Volume 17 — Kansas Reports

Error from Nemaha District Court. This case was in this court in 1871, on error from Marshall district court, and is reported in 8 Kas. 463. The subsequent proceedings, and all the facts, are fully stated in the opinion, infra. The plaintiff below, Kirlcwood, had judgment at the April Term 1874, and Waterson and Edwards bring the case here on error.

Error from, Crawford District Court. Eeplevin, brought by Safford. Trial and judgment for plaintiff, at the September Term 1874. Converse brings the case here on error.

Error from Mitohell District Court. Action by Hersey against Williams and wife, and James Finnegan, to have a certain deed absolute in form adjudged to be a mortgage in fact, and to compel Williams and wife to reconvey certain property to plaintiff, and to recover from Williams and Finnegan an alleged balance due plaintiff on account. Trial at the December Term 1874.

<p>1. Petition; Insufficiency; Judgment — Trial—Evidence. Where no objection is made to the petition in the court below, and no special findings are asked for by either party, and the court finds generally in favor of the plaintiff and against the defendant, and judgment is rendered accordingly, the supreme court will not disturb the judgment, because of any supposed insufficiency of the petition or of the evidence, if, by a liberal construction of the petition and of that portion of the evidence which tends to sustain the judgment, it is found that the petition and evidence are sufficient to sustain and uphold the judgment.</p> <p>2. Principal and Agent; Knowledge of Agent. In law, whatever comes to the knowledge of an agent comes to the knowledge of the principal ; and whatever is done by an agent within the scope of his agency, is done by his principal. The agent, with reference to third persons, and within the scope of his agency, is, to all intents and purposes, the principal.</p> <p>3. Sale oe Land — Contract■—Conveyance; Presumption. Where a sale and conveyance of real estate is made, and all is done within fourteen days, it will be presumed, in the absence of anything to the contrary, that whatever operated to produce the sale, operated to produce the deed.</p>

Error from, Cowley Eistriet Court. Replevin. The material questions are stated in the opinion. Trial, and judgment for defendant, at October Term 1874. The plaintiff brings the case here on error.

Error from Leavenworth District Court. Trespass, brought by Woods. The facts are fully stated in the opinion. Trial at the November Term 1874. Verdict and judgment for plaintiff for fifty dollars damages. Defendant Mitchell brings the case here on error.

Original Proceedings in Mandamus. This action was commenced in this court in September 1872. Held: that a majority of the votes cast were in favor of the proposition submitted, and that the county commissioners duly met, canvassed the vote, and declared the result, (showing that 862 votes had been cast in said county in favor of said proposition, and 776 against it — or, a majority of 96 in favor of the subscription;) that on the…

Error from Leavenworth District Court. John Brennan died intestate, at the county of Ellsworth, May 26th 1868. On the 22d of August, Noah Newbanks was appointed administrator of Brennan’s estate, and gave a bond as such administrator, in the sum of $30,000, with Charles E. Musick, Evander Light, Philetus M. Thompson, and W. H. Weed as sureties.

Error from Pottawatomie District Court. In November 1873, upon proper petition and by proper proceedings, a highway was laid out over and across the lands and improvements of O’Sullivan.

Error from Leavenworth Eistrict Court. On the 20th of March 1874, Higginbotham commenced his action in the district court against the plaintiff in error, to recover the principal and interest due on bonds numbered 33, 34, 68 and 77 of series B, and 32, 33, 68, 98 and 104 of series C, of the bonds of the county of Leavenworth made and issued to the Union Pacific Eailroad Company on the 1st of August 1865.

Error from, Nemaha District Court. All necessary facts are stated in the opinion. Hohe, as plaintiff, had judgment at the October Term 1874. Hostetter ■brings the ease here on error.

Error from Franklin District Court. Action for partition, brought by Wm. H. Clark, as plaintiff, against Thomas Squires, Geo. S. Newman, and W. M. Pickering, as defendants. Subsequently, Ira Davenport was made a party defendant, as having an interest in the premises, as mortgagee of Squires. The lands in controversy, and the respective interests of the parties plaintiff and defendant, are shown in the findings quoted in the opinion, infra.

Appellants were tried and convicted of an assault and battery, at the May Term 1875 of the district court. II. T. Anderson was adjudged to pay a fine of $40, and one-half the costs of prosecution, and L. H. Anderson was adjudged to pay a fine of $25 and one-half the costs. From such judgment they appeal to this court.

Error from Douglas District Court. Action by Thacher & Stephens, attorneys-at-law, to recover from the Railway Company as defendant… Held: “that the notice of an attorney’s lien must be in writing, and may be served in 4he same manner as a notice of motion, and when the attorney specifies the sum of his charges no lien attaches for a greater amount;” and thereupon the court further held that T. & S. had liens on the moneys due their clients as follows: on the $300 due…

Error from Anderson District Court. Emory Wilson, on the 3d of January 1873, filed in the proper office his statement for a mechanic’s lien, claiming a lien on a certain school-house, and the lots upon which it was situated — property of School District No. 2, Anderson county.

