Volume 12 — Kansas Reports

Error from, Leavenworth Distriot Court. McBratney brought ejectment against the Railway Company for 640 acres of land, alleging that he (the plaintiff) “has an equitable estate therein, and is entitled to the possession of said lands, and 'that the defendant unlawfully keeps him out of the possession thereof.” The answer contained two paragraphs.

<p> Error from Doniphan District Court. </p> <p>Quo Warranto. The title of the action below was— “Charles Miller, Joseph Hastings, Nicholas Harrington, James T. Lindsley and Henry A. Howard, plaintiffs, vs. The Inhabitants of the Town of Palermo, and Robert Kimber, Charles Wilson, Wm. R. Powers, Obediah Smith and J. C. Inman, as the Board of Trustees of said Town of Palermo, defendants.” The petition, after the caption and title, is as follows:</p> <p>“The plaintiffs aver that they are citizens, residents and tax-payers on the following described lands, to-wit; [describes 320 acres of land;] that there are a large number of citizens, residents and inhabitants upon said lands, to-wit, the number of fifty; that both said plaintiffs and defendants are included in said number of fifty: that said defendants claim to be a municipal corporation, under the name and style of The Town of Palermo, and that said defendants Kimber, Wilson, Powers, Smith and Inman are the board of trustees of said corporation, and that said Kimber is the chairman of said board; that defendants claim all of said above described lands as included within the limits of said municipal corporation, and to have and exercise all the rights, powers, and privileges of a municipal corporation over all of said lands, and all the inhabitants of said lands, and over the persons and property of these plaintiffs. Plaintiffs aver that defendants are not a corporation, and that none of them are officers of any such municipal corporation.</p> <p>“Wherefore plaintiffs demand judgment that said pretended corporation and said pretended officers be ousted, and the franchises of said pretended corporation be seized into the hands of the state, and said pretended corporation dissolved.”</p> <p>To this petition the defendants demurred, assigning as grounds therefor —</p> <p>“ 1st, That said plaintiffs have not legal capacity to sue in this action, it appearing from said petition that in said'action the county attorney of said county, or the attorney general of the state of Kansas are the qnly persons authorized to sue.</p> <p>“ 2d, That there is a defect of parties plaintiff, in this, that said action should have been brought by the county attorney of said county, or the attorney general of the state of Kansas.</p> <p>“ 3d, The petition of the said plaintiffs does not state facts sufficient to constitute a cause of action.”</p> <p>The district court, at the December Term 1872, sustained the demurrer, and gave judgment for the defendants. The plaintiffs bring the case here on error.</p> <p>The real question in this case is, whether this action could be brought by these plaintiffs, or whether it should be brought by the county attorney, or the attorney general. I claim that the amendment found on page 277, laws of 1871, to the civil code, places the power to sue in the hands of the plaintiffs, and takes it from either the county attorney or attorney general.</p> <p>The interest which the plaintiffs have in the subject of the action is one common to all the inhabitants of the town. Without having a peculiar interest in the subject of the action, and without their rights being peculiarly affected, they cannot maintain the action. 5 Kas., 519.</p>

Error from Leavenworth District Court. Injunction, brought by Masters, as plaintiff, against J. H. McHolland, as township trustee, Theodore Myers, as road overseer, and the Board of County Commissioners, to enjoin the opening of a certain road through plaintiff’s land. The facts are fully stated in the opinion.

Error from Leavenworth district court. This is a motion for a rehearing of the case reported in 10 Kan. The petition below alleged that the plaintiff “has an equitable estate therein, [certain lands,] and is entitled to the possession of said lands, and that the defendant unlawfully keeps him out of the ¡possession thereof.” The answer contained two paragraphs.

Error from Miami District Cow't. Yallie sued Rubideaux on the following instrument in writing: “$1,900. - Paola, May 6th, 1871. “ On or before September next after date I promise to pay Jack Yallie or order nineteen hundred dollars, value received, with interest at ten per cent, from first of July 1870 till paid. This note is given to secure payment of purchase-money for the [describes 275 acres of land,] all in Miami county, Kansas.

Error from Franklin District Court. Ejectment, brought by Swope, to recover six lots in the city of Ottawa. The defendants answered, claiming that they were the legal and equitable owners of the lots. Trial at the March Term 1872 of the district court. Swope showed title in himself, by a regular chain of conveyances from the government, and rested.

An information was filed against McKwen for obtaining goods under false pretenses. At th.e December Term 1872, a motion to quash, upon the ground that “the facts stated in the information do not constitute a public offense,” was sustained. From this decision of the criminal court The State appealed; and now in this court the defendant moves to dismiss the appeal, for reasons stated in the opinion.

Mrror from Leavenworth District Court. Trespass, brought by Ferguson, against Craves and two others to recover damages for destroying fences belonging to plaintiff.

Error from Saline District Court. Foster brought his action in the district court on a promissory note, claiming judgment “for $79, 'with interest thereon from the 18th of January 1867, at the rate of ten per cent. ,per annum.” The petition was filed in May 1871. The answer of the defendant contained three defenses, which are fully stated in the opinion, as are also the proceedings and question raised on the trial in the court below.

Error from Pottawatomie District Gowrt. Action by Jacobia to compel contribution from Points, as a co-surety. In his answer Points alleged that the question of suretyship had been determined by a justice of the peace before whom the parties here were sued jointly as makers of the note, and that by such determination Jacobia was the principal debtor, and Points the surety. The facts are fully stated in the opinion.

Error from Greenwood District Court. Mitchell and wife, as plaintiffs, obtained a judgment before a justice of the peace against Kaub and another. The district court, at the September Term 1872, affirmed said judgment, and Kaub now brings the case here. The facts and proceedings are sufficiently stated in the opinion. 1. The district court erred in affirming the judgment of the justice. A motion was made before the justice to dismiss, for want of jurisdiction.

Error from Montgomery District Court. Action by McTaggart against Harrison and wife, to compel the specific performance of a contract to convey certain real estate.

Error from Montgomery District Court. Action by Emmert & McCulloch, as plaintiffs, against James DeLong, as mayor of Independence, and J. C. Leonard, as defendants. Plaintiffs seek to recover $530 for professional services rendered by them as land-office attorneys nnder a contract made August 1st, 1871, with one E. E. Wilson, who was then mayor of the city of Independence, and who, it is alleged, made the contract in that capacity.

Error from Brown District Court. Action by Allison and another on three promissory notes made payable to them. Scantlin, the maker of the note, answered, first, that the plaintiffs were not the real parties in interest, second, that the consideration of the notes had failed, and third, damages for the breach of covenants of seisin in a deed of land sold by plaintiff to defendant, and for the purchase-money of which land the notes were given.

