Volume 21 — Kansas Reports

Error from Douglas District Court. . Action for trespass in cutting down and carrying away wood and timber.

Error from Labette District Court. Wirth had judgment against Cory and Kimball at November Term, 1875, of the district court, and Cory and Kim-ball bring the case here. All necessary facts and proceedings are set forth in the opinion, infra.

Error from, Morris District Court. Conway recovered a judgment against Fisher and others, at April Term, 1877, of the district court, and Fisher brings the case here for review. The opinion contains a sufficient statement of the facts. It was error to admit James Conway to testify as to the condition in which he found his wife on his return to his house on the day of the alleged trespass.

Error from Doniphan District Court. Action brought by Frye, and three others, partners, as Frye, Warner, Felly & Co. against Sanders for the sum of $1,188.16, balance alleged to be due on an account. Findings and judgment in favor of defendant, at the March Term, 1877, of the district court, and plaintiffs bring the ■case here. A sufficient statement of the facts is contained in the subjoined opinion.

Error from Elk District Court. Malony commenced an action against R. T. Race on two' promissory notes, and caused an attachment to be levied on certain personal property. Defendant, being a non-resident, was served by publication. Charles H. Race, brother of the defendant, interpleaded, claiming the property attached.

Indictment for murder, charging John Taylor, William Brown and Thomas Craig with the felonious killing of William Bledsoe and Jacob Bledsoe, at the county of Greenwood, in April, 1865. Brown was tried at the May Term, 1878, of the district court. The jury returned a verdict of guilty of murder in the first degree. The defendant was sentenced in accordance with the above verdict, and from this judgment and sentence he now appeals to this court.

Indictment for murder, charging George W. Petty with the felonious killing of Eobert Clark, at the county of Greenwood, in May, 1866. At the May Term, 1878, of the district court, Petty was found guilty of murder in the first degree, and sentenced accordingly. lie now appeals to this court.

Error from Mitchell District Court. Action brought by the Patrons’ Mill Company against Tobias Ginrich, to recover $195 claimed to be due from him on a subscription by him to the capital stock of said company. The district court, at the December Term, 1876, gave judgment for said company, plaintiff, and against Ginrich, who brings the case here.

