Volume 13 — Kansas Reports

Error from Atohison District Court. The Board of Education of the City of Atchison, as plaintiff, brought suit against Wm. Saoville, H. T. Smith and Wm. C. Smith, as partners, M. M. Trimmer and John F. Thompson, as partners, D. P. Blish and John B. Silliman, as partners, A. B. Decker, and Sarah A. Baker, and also against Clark & Co., and eight others, as defendants.

<p>1. New Trial; Verdict; Weight of Evidence. Where the verdict of a jury has been rendered upon oral testimony, and the testimony tending to support the verdict would be sufficient therefor if it was not contradicted by other testimony, and the district court has approved the verdict by refusing to set it aside and to grant a new trial, the supreme court will not reverse the judgment of the district court and order a new trial, where the only ground therefor is, that the verdict is not sustained by sufficient evidence.</p> <p>2. Evidence; Receipt for Money. A receipt for money is only prima facie evidence of the truth of the statements therein contained.</p> <p>S. Payment; Receipt; Estoppel. Where a debtor pays a portion of his debt, which portion he admits to be due at the time he pays it, but claims that it is all that is due, and that it is the whole of the debt, and the creditor receives the same and signs a receipt in full therefor, but at the same time claims that it is only a portion of the debt, and that the other portion still remains due, held, that the creditor is not estopped by his receipt from afterward suing the debtor and recovering the balance of the debt not yet paid.</p>

Error from Nemaha District Court. Injunction brought by John T. Brady, as treasurer, and Nathaniel Slosson, as clerk of School District No. 51, of Nemaha county, against Isaac Sweetland, as director of said School District No. 51, and Lawrence R. Wheeler and D. L. Anderson. The facts are sufficiently stated in the opinion. The district judge granted a temporary injunction, and afterward, September 13th, 1873, on motion dissolved such injunction.

