Volume 1 — McCahon's Kansas Reports

<p>Contract: Town Plats : Delaware Trust Lands ; Consideration: Trusts.</p> <p>3.When a contract between private parties was made, in relation to the sale of Delaware Trust Lands, before the day of sale by government, wherein one party agreed to sell, and acknowledged payment for one-half of certain tracts to the other, agreeing to purchase at such sale, and to take up the title of another tract, to be purchased by another party who had previously agreed to purchase — said half so sold, to be divided according to a plat already made, but not filed, according to the statute regulating town plats (Stat. 1855, page 734); the same is not, by reason of these facts, illegal, and may be enforced.</p> <p>2. Such contract is not contrary to the laws of the United States, nor in violation of the treaty with the Delaware Indians.</p> <p>3. A consideration of a different character from that stated in the contract, can not be proven. The total failure may be proved, and also, that none ever existed,</p> <p>4. A contract, part of which may be repugnant to law, and against public policy, the part not being so may be divided, and may be enforced.</p> <p>5. While the features of contract may characterize an instrument, yet it may possess the essential elements of a trust, and may be enforced as a trust.</p> <p>6. Having received $560, one-half of the purchase money of the land in controversy, and applied it to its purchase under this contract, Fackler can be treated as a trustee for the other co-contracting parties.</p> <p>7. A general representation that, if the contract was made, the vendee had capital and would make improvements that would induce the irnmi-gration of mechanics, etc., is not one to vitiate the contract, as it is an agreement to do nothing definite, and can not affect the original contract.</p> <p>[NoTB. — This case was carried to the supreme court of the United States, and there affirmed. 24 Howard, 322. See Stone agt. Young, 4 Kansas, 17.]</p>

<p> Evidence : Partnership : Trusts. </p> <p>1. Parol evidence is admissible to show : First, That a specific purchase or contract for purchase, made by one partner in his own name, was nevertheless a partnership transaction ; and, Second, To show that such purchase was paid for with partnership money.</p> <p>2. Where two persons arc encaged in business together, the purchase of a tract of land by one, followed by occupancy of both, for the uses of the firm, and payment out of the partnership money, are facts competent to be proven, and, when proved, establish a resulting trust in the purchasing partner, for the benefit of the partnership.</p>

<p> Attachment: Affidavit; Practice. </p> <p>1. In an attachment the rule of construction is to insist on a strict compliance with the requirements of the law.</p> <p>2. It is not enough to state in an affidavit for an attachment, under the code, that “that affiant has reasons to believe and does believe,” etc. ; the ground upon which the affidavit is made must be set forth positively.</p>

<p>Indictment: Dram Shop : Venue.</p> <p>1. An indictment as follows: “ Second Judicial District, Territory of Kansas. — The grand jurors, summoned, impanneled and sworn and charged to inquire in and for the body of the Second Judicial District of the territory of Kansas, upon their oaths, present: That one Charles Freeman, late of Douglas county, in the district and territory aforesaid, on the first day of January, in the year of our Lord one thousand eight hundred and fifty-eight, in the district aforesaid, did sell spirituous liquors, without taking out and having a license as ‘grocer,’ dram-shop keeper or tavern keeper, contrary to the statute in such cases made and provided, and against the peace and dignity of the territory of Kansas,” is bad, because it does not lay the venue in any county in said second judicial district.</p>

<p>Jurisdiction: Courts : Probate Court.</p> <p>1. An act of the territorial legislature entitled “An act to establish a code of civil procedure,” approved February 12, 1858, so far as the same confers on the probate courts of the territory jurisdiction at common law, and in chancery, is inconsistent with the organic act and is of no legal validity.</p>

<p>Specific Performance : Penal Bond: Practice: Chancery.</p> <p>1. A bill for specific performance does not lie on a penal bond for the conveyance of real estate. The remedy is at law, on the penalty for damages.</p> <p>2. Under the law of 18*55, regulating chancery practice, the court, on sustaining a demurrer to a bill in chancery, should grant leave to amend.</p>