Error from, Pottawatomie District Court. Action brought by Chester Thomas, Matthew Ryan, and Jacob Eoerhardy, to recover from Irwin certain moneys alleged to have been had and received by Imoin to their use. The action was .commenced in Shawnee district court, and transferred, on motion of defendant, to the district court of Pottawatomie county, where it was tried at the February Term 1872. Verdict and judgment for plaintiffs for $2,442, and Irwin brings the case here.

JEh'ror from Wyandotte District Court. , The question in this case was, whether a homestead right acquired at a particular time defeated the lien acquired under an order of an attachment which was levied several months prior to the occupation of the land by the homestead claimant. The district court, at the June Term 1872, held that the homestead right was paramount, and set aside a sale made under a judgment based upon a prior attachment-lien.

Error from Howard District Court. The only question in this case is as to the validity of certain statutory provisions, which the district court, at the July Term 1872, held to be unconstitutional. The facts are fully stated in the opinion.

Error from Doniphan District Garni. In December, 1872, Ray filed his motion in the district court to revive (as against Brermer) a judgment rendered in his favor in 1862 against one Foreman as principal, and Brenner as surety. The motion was denied, at the December Term 1872, and Bay brings the case here. Other facts will be found in the opinion. It was only necessary for an execution to issue, in order to make the surety Brenner liable in this case on the judgment.

Error from Doniphan district court. The case is stated in the opinion. It was only necessary for an execution to issue, in order to make the surety Brenner liable in this ease on the judgment. Once liable, he would continue to so remain, until the statute of limitations would bar the judgment against him; and the reeord shows that several executions were issued.

Error from Atchison District Court. Sage sued Kelley for malicious prosecution, and recovered a judgment — the jury assessing his damages at $1,223. The action was tried at the November Term 1872 of the district court. Kelley brings the case'here. The facts are stated in the opinion. 1. There was error in the court’s giving the 5th instruction as asked for by plaintiff in the court below.

Fhror from Atchison District Court. The only question here is as to the sufficiency of a defense interposed by Alderson to a petition in ejectment, when raised by demurrer. The form and substance of the defense appear in the opinion, infra. The district court, at the 'March Term 1873, overruled the demurrer, and Stringfellow brings the case here. The court erred in sustaining the demurrer.

Error from Miami District Court. Injunction, brought by Brackenridge against the Board of Comm’rs of Miami Co., Geo. W. Warren, as county clerk, and Wm. Crowed, as county treasurer, and D. Coonrod. The real question was, whether the lands of Brackenridge, being part of the Miami Indian lands, reserved by said Indians under and by virtue of the first article of the treaty between the Urdted States and said tribe of Indians, dated June 5, 1854, were taxable.

Error from Neosho District Court. Injunction, brought by the Railroad Company, to restrain the collection of taxes. The defendant demurred. The demurrer was sustained, and a judgment entered in favor of the defendant for costs, at the July Term 1872 of the district court. The Railway Company brings the case here.

Original Proceedings in Mandamus. On the 17th of September 1872, the A. T. & Santa Fe Rld. Held: construed, and treated as if made in a suit to which said companies were not parties; but this saving of the rights of said Railroad Companies is not to be construed in any way to modify, as to said County of Jefferson, or its commissioners, or their successors in office, the aforesaid order for an injunction, which is to remain in…

Original proceedings in mandamus. On the seventeenth of September, 1872, the Atchison, Topeka & Santa Fe Eailroad Company, as plaintiff,… Held: construed, and treated as if made in a suit to which said companies were not parties; but this saving of the rights of said railroad companies is not to be construed in any way to modify, as to said county of J efferson, or its commissioners, or their successors in office, the aforesaid order for an injunction, which is to remain in…

Error from Atchison district court. Action brought by McCubbin to recover from the city the sum of $436.80, alleged to be due him, as assignee of a contract, for work done for the city. Answer — First, a general denial; second, that defendant had been garnished by the creditors of O’Keefe, plaintiff’s assignor, and had been adjudged, as such garnishee, and as the debtor of O’Keefe, to pay the four several sums of $202, $157.55, $48, and $29.25, ^making said •■sum of $436.80.

Error from Atchison District Court. -B. F. Hudson and David Johnson, members of “The Perpetual Building and Savings Association of Atchison,” 'brought their action in the court below, against the Board of County Commissioners, and David Baker, as county treasurer ■of Atchison county, to restrain the collection of a tax assessed by said commissioners against said plaintiffs respectively, on certain shares of stock in said corporation held and owned by said plaintiffs…

<p>1. Party: FT ote Payable in Work. Where a note payable in work has been sold and delivered to a third party, the latter can maintain an action thereon in his own name.</p> <p>2. Bill and Hotes: Hote Payable in Work: When Money Demand. Where a note has been executed for a fixed amount, payable in work at a certain time and place, and at the time fixed the maker is absent from the place, and has no one present to do the work, and the payee is in no manner responsible for his absence, the instrument becomes a money demand, and may be sued on as such.</p>

Jffrror from Greenwood District Court. Eeplevin, brought by Esterly. The questions here are upon questions of practice, and the opinion, infra, contains a full statement of the necessary facts, and of the pleadings and proceedings in the court below. At the February Term 1873 of the district court, the plaintiff below, Esterly, had judgment, and Brookover brings the case here for review.

Error from Neosho District Court. At the December Term 1872 of the district court, Clark recovered a judgment against Donnel for $255, and costs. Dormel brings the case here on error. The opinion contains a statement of the pleadings and facts. 1.

Error from Bourbon District Court, Action upon a due-bill (non-negotiable,) given by Brewster to Dimon & Swasa, and by them indorsed to Hall. The defense was, that payment had been made to D. & S., by sale and conveyance of certain real property, pursuant to a contract made between defendant and D. & S., of which contract said due-bill was a part. The action was commenced before a justice in Cherokee count-y, and removed to the district court of that county by appeal.

Error from, Franklin District Cowrt. Replevin, brought by Sumner, to recover the possession of “one American Organ,” a musical instrument, which plaintiff claimed as general owner. The property was replevied and delivered to the plaintiff. The defendants, C. B. Cook and H. B. Tucker, alleged ownership in themselves, and they demanded a return of the property.

Error from Atchison District Court. Action brought by McCubbin to recover from the city the sum of $436.80 alleged to be due him as assignee of a contract, for work done for the city.

Error from Franklin district court. Eeplevin, brought by Sumner, to recover the possession of “one American organ,” a musical instrument, which plaintiff claimed as general owner. The property was replevied and delivered to the plaintiff. The defendants, C. E. Cook and H. E. Tucker, alleged ownership in themselves, and they demanded a return of the property.