<p> Error from, Wyandotte District Court. </p> <p>Injunction, brought by Pembroke S. Ferguson, James A. Cruise, John E. Zeitz, Isaiah Walker, Moses M. BrodvjeU, and Allison B. Bartlett, as plaintiffs, against Thomas E. Tutt, Dent G. Tutt, John F. Baker, Wilkins F. Wheatley, Thomas F. Thatcher, and Edmund Terry, as defendants, to enjoin the Tutts and Baker from collecting a judgment recovered by them against said Ferguson and his sureties in his official bond as sheriff of Wyandotte county, at the June Term 1869, for $2,350 and costs. Said judgment was rendered against Ferguson and his sureties on the ground that he had sold certain real estate in Wyandotte county, on an execution issued on a judgment rendered October 10th, 1865, in favor of Edmund Terry against Wheatley & Thatcher, which sale had been confirmed by the court, and then refused to pay the money in accordance with the decree and order of the court. At the June Term 1872 the district court decreed a perpetual injunction against the collection of said judgment. The facts are fully stated in the opinion of the court, infra. From said decree the defendants appeal, and bring the case here by petition in error.</p> <p>1. Can equity interfere to enjoin a judgment at law on the ground that the defendants had neglected to avail themselves of a defense which existed at the time of the trial ? It seems well settled that it cannot. Am. Ch. Dig., 642; 2 Johns. Ch., 230; 37 Barb., 199; 5 How., 141, 192.</p> <p>2. Has the supreme court set aside the sale made by Sheriff Ferguson, July 14th, 1866, and the confirmation thereunder? This question is determined in the negative by a simple examination of the facts. Who were the parties to the sale and the judgment and decree of the court in which the sale was made? The plaintiffs in that action were Michael Dively, Edward C. McCarty and Edmund Terry, and the defendants were Wilkins T. Wheatley, Thomas F. Thatcher, Moses M. Brodwell, The Great Republic Fire Insurance Company, of St. Louis, Thomas E. Tutt, Dent G. Tutt, John F. Baker, John M. Chrysler, Gabriella F. Wheatley, Mary Thatcher and Isabella Chrysler. Who were the parties in the case taken to the supreme court on the motion which was overruled at the June Term of the Wyandotte district court? Edmund Terry was named as plaintiff, and Wheatley and Thatcher alone as defendants. By reference to the case in 6 Has., 427, it will be seen that the judgment of the district court was reversed on two grounds: 1st, the sale was made on a day not named in the notice published by the sheriff; 2d, the lot sold was not the one described in the notice. But the record here shows that these errors in the sheriff’s notice did not exist. Before the district court took any action under the mandate, further than to file it, under an order of court the Tutts and Baker gave said Dively, McCarty and Terry, and all the other defendants, notice that they would on the first day of March Term 1871 file evidence of a correct publication of said sheriff sale. The proof was filed at the same term, showing that the publication on which the sale was made was correct, but by mistake the sheriff had attached to his return an erroneous publication. Clearly, with all this evidence before the court, it would not sustain the motion to set aside the sheriff’s sale. The cause set out in the motion for setting aside the sale did not exist. It would have been overruled whenever called up and the evidence presented to the court. The sale and confirmation then stand.to-day as valid and effective as before the decision in the supreme court. That decision was made upon an untrue statement by the parties presenting the case. Again, the Tutts and Baker were not parties to the proceedings in the supreme court, and had no opportunity of being heard. It is submitted that it was a most palpable error for the court to find that the supreme court had set aside the sheriff’s sale.</p> <p>1. The principle of res adjudieata is invoked in behalf of the judgment obtained by Thomas E. Tutt and others v. P. S. Ferguson and others and affirmed by this court, and is certainly decisive as to Ferguson, Cruise, Zeitz and Walker, which settles the case, as the other parties have no interest whatever in the controversy. When any tribunal has jurisdiction of the subject-matter of and the parties to any controversy, and renders a judgment thereon, such judgment is conclusive between the parties. Anthony v. Halderman, 7 Kas., 50; Norton v. Graham, 7 Kas., 166.</p> <p>2. After a sheriff’s sale has been confirmed, and the sheriff and his sureties sued for the purchase-money, they cannot raise any question of irregularity in the confirmation of the sale, or in any of the prior proceedings. 6 Kas., 427; 8 Kas., 370.</p> <p>3. Judgments at law will not be opened or set aside except for fraud, or to relieve grievous hardships not otherwise remediable. They will not be opened to favor a payment which the complainant neglected to establish at a trial at law. 1 Mo., 654, 708; 2 Mo., 145; 10 Mo., 100.</p> <p>1. The right of Tutt & Co. to the balance of the proceeds of the sale under the execution bn the foreclosure suit, obviously depends upon their ownership of the equity of redemption in the premises sold at the time of the decree. This was the position in which they stood. They had purchased under their attachment sale, and the confirmation of their purchase was not set aside until long afterward. This was the position set up by them in their answer in that suit. They claimed to be owners of the property under their purchase at the sale under the attachment suit. They now claim that the decree requiring the balance of the purchase-money to be paid to them, was made in their favor as attaching or judgment-creditors. This is obviously an after-thought, inconsistent with their answer in the foreclosure suit, and inconsistent with their subsequent claims to the possession. It is also inconsistent with a proper decree in the foreclosure suit. If they had then appeared as attaching or judgment-creditors only, the court would have ordered their debt to be paid out of the money remaining from the proceeds of the sale, after satisfying the mortgage, if sufficient, not that the whole of the money so remaining should be paid to them. 3 Caines, 84; 1 Wend., 87.</p> <p>It is only by regarding Tutt & Co. as owners of the equity of redemption, that the decree in the foreclosure suit can be sustained; and when a decree or judgment is susceptible of more than one explanation, that one will be adopted which sustains the judgment. Since that decree, however, their standing as owners of the equity of redemption has been taken away by the action of this court, in setting aside the sale and confirmation in the attachment suit under which they purchased. They stand then in the attitude of attempting to enforce a judgment against the sheriff for money charged to have been collected by him, after their right to that money is gone.</p> <p>2. The right of Tutt & Co. to recover against the sheriff and his sureties, depends upon the validity of the execution under which he acted, and his acts and return to such execution. "While it is true that a sheriff cannot defend himself from paying money collected on the ground of irregularity in the prior proceedings, these proceedings being sufficient to protect him in executing the writ, yet it is equally true that if he has collected money on void process, he may defend himself from such payment, otherwise he would be liable to pay the money to the person who claimed it under the process without right, and to refund the money t'o him from whom it had been acquired.</p> <p>The execution in the foreclosure suit, issued at the instance of Tutt & Co., and under which the sale was made to Bartlett, was void, and conferred no title on the purchaser, and imposed no duty of collecting the money upon the sheriff. Tutt & Co. being defendants and owners of the equity of redemption in the premises, had no right to sue out an execution to sell their own land, and the order of sale, so sued out at their own instance, was void. (1 Freeman Ch., 392.) The evidence clearly shows that the judgment of foreclosure had been fully paid, before this execution was issued. When a judgment has been satisfied, either by payment or by operation of law, no further execution can be issued on it, and such execution, if issued, will not give the officer holding it any right to levy upon, hold or sell property under it: 7 Johns., 427; 9 Mass., 137; 2 Southard, N. J., 479. And a sale under such an execution passes no title: 1 Cowen, 711; 8 Wend., 676; 4 Wend., 474; 7 Cowen, 21. A court of equity will interfere by injunction, to stop proceedings under an execution on a judgment that has been paid or otherwise satisfied, and prevent the collection of such judgment. 6 Ohio, 430; 4 Johns. Ch., 69.</p> <p>3. The sale under the foreclosure suit made to Bartlett has been set aside, on petition in error to this court, and all rights acquired by such sale, either by the purchaser Bartlett, or by those who are to receive the purchase-money, fall with it. (6 Kas., 427.) The defendants below in this case, strongly insist that this sale has not been set aside, because they, Tutt & Co., were not parties to the motion made for that purpose, and the finding of the court that it was so set aside, constitutes the principal error assigned in this court. It is a sufficient reply to this objection to say that the motion to set aside the sale, follows in this respect the writ under which the sale was made. All the parties named in the execution, are parties to the motion to set aside the proceedings under it. If the execution is valid, not naming all the parties to the judgment on which it is issued, the motion is valid also, and if the motion is defective, the execution is also, but this defect would be fatal to amy rights of the defendants, Tutt & Co., under it.</p> <p>But since the mandate of this court has been filed in the district court, reversing the action of the latter court in refusing to set aside the sale to Bartlett, Tutt & Co. have appeared in that court and filed evidence to sustain the sale. They are, therefore, by their own act, parties to the motion which they claim is still pending in the district court. According to their own showing, the question whether the sale to Bartlett shall stand, is yet pending and undetermined. They clearly have no rights under that sale, until it is settled whether it is valid or not. The sale is either good for all purposes, or bad for all purposes. It cannot be good enough to compel the sheriff to collect the purchase-money, and yet not good enough to be confirmed by the court. It is submitted that the true test of the sheriff’s liability is, his right to compel Bartlett to pay the amount of his bid. He cannot be required to pay over what he has no legal right to collect.</p> <p>Can the sheriff compel Bartlett to pay the amount of his bid ? Not when the sale to him has been set aside, or while as defendants below contend, the question whether it shall be or not is yet pending and undetermined. Nor after it appears that the judgment on which the execution issued had been fully paid, before the execution was sued out or the sale made. Either of these defenses would be available to Bartlett, if sued by the sheriff for the amount of his bid; and they are equally available to the sheriff in an action on his bond for not collecting it.</p> <p>4. The sheriff and his sureties could not avail themselves of the defense that their judgment of foreclosure had been paid before execution, and the execution was therefore a nullity, when sued on their bond, for the reason that neither they nor their attorneys knew the fact that such payment had been made. Still less could the sheriff or his sureties have set up the fact that the sale to Bartlett had been set aside. The suit against them was instituted in February 1868, and the decision of this court was rendered at the July Term 1870; and the mandate was filed in the district court, March 21, 1871.</p> <p>Under these circumstances, the sheriff and his sureties have the right to claim the interference of a court,of equity. The general principle is, that where a judgment has been recovered in an action at law, and defendant has a good defense which it was impossible for him to interpose at the trial, as when the circumstances which create the defense have arisen. since the trial, or where the facts constituting such defense were unknown to the defendant at the time of the trial, and could not with reasonable diligence be ascertained, a court of equity will interpose by injunction, and prevent the plaintiff from collecting or proceeding with his judgment. 2 Peere Williams, 424; 1 T. & R., 320; 2 Russell, 81; 3 Call, 439; 1 Breese, 147; 5 Peters, 99.</p>

hrror from Labette District Court. Action brought by “August H. Blanke, Henry W. Blanke, August Hausman, and Frederick W. Blanke, co-partners, doing business under the name of Blanke & Bros., plaintiffs, against Henry C. Campbell, defendant.” The plaintiffs had judgment at the March Term 1873 of the district court, and the defendant brings the case here. The facts, as regards the questions decided, are stated in the opinion. No briefs on file.