<p> Error from Shawnee District Court. </p> <p>Ejectment, brought by Forbes against Oliver and Oliver, to recover possession of the N.E.-J of sec. 35, town 10, range 14, situated in Shawnee county. The action was tried at the December Term 1873, and resulted in a judgment for Forbes. The Olivers bring the case here on error. The briefs of counsel, and opinion of the court, infra, contain sufficient statements of all necessary facts.</p> <p>John Riley, a member of the Pottawatomie tribe of Indians, in 1862, was married to Mary Beaubien, a Pottawatomie Indian woman, by whom he had two children, now minors. In 1863, the United States allotted to him, as under the treaty of November 15th 1861, 160 acres of land, and duly issued a certificate therefor to him. In the year 1864 he died in Kansas, leaving his widow and the two children aforesaid. In 1865 his widow married David Bostick, with whom she is still living. On the 27th of July 1867, she and her husband, by covenants of general warranty, conveyed an undivided-half interest in the land to Thomas J. and Julia Lazzelle, the said Julia being a Pottawatomie Indian woman; and on the same day the Lazzelles, by like covenants, conveyed the same land to the Olivers.' On the 27th of October 1868, Mary Bostick and her husband, David, again conveyed an undivided-half interest in the land by covenant of general warranty to the Olivers. All these deeds were duly recorded prior to May 1870. On the 10th of April 1869, the Olivers took possession of an undivided one-half interest in the land, and ever since have occupied it, and have put valuable improvements thereon. On the 16 th of May 1870, the United States issued a patent for said 160 acres “to John Riley, and his heirs.” On the 3d of February 1872, Mary and David Bostick, by covenants of general warranty, conveyed said land to Forbes. The district court held that Mary Bostick had no right and power of alienation in the manner and form shown before the issuing of said patent of May 16th 1870, and thereupon found in favor of Forbes.</p> <p>1. Under art. 2, treaty of 1861, John Riley received his certificate of allotment of land, which by the language of that article “ are set apart for the perpetual and exclusive use of such assignees, and their heirs,” and, “until otherwise provided by law,” such tracts might be “ alienable ” only to the United States, and to persons then being members of the Pottawatomie tribe of Indian blood, with the permission of the president, and under certain regulation, except as provided in art. 3 of said treaty. Said art. 3 provides for the naturalization of the Indians, and for the issuance of patents, etc. Had John Riley lived, his patent would not have been issued until these conditions of the treaty were complied with; but he died, and under the 8th article of the treaty of 1867, the patent in this case was issued. John Riley, as an allottee, under this article, “ is to be regarded for the purpose of a careful and just settlement of his estate as a citizen of the U. S. and of the state of Kansas, and it shall be competent for the proper courts to take charge of the settlement of his estate under all the forms and in accordance with the laws of the state as in the case of other citizens deceased.” This 8th article, treaty of 1867, removes the restrictions in the 2d and 3d articles of the treaty of 1861, for it is here in this article “otherwise provided by law” how and in what manner such tracts shall be subject to levy, taxation, sale and disposal, to-wit, “the same as the lands of any other citizen.” Any other construction of art. 8 is absurd, and would defeat the end and object of the law. If it was the intention of the treaty-making power to still attach the restrictions contained in the treaty of 1861, such restrictions would have been incorporated in the treaty of 1867 in plain and unambiguous terms; but in this article we. are told that the courts of Kansas are to take charge of their estates in case of their decease, where they have no patent, but have their certificates of allotment, “ under all the forms and in accordance with laws of state as in the case of other citizens deceased.” The United States recognize this art. 8, and in pursuance thereof issue the patent to “John Riley and Ms heirs” Under the laws of Kansas then in force, (Comp. Laws 1862, p.469, § 5, and p.697, §7,) the land on his decease descended, one-half absolutely to Mary Riley, his widow, (5 Kas. 384.) The title on the assignment and issuance of the certificate, and his decease, passed absolutely to her; (9 Kas. 38; 6 Cranch, 87 to 148.) The issuing of the patent was a mere ministerial act; 2 How. 284; 6 Mo. 106; 1 Ala. 660; 5 Porter, 243; 13 Cal. 419; 2 Wall. 535. And when the patent issued, it related back to 1863, (the original certificate of allotment,) and Riley’s title dates from that time; (8 Iowa, 360;) and when issued it inured to the benefit of the Olivers, (who purchased after the treaty of 1867, and before the deed to- Forbes;) Comp. Laws 1862, ch. 41, §4; 3 McLean, 107; 7 Penn. St. 75; 2 How. & McH. 459; 16 La. An. 263; 1 How. & J. 6; 5 Iowa, 189; 29 Mo. 94; 8 Kas. 122. And such title would inure to the benefit of the first grantee, by estoppel, to the exclusion of a second grantee, to whom the grantor shall execute a deed after having acquired a title; 24 Pick. 322; 2 Her. 177; 13 N. H. 389; 53 Penn. St. 351. The title to the land after the restrictions were removed, and before the issuance of the patent, was such that could be devised, aliened; it would descend and might be devised the same as any other legal title; 3 Washb. 176 to 179. Originally, the land was the exclusive property of the U. S., to be disposed of to such persons at such times and in such mode, as well as by such title, as the government may deem proper; 3 Washb. 168, 169. The U. S. saw fit to pass the title by assignment, with restrictions, subject to the restrictions being removed in case of death of John Riley before patent issued; art.' 2, treaty of 1861, and art. 8, treaty of 1867. And as soon as the contingency arose, provided for in article 8, the title passed absolutely from the U. S. to Mary Bostick, and it took the character of other property within the state, and was subject to state legislation; 13 Peters, 516, 436; 16 La. An. 89. The restrictions in articles 2 and 3, treaty of 1861, were personal, and did not run with the land; 4 McLean, 82; 3 Kas. 355; 8 Kas. 112; 13 Wis. 291; 29 Wis. 383; 10 Ala. 638; 1 Iowa, 575; 8 Cowen, 189.</p> <p>The woman must be naturalized under articles 2 and 3, treaty of 1861, and article 6, treaty of 1867, before slie could dispose of the lands allotted to her by the United States, under the treaty of 1861. If the land descended to her were subject to the same restrictions as to sale, she must be naturalized before her deed would convey a title. There is no proof of her naturalization, but proof of her tribal relation, and Indian blood; and until the contrary is shown, she is presumed to be unnaturalized — an Indian, not a citizen. In what way, if not by virtue of art. 8, treaty of 1867, were her disabilities removed ? Did the issuance of the patent to her dead husband, remove her disabilities ? It did not make him a citizen, within the meaning of art. 3, treaty of 1861. It did not make her a citizen within the meaning of art. 6, treaty of 1867. If she is still laboring under the disabilities mentioned in art. 2 of treaty of 1861, by what logic and reasoning does the subsequent deed of Forbes give him the right of possession against Oliver ? If she had any title to convey without the intervention of the president and secretary of interior, after the treaty of 1867, such right of conveyance was in nowise affected by the issuance of the patent. If she had no right of conveyance after the treaty she had none after the issuance of the patent. That instrument did not give nor take away her right of conveyance. She could not make a valid deed to Forbes, unless she could make a valid deed to Oliver; and if neither deed is valid, the possession of Oliver could not be disturbed by Forbes.</p> <p>By the second article of the treaty between the United States and the Bottawatomie Indians, made November 15th 1861, it is provided that an accurate census of the number of the Indians should be made, and that thereafter there should be assigned to each chief one section of land — to each headman, one-half section — to each other head of a family, one quarter-section, and to each other person, eighty acres of land, and certificates for the tracts so assigned were to be issued to each person. (The certificates were to contain certain facts not necessary to be considered in this case.) It is further provided in the same article that “until otherwise provided by law, such tracts shall be exempt from levy, taxation or sale, and shall be alienable in fee or leased or otherwise disposed of only to the United States, or to persons then being members of the Pottawatomie tribe, and of Indian blood, with the permission, of the president, and under such regulations as the secretary of the interior shall provide, except as hereinafter provided.”</p> <p>In the case at bar it is not claimed that the president ever gave his permission to sell the land in controversy prior to May 16th 1870, nor that the secretary of the interior ever made any rules or regulation providing for or authorizing conveyances of these lands prior to that date. By the 3d article of the same treaty it is provided in substance that under certain circumstances and conditions adults, being males and heads of families, might be admitted to citizenship, and that thereafter the president was authorized to cause patents to be issued to them “withpower of alienation.” There is no claim that Riley was ever admitted to citizenship, or that a patent was issued to him in his lifetime. On 29th March 1866, a supplemental treaty was made between the U. S. and the Pottawatomies. By the 1st article of this treaty, the provisions of the 3d article of the first-named treaty was “extended to all adult persons of said tribe without distinction of sex, whether such persons are or shall be heads of families or otherwise, in the same manner, to the same extent and upon the same terms, conditions and stipulations as are contained in said 3d article of said treaty, with reference to males and heads of families.” On 27th February 1867, another treaty was made between the U. S. and the Pottawatomies, and before the ratification thereof certain amendments were proposed by the senate and agreed to by the Indians. By the 6th article of this treaty the 3d article of the treaty of 1861, (proclaimed April 19th 1862,) was continued in force, with the additional provision, that before patents should issue to the Indians for their lands in severalty, the agent should make a certificate showing that the applicant was competent to manage his own affairs; and a like certificate was required from the business committee; and by the same article the rights of citizenship are extended to the families of such Indians as have become citizens. The 8th article of this treaty, as amended by the senate, is the only remaining article that has any bearing on the matters in controversy in this action. This article reads as follows:</p> <p>“Where allottees under the treaty of 1861 shall have diedr or shall hereafter decease, sueh allottees shall be regarded for the purpose of a careful and just settlement of their estates, as citizens of the United States and of the state of Kansas, and it shall be competent for the proper courts to take charge of the settlement of their estates under all the forms, and in accordance with the laws of the state, as in the case of other citizens deceased; and in cases where there are children of allottees left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans may reside, and such guardians shall give bonds to be approved by the said court, for the proper care of the person and estate of such orphans, as provided by law.”