Error from Coffey District Court. Action upon-a forfeited recognizance, brought in the name of The State by the county attorney, against James Redmond and Samuel C. Jenkins, as sureties, and Samuel Suntzinger, as principal in said recognizance. The defendants answered, alleging that the justice before whom Suntzinger was examined, and who took the recognizance, had no jurisdiction over the alleged offense, and that said recognizance was void.

Error from Douglas District Cou/rt. Tegart sued Harttmann before a justice of the peace, for medical attendance and services rendered by plaintiff for defendant’s wife. The justice gave judgment for plaintiff for $129.50, and costs. On petition in error to the district court, said justice’s judgment, at the November Term 1872, was affirmed: and HarttmarCn now brings the case here on error¿ The facts sufficiently appear in the opinion.

Error from Saline District Court. The only question in this case is as to right of a plaintiff to recover an attorney fee from the defendant in an action to foreclose a mortgage, when there is no contract or agreement by tbe defendant (mortgagor) to pay such fee. The district court, at the November Term 1872, gave judgment for the plaintiffs, including an attorney fee therein, and the defendants bring the case here on error.

Error from Howard District Court. Action by Fay, as plaintiff, upon a non-negotiable note, set out in full in the opinion. The plaintiff had judgment for $187.50, at the July Term 1872 of the district court, and the defendants bring the case here on error.

Original Proceedings in Mandamus. Lewis, as plaintiff, -commenced suit in this court, in November 1872, against The Board of Oo. Held: the vote canvassed, the declaration of the canvassers that the issue is assented to, that a contract was made, the bonds executed and delivered under the contract, was all that plaintiif was required to know, and fully confirmed in him the securities as valid and binding.

Error from Doniphan District Court. Lenox, as plaintiff, brought suit against Henry Reed, John A. Bruce, and Aaron Clem, as defendants.

Error from, Miami District Court. Injunction, brought by the Board of County Commissioners of Miami County, against the Missouri River, Fort Seott and Gulf Railroad Company, Josiah E. Hayes, treasurer of the state of Kansas, and William Crowell, treasurer of Miami County, to restrain the collection and payment of the interest on certain bonds issued by Miami county to the said railroad company by authority of the board of commissioners of said county.

Error from, Franklin Eistriet Gov/rt. Peter P. Elder and John Walrupf, as plaintiffs, filed their petition against the First National Bank… Held: (on the authority of Railroad Go. v._ Hurd & Fair, 17 Ohio St., 144,) that the true intent of §16, art. 3, was to empower the “several justices and judges of the courts of record,” to exercise such “jurisdiction at chambers in cases pending in their respective courts, as might be provided by law.” This interpretation reduces that…

Error from Douglas District Court. On the 16th of December 1872 the National Bank of Lawrence as plaintiff recovered two judgments in the Douglas district court against P. P. Elder and John Walruff, defendants, on certain promissory notes given by Elder and Walruff to the First National Bank of Ottawa, and by said Ottawa Bank transferred to the Lawrence Bank.

Error from Douglas district court. On the sixteenth of December, 1872, the National Bank of Lawrence, as plaintiff, recovered two judgments in the Douglas '•district court against P. P. Elder and John Walruff, defendants, on certain promissory notes given by Elder and Walruff to the First National Bank of Ottawa, and by said Ottawa bank transferred to the Lawrence bank.

Error from Jackson district court. Action by Keller upon an official bond given by Andrew Neal, (a justice of the peace,) as principal, and J. F Wyatt and Charles Sprague, as sureties.

Error from Atchison District Court. Action, by Baker, as county treasurer, against Challiss and his surety, on an injunction bond given by Challiss in an action brought against Baker’s'predecessor. The injunction being dissolved, as directed by this court, (9 Kas., 155, 162,) and Challiss refusing to pay the amount demanded by Baker, this suit was brought. The defendants demurred.

Error from Atchison district court. Action by Baker, as county treasurer, against Challiss and his surety, on an injunction bond given by Challiss in an action brought against Baker’s predecessor. The injunction being dissolved, as directed by this court, (Parker v. Challiss, 9 Kan. *155, *162,) and Challiss refusing to pay the amount demanded by Baker, this suit was brought. The defendants demurred.

*Error from Franklin district court. Action by Randal to determine the adverse estate or interest of Elder in lots 1, 3, 5, and 7, in block 32, in the city of Ottawa. In 1864 the Ottawa Town Company sold to Randal lots 1, 2, 3, 4, 5, 6, 7. 8, 9, and 10, in said block 32, which, at that time, had been surveyed and staked off, but its plat had not yet been filed of record.

Error from Eyon District Court. Beplevin, brought by Schmidling, to recover the possession, of two heifers taken up and held by Wm. IL Gilchrist and James Nisbit as marshal and policeman of the city of Emporia. Defendants claimed that they took up the cattle in •controversy pursuant to the provisions of the following ordinance : An Ordinance, To regulate and prohibit the running at large of animals. Be it ordained by the Mayor and Councilmen of the City of Emporia: Section 1.

Error from Lyon district court. Beplevin brought by Schmidling to recover the possession of two heifers taken up and held by William H. Gilchrist and James Nisbit ■as marshal and policeman of the city of Emporia.

Error from Lyon district court. The ease is stated in the opinion. Baker was a necessary party. If the sale was within the scope of his authority, defendants below owned the wagon entire; and in the determination of this question, Baker & Lyon were united in interest. This action is in the nature of trover or replevin, and it is a good defense that the property is in a stranger, or in the plaintiff and another, and there can be no recovery unless that other be joined.

Error from Brown District Court. Ogden brought ejectment against Walters to recover possession of a quarter-section of land in Brown county. The case was tried at the October Term 1872 of the district court. The plaintiff introduced patent from the United States of the land in controversy, to one David A. 'Williams; also a deed from said Williams to his wife, Mary Williams, of the half ■ of the land.

Error from Brown district court. Ogden brought ejectment against Walters to recover possession of a quarter-section of land in Brown county.

Error from Neosho District Cowrt. Trespass, brought by Stevens, for the alleged unlawful taking and conversion of certain timber. The proceedings in the court below, and the facts of the case, are fully stated in the opinion. The district court, at the December Term 1871, gave judgment for Perrier, and Stevens brings the case here.

Error from Doniphan District Cou/rt. The plaintiff in error paid all the taxes assessed on the line of its railroad in Doniphan county, for the year 1872, except a city tax assessed by the city of Troy, and a school-district tax assessed by school district No. 21; and commenced this action against S. Maquillan as sheriff, Robert Tracy as treasurer, Chas.

Error from Butler District Cou/rt. Ellis filed his petition in the nature of an action of quo warrcunto to recover possession of the office of clerk of the district court of Butler county, to which he alleged he had been duly elected and qualified, and to oust Reddin therefrom. The proceedings in the court bplow are stated in the opinion, infra. The district court, at the February Term 1873, gave judgment for Reddin, and Ellis brings the case here on error.