Error from Leavenworth District Court. Alexander brought suit against William C. Eagles, J. P. Touhy, and Alexander Repine, as defendants, to recover certain moneys alleged to be due under a lease from Atezander to Eagles, to replevy certain personal property, and to enjoin Touhy from removing from the leased premises a certain building erected thereon by Eagles, the lessee, and sold to him by Eagles. To this petition Touhy demurred.

This case was brought to this court on error from Doniphan district court, and was heard and decided at the July Term 1873, and is reported in 11 Kas., 519, where a full statement of the facts will be found. This court affirmed the judgment of the court below. After the opinion was filed, (11 Kas., 526,) the plaintiff in error, The City of Troy, filed a motion for a rehearing. The grounds of said motion are sufficiently stated in the opinion, infra. No briefs.

<p>1. Practice in Supreme Court; Error must be Specified. Only such alleged errors as are specifically pointed out by counsel, will be considered by this court. When counsel claim that the testimony does not support the findings, without pointing out which finding is objected to, or wherein the testimony fails to support it, this court will not ordinarily look through a lengthy record to see if there be not some particular fact unsupported by testimony.</p> <p>2. Wanton and Willful Trespass ; Fences. In an action for damages by cattle to growing crops, proof that the growing crops were not enclosed by a legal and sufficient fence will not defeat the action, when it appears that the cattle were driven upon the premises by their owners, and that the latter were guilty of a wanton and willful want of care.</p> <p>3. Trespasses by Cattle; Apportionment of Damages. Where growing crops are destroyed by trespassing cattle belonging to two parties, trespassing repeatedly through the season, and where in the nature of things it is impossible to distinguish between the trespass of one lot of cattle and that of the other, or to determine the actual amount of damage done by either separately, and where the district court apportioned the damage according to the number of cattle belonging to the respective parties, and allowed the owner of the crops to recover in an action against one of the parties only the proportion of the damages given by such apportionment, held, that such party had no grounds to complain of the amount of the judgment.</p>

Error from Woodson District Court. This case was here twice before. (10 Kas., 298, and 307.) On filing the mandate in the court below, (Allen county district court,) a change of venue was taken to Woodson county, where the case was tried at the June Term, 1873. Verdict and judgment in favor of Kelly for $285.50. Larimer moved for a new trial on the ground of alleged misconduct of a juror in drinking intoxicating liquors. Motion overruled, and Larimer brings the case here.

Error from Cloud District Court. An action was instituted by the county attorney in the name of The State against JJezekiah Jennings, B. C. Sanders, Milo Stevens, and Richard Werst, upon a recognizance taken in a criminal action, executed by said Jennings as principal and the other defendants as sureties. The defendants demurred to the petition. At the May Term 1873 the district court overruled the demurrer.

Error from Labette District Court. Golden and four others, electors and taxpayers of Labette City, on the 4th of April, 1873, filed their petition for a mandamus to compel Elliott and the other county officers to remove their offices, records, etc., from Oswego to Labette City, alleging that the county-seat of Labette county had been located at Labette City at an election held February 28,1871.

Error from Saline District Court. Action brought by Light against Powers and two others, as partners. Defendants demurred to the petition, and the district court, at the May Term 1873, sustained the demurrer. From such order, and judgment thereon, Light appeals, and brings the case here on error. The only question is one of pleading, and the facts are stated in the opinion. 1.

Error from Cloud District Court. Quo Warranto, instituted by the county attorney of Cloud county.

M'ror from Crawford District Court. Action by Pearce against Houser and another, to recover damages for an alleged breach of contract. Verdict and judgment for plaintiff, at the September Term 1873 of the district court, and the defendants bring the case here. The opinion, infra, contains a sufficient statement of the facts and proceedings. The petition simply calls for simple damages, without setting out any special damages whatever.

Error from, Nemaha District Court. Eeplevin, brought by Sally M. Chapin, against Furrow, to recover the possession of two horses. Fwrrow gave a bond, and retained possession of the property. Furrow’s answer was a general denial. Afterward Wm. P. McCuhhin petitioned for leave to be joined as a co-defendant, alleging that he was the real party in interest. He was so joined, by order of the court. His answer to plaintiff’s petition is set out in the opinion, infra.

<p> Original Proceedings in Quo Warranto. </p> <p>Graham filed his petition in this court, claiming that he was legally the county treasurer of Coffey county, and entitled to the possession of the office. The facts material to the decision were undisputed, and are sufficiently stated in the opinion. No briefs on file.</p>

Error from, Neosho District Court. Action brought by Wolf to recover $186.12 for certain goods sold by him to Foster, in 1868. At the time of the sale Wolf was doing business at Milwaukee, Wis., and Foster was residing at Wabashaw, Minn. The answer was payment, defendant alleging that he “had paid said plaintiff the full amount of said demand before the commencement of this action.” Reply, general denial.

<p> Appeal from Davis District Court. </p> <p>Morrow was charged with murder in the first degree, for the alleged killing of Buck Overbee, in June 1873. He was tried at the June Term 1873, of the district court, and found guilty as charged, and sentenced to imprisonment, and death. From such conviction and. sentence Morrow appeals to this court, alleging that the verdict is not sustained by the evidence. (The briefs of counsel present questions of fact only, the weight and effect of the evidence.)</p>

Error from, Lyon District Court. Amos Bobb, as plaintiff, brought suit against Harvey Bancroft, Carlos N. Bancroft, Robert E. Sheldon, and Robert D. McCarter, partners as Bancroft Bros. & Co., as defendants, declaring against the defendants on a promissory note executed by the defendants, in their partnership name, “ Bancroft Bros. & Co.” .Harvey Bancroft and McCarter alone were served, and they answered, setting up nine defenses.