<p>APPEAL from the Probate Court in and for Jefferson County.</p>

<p> Pleading : Practice: Compounding Felony. </p> <p>In a case where a party charged another with embezzling his private funds, and threatened him with prosecution, and a note was given to the complaining party for the amount alleged to have been embezzled, it is no defense to answer that, “at the time the note was executed, he promised and agreed to and with the maker thereof, to compound and adjust the matter between them, to-wit: the matter of which said charge of embezzlement was made against the said maker.” There must be a positive and distinct averment that the receiver agreed and stipulated that he would conceal the felony, abstain from prosecution and withhold evidence in relation thereto.</p>

<p> Practice: Default: Damages: Judgment: Interest; Error. </p> <p>1. In no event in an action upon a penal bond can damages be assessed or judgment rendered for a greater sum than the penalty of the bond.</p> <p>2. A judgment can not be rendered to draw interest from a day prior to its rendition, nor can it fix a higher rate of interest than that allowed by law. In rendering a judgment for money, the court should fix the amount then due and render a judgment therefor, saying nothing about subsequent interest, which must be collected by the sheriff, or other officer. from the date or amount of the judgment, according to the rate of interest fixed by law at the rendition of the judgment.</p> <p>3. fn case of default in such an action an interlocutory judgment should be entered on the default, and an order made that the truth of the breaches assigned be inquired into, and the damages thereby sustained assessed.</p> <p>4. Proceedings in error may be brought under the law of 1858, to reverse a judgment rendered prior to its passage.</p>

<p>ERROR to the District Court of the Second Judicial District in and for Douglas County.</p>

<p> Jurisdiction: Probate Courts: Administration: Limitation: Error. </p> <p>1. As a logical sequence to the decision of Locknane agt. Martin and Dewey agt. Dyer, probate courts have not the legal power to determine the liabilities of estates to third parties, or of third parties to estates.</p> <p>2. The act of 1855 provides that all claims not presented in three years from the date of the letters of administration are barred, and in case the record does not disclose the fact that the claim was presented within three years from that date, it will not presume error, and will affirm the order of the probate court.</p>

<p> Practice: Injunction : Appeal: Surely: Execution : Exceptions, </p> <p>1. Where a judgment was taken on an injunction bond, and taken to the supreme court and judgment affirmed, the securities on the appeal bond only are liable by action ; and, when the clerk, by oversight in the mandate for execution in the original case, issues execution against the securities on the appeal bond, it is not error for the district court to quash the execution as to the securities for the appeal, and let it stand good as to the others.</p> <p>2 A paper found in the record, purporting to he a bill of exceptions, it not signed by the judge, can not be noticed by the supreme court.</p>

<p> BUI of Exchange: Promissory Note: Practice; Pleading: Jurisdiction; Waiver; Motion: Exceptions: Error. </p> <p>1. An instrument in words and figures following:</p> <p>“ $2,fi37.47. Parkville, Mo., April 5th, 1857.</p> <p>“Fifteen months after date, pay to the order of Fielding Burnes and Lewis Barnes twenty-six hundred and thirty-seven and forty-seven one hundredths dollars, at the Bank of the State of Missouri, in the city of St. Louis, Mo., for value received, hearing ten per cent, interest after the second day of April, 1858.</p> <p>“ McCOWN and BUCK,</p> <p> </p> <p>With the following words written across its face:</p> <p>“Accepted April 2, 1857.</p> <p>“S. N. Simpson,</p> <p>“il. J. Bliss,’5</p> <p>is not, in itself, either a bill of exchange, promissory note or writing obligatory, and does not, of itself, import a liability on the acceptors, nor can it be made by any means to operate as “a bill of exchange or writing obligatory.5’</p> <p>2. But such instrument may, by proper averments in the petition and proof on the trial, be made to operate as “a promissory note.” The instrument should be treated as a promissory note, and there should bo an averment in the petition that Bliss (who alone was served), when he accepted it, then and there promised to pay it, or by showing his original liability to pay the debt for which it was given; and, in either case, proof must be made at the trial if denied by the answer.</p> <p>3. The code has not changed the substance of pleading, nor lias it made pleading had in substance, at common law, good under it.</p> <p>4. Pleas to the jurisdiction are dilatory pleas, and were not favored by the common law practice, and much less by the spirit of our code. If not taken advantage of by answer, when the want of jurisdiction does not “appear on the face of the petition,” the objection is waived.</p> <p>5. Where it does not appear by the record that a motion in a cause was acted upon, the matter can not be inquired into by this court, it must appear by the record that action was asked and refused, and that refusal excepted to,</p>