<p>Error from Leavenworth District Court.</p> <p>Action brought by Henry T. Green, as administrator of the estate of Theodore Jones, deceased, against Jacob McMurtry, who died during the pendency thereof. Action revived (in the name of and against James E. Williams, as administrator 'of the estate of Jacob McMurtry, deceased. The district court, at September Term, 1876, adjudged that the defendant Williams, as administrator, etc., go hence without day, and that he recover of said plaintiff Green, as administrator, his costs in said suit. Green brings the case here for review. The facts are sufficiently stated in the opinion.</p> <p>The defendant objected to the introduction of any evidence under the petition. The court below, without then passing upon the objection, allowed the evidence to be introduced, and after hearing the same, held that the right of action, if any ever existed, grew out of an unsettled partnership, and that the plaintiff could not recover in this action for two reasons:- First, There having been no settlement between the partners, no account stated and balance agreed upon between them, and no promise by the deféndant to pay the sum sought to be recovered, or any other sum, the plaintiff should have set out their transactions and asked for an accounting. But to obviate that objection the court then gave the plaintiff leave to amend his pleadings, which he undertook to do, and presented an amended petition, which in no way answered the objection. Second, That had the plaintiff properly brought his action, the evidence conclusively shows that his right to recover was barred by the statute of limitations.</p> <p>-1. We submit that the court was right upon both propositions. (Pomeroy on Remedial Rights, p. 128, §104; 2 .Cal. 86, 420; 3 Cal. 292; 5 Cal. 299; 47 Cal. 179; 20 N. Y. 62; 13 Minn. 39.4; 9 Wis. 268; 33 Mo. 557; 48 Ind. 247.)</p> <p>The case at bar illustrates the justness of the doctrine. At the -time this suit was brought Jones was dead, and consequently McMurtry was not a competent witness as to the transactions between them. The plaintiff should have set forth and proven the terms of their partnership, the amount of money paid in by each, and the amount of profit realized, if any, that the court would be enabled to determine whether Jones was entitled to any part of the money in controversy.</p> <p>2. That the plaintiff’s claim, however presented, was barred, seems too clear for argument. The money was received by McMurtry on the 3d day of December, 1870. This action was brought June 24th, 1875. McMurtry had resided openly and continuously in the counties of Leavenworth and Wyandotte, in this state, from the time of the receipt of the money until suit was brought, with the exception of three months. There was no concealment either of his whereabouts or of the fact of the receipt of the money.</p> <p>The latter fact was evidenced by the records of the district court of Leavenworth county. The claim by plaintiff in error that the collection of the money was fraudulently concealed, is not tenable under the facts in this case. There must be proof of actual fraud and concealment. (9 Greenl. 131.)</p> <p>Concealment cannot be claimed by one who had - ample means of detecting the fraud. (31 Maine, 448.)</p> <p>Jones, by simply writing to H. T. Green, his attorney, could have learned the fact that the money was collected.. There is no satisfactory proof that he ever wrote to any one. There is positive proof that McMurtry never received any letter from him.</p> <p>The statute commences to run from the time the right of action accrued. If any portion of the money collected by McMurtry belonged to Jones, a right of action for the same accrued on the 3d day of December, 1870. It was the duty of M°MArtry to pay it immediately. And if he converted it to his own use, the law implied a promise on his part to pay it. (3 Johns. 183.) And in this case plaintiff in error claims that McMurtry, at the time he received the money, expressly promised to pay Jones his share, etc. A demand was not necessary, when it was his duty to remit. (14 N. Y. 492: 48 Penn. St. 524.)</p> <p>A party who receives money as a quasi trustee, or for the use of one to whom it belongs, not acting under a continuing and express trust, and whose duty it is to pay over immediately on its receipt, is liable to an action, and the statute begins to run from the time of the receipt of the money: 1 Gill. (Md.) 234; 15 Wend. 302, 305; 13 Barb. 632.</p> <p>While the statute of limitations will not commence to run in-favor of a trustee of an express trust until he does some act disaffirming the trust, yet we can see no application of that principle to this case. McMurtry. was not acting as a trustee for Jones in the collection of the money. A partner after dissolution is not a trustee. (9 Pick. 225,) The relation between partners does not create such a trust as will defeat the statute of limitations. (14 Ark. 62; 9 Pick. 243; 11 Pick. 182; 4 Mason, 139,152.) And when’-all dealings between them have ceased for three years the statute will apply. (8 Mee. & W. 769; 5 Johns. Ch. 522; 6 Pick. 344; 17 Mich. 28.) The statute of limitations in this state applies to all actions, equitable as well as legal. (Gen. Stat. 1868, p. 633, §18; 4Nev. 280; 2 Kas. 389.)</p>

Error from McPherson District Court. Replevin, brought by Leonard N. Holmberg, as the assignee of S.' P. Lindgren, against Jerry R. Dean, to recover a stock of merchandise by Lindgren assigned to Holmberg for the benefit of his creditors. At the September Term, 1875, of the district court, Gates & Kendall, Tootle & Hanna, R. L. Hawkins & Co., and F. M. James & Son, were, made parties defendant in the above action.

Error from Leavenworth Bistrict Court. Ejectment, brought by Gardenhire, against Mitchell, and three other defendants. Findings and judgment for the defendants, at the February Term, 1874, of the district court. New trial refused, and Gardenhire brings the case here for reviéw.

Error from Douglas District Court. Action on administrator’s bond, brought by C. W. W. Yates against William M. Ingersoll, as principal in said bond, and Caroline A. Ingersoll and William A. Simpson, as sureties therein. The district court, at October Term, 1876, gave judgment in favor of plaintiff, and defendants bring the case here.