Error from Saline District Court. On the 21st of July, 1873, in action then pending’in the Saline district court, wherein Catherine Warry was plaintiff, and Republican, Salina & Arkansas Valley Railway Company was defendant, the judge of said district court, at chambers, granted “an injunction against the Republican, Salina & Arkansas Valley Railway Co., restraining said company, its assigns, employes, agents, or any one acting in behalf of said company, from entering upon,…

Original Proceedings in Quo Warranto. Quo Warranto, brought in this court in the name of “ The State of Kansas, upon the relation of A. M. F. Randolph, county attorney of Coffey county, against O. H. Graham, county treasurer of said Coffey county,” to obtain a •judgment of ouster against said Graham, removing him from his said office. [The petition was filed December 24th, 1873, and while the action of Graham v. Oowgill, ante 114, was pending and undetermined.] The averments…

Error from Douglas District Court. This action was an appeal by Shearer from a decision of the. Board of Commissioners of Douglas County, refusing to allow him compensation for injuries sustained by the taking of his land for a public highway. The case was tried in the district court at the August Term 1873.

Error from Jefferson District Court. McCleary, plaintiff in the court below, presented to the county board of Jefferson county liis claim for balance of salary, claimed to be due as county superintendent, to the amount of four hundred dollars, which claim was disallowed by the county board, from whose decision he appealed to the district court.

Error from Labette District Court. Reed filed a petition in the district court, as authorized by § 568 of the civil code, to vacate a judgment previously given by said court against him and in favor of Wilson, and for a new trial of said action, on the alleged ground that “by reason of unavoidable misfortune” Reed was “prevented from properly defending” said action.

Error from Pottawatomie District Court. Foreclosure of mortgage, brought by Sprague against C. C. Foote, Susan Foote, and Samuel Cooper. The mortgage was executed by C. C. Foote, and Susan his wife, to secure a note given by said C. C. Foote and said Cooper.

Error from Cloud District Court. Roberts brought an action in a justice’s court against Albinson and two others, which was removed by petition in error to the district court. The district court found error in the proceedings of the justice, and reversed his judgment, and retained the action for trial.

Error from Doniphan District Court, Action by Bixby, as plaintiff, against Hooh and three others, on an account originally accruing in favor of a firm composed of said Bixby and ¥m. I). Beeler and John S. Beeler. Said ¥m. D. Beeler died before the trial, which was had at the March Term 1873, of the district court. Finding and judgment in favor of the plaintiff for $208.68. The defendants bring the case here on error. 1.

Error from Bourbon Distriot Court. Action by McIntosh to recover from defendants in error $419, claimed to be due for rent of offices, lights and fuel, for Crawford county.

<p>1. Trespass; Jurisdiction of Justice;'Pleading. A bill of particulars stated that the defendant set fire to prairie grass, and that the fire continued to burn and spread until it reached and burned the hay, posts and rails, and growing peach trees, of the defendant, and that such burning occasioned great damage to the defendant, to-wit, the amount of one hundred and sixty-one dollars and forty cents, the value thereof: Held, that the justice of the peace erred in dismissing the action on the ground that the cause of action stated in the bill of particulars was one for trespass on real estate, and beyond his jurisdiction.</p> <p>2. Practice; Costs in Reversing Justices Judgment. On reversing, upon petition in error, the judgment of a justice of the peace, it is the duty of the district court to render judgment against the defendant in error for. all costs that have accrued up to that time.</p>

Error from Jefferson District Court. The facts are fully stated in the opinion of the court, infra. The district court, at the May Term 1873, held that the plaintiffs were not entitled to recover anything for the services rendered by them, and gave judgment in favor of the defendants for costs. The plaintiffs bring the case here on error.

Error from Wyandotte District Court. Mrs. White brought her action against The City of Wyandotte for personal injuries sustained by reason of a fall occasioned by defects in a bridge over which she was passing, said bridge being a portion of Third street, and a public highway in the city of Wyandotte. Trial at the December Term 1872 of the district court.

Error from, Johnson District Court. On the 20th of February, 1873, Ogg, who was then county attorney, presented to the Board of County Commissioners the following claim: The County op Johnson, To Frank R. Ogg,..............Dr., To $1,318.37, the same being ten-per-cent, of $13,183.73 collected June 13, 1872, and February 6, 1873, in favor of Johnson county, State .of Kansas, in the case of Mo. River, Ft. Scott & Gulf Rid.

Error from Labette District Court. A single question is decided here, and the facts and proceedings are fully stated in the opinion of the court. Held: the arrangement of furniture, the positions to be occupied by the jury, the bar, the clerk, the other officers of the court, suitable arrangements to prevent confusion and noise, and to insure the dispatch of business.

K'ror from Lyon District Court. Atyeo brought suit on a promissory note against T. J. Hankla and P. P. Peter as makers, and L. H. Robinson and C. E. Kelsey as indorsers.

Error from, Sedgwiolc District Court. Thomas and two others as plaintiffs brought their suit on a promissory note for $350, dated April 9th, 1873, signed by Taylor and two others, payable to the order of said Taylor, “ten days after date, at the First National Bank in Wichita.” The note was indorsed by Taylor, and by him delivered to Sol. H. Kohn to be delivered to Thomas & Co. when Taylor should receive 200,000 hedge plants from one Morris.

Original Proceeding in Mandamus. This was an amicable action, instituted in June, 1874, at the instance and under the direction of Ed. Russell, State Superintendent of Insurance, as a test case. Martin was only a nominal plaintiff.

