Volume 2 — Kansas Court of Appeals Reports

Memorandum. — Appeal from Reno district court; F. L. Martin, judge. Prosecution brought by The State against Seth Jones, charging violations of the prohibitory-liquor law. Conviction. Defendant appeals.

Memorandum. — Error from Ford district court; A.' J. Abbott, judge. Action on account by Andrew Prince against Benjamin Ferguson. Judgment for plaintiff for $110. The defendant brings the case to this court.

<p>Memorandum. — Appeal from Rice district court; Ansel R. Clark, judge. Prosecution for violation of prohibitory-liquor law. The defendant, George Sax-ton, was convicted. Pie appeals.</p>

<p>Memorandum. — Error from Finney district court; A. J. Abbott, judge. Action in foreclosure by W. J. P. Kingsley against John A. Stevens, E. A. Bagby, and others. Judgment for the defendant E.. A. Bagby, awarding him first lien. The plaintiff brings the case to this court.</p> <p>The statement of the case, as made by Dennison, J., is as follows :</p> <p>W. J. P. Kingsley was the owner of a mortgage executed February 22, 1888, by John A. Stevens and wife, upon certain real estate in Finney county, Kansas. - E. A. Bagby obtained a judgment in the district court of Finney county, Kansas, against John A. Stevens et al. on March 28, 1888. Said Stevens was the owner of said real estate in fee simple on each of the dates above mentioned. The regular January term of the district court of Finney county convened January 3, 1888, and on February 18, 1888, adjourned to March 6, 1888, and continued in said adjourned session until said 28th day of March, 1888. An appeal was taken from said judgment, anda stay bond, provided for in the first subdivision of paragraph 4652 of the General Statutes of 1889, was given, which remained in force until July 9, 1891, at which- time the judgment was affirmed. On April 23, 1890, Kingsley filed his petition in foreclosure against Stevens and others, among whom was the said E. A. Bagby, who was not personally served with summons, but was served by publication, and judgment was rendered by default on May 28, 1891. Bagby afterward, by stipulation with Kingsley, had the judgment as to him set aside, vacated, and reopened. Pleadings were filed and a trial had upon the question of priority of liens, and judgment was rendered in favor of Bagby on August 6, 1891. Kingsley brings the case here for review.</p>

Memorandum. — Appeal from Rice district court; Ansel R. Clark, judge. Prosecution, for violation of the prohibitory-liquor law. The defendant, James M. Allphin, was convicted, and appeals.

Memorandum. — Error from Finney district court; A. J. A-bbott, judge. Action on contract by M. B. Hundley against The Board of County Commissioners of the county of Finney. Judgment for defendant. Plaintiff brings the case here.

Memorandum. — Error from Ford district court; A. J. Abbott, judge. Action by The York Draper Mercantile Company against R. N. Hutchinson and others. Judgment for defendants, and plaintiff brings the case here.

<p>Memorandum. — Error from Rice district court; Ansel R. Clark, judge. Action by George C. Whinfield against Frank G. Willard. Judgment for plaintiff, and defendant brings the case here.</p>

Memorandum. — Error from Rice district court; J. FI. Bailey, judge. Action in replevin by George and Richard Norduft against B. F. Flarmon and The State Bank of St. John, Kansas. Judgment for plaintiffs. Defendants bring the case to this court.

Memorandum. — Error from Ford district court; A. J. Abbott, judge. Action to foreclose a mortgage by N. H. Lockwood and J. W. Clendenin against H. M. Weaver and others. Judgment for plaintiffs. Defenclants bring the case to this court.

<p>1. Note and Moetgage, Construed Together. A mortgage given to secure the payment of a note must be construed together with the note as a part of one transaction or contract, the same as if they were a part of the same instrument.</p> <p>2. Note, Modified by Mortgage. A note signed by several persons individually may be modified by a mortgage given to secure said note so as to show that said persons signed the note in their representative capacity.</p>

Memorandum. — Error from Pawnee district court; S. ~W. Vandivert, judge. Action for damages by fire brought by Charles G. Scrafford and John P. Cone, partners as Scrafford & Cone, against The Atchison, Topeka & Santa Fe Railroad Company. Judgment for plaintiffs. Defendant brings the case here.

<p>Memorandum. — Error from Pawnee district court; S. W. Vandivert, judge. Action by M. P. Aiken & Co. against J. A. Franz. Judgment for defendant. Plaintiffs bring the case here.</p>

Memorandum. — Error from Barton district court; J. H. Bailey, judge. Action brought by The Bank of Claflin against John O. Rowlinson, S. H. Ryker, and W. A. Giles, to recover on a promissory note. Judgment for defendants, and plaintiff brings the case here.

Memorandum. — Error from Rice district court; J. H. Bailey, judge. Action to foreclose a mortgage, brought by Elizabeth Bostwick against Joseph A. Blair and others. Judgment for certain of the defendants, and plaintiff brings the case here.

Memorandum.— Error from Rice district court; John N. Ives, judge pro tern. Action to enjoin tbe collection of certain taxes, brought by Edward Rheiner against J.- C. Seward, as treasurer of Rice county, Kansas, and others. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum.— Error from Rice district court; J. H. Bailey, judge. Action brought by Lodemia Shuyler against W. G. Van Zandt and H. H. Carr, for alleged conversion of broom-corn. Judgment for plaintiff, and defendants bring the case to this court.

Memorandum. — Error from Rice district court; Ansel R. Clark, judge. Action to foreclose a mortgage, brought by Laura N. Libby against J. T. Ralston and others. Judgment for defendant Ralston. Plaintiff brings the case here.

Memorandum. — Error from Rice district court; H. W. Gleason, judge pro icon. Action of injunction by J. J. Short against J. W. Kimble and H. B. Revel. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum.— Error from Stafford district court; Ansel R. Clark, judge. Action brought by Howard Gray against Jacob Haish. The court sustained a motion of defendant, Haish, to open up and set aside a judgment formerly made, and from that- decision plaintiff brings the case here.

Memorandum.— Error from Finney district court; A. J. Abbott, judge. Action on a promissory note brought by D. W. Stauffer and N. C. Jones against Lee L. Doty, R. K. Kelley, S. Halsey, and J. W. Weeks. Judgment for defendants. Plaintiffs bring the case here.