</p> <p>The court will observe, that the grant made by article 2 of the treaty of 1861 was not a grant in fee, but is specially limited to “ the exclusive use and benefit of such assignees, and their heirs,” perpetually; and we think it clear, that Riley tooh only a life estate. This being so, it clearly follows, that he had no power to convey it. Upon Riley’s death, the estate passed to his heirs, not by descent, but by purchase, or grant, and they took the estate subject to all the restrictions and limitations imposed by the terms of the original grant. They had no more power to sell it than Riley had, because the grant followed to their heirs, and so on perpetually, until the restrictions and limitations imposed by the treaty should be removed. The primary object of the grant was to furnish a home for the Indians, and their heirs forever; and a conclusion different from that which we have arrived at would defeat the very object of the treaty. That the U. S. had a right to make the grant, and to attach the conditions and limitations it did to the grant, we do not suppose will be controverted. Then we find that the government granted to Riley a life estate in the land in controversy; that at his death the same estate passed to his heirs, and without power of alienation in either Riley, or his heirs, or their heirs, except to persons of Indian blood being members of the Pottawatomie tribe or nation and with the consent of the president under such rules and regulations as the secretary of the interior should prescribe. Said secretary never prescribed any rules respecting such conveyances, nor has the president ever consented to the conveyances made by Mrs. Bostick.and her husband to the Olivers. Nor did Riley in his lifetime, nor did his widow after his death and prior to 16th May 1870, comply with or avail herself of the privileges and benefits contained in the 3d article of the treaty of 1861; and in no way or manner could Riley or his heirs, or their heirs, convert his or their life estate into an estate in fee except by a compliance with the provisions of said 3d article. It is perfectly clear from an examination of art. 3 that only a life estate was intended to be granted by art. 2; and the whole object and purpose of art. 3 is to provide-a means by which this life estate might be converted into an estate in fee, and certain conditions beneficial to the U. S. and the state of Kansas are imposed by art. 3 upon parties who seek to obtain a fee-simple title, as a consideration for such change.</p> <p>But it is insisted that these restrictions upon the power of alienation have been removed in two ways: First, by the death of Riley — upon the theory that these restrictions were personal as to him, and were removed by his death; and secondly, by the 8th article of the treaty of February 27th 1867, as amended by the senate. Our answer to the first proposition has been fully given already, namely, that Riley had only a life estate in the land; that his heirs took the same estate by purchase or grant; that the conditions and limitations on the power of alienation follow the land in the hands of Riley and his heirs and their heirs forever, until the estate is changed in the manner provided in the 3d article of the treaty of 1861; and if the restrictions imposed by the grant were personal to John Riley, they are personal in precisely the same manner and to the same extent to his heirs and their heirs perpetually, until removed in the manner already suggested. The answer to the second proposition is twofold: 1st, The restrictions imposed, and the nature. of the estate granted, by the 2d article of the treaty of 1861, were not removed or changed in any respect by the 8th article of the treaty of 1867, as amended by the senate. 2d, The parties to that treaty never intended to do so, as a fair and careful examination of that article will clearly demonstrate. By art. 8 of the treaty of 1867, as it was originally signed, it is provided in substance that “if any dispute shall arise in regard to heirship to the property of any allottees under the treaty of 1862 [1861] who were then dead or might thereafter die, the business committee of the nation was authorized to decide such question.” What question? Only the question as to who were or are heirs — nothing more; and in deciding that question they were to take “ for their rule of action the laws of inheritance of the state of Kansas;” and in case there were orphan children left by allottees, guardians should be appointed for them by the same business committee, and such guardians were to give.bonds to be approved by the agent of the nation or the superintendent, and the duty of the guardian, and the condition of the bond, was simply “for the faithful management of the property of such orphans until their arrival at their majority.” We submit that the whole effect of this article was, first, to authorize the. business committee to determine who were heirs, in case of controversy on that point, such heirship to be determined according to the laws of Kansas; second, to authorize the business committee to appoint guardians for orphan children; third, the guardians so appointed were empowered to manage the property of such orphans imtil their arrival at their majority. And instead of conferring power on the guardians to sell the property of the orphans, it does just the opposite. The very language used, that is, “ for the faithful management of the property of such orphans until their arrival at their majority,” excludes the idea of a power to sell the property. Nor is there a word to be found in the article that tends in the least degree to intimate that the character of the original grant was to be changed or affected in any form or manner. Now the senate struch out this article, and inserted in lieu thereof article 8 as it now stands, which provides in substance that where allottees under the treaty of 1861 have died or shall thereafter die, they shall be regarded as citizens of the United States and of the state of Kansas for the purpose of a careful and just settlement of their estates; and the courts of Kansas are authorized to take charge of the settlement of their estates under all the forms and in accordance with the laws of Kansas, as in the case of other deceased citizens; and in cases where such allottees left orphan children, the probate courts were authorized to appoint guardians for such orphans for the proper care of the persons and estates of such orphans as provided by the laws of the state. We submit that this substituted article does substantially what the original article did, and no more, except it places the power to do the same things in the proper courts of the state instead of the business committee of the nation. It does not remove or pretend to remove the restrictions imposed by the treaty of 1861 — nor does it change or purport to change the character of the grant made by that treaty; but upon the contrary, the 6th article of the treaty of 1867 expressly continues in force the 3d article of the treaty of 1861, and imposes additional burdens and restrictions upon the Indians.</p> <p>Let us examine this 8th article carefully, and see just what it does do: It provides that for the purpose of a just and careful settlement of the estates of deceased allottees they shall be regarded, that is, treated as citizens of the United States and of the state of Kansas; that is, their estate shall be settled in accordance with the laws of Kansas; and for the purpose of making this settlement, the courts of the state shall have jurisdiction; but the rights of parties under the treaty are not changed, the restrictions upon the power of alienation are not removed. Not only is this true, but this case does not in any respect fall within the class of cases or contingencies provided for by this article. This is not a proceeding for the settlement of an estate, or for the protection or enforcement of any right growing out of the settlement of an estate. The courts have- had nothing to do with the settlement of this estate; nor was the district court called upon to do anything of that kind; nor is this court. Therefore article 8 has no reference or relation to a controversy of this kind. The case of Farrington v. Wilson, 29 Wis. 383, is entirely different from the case now before this court. In the Wisconsin case the grant was to Antoine Grignon, with the restriction that he should not sell or lease the land to any^ person. The patent was to “Antoine Grignon, his heirs and assignees.” The restriction in that ease, was confined to Grignon, and was personal to him; and the court say that it was good as to him — but not against his heirs. The restriction was clearly repugnant to the grant to him and his heirs and assigns. In the case at bar the restrictions are expressly extended to Riley and his heirs; the restrictions are personal to Riley and his heirs; the estate .granted is limited to him and to his heirs from generation to generation, until the restrictions are removed as contemplated by the 3d article of the treaty of 1861. It is insisted however, that if the conveyances made by Bostick and his wife prior to May 16th 1870, are void, that the conveyance made by them after that date to Forbes was also void. We think not, for the law presumes that Mrs. Bostick had complied with the provisions of art. 3 of the treaty of 1861, at the date of the patent, but not before. The patent is prima facie evidence at least, that all the conditions precedent to its issuance had been complied with by the heirs of John Eiley at the date of the patent. This presumption arises with and commences to run from the date of the patent, but not before. Not only this, but the law presumes in favor of the regularity of the proceedings of the officers of the United States in isssuing the patent. We think this a full and complete answer to the objection to the conveyance from Bostick and- wife to Forbes.</p>