<p> Error from Marion District Court. </p> <p>Action by Wilhelm against Costello and others on a promissory note given by defendants to plaintiff. The case was heard upon a demurrer to the answer, at the April Term 1873 of the district court. The demurrer was sustained. Afterward judgment was entered as follows:</p> <p>(Title.) “Now at this day this cause came on to be further heard, and -the defendants having filed no amended answer, after leave therefor having been granted by the court, and the court having heard the evidence in said cause and considered the same, it is considered and adjudged by the court that the plaintiff have and recover of and from the defendants the sum of $400, the principal of said note, and the further sum of $21.59 as interest thereon, and his costs of collection $40, and his costs in his suit herein taxed at $-. And hereof let execution issue.”</p> <p>Other facts are stated in the opinion. The defendants bring the case here on error.</p> <p>The demurrer was properly sustained. The subsequent oral agreement was a separate and distinct contract from the written note. It must therefore stand or fall upon its own merits. It cannot derive any of its legal requisites from the written contract. Without any consideration the oral agreement is a nullity. (1 Pars, on Contiv, 8; 1 Kas., 285.) No consideration is alleged or stated in the answer. The existence of a fact required by law to be proved, will not be presumed. When the law presumes a fact it need not be stated in the pleading. (1 Chitty PL, 221.) The converse of this is equally true, viz., when the law does not presume a fact, it must be stated in the pleading.</p>

Error from, Doniphan District Court. Ejectment for 160 acres of school land, brought by Hyatt against Stout. Hyatt claimed as owner, under an alleged purchase made in 1857 by one Reuben Middleton under the territorial pre-emption law of 1855. Stout claimed as owner in fee, holding the legal title under a patent issued by the state in 1870.

Error from Osage District Qowrt. Action to enforce a vendor’s lien on lands sold by Smith to the Rowlands, created by contract between these parties. The petition set forth the deed and note evidencing the contract. The Rowlands had sold and conveyed the land, and it was held by several different parties, all of whom were joined as co-defendants. The defendants demurred.

Error from Bourbon District Court. Replevin, brought by Donovan & Feiferlicli as plaintiffs, to recover the possession of certain barrels of turpentine and coal oil. The plaintiffs were merchants^ at St. Louis, and had sold and shipped the turpentine and oil to L. E. Conner & Co., merchants, Fort Scott.

Error from Doniphan District Court. Trespass, brought by Willis and another against Frank Sproule and Thomas L. Chilton, for tearing down their fence.

Error from Labette District Court. Crum, as plaintiff, obtained judgment against Ayres before a justice for $21.80 debt and $2.50 costs. On petition in error the district court, at the November Term 1872, affirmed the judgment. Ayres brings the case here on error. 1. Crum’s claim was for services rendered by him as deputy-sheriff; and he could only recover his fees by statute as deputy-sheriff, and the claim recovered is a mere extortion.

<p>1. County Treasurer; Embezzlement. Chapter 83 of the laws of 1873 amending section 88 of the Crimes Act (ch. 31, Gen. Stat.,) includes within its provisions a county treasurer as liable to the penalties for embezzlement.</p> <p>2. Information ; Description of Funds Fhnbezzled. In an information against a county treasurer for embezzling public funds in the county treasury it is impossible and unnecessary to set forth the particular kind of funds embezzled, whether United States treasury notes or bank notes, or gold or silver.</p> <p>3. Preliminary Examination; Plea in Abatement; Variance. Where the accused was charged before the examining magistrate with embezzling i>67,000 of the funds of the county of Leavenworth, and in the. information was charged with embezzling |67,378.42 belonging to divers designated funds in the treasury of the county of Leavenworth, and a special plea was interposed that the defendant did not have a preliminary examination as to the embezzlement of any money or other thing belonging to any other person than the county of Leavenworth, nor did he waive his right to such examination, held, that there was no error in ruling upon these facts that the plea was not a bar to the further prosecution of the action under the information.</p> <p>4. Instruction; Questions of Law, and Questions of Fact/ Error. An instruction that asserts that, “when it has been established that the funds or property has reached the hands of the officer, and that the same was not forthcoming when properly or legally demanded, the law presumes an illegal conversion of such funds or property, and the burden of proving the legal use of such property or money is upon the officer,” is erroneous in this, that it declares that the law presumes a conclusion that is exclusively within the province of the jury.</p> <p>[ ’-Court convened on tlie 8th of June; sentence was pronounced on the 29th. Sec. 291 of the Crimes Act, (Gen. Stat., 381,) explicitly provides—</p> <p>“But no person shall in any case be sentenced to confinement and hard labor for any ienn less than one year”</p> <p>In this case the words, “and hard labor,” do not appear in the sentence. Whether erroneous by reason of such omission or not, (4 Wis., 395, 398; 5 Wis., 29; 12 Wis., 313, 534,) there would seem to be no doubt that the sentence as to time or duration was contrary to- the express provision of the statute. If 21 days less than a year does not invalidate the sentence, then 121, or 221, or 364 days less than a year would not render it invalid. As the court reversed the judgment upon other grounds, this error, (if it be one,) was not noticed in the opinion. The defendant’s counsel did not discuss it — it was an error favorable to their client; but the profession generally, at the time it was announced, regarded the sentence with surprise, and doubted the authority of the district court to fix a less term than one year from the day of pronouncing sentence. And the question did not escape the attention of the counsel for the state. In their brief they say — “If the sentence is one that the court below should not have rendered, it is the duty of this court to modify such judgment, and direct said court to assess the proper sentence.” Where a sentence is more favorable to a defendant than that prescribed by law, he can take advantage of the error if he chooses to do so: 4 Wis., 398; 4 Mete., (Mass.) 360. — Reporter.]</p>

These two cases were heard and considered in this court in connection with the preceding case of The State v. George S. Smith, but no separate .opinion was written except the brief one reversing the judgments, infra. Graham was county treasurer of Coffey county, and Sidney S. Smith was county treasurer of Cherokee county, and each was prosecuted by information for embezzlement.

Error from Bourbon District Court. Injunction brought by the Railroad Company, to restrain the collection of alleged illegal taxes. The facts are fully stated in the opinion, infra. The district court, (E.M.H., judge- pro tern., presiding,) at the December Term 1871, re•fused the perpetual injunction prayed for, and gave judgment against the Railroad Company for costs. Said company brings the caáe here on error. 1.

Error from Franklin District Cowrt. Action to compel specific performance of a contract to convey certain lots of land, brought by The Ottawa University as plaintiff, against The Board off County Commissioners of the County of Franklin, John H. Whetstone, W. T. Pickrell, Levi C. Wasson, George S. Holt, J. L. Hawkins, W. ~W. Boiler, The Ottawa Town Company, and Bobert Atkinson, as defendants. The Board of County Commissioners, the Ottawa Town Company, and Whetstone, answered.