<p>1. Evidence, Confined to Issues. The evidence on the trial of a case should be confined to the issues stated in the pleadings between the parties, and a witness should not be permitted, over the objection of the adverse party, to state facts that are collateral to the matters in dispute.</p> <p>2. - Witness, Detailing Collateral Facts — -Error. The court should exclude all evidence of collateral facts or those which are incapable of affording any reasonable presumption or inference as to the principal facts of matters in dispute. It is error for the court to permit a witness to detail facts that are collateral and irrelevant, which are calculated to draw the .minds of the jurors from the point in issue, and to excite prejudice and mislead them.</p> <p>3. Action eor Fire — Measure of Damages. Damages caused by setting out fire in the operation of a railroad and destroying personal property should be measured by the fair, reasonable value of the property at the time and place of destruction.</p> <p>4. -- Bule. The correct rule for the measurement of damages done to land alone, caused by fire communicated to it by the operation of a railroad, is the difference in the fair market value just before and just after the fire.</p>

<p>Memorandum. — Error from Rusli district court; V. H. Grinste ad, judge. Action in replevin brought by Carrie Williams against The La Crosse Milling Company. Judgment for plaintiff, and defendant brings the case here.</p>

Memorandum. — Error from Barton district court; Ansel R. Clark, judge. Action for conversion of personal property brought by Samuel Carey against H. J. Webber. Judgment for plaintiff. Defendant brings the case here.

Memorandum. — Error from Ford district court; A. J. Abbott, judge. Action by George V. Bartlett against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for killing two colts. Judgment for plaintiff. Defendant brings the case here.

<p>1. .Quo Warranto — Jurisdiction of Courts of Appeals. Courts of appeals have original concurrent jurisdiction with the supreme court in cases of quo warranto in their respective divisions.</p> <p>2. -- Proper Party Plaintiff. The county attorney of Stevens county is a proper person to commence and prosecute this action in the court of appeals, southern department, western division. (The State, ex rel., v. Allen, 5 Kan. 213.)</p> <p>3. --- Sufficient Petition. Where the petition alleges all the necessary facts to authorize the removal of a county treasurer by the board of county commissioners and the appointment of his successor, in accordance with an act of the legislature of 1874, being an act entitled “An act to provide for the publication of statements showing the condition of the county treasury, examination of the same, and to prevent the improper use of public moneys, and for the punishment thereof,” (Gen. Stat. 1889, ¶1709,) and alleges that the defendant was duly removed from the office of county treasurer and his successor appointed and qualified, that the defendant refuses, on demand, to surrender the office and turn, over the moneys, papers, books and properties belonging to such office to his successor, and that the defendant is unlawfully exercising the office of county treasurer of Stevens county after he has been duly removed therefrom and his successor appointed, it states a good cause of action against the defendant in the proceeding of quo warranto in the courts of appeals.</p>

<p>1. Funding Bonds — Compromise with Township. Where township warrants are held by a person and he makes an offer to compromise the same for funding bonds, and the bonds are issued under sections 1, 2 and 3 of chapter 50 of the Laws of 1879 (Gen. Stat. 1889, ¶¶464, 465, 466), and the warrants are destroyed and the bonds are delivered to the person holding the warrants, the transaction is completed so far as the authority to issue the bonds is concerned. Each condition precedent has been performed and has spent its force. If the township afterward procures the bonds and destroys them, with the assent of the holder of the original warrants, before the rights of any other person attaches thereto, the transaction is then entirely completed, and all persons are in the same condition as they were before the compromise was made.</p> <p>2. - Void for Want of Authority. If the township officers are afterward induced to execute purported funding bonds and exchange them for an agreement to build a sugar-mill, such bonds are void for want of authority by said township officers to issue them.</p> <p>3. - Cases Distinguished. Bonds issued by virtue of and in accordance with the provisions of sections 1, 2 and 3 of chapter 50 of the Laws of 1879 (Gen. Stat. 1889, ¶¶ 464, 465, 466) do not come within the doctrine laid down in Knox Co. v. Aspinwall, 62 U. S. 544; Coloma v. Eaves, 92 id. 484, or The State, ex rel., v. Comm’rs of Kiowa Co., 39 Kan. 657, for the reason that the township officers whose duty it is to sign the bonds are not by ' said enactment made the tribunal to decide whether the precedent conditions have been complied with.</p> <p>4. - Canvass of Vote. In an election to authorize the township officers to compromise an outstanding indebtedness, the board of county commissioners is the tribunal selected by the legislature to canvass the votes cast at such election, and to determine the result, and it is then the duty of the county clerk to notify the township officers of their determination.</p> <p>5. - Purchaser ■ — Notice. A purchaser of township bonds issued under the provisions of sections 1, 2 and 3 of chapter 50 of the Laws of 1879 (Gen. Stat. 1889, ¶¶464, 465, 466) is bound to take notice of the township records.</p> <p>6. -Purchaser — Legality of Election. Section 3, supra,, contains a sufficient notice to all intending purchaser of the bonds that an election must be held to authorize the action of the township officers in issuing said bonds, and such purchaser is bound to examine into its legality.</p> <p>7. - Case Followed. The opinion written by Mr. Justice Brewer, in Lewis v. Comm’rs of Bourbon Co., 12 Kan. 186, quoted, referred to, and followed.</p> <p>8. -Repudiation and Ratification. Where the township officers who issue illegal bonds also make a tax levy for the purpose of paying’the interest thereon, and where the voters and taxpayers at the first opportunity repudiate the officers and repudiate the bonds, and refuse to pay the interest to the bondholder or to levy any more taxes to pay such interest, held, that they have not ratified the issue of bonds.</p>

Memorandum. — Error from Stafford district court; Ansel R. Clark, judge. Action by Tbe Lockwood Mortgage Company against B. T. Dykes, as sheriff of Stafford county, and others, to enjoin the sale o certain land.» Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Rice district court; J. H. Bailey, judge. Action on contract by J. R. Watson and others, as The Sultan Cart Company, against C. K. Beckett. Judgment for plaintiffs. Plaintiffs bring the case to this court.

<p>Memorandum. — Error from Norton district court; G. Webb Bertram, judge. Action brought by the King Iron Bridge and Manufacturing Company against Modell township, in Norton county, to recover money on contract. Judgment for plaintiff. The defendant brings the case to this court.</p>

<p>1. Note and Mortgage — Personal Judgment. In an action upon a note and a mortgage securing the same, the plaintiff is entitled to judgment for the amount of the note, regardless of the decision of the court as to the validity of the mortgage, wheü it is conceded that the note was executed by the defendant, that the plaintiff is the owner and holder thereof, and that it is due and unpaid.</p> <p>2. Pleading and Practice — Holder of Note. An objection cannot for the first time be made in this court, that the plaintiff failed upon the trial to show that he was the owner and holder of the note sued on, though such fact was put in issue by the pleadings, when the defendant, without objection, took upon himself the burden of proof upon other issues, and when the whole trial proceeded upon the assumption that the plaintiff was the owner and holder of the note, and that whatever cause of action existed thereon was vested in him.</p> <p>3. Homestead — Question of Law and Fact. Whether a tract of land not actually occupied as a residence by the owner and his family should be held to be their homestead and protected as such, because of a claimed intention to return thereto as a place of residence, is dependent largely upon the bona fide intention of the owner, and is a mixed question of law and fact to be determined by the trial court.</p> <p>4. Special Findings, Merely Advisory — Court May Substitute. When the issues submitted to a jury are not such as entitle the parties to a jury trial as a matter of right, the court may consider the answers, which the jury returns to special questions of fact submitted to it, as merely advisory, and it is not error for the court in such case to set aside a finding which is contrary to the evidence, and substitute a finding of its own.</p> <p>5. Evidence — Insanity—Non-expert Witness. A non-expert witness should not be permitted to give his opinion as to the sanity or insanity of one of the signers of a mortgage when the mental condition of such signer and the validity of the mortgage are material facts to be tried, unless the witness first states his opportunity for observation and the facts observed, as the basis of his opinion.</p>

Memorandum.— Error from Graham district court; Charles W. Smith, judge. Action in foreclosure by Charles Alexander against J. C. B. Lewis, Nora Lewis, James A. Lewis, Farmers and Merchants’ Bank, W. R. Hill, Lydia Hill, and James P. Pomeroy. Judgment for plaintiff in foreclosure and canceling conveyances from defendants Lewis to defendants Hill and from defendants Hill to defendant Pomeroy.