Error from Mitchell District Court. Action by Eharris, against Ann E. Whitney, and three other defendants. Plaintiff had judgment, at December Term, 1876, of the district court, against Whitney, who brings the case here for review.

Error from Montgomery District Court. Action by Balter, against Duncan, wherein plaintiff had judgment, at September Term, 1876, of the district court, against Duncan, who brings the case here. All necessary facts appear in the subjoined opinion. All the evidence submitted in this case shows the contract between the parties to be an entire contract.

Error from Cowley District Court. Replevin, brought by Crapster against Williams. Trial at the May Term, 1877, of the district court. Judgment for defendant. New trial refused, and Crapster brings the case here. The facts are sufficiently stated in the opinion. 1. The pleadings of the defendants in the court below were fully sufficient to support its finding and judgment.

Error from Nemalia District Court. Action brought by Norris, against Hannum, a justice of the peace, for damages alleged to have been sustained by reason of the wrongful issue of a summons and writ of replevin. Trial at June Term, 1877, of the district court. Judgment for plaintiff. Hannum brings the case here.

Error from, Reno District Court. Action, originally brought by Adams, defendant in error, against Jesse Evans and Charles D. Nelson, plaintiffs in error, in the district court of Barbour county, and the venue was. subsequently changed to Reno county, where the cause was tried at the April Term, 1877, of the district court, and judgment rendered in favor of the defendant in error, Adams.

Error from Lyon District Court. Action on a note and mortgage, brought by Butters, against Charles E. Pierce and four other defendants. Service of summons was made by publication only. At the March Term, 1877, of the district court, judgment was rendered in the court below on default (none of the -defendants appearing in the case) in favor of plaintiff and against the defendants, and the mortgaged property was ordered to be sold.

Error from Jackson District Court. Action brought by Davis and three others, plaintiffs, against Turner, to recover certain .real estate. Trial at April Term, 1877, of the district court, and judgment for defendant. Plaintiffs bring the case here. The opinion contains a sufficient statement of the facts. The court erred in receiving in evidence the deed made by Frances Davis to John Armstrong, dated October 5th, 1864.

Error from• Bourbon District Court. Action, brought by Bosson, against Goddard and Corbin, to remove an alleged cloud upon the title to eighty acres of land owned by him in Bourbon county, and to set… Held: but the most of the courts where it is so held have decided upon the idea that Circuit Judge Drummond had so held in Osgood v. Railroad Co., 2 Cent. L. J. 275, 283; but a close reading of that case will show that the question in this case was not involved in that.

<p>Banking Firm; Certificate of Deposit; Words1'Cashier" or “Managing Partner" not Affixed, to Signature, Liability of Firm. Where a firm.consisting of three members is engaged in business as a private bank, and had been so engaged for about a year, with M., one of the partners, as resident and managing partner, and F., who has been in the habit of dealing with the bank, goes into its ordinary place of business, and, intending to deal with-it, hands over the counter to such managing partner fifty dollars, in the usual manner for deposit, and receives therefor, upon a printed blank in the name of the bank, a certificate of deposit signed by M., and nothing is said about any personal loan to M., and no intimation given of any other than, as F. intended, a transaction with the bank, and F. has no knowledge of any agreement between the partners as to the form of the firm’s blanks or the manner of the firm’s signature, held, that such certificate was binding upon the firm, and that notwithstanding M. did not affix to his signature to the certificate any such words as “cashier” or “managing partner,” and although M. intended to take it as a loan to himself, and did not enter the transaction in the books of the -firm nor pass over to its credit the money, but appropriated the same to his own use, and although the blank form used for the certificate was not the one generally used by the bank after the formation of the partnership, but that used by M. while carrying on by himself the business of banking prior thereto in the same place and under the same name.</p>

Error from Labette District Court. Action by Moore, against Smith. Trial at May Term, 1877, of the district court, and judgment against Smith, who brings the case here. It is rare to meet so general a disregard of the settled practice governing proceedings for review on error as appears in this case; and it is not available to plaintiff in error, for the following reasons: 1.