<p>ERROR from S. B. Williams, Esq., Justice of the Peace of Leavenworth County.</p>

<p> Indictment: Pleading : Definitions. </p> <p>1. Judgment will not Re arrested where the indictment shows that the 'court had jurisdiction, and the facts stated constitute a public offense.</p> <p>2. The words “steers” and “ working cattle,” are synonymous and designate one and the same thing, to-wit, “cattle that hare worked.”</p>

<p> Chancery : Jurisdiction : Settler : Pre-emption : Action : Evidence : Damages. </p> <p>1. A court of chancery will not entertain jurisdiction of a ease to exert its equitable powers of relief, when the complainant can have adequate remedy by an action at law.</p> <p>2. A party in possession of lands under the laws of the united States, with the status of a hona fide settler, and the right to pre-empt, has rights which the law will protect, and, for the violation of which, he is entitled to redress in an action at law.</p> <p>3. The government price of land is no criterion by which to ascertain the damages, in a proceeding to assess damages, by reason of an injunction granted to restrain the cutting of timber on such land.</p>

<p> Limitation : Constitutional Law, </p> <p>1. The Statute of Limitations of 1855 (Statutes of 1855, p. 96, sec. 4) means that the limitation of three years to actions on contracts, obligations or liabilities, expressed or implied, shall begin to run from the taking effect of the act, and the legislature intended to give three years from that time to bring suit on such causes of action,</p> <p>2. It is presumed that the statute above referred to took effect about the first of September, 1855.</p> <p>3. It ivas the intention of the act of 1858 (Laws of 1858. p. 67, sec, 18), which took effect April 1st, 1858. limiting the right of action in such cases to six years, to extend the limitation on such causes of action to six years from the taking effect of the act of 1855. which it was competent for them to do in all cases where the then limitation had not expired.</p> <p>4. A limitation may be extended where it has not already expired ; but a contract which is already barred by existing laws can not be revived.</p> <p>5. The territorial legislature has no power to pass a law impairing the obligation of a contract, or, at once, without notice, destroy all remedy thereon. The legislature can not give less than a reasonable time to bring suits on causes of action, which are not barred by the existing law when the rune one is enacted. Therefore, a cause of action which had, until September, 1861, to run, under the Laws of 1855 and 1858, above mentioned, but which, by the terms of the act of 1859 (Laws of 1859, p. 184, sec. 21), was instantly barred, might be sued upon within a reasonable time after the passage of the act of 1859.</p> <p>[Note. — See Elliot agt. Imchnane, 1 Kansas, 126; Root agt, Bradley, id., 487; Laurent agt. Bernier, id,, 428; Munn agt. Taulman, id., 254; Auld agt. Butcher, 2 Kansas, 135; Chick agt. Willetts, id., 384; Bonifant agt. Doniphan, 3 Kansas, 26; Toby agt, Allen, id,, 399; Swickard agt. Bailey, id., 507; Smith agt. Kline, id., 506; Searle agt. Adams, id., 515; Jones agt. Eisler, id., 134; Barnes agt. Garvey, 4 Kansas, 555; Hart agt, Horn, id., 232; N. M. B. It. Co. agt. Akers, id., 453; Mifflin agt. Stalker, id., 283.]</p>

<p>ERROR from the District Court of the First Judicial District in and for Leavenworth County.</p>

<p>Corporations — Municipal: Streets: Sewers: Agent: Officer: Ordinance.</p> <p>1. Under the charter of 1855 (Statutes of 1855, pp. 841, 8-12), the city of Leavenworth is fully authorized to grade her streets, construct sewers, drains, etc., within the corporate limits, and to do and to perform such acts in relation thereto, as may be necessary, just and proper to promote the best interests of the community , through and by the legally appointed officers of the city.</p> <p>2. The city is invested with privileges and beneficial powers which are to be used and exercised for the benefit of those who constitute the community in advancement of the public weal; but, in the exercise of these privileges, the city is subject to the obligations prescribed by the law of the land in regulation and control of her acts with reference to the rights of individuals.</p> <p>8.The charter does not place the city beyond the reach of responsibility for acts done or left undone by the city or her agents, by which wrong or injury may accrue to the persons or property of individuals.</p> <p>4. A corporation is an artificial body created by law, which, as well as a natural person, is amenable to the laws.</p> <p>5. An incorporated city is amenable to the law for acts done by her or her agents, either willfully or through negligence, to the injury of the person or property of others.</p> <p>6. The city having elected to grade a street or build a sewer, is legally responsible for such damage as accrues from the wrongful and negligent mariner in which the work was done by the city or her agents.</p> <p>7. The city is bound to make a sewer of sufficient size to guard against accidental obstructions and extraordinary freshets, and it is no excuse for a failure so to construct it that the engineer or other person who constructed it thought it sufficient.</p> <p>8. The city was bound to exercise such caution and prudence in the construction and care of the work as a discreet and cautious individual would if the whole loss or risk were to be his alone.</p> <p>9. The ordinance of the corporate authorities, directing public improvements, is judicial in its nature, and extends immunity from private action for damages to those who perform the duty ; but there this immunity ceases. The further prosecution of the work is purely of a ministerial character. The agents who perform it are selected by the corporate authorities, and they are bound to see that it is done in a safe and skillful manner.</p> <p>10. It is the duty of a municipal corporation to build a sewer so that it will not be a nuisance to a neighborhood, as much as it is to avoid the same result by keeping it in repair after it is built.</p> <p>[Note. — See City of Leavenworth agt. Norton, 1 Kansas, 482 ; Same agt. Rankin, 2 Kansas, 357; Burnes agt. City of Atchison, id., 454; State agt. Young, 3 Kansas, 445; Hines agt. City of Leavenworth, id., 186; City of Atchison agt. Butcher, id., 104; City of Atchison agt. Bar-tholow, 4 Kansas, 124.]</p>

<p>Indictment: Ferry Charter: Forfeiture: Quo-Warranto : Practice in Criminal Cases : Constitutional Law : Jjicense Tax.</p> <p>1. The provision of the Code of Criminal Procedure (Laws of 18-59, p. 198, see 99) that “ In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute by its title, and the day of its approval, and the court must take notice thereof,'” only gives an example, but does not require that it shall always be followed.</p> <p>2. The question of the forfeiture of a ferry charter, can not, be tried on an indictment. It can only be inquired into and determined in a proceeding in the nature of quo warranto brought for that purpose.</p> <p>3. All legal defenses to an indictment for a violation of the territorial laws may be made under the plea of not guilty, and a special plea is not necessary.</p> <p>4. No material averment in an indictment, which is denied by the defendant, is taken as true, but it must be proved in some manner by the prosecution.</p> <p>5. When it is averred in an indictment that the defendant kept a ferry without a license, it is incumbent on the territory to prove that the defendant had no license.</p> <p>6'. An act of the territorial legislature, granting a ferry franchise, is a contract between the legislature and the grantee, which the legislature can neither change, repeal or impair the obligation of.</p> <p>7. Where a ferry franchise is granted by special act of the legislature, a license from the county tribunal is not required.</p> <p>8. The legislature may authorize the county tribunals to impose a tax upon all ferries, and require the keepers to pay it when so fixed. This may be enforced, but not by indictment. The tax need not be paid until it is fixed by the county tribunal; and, if the statute does not provide for its collection, the common law does by civil action.</p>

<p> Practice : Service : Summons: Corporation : Error. </p> <p>1. A return of service of summons upon the secretary of a town company should state that the president or other chief officer was absent from the county, or could not be found.</p> <p>2. For irregularities of procedure and matters of form, which are subject to amendment, and susceptible of legal adjustment, in practice, so as to promote substantial justice, parties must first, procure the action of the court of original jurisdiction thereon, before they can resort to the appellate jurisdiction of the supreme court.</p> <p>Note. — See Case agt. Hannahs, 2 Kansas, 491.]</p>

<p>PETITION for Habeas Coruus to the Supreme Court.</p>

<p>ERROR from the District Court of the First Judicial District in and for Leavenworth County.</p>

<p> Specific Performance: Pleading: Parties: Widow: Dower: Infants: Guardian. </p> <p>1. In an action to enforce the specific performance of a contract, based upon the following certificate, lo-wit:</p> <p>“No. SI 2. Wyandotte City Company.</p> <p>‘‘This certifies that Isaiah Walker is entitled to one share of ten lots (numbered as per record and endorsement), .in the city of Wyandotte, situate at the confluence of the Kansas and Missouri rivers, in the Wyan-dotte purchase, Kansas terriiory, subject to the condition ol improvements, within the city limits, to the value of five hundred dollars per share, within ten months from the date of this certificate; and the Wyandotte City Company is h<*r«d>\ pledged to give a good and valid deed of the same, when all the hd- malt have been drawn and the above condition complied with. Timb.'v reserved.</p> <p>•'Wyandotte City, Kansas Territory, July 8, A. D. 1837.</p> <p>MY. Y, Roberts. Secretary, Sitas Armstrong. President,”</p> <p>and assigned to the Wyandotte P>riclge Company. The petition is fatally defective, in not showing that the condition in the certificate had been performed, in making the improvements within the city limits, within ten months after its date.</p> <p>2. The administrators, as such, of deceased parties, are not proper parties defendant to such an action.</p> <p>3. A widow claiming dower, or any other interest in the land, is a proper party defendant.</p> <p>4. Infants can not be brought into court without personal service, if residents of the terriiory, or by publication, if non-residents. They can not appear by attorney, or waive service of process, but must be served, have a guardian, appointed, and defend by him.</p>

<p> Practice : Peal Property ; Another Trial. </p> <p>1. It is error for the court to refuse another trial, when demanded by the party against whom judgment has been rendered, in an action for the recovery of real property, when the demand is made, by notice on the journal, within the proper time.</p> <p>2. A notice on the journal, entered by the clerk, who is the only per~ son authorized to make such entries, under the direction of the court, is the only way a party can demand another trial “by notice on the journal.”</p>

<p> Error: Exceptions. </p> <p>1. The supreme court will not take notice of alleged errors in the record and proceedings of inferior courts, unless they are objected or excepted to at the proper time.</p> <p>[Note. — See Small agt, Douthitt, 1 Kansas, 335 ; Koehler agt. Ball, 2 Kansas, 160; Lender agt. Caldwell, 4 Kansas, 339.]</p>

<p> Error : Exceptions : Waiver. </p> <p>1. Tire reversal of a judgment of a justice of tire peace, on petition in error in the district court, in a case where the justice has jurisdiction of the parties, and of the subject-matter, can not be had, unless the transcript shows that, the action, or rulings of the justice, were objected or excepted to at the time,</p> <p>2, If a party wishes to avail himself, in the supreme court, of supposed error oí the court below, he must show that he objected, or excepted, to the rulings, or it will be presumed he acquiesced in them, (See Brown agt. App, ante, 174.)</p> <p>[Note. — See Small agt. Douthitt, 1. Kansas, 835; Koehler agt- Ball, 2 Kansas, ICO; Lender agt. Caldwell, 4 Kansas, 339.</p>

<p>Practice : Pleading : Exceptions i Waiver.</p> <p>1. If the plaintiff files a reply after the time fixed by law, without obtaining an extension of time from the judge or coart, the reply is improperly filed; but if the defendant does not move to strike it from the files, or if the plaintiff asks leave of the court, and files his reply, the defendant objecting, but not excepting to the ruling of the court, the defendant waives his right to object, and after having waived it once, he can not afterward interpose any objection on that score.</p>

<p> Indictment: Fugitive Slave Law: Guardian: Infant: Agent: Attorney: Pleading. </p> <p>1. The guardian of an infant owner of a slave in Kentucky can not pursue the slave into another state or territory, to which he has escaped, and there arrest him under the Act of Congress of 18th September, 1850, he not being the person to whom the labor of the fugitive is due by the laws of Kentucky, nor the agent or attorney of such person, empowered in the manner specified by that act.</p> <p>2. The act requires a special mode by which the agent or attorney shall be authorized to act, and any other authority to him is insufficient. The authority must be by the act of the person to whom the service is due,</p> <p>8, If the guardian had authority, as such, to arrest the fugitive, it would be necessary, in an indictment for the offense, of rescuing the fugitive from his custody, after the arrest, to state the time, place, and by what authority the appointment of guardian was made.</p> <p>4. The indictment must distinctly show that the fugitive escaped from the state or territory where the service or labor was due by the haws thereof.</p> <p>5. The indictment must also show that the defendant knew' or had notice that the person arrested was a fugitive, owing service or labor, etc.</p>

<p> Jurisdiction: Kansas Indian Reserve : Courts. </p> <p>1. The authorities of the state of Kansas have jurisdiction to try a white man for the murder of another white man, committed on the reservation of the Kansas tribe of Indians, in said state, and no such power resides in the circuit court of the United States for the district of Kansas.</p> <p>[Note. — See McCracken agt. Todd, 1 Kansas, 148; Clay agt. The State, 4 Kansas, 49; United States agt.. Stahl, post, 206.]</p>

<p> Jurisdiction: Fort llar her : Courts. </p> <p>1. The right to punish for murder, or for any other offense committed, within the limits of her territory, must belong to the state of Kansas, unless some rule of law constitutes special cases exceptions to that rule.</p> <p>2. The situs of Fort Barker was not purchased by the United States, and no consent was ever given by the legislature of the state of Kansas to its use as a fort.</p> <p>8. The government of the United States, when it admitted Kansas into the Union upon the same footing as the original states, retained the legal title to all the lands which she then owned in the state of Kansas, but parted with the sovereignty or jurisdiction for the general purposes of government over it, with certain reservations and exceptions.</p> <p>4. The right to exercise jurisdiction over the crime of murder, having been vested in the state of Kansas by the act admitting her as a state, and she never having parted with that right, it can not belong to the United States.</p> <p>5. The courts of the United States have no jurisdiction of the crime of murder committed upon the military reservation of Fort Barker, in the state of Kansas.</p> <p>[Note. — See McCracken agt. Todd, 1 Kansas, 148 ; Clay agt. The State, 4 Kansas, 49 ; United States agt. Ward, ante, p. 199.]</p>

EJECTMENT of a tract of land in Johnson county. A jury being waived, the case was tried by the court, and the following findings of law and fact made.

<p>Corporation: By-Law: Mortgage : Sale : Trusts: Account: Equity: Practice.</p> <p>1. A by-law of a corporation is a mere rule for the government of the officers of the company in conducting their own business, and can have no effect upon the contracts of the corporation with other parties.</p> <p>2. A deed of trust of personal property, executed in Kansas, must be governed by the laws of that state, in existence when the deed was made.</p> <p>3. Under an act of the governor and legislative assembly of the territory of Kansas, entitled “ An Act to provide for the foreclosure of mortgages,” approved February 11, 1859, all mortgages and deeds of trust of personal as well as real property, were required to be foreclosed by proceedings in the courts under the civil procedure act.</p> <p>4. A sale without a foreclosure in court, of personal property, by the trustees, under a deed of trust, executed by a corporation, while the said act was in force, is without authority, and in violation of the trust for which the trustees and the purchaser can be called to account in a court of equity, but the accounting must be made with the corporation, and jurisdiction over it is an indispensable requisite to any decree in the case.</p> <p>5. A shareholder in a corporation can not come into a court of equity and assert against third parties rights which belong to the corporation, but which it, declines to assert. The court, at the instance of a shareholder, can only apply preventive remedies for the protection of rights endangered by the neglect of directors and the threatened aggressions of others.</p>

APPEAL and Error from the District Court of the United States for the District of Kansas. Certain property of the plaintiff in error, was confiscated in 1863, by proceedings in the district court, under the acts of Congress, for acts done and permitted in aid of the rebellion.

BILLS IN EQUITY. — One to enjoin the issuing of certain bonds ; the other to enjoin the collection of a tax for the payment of a certain coupon. The cases were heard and decided together.