Memorandum. — Error from Graham district court; Chas. W. Smith, judge. Action in foreclosure brought by Austin H. Bronson against Mary Ashlock, W. R. Hill, and others. Judgment for defendants. The plaintiff brings the case to this court.

<p>1. Corporation — not Even de Eaeto. An association of persons cannot have even a de facto corporate existence under a general law which provides for the- formation of corporations unless there has been such a bona fide attempt to comply with the requirements of the law as resulted in giving at least a color of legal authority to act in a corporate capacity.</p> <p>2. -Failure to Execute or to File Articles of Incorporation. An entire failure to execute or to file articles of incorporation, as required by the statute before persons can associate and do business as a corporation, precludes any claim to a de facto corporate existence.</p> <p>3. -Members Liable as Partners. Where certain persons subscribe for stock and organize for the transaction of a banking business by the election of a board of directors, a president, and cashier, intending to incorporate as a bank under the general laws of this state, and thereafter pay in a part of the capital subscribed, and a regular banking business is conducted by such persons through their officers in the belief that they are incorporated, but there has been in fact no such compliance with the law concerning corporations as to make such organization even a defacto corporation, those interested in the bank as organizers and owners of its capital and business are liable as partners for the debts contracted by the officers of such bank in the due course of its business.</p>

<p>1. Unincorporated Bank — Liable as Partners — Case Followed. The promoters and organizers of an unincorporated bank are liable as partners for debts contracted in the course of business. The case of McLennan v. Hopkins, just decided by this court, followed.</p> <p>2. Evidence — Bank Draft — Proof of Dishonor. Where the gist of the plaintiff’s cause of action, as stated in the petition, is the failure of defendants to pay, or provide for the payment of, a draft issued by the defendants as a bank, a recovery cannot be had without evidence to prove the dishonor of the draft.</p>

Memorandum. — Error from Norton district court; G. Webb Bertram, judge. Action on attachment bonds, brought by H. J. Harwi and E. S. Lank, co-partners as Harwi & Lank, against Bradley, Wheeler & Company, a corporation, H. A. Coffin, jr., and W. R. Hill. Judgment for plaintiffs. The defendants bring the case to this court.

Memorandum. — Error from Phillips district court; G. Webb Bertram, judge. Action on an insurance policy brought by Martha S. Belford and William T. Belford against The State Insurance Company of Des Moines, Iowa. Judgment for plaintiffs. The defendant brings the case to this court.

<p>Memorandum. — Error from Rooks district,court; Charles W. Smith, judge. Action for damages by Isaac Conger against The Salina, Lincoln & Western Railway Company. Judgment for plaintiff. Defendant brings the case to this court.</p>

<p>Eailway Company — Damage by Fire — Statute Construed — Findings. In an action brought under paragraph 1321, General Statutes of 1889, the defendant is only released from liability on account of the negligence of the plaintiff when there exists a real, proximate, causal connection between the plaintiff’s negligent act and the injury complained of. Hence, where the jury find specially that the plaintiff- was negligent in not taking any precautions to protect his property from incursions from prairie fires, but also find that such negligence did not contribute to the setting out of the fire which caused the injury, or to the damages that resulted therefrom, a judgment in favor of the plaintiff upon such special findings, and a general verdict in favor of the plaintiff, will not be disturbed.</p>

Memorandum. — Error from Ellis district court; S. J. Osborn, judge. Action brought by Swofford Bros. Dry-Goods Company against Frank Zeigler, to recover on promissory notes. Judgment for defendant. Plaintiff brings the case here.

Memorandum. — Error from Cheyenne district court; G. Webb Bertram, judge. Action in replevin brought by S. A. Donelson against The Mo-line Plow Company and John Burgwald, as constable. Judgment for plaintiff, and defendant Burgwald brings the case here, the action as to The Moline Plow Company having been dismissed in the court below.

Memorandum. — Error from Graham district court; Charles W. Smith, judge. Action by James P. Pomeroy against Henry Schwendener and others. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — Error from Graham district court; Charles W. Smith, judge. Action by G. PI. Eidson and others against George E. Golding and others. Judgment for plaintiffs, and defendants bring the case here.

Memorandum. — Error from Graham district court; Charles W. Smith, judge. Action on contract by-William Brown and Willis Jackson, copartners as Brown & Jackson, against School District No.-80, of Graham county, Kansas. Judgment for plaintiffs, and defendant brings the case-here.

Memorandum. — Error from Rawlins district court; G. Webb Bertram, judge. Action on a promissory note brought by the board of county commissioners of Rawlins county against Jesse W. Beals. Judgment for defendant, and plaintiff brings the case here.

<p>1. Written Warranty — Parol Evidence Inadmissible. Evidence of verbal statements and representations made during the negotiations for the sale of a horse is not admissible to contradict or to enlarge a written warranty delivered at the time the sale is consummated, unless it is first shown that through fraud or mistake material parts of the warranty were omitted from the writing.</p> <p>2. Evidence — Verdict. The evidence in the case examined, and held not to sustain the verdict.</p>