Error from, Pawnee District Court. Action, by Mills against Patton. Trial at June Term, 1877, of the district court, and findings and judgment for Mills. New trial refused, and Patton brings the case here for review. All necessary facts and proceedings, and questions presented, fully appear in the subjoined opinion. The verbal promise made by Patton to Mills was wholly without consideration, and therefore void.

Error from Wilson District Court. Action by Brown, against Kennedy and others, upon á redelivery bond in replevin. Trial at September Term, 1877, of the district court, and judgment for plaintiff. Defendants bring the case here. The facts are sufficiently set forth in the opinion.

Error from, Davis District Court. Action, brought by Haxton to recover of J. R. Horner, treasurer of Morris county, and William, Downing, and thirty-one other sureties on the said Horner’s official bond, moneys alleged to have been by him received in redemption of certain tax-sale certificates belonging to Haxton. The action was originally brought in the district court of Morris county, and the venue was afterward changed to Davis county.

Error from Wyandotte District Court. ' Action, brought by J. P. Kennedy against The Pacific-Railroad Company, to recover upon a certain judgment rendered in favor of the Citizens’ Savings Bank of St. Louis, Missouri, and against said railroad company, which judgment had been assigned to said Kennedy. Under an order of the district court, made January 12th, 1877, Phineas T. Barnum, and three others, were made parties defendant in-said action.

Error from Clay District Court. Lingeen had judgment against Scott at November Term, 1877, of the district court, and Scott brings the casé here for review.

Original Proceedings in Quo Warranto. Action in the nature of quo warranto, brought originally in this court by W. C. Jones, as plaintiff, February 9th, 1878,-to try the title to the office of register of deeds of the county of Cherokee — said office being then held and occupied by J. O. Caldwell, defendant. The action was tried at the July Term, 1878, of this court, and on the 26th of November, 1878,'judgment was rendered for defendant.

Original Proceedings in Mandamus. On the 30fch of March, 1878, an alternative writ of mandamus was issued out of this court, directed to 8. D. Houston, probate judge of Cloud county, commanding him as such officer, on or before the 30th of April, 1878, to perform a certain alleged official duty, or to show cause, etc. The defendant appeared and answered, showing cause. The case was duly submitted, July 3d, 1878, and the subjoined opinion filed on the 26th of November, 1878.

Error from Lyon District Court. Ejectment, brought by The City of Emporia against Miss E. Partch, and five others, defendants. Trial at March Term, 1878, of the district court. Findings and judgment for defendants. New trial refused, and The City of Emporia brings the case here for review.

Original Proceedings in Quo Warranto. On the 17th of October, 1878, Willard Davis, attorney general, as relator, brought an action in this court in the name of the State of Kansas, plaintiff, against John Sillón, J. C. Sevey, and James Neelands, acting county commissioners within and for the county of Pratt, in the state of Kansas, and Cyrus W. Clark, acting sheriff of said county, and W. B. Edgar, acting probate judge of-said county, defendants, to inquire by what warrant…

Original Proceedings in Quo Warranto. On the 17th of October, 1878, Willard Davis, attorney general, as relator, brought an action in this court in the name of The Stale of Kansas, plaintiff, against L. H. Stevens, J. B. Glenn and F. B. Singer, acting county commissioners within and for the county of Harper, in the state of Kansas, and Edwin McKennary, acting sheriff of said county, and P. W. Dawson, acting probate judge of said county, defendants, to inquire by what warrant…

<p>Error from Morris District Court.</p> <p>Replevin, brought by Allen, against R. Case, to recover possession of certain cattle. R. Case died before a trial was had, and F. 8. Case, his administrator, was substituted in said cause. The district court, at April Term, 1877, gave judgment in favor of plaintiff, and Case, defendant, brings the case here on error. The facts are fully stated in the opinion, infra.</p>

Error from Riley District Court. Action, brought by Mudge against The Board of Regents of the Kansas State Agricultural College. Trial at September Term, 1877, of the district court, and verdict and judgment for Mudge, plaintiff. New trial refused, and the defendant brings, the case here on error. The facts are sufficiently stated in the opinion. 1.

