and Alexis Paulett, and supplied that wherein the petition was defective. By reference to the answer it will be seen that the statement of the court below is entirely gratuitous. There is no such averment in the answrer. It is only admitted that the note was executed by the plaintiff in error, and an averment of payment of one hundred and fifty dollars.</p> <p>But suppose that such an-avorment was made in the answer. Does it come to the aid of the petition ? “A plaintiff must, in his complaint, state the facts that constitute his cause of action. lie is not at liberty to make out his case by proof of facts not alleged in his complaint.” (Bristol vs. Ramalear at al., 19 Barb. 158; also Gtarvay vs. Bowler, 4 Saunders, 665; See Boddinqton vs. Davis, 6 Sow. P. R., 402.)</p> <p>“ The allegations of an answer come to the aid of the petition only in cases where a discovery is sought, or whore, from the transaction or the attitude of the parties, it may fairly be presumed that the defendant’s means of information are bettor than those of tho plaintiff.” (Podly vs. Price, 1423. Mon. li., p. 88, quoted in Seney’s Ohio Code, 128, note 4.)</p> <p>The motion of tho said Samuel Irwin to disregard the reply of the plaintiffs below, was not well made, for these reasons: 0</p> <p>I. The jury are the judges of tho evidence, and aro tho only competent judges of the facts in the case, and the court cannot take that duty, or province from the jury .except on demurrer or motion to strike out the pleadings, petition, answer or reply.</p> <p>II. The failure of the plaintiffs below to deny the payment of the money, as alleged by the defendant’s answer, only created a default on tho part of the plaintiffs as to the fact and manner of a payment, and made it necessary for the defendant to prove tho amount of the payment so made. (See § 137i'Oode Oiv. Pro.)</p> <p>There was no error in the court allowing the plantiffs below to amend the reply by adding thereto a count of denial — it being a discretionary power. (See §§ 147 and 148 of the Civil Code.)</p> <p>There was no error in the action of the court in overruling the motion to strike out the count of denial added to plaintiffs’ reply, as the rule is well settled that if the several parts of an answer or reply are inconsistent with each other, thp party pleading the same may elect by which defense he will stand. (See Seney’s Ohio Code, p. 94, note 'b, andp. 114, notes 2, 6.) And if this were not so, the party may plead as many defenses as he has to an action, and should not be prejudiced if he pleads that in one part of his answer or reply which does not constitute a defense, and in another part plead a good defense. (See § 102 of the Code of Civil Procedure.)</p> <p>If the petition of the plaintiffs below was insufficient, tho defendant below should have demurred to the petition, for want of sufficiency, which ho failed to do, but filed his answer, thereby acknowledging the debt, which answer cured any' defect in the petition after verdict. {See § 98 of the Civil Code', Seney’s Ohio Code,y>. 114, note 4.)</p> <p>The petition was sufficient to sustain the verdict; but if it was not, it cannot be inquired of in this court, there being no motion in the court below upon which to predicate the action of this court.</p>

The facts are given in the opinion of the court. The cause of action, set out in the petition in this case, is alleged to have accrued on the 14th day of March, 1858. The acts of ’55 were then in force. (See acts of ’55, p. 96, §4.) The laws of ’58 went into effect April 1st, 1858. (See act 1858, ¶. 169, § 614.) Within what time action to be commenced.

A statement of the facts of the case appears in the opinion of the court. I. The city had no authority to levy more than seven mills on the dollar. (Charter of City, § 1, Art. 7; Blaelcioell on Tax Titles, pp. 45, '46, 56, 524, 525.) II. The city had no authority to convey property sold for taxes. (Charter of City, § 2, Art. 7, and same authorities obove cited.)

Smith applied to tbe defendant below, as administrator of Goodrich, to allow his claim for the-board of Bradley, that the same might be settled.

<p>The decision in Kupfer vs. Sponhorst et al., that in determining which persons, bound by a joint and several obligation, are principals and which sureties, under section four hundred and sixty-one of the civil code, no pleadings are necessary, that the court, upon a proper showing, should direct the clerk to enter judgment, certifying which of the defendants are principals and .which sureties, and that this showing may be made to appear by parol or other testimony, confirmed and applied to this case.</p> <p>In an action upon a noteas follows: “271.25. On the first day of July next, we promise to pay W. W. Bobb two hundred and seventy-one dollars and twenty-five cents, value received. November 29,1860. (Signed,) Samuel C, Rose, “William Somers, H. H. Wiloox, security;” held that the addition, by Wilcox, of the word- “security,” to his name, forms no part of the contract between the obligors themselves, nor between^them and the obligee; held that parol proof was admissible to show that Wilcox was not in fact security ; held that, the record being silent, the supremejcourt will presume that the court below acted upon sufficient proof, and that judgment therein against Wilcox as principal, and the other signers as sureties, was properly entered.</p>

The facts of the case appear in the opinion of the court. This cause is brought into this court by Guy, who urges as grounds of error : Pirst. The overruling of his motion in the arrest of judgment. Second. That the indictment is insufficient in law to maintain said action. OuT objection to the deficiency of the indictment is this: That it does not appear that the indictment was found by a grand jury of the county.

This case was originally commenced in the district court of Wyandotte county, by the filing, on the eleventh of April, 1863, by defendant in error, Sarah Driver, oí a sworn petition, against the plaintiff in error, Byron Judd, treasurer of the said county, in which was set fourth that the petitioner was owner in fee simple of real estate in Wyandotte township, in said county, describing it; that said real estate, for the years I80Ü .aid 1860, was duly assessed to pay as…

The facts of the case appear in the opinion of the court. The first decision of the court below, excepted to, is that of entertaining “amotion to quash,” after “plea of not guilty,” entered by defendant upon his arraignment. In respect to the order of arraignment and trial, the criminal code has not materially changed the common law practice. The practice has been long well settled that a motion to quash cannot be countenanced after a plea of not guilty.

The facts of the wise sufficiently appear in the subjoined opinion of the court. I. Both jurors had formed and expressed opinions as to the guilt or innocence of Morton, based upon testimony— Hurst, at the preliminary examination and Bay, the testimony on the trial of Bledsoe, Those opinions clearly disqualified them. {Comp. Laivs, p. 263, § 184; Ala. Dig., p. 386, § 33 ; 4 2nd. 22., pp. 439, 440; 15 Indiana 22., p. 351; 12 Mo. p. 225.) II.

The facts of the case appear in the opinion of the court. The question raised is as to the sufficiency of the indictment in charging an offense.

The opinion of the court contains a sufficient statement of tlie facts. This case presents the question whether Atchison county is delinquent, within the intent of the act of February 24th, 1863. The legislature of 1863 seems to have intended to provide means of paying the territorial creditors, and collecting the territorial credits. With this intention in view we are to consider the extent of purpose of this act.

The facts in this case sufficiently appear in the opinion oí' the court. I. It is a well settled principle that a promise to pay the existing obligation of another, constitutes such promise a guaranty only when such obligor is not discharged. II. An action cannot be sustained against a guarantor until after notice of non-payment. {Douglas al. vs. Reynolds et al, 7 Deters R., 126.) No notice or proof of demand was shown in this case, but the failure appears. {See record.) III.