<p>Memorandum. — Error from Trego district court; Stephen J. Osborn, judge. Action brought by Eli McCollum against The Union Pacific Railway Company to recover damages caused by fire. Judgment for plaintiff. Defendant brings the case here.</p> <p>The statement of the case, as made by Gar ver, J., is as follows :</p> <p>On the 14th day'of July, 1892, Eli McCollum commenced this action in the district court of Trego county against The Union Pacific Railway Company, to recover the sum of $765.65 and attorney’s fees, for damages alleged to have been sustained from a fire caused by the negligence of- the railway company in the operation of one of its trains, on the 27th day of March, 1892. The fire was set out between two and three o’clock in the afternoon of March 27, and burned north through the prairie-grass about three-quarters of a mile, and into two stacks of hay. At this point the fire was subdued, and extinguished, with the exception of the burning stacks, which were left with the supposition that no further damage was to be apprehended. The next forenoon, about 11 o’clock, the wind carried the fire from the stacks, across a burned space of about 80 or 90 feet; into the dry prairie grass, and, in a short time, having traversed the intervening distance of three or four miles, it reached McCollum’s farm and did the damage complained of. The jury returned a general verdict for the plaintiff for $687.32 and $50. attorney’s fees ; they also made the following special findings of fact:</p> <p>“1. Did not the fire start near the railroad track of defendant and on the north side thereof, about two miles east of Ogallah, on the afternoon of March 27, 1892? Ans. Yes.</p> <p>“ 2. Did not such fire destroy Mr. Ridgway’s stacks and burn beyond them? A. Yes.</p> <p>“3. To what distance north of Mr. Ridgway’s stacks did the fire burn? A. From 84 to 90 feet, on the first day’s fire.</p> <p>“4. Did not defendant’s section men, assisted by Mr. Ridgway and other farmers of the neighborhood, put out such fire after it had burned such distance beyond the haystacks? A. They did not.</p> <p>“ 5. How wide was the space burned around these haystacks at the narrowest place? A. Prom 84 to 90 feet, on the first day’s fire.</p> <p>“6. Did not the parties engaged in extinguishing said fire consider it had been entirely put out, except what may have been left in the stacks, when they left it in the evening? A. They did.”</p> <p>‘ ‘ 8. Was not the ground surrounding the haystacks burned off clean, and was not a space on the north side of the stacks burned clean from the stack to the edge of the grass? A. Yes.</p> <p>“9. Were not the stacks about three-fourths of a mile north of the track? A. Yes.”</p> <p>' “11. Was there not very little wind blowing on the evening of March 27, 1892? A. Yes.</p> <p>“12. Did not the wind begin blowing very hard during the forenoon of March 28 ? A. Medium strong.</p> <p>“13. Where did the fire which burned plaintiff’s property on the 28th of March, 1892, originate? A. On company’s right of way on the 27th of March, 1892.</p> <p>“14. Did the fire which destroyed plaintiff’s property come from the stacks above mentioned? A. Yes.</p> <p>“15. If you answer the last question in the affirmative, then state whether or not sparks were carried by the very high wind then prevailing across the burned space from the stacks to the grass on the north of them. A. They were carried by a medium high wind.</p> <p>“16. Was not the plaintiff’s property destroyed by the fire started on the 28th of March? A. It was destroyed by the continuation of the fire of the 27th of March, 1892.”</p> <p>“24. What hour of the day did the fire begin burning in the grass on the 28th day of March? A. About 11 o’clock A. M.”</p> <p>The motion of the railway company for judgment on- the special findings of fact was overruled, and judgment entered on the verdict in favor of the plaintiff.</p>

Memorandum. — Error from Sherman district court; Charles W. Smith, judge. Action to foreclose a mortgage by The Goodland Building and Loan Association against Eva M. and E. F. Murphy. Judgment for plaintiff. Both plaintiff and defendants bring the case to this court.

<p>1. Trial by Jury- — General Yercliet Necessary. In a case tried by a jury, in which, a trial by jury is a matter of right, a general verdict must be rendered, and while it is the duty of the court to submit special questions upon request of the parties, it cannot, by so doing, dispense with a general verdict.</p> <p>2. Mortgage Deed — Cannot be Varied by Oral Declaration. A mortgage given to secure a certain debt cannot be extended by mere oral declaration to secure an entirely different indebtedness contracted subsequently to the execution of the mortgage.</p>

<p>■Memorandum. — Error from Russell district court; W. G. Eastland, judge. Action for damages on account of fire by John Motzner against The Union Pacific Railway Company. Judgment for plaintiff. Defendant brings the case to this court.</p>

Memorandum. — Error from Cloud district court; F. W. Sturges, judge. Action by N. B. Brown and John C. Elliott, partners as N. B. Brown & Co., against The Cloud County Bank, of Concordia, as garnishee. Helen Roberts filed an interplea. Verdict and judgment for the interpleader. Plaintiffs bring the case here.

Memorandum.— Error from Washington district court; F. W. Sturges, judge. Actions brought by The Pomeroy Coal Company against The Lincoln Stone and Marble Company, and by The Western Newspaper Union against same. In each action judgment was rendered for the plaintiff. In each case a motion was made for execution against Louisa M. Achenbach, as administratrix of the estate of T. M. Achenbach, deceased, and granted, from which orders she brings the cases here.

<p>Memorandum. — Error from Washington district court; F. W. Sturges, judge. Action brought by 0. H. Janes, as trustee, against George E. Wilkinson, P. J. Bean and L. J. Bean to foreclose a mortgage. Judgment for defendants. Plaintiff brings the case here.</p>

<p>1. Eviction — Paramount Title — Proof. In a suit against a warrantor on covenants, in a deed wherein the plaintiff claims that he was evicted from the property in question because he had yielded the possession thereof to a paramount title, it is incumbent on him to show not only that he yielded possession of the property to what he supposed or was claimed to be the paramount title, but that the title to which he had thus yielded was in fact paramount to the title of any one else.</p> <p>2. Special Breach —Pleading and Proof. And in such an action, where the assignment of the breach is special, the special breach averred must be the breach proven; otherwise there will be a fatal variance between the allegations and the proof.</p>

<p>Memorandum. — Error from Republic district court; F. W. Sturges, judge. Action by The Great Western Manufacturing Company against The Long Island Insurance Company. Judgment for plaintiff. Defendant brings the case here.</p>

.Memorandum. — Error from Cloud district court; F. W. Sturges, judge. Action in replevin brought by George Wagner against Wilber Scott. Judgment for plaintiff. Defendant brings the case to this court.

<p>1. Alleged Errors — no Bevieiv, When. An appellate court will not review alleged errors occurring upon the trial when the overruling of the motion for a new trial is not assigned for error.</p> <p>2. Judgment on Pleadings, Denied. Where a petition states an equitable cause of action in favor of the plaintiff, but, because of the failure to allege certain facts therein, it appears that there is a defect of parties plaintiff, and after a general demurrer thereto has been overruled an answer is filed, which supplies the allegations which should have been set out in the petition, held, that a motion by the defendant for judgment in its favor on the pleadings was properly overruled.</p>

<p>Assault and Battery — Prior Conviction of Prosecuting Witness —Instruction. It is not error for the court, in a criminal action, to instruct the jury that the fact of the previous conviction of the prosecuting witness, who was also a witness upon the trial, of a like criminal offense, should only be considered by the jury as bearing upon the credibility of such witness, when the transaction upon which such conviction was based was not shown to have had any direct connection with the case on trial.</p>

<p>Memorandum. — Error from Lincoln district court; W. G. Eastland, judge. Action by Zorali Lawn against James Donavan. Judgment for defendant. Plaintiff brings the case here.</p>

Memorandum.— Error from Dickinson district court; M. B. Nicholson, judge. Action brought by Daniel S. Clark against Michael H. Bert, B. M. Wallace, and C. H. Merrill, copartners as The Abilene Bridge Company, to subject a county warrant in the hands of defendant Bert, as county clerk, to the payment of a judgment obtained by plaintiff against said bridge company. Judgment for defendants. Plaintiff brings the case here.