Error from Cherokee District Court. The district court, at January Term, 1877, gave judgment in favor of Livingston, plaintiff. The defendants, Botkin and two others, bring the case here. The facts and proceedings are sufficiently stated in the opinion.

Error from Wilson District Court. Replevin, brought by French against Birks, to recover eighty-one head of cattle. The district court, at September Term, 1876, gave judgment in favor of plaintiff, and Birks, defendant, brings the case here. The opinion contains a sufficient statement of the facts.

<p>1. Damages from Establishment of Public Road; Reduction of Damages. A jury, in assessing the damages sustained by a land-owner by reasoit of the establishment of a public road across his land, cannot take into consideration, for the purpose of reducing his damages, all conveniences and benefits accruing to him by reason of the location of the road, but only-such conveniences and benefits as are direct and special as to him and his land, and such as are the direct, certain and proximate result of the establishment of the road. They cannot take into consideration such conveniences and benefits as are received by him in common with the whole community.</p> <p>2. Special Bule for Reduction of Damages. Increased value of the land may often be taken into consideration in fixing the. amount of the damages sustained by the owner thereof in laying out and. establishing roads. But this can be done only where such increased value arises from some direct, special and proximate cause, such as the draining of the land, or building bridges across streets running through the land, or making some other valuable improvement on or near the land, by means of which the owner will be enabled to enjoy his land with greater advantage. Increased value, founded merely upon increased facilities for travel and transportation by the public in general, is not the kind of increased value which may be taken into consideration for the purpose of reducing the damages to be awarded to the land-owner.</p> <p>3. Opinion op Witness as to Damages. As a general rule, the opinion of a witness, as to the amount of damages which the land-owner sustains ' by reason of the'establishment of a public road across his land, is not admissible as evidence.</p> <p>4. Damages, May not be full Value of Land; Fee in Land-Owner, Easement in the Public. A land-owner is not necessarily damaged to the full value of his land covered by a public road, even if he has not received nor will receive any benefit of any kind whatever from the establishment of the road, for the public, by laying-out and establishing the road, does not become the owner of the land covered by the road, but acquires only an easement therein, and the land-owner himself still remains the owner of the fee and of everything connected with the land not necessarily for the public use. It is proper, however, in many cases, and perhaps indispensably necessary in some, to introduce evidence showing the value of the land; and as to such value, competent witnesses may express their opinions.</p>

Error from Lyon District Court. Action brought in the district court of Morris county, by Seaman against Huffaher and two others, defendants, to modify a certain judgment, and to have certain taxes paid by plaintiff declared to be a lien upon certain real estate. At the April Ternij 1876, of the district court of Morris county,, the place of trial was duly changed to Lyon county. Trial at March Term, 1877, of the district court, and findings and judgment for defendants.

Error from Greenwood District Court. Ejectment, brought by Tucker against Vandermark and' Kirtland. Trial at May Term, 1877, of the district court, and findings and judgment for defendants. New trial refused, and Tucker brings the case here. The opinion contains a sufficient statement of the facts.

Error from Sedgwieh District CouH. Action brought by Standeford, against Winstead and two-others, to recover on an account. Trial at September Term, 1877, of the district court, and judgment for plaintiff. The defendants bring the case here for review. The facts are sufficiently stated in the opinion.

Error from Crawford Eistrict Court. . The district court, at January Term, 1878, gave judgment for Buchanan, defendant, and against Braley, plaintiff, who brings the case here.

Error from Bourbon District Court. At the December Term, 1877, of the district court, Brickley, as plaintiff, had judgment against the Missouri River, Fort Scott & Gulf Railroad Company, as defendant, and it brings the case here for review. All necessary facts and proceedings are set forth in the opinion.