Error from Labette District Court. Action to compel specific performance of contract, brought by Woodward as plaintiff against Bassett and Kuykendall. The case is fully stated in the opinion of the court. Trial at the November Term 1871 of the district court. Findings and judgment in favor of plaintiff and against the defendants. Bassett alone appeals. Kuykendall is not joined either as a plaintiff or a defendant in this court. 1.

Error from Labette District Court. Replevin, brought by Crane and another for twelve head of neat cattle. The question here turned upon a question of practice; and the character of the pleadings, and the facts and proceedings necessary for a proper understanding of the case, are fully stated in the opinion, infra.

Error from, Cherokee District Court. Edwards sued Crume to recover damages sustained by means of certain alleged wrongful acts of a minor son of defendant.

Error from Bourbon District Court. Foreclosure of mortgage, brought by Robert Hamilton, in his lifetime. Hamilton sold the mortgaged premises to Amey Andrews, a married woman, and she gave him her two notes, each for $400, one payable February 14, 1873, and the other February 14, 1874, and executed a mortgage on said lands to secure said notes. The action was commenced in May, 1873, against said Amey alone.

Error from Labette District Court. Action by Smith as plaintiff, against Payton as defendant. The only question here is one of practice, regarding orders or writs of attachment, and the facts upon which the question arises are fully stated in the opinion. The district court, at the July Term 1873, (H. G. W., judge pro tern., presiding,) quashed the writ. The plaintiff appealed, and brings the case here on error.

Original Proceedings in Mandamus. Hagerty, claiming to have been elected to the office of sheriff of Harvey county, at the general election held in November 1873, for the term of two. years, to commence in January 1874, commenced proceedings in this court on the 21st of November 1873, in his own name as plaintiff, to compel the board of county commissioners and the county clerk of said Harvey county to canvass the votes cast at said election for county officers.

Error from Neosho District Court. Injunction, brought by Butler (under authority of § 5, ch. 79, laws of 1871,) to enjoin McMillen from removing his office of county clerk, and the records thereof, from Osage Mission to Erie. The county-seat had been duly located at Osage Mission, and the county offices were there kept and held. An election was held March 26th 1872 for the purpose of relocating the county-seat.

Error from Leavenworth District Court. Action by Catlin and two others, partners as “Catlin & Co.,” commenced against Carr, Clark, and Mills, as sureties in a bond given July 13th, 1866, by Samuel S. Ludlum, administrator of the estate of ¥m. H. Hays, deceased, for the proper execution of the trust imposed on him by taking possession of the partnership property of the firm of Hays & Ludlum.

Error from Saline District Court. Gates and another as plaintiffs' had judgment against Zanders in a justices court, and appealed from such judgment in their own favor. An order of attachment issued when the suit was brought had been discharged, and the question here is, as to the effect of the appeal upon the attachment proceedings.

Information for murder in the second degree against Isaac Potter, George Potter, and Walter Boyle, charging them with killing one Jacob B. Keeley. Isaac Potter demanded a separate trial, and the case against him was tried at the June Term 1874. The testimony complained of is stated in the opinion, infra.

Error from Wyandotte District Court. It appears by the transcript that Julius Hammerslough and another brought their action to foreclose a mortgage executed by Stephen S. Sharp and others. Such proceedings were had in said action, and new parties made thereto, that an issue came to be joined therein between John Q. Watkins, claiming a cause of action in his own behalf, against Levi Parsons, Francis Skiddy, H..

Error from Bourbon District Court. Action by Emetine M. Jones to recover the value of a stock of goods seized and sold by Tollman as sheriff on an execution issued on a judgment against D. E. Cobb and Edward Jones, partners as “Cobb & Jones.” The goods were alleged to be worth $3,000. Cobb & Jones had kept a drjj-goods store in the town of Marmaton from 1864 to 1870, when they were sold out under execution by one of their creditors.

Error from Neosho District Court. Action by Stevens as plaintiff to recover the value of a horse alleged to have been unlawfully killed by Gannon. Answer, general denial. The action was commenced before a justice, where Stevens had judgment for $185, and costs. Gannon removed said cause to the district court by petition in error, where the judgment of the justice was reversed, and the action retained for trial as on appeal.

Error from Franhlin District Court. Action on a judgment of the circuit court of'Barbour county, Alabama, for $1910, with interest and costs, brought by James L. Pugh, as administrator of the estate of John L. Hunter, deceased, against Calvin Leonard as administrator of the estate of Robert Ferguson, deceased. Petition filed April 19, 1873, counting on said Alabama judgment. Answer, general denial.

Error from Neosho District Court. Action brought by Giltenan to quiet his title to eighty acres of land. The facts and proceedings are fully stated in the opinion. The district court at the April Term 1873, sustained a demurrer to plaintiff’s evidence, dismissed the petition, and gave judgment against plaintiff for costs. Giltenan brings the case here. The court erred in sustaining the demurrer to plaintiff’s evidence.

Error from Chase District Court. Replevin, brought by Brown and another to recover the possession of ninety-two head of cattle. Plaintiffs claimed the cattle under a chattel mortgage given to them by F. Led-rick, dated October 31, 1871, duly executed and registered in Morris county, where the cattle then were. These cattle were part of 624 head mortgaged to plaintiffs to secure Led-rick’s note of that date for $6,142.90, due sixty days after date.