Error from Atchison District Court. Action by Seip, to recover from Nannie O’Keef and her husband. $265, and interest thereon, an alleged balance due upon a contract for building a dwelling-house upon certain lots in Atchison belonging to said Nannie-. The plaintiff had judgment at the November Term 1874. Defendants bring the case here on error.

M'ror from Crawford District ■ Court. Bkown recovered a judgment against Chapin before a justice of the peace, and said judgment was affirmed by the district court at the September Term 1874.

Error from, Jefferson District Court. Action by Kimkel, to recover for personal injuries sustained in August 1869. The action was commenced in May 1872; The facts as claimed by Kunkel, are stated in the opinion,, infra.. The Railway Company pleaded the statute of limitations, and also controverted the facts alleged in the petition., A trial was had in May 1873, when a verdict was returned in favor of Kimkel for $3,000 damages.

Error from Shawnee Distriet Court. Foreclosure of mortgage, brought by Cothran against Hophins and wife. Amount of principal debt claimed, $4,200. Defense, usury to amount of $275. The answer was due and was filed 7th November 1873. Reply filed, 8th November. An amended answer was filed 6th January 1874. Trial, and judgment for plaintiff, at June Term 1874 of the district court. The case was brought here on error by defendants Hophins and Hophins.

Fhror from Neosho District Court. Motion to retax costs, heard and decided at the April Term 1874. The motion was granted, and Ciarle, defendant, brings the case here.

Error from Franklin Eistriot Court. The question in this case is as to the right of a mortgagee to recover attorney-fees stipulated in the mortgage to be paid by the mortgagor. The district court, at the August Term 1874, held that such stipulated fees were not recoverable where the whole debt, interest, and other costs were paid before judgment; and from such decision the plaintiff appeals, and brings the case here on error.

Error from, Leavenworth, District Court. Action by Casey and another to recover damages for alleged negligence of the city in failing to collect the sum of $12,976.84 claimed by plaintiffs as due them upon a contract for grading a public street. ' Trial at May Term 1875. Demurrer to plaintiff’s evidence sustained, and judgment in. favor of the city for costs. Plaintiffs bring the case here on error.

Error from Bourbon District Court. Replevin, brought by Kingsbury, to recover the possession of- a span of horses, a colt, and a set of harness, alleged to have been wrongfully taken and wrongfully detained by Yandle. The action was commenced in Labette county district court in May 1872, where certain proceedings were had which are noticed in the opinion of the court, infra.

Error from, Bourbon District Court. Replevin, for four head of horses, brought by Brewer, as plaintiff, against George Ladd, J. E. Trent, and G. E. Routt, 'as defendants. The plaintiff claimed the horses as general owner. They were found in possession of defendant Trent,- who held them for Routt, the latter claiming to own them. Trent and Routt answered jointly, and gave a bond to retain possession. Ladd filed a separate answer.

JEh'ror from Chase District Court. Replevin, to recover property alleged to have been wrongfully taken and wrongfully detained. The facts are sufficiently stated in the opinion. The plaintiff had judgment at the October Term 1874. Defendants Bell and Sutton bring the ease here on error.

Error from Saline District Court. Trespass, brought by Clarhson, to recover damages for injuries committed by Powers’ cattle to growing grass on unoccupied land. The case was here on a former appeal, at the January Term 1873; (11 Kas. 101.) On being remanded to the district court, a second trial was had at the October Term 1873 of said court, C. A. EL, judge pro tern., presiding. Verdict and judgment for Clarhson, and defendant Powers brings the case here on error.

A eull statement of the facts and proceedings will be found in the opinion. James, defendant, was convicted in the district court, at the May Term 1874, of an alleged violation of an ordinance of The City of Burlington; and .from such conviction and judgment he appeals to this court.

Error from Riley Eistriet Court. Trespass, brought by Mihlman, to recover for injuries to his lands and crops.

Error from Marion District Court. This action arose on a claim presented by Adams to defendant in error, for allowance by him as the assignee of the estate of Davenport Bros., an insolvent partnership. The claim was in the form of a promissory note for the sum of $500, and was disallowed by -the assignee, and claimant appealed to the district court of Marion county. Trial at the November Term 1874. Judgment was given to the defendant.

Error from Douglas District Court. The proceedings in the district court were had upon an appeal taken by the Railroad Company from an award for damages made 'to Wilder by commissioners appointed in April 1872 to lay off a route for said company’s railroad, etc., and to ascertain the proper description and quantity of land necessary for such purpose out of each tract or parcel of land, etc., and to appraise the value of any such tract, and to assess the damages thereto, etc.…

Error from Anderson District Court. Action by Perry, brought originally before a justice of the peace, to recover damages for injuries to Perry’s crops alleged to have been committed by the sheep of Robinson. The case was taken to the district court by appeal. The defense was, “that- the lands of said plaintiff, at the time of the alleged trespass, were not inclosed by a good, sufficient and legal fence.” Plaintiff demurred.

Error from, Davis District Court. Reynolds and two others, as partners, at the November Term 1874, recovered judgment ágainst the Railway Company for $259.20 damages for injuries sustained to their cattle while being transported over said company’s railroad. All necessary facts are stated in the opinion. The Railway Company brings the case here.

Error from Butler District Court. Action upon a promissory note by the First National Bank of Eldorado, against D. J. Lobdell as maker, and W. F. Joseph, and Henry Comstock, Jr., as indorsers. Lobdell made no defense. Joseph and Comstock answered, denying their alleged indorsement. Trial at the February Term 1875. Verdict and judgment for plaintiff for $1,210.46. Joseph and Comstock bring the case here for review.