<p>*Error from Butler district court.</p> <p>The case is stated in the opinion.</p>

Error from Russell District Court. The action below grew out of a county-seat controversy. The county of Russell was duly organized, and the town of Russell designated as the temporary county-seat. The first election was held September 15th, 1872, for the permanent location of the county-seat, and for the election of county officers. A canvass of the votes made by the temporary commissioners showed a majority in favor of Bunker Hill for the county-seat.

Error from Eussell district court. The action below grew out of a county-seat controversy. The county of Eussell was duly organized, and the town of *Eussell designated as the temporary county-seat. The first election was held September 15, 1872, for the permanent location of the county-seat, and for the election of county officers. A canvass of the votes made by the temporary commissioners showed a majority in favor of Bunker Hill for the county-seat.

Error from Bourbon District Court. Trespass, brought by Noffzigger to recover damages for injuries committed to his lands and growing crops by colts belonging to McAllister, in Walnut township. The plaintiff's premises were uninclosed by a fence, and he relied upon an order made by the board of commissioners of Bourbon county establishing the night herd law in said township.

Error from Leavenworth District Court. The action below was brought by Levi Houston as plaintiff, against Marcus-D. Claypoole, Thomas Plowman, and Sarah E. Plowman, and Merrit H. Insley, as administrator of the estate of Jeremiah H. Claypoole, deceased, as defendants, alleging among other matters that Insley, as such administrator, had attempted to execute a certain statutory power, that of making a deed for lands of a decedent, sold, as he claimed, under order of a probate…

<p>Common Carrier: Special Contract. Where a railway company, being a common earlier of live stock, transports a car-load of cattle for the plaintiff at special rates, under a special contract signed by both parties, by the terms of which the plaintiff is to accompany the stock and superintend it on the way, and where, by another clause in the contract, it is stipulated that damages to such stock in transit shall not be allowed unless notice in writing of a claim therefor be given to the company at or before the time of unloading the cattle, and it appears that plaintiff did accompany the stock, and knew of the injury at the time, but did not give notice thereof for more than a year, held, that he cannot recover.1</p>

Error from Wyandotte District Court. Houts brought trespass agaiust the Pacific Railroad Company, to recover damages for an alleged wrongful act of the company in running upon and killing a span of horses, at the city of Wandotte, in October 1871. Answer, a general denial. Trial at the June Term 1872, and verdict and judgment for Houts for $268. The Railroad Co. brings the case here. The questions arising in the case are stated in the opinion. 1.

Error from Crawford District Court. Ejectment, brought by Alexander Hamilton and Judith DePriest, to recover possession of 160 acres of land. Defendants, Thomas Cregg and Robert Keys, answered, setting up title in themselves.. The district court, at the May Term 1873, sustained a demurrer to. defendants’ answer, and gave judgment for the plaintiffs. The defendants bring the case here.

Error from Fra/nMin District Court. Means brought ejectment for 320 acres of land in Franklin county, and obtained a judgment for the… Held: that the deed from Julia Goodell to Perry Fuller, being a nullity, by virtue of article 10 of the treaty of 9th July 1860, did not amount to even color of title, and hence was not sufficient to sustain Krause’s claim to the benefit of the occupying- claimant law, and that, although within its letter, he was not within its true spirit…

<p>New Trial ; Fraud of Successful Party. Where direct issues of fact are joined upon proper pleadings, and the defendant uses reasonable diligence to be ready to defend the action, but is absent from the trial, and the plaintiff, who is the only witness who testifies at the trial, obtains a judgment by means of his own willful and corrupt perjury, the defendant may have the judgment vacated and a new trial granted under the fourth subdivision of section 568 of the code, “for fraud practiced by the successful party in obtaining the judgment,” although he may not be able to show that he also has a right under the seventh subdivision of said section to have said judgment vacated “for unavoidable casualty or misfortune, preventing him from defending the action.”</p>

*Error from Johnson district court. This case was here twice before: first at the January term,. 1871, and then at the July term, 1871. Laithe v. McDonald, 7 Kan.. *254, *266. On being remanded the second time, the action came on for trial, and was tried at an adjourned term of the district court-held in February, 1872.

Error from Alim District Cowl. This case determines questions of practice only; and the facts, and the proceedings in the court below, upon which these questions are raised, are sufficiently stated in the opinion, infra. Mrs. Berry, defendant below, had judgment for costs, at the March Term 1873 of the district court, and the plaintiff brings the case here on error.

Hrror from Saline District Cowrt. Phelps brought suit against Couse, counting on an undertaking executed by Couse, as surety for one Bayers, to enable Bayers to obtain a return of property seized on an order of attachment issued in an action brought by Phelps against Bayers. To the petition in this case Couse demurred. The district court, at the November Term 1872, overruled the demurrer, and gave judgment for the plaintiff, and Couse brings the case here on error.

Error from Chase Eistriet Court. Stanford sued the Railroad Company to recover damages for injuries sustained by the destruction by fire of a mare and colt, 400 bushels of corn, 80 bushels of oats,… Held: no evidence would be necessary to prove the establishment of fire-guards around the property lost by defendant in error.

Error from Chase district court. Stanford sued the railroad company to recover damages for injuries sustained by the destruction by fire of a mare and colt, 400 bushels of corn, 80 bushels of oats,… Held: no evidence would be necessary to prove the establishment of fire-guards around *the property lost by defendant in error.

Error from Shawnee District Court. Ejectment, brought by Heller, against William M. Haynes and George W. Donnell, to recover the possession of “Lot 241, Kansas avenue, in the city of Topeka, Shawnee county.” It is admitted that Heller had a regular chain of title to said real estate from the government to himself.

Error from Shawnee district court. Ejectment, brought by Heller against William M. Haynes and’ George W. Donnell to recover the possession Fifth.

Error from Atchison District Court. Action for relief on the ground of fraud, brought by Claggett against Crall.

Error from Atchison district court. Action brought by Claggett against Crall.

At the September Term 1872, of the Lyon county district court, to-wit, on the 12th of' October, 1872, Hon. John H. Watson, District Judge, presiding, the following proceedings were had and entered of record, to-wit: In the matter of 1 E. B. Peyton, an Attorney-at-Law. j The court having received information that E. B. Peyton, one of the practicing attorneys at the bar of this court, did on the 2d day of March 1868, on the occasion of an application at that time made in his…

*Appeal from Lyon district court. At the September term,- 1872, of the Lyon county district court, to-wit, on the twelfth of October, 1872, Hon. John H. Watson, district judge, presiding, the following proceedings were had and entered of record, to-wit: “The court having received information that E. B. Peyton, one of the practicing attorneys at the bar of this court, did on the second day of March, 1868, on the occasion of an application at that time made in his behalf to be…

Error from Leavenworth district court. Injunction, brought by Epsen, as plaintiff, to restrain the board of commissioners from opening a certain highway, known as the “Sullivan Road,” laid out and established in Leavenworth county. Upon •the hearing of the application the district court, at the April term, 1873, granted a temporary injunction. It is admitted in the statement of the facts in this case that Epsen did not receive the notice required by section 4 of the road act.