<p>Taxation — Sale by Gounty Treasurer — Distribution of Taxes. Where, at an annual tax sale, certain lots in a city of the third class were offered for sale by the county treasurer for the delinquent taxes and assessments thereon, including assessments made for the building of a sidewalk, and such lots could not be sold for the amount of the taxes, assessments and charges thereon, and they were accordingly bid off by the county treasurer in the name of the county for such amount, and thereafter a sum of money equal to the cost of redemption was paid into the county treasury by a party to whom a certificate was issued in conformity to law, held, that, upon demand therefor, the county treasurer should pay'such city the full amount of the taxes, including the sidewalk assessments, together with the statutory interest thereon, as paid by the person to whom the said certificate was issued.</p>

<p>Memorandum. — Error from Cloud district court; F. W. Sturges, judge. Action for partition, brought by Mary A. Conn against William Conn and others. Judgment for plaintiff. Defendants bring the case here.</p> <p>The statement of the case, as made by Clark, J., is as follows:</p> <p>The defendant in error, as plaintiff, brought this suit in the district court of Cloud county for the partition of certain real estate in which she claimed an interest as the widow of one Lorenzo- D. Conn, deceased. The vital question presented by the pleadings was as to- whether or not the plaintiff below was the lawful wife of the said Conn at the time of his death. The issues were tried by the court on October 6, 1890, and special findings of fact were made, together with conclusions of law thereon. The court found that on the 4th day of December, 1887, the plaintiff was married, in Cloud county, Kansas, to the said Lorenzo D. Conn, who was at that time a widower, and that immediately upon her marriage she went with him to reside upon the homestead of said Conn and his family, in said Cloud county, where the plaintiff and said Conn continued to live and reside as husband and wife until his death, which occurred on the 4th day of February, 1888 ; that the deceased left no other heirs than the plaintiff and the defendants herein, the latter being his children by a former wife ; that prior to the date of plaintiff’s marriage with Conn she had been the wife of one George P. Curtis ; that on the 22d day of August, Í887, she filed in the Cloud county district court her petition for a divorce from said Curtis, alleging as grounds therefor abandonment for more than a year ; that the petition was on that day verified, which verification also contained an allegation of defendant’s non-residence, and that thereafter, on the 26th day of August, 1887, she caused notice of the pendency of the suit to be published, and such publication continued in a newspaper printed and published and of general circulation in Cloud county for more than three weeks, and that said notice specified that the defendant was required to answer on or before October 10 thereafter ; that at the regular October term, 1887, of said court, and on the 18th day of November of that year, said cause came on regularly to be heard, the plaintiff appearing in person and by attorney, defendant not appearing ; and upon the hearing had the court found, among other things, that the defendant, George P. Curtis, had been duly and legally notified of the institution and 'pendency of the suit; that he had wilfully abandoned the plaintiff for more than one year prior to the bringing of the suit, and that plaintiff was entitled to a divorce from him, and decreed the same; that there is not among the files and papers of the case any affidavit that the residence of the said George P. Curtis was unknown to the plaintiff, and could not be ascertained by any means within her control; that the record does not show, nor was any evidence offered tending to show, that any such affidavit was ever made and filed; that there is among the papers of the case an envelope on which postage is paid, and inclosed in which there is a copy of the petition and of the notice of publication, which envelope is addressed in the handwriting of the then attorney of plaintiff, to the defendant George P. Curtis, and bears the return stamp of the post-office at Clay Centre; that there was no notice of an intention to prosecute proceedings in error to the supreme court to reverse the judgment and decree ©f the district court given in open court and noted on the journal thereof within three days after the entry of said decree, nor was such notice ever given, nor was-any petition in error and transcript of the proceedings in the case filed in the supreme court within three months after the rendition of said decree, nor has any such ever been filed in said case, nor have any proceedings ever been had, commenced, or attempted, to reverse, open up or set aside said decree, and that the period of six months from the rendition of the judgment or decree had not expired at the date of her marriage to the said Conn.</p> <p>The conclusions of law as drawn from these facts so found by the court were, that as the divorce was granted upon service by .publication duly had, upon affidavit therefor duly made and filed, together with service by sending a copy of the petition and publication notice at the time and in the manner required by law, as is presumed from the finding of the court that the defendant had been legally notified of the institution and pendency of' the suit, and as no notice was given and entered on the journal of the court within three days from the entry of said decree of an intention to prosecute proceedings in error to the supreme court, the judgment and decree, after the expiratipn of said three days, became absolute and final, and the marriage of the plaintiff to Lorenzo D. Conn within 16 days, from the rendition of the decree of divorce was legal, valid, and binding ; and that as the divorce of the plaintiff from her former husband, George P. Curtis, and her marriage with Conn were valid and not void, and as the latter died intestate, leaving the plaintiff and defendants as his heirs and only heirs, the real estate was subject to partition between the plaintiff and defendants, the plaintiff being entitled to one-half thereof. The defendants moved for judgment in their favor upon the special findings of fact, which motion was overruled by the court, to which the defendants duly excepted. A motion for a new trial was also overruled, to which the defendants duly excepted, and judgment was entered decreeing partition of the real estate as prayed-for in the petition. The defendants have brought the case to this court on a transcript of the record, and assign for error the overruling of their motion for judgment in their favor on the special findings of fact and their motion for a new trial, and allege that the court erred in its conclusions of law from the facts as found.</p>

Memorandum. — Error from Ottawa district court; R. P. Thompson, judge. Action on an insurance certificate, brought by Burnice A. Elliot against the Grand Lodge Ancient Order of United Workmen of Kansas. Judgment for defendant. Plaintiff brings the case here. The statement of the case, as made by Gilkeson, P. J., is as follows : Action brought in the district court of Ottawa county, Kansas, by Burnice A. Elliot, on a benefit certificate issued by the Grand Lodge A. 0.

Memorandum. — Error from Geary district court; M. B. Nicholson, judge. Action brought by Thomas Dixon against George L. Miller and W. H. Mackey, jr., as sheriff of Geary county, to enjoin the sale of a certain city lot. Judgment for plaintiff. Defendants bring the case here.

<p>Sale oe Personal Property — Delivery—Governed by Intent. In a contract of sale of personal property the intent of the parties controls, and if they intended a present vesting of title, the title may in fact pass at once to the purchaser, although the actual delivery thereof is to be made subsequently; and whenever a dispute arises as to the true character of an agreement, the question of intent is rather one of fact than of law, and the finding of the trial court, when sustained by the evidence upon this question, will not be disturbed upon review.</p>

<p>Memorandum . — Error from Dickinson district court; M. B. Nicholson, judge. Action by George Plaseltine against William C. Gilliland and others to foreclose a mortgage. Judgment for defendants. Plaintiff brings the case here.</p>

Memorandum. — Error from Osborne district court; Gyrus PIeren, judge. Action on contract brought by William Spencer (now deceased) against Ashley and Roselsa Gilson. Judgment for plaintiff. Defendants bring the case here.