M'ror from Leavenworth District Court. All material facts are stated in the opinion of the court. Goldie as plaintiff, had judgment against Taggart and the Delahays, at the November Term 1874. The Delahays bring the case here on error.

Error from, Wilson District Court. Action by Barrett against Barnes and three others, on an official bond, to recover damages for the alleged negligence of Barnes as sheriff of Neosho county. The action was commenced in Labette county, and afterward the venue was changed to Wilson county, where it was tried at the May Term 1874. Verdict for plaintiff for $2,080. On motion of defendants, this verdict was set aside and new trial granted.

Error from Cherohee District Court. The opinion of the court contains a full statement of the facts and proceedings. PeeJc had-judgment at the January Term 1875, and the Stage Company brings the case here.

Fh'ror from Sedgwick District Court. Hobart, as plaintiff, at the March Term 1875, recovered judgment against James Washington and W. B. Simpson, for the sum of $10,477.52, and costs. Washington & Simpson bring the case here. All necessary facts and proceedings are stated in the opinion of the court.

Error from Doniphan District Court. The opinion of the court contains a full statement of the facts and proceedings. The district court, at the September Term 1873, gave judgment for costs in favor of Dryden, and the Railroad Company brings the case here for review.

Error from Clay District Cou/rt. •The opinion of the court contains a sufficient statement of the facts. The district court, at the May Term 1875, sustained a demurrer to the petition of Wesley McLaughlin to vacate a judgment previously rendered by said court; and from such decision said Wesley McLaughlin appeals, and brings the case here on error for review.

Error from Allen District Court. Action by Williams against “Merritt & Sprague,” as partners, to recover the purchase price of a lot of cattle sold by him. Sprague made default. Merritt answered for himself, denying under oath, that any partnership existed between himself and Sprague, and denied any purchase by himself, or by himself and Sprague, or any indebtedness on his part for the cattle sold by Williams. Trial at the April Term 1875.

Error from Jaolcson District Court. Action by E. N. Morrill and W. W. Guthrie to quiet their title to the southeast quarter, of sec. 24, township 6, range 14, containing 160 acres of land in Jackson county. An action between the same parties, concerning other lands in the same county, is reported in 14 Kas. 293.

Error from Sedgwiolc District Court. Replevin, brought by Mrs. Wilson, to recover possession of a span of horses, alleged to have been wrongfully taken and wrongfully detained by McCartney. All necessary facts are stated in the opinion of the court. Trial at the March Term 1875 of the district court. Judgment for plaintiff, and McCartney brings the case here on error..

An information was filed in the district court, charging Joseph W. McNutt and Arthur Winner with the crime of murder in the first degree.

Fh'-ror from Howard District Court. A degree of foreclosure and sale was rendered at the October Term 1874 of the Howard district court, in an action wherein Shultz was plaintiff, and Smith and wife were defendants.

Error from Saline District Court. Action brought by Eisenhauer, who claimed in his bill of particulars that Maltby was “indebted to plaintiff in the sum of $112.50 for divers goods, wares and merchandise by the plaintiff purchased and procured for and delivered to defendant,” etc. No credits were given or stated in plaintiff’s bill of particulars, and no bill of particulars or answer was filed by defendant at any time.

Error from Nemaha District Court. Action by Smith against School District No. S, Nemaha Comity, on a contract for the sale and purchase of school furniture. Trial at the October Term 1874. Verdict and judgment for defendant. Smith brings the case here. The opinion contains a full statement of the facts.

Error from Doniphan District Court. The facts, pleadings, and proceedings, sufficiently appear in the opinion of the court. Hines, as plaintiff, had judgment for $293, and costs, at the March Term 1875, of the district court, N. P., judge pro tern., presiding, and Nesbit brings the case here. contended that a motion for a new'trial is unnecessary.

Error from Saline District Court. Injunction, brought by Prescott. The S.W.|- of sec. 36, in township 14 south, range 3 west, in Saline county, was a part of the lands reserved to the state as “school lands.” In January 1869 said tract of land was sold in accordance with the laws of this state for $800, payable in ten equal annual installments, with interest. One George Pearson was the purchaser. Pearson assigned his certificate of purchase to Prescott.

Error from Cowley District Court. Action by Carlson against Bliss & Blandin. Trial at the March Term 1875. Verdict and judgment for plaintiff, and defendants bring the case here. The material facts, and errors complained of, are stated in the opinion.

Error from Jackson District Court. A sufficient statement of the facts will be found in the opinion. Green had judgment for f 157, at the April Term 1875 of the district court, and Hogg brings the case here.

Error from Labette Eistriet Court. Herman and another, as assignees of a judgment rendered by the district court against Miller, moved that such judgment be set-off against a judgment Miller had recovered in said court against them. The district court, at the June Term 1875, denied such motion to set-off, and the Hermans bring the case here for review. All the facts are stated in the opinion.

Error from Montgomery District Court. Ejectment, brought by Kelsey, to recover possession of a quarter-section of land in Montgomery county, which he claimed to own in fee. Houck admitted possession, but claimed to be the equitable owner, alleging such facts as would entitle him to a preemption-right to government land, and alleging that plaintiff’s title was obtained through fraud practiced against the government by plaintiff’s grantor.

Error from Coffey District Cou/rt. The Bu/rlington National Bank, as plaintiff, recovered a judgment against Cross, as defendant, at the December Term 1874, for $3,592.64, and costs, and Cross brings the case here on error. The facts are stated in the opinion.

Error from, Saline District Cowt. Proceedings commenced by Baker, before the probate judge and two associates, constituting a.court for the contest of elections, as provided by §§85 to 105 of ch. 36 of Gen. Stat. of 1868, to determine the right to the office of sheriff of Saline county. The election contested was held November 2d 1875. Baker, Long, and others, were candidates for sheriff. The canvassers, and the contest court also, declared Long elected.

<p> Error from Saline District Court. </p> <p>At the general election held in and for Saline county on the 2d of November 1875, Wildman and Anderson were opposing candidates for county clerk. The county canvassers decided that Anderson was elected. Wildman instituted proceedings to contest the election before a contest court composed of H. S. Cunningham, probate judge, and Evander Light and B. J. E. Hanna, associate justices. The principal matters relied upon by Wildman were, first, that the board of county canvassers canvassed two returns from Smolan township, which he alleged was composed of but one election district; and second, that the judges of the election held in Solomon township counted as legal, ballots which were folded together in pairs, and voted by one person as a single ballot. The contest court, (associate justice Hanna dissenting,) held that one set of returns from Smolan township, that of the election held at “Hultman’s school-house,” should be rejected, which gave a plurality of the remaining votes cast, for Wild-man, whom the contest court declared to have been the legally elected county clerk, and entered judgment in his favor. Anderson carried the case to the district court by petition in error, where, at the February Term 1876, the judgment of the contest court was reversed. Of this judgment of reversal Wildman complains, and brings the case here on error.</p>

Error from, Leavenworth District Court. Proceedings instituted in November 1873 by Moonlight, to contest the right to the office of sheriff. The proceedings were commenced in a contest court, composed of Richard R, Rees, probate judge, and George H. English and Lucien Baker, associates. Said contest court found and decided in favor of Bond, the contestee. Moonlight removed the case to the district court by petition in error.