Error from Johnson District Court. Action brought by Case, against Bartholow and six others, to foreclose a mortgage given by Bartholow and wife upon certain lands in Johnson county, to Augusta M. Bagwell, and by her assigned to said Case. Trial at November Term, 1876, of the district court, and findings and judgment for defendants. New trial refused, and the plaintiff Case brings the case here.

Original Proceedings in Mandamus. On the 15th of March, 1877, an alternative writ of mandamus, on behalf of The Atchison, Topeka & Santa F6 Railroad, Company, plaintiff, .was issued out of this… Held: and the subscription made, as hereinbefore stated, or that they show cause, etc. On the 13th of April, 1877, the defendants appeared and answered, showing cause. The case was duly submitted February 5th, 1878, and the subjoined opinion was filed on the 21st of December, 1878.

Error from Johnson District Court. Replevin, brought by Joice against Hardin, to recover the possession of a certain wagon. Trial at June Term, 1877, of the district court, and judgment for Joice. New trial refused, and Hardin brings the case here.

Error from Marion District Court '. Action brought by Starkweather agaiust The Atchisont Topeka & Santa Fé Railroad Company, to quiet his title to certain real estate in Marion county, Kansas.

Error from Saline District Court. Action, brought by Lapham against Head, upon' a promissory note for $225, given by Head to Lapham. At the April Term, 1877, of the district court, Head, defendant, had judgment against Lapham, plaintiff, who brings the case here on error. The opinion contains a full statement of the facts.

Error from Lyon District Court. Eeplevin, originally brought, before a justice of the peace, by George Davidson, against Jaquith, December 16th, 1876, and thence, after a trial, by plaintiff taken to the district court. In May, 1877, said Davidson died, and in September, 1877, the suit was revived in the name of Anna Davidson, as executrix, etc. Trial at September Term, 1877, of the district court, and judgment for plaintiff. Jaquith brings the case here for review.

<p>Assignment by Partners, When a General One. Where a voluntary assignment is executed by L. & B., who-are partners in the grocery business, and signed by their respective wives, who release all right, title and interest in the real estate thereby conveyed, and the assignment purports to assign and transfer all the property of L. & B. of every kind and description, except that exempt by law; and provides that from the proceeds of the property when sold, the assignee shall pay and discharge all debts of L. & B., but if not sufficient therefor, to pay ratably in proportion to the amount of the indebtedness, without distinction or preference, held, that said assignment is a general one, and conveys the partnership effects of the partners and their separate property, not exempt by law, notwithstanding that where the names of L. & B. appear in the body of the written instrument they are immediately followed by “copartners,” or “partners.” These latter words, as used, may be regarded as mere deseriptio personae, and not as limiting the assignment to partnership property.</p>

Error from, Anderson District Court. Action, brought by Constance Boioen, as plaintiff, against The Citizens’ Banh of Garnett, as defendant, to recover money which the petition alleged had been deposited by the plaintiff with the defendant, as a banker, and subject to call.

Error from Leavenworth District Court. This action was commenced by the plaintiffs in error against the defendants in error in the court below, on the 11th day of March, 1873. Held: or what portion of the land is still unsold.

Error from Leavenworth District Court. This proceeding in error was brought- to reverse a judgment rendered in the district court of Leavenworth county, April 22d, 1876, in an action wherein Phebe A. Burgess, the wife -of George W. Burgess, was plaintiff, and Floyd Shannon and Sarah 1C. Shannon, his wife, George W. Burgess, and William H. Bond, Sheriff of Leavenworth county, L. B. Wheat, and -Wheat, his wife, were defendants.

Error from Woodson District Court. Ejectment, brought by Solomon Smith and Julia Smith, as plaintiffs, against W. M. Wicks and Harrison Mays, as defendants, to recover certain real estate in Lyon county. The action was commenced in Lyon district court, and afterward the place of trial was changed to Woodson county, where the case was tried at the June Term, 1875. It was brought to the supreme court at the July Term, 1877, and is reported in 18 Kas. 508.