Memorandum. — Error from Riley district court; R. B. Spidman, judge. Action in replevin brought by Peter Tyson against J. M. Myers. Judgment for plaintiff. Defendant brings the case here.

Memorandum. — Error from Saline district court; R. F. Thompson, judge. Action on contract brought by J. H. Taylor and Robert S. See against Isaac Hagler. Judgment for plaintiffs. Defendant brings the case here.

Memorandum. — Error from Republic district court; P. ~W. Sturg-es, judge. Action for damages by fraud and deceit brought by N. M. Smith against E. A. Hallowell and Frank Munger. Judgment against defendant Hallowell, and he brings the case liere.

Memorandum. — Error from Riley district court; R. B. Siulman, judge. Action of ejectment brought by James Stagg against R. T. McCamon. Judgment for plaintiff. Defendant brings the case here.

Memorandum.— Error from Dickinson district court; James Humphrey, judge. Action for conversion of growing crops by John Johntz and others, partners as Malott & C’o., against Isaac Shockey and Daniel E. Snider. Judgment for plaintiffs. Defendants bring the case to this court.

<p>1. Note and Mortgage — Construed Together. A note and the mortgage securing the same should be construed as parts of one transaction; and the conditions of the mortgage, when not in conflict with the terms of the note, as to the effect of a default in the payment of interest when due, govern the rights of the parties respecting that matter.</p> <p>2. -Default not Waived by Delay. When the conditions of a mortgage provide that, upon a failure to pay interest when due, the holder of the morgage may, at his option, declare the whole sum due, and foreclose the mortgage, the right to exercise the option exists as long as the default continues; and it is not waived by a mere delay, which has not operated to the benefit of the mortgagee nor to the detriment of the mortgagor.</p>

<p>1. Eminent Domain — Qannot be Exercised by Railroad on its Property. The right of eminent domain cannot be exercised by a railroad corporation with respect to a right of way, when it is already the absolute owner of the land included therein; and condemnation proceedings had under such circumstances are ineffective against a mortgage lien placed thereon by a former owner.</p> <p>2. Condemnation Proceedings — not Effeetive A gainst Mere Lien. Condemnation proceedings cannot be instituted by a railway corporation for the special purpose of condemning a mere mortgage lien on land the absolute title to which is vested in such corporation subject to the lien. The law does not recognize a mere lien as an interest in real estate which is subject to such proceedings.</p>

Memorandum.— Error from Clay district court; R.. B. Spilman, judge. Held: that Mrs. Streeter was entitled to have and recover of and from the board of county commissioners of Clay county two-fifths of all the taxes paid on the building for the years 1878 to 1885, inclusive, amounting in all to 1835.91, but could not recover for the taxes paid for the years 1876, 1877, 1886, 1887, 1888, and 1889.

Memorandum. — Error from Ellsworth district court; W. G-. Eastland, judge. Action of foreclosure by The Boston Safe-Deposit and Trust Company against John Zear and others. Judgment for plaintiff. Defendant John Zear brings the case to this court.

<p>1. Promissory Note — no Consideration — Burden of Proof. When the defendant to an action on a note pleads want of consideration, and it appears that the note was executed by the defendant in favor of the plaintiff for the surrender and cancellation of another note for the same amount held by the plaintiff against defendant’s father, the burden is upon the defendant to show the invalidity of the first note, and its consequent insufficiency as a consideration.for the second.</p> <p>2. -Sufficient Consideration. It is not necessary that one be originally liable for a debt which he agrees in writing to pay, when the assumption of the liability is not a mere naked promise, and is supported by a sufficient consideration.</p> <p>3. -Insufficient Defense. It is no defense to an action on a • promissory note for the maker to say that there was no consideration which was beneficial to him personally; it is sufficient if the consideration was a benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promisor.</p>

<p>Memorandum. — Error from Osborne district court; Cyrus Heren, judge. Action for the foreclosure of a mortgage by Edward Birmingham against Frederick Leonhardt and others. Judgment for defendants. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Saline district court; R. F. Thompson, judge. Action on a promissory note by H. Holienscliild against W. H. Shaffer and others. Judgment for plaintiff. Defendants bring the case to this court. The statement of the case, as made by Gilkeson, P. J., is as follows : The defendant in error, H. Hohenschild, as the owner and holder, brought suit before a justice of the peace of Saline county upon the following promissory note : “$375.

Memorandum. — Error from Clay district court; R. B. Spilman, judge. Action of garnishment by Thomas Perry against C. F. Buckell and another. Judgment for W. F. Blatch, interpleader. Plaintiff brings the case to this court.

<p>Memorandum. — Error from Dickinson district court; - James Humphrey, judge. Action by Charles P. Kel-' logg & Co. against Edward E. Hazlett, in which a, garnishee summons was issued. Prom a judgment quashing the summons, on motion of the garnishees, the plaintiffs bring error.</p>

<p>1. City Warrant for Building Sidewalk. A city warrant issued in payment for a sidewalk built by the city in front of a lot of a private owner creates an absolute liability against the city, which is payable without regard to the making or collecting of an assessment against the lot improved.</p> <p>2. -Limitation of Action. An action on such warrant is barred in five years after its maturity; and an acknowledgment which can have effect to remove the bar of the statute must recognize a subsisting liability on the warrant, and be made to the holder thereof or to his representative.</p>

Memorandum. — Error from Cloud district court; F. W. Sturges, judge. Action of ejectment by Letitia W. Truesdell against William M. Peck. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Republic district court; F. W. Sturges, judge. Action to enjoin the collecof a judgment and for other relief by Richard Hunter and Henry Hunter, partners as Hunter Bros., against T. M. Noble and others. Judgment for plaintiffs. Defendants bring the case to this court.

<p>Memorandum.-! — Error from Ellsworth district court; W. G. Eastland, judge. Action for an alleged conversion of wheat by Samuel McCall against John K. Tullis and others. Judgment for plaintiff. Defendants bring the case to this court.</p>

<p>Memorandum. — Error from Smith district court; Cyrus Heren, judge. Action on a promissory note by A. J. Ream against R. Sauvain and others. Judgment for defendants. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Dickinson district court; M. B. Nicholson, judge. Action of replevin by Edward F. Swift and others, partners as Swift & Oo., against W. A. Wyatt. Judgment for defendant. Plaintiffs bring the case to this court.

Memorandum. — Error from Dickinson district court; M. B. Nici-iolson, judge. Action by Samuel A. Bailey against William 0. Gilliland and others. From a judgment giving plaintiff partial relief, he brings the case to this court.