Error from Jefferson District Court. In October 1870, Joseph D. Rollins made and delivered to Mitchell his promissory note for $2,500, with interest at 12 per cent, from date, payable in six months from the date thereof, and Rollins and wife • executed a mortgage on real estate to secure the same. Payments upon said note were made to the amount of $1,620 prior to August 1873.

Error from Osborne District Court. Action by Hill and two others, taxpayers of School District No. 13, of Osborne county, to enjoin the collection of a certain tax levied upon the property of said school district by order of the district board for the year 1874. The petition was filed in February 1875, and Hays, county treasurer, was made sole defendant. Hays demurred. The district court, at the April Term 1875, overruled the demurrer, and decreed a perpetual injunction.

<p> jError from, Chautauqua District Court. </p> <p>Titus was sheriff of Howard county during the year 1874, and until June 1st 1875, when by the division of said county he became sheriff of Chautauqua county. He presented his claims to the board-of county commissioners for fees earned and charged by him on certain tax warrants. The claims were disallowed, and Titus took two appeals to the district court. The district court, at the November Term 1875, decided both cases in favor of the county, and Titus brings them here for review. The material facts are stated in the opinion.</p>

Original Motion for Mandamus. On the 22d of December 1876, Samuel B. Peters filed in this court his petition and motion for a peremptory writ of mandamus to compel the Board of State Canvassers to canvass the votes cast in and returned from the several counties comprising the ninth judicial district, for the office of judge of said district.

• Error from, Miami District Court. Soper, Brainard & Co., plaintiffs, at the December Term 1872, recovered a judgment against JS. N. Medberry, Penn Yetter, F. M. Shaw, and C. A. Leighton, as late partners, defendants, for the sum of $2,715 debt, and $367.95 costs. The defendants bring the case here for review. The material facts, and the instructions given and refused, are stated in the opinion.

Error from, Dickinson District Court. At the April Term 1873 of the district court, Halcomb, as plaintiff, recovered a judgment against Samuel H. Weaver for the sum of $532.29, and costs, and a decree against said Weaver and wife, and James Hoffmire and three others, foreclosing a mortgage given by Weaver and wife to secure the note on which said judgment was recovered, and for a sale of the mortgaged premises.

<p> jError from Pottawatomie District Cowrt. </p> <p>Action by John Brady and David F. Easton, as plaintiffs, to recover from the Railway Company for injuries to plaintiffs’ property alleged to be occasioned by the negligence of the defendant. • Trial at the February Term 1875. "Verdict and judgment for plaintiffs for $335, and the Railway Company brings the case here.</p>

Error from Lyon District Cowrt. In July 1875, Lofland was arrested on a charge of assault and battery and brought before a justice of the peace, and on being arraigned pleaded guilty to the charge. A fine was assessed against him, which with the costs he was adjudged to pay. At the request of the justice the county attorney was present.

Indictment, charging defendant Henrietta Cooh with having poisoned and killed Hiram Cook, by mixing strychnine in his food and drink, and so administering it, on the 3d of March 1876. Trial at the April Term 1876. Defendant asked twelve instructions, of which the 4th, 9th, 11th and 12th were refused. The 4th was in regard to “reasonable doubt,” and was in substance included in the general charge. The 9th and 11th instructions so refused are as follows: “9th.

The defendant Crosby was charged by information with the crime of embezzlement.

Behee was charged by information with the commission of certain acts, constituting burglary in the second degree if committed in the night, and burglary in the third degree if committed in the day-time. The allegation as to time, is, “that George W. Behee, at said county of Leavenworth, on the 17th of July 1876, and in the night-time of said day/’ etc. Trial at September Term 1876. Verdict of guilty of burglary in the third degree, and petit larceny.

Error from Osage District Court. The only question here, is one of practice, respecting the filing of pleadings. Judgment was given for the Bank, at the December Term 1874, and the City of Burlingame brings the case here.

Error from, Marshall District Court. A sufficient statement of the facts and proceedings is given in the opinion. Judgment for Best was given at the August Term 1875, and Nason brings the case here.

Error from Leavenworth District Court. Bond, as sheriff, at the September Term 1875 of the dis- t trict court, was amerced in the amount of an execution held by him, for failure to return said writ on or before the return-day thereof. From such order and judgment of amercement he appeals, and brings the question here for review. All the facts and proceedings are stated in the opinion.

Error from Wilson District Cowrt. Action by Richardson, against Rettman, to recover the contract-price of a “ Marsh Harvester,” sold by plaintiff to defendant. The plaintiff had judgment at the February Term 1875, and defendant brings the case here. • •

At the November Term 1876 of the district court, M. M. Young, L. C. Harrington, and Jacob Hornberger, were severally tried and convicted for selling intoxicating liquors contrary to the provisions of the Dramshop Act, (ch. 35, Gen. Stat. 1868.) The cases were tried by the court without a jury.

Error from Gherolcee District Court. In April 1871, George commenced his action against Phillips, to ascertain and declare a trust, and to compel Phillips, as trustee, to convey certain lands to the plaintiff. The pleadings are sufficiently stated in the opinion, infra. Trial at the June Term 1872 of the district court.

Error from Franlclin District Court. Action by VanDerveer to recover from Walters $110 alleged to be the balance due for wages as a clerk. Plaintiff’s bill was for-services from Nov. 23d 1873 to January 10th 1874, at $15 per month; from.lOth January 1874 to 20th August, at $30 per month; and from 20th August to October 7th 1874, at $15 per month. Total, $267, on which he admitted payments to amount of $157. Walters denied all indebtedness. Trial at November Term 1874.

<p>1. Minors; Personal Liability on Recognizance; Non-consent of Guardian. An action on a forfeited recognizance may be maintained against a person who executed the same to procure his own personal liberty, although such person may have been a minor at the time he executed the same, having a guardian for his property, and although he may have executed the same without the consent of his guardian.</p> <p>2. Pardon for Criminad Offense, No Release on Forfeited Recogwizance. And such action may be maintained, although the governor may have pardoned the defendant after sentence in the criminal action, and before final judgment on the forfeited recognizance.</p>

Error from Sumner District Court. The only question here, and all necessary facts, will be found fully stated in the opinion.

Error from Washington District Court. Action by Koehler on three promissory notes of $91.63 each, dated 11th December 1872, executed by J. B. Snider, F. M. Layering, and A. J. Layering, payable two, four, and six months respectively after the date thereof. Judgment was given for Koehler, at the April Term 1875, for $338.56, and costs, and the defendants bring the case here.