<p> Error from Miami District Court. </p> <p>Ejectment, brought by Patterson, to recover the possession of a quarter-section of land in Miami county. Patterson claimed title and right of possession. Carruth answered, claiming title in himself, and setting' up such claim under a tax deed issued on the 7th of December 1863, by the county clerk of Miami county, upon a tax-sale of said lands made on the 3d of September 1860 for unpaid taxes of 1859. Reply, general denial. The second trial was had at the September Term 1873 of the district court, (J. B. S., judge pro tern. presiding.) The plaintiff having, shown a regular chain of title from the patentee to himself, rested. The defendant then showed the entry of the land August 11, 1858, offered his tax deed reciting the assessment of said land in 1859, and the sale in 1860, as above stated. Plaintiff objected, but the tax deed was admitted in evidence. Finding and judgment for defendant, and the plaintiff brings the case here by petition in error.</p> <p>The tax deed offered in evidence by the defendant was erroneously admitted by the court. The general law governing the assessment and collection of taxes in force at the time of the sale, (Comp. Laws, p. 866, § 36, and p. 873, § 70,) provides that the sale should be held on the first Tuesday of May, or the first Tuesday of September. In the year 1860, the first Tuesday of May was the first day of the month, and the first Tuesday of September was the fourth day of the month — of which this court will take judicial notice. The tax deed recites that the sale was “ begum, and held on the 3d day of September 1860.” This could not be true under any special or general act then in force; and a sale at any other time than that authorized by law is a nullity: Blackw. Tax Titles, 268; 11 Howard, 414; 4 Peters, 349; 21 111., 139; 14 111., 254; 10 Ohio, 139; 11 Ohio, 359; Park v. Tinkham, 9 Kas., 615.</p> <p>The tax deed offered in evidence by the defendant in error is therefore void on its face, and could not start the statute of limitations to running: Taylor v. Miles, 5 Kas., 508; 11 Howard, 414; 18 Wis., 59.</p>

Error from Washington District Court. Ejectment, brought by Callender, to recover possession of certain lands occupied by the Railroad Company, and claimed by said company as its right of way under condemnation proceedings. The facts, and the proceedings in the court below, are fully stated in the opinion. Callender had judgment for the possession of the land, at the December Term 1873 of the district court, and the Railroad Company brings the case here on error. 1.

<p> Error from Douglas District Court. </p> <p>Action by Piper as plaintiff to recover from, the St. L., K. C. & N. Rly. Co., defendant, “his damages sustained by reason of defendants failing to transport cattle of the plaintiff from Kansas City to Chicago, as it agreed to do by its written contract of November 27th 1872, with him, said loss accruing on 18 head of said cattle, and consisting in loss of time, expense of man with cattle, extra feed bill, and damage of cattle by driving them, and loss in market price, the market having failed while the cattle were detained by defendant.” Answer, general denial. The written contract, and the material facts in the case, are sufficiently-set forth in the opinion. The action was tried before the district court, at the October Term 1873. Finding and judgment for plaintiff, and the Railway Company brings the case here on error.</p> <p>1. The contract in nowise tended to show a liability on the part of the Railway Company for loss or damage happening beyond its own line. By its terms the St. L., K. C. & N. Rly. Co. undertook simply the duties of a forwarder; at least beyond its own line. These duties it performed by delivering the cattle at Mexico to the C. & A. Rly. Co., the next connecting carrier in the line of transit from Kansas City to Chicago by way of Mexico and Louisiana. 12 Johns., 232; 2 Redf. on Rlys., 114; 16 Wal., 318.</p> <p>2: The Railway Company not being by law a common carrier beyond its own line, no reasons of public policy can intervene to prevent its stipulating, in the contract by which duties are assumed beyond its line, for such exemptions from liability as may be agreed upon. In the contract in question it was expressly agreed that this company should only be liable for such loss, damage or injury, as might be occasioned by gross negligence, and not otherwise. If this court should construe this contract as imposing upon this company a liability for damage occurring beyond its own line, still there could be no recovery in this case without showing that the damage sustained was caused by gross negligence of this company, or of the connecting line. And upon the party claiming to recover devolved the burden of showing negligence. (8 Has., 623.) There was no proof of negligence of any degree or kind. The delay at Louisiana was caused by the formation of an ice gorge in the Mississippi river, and was simply an act of God. The unloading the cattle at Louisiana, and not taking them over the river the night of the arrival there, was, beyond any question, because Piper thought that the cattle had been a long time without water and feed, and did not wish to go on without feeding and watering them. On the direct examination of Piper, he testified as follows: “When we got to Louisiana the cattle had been on the train 25 or 26 hours, which is considered a long time without feed.” On his cross-examination, he says: “I talked with Murray about sending the cattle on that night. He expressed himself anxious for me to stay over at Louisiana. I told him that the cattle had not been fed or watered for a long time, and he said he had rather I stayed over there than go on that night. He did not tell me I had better go over the river that night.” This testimony of defendant determines two facts: First, that Piper thought that his cattle ought not to go beyond Louisiana without being fed and watered. Second, that Murray, the agent of the C. & A. Eld. Co. at that point, did not refuse to transport the cattle over the river that night, but simply expressed his preference that Piper should stay over at Louisiana that night. The inference is obvious, that if Piper had desired to go on that night he could have done so. What evidence is this of gross negligence, or of any negligence whatever, on the part of the Eailway Company ?</p> <p>But, on examination of the testimony of Murray and Piper, the conclusion is irresistible, that the cattle were unloaded and delayed over night at Louisiana, simply because Piper would not go on until the cattle should have been fed and watered. To do this necessitated their being taken to the stock-yards and unloaded, and consequently detained, till the train should leave for Chicago on the following day. The ferry boat made but one trip after that. The fact that a delay occurred, and that the cattle in consequence lessened in weight or value, or that the price in market declined in the meantime, raised no presumption of negligence. 34 Md., 197; 6 Am. Rep., 321.</p> <p>3. If this contract had imposed all of the duties and liabilities of a common carrier upon plaintiff in error, both upon and beyond its own line, and contained no stipulations of ex-exption from liability, defendant in error would not be entitled to recover under the evidence. A common carrier is not an insurer as to time of delivery. His duty is to deliver in a reasonable time; and what is a reasonable time is to be determined from all the circumstances attending the carriage. If the carrier has used reasonable diligence, and there is a delay, he is excused, even if the delay is not caused by act of God. Angelí on Carriers, §§283-289; Story on Bailments, § 545a; 14 Wend., 215; 2 Kernan, 245; 6 Huer, 376.</p> <p>4. After the obstruction in the river at Louisiana the carrier was not bound to send the cattle to Chicago by another route. 68 Penn. St., 302.</p> <p>It is claimed by the motion for a new trial that the judgment is not sustained by sufficient evidence. The evidence and the written contract show that plaintiff in error, though employing a connecting line, was nevertheless a common carrier from the point of shipment to the terminal point. (104 Mass., 122.) The contract was one to “forward” the cattle, which means the same as “transport” or “carry.” (1 E. D. Smith, 121.) The clauses of the contract which plaintiff in error relies on to shield itself from liability are as follows: “And that the party of the first part and connecting lines over which such freight may pass shall not be responsible for any loss, damages, or injury which may happen to said freight in loading, forwarding or unloading; * * * by any accident in operating the road, or delay caused by storm, fire, failure of machinery, or cars, or obstruction of track from any cause, or by fire from any cause whatever; or by any other cause except gross negligence; and' that said party of the first part and such connecting lines shall be deemed merely forwarders and not common carriers, and only liable for such loss, damage, injury or destruction of such freight as may be caused by gross negligence only, and not otherwise.” While it may be an open question in this state whether common carriers will be permitted to limit their common-law liability, yet it cannot be doubted that courts more and more look with aversion on such contracts, and are disposed to construe such exemptions strictly. (8 Has., 244; Albany Law Journal, April 26,1873, p. 265.) But the damage in the case at bar resulted from the grossest negligence, if not fraud, of plaintiff in error. It undertook to transport these cattle to Chicago by railroad, when it knew there was great danger of its being unable to do so, and yet concealed this fact from the shipper. The loss happened on account of this existing difficulty in crossing the river. Moreover, when the peril was first made known to Piper at Mexico, he urged the agent of the plaintiff in error to send him to Chicago by one of two routes, on which there was no obstruction, and so fulfill its contract. This the agent declined to do, but forwarded the stock to a point where he had good reason to believe there would be great difficulty in carrying; out the contract. Moreover, the record shows inexcusable delay and negligence in not seizing the first opportunity after the cattle had been rested to send them on to their destination. No reason whatever is given why the cattle were not taken over the river the next morning when the ferry boat passed over. The company knew of the increasing hazard and danger from delay, and yet took no measures to expedite the cattle forward. Then, too, it delayed several days in sending them over on the private ferry. It could have done so several days sooner than it did. Besides, it is disclosed that the carrier was urged to send the cattle by some other route after they reached Louisiana, as it could have done by sending them a three-hours’ ride back to Mexico. Now the court sitting as a jury found that these acts, or failures to act, on the part of plaintiff in error amounted to a clear violation of its contract. This being the decision of the court on evidence clearly competent, and fully tending to establish the facts necessary to such a determination, it is difficult to see how any wrong has been done plaintiff in error.</p>