<p>Memorandum.— Error from Olay district court; R. B. Spilman, judge. Action by B. F. Jevons against the City of Clay Centre to recover damages for bodily injuries. Judgment for plaintiff. The defendant city brings the case to this court.</p>

<p>1. Breach oe Contract — Measure of Damages. The law does not hold one liable for all the consequences that may follow the breach of his contract. Only such damages are recoverable as are the direct and proximate result of the wrong complained of.</p> <p>2. Damages, too Remote — no Recovery.- Where one employed for a term of months as a farm-hand abandons his employer before the end of the term, the damages sustained by the employer in the loss of his wheat crop are too remote to be recovered in an action for a violation of such contract.</p>

Memorandum. — Error from Cloud district court; F. W. Sturoes, judge. Action by Wheaton & Luhrs against G. G. Bowman & Go. Judgment for plaintiffs. The defendants bring the case to this court.

Memorandum. — Error from Dickinson district court; James Humphrey, judge. Action by James Dezell against Hiram Thayer. Judgment for defendant, and plaintiff brings the case to this court.

<p>1. Justice oe the Peace — Immunity from Givil Liability. A justice of the peace, in common with all judicial officers, acting within the scope of his jurisdiction, enjoys absolute immunity from liability in a civil action; but he is not excused when acting without jurisdiction, nor when he exceeds the jurisdiction conferred upon him by law, however honest his motives may be, and however plainly it may appear he was intending to keep within his powers.</p> <p>2. Commitment eor Costs — False Imprisonment. After a complaining witness, against whom judgment has been duly and legally rendered for all the costs accruing in the proceedings had upon a complaint filed before a justice of the peace, charging the defendant therein with malicious trespass, has executed a bond as prescribed by and in substantial compliance with the requirements of section 18, chapter 83, General Statutes of 1889, such justice has no longer any authority to commit such complainant until the costs are paid, and, should he do so, he thereby renders himself liable in a civil action for the actual damages resulting therefrom.</p>

<p>Memorandum. — Error from'Shawnee district court; John Guthrie, judge. Action in replevin brought by Adeline S. Taft, as administratrix of the estate of E. A. Taft, deceased, against Darius Baker and Israel Lloyd. Judgment for defendants. Plaintiff brings the case here.</p>

Memorandum. — Error from AtcMson district court; Robert M. Eaton, judge. Action by David T. Brown against The Atchison, Topeka & Santa Pe Railroad Company to recover damages for being ejected from a train. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Shawnee district court; Z. T. Hazen, judge pro tern,. Action by The United States Wind-Engine and Pump Company against B. M. Davies to enforce a stockholder’s liability. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Douglas district court; A. IV. Benson, judge. Action of ejectment by James Blood against James Baker. Judgment for plaintiff. W. H. Sears and others, executors, were substituted for Charles Robinson, as assignee of plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Brown district court; R. C. Bassett, judge. Action by Aaron B. Gibson and others against A. H. Winkler and others. Judgment against Winkler, and he brings error.

Memorandum. — Error from Wyandotte district court; O. L. Miller, judge. Action brought by The New England Loan and Trust Company against L. H. Wood and others to foreclose a mortgage. Judgment for defendants, L. H. Wood and W. L. Wood. The plaintiff brings the case here.

Memorandum. — Error from Atchison district court; Robert M. Eaton, judge. Action by Park, Brother & Co., Limited, against A. J. Harwi to recover damages for breach, of a contract. Judgment for defendant. Plaintiffs bring the case here.

Memorándum. — Error from Shawnee circuit court; C. M. Welch, judge pro tern. Action by B. M. Davies against Alice G. King and Frank L. King for rent. Judgment for plaintiff, and defendants bring error.

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action on a contract by R. I. Jones against J. J. Lawrence and others. The Kansas Investment Company was summoned as garnishee. Judgment against said garnishee. It brings the case here.

Memorandum. — Error from Wabaunsee district court; William Thomson, judge. Action on an account by J. B. Barnes against The Connecticut Mutual Life Insurance Company. Judgment for plaintiff. Defendant brings the case here.

Memorandum. — Error from Doniphan district court; J. F. Thompson, judge. Action by Alcid Bowers and S. L. Ryan against Henry F. Kauts to recover for services as attorneys. Judgment for defendant. Plaintiffs brings the case to this court.

<p>Memorandum. — Error from Leavenworth district court; Robert Crozier, judge. Action by Wanamaker & Brown, a corporation, against The Manufacturers’ National Bank to recover an alleged indebtedness of $912.94. Judgment for defendant. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Nemaha district court; R. C. Bassett, judge. Action by William L. Ohalliss against John A. Woodburn and others to foreclose a mortgage. Judgment for defendants. Plaintiff brings the case to this court.

Memorándum. — Error from Douglas district court; A. W. Benson, judge. Action by Thomas McFarland, as administrator of the estate of Oden Toyne, deceased, against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for death of plaintiff’s intestate. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Appeal from Shawnee district court; Z. T. Hazen, judge. Mike Etzel was convicted of the unlawful sale of intoxicating liquor. He appeals.

Memorandum. — Appeal from Morris district court; James Humphrey, judge. J. N. Barber was convicted of violating the prohibitory liquor law. He apxaeals.

Memorandum. — Error from Atchison district court; Robert M. Eaton, judge. Action by E. F. Kirwan and others, partners as Kirwan & Tyler, against The United States National Bank. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum.— Error from Wyandotte court of common pleas; T. P. Anderson, judge: Action by Frank Kennedy, an infant, by William Kennedy, his next friend, against The Chicago, Nock Island & Pacific Nailway Company to recover damages for personal injury. Judgment for plaintiff. Defendant brings the case to this court.

<p>Memorandum. — Error from Nemaha district court; R. C. Bassett, judge. Action by P. D. Kenyon against The First National Bank of Seneca and others to enforce a mechanic’s lien. The Whittaker Brick Company, defendant, complains of a judgment sustaining a demurrer to its cross-petition, and brings its case to this court.</p>

<p>Tax Deed — Validity. A tax deed is not invalid from the mere fact that a part of the taxes for which the land was sold was a tax levied for the preceding year, but not extended upon the tax-rolls for that year, if such tax was otherwise a legal charge upon the land.</p>

Memorandum. — Error from Shawnee district court; John Guthrie, judge. Action by Eugene Hagan against The American Building and Loan Association of Minneapolis, Minn. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action of ejectment by H. D. Booge against Hale Ritchie. Judgment for defendant. Plaintiff brings tlie case to this court.

Memorandum. — ‘Error from Atchison district court; Robert M. Eaton, judge. Actions by C. L. Chaffee against John W. Fisher, and S. R. Howell and PI. N. Jewett against the same. The two actions were consolidated, and judgment in each case was rendered for defendant. Plaintiff's bring the cases to this court.