Error from Shawnee District Court. Ejectment, brought in the Davis county district court, by the Republican River Bridge Co. against the Kansas Pacific Rly. Co., to recover a section of land. The venue was changed to the Shawnee district court, and the action was there tried at the December Term 1871. Findings and judgment for defendant, and plaintiff brings the case here on error.

*Error from Shawnee district court. Ejectment brought in the Davis county district court, by the Republican River Bridge Company against the Kansas Pacific Railway Company, to recover a section of land. The case was removed to the Shawnee district court, and there tried at the December term, 1871. Findings and judgment for defendant.

Error from Davis District Court. Goggin, as plaintiff, sued the Railway Co. for alleged damage to live stock transported, sustained by reason of delay in transit. The petition is for breach of the implied contract as a common carrier for not transporting within a reasonable time. The defendant answered, that the cattle were carried under a special contract, which contract was set forth in the answer.

Error from Lyon District Gourt't. Action by Baird to foreclose a mortgage given to him by Truitt and wife. A motion to quash the summons, was overruled. The answer set upon a counterclaim, or set-off,-and damages for breach of contract, as defenses. The case was tried at the September Term 1872, of the district court. Verdict for plaintiff, and judgment of foreclosure, a.nd for sale of the mortgaged property. Truitt and wife bring the case here.

Original Prooeedings in Quo Warrcmto. On the 8th of May, 1873, the Attorney-General, as relator, filed his duly verified petition in this court, in the name of The State of Kansas, as plaintiff, and against The Board of Gownty Commissioners of the County of Pawnee, George B. Cox, A. H. Boyd, W. S. Patten, and D. A. Bright, as defendants.

Error from Greenwood district court. The case is stated in the opinion. This case was here before, and the petition in error was then dismissed for want of necessary parties. 11 Kan. *357. Billson & Jones, as partners, recovered a judgment against Hodgson, at the June term, 1872, of the district court, for $100.87, and costs.

Error from Osage district court. Foreclosure, brought by the bank, as plaintiff, against Pratt and wife. At the November term, 1873, the plaintiff had judgment against Pratt for $3,065.18, and a decree against Pratt and wife for the sale of certain lands.

Original Proceedings in Quo Warranto. This action was commenced May 12th, 1873. The petition was entitled, The State of Kansas upon the relation of the Attorney-General, plaintiff, against The Board of County Commissioners of the County of Ford, James Hanrahan, Charles Bath, J. G. McDonald, and Herman J. Fringer, defendants.

Error from Saline District Cowrt. Snead sued John J. Prater, Catlett Prater and Joseph Peters, for professional services as an attorney-and-counselor-at-law, and recovered judgment, at the April Term 1872 of the district court, for $1,225. The defendants bring the case here. The facts are fully stated in the opinion.

*Error from Saline district court. Snead sued John J. Prater, Catlett Prater, and Joseph Peters,, for professional services as an attorney at law, and recovered judgment, at the April term, 1872, of the district court, for $1,225.

Petition for Writ of Habeas Corpus. A civil action was pending in the district court of Leavenworth county, between the German Savings Bank of Leavenworth, as plaintiff’ and Simon Abeles, as defendant. The plaintiff served notice on Abeles that depositions would be taken before C. F. W. Dassler, a notary public, at his office, on the 20th of January 1874, and said Abeles was duly subpoenaed to attend and testify at such time and place.

M'ror from Gi'eenwood District Court. The action below was brought by W. P. Byan and James Murphy, as partners, against Wm. M. Thwrber, K. 8. Thu/rber, and Samuel Boohover, to recover damages for an alleged breach of contract. The facts, so far as they are material to the questions decided, are stated in the opinion, infra. The case was tried at the February Term 1873 of the district court. 'Verdict for plaintiffs for $977.87.

Error from Clay District Gowrt. At the May Term 1873 of the district court, Frazer and Miller, each claiming to be a justice of the peace, and to hold and exercise the duties of the same particular office, (Frazer claiming to be the successor of Miller,) signed and submitted to the court an agreed statement of facts, upon which they asked the district court to decide whether Frazer was the successor of Miller, and as such entitled to said Miller’s docket and records as such…

*Error from Clay district court. At the May term, 1873, of the district court, Frazer and Miller, each claiming to be a justice of the peace, and to hold and exercise the duties of the same particular office, (Frazer claiming to be the successor of Miller,) signed and submitted to the court an agreed statement of facts, upon which they asked the district court to decide whether Frazer was the successor of Miller, and as such entitled to said Miller’s docket and records as…

Error from FramMin District Court. The county attorney brought an action in the name of The State against Weatherwax, upon a forfeited recognizance given by the latter in a criminal proceeding for his (Weather-wax’s) appearance at the then next ensuing term of the district court, “then and there to answer to the charge of malicious mischief.” Weatherwax answered, alleging that “at the time he signed and executed the said recognizance he was a minor under the age of…

Error from Wyandotte District Cowt. Scoffins brought ejectment against Grandstaff and two others. The action was tried at the October Term 1872 of the district court, without a jury. Findings and judgment for defendants. New trial refused, and Scoffins brings the case here on error.

JEit'ror from Douglas District Court. Action by the heirs of Lewis Twining, deceased, upon a policy of insurance'upon the life of said Twining, for $5,000. Trial at the November Term 1872 of the district court, without a jury. ■Findings and judgment for the plaintiffs for $5,225.36. New trial refused, and the Life Insurance Co. brings the case here. The pleadings, proceedings and evidence are folly stated in the opinion, infra.