Error from Morris District Court. The only question submitted upon the record here, is, whether plaintiffs in error were- entitled to a trial by jury. The facts upon which the question arises, are fully set forth in the opinion. The district court, at the October Term 1874, refused to impannel a jury, and thereupon tried the case, and gave judgment for McNay, plaintiff. The defendants bring the record here for review.

Error from Montgomery District Court. Action by Knowles, to recover damages for an alleged false imprisonment.

Error from Wyandotte District Court. Action by Glass, on a promissory note for $89. Trial at the September Term 1874. Verdict and judgment for defendant. The opinion contains a full statement of the facts. Plaintiff Glass brings the case here.

Error from Clay District Court. Cochran and two others, as partners, filed their petition against A. E. Dexter, John Dexter, and Emma Dexter, counting upon a note given by to plaintiff by said A. F. and John, and a mortgage executed by said A. F. and Emma, his .wife. The note was for $1,676.67, and the mortgage was upon the north half of sec. 23, and east half of northeast quarter of. sec. 22, in township 7 south, of range 2 east, in Clay county.

Error from Davis District Court. Action by Cullinan, as administrator, against Dryfoos and three others, on an administrator’s bond given by Dryfoos as principal, and his co-defendants as sureties.' The plaintiff claimed $1,415, and interest thereon.

<p>County Treasurer; Fees; Percentage on Redemption Moneys. Un- ' der the laws of 1868 the county treasurer was not authorized to charge the county three per cent., or any other sum, on moneys received for the redemption of real estate sold on tax sale to individuals.</p>

Grebe 'was tried and convicted of the crime of grand larceny. The information charged the defendant with the stealing of $25 in gold, $26 in silver, and $2,500 in treasury notes and national bank notes, belonging to John Sass, and from the dwelling-house of Sass, on the night of 17th January 1875. Trial at the March Term 1876. Verdict of guilty, and defendant was sentenced to imprisonment in the penitentiary for five years. From such judgment of conviction Grebe appeals.

Information,.charging that defendant Bybee, “ on the 4th day of July 1876, at Chautauqua county, in and upon one Jesse Peterson, then and there being, feloniously… Held: the said gun being a deadly weapon, and the said Bybee then and there, and with the said gun, so loaded as aforesaid, feloniously did shoot at and toward the said Jesse Peterson, with intent him the said Peterson then and there feloniously and willfully to kill and murder, contrary,” etc. Plea, not guilty.

Error from Doniphan District Court. Action brought by Frank Theritt, A. J. Selover, and Henry Dockhorn, to enjoin and restrain John T. Braidy, Peter Deiter, and Benjamin Harding, who claimed to be councilmen of the city of Wathena, from acting together as the city council of said city, and to enjoin and restrain Christopher Nahrung, the mayor of said city, from recognizing said Braidy as such councilman.

Fh'ror from Saline District Court. Shelly & Co., as plaintiffs, bad judgment against Carver, at the June Term 1875 of the district court, for $234.15, and costs. Carver brings the case here on error.

Error from Doniphan District Court. Culp’s team became frightened, while near the railroad track and depot of defendants, in the city of Doniphan, in March 1'874, causing plaintiff to be thrown from his wagon, and breaking his leg, and so injuring him that amputation of the leg was necessary. He alleged negligence on the part of the Railroad Company. A demurrer to his petition was sustained at the September Term 1874, and Gulp brings the record here for review.

Error from Cherokee District Court. Claelin & Thayer brought suit against one Ered. Zipp, and sued out a warrant of attachment therein. Said attachment was executed by A. S. Dennison, under-sheriff, by levying the same on a span of mares, a double-wagon, a set of harness, one pony, one cow, five steers, and five heifers.

White was charged by information with the crime of rape, on one M. D., a girl fourteen or fifteen years of age. The crime was alleged to have been committed on 28th May 1875. Plea, not guilty. Trial at the October Term 1875. Verdict, guilty. New trial refused, and defendant sentenced to imprisonment in the penitentiary for the term of twelve years. From this judgment and sentence defendant appeals to this court.

<p>1. Insurance Against Fire; Terms of Policy; General rnd Special Glauses. Where an insurance policy provides in writing for insuring a “stock of boots and shoes, dry goods, drugs, liquors, and such other goods as are usually kept for sale in a country store,” and provides in printing that “gunpowder, saltpetre, phosphorus, petroleum, naptha, benzine, benzole or benzine varnish, are positively prohibited from, being deposited, stored, or kept in any building insured, or containing any property insured by this policy, unless by special consent in writing indorsed on 'this policy, naming each article specially, otherwise the insurance shall be void,” and accompanying the policy, and a part of it, is the application of the assured, in the body of which he obtains in writing special permission to keep one of the prohibited articles, in the following words, to-wit, “Permission given to keep coal oil, not to exceed three barrels at any one time,” held, that the assured could not'keep gunpowder in any shape or quantity in his store along with his other goods, without the consent of the insurance company in writing, naming such article specially, without violating the terms of his policy.</p> <p>2. Construction of Contracts of Insurance-; Written and Printed Glauses, Not Repugnant. The court should not construe the written and printed clauses in a policy of insurance so as to make them conflict with each other, if such a construction can be avoided; but on the contrary, should construe them so as to make them harmonize, if such a construction is possible; and should construe them so as to give to each and all their terms full force and operation. And in construing them the court should also take into consideration the rest of the instrument, the acts of the parties, and all the surrounding circumstances, for the purpose of arriving at the real intention of the parties; for the real intention of the parties is the great end and object in the construction of all instruments.</p> <p>3. --[The natural and proper construction of a policy of insurance containing both written and printed clauses, which clauses, if separately construed, would be in apparent contradiction, explained and illustrated in the opinion.]</p>

Error from Montgomery District Court. Action by the Railroad Company, plaintiff, against Sullivan and wife, to compel the specific performance of a contract. Sullivan executed a title-bond, wherein he contracted on certain terms to convey by a good and sufficient deed forty acres of land in Montgomery county to J. M. W., in trust for the Railroad Company. The facts, and the alleged breach, are fully stated in the opinion, infra.

Error from Eranlclin District Court. Action brought by Harrison, against Wm. A. Simpson and J. J. Crippen, partners as “Simpson Bank,” and Wm. J. Cummings, to recover $2,450, and interest. Trial, at March Term 1875. General verdict in favor of plaintiff, and against Simpson and Crippen, for $2,577.60. The jury also returned answers upon particular questions of fact, which questions and answers are quoted in the opinion, infra.

Error from Douglas District Court. Action by ECover, to recover $171.30, which sum he claimed Cochins had forfeited to plaintiff by reason of having taken and received unlawful interest on a promissory note. All the facts are stated in the opinion. The district court, at the August Term 1873, gave judgment for defendant, and plaintiff appeals, and brings the case here on error. cited 9 Johns. 233, 244; 17 Mass. 394; 1 Pick. 435; 3 Conn. 456; 1 N. H. 33; 2N.H. 61.