<p>Memorandum. — Error from Shawnee district court; John Guthrie , j udge. Action by D. B. Garrett against C. W. Lukens to have a deed declared a mortgage, and for other relief. Judgment for plaintiff. Defendant brings the case to this court.</p> <p>The statement of the case, as made by Gilkeson, P. J., is as follows :</p> <p>On the 6th day of February, 1888, D. B. Garrett, defendant in error, as plaintiff below, filed his petition in the superior court in and for said county of Shawnee, Kansas, against 0. W. Lukens, plaintiff in error, as defendant. The superior court having expired by limitation, this case was transferred to and tried in the district court of said Shawnee county, Kansas.</p> <p>The petition alleges, in substance, that in September, 1883, the said Garrett purchased a certain lot in Osborn’s addition to the city of Topeka from Thomas A. Osborn, taking a bond for a deed therefor ; that he erected a house on said lot, and has ever since continued to occupy the premises as a homestead; that in 1884 defendant, Lukens, came to and urged him to borrow from him for the purpose of paying the balance due under the bond; that afterward the defendant, by means of false and fraudulent statements, so consummated this loan to the plaintiff for the sum of $200, obtained the bond for a deed from him, and has ever since unlawfully and’wrongfully held and refused to deliver it up to this plaintiff; that afterward the defendant procured a .deed to said property made to him and had the same duly recorded; that at the time this deed was executed it was agreed between the parties that Lukens should hold the deed as security for a loan of $90, and that it was the understanding and agreement that, if the plaintiff should pay the said sum of $90, the defendant was to reconvey the property to him; that he has paid the said' defendant more than the said sum of $90, to wit, the sum of $166, but that the defendant refuses to convey the property to the plaintiff, nor has he given him credit for the money so paid on said loan ; that in June, 1886, the defendant, Lukens, commenced an action in forcible entry and detainer before a justice of the peace in the city of Topeka, and obtained a judgment for the possession of the real estate; 'and prays judgment that the deed made to the defendant, as aforesaid, be declared a mortgage, and that the same be set aside and canceled of record, and that the plaintiff be adjudged the owner of said real estate ; that the defendant be compelled to transfer said real estate ; and also for an accounting of the money paid as aforesaid, and judgment for plaintiff in the sum of $50 upon said accounting, and for costs.</p> <p>To this petition Lukens filed answer of general denial. Upon the trial of this caiise, the court permitted Garrett to file an amendment to his petition to conform to the facts proven. This was done after the testimony had closed. The amended petition filed alleges, in substance, that the defendant, Lukens, after he obtained the deed to the real estate, conveyed the same to one I. S. Watkins, who held the title for the defendant; and that said defendant caused and procured a certain mortgage of $250 to be executed by said I. S. Watkins and wife to one R. C. Strip, and also one otheu mortgage, of $200, to Chas. R. Lukens; and that, after these mortgages had been executed and recorded, Lukens procured a deed to be made to himself from said Watkins and wife for the said real estate, and that, after he had obtained it from Watkins, he again incumbered the same prop-property by two mortgages executed by the said Lukens and wife to Sarah Thomas, one of them being for $250, dated September 25, 1886, and running for five years, and one of $100, dated April 21, 1887, running for four years, which said mortgages' were duly recorded ; that after defendant obtained full possession and control of said real estate he carried away and removed certain improvements, of the value of $127 ; that he has collected the rents of said real estate from June 1, 1886, up to the present time, which were reasonably worth $400. Wherefore plaintiff prays for an accounting, and judgment against the defendant for $1,000.</p> <p>The case was tried without the intervention of a j ury, and the court found that the plaintiff is the owner in fee simple of the real estate described in his petition ; that defendant, Lukens, holds the title of said lot in' trust for the plaintiff; that the plaintiff is entitled to have the title of said lot vested in him without delay; that defendant, since the legal title •of said lot has been held by him, wrongfully and without right incumbered said premises for his own benefit and without the consent of the plaintiff; that the plaintiff is entitled to have an account taken and stated between himself and the defendant, and all matters in controversy settled in this action between them ; that there is due from the defendant, Lukens, to the plaintiff, Garrett, on the said account now taken and stated by the court, the sum of $300.</p> <p>The court rendered judgment in accordance with said findings for the plaintiff, to all of which the defendant excepted, filed his motion for a new trial, which, being overruled, was excepted to, and he brings the case here for review.</p>

Memorandum. — Error from Jackson district court; Robert Crozier, judge. Action by C. C. Clonch against The Chicago, Rock Island and Pacific Railway Company for killing stock. Verdict for defendant. From an order granting a new trial, defendant brings the case to this court.

Memorandum. — Error from Johnson district court ; John T. Burris, judge. Motion by M. F. Harp and others to modify the judgment rendered in the case of D. W. Foreman against E. J. Ward and others. Motion granted. Plaintiff brings the case to this court.

Memorandum. — Error from Johnson district court; John T. Burris, judge. Action by The Kansas City, Fort Scott & Memphis Railroad Company against the Board of County Commissioners of Johnson county, Kansas, and others, to enjoin collection of alleged illegal taxes. Judgment for defendants. Plaintiff brings the case to this court. Certified to the supreme court.

Memorandum.— Error from Pottawatomie district court; William Thomson, ' judge. Action by The Mortgage Trust Company of Pennsylvania against W. J. Fleming and others to foreclose a mortgage. From an order granting' defendants a new trial plaintiff brings the case to this court.

Memorandum.— Error from Johnson district court; John T. Burris, judge. Action in the probate court by John W. Calvert against John P. Harris, as- executor of the estate of John Fulcher, deceased. Judgment for plaintiff, and defendant appealed to the district court. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Shawnee circuit court; J. B. Johnson, judge. Action by Sarah M. Rodgers against Charles Kennedy to recover damages for breach of promise of marriage. Judgment for plaintiff for $2,000. Defendant brings the case to this court.

<p>Memorandum. — Error from Wyandotte district court; Henry L. Alden, judge. Action by Thomas B. Bowling against The Trustees’, Executors’ and Securities’Insurance Corporation, Limited, and others, on a bid made at a sheriff’s sale. Judgment for plaintiff. Defendants bring the case to this court.</p>

<p>Memorandum. — Error from Wyandotte district court; Henry L. Alden, judge. Action by J.-V. 0. Karnes and others against John Schwartzel to recover attorney’s fees. Judgment for plaintiffs. Defendant brings the case to this court.</p>

<p>1. Exemplary Damages — Pleading. To justify the recovery of exemplary damages in an action for tort, the petition must so describe the wrongful act as to show that the case belongs to the class of cases in which such damages are recoverable. It is not sufficient to allege simply such matters as warrant the recovery of actual damages, without characterizing them as wanton, wilful, or malicious.</p> <p>2. Witness — Husband and Wife. The wife of one who is interested in an action only as the next friend of a minor plaintiff is a competent witness in the case.</p>

Memorandum. — Appeal from Brown district court; R. M. Emery, judge. Prosecution for violation of the prohibitory liquor law. Defendant, Ben. Marshall, was convicted. He appeals.