Drrorfrom Orawford District Gourt. Ejectment, brought by Griffin against Sheffield. Trial at the September Term, 1877, of the district court, and judgment for plaintiff. The defendant Sheffield brings the ease here.

Error from Marion District Court. This was an application for an injunction to restrain the board of county commissioners of Marion… Held: and a majority of votes were cast in favor of locating said county seat on the southeast corner of the southeast quarter of section 31, in township 19, south, of range 4, east, and that afterward the board of county commissioners did erect permanent county buildings upon the northwest quarter of section 5, in township 12, south, of…

M'ror from Marion District Court. . Injunction, applied for by the county attorney of Marion county. The application was heard October 23d, 1878, and denied by the district judge. The facts are stated in the opinion.

-This case is here on appeal from Marion district court, where Toomy, at October Term, 1876, had judgment. The City of Marion Centre brings the case here.

Error from, Marshall District Court. On June 24,1875, the defendant in error, Marcus Harden-, brook, commenced an action in the district court of Marshall county against the plaintiff in error, The Central Branch, Union Pacific Railroad Company, and Ralph M. Pomeroy, Effingham H. Nichols and Henry Day, to compel them to convey to him the northwest quarter of section 21, in township 1, of range 8, east of the sixth principal meridian, in said county of Marshall, on certain…

Error from Leavenworth District Court. Action brought by Russell against Anthony for libel. Trial at March Term, 1877, of the district court, and judgment for defendant. The plaintiff brings the case here on error. The facts are sufficiently stated in the opinion.

Error from Allen District Court. In March, 1876, the defendants in error commenced their action against the plaintiffs in error to recover $2,357.85 against Lee, as principal, and the other plaintiffs in error, as sureties, upon the following written undertaking: Know all men by these presents, That we, Owen Lee, of Fredonia, Wilson county, Kansas, as principal, and Owen Lee, John H. Craig, C. B. Jackson, and H. S. Hough, as sureties, are held and firmly bound unto S. A.…

Error from Crawford .District Court. Action by Beoh against Bailey, to recover a balance alleged to be due on an account for sawing lumber, and for work and labor. Trial at January Term, 1877, and'verdict and judgment for plaintiff. New trial denied, and Bailey brings the case here.

Error from Neosho District Court. Action brought by Parsons against Huffman, to recover the sum of $85, for the alleged seizure and conversion by Huffman, of a two-horse lumber wagon, of the value aforesaid, which wagon Parsons claimed as his own property. Trial at the April Term, 1877, of the district court, and judgment for plaintiff. New trial denied, and defendant brings the case here.

<p>Dismissal 01? Action ; Answer, Amounting to Counter-claim. An action to foreclose a mortgage may be dismissed, without prejudice to a future action, before the case is called for trial, notwithstanding the defendant has filed an answer amounting to a counter-claim, hut such defendant has the right of proceeding to the trial of his claim, regardless of the dismissal.</p>

Error from Nemaha District Court. At the June Term, 1878, of the district court, The State, as plaintiff, had judgment against Swerdsfeger, as defendant, and as surety in a certain recognizance. The defendant brings the case to this court.

Error from Montgomery District Court. Action brought iu the district court of Montgomery county, by Charles Lucas against Daniel Sturr and Robert AtJdnsón, to determine their adverse interests in certain land in said county, and to quiet-the title thereto. The action was tried at the September Term, 1876, and judgment rendered for defendants. A new trial was denied, and Lucas brings, the case to-this court.