<p>1. Motion eor. New Trial, To be Considered Must Appear in Record. Where the record, fails to contain the motion for a new trial, this court cannot say whether there was error in overruling it, nor pass upon questions in the admission of testimony, or the sufficiency of the evidence to support the findings, or verdict.</p> <p>2. Value oe Debt Not Due; Rule for Ascertaining. The present worth of a debt payable at a future time is ascertained by dividing the face of the debt by the amount of $1.00 for the given rate and time, and the quotient is the present worth.</p>

Error from Saline District Court. Action by- Conrad against- H. C. Stanley, School District No. #, Saline Cou/nty, and others, to recover from Stanley, as principal contractor, $195 alleged to be due to plaintiff as sub-contractor, and to establish and enforce said sum as a lien upon the school-house of said district. The district court at the May Term 1875, gave judgment for plaintiff, and said School District No. 2 alleges error, and brings the record here for review.

Error from Marshall District Court. Action by. Elliott to recover an alleged balance of $111.65 due him on account from Williams & Finnigan. The principal facts and-proceedings are stated in the opinion, infra. The district court, at the August Term 1875, C. A. S., judge pro tern., presiding, confirmed the report of S. C., referee, and gave judgment in favor of Elliott for $116.80, and costs. The defendants bring the case here on error.

Error from Coffey District Court. The facts will fully appear from the syllabus, and the opinion. The district court, at the May Term 1875, sustained a demurrer to Colby’s petition, and gave judgment in favor of the demurring defendants for costs. Colby, plaintiff, appeals, and brings the record here on error for review.

Error from Cherokee District Cov/rt. Action by the State Savings Association of St. Louis, Mo., against A, J. Hvmt and Jonathan Hunt, as partners, on their acceptance of a draft drawn on them by W. W. Young, Bro. & Co., of St. Louis. The facts, and -instructions complained of, fully appear in the opinion, infra. The district court, at the April Term 1875, gave judgment in favor of defendants and against the plaintiff for costs. The plaintiff brings the case here on error.

Error from Morris District Court. Action by Campbell against The Board of Education of the City of Council Grove, to recover $130, balance alleged to be due him on a school order issued by the predecessor of said board of education. Trial at the April Term 1875, and judgment for plaintiff. The defendant brings the case here. The opinion contains a full statement of the facts.

Original Proceedings in Habeas Corpus. Petition filed in this court on the 2d of January 1877, on behalf of A. J. Snyder, for a writ of habeas corpus.

Krror from Doniphan District Court. John Corbett, an employé, engaged with others in constructing a bridge, was accidentally killed by falling from a scaffold, in February 1873, while in the employ of the Detroit Bridge and Iron Works.

Error from Leavenworth District Court. All necessary facts are stated in the opinion, infra. The district court, at the February Term 1875, on motion of Skinner and wife, defendants, set aside the levy of an execution on certain lands belonging to a daughter of defendants. Mitchell, plaintiff, appeals from such order, and brings the record here for review.

Error from Leavenworth District Qowrt. The opinion of the court contains a full statement of the facts and proceedings.

Error from Saline District Court. Replevin, brought by Couse against Thomas J. Going, sheriff of Saline county, to recover possession of ninety head of cattle. The cattle had been attached as the property of M. D. McCormick, at the suit. of the Kansas Pacific Bailway Co., and said company'was substituted in place of Going, as party defendant. Couse claimed the cattle as part of a larger lot purchased by him from McCormick. Trial at the March Term 1875.

Error from Leavenworth District Court. The opinion contains a full statement of the pleadings, and facts. The district court, at the February Term 1875, gave judgment in favor of Williams and Stanton, defendants, against Carr, plaintiff, and the plaintiff brings the case here on error.

Error from Nemaha District Court. Action by Ingram & Co., millers, on an account. Amount claimed, $94.63. Clippenger filed a bill of particulars, claiming a set-off amounting to $223.50. The proceedings are fully stated in the opinion. The plaintiffs had judgment at the April Term 1875, and defendant brings the case here.

Error from Nemaha District Court. All necessary facts are stated in the opinion. The judgment appealed from was given by the district court at the April Term 1875.

Error from Atchison District Court. Eggan, as plaintiff, had judgment at the March Term 1875, against Briggs and another. The errors complained of are fully stated in the opinion. Defendants bring the case here.

Error from, Jachson District Court. The BanJc had judgment against Stanley and Bose, defendants, at the October Term 1874. The defendants bring the case here. The facts and proceedings are stated in the opinion. .

Error from Sedgioich District Court. Action by C. H. Taylor, M. R. Moser, and W. EL. Omealy, as partners, on a promissory note executed in their favor by W.-A. Thomas, N. W. Ellis, and W. L. Thomas, for $350. The consideration of the note was 200,000 hedge plants to be delivered by Taylor & Co. to Thomas & Co. The defense was, that the note had been placed in escrow only by defendants, and that the plaintiffs had not performed their part of the contract.

Error from Neosho District Court. Stoner, as administrator of the estate of one Strayer, deceased, recovered a judgment before a justice of the peace against Jackson. Jackson removed the case to the district court by petition in error.

Error from Lyon District Court. Action by Mary W. Main against Martha Ann Payne, John W. Main, and Wm. T. Main, to establish a trust and compel its execution. The facts and proceeding are sufficiently stated in the opinion. The order complained of, was made by the district court, at the September Term 1875.

Error from Montgomery District Court. Action by Stephenson against James Z. Gapen. An attachment at the commencement of the action (in August 1873) was issued, and levied on real estate. A motion by Gapen to discharge the attachment was overruled. Trial, and judgment in favor of Stephenson, at the September Term 1874, for $3,000, and interest, and costs, and lien of attachment on real estate continued, and decree for the sale of - attached property.

Error from, Greenwood District Court. ■ Ebenhack petitioned for a writ of habeas corpus.

Error from Bourbon District Court. Sherrill, as plaintiff, brought suit and recovered judgment against A. Hawkins and W. I. Linn, as makers, and J. EC. Couch, as indorser, upon a promissory note for $1,000, and interest, dated August 15th 1874, payable ninety days after date. The plaintiff had judgment at the April Term 1875.

Error from Chase District Court. Action by Swayze against two parties, as makers, and two others as indorsers, of a promissory note. The note was for $1,500, dated 1st May 1875, payable ninety days thereafter, with interest from maturity at twelve per cent, per annum. The makers pleaded usury. The indorsers answered separately, and each a general denial. Trial at the December Term 1875.

Fh'ror from Franklin District Court. Ejectment brought by Clark, for 240 acres of laud in Franklin county — part of the lands patented to one Wm. Hurr, a councilman and headman of the Ottawa tribe of Indians, under the provision of the 3d article of the Ottawa treaty of 1862. Clark claimed title in fee, under a deed from said Hurr and wife to himself, dated November 13th 1872.

Error from Franklin Eistrict Court. Ejectment for forty acres of land, bought by Paramore. The land is the north-half of the tract described in the agreed statement of facts, quoted in the opinion, infra. Defendants Campbell and wife denied plaintiff’s-title, admitted their own possession, and claimed title in fee. Trial at the November Term 1875. Finding and judgment for plaintiff, and defendants bring the case here.