Error from Miami District Court. The Board of County Commissioners as plaintiffs sued the Railroad Companvy, praying the court to decree that a- “pretended contract or agreement made and entered into on the 18th of June, 1868, by and between Henderson Rice, John Tontz and Cyrus Shaw, as the Board of County Commissioners of the county of Miami, and the Missouri River, Eort Scott & Gulf Railroad Company, (formerly called ‘ Kansas & Neosho Valley Railroad Company,’) be declared…

<p>1. Counties: Power of Board to Sell and Dispose of Property. Under the Laws of 1862 the county commissioners could, without any specific legislation, and without any express authority of the voters, make a valid sale and transfer of stock in a railroad company belonging to the county, and issued to it by such company in pursuance of a duly authorized subscription. So, too, could they in like manner sell and transfer any other personal property belonging to the county.</p> <p>*2.-: Agents. In making such a sale the commissioners are the agents of the county.</p> <p>3. Sales: Fraud: Collusion. A sale may be avoided when accomplished by fraud on the part of the purchaser, or by collusion between the purchaser and agent.</p> <p>4. Contract: Executory Relief in Equity. Where both parties to an ex-ecutory non-negotiable contract for the sale and transfer of personal property have failed to perform any of the stipulations of the contract, neither party can make the mere fact of non-performance ground for the interposition of a court of chancery to declare the contract null and void.</p> <p>5. -: Seal: Attestation: Corporations. A court of equity will not declare a contract between two corporations, otherwise valid, void because the seals of the corporations are not affixed to it; but, if necessary, will rather compel the parties to affix their seals.</p> <p>6. -: Consideration: Inadequacy. Mere inadequacy of price affords. no ground to set aside a contract of sale, unless it be of so gross a nature and given under such circumstances as to afford a necessary presump4 tion of fraud or imposition.</p> <p>7. -: Fraud: Presumption. Where part of the consideration is money, and part the doing of certain work within a specified time, proof that the cash consideration is grossly inadequate! without any snowing as to the nature aiid value Of the work to be done, raises no presumption of fraud or imposition.</p> <p>[8. Principal and Agent: Avoiding Contracts. The principal may avoid a sale made by his agent, and recover the property sold from the purchaser, when _such sale is- accomplished by fraud practiced by the purchaser upon the, agent,'the latter being innocent of wrong;, when it is made'by collusion between the purchaser and agent; and, in some cases, where there has'been’.a mutual mistake of fact. Per Brewer, J. j</p>

Error from Leavenworth District Court Judgment of foreclosure, and for the sale of the mortgaged premises, was entered in an action wherein Beach was plaintiff, and Mills and Mills were defendants. The property was sold at sheriff sale, and bid in by Whitaker. The district court set the sale aside, at the May Term 1873, and from this order Whitaker appeals, and brings the case here on error.

Error from Leavenworth district court. The notice given by the sheriff of the time and place of sale-was sufficient, as the words of the statute are answered *by one publication inserted in a newspaper thirty days before the day of sale. Code, § 457; Craig v. Fox, 16 Ohio, 564; Gwynne,. Sheriffs, 300; Andrews v. Ohio & M. B. B. Co., 14 Ind. 170.

Error from Chase District Court. Replevin, brought by, McCarty, as administrator, to recover the possession of twenty head of horses and twenty head of neat cattle, alleged to belong to the estate of Wm. G. Quirnby, deceased. The defendant Martha E., widow of said Wm. G. Quirnby, claimed to own said property in her own right. The action was brought in the district court 'of Cowley county, and the property was there' replevied, and delivered to the plaintiff.

Error from Franklin District Court. Action by Cutler to foreclose a mortgage given by Jenness and wife to secure the payment of the following note: “$1,650. Ottawa, Kansas, Nov. 3, 1870. One year after date I promise to pay to the order of William E. Haxton sixteen hundred and fifty dollars, value received, payable at the Banking-House of P. P. Elder & Co., Ottawa, with interest at the rate of 12 per cent, per annum after maturity, until paid.

Error from Wyandotte District Cowrt. Ejectment, brought by Gray, to recover the possession of 64 acres of land. The action was tried at the March Term 1873, of the district court. Judgment for plaiiitiif, and the defendants, Fred. FredericJc and Sarah Dyer, bring the case here on error. The facts are .fully stated in the opinion.

Error from Doniphan District Court. Catherine Beeler, as plaintiff, and one of the heirs of ¥m. D. Beeler, deceased, fled her petition for the partition of certain real estate of which said deceased died seized. The other heirs of said deceased were made the defendants; and among these heirs were Ora E. Dodge (formerly Ora E. Beeler) and her son Frcmk Beeler. Said Frank duly appeared by a guardian ad litem,.

Error from Doniphan district court. Catherine Beeler, as plaintiff, and one of the heirs of Wm. D. Beeler, deceased, filed her petition for the partition of certain real estate of which said deceased died seized. The other heirs of said deceased were made the defendants; and among these heirs were Ora E. Dodge (formerly Ora E. *Beeler) and her son Frank Beeler. The district court, at the September term, 1873, decided that as Marion Beeler (a son of said Wm.

Error from Atchison District Court. Ejectment, brought by Matilda Hamner and nine others, as the heirs of John Hamner deceased, to recover the possession of 160 acres of land, to which they claimed title as owners in fee simple. Holmes answered, setting up title, legal and equitable in himself, claiming as the grantee of R. S. McCubbin the patentee.

Error from Atchison district court. Ejectment brought by Matilda Hamner and nine others, as the •heirs of John Hamner, deceased, to recover the possession of 160 acres of land. Holmes answered, setting up title in himself, claiming as the grantee of R. S. McCubbin, the patentee. The district court, at the November term, 1872, overruled a demurrer to the answer, and gave judgment for the defendant.

<p>1. Roads and Highways; Notice to Land-Oimer; Jurisdiction of County Commissioners. The notice to the land-owner required by section 4 of chapter 89 of the General Statutes, in relation to “Roads and Highways,” has respect, not so much to the laying out of the road, as to the compensation of the owner of the property to be taken therefor.</p> <p>2. --An omission of such notice does not invalidate the proceedings for laying out a road, if otherwise regular.</p> <p>3. --Damages for Land taken. A land-owner, receiving no notice, has a good claim against the county for damages for the land taken.</p>

Error from Nemaha District Court. Eeplevin, brought by Rising. & Son. The facts, and the mortgage under which Rising & Son claimed the oxen in controversy, are fully stated in the report of this case, when first here, (8 Kas., 297, 300.) This court sent the case back for a new trial, and such trial was had at. the April Term 1873 of the district court. Verdict and judgment for Rising & Son, and defendant Wolfley brings the case here on error.

Error from Doniphcm District Court. Perry sued Bailey for services rendered as an attorney-at-law. Trial, at the September Term 1873 of the district court. Perry asked certain instructions. The third instruction asked was modified by the court, and given as modified.

Error from Doniphan district court. Perry sued Bailey for services rendered as an attorney at law. Trial at the September term, 1873, of the district court. Perry asked certain instructions. The third instruction asked was modified by the court.

<p> Error from Leavenworth District Court. </p> <p>Action by J. C: Gerund and Henry Foote as plaintiffs, to recover $477.75 for 68| barrels lager beer sold and delivered by them to Kunz. Trial, and judgment for plaintiffs, at the September Term 1873, for the amount of their claim. Kunz brings the case here. The facts, pleadings, and proceedings at the trial, are stated in the opinion, infra.</p> <p>1. The statute makes the act of selling “any fermented or other intoxicating liquors,”'without proper license, a misdemeanor, punishable by fine and imprisonment. No valid cause of action can arise out of an unlawful act; and under this very enactment this court has so decided. (Poison v. Hope, 7 Kas., 162; The State v. Volmer, 6 Kas., 371.) We anticipate the answer to this position; that we did not plead the unlawfulness of the contract; it is true, in specific words, we did not, nor did good pleading require it to be done. What is the condition of the pleadings? and was it necessary for the defendant to set up specifically in his answer the fact that the plaintiff had no license to sell liquor? The plaintiffs allege a general indebtedness; the defendant denies the indebtedness,' and alleges certain other matters, which if true, would entitle him to judgment against the plaintiff. As we understand the case of Marly v. Smith, 4 Kas., 185, it was there decided that where a general indebtedness is. alleged, anything — of whatever nature — may be proved under the general genial; and the correctness of that decision has never been questioned. There is not anywhere in the taswer in the case at bar, an admission of the indebtedness alleged in the petition. Defendant endeavored to prove that which would defeat plaintiff’s claim, just as payment would have defeated it. 7 Kas., 162.</p> <p>2. If there was any question as to the evidence under the pleadings, the court should .have allowed the amendment asked, and it seems to us it was an abuse of discretion not to do so.</p> <p>It was not error to exclude evidence of the fact that plaintiffs had no license to sell beer. Under the pleadings it was not a question for the jury: the defendant, by expressly admitting a sale and' delivery, was estopped from showing any fact that would contradict that admission. A party cannot contradict by evidence at the trial, what the pleadings themselves admit in the cause on trial. A material fact admitted need not be proved, and cannot be disproved. 1 Phil, on Ev., 454, note 129; 5 Bush., (Ky.) 471; 4 E. D. Smith, 325; 38 N. Y., 28; 6 Kas., 231.</p>

Error from Leavenworth district court. Action by J. C. Grund and Henry Foote, as plaintiffs, to recover $477.75 for 68] barrels lager beer sold and delivered *by them to Kunz. Trial, and judgment for plaintiffs, at the September term, 1873, for the amount of their claim. The statute makes the act of selling “any fermented or other intoxicating liquors,” without proper license, a misdemeanor, punishable by fine and imprisonment.

Cassady was charged by information with the crimes of burglary and grand larceny.

The information in this case is as follows: “S. H. Glenn, county attorney in and for the county of Atchison, state af Kansas, and in the name and by the authority of said state of Kansas, comes here into the district court of said Atchison county, on this ninth day of June, 1873, and gives the said court to understand and be informed that the defendants, George Fleming and David Cassady, late of said Atchison county, on or about the night of the twenty-second day of April,…

Original Proceedings in Quo Warranto. The facts in this, case were agreed upon, and are copied in full in the opinion, infra. Held: we have a key which will easily unlock this mystery. The term “first election,” in the constitution, undoubtedly means the first election under the constitution for any given office. When applied to the office of justice of the peace, it means the first election for justice in the township for which the justice is elected.

Error from Greenwood District Court This case was here before, and the petition in error ivas then dismissed for want of necessary parties. (11 Kas., 357.) It is now here on its merits, the necessary parties being before the court. Billson & Jones, as partners, recovered a judgment against Hodgson at the June Term 1872 of the district court for $100.87, and costs, and Hodgson brings the case here for review. The facts are fully stated in the opinion.

■Error from Osage District Court. Foeeclosuee, brought by the Bank as plaintiff against Pratt and wife. At the November Term 1873, the plaintiff had judgment against Pratt for $3,065.18, and a decree against Pratt and wife for the sale of certain lands. The defendants bring the case here on error. The facts fully appear in the opinion.

Krror from Jachson District Court. Action by School District No. 2, of Nemaha and Jackson counties, to recover from Hinton, as late school-district treasurer, certain moneys. The case was tried before J. H. L.,. l’eferee, who found the facts in favor of the plaintiff, ascertaining the amount due to be $150.

Error from Pottawatomie District Court. Replevin, brought by Wood, to recover the possession of 160 head of cattle taken up by Davis as strays. Trial, and judgment for defendant at the February Term 1873 of the district court, and Wood brings the case here on error. 1.

<p>Error from Pottawatomie district court.</p> <p>'The case is stated in the opinion.</p> <p>'The court below fell into the unaccountable error of supposing that because section 5, e. 105, Gen. St., provides that “no person shall take up any unbroken animal *as a stray, between the first day of April and the first day of November, unless the same be found within his lawful inelosure, nor shall any person, at any time, take up any stray, unless it be found upon his premises,” that therefore •every animal found on the premises of anybody except its owner in 'the month of December must necessarily be a stray, and decided the •case against the plaintiff. Strays are animals that are lost, and no ■ one knows their owner. 1 Bouv. Law Diet. 542; 2 Kent. Comm. 359; 1 Bouv. Inst. 196, par. 498; 1 Bl. Comm. 297; 2 Bl. Comm. 14. The -cattle in controversy were not strays when defendant took them up. He knew whose they were, and took them up only because they annoyed him. The plaintiff and defendant both lived in the same neighborhood, where the cattle had been owned and kept for years. They lived but four miles apart, the same distance that the defendant drove the cattle, — to Vroman’s, — to have them kept, when he took them up, and before he advertised them; and it was admitted on the trial that they were not taken up or found within the defendant’s lawful inclosure. If a whole herd of one hundred and sixty head of cattle may lawfully be taken up and treated as strays under such circumstances as these, no farmer or stock-grower in the state can suffer his cattle to run at large a single day without incurring the liability of their being taken up by his neighbors, and posted as strays within sight of his dwelling.</p> <p>The defendant did not sufficiently describe the cattle in the stray notices which he posted. The law (section 8) requires the taker-up-of a stray immediately to advertise the same by posting up notices, containing “a full description of the stray.” This section of the stray law was not complied with by the defendant, and therefore he could not legally detain the cattle from the plaintiff, whether they were strays or not, nor recover the amount which the court below found in. his favor as the value of their possession.</p> <p>The animals taken up were unbroken, and taken up between. the first day of November and the first day of April, *and were-found upon the defendant’s premises. Within the meaning of section l,c. 105, Gen. St. 1868, no unbroken animal could lawfullywander upon the premises of the defendant between the dates stated, and whenever it did so it was a trespasser, and as such liable to be taken, up; and it is perfectly immaterial whether the owner was known, or whether there was 1 or 160 head of such unbroken animals. The question is not whether the animal is an estray, as at common law, but, taking, into consideration our condition, and the intent of the legislature, was the animal, at the time, one liable to be taken up? The word “stray,” in the act, is not used in any limited or technical sense; it is intended in the general sense,— to wander; to rove at-large; to play free and unconfined, — as Webster has it. The owner-of estray animals, which have been lawfully taken up, must pay the-costs and expenses of keeping before he is entitled to have them. Kerr v. Laird, 27 Miss. 551; Mahler v. Holden, 20 111. 363; Garabrant v. Yaughn, 2 B. Mon. 327.</p> <p>The description is to be a “full”’description, and was evidently intended to mean a general one; for section 11 provides another kind of description, which is denominated a “true description,” which the appraisers shall make, and which must be accurate. The description, was sufficient.</p>

Error from Atchison District Cop/rt. Ktmuuut.tn brought his suit against Simpson and Carmichael, to recover damages alleged to be sustained by reason of the willful violation of a contract between the parties. This contract, and the pleadings and proceedings in the district court, so far as material, are stated in the opinion, infra. The action was tried at the November Term 1872 of the district court.

Error from Miami District Cowrt. Action brought by Lester to foreclose a mortgage executed by one A. Thomas and wife on their homestead. Thomas and wife conveyed the premises to Chapman, who claimed that the mortgage had been discharged. The facts upon which the defense was based are fully stated in the opinion, infra. The district court, at the December Term 1871, gave judgment in favoi’ of Lester, and Chapman brings the case here.

Error from Doniphan Distriot Court. Action by Stewart & Humphrey, as plaintiffs, to recover the sum of $570 and interest on two notes executed by defendant W. R. Power for $1,000, and to foreclose a mortgage executed by Power and wife.

Error from Doniphan district court. Action, by Stewart & Humphrey, as plaintiffs, to recover the sum of $570 and interest on two notes executed by defendant W. E. Power for $1,000, and to foreclose a mortgage executed by Power and wife.

Mror from, Wyandotte District Court. Action by Walker to recover damages from the Mailway Company for digging ditches on plaintiff’s lands, by means of which said lands were overflowed, and otherwise injured. The answer contained, first, a general denial, then averred that Walker was not the owner of said lands, and was not in possession thereof at the time of the committing of the supposed tresjiasses. The case was tried at the June Term 1872 of the district court.

*Error from Wyandotte district court. Action by Walker to recover damages from the railway company for digging ditches on plaintiff’s lands, by means of which said lands were overflowed and otherwise injured. The answer contained, first, a general denial, then averred that Walker was not the owner of said lands, and -was not in possession thereof at the time of the committing of the supposed trespasses. The case was tried at the June term, 1872, of the district court.

Error from Jefferson District CouH. Patrick presented his bill to the county board for $230 alleged to be due him as fees for services rendered by him as county clerk. The commissioners disallowed his account, and Patrick appealed to the district court, where the case was tried at the May Term 1873. Patrick had judgment for the amount of his claim, and the Board of Cov/nty Commissioners bring the case here for review.

<p>*Error from Jefferson district court.</p> <p>The case is stated in the opinion.</p>

<p>1. Intoxicating Liquors; Sales without License Prohibited. The sale of intoxicating liquors without a license is prohibited by statute, and this prohibition is operative within as well as without the limits of cities of the second class, and subsequent as well as prior to the law of 1872 concerning cities of the second class.</p> <p>2. --Sales on Credit. The sale of intoxicating liquors without license being prohibited by statute, no action can be maintained to recover for such liquors so sold on credit, whether the quantity sold be great or small.</p>

Error from Nemaha district court. The ease is stated in the opinion. We rely on sections 3 and 14 of chapter 35 of General Statutes, and construction given thereto in Dolson v. Hope, 7 Kan. *162, that the sale of liquors by the quart, gallon, or hogshead are equally illegal, unless made in compliance with the dram-shop act. There is nothing in that act that even by remote implication limits its provisions to sales by the dram.

Error from Wyandotte District Court. Action by Couch, as plaintiff, to recover damages for the depreciation of cattle, occasioned by the negligence of the Stock - Yard Company. Judgment for plaintiff, at the October Term 1873, and the defendant brings the case here. The opinion of the court contains a full statement of the facts.

Original Proceedings in Mandamus. At the March Term 1873 of the Lyon district court, an action wherein H. D. Shepard and Jesse J. Playford were plaintiffs, and T. D. Bragunier and George Bragunier were defendants, was brought on for trial. Hon. E. B. Peyton, judge of the 5th judicial district, presiding.

Error from Nemaha District Cowrt. Action on a promissory note, brought by Korber, as plaintiff, who had judgment at the April Term 1873. The facts and proceedings on which the questions decided are based, are stated in the opinion.

<p>1. Bills and Notes: Form of Note: Parties Severally Liable. Under the statutes of Kansas, any one or more, or all of the several makers of a promissory note, may be sued thereon in one action, although the note may be joint in form, and not several, or joint and several; and if all are sued in one action, the plaintiff may dismiss his action as to any one or more of the defendants, and proceed with his action as against the other defendants.</p> <p>2. -: Interest of Plaintiff: Allegation of Ownership. Where the plaintiff in an action on a promissory note alleges in his petition “that plaintiff is the owner and holder of said note;” and it appears from the note described in the petition that he was the original payee of the note and it appears from the indorsements on the note that he at one time transferred the note to L. & S.; and that L. & S. afterwards made the follow) ng indorsement on the note, to-wit: “Without recourse, February 10, 1873. L. &S.:” held, that the allegations of the petition are sufficient to show that the plaintiff is the real party in interest.</p> <p>*3. Demurrer: Frivolous: Answer. Where the district court overruled a frivolous demurrer to a petition, and, without declaring it frivolous, required the defendant to answer instanter, if he desired to answer at all, held no error.</p> <p>4. Parties: Principal and Sureties: Insufficient Defense. Where a payee of a promissory note sues all the makers thereof, five in number, and afterwards dismisses the action without prejudice as to two of the defendants, and proceeds with the action as against the other three defendants; and where two of those proceeded against afterwards file answers alleging that they, and those defendants as to whom the action rvas dismissed, were only sureties on the notes, and that the other defendant was the principal thereon: held, that such answers do not constitute any defense, or partial defense, to the plaintiff’s action; and particularly not where there are no allegations in the answers, and the note does not show that the plaintiff everknewthat said defendants were only sureties.</p>

On the 25th of June 1873 a complaint was made before the police court of the city of Emporia. The caption and title were as follows: “State op Kansas, County op Lyon, City op Emporia. — Before M. Weaver, Police Judge, &c. — The City op Empobia, Plaintiff, against F. W. Yolmee, Defendant.” The body of the complaint is as follows: County op Lyon, ss. : Wm.

This action was commenced in the police court of the city of Emporia in June 1872, and removed by Volmer to the district court, by appeal, where it was tried at the March Term 1873.