<p>Error from Ottawa Districtf Court.</p> <p>'Action commenced in the district court of Saline county, January 22d, 1875, by the Board of County Commissioners of the County of Saline against Robert Morrow, Abram Cutler, G. W. E. Griffith, Asa Richardson, John W. McMillan, Jeremiah G. Mohler, John K. Rankin, Andrew Terry, William A. Simpson, The Lawrence Savings Bank, and the Republican, Salina & Arkansas Valley Railway Company, for the alleged conversion of certain bonds by said Saline county, issued to the railway company aforesaid. A change of venue was had and the case taken to Ottawa county, where the action was tried at the May Term, 1876, of the district court, and a general verdict rendered for the plaintiff and against the defendants, to wit: Robert Morrow, Abram Cutler, John W. McMillan, Jeremiah G. Mohler, John K. Rankin, Andrew Terry, and William A. Simpson — the jury assessing plaintiff’s damages at the sum of $60,616. The jury also made special findings of fact, upon which the above-named defendants (Abram Cutler excepted) moved the court for " judgment in their favor, which was denied. Judgment was accordingly rendered upon the verdict. To reverse this judgment, the above defendants have brought the case to this court for review. All necessary facts, pleadings, and proceedings are amply set forth in the opinion.</p>

Error from Johnson District Court. Action brought by Louise Butler against her husband, William Butler, and his daughter, by a former wife, Mary A. Austin, formerly Mary A. Butler, to set aside a oonveyance made by her husband to his daughter, shortly prior to her own marriage, and in fraud, as she claimed, of her marital rights.' The facts are sufficiently set forth in the opinion.

Error from Marshall District Court. Action brought by Waterson against William Rogers and James M. Gallagher, upon two promissory notes. Trial at the December Term, 1876, of the district court, and judgment for defendants. New trial denied, and Waterson brings the case here on error.

. At the April- Term, 1878, of the district court of Jackson county, Young recovered a judgment against the C. B. U. P. Bid. Co. for the sum of $32.50 damages for killing a cow belonging to said plaintiff, and for the further sum of $32.50 as an attorney’s fee, and for costs of suit, taxed at $55.20. The Bailroad Company brings the case here.

Error from Davis District Court. Injunction brought by Swenson to restrain the sale by Kiehl, as sheriff of Davis county, mf eighty acres of land, claimed by the plaintiff as her homestead. At the November Term, 1877, of the district court, the defendant Kiehl had judgment against Swenson, who brings the case here.

At the April Term, 1878, of the Jackson district court, Holcomb had judgment against the O. B. U. P. Bid. Co. for $35 damages for killing a cow belonging to said Holcomb, and for $40 as an attorney’s fee, and for costs of suit. The Bailroad Company brings the case here on error.

• Error from Bourbon District Court. At the September Term, .1876, of the district court, Perhins had judgment against School District No. £9, Bourbon county, for $68.50, and costs. New trial denied, and the defendant brings the case here for review. The facts appear in the-opinion. '

Error from Atchison District Court. Action, brought by Pate, against the C. B. U. P. Bid. Co., to recover the sum of $35, the value of a colt alleged to have been killed by said defendant while operating its railway. Trial at the June Term, 1877, of the district court, and verdict and judgment for the plaintiff. New trial refused, and the defendant brings the case to this court on error.

Error from Atchison District Court. At the June Term, 1878, of the district court, if. Lloyd, ■Son & Go. had judgment for the sum of $1,392.44 against Marbourg, who brings the case here for a reversal of that judgment. The opinion contains a sufficient statement of the facts.

Error from Leavenworth District Court. Action by Hiatt and Maris, counting on a contract set forth in full in the opinion, infra. The district court, at the September Term, 1877, gave judgment in favor of ’plaintiffs for $1,473, and costs, and against Usher, defendant, who brings the case here for review.

Error from Osborne District Court. At the September Term, 1877, of the district court, McGuire had judgment against Lawrence for $1.20, and costs. New trial denied, and Lawrence brings the case here for review.

Error from Sedgwick District Court. All necessary facts and proceedings are sufficiently stated in the opinion. The district court, at the’ September Term, 1877, gave judgment in favor of H. B. Cullum, as receiver of the First National Bank, of Wichita, plaintiff, and against W. C. Fraker, defendant, for the sum of $847.50, and costs. Fraker, claiming that judgment ