Volume 10 — Kansas Reports

Drror from Ottawa District Court. On the 31st of October 1871 IT.

Original Proceedings in Mandamus. Turner and fifty-three others, as plaintiffs, filed their petition in this court, alleging that they were qualified voters and freeholders of Nock Creek township, county of Jefferson, and as such qualified voters and freeholders of said township of Nock Creek they had made and presented to The Board of County Commissioners of the county of Jefferson, their petition in writing praying said board “to submit to the qualified voters of such…

M'ror from Johnson District Court. Roberts brought his action against Mullenix to compel the specific performance of a contract to convey lands.

Error from Pottawatomie District Cowrt. Eoberts, a physician, presented his bill to the board of commissioners of Pottawatomie county for $62 for medical services and medicines furnished (at the request of the sheriff) to two prisoners in the jail of the county. The commissioners allowed him $10, and refused to allow him the balance of his bill. Roberts appealed, and filed a petition to which the Board of Comity Commissioners demurred.

Error from Crawford District Court- Replevin, brought by Scott to recover possession of a lot of law and miscellaneous books, which he claimed as constituting a part of his law and family library, and as exempt from sale upon execution.

Error from Shawnee District Court. Injunction, brought by Daniel M. Adams, C. W Jewell, Julius T. Clark, and F. W. Giles, to enjoin Bema/n as county treasurer, and Thomas as sheriff, from collecting certain taxes alleged to be illegal.

M'ror from Shawnee District Court. Eeplevin, brought by Dudley against Charles C. Whiting, since deceased. The property in controversy was a stock of goods taken by Whiting, as sheriff, under a writ of execution, as the property of Asa Hairgrove. The case was tried at the November Term 1868 of the district court, and final judgment was rendered for the defendant. ' Dudley brings the case here for review, making Whiting’s administratrix defendant in error.

<p>Foreign Judgment; Authentication; Presumption as to validity where ran-dared. A record of a judgment rendered in Connecticut, properly authenticated under the act of Congress of May 26, 1790, by having the proper certificates and signatures of the clerk and judge, and the seal of the court appended thereto, will be presumed prima facie to be valid and binding, and entitled to full faith and credit in Connecticut and elsewhere, although the judgment may not be signed by the judge of the court rendering it; and in general, whenever a judicial record which would be valid and binding if made in this state, comes properly authenticated from another state, it will be presumed to be valid and binding in the state from which-it comes until the contrary is shown; and until the contrary is shown full-faith and credit will be given to it here.</p>

Error from Allen District Gom't. Mary E. Faddis, a married woman, purchased directly from her husband, E. P. Faddis, a colt, and paid for said colt with money belonging to her in her own light. Afterward, her husband contracted a debt, was sued thereon, and upon a judgment rendered against him for said debt an execution was issued to Woollomes, as constable, and by the latter levied on tlje said colt. The plaintiff brought replevin.

<p>Criminal Law ; Quashing Information. It is error for the court to quash a criminal information charging grand lárceny “for the reason that the said information was not preferred or filed at the first term of said court after the defendants’ arrest, and at which they personally appeared as required by law.”</p>

Error from Leavenworth District Court. The action below was commenced originally before a justice of the peace by defendant in error, to recover of Bernstein the value of a lot of railroad cross and switch-ties taken from Smith’s land. The bill of particulars is copied in full in the opinion. The amount claimed by Smith was $300.

Error from, Greenwood District Cowrt. Corlew brought his action in the district court against W. Q,. Wickersham, John D. Allen, A. G. Allen, and Thomas Barton, for breaking and entering the close of plaintiff, (forty acres of land, describing it,) tearing down and removing fences and buildings thereon, and forcibly and unlawfully ejecting plaintiff from said premises.

Error from Cherokee District Court. Smith and another sued Gill and wife to recover for the value of certain lumber and other materials used in the construction of a dwelling-house built for defendants in the city of Baxter Springs, and foreclose a lien on said dwelling-house for the sum so claimed. The court below gave judgment at the February Term 1872 in favor of defendants, and plaintiffs bring the case here.

<p> Error from Cla/y District Cou/rt. </p> <p>Mitchell brought his suit upon an account for a lot of boots and shoes alleged to have been sold by him to Gallober & Kuhnle, partners, etc. Defendants claimed that they had received the goods to sell on commission, and that they had duly accounted, etc. The action was tried at the October Term 1871. Verdict and judgment in favor of the plaintiff, and defendants bring the case here on error. The record does not contain all the evidence, nor all the instructions.</p> <p>The district court in its instructions invaded the province of the jury by assuming that the plaintiffs in error were purchasers of the goods, when there is clearly a conflict of testimony as to whether they were purchased, or were acting in the capacity of factors or commission merchants. This was a question of fact that should have been submitted to the jury.</p> <p>1. All the evidence is not stated' in the bill of exceptions; neither does it pretend to contain all the evidence given either on behalf of the defendants, or the plaintiff, and this court cannot judge whether the instructions given to the jury were correct or not. 5 Kas., 323; 2 Kas., 357.</p> <p>2. The petition in error asks to have the judgment reversed because the trial judge instructed the jury to consider the plaintiffs in error as purchasers and not as commission merchants; but the record does not contain all the instructions. The correctness of the instructions complained of could have been more accurately determined had all the evidence been giyen in the bill of exceptions.</p>

Error from Ch'awford District Court. Replevin brought by Masterson for ten head of cattle, alleged to be of the value of $40 each. Each party claimed the right of property and right of possession. Trial at the September Term 1871. The verdict is set forth in full, and other proceedings, and the essential facts, are stated in the opinion. The defendant brings the case here by petition in error. 1. No proper judgment could be rendered upon the verdict in said cause.

Error from Cherokee District Cov/rt. Action brought by Clark to recover for a bill of lumber used in constructing a barn upon certain city lots owned by defendant, H. B. Hall, and to enforce a mechanic’s lien therefor. The petition alleged a sale of the lumber to defendants, under a contract made personally with T. W. Hall, the husband, to be used in said barn, etc. The defendants denied the alleged contract, and denied the purchase of said lumber by them or either of them.

Error from Osage District Cowrt. Action by Coon to quiet his title to a quarter-section of land in Osage county. Both parties claimed title from and under the patentee of the land, H. P. Throop. The opinion contains a sufficient statement of the facts. The case was tried at the March Term 1871. The court below found that Mrs. Browning had the legal and equitable title to the land, and gave judgment in her favor. Coon brings the case here by petition in error.

Error from Atchison District Court. On the 30th of August 1861 an action was commenced in the Atchison district court entitled “The President, Directors and Company of the Bank of the State of Kansas, plaintiff, against James A. Headley and Joseph P. Carr, partners, etc., defendants.” Summons was issued and returned “Not found,” as to both defendants.

Error from Lyon District Court. On the 22d of May 1871, a petition was duly presented to the Board of Coxmty Commissioners of the Coxmty of Coffey„ signed by the requisite number of qualified petitioners, praying that a certain portion of a county road, as established by the final order of the county board on the 8th of October 1867, be vacated.

Error from, Labette District Court. Ti-ie action below was by Loveridge to perfect and quiet his title to a certain tract of land which he claimed, and of which he was in possession. The petition alleged that the M. K. & T. Eailway Co. held the legal title; that he was entitled thereto, and that, Blackford had or claimed some interest in the said premises, etc. The defendants filed separate answers.

Error from Clay District Court. Action by Reed, upon two written instruments. The opinion states all the facts necessary to an understanding of the questions decided. The case below was tried at the ■October Term 1871. Verdict and judgment in favor of Arnold, and the plaintiff brings the case here.

Error from Johnson District Court. Action brought by James Wilson and Robert Keith to recover for damages done to certain goods and merchandise while in the possession and custody of the Railroad Company as a common carrier.

The action below was a criminal prosecution for a misdemeanor. The defendant Boyle, after conviction and judgment, filed a “petition in error” for a review of the judgment. The proceedings thereon, and the proceedings by which the case here was converted into an “appeal,” are sufficiently stated in the opinion.

Error from Davis District Court. Montelle bought through tickets for himself and family from New York city to Junction City, Kas. He was an immigrant from England, and his luggage consisted of thirteen boxes, trunks and packs, which were weighed, marked, and checked at New York by the baggage-master.

Error from Labette District Covert. Durkee sued the railroad company to recover the value of 300 telegraph poles. The pétition alleged that said poles were the property of Durkee and of the value of one dollar each, and that the “defendant, by its agents took possession , of said poles and converted the same to the use of said company,” etc. Answer, general denial. The case was tried at the November Term 1871.

JEh'ror from Allen District Court. The only questions in this case are questions of pleading and practice. J. M. Balderston and L. W. Keplinger, as plaintiffs, filed their petition against Watson Stewart and D. B. Knmert, as defendants, containing 670 separate paragraphs, and intending therein to state 670 separate causes of action.

Error from Anderson District Cowrt. Action by McCullagh upon covenants for title. The opinion of the court contains a statement of the proceedings sufficient to an understanding of the questions of practice decided, and a full statement of the facts upon the merits. The case was tried at the August Term 1871 of the district court. The court found in favor of defendant Allen, and the plaintiff brings the case here by petition in error. 1.

Information against' Lewis for perjury. He had been previously charged and tried for falsely personating another, to-wit, one Evan Lewis, “and in said assumed name and character, and by means of said false representations and personation,” obtaining from the agent of the U. S. Express Co., “on the 7th day'of June 1869,” a package containing $950.

M’ror from Butler District Court. Injunction, brought by W. P. Gossard and L. B. Snow, citizens, taxpayers arid legal voters of the town of Eldorado, against Vaught and others as county commissioners of Butler county, to enjoin the defendants from canvassing the votes cast at and returned from the several election precincts of said county at an election held on the 1st day of June 1872 “for the removal and relocation of the county-seat of said Butler coitnty.” The petition…

Error from Douglas District Cou/rt. On the 26th of June 1871 the defendants in error filed in the office of the clerk of the district court an abstract of a judgment rendered in their favor by a justice of the peace. Said abstract was in the following words: In Justice’s Court — Before Charles Chadwick, Justice of the Peace, Lawrence Township: Henry Buse, Fred.

Error from Anderson Distriot Court. Ejectment, brought by Lynch against Whitford, to recover the possession of 120 acres of land. Both parties claimed title in fee. The ease was tried at the September Term 1870.

Error from Douglas District Court. The opinion contains a sufficient statement of all the facts' upon the questions decided. The case below Avas tried at the February Term 1872. A personal judgment was rendered in favor of plaintiff Shaio for $502.97, and costs.

Original Proceedings in Mandamus. On the 23d of April 1872, Him. John P. Goodin, judge of the seventh judicial district, filed in this court his petition for a writ of mandamus against Hon. A. Thoman, auditor of state.

Krror from Labette District Court. The only questions decided here are questions of practice. The opinion contains a full statement of the proceedings. Defendants in error, as plaintiffs, had judgment at an adjourned session of the November Term 1871, and Sawyer, defendant, brings the case here on error.

Fkror from Jaehson District Court. Action to quiet title. The question here was whether the plaintiff, not being in actual possession, and the land being vacant, could maintain the action. The action was tried at the April Term 1871, and the district court gave judgment for the plaintiff. The defendant below brings the case here on error. 1. The evidence shows that the lot is vacant and unoccupied.

Errror from Cherokee District Court. The order appealed from was made by the district court of Cherokee county at the July Term 1871, in the case of “The State of Kansas v. Charles Bearow.” The record contains a transcript of the proceedings in that case, and shows that Bearow was charged by information with grand larceny.

Error from Leavenworth District Court. The action below was brought by Ralston and another, administrators, etc., against Madison Mills, Lucinda his wife, and ten others, as defendants. The action was based upon a promissory note given by said Madison Mills, bearing date November 1st 1864, for the sum of $12,000, payable one year after date to the order of William H. Ealston and Lucinda McCracken, administrators of the estate of Nelson McCracken, deceased.

-Error from Douglas District Court. Injunction, brought to restrain the collection of $218 taxes alleged to have been illegally levied on certain real property in the city of Lawrence for the year 1871.

Error from Johnson District Cowrt. The action below was brought by Chappie against Jacob Madders and Mason Morgan, to recover for work and labor in constructing a cellar under a contract with Madders, and to foreclose a mechanic’s lien for the amount' claimed. Nosttbstantial defense was offered on the part of Madders.

Error from Atchison District Cowrt. A single question of practice is decided in this case. The facts and proceedings upon which it arises are sufficiently stated in the brief of plaintiff in error, and the opinion of the court. The order appealed from was made by the district court at the June Term 1872. Stebbins, defendant below, brings the case here on error.

Error from Jefferson District Court. McArthur, an attorney-at-law, brought his action to compel the specific performance of a certain contract, (which is set forth in full in the opinion.) The deed mentioned in the contract was executed by the defendant Eliza Fry, (by her then name of “Eliza Byron,”) on the 3d of March 1862.

<p> Error from Crawford District Court. </p> <p>Carson was elected and qualified as director of school district No. 54, county of Crawford, in March 1871. A special election was called and held in said district in April 1871, at which the electors of said district voted in favor of the issuance of bonds of said district to the amount of $600 •with which to build a school-house. Said bonds were issued. • In May the school board held a meeting — director, treasurer, and clerk all being present — at which Carson, as director, was authorized and requested to “negotiate and sell said school-district bonds at such banking-house in Fort Scott as would pay the greatest per cent, on the dollar for them.” Under said authority and direction Carson, on the 26th of May 1871, sold said bonds to Van Fossen & Britton, bankers of Fort Scott, for $480. Instead of the money or currency Carson took a “certificate of deposit” for said sum of $480, “drawn in favor of said school district No. 54.” Afterward, on the 3d of June, Carson drew a check on said Van Fossen & Britton, bankers, for said $480, which check was so drawn at 4 o’clock P. M. of said day, in favor of one F. Playter, of Girard. Playter cashed said check on said day and hour. At 3 o’clock p.m. of said 3d of June the banking-house of the said Van Fossen & Britton closed and suspended, “since which time they never have resumed any payments.” On the 4th of June Carson’s check to Playter was presented to the said Van Fossen & Britton for payment, and protested for non-payment. Afterward, in July 1871, Playter instituted a suit against Carson in the district court of Crawford county to recover the said sum of $480, so paid for said check, in which action, on the 15th of January 1872, Playter obtained a judgment for $480 as principal, $31.60 as damages, $27.01 interest, and $26.30 as costs of suit. On the next day, January 16th, Carson commenced this suit as plaintiff against said Softool District as defendant, setting -up in his petition the foregoing facts, and alleging further as follows: “The plaintiff further represents to the court that all of said negotiations, transfers, sales and deposits so as aforesaid made by him were on account of, for and in behalf of said School District No. 54, by, with, and under its direction, sanction and indorsement. And the plaintiff further represents that he in good conscience ought not to be held liable for, and compelled as an individual to pay and suffer said loss of $564.91 so as aforesaid sustained, by reason of said bank-failure and suspension; but that said School District No. 54 ought to be decreed to pay said judgment so obtained by said Playter against this plaintiff who was doing and performing said above business as an officer of said district and under its directions. Wherefore,” etc. On the day this petition was filed the Treasurer and Clerk of said School District appeared and answered, denying generally the matters alleged in the petition. And on the same day, (the January Term 1872 of the district court being in session,) said action was tried, resulting in a judgment in favor of Carson for $564.91 and costs. New trial refused, and the School District brings the case here on error.</p> <p>1. No school board of any district, nor any member of the board, can sell or dispose of school bonds for anything but cash, in hand or its equivalent, materials or labor. (School Laws, Gen. Stat., ch. 93, §1; Laws of 1872, ch. 95, § 1.) The school board are the trustees of the taxpayers of the district. They can do nothing except what is expressly given them by law. They can take nothing by implication. They could not authorize any sale or transfer of bonds not expressly sanctioned by statute; and the deposit of the bonds, or the proceeds of the sale of the bonds in a bank was an unlawful act for which he is subject to criminal prosecution. Gen, Stat., ch. 93, § 10.</p> <p>2. But Carson has no right of action. He does not say that he paid or invested-a dollar of money or any other valuable thing, for or in behalf of district No. 54. He does show that he took the bonds of said district to some broken bank, and there left them and took a certificate of deposit from them in the name of the district; and afterwards drew his check on Playter, and got the money; that his check was protested, and payment refused upon it; that Playter sued him and recovered judgment. Well, that was right. But he does not say he has paid that judgment, or that the money was lost to the district; or that the district ever called on him to pay it, or that he ever did pay a cent of it. His petition does not state facts sufficient to constitute a cause of action, or entitle plaintiff below to any relief whatsoever, either legal nor equitable. Nothing is waived by the appearance and general denial of the treasurer and clerk. Is that an answer of the district, considering the manner in which it is done? No service appears tc have been made. The-answer is fraudulent upon its face, no attorney appearing for or on behalf of said district; no evidence was offered on the part of the district. It is against public policy to permit school district officers, after getting themselves into a difficulty about losing school money, to divide themselves into parties litigant, one acting as plaintiff and the other two as defendants, and the defendants making no defense, and by this most peculiar action, obtain a judgment against their district. A judgment so obtained is so grossly fraudulent that it should be reversed with istructions to the district court to dismiss the action.</p> <p>1. The action of Carson cannot be maintained, either in a court of law or equity. The courts are powerless to remedy the fancied wrongs which he supposes he has sustained. He cannot recover on contract, because he does not sue upon contract; and if he did he could not so recover, because said district is incapable of making a contract to that effect.</p> <p>2. But if the court could render a judgment in favor of Carson, how could such judgment be paid ? The board can raise no money to meet such judgment. It is not an incidental fund. It is not to pay teachers’ wages. It is not to pay interest on bonds. It is not to create a sinking fund; and for none of the enumerated causes known to the statute for raising money. The electors of the district can only raise money by vote for certain purposes, and this is not one of them. There would be no way of satisfying such judgment or decree.</p> <p>3. The plaintiff .sets up in his petition that all, or nearly all his acts were done by him alone, and not by the board. He had no right to act alone, and the board had no right to-instruct him; no right to dictate to him. (See 6 Kas., 518.) His duties as treasurer are plainly marked out by statute, and if he acted on what the members of the board, or any others, instructed, he did so at his peril. The fact that Carson was school-district treasurer is of no consequence whatever. It was not his duty, as treasurer, to negotiate the bonds, but it is the duty of the board to negotiate the bonds for labor, material or cash. See Gen. Stat., 939, ch. 93, §1, and §1, ch, 95, laws of 1872, where the following language is used, to-wit: “The bonds shall be negotiable and transferable by delivery, and may be negotiated by the school board for cash, material or labor, in the erection of a school-house or houses.” Any sale or disposition of the bonds, except for cash in hand, or, if for labor, when done and performed, or, if for material, when the same shall have been delivered, is clearly illegal. Public officers acting in a fiduciary capacity, and as custodians of public funds, must have and safely keep the same for the uses and purposes for which it was designed and intended;, and no negligence, much less a “ criminal act,” on the part of a custodian of public funds will excuse him from a strict liability and a prompt payment of the money, which it was his official duty to take care of. Sec. 10, ch. 93, Gen. Stat.</p> <p>4. Again, the bonds cannot be negotiated in the manner they were, at all, in the absence of express statutory authority; that is, the bonds cannot be negotiated for less than par, nor away from home. See 22 111., 152, where it is expressly held that the treasurer cannot legally have tíie public funds any place except at his office. The district board, as well as Carson, were engaged in an unlawful transaction when they sold the bonds for less than par. See 3 Kas., 120.</p>

Error from Nemaha District Court. The plaintiff in error, Moore, was a purchaser of real property sold by the sheriff under a decree in an action wherein Pye was plaintiff and James G. Walsh and A. G. Otis were defendants. On Pye’s motion the sale was set aside, at the April Term 1872. Moore excepted, and he brings the case here on error. The facts are fully stated in the opinion.

Mr or from, Franhlin District Court. The only question here is whether the petition filed below ■stated facts sufficient to constitute a cause of action. The averments of the petition are sufficiently stated in the opinion. The district court, upon demurrer, held the petition sufficient, and at the March Term 1872 gave judgment in favor of Hoffman. Nix brings the case here for review. 1.

Error from Wyandotte Eistriet Court. Action to establish the existence of a trust, and to compel •a conveyance of real property. The facts and proceedings .are sufficiently stated in the opinion.

Error from, Nemaha District Court. Histed brought his suit upon an “account for professional services rendered by him for defendant Margaret Hawley.” He filed before the justice a bill of particulars, giving dates- and specifying specific services, the first date being “June, 1864,” the last but one “October, 1866;” and the last item being dated “November, 1869.” Said account showed two credits, one a cash payment made “September 27th, 1866,” and the other was a credit for…

Error from Franklin District Court. Injunction, brought by Barney and eighteen others, as plaintiffs, against The City of Ottawa, and John P. Harris, treasurer of Franklin county, as defendants.

<p>1. Practice; Review of Judgment; Error. To authorize the supreme court to review a judgment of the district court error must appear on the record, and not be left to be sought by strained inferences from obscure and uncertain statements.</p> <p>2. —--Uncertain and Indefinite Statements. Land described as “ Cherokee land” is not necessarily land ceded to the Cherokee Nation of Indians by the treaty of December, 1835.</p> <p>3.--A description of a tract of land as the S.E.J-, Sec. 6, Township 35 south, of Range 20 east, does not enable the court to say that the tract so described is within the limits of the lands ceded to the Cherokees by the said treaty of 1835.</p>

M'ror from Wyandotte District Court. Colvin sued the School District to recover $160.55 alleged to be due him on the following contract: “It is hereby agreed by and between School District No. 5, ■ county of Wyandotte, state of Kansas, and William D. Colvin, a legally qualified teacher, that said teacher is to take, govern and conduct the public school of said district to the best of his ability, keep a register of the daily attendance and studies of each pupil belonging to…

Error from Leavenworth District Court. The action below was by Cass as plaintiff to recover of Moore the value of a horse hired by him, and claimed by plaintiff to have died in consequence of Moore’s negligence, and his failure to use proper care and skill in the use and feeding of the animal. The action was tried at the November Term 1871. Verdict and judgment for plaintiff for $75.

Lh'ror from Wyandotte District Court. The action below was ejectment, brought by Long as plaintiff. The fee of the land was in Long by virtue of purchase from the original patentee. The defense set up was-that Long purchased the land for ^Duncan, with Duncan’s money, (which Long loaned to Duncan,) and fraudulently took the deed in his (Long’s) own name.

Error from Allen District Court. Action by Mrs. Kelley, a married woman, against Mrs. Larimer and husband. Five defenses were set up in the answer, to three of which the district court sustained a demurrer. Trial on the other issues at the.March Term 1872, and verdict and judgment for plaintiff. The defendants bring the case here on error.

Error from Leavenworth District Court. Eeplevin, brought by Estes & Co., as partners, as the “ Great Western Manufacturing Co.,” to recover the possession of a steam-engine. Said engine was manufactured by Estes & Co. for one Philip Koehler, to be put up and used in the Leavenworth Mills then owned by Koehler. It was so put up and used in said mills; but before taking it from the shop of the builders Koehler gave Estes & Co. a chattel mortgage on the engine.

Error from Saline District Court. At the July Term 1871 of this court the case of the Kansas Pacific Ply. Co. v. Russell,' as Sheriff\ and S. Amrine, as Treasurer, &c., (8 Kas., 558,) was heard and decided.

Error from Wyandotte District Court. Injunction, brought by The Wyandotte & K. C. Bridge Company against the Comm’rs of Wyandotte Comity, to perpetually enjoin and restrain the defendant from levying a tax to pay the interest on county bonds voted to aid in building a free bridge across the Kansas river.

<p> Error from Wyandotte District Court. </p> <p>Injunction, brought by the Bridge Company to enjoin “the City of Wyandotte, its officers, servants and agents’from levying any tax upon the taxable property of said city” to-pay certain “bonds, coupons, or any part thereof,” etc. An election was held in said city of Wyandotte on the 13th of May 1871, at which the proposition “to issue the bonds of said city to the amount of $25,000 to aid in the construction of a free bridge across the Kansas,” was submitted, and a majority of the votes cast thereat were in favor of said proposition. The petition stated substantially the same facts as the petition of the same plaintiff in the action against the Commissioners of Wyandotte County, (ante, p. 326,) • and further averred—</p> <p>“That no ordinance was ever passed by the council of said city providing for the building of a bridge across the Kansas river; nor that the said city should aid in the building of such bridge; nor to submit to a vote of the voters of said city any proposition to build such bridge, or aid in building the same, nor to issue bonds for any such purpose. * * * That said city has issued its bonds or is about to cause its bonds to be issued to the amount of $25,000, * * * and to deliver the same to the said King Iron-Bridge Co., in part payment for building said bridge, and in part fulfillment of said contract of said board of county commmissioners with said company, or to deliver said bonds to said board for the purpose of applying the same or the avails thereof in fulfillment of said contract of said board. That said bonds have been issued or are about to be issued as aforesaid under color off the aforesaid resolution of said council, and said vote, and upon no other authority. And the plaintiff further says that the defendants threaten, intend to, and if not restrained will levy upon said city, taxes to pay the interest of said bonds as it falls due from time to time, and to pay the principal at maturity.”</p> <p>The city demurred to the petition. The case was heard on the demurrer, at the June Term 1872. The district court sustained the demurrer, and the plaintiff brings the case here on error.</p>

M'ror from Douglas District Court. Scott brought his action upon a promissory note dated May 8th 1867, purporting to be executed by Christian Yeager and Reuben Macomber. Yeager was not found, and Macomber answered, denying the execution of the note.* The action was tried at the February Term 1872. The plaintiff gave in evidence two letters written by Macomber to Christian Yeager, in regard to the note and the claim of the plaintiff.

Error from Lyon District Oowt't. AVeaver brought bis action against the Railroad Compamy before a justice of the peace, and filed the following bill of particulars: [Title oe Cause.] “Said plaintiff states that at and long before the 1st day of May 1870 said defendant was and still is a railway corporation, duly and legally incorporated and organized in the state of Kansas, operating its said railroad in said county of Lyon; that upon said first day of May, and upon divers…

M'ror from Bourbon District Court. Ward was the owner of 320 aeres of land, over and across which the Railway Company built its railway track and operated its road.

Error from Bou/rbon Distriot Court. Action brought by J. S. Emmert and W. A. Cormany, to recover for injuries to personal property.

Error from Allen District Court. Ejectment for lots 11 and 12, in block 21, in the town of Humboldt, brought by Amelia Bancroft and nine others as plaintiffs. They claimed said lots as the heirs-at-law of Aaron Case, deceased, and they allege in their petition that said Case died intestate, “and that at the time of his decease he was the owner of and possessed in fee simple” the said lots. Chambers filed a general denial. The action was tried at the November Term 1871.

Error from Leavenioorth District Court. French and another sued Gordon & Bro., upon a draft drawn on defendants and by them accepted. Said draft- is as follows — defendants’ acceptance, (the name, “Wm. Gordon dr Bro.,”) being written across the face thereof: “$357.00.

Error from Nemaha District Court. Clippinger, as plaintiff, filed his petition in the court below against Jay W. Tuller and Nathan Burnham.

Error from Leavenworth District Court. Action brought by Brown, as plaintiff, to subject certain real property belonging to the estate of Thomas C. Shoemaker, deceased, to the payment of a claim which the probate court had, upon final settlement of said estate, adjudged to be due to Brown. The facts averred in the petition are sufficiently stated in the opinion. The defendants, the heirs-at-law of said Shoemaker, demurred.

Error from Labette District Court. Ferguson sued Smith and another for an alleged indebtedness, and obtained an order of attachment which was levied on the property of defendants.

Error from Labette District Court. Ferguson as plaintiff brought suit in the district court against Smith & Dunham, defendants. Plaintiff sued by the name of “A. M. Ferguson,” and defendants were sued as “Frank Smith” and “E. A. Dunham,” partners, etc. An order of attachment was issued.

Error from Douglas District Court. Action brought by James T. Stevens and Calvin A. Harrison, as plaintiffs, against Chadwieh as defendant.

Error from Leavenworth District Court. McBratney brought ejectment for 640 acres of land, through which the Railway Company’s railroad was constructed and operated. The questions decided in this court turn upon the pleadings, which are fully stated in the opinion. The action was tried in the district court at the May Term 1871.

Mtot from Labette District Court. The principal facts in this case, and proceedings in the court below, are sufficiently stated in the opinion. The action was originally brought by Parker & Tisdate as plaintiffs, against three defendants — Charles W., Joseph M., and John J. Wiggins, as partners. No service on either of the defendants, but Joseph M. appeared and answered.

Error from Anderson District Court. Action brought by Emma A. Rice to recover damages for personal injuries alleged to have been sustained by reason of the carelessness and negligence of the servants and agents of the Railroad Compaovy. The principal questions were as to the care and vigilance required by the respective parties, and degree of negligence, if any, of which they were guilty. The case was tried at the December Term 1871 of the district court.

JEh'ror from Bourbon JDistriet Court. The board of county commissioners of Bourbon county condemned lands for the right of way for the Missouri, Kansas & Texas JRly. Co. through their county. Said railway company’s line of road was through a quarter-section of land owned by JEhnmer JEIaines and Geo.

Error from Pottawatomie District Court. Injunction, brought by St. Mary's College against the treasurer of Pottawatomie county to restrain the collection -of alleged illegal taxes.

Error from' Marshall District Court. Kirkwood brought his action against Reedy and wife to foreclose a mortgage executed by them. The defendants did not appear. Judgment of foreclosure and sale was entered, and the lands advertised and sold. The sale, (which ivas for a less sum than the mortgage debt,) was confirmed in April 1865.

Error from Doniphan District Court. This case was here once before, and is reported in 7 Kas., 339. Williams sued Barnett for the alleged unlawful conversion of 4,000 bushels of corn, which plaintiff claimed to have purchased of Bailey, Weightman & Butts, the contract of purchase being made with Butts.

Phrror from Wyandotte District Court. Palmer sued Hummer before a justice- of the peace upon a written instrument in words as follows: “Wyandotte, Kansas, May 4, 1870. “In consideration of a purchase from Jacob Palmer of a right patented May 18th, 1869, by Theodore DeKemp, of Kirkwood, Missouri, for making and vending wooden spring seats for wagons, I hereby promise to pay him two hundred and fifty dollars in six months, or as soon as I can with due diligence make the money…

Error from Miami District Court. Action by Sauer to recover for personal injuries sustained while riding as a passenger in defendant’s stage-coach.

Error from Chase District Cov/rt. Action brought by Arnold and Bobbins, as plaintiffs. Their petition set forth three causes of action; first, trespass for taking and carrying away railroad ties, “said ties then and there lying and being on land not belonging to said M. K. & T. Railroad Company, and being on land of other persons;” second, a claim or account for work and labor; third, for certain timber sold and delivered.

jError from Chase District Court. Blackshire appealed from the decision and aAvard of the board of county commissioners of Chase county, as to the appraisement of value and assessment of damages for lands taken for the right of way of A. T. & Santa Fe Railroad Company’s railroad through and across certain lots of land belonging to him, under the provisions of art. 9, ch. 23, Gen. Stat. 1868.

<p>1. Practice; Motion to Make Petition Definite and Certain. Where a defendant moves the court to require the plaintiff to make his petition more definite and certain, he should state in 1ns motion wherein and in what particular the petition is not sufficiently definite and certain.</p> <p>2. Pleadings; Allegations should be in Positive Terms. Whenever it is necessary to allege the non-existence of a fact, the best and only proper way to do it is to allege its non-existence in positive and direct terms.</p> <p>3. Parties ; Persons owning Property in severalty may unite as Plaintiff's to Unjoin Collection of Illegal Taxes. Under the statutes of this state any number of persons whose property is affected by an illegal tax or assessment may unite as plaintiffs in an action to enjoin the collection of such tax or assessment, although their interests may be several, and not joint.</p> <p>4. --- Who Should be Joined as Defendants; Waiver. Under the statutes as they existed in 1871, where a city of the second class levied certain special assessments for street improvements, and the city clerk certified the assessments up to the county clerk, and the county clerk and the county treasurer were proceeding to collect such assessments, held, in an action by the abutting lobowners.to restrain the collection of such assessments, that the county clerk and county treasurer were proper parties defendant. Such city ought also to have been joined. But where the defect of parties defendant is not raised by demurrer or answer it must be deemed that the objection is waived.</p> <p>5. Special Acts, Conferring Corporate Powers. An act authorizing a city to macadamize, curb, and gutter a street, and to assess the cost of the same upon the lots abutting on such improvement, is an act conferring . corporate powers; and an act conferring such powers, limited in its operation to a single city, is manifestly “a special act, conferring corporate powers,” and is void, being forbidden by $ 1 of art. 12 of the constitution.</p> <p>■6.--- Where a petition alleges substantially that certain persons in the year 1871 voluntarily, and without any authority, macadamized, curbed and guttered a certain street in a city of the second class, and that afterward the city authorities levied an assessment on the abutting lot-owners to pay for the same, and the answer of the defendants set forth that said assessments had afterward been legalized by a special act of the legislature, held, that the legislature has no power by special act to legalize such assessments so as to make them valid and binding against the abutting lot-owners.</p> <p>7. Title to Lauds ; How Proven. Actual possession of real estate is prima fade evidence of title to the same. Title by deed must be proved by the deed; title by decree must be proved by the decree; title founded on any particular instrument must be proved by such instrument. But title, without reference to whether it be by deed, decree, devise, descent, equitable estoppel, prescription, limitation, or otherwise, or whether it be a legal or an equitable title, may be proved prima facie by showing actual possession.</p> <p>8. Possession; What Facts Constitute. In an action brought to restrain the collection of certain assessments for street improvements in a city of the second class by persons who claim to be the owners of the lots assessed, evidence to the effect that “the said claimants have openly and notoriously claimed said lots for four years past; have, during all that time, taken persons upon said lots and offered to sell the same to them; have, during all that time, given in said lots to the assessor as their own, and paid the taxes on them, and that said lots are uninclosed, and no improvements have ever been made on them,” is competent as tending to show that the plaintiffs had sufficient interest in the lots to maintain the action.</p> <p>9. Street Improvements; Ordinance; Estimate of City Engineer. Under § 31 of ch. 19, Gen. Stat., being the charter of cities of the second class» (§ 68, ch. 100, Laws of 1872,) it is not necessary that an ordinance be first passed requiring that certain street improvements be made before the city engineer can make an estimate of the cost thereof. And when the estimate is made it is not necessary that the estimate shall be made for the whole cost in gross; but it is sufficient if it is for the cost of curbing and guttering per lineal foot, and for macadamizing per square yard. And when the estimate is made it is not necessary that it shall be entered upon the records of the city council in order to make it valid. And that portion of $ 31 which requires that the amount of the estimate shall be published with the advertisement for bids, is purely directory.</p>

<p> Error from Lyon District Court. </p> <p>The action below was brought by L. D. Fox, Elizabeth Storrs, Ella Storrs, L. E. Perky, Harriet N. Davis, Mildred Fuller, Evan Davis, John Wood, T. J. Anderson, James K. Patterson, Moses H. Bates, and Elizabeth Trash, as plaintiffs, against Gilmore as county clerk, and Spicer as county treasurer, of Lyon county, to enjoin the collection of certain assessments made by the city council of the city of Emporia for the .payment of constructing a sidewalk in said city in front of plaintiffs’ lots. The petition is almost a transcript •of that filed against the same defendants in Gilmore v. Norton, .ante, p,, 491. Like motions and demurrers were filed, and like proceedings had in this case, as in that, except that the demurrer to the petition assigned some additional grounds of objection. Said demurrer is copied in full in the opinion. The demurrer being overruled, the defendants answered, setting up three defenses, one of which is as follows:</p> <p>“III. And for a third and further defense to said plaintiffs’ petition said defendants say that the said plaintiffs and each of them were well aware of the commencement and progress of the said work of building said sidewalks; that they made no objection thereto in anywise, nor expressed any dissatisfaction on account of the doing of said work, but at all times openly encouraged the same; and that said work was commenced on or about April 1st 1871, and completed on or about Nov. 1st 1871.”</p> <p>The action was tried at the March Term 1872. The district court found the issues in favor of the plaintiffs, and rendered a decree perpetually enjoining the collection of the assessments complained of. New trial refused, and the defendants bring the case here .for review. [The briefs filed in this case differ little from the briefs in the preceding case of Gilmore v. Norton, and are therefore omitted.]</p>

Frror from Doniphan District Court. The City of Troy, as plaintiff, filed a petition in the district court against the Atchison & Nebraska Rid. Held: and all other things done in the most perfect order.

Error from Miami District Court. Action brought by defendant in error to recover for loss •of services of his minor son, Emil J. Sauer. Emil the son (by a next friend) brought and prosecuted his action (ante p. 466,) to recover damages for the personal injuries sustained by him while riding in Sawyer’s stage-coach as a passenger.

Error from Douglas District, Court. Action by Haney upon a policy of insurance issued by plaintiff in error on the. 12th of July 1869, upon the life of Eliza E., wife of said Haney. Amount insured, $2,000. Said Eliza died on the 13th of April 1870. Action commenced August 3d, 1870.

Error from Boitrbon District Court. Davis, assignee of Guy C. Hobart, brought his action against Miller to reform and foreclose a certain supposed “mortgage.” Said instrument is as follows: “Know all men by these presents that I, Cuy C. Hobart of the county of Bourbon and state of Kansas, in consideration of the sum of fifteen hundred dollars in hand paid by Albert Miller of the same place, have bargained and sold, and do hereby grant and convey unto the said Albert Miller,…

M'ror from, Atchison District Court. Garside owned two lots of 45 feet by 100 feet each, on which was erected a large brick warehouse, fronting on the levee, in the city of Atchison.

Original Proceedings in Mandamus. This action was commenced in this court in 1870, and an alternative writ of mandamus was awarded at the January Term 1871. See 7 Kas., 542, where a sufficient statement of the averments of the petition will be found. The Board of County Commissioners refused to issue the bonds of the county, as demanded by the Railroad Company, but in answer to the alternative writ showed cause.

Error from Clay District Court. Action brought in the name of The State on a forfeited recognizance to recover the amount of the penalty.

<p> Error from Brown District Cov/rt. </p> <p>Action by Elliott, as indorsee, on a negotiable promissory note given by Davenport to one J. H. Barnett. A sufficient statement of the pleadings, proceedings, and evidence appears in the opinion. The action was tried at the October Term 1872 of the district court. The district court gave the jury the following instructions:</p> <p>“The court instructs the jury that if they find from the evidence that the plaintiff resided in the state of Kansas at the time he purchased the note in question, (if he did purchase the same,) and that the payee and holder of said note resided in the state of Illinois, and that the plaintiff proposed by mail to purchase the same, and that the said payee and owner in compliance with or acceptance of his proposition deposited the same in the post-office directed to the plaintiff, and that the same was indorsed with the name of said payee and owner thereon, and being so indorsed was transmitted by mail to the plaintiff before due,'he (the plaintiff) became the owner thereof; and any payment made by the defendant to the payee after such transfer would be no defense in this action, and the plaintiff must recover.”</p> <p>The defendant excepted, and upon request of defendant the court also instructed the jury as follows:</p> <p>“The court instructs the jury that if they find from the evidence that J. H. Barnett, the payee of the note sued on in this action, indorsed said note to plaintiff for collection, and he has not in fact paid any consideration for said note, then plaintiff is not a bona fide holder of said note for value; and if the evidence shows that defendant at or shortly after the maturity of said note made full payment to said Barnett, such payment was a complete satisfaction of said note, and the jury will find for the defendant.</p> <p>“If the note sued on in this case was only assigned to plaintiff, and he holds as assignee, and not as indorsee, then payment to Barnett is a discharge, and the jury will find for the defendant.”</p> <p>To these two instructions plaintiff excepted. The jury found for the plaintiff, and he had judgment upon the verdict for the amount of the note and interest. New trial refused, and Davenport brings the case here on error.</p> <p>1. The district court erred in permitting plaintiff to file a reply, on the trial. The trial was on an appeal from a justice’s «court, and should have been tried on the issue originally joined.</p> <p>2. The principal .question is, whether a man who holds a promissory which is paid off, and for which he has paid ■nothing, and has a perfect defense to any action the payee •may bring against him, is entitled to the protection which the law gives to bona fide holders for value. If he is, then this ■verdict is right. If he is not within that protection, the ■verdict is wrong. The court charged the law both ways. It •tells the jury for plaintiff that an offer to pay to payee the principal and interest for a note, if accepted, and the note is indorsed .and forwarded, cuts off a defense of payment from the maker,</p> <p>whether the indorsee has paid anything or incurred any liability or not. It tells the jury for defendant that if they find that-plaintiff has paid nothing, they will find for defendant. Such double instructions could not fail to mislead them.</p> <p>Elliott is not a bona fide holder for value. (See Story on Prom. Notes, 5th ed., §§ 191, 196.) But the principle that even a bona fide holder for value can recover only the amount he has paid, settles this case, for plaintiff has paid nothing,, and can recover nothing. (Story, §191, citing 1 N. J., 665; 8 Humph., 127; 2 Hill, 301; and 1 Pars, on Notes, 257, where it is said payment of all that is due does not make the-taker a bona fide holder.) A bona fide holder must be one who-pays value. (See 1 Pars. Notes, 254.) Viewed in the light of these authorities, the instruction given for plaintiff touching a contract to purchase, is clearly erroneous and misled the jury-</p> <p>3. The verdict is against the law and the evidence of the case. Barnett, the payee, swears positively he did not sell the note to Elliott, but assigned it to him for collection. Elliott testifies “that he bought it; that he considers that he bought it.” But these are merely his conclusions of law.</p> <p>1. The only pleading known in justices’ courts is the “bill of particulars” of the plaintiff, and a like “bill” by the defendant where he sets up a counterclaim, or set-off. Justice’s Act, §§ 71, 72, 73; and the case is to be tried de novo in the district court on appeal, on the original papers, unless the appellate court allows the pleadings to be amended, or new pleadings filed; Laws of 1870, ch. 88, § 7. No reply was therefore necessary; and if it was, it was matter of discretion with the district court whether or not it should be filed, of which plaintiff in error cannot complain except for its abuse. No substantial right was affected, and if it was error it is to be disregarded. Code, §§139, 140.</p> <p>2. The question whether Elliott was a bona fide holder of the note, as stated in brief of plaintiff in error, does not aid Davenport more than it would if Barnett had given this note to Elliott before due, and delivered it, thus making an executed gift, and Elliott had notified Davenport that it was his, and after this Davenport had paid it to Barnett. Such a gift would pass the title: 10 Johns., 293; 11 Johns., 534; 14 Johns., 222; 1 Paige, 316; 23 N. Y., 502. This is putting the case the most favorable for plaintiff in error, and yet it is a demonstration, that the question as to whether or not Elliott was a “bonafide holder for value” does not arise in the case.</p> <p>3. The only question that arose in the case was fairly submitted to the jury by the instructions, the simple question being whether the note was sent to Elliott before due, and before payment, in response to and acceptance of a proposition from him to purchase it, or whether it was sent for collection. The jury found the former, and that is an end of the matter, unless the court erred in the first instruction given to guide the jury in determining the question of sale. Barnett having in response to Elliott’s proposition by letter to buy the note, deposited it in the post-office, indorsed, directed 4o him, with no other remark in regard to it except one indicating an acceptance, is bound by the contract thus made. By paying the note to Barnett without its production, Davenport did so at his peril. Gen. Stat., ch. 14, § 1; 6 Wend., 103; 6 Hare, 1; 9 How., 390; 1 Pars. Cont., 406; 11 N. Y., 441; 36 N. Y., 307.</p>

Pittman was tried upon an information charging him with selling intoxicating liquors “in the Town of Jacksonville,” in violation of the dramshop act. The case was tried at the-December Term 1872. The jury returned a verdict of guilty, and on motion the court, holding that “the information did not state facts constituting a public offense,” arrested judgment, and discharged the defendant. The State appeals from said order and decision, and brings the case here for review.

Error from Atchison District Cowrt. Action by the firm of J. A. Ham & Co. to recover from the firm of May, Weil & Co. certain alleged indebtedness. The cause was tried at the July Term 1872 of the district court. Verdiet for plaintiffs for $2,316.50. Defendants moved for a new trial, and one of the grounds assigned was alleged misconduct on the part of one of the plaintiffs. New trial refused, and judgment on the verdict, and the' defendants bring the case here for review.

Error from Shawnee District Court. Beckwith was the owner of a quarter-section of land in Shawnee county, which he occupied and cultivated as a farm. The land adjoining on the west was also cultivated as a farm. Both farms were inclosed, the fences on the north and south lines respectively connecting at the division line. The partition fence was an Osage orange hedge, the south eighty rods of which was owned by Beckwith, and the north eighty rods by one Stanley.

Error from Douglas District Court. Two actions were brought and prosecuted in the district court against John Doak and J. I). Thomas, as partners.

Error from Sumner District Court. The 'opinion in this case sufficiently presents the facts and the proceedings upon which the questions discussed and •determined are raised. Cole, as defendant in error, at the April Term 1872 of the district court, had judgment, (affirming the judgment of a justice of the peace,) and Winsor brings-the case here on error. 1.

<p> Error from Sumner District Court. </p> <p>Goddard &• Goddard, as plaintiffs, recovered a judgment before a justice of the peace. Winsor removed the case to' the district court by petition in error, where the judgment of the justice, at the April Term 1872, was affirmed. Winsor now brings the case here on error.</p>

Dh'ror from, Shawnee District Court. Replevin brought by Hill & George to recover the possession of a horse. Plaintiffs claimed title to the horse by virtue of a chattel mortgage given to them by one Davis. Adams was in possession of the horse at the commencement of the suit, and claimed title thereto in virtue of an advancement made to Davis for which he held the horse as security.

Error from, Washington District Cowrt. Action in the name of The State upon a recognizance taken in a criminal case to recover the amount of the penalty.

Error from, Ellsworth District Court. The action below was brought by Hodgden and three-others, citizens and tax-payers of Ellsworth county, to enjoin the Board of County Commissioners of said county from issuing $12,000 of the bonds of said county previously voted for the purpose of building a court-house. A temporary injunction was granted, and afterward, on motion, said injunction was dissolved.

<p>1. Redemption Law; Decree; Practice. If under a mortgage executed during the existence of the redemption law, the right to redeem exists, a decree which simply directs a sale of the mortgaged premises, and does not attempt to cut off the right of redemption, is good; and it is unnecessary to insert therein a clause specifically reserving such right.</p> <p>2. Decree, Ordering Sale of Mortgaged Premises; Several Parcels. Where more than one piece of property is included in the mortgage, and no special application is made to the district court to prescribe the order or manner of sale, a general command to sell the property mortgaged to satisfy the judgment and costs is sufficient, and an omission to insert, “or so much thereof as maybe necessary,” will not be adjudged'error.</p> <p>3. Jtjdoment in Personam; Wife of Mortgagor. A personal judgment for money against a wife who did not sign the note, but simply joined with her husband in executing the mortgage, is improper.</p> <p>4. Motion eor New Trial; Newly-Discovered Evidence. Where a motion for a new trial is made on the ground of newly-discovered evidence, and none of the testimony offered on the trial is preserved, it is impossible for this court to say that such newly-discovered evidence is not merely cumulative.</p>