Error from Chase Eistriet Court. Injunction, brought by the Railroad Company to restrain the collection of a part of a judgment recovered by Black-shire. The facts are fully stated in the opinion. The district judge granted a temporary injunction in January, 1873, and on the 6th of February,-1873, said judge overruled and denied a motion to vacate said temporary injunction.

Error from Leavenworth District Court. Action by Hosick, as administrator, to recover from Taylor the purchase-money due for certain lands sold to him at administrator’s sale. One P. F. Meagher was joined as a co-defendant. Taylor answered, setting up several defenses, (vide brief of plaintiff in error.) Meagher demurred, and his demurrer was sustained, and the action dismissed as to him. Trial at the February Term 1873.

Lrror from, Lyon District Court. Johnson sued Brown before a justice of the peace to recover ten dollars alleged to be due upon a contract for the services of plaintiff’s horse.

Error from Lyon District Court. Ejectment, brought by Friend to recover 320 acres of land. Norton was in possession, claiming title under a tax deed. Held: and that it was not, we here call the deed to witness. 3. The land was not sold or bought in the manner prescribed by law.

Error from Leavenworth District Court. Action commenced by Stille in March, 1869, to recover from The City $20,229.35, with 7 per cent, interest thereon from the 23d of May, 1866. In December 1865 Stille agreed with the city to grade Fifth street from Spruce street to Thornton street in a certain specified manner, under the superintendence and control of the city engineer.

Error from Allen District Court. Ti-ie action below was by Swartz as plaintiff, on a promissory note and indorsements. The note is as follows: $987. Humboldt, Kas., June 8, 1871. One day after date I promise to pay to the order of Red-field &, Co. nine hundred and eighty-seven dollars, with interest thereon at 12 per cent, per annum, value received in labor and material furnished in building the Landreth Hotel.

Error from Montgomery District Oovjrt. Action by Stahl against DeLong, as mayor of the city of . Independence, and one Wm. Mott, to set aside a certain deed executed by DeLong, as mayor, to said Mott. The questions decided in this court are upon points of practice with respect to reports and proceedings of referees, and as to these questions the opinion states all necessary facts and proceedings.

Error from Douglas District Court. Action by Thacher as plaintiff to recover for damages sustained to 17 of the 35 head of cattle mentioned in the contract set out in the case of the St. L., K. C. & N. Ely. Co. v. Piper, ante, pp. 506, 510. All the questions in this case were determined in the case cited except the question whether Thacher could maintain an action in his own name on said contract.

Error from Chase District Court. This action was first commenced in Lyon district court in October 1871, 'by Norton, and twelve others, as plaintiffs, against the county clerk and county treasurer of Lyon county, to restrain the collection of assessments levied to pay contractors for macadamizing, curbing and guttering Commercial street in the city of Emporia. The City of Emporia was not then a party.

In October 1873 one Joseph Lowe was arrested upon a warrant charging him with the commission of a felony. He waived an examination, and entered into a recognizance iu the sum of $2,000, with two sureties for his appearance to the next term of. the Sedgwick district court.

On the 13th of January 1874 the judge of the Mitchell district court, in vacation, made and transmitted to the county clerk, an order, the body of which is as follows: “You are requested hereby to draw from the jury box of said county, according to law, the names of fifteen persons to Serve as .Grand Jurors for the ensuing April Term of the district court of said county.” Pursuant to this order a grand jury were drawn and summoned.

Original Proceedings in Mandamus. On the 6th of November 1873 the plaintiff made application to the Chief Justice of this court for an alternative writ of mandamus.

Error from Brown District Court. Mbs. Cobby, as administratrix of the estate of John Corby, deceased, in June 1872 recovered a judgment in the district court against Royal Baldwin, which became lien on his lands. W. W. Guthrie, J. F. Babbitt, C. H. Jones and F. F. Miles, respectively had or claimed liens on a certain quarter-section of land belonging to Baldwin, by reason of which no sale of said lands could be made under said judgment in favor of Mrs. Corby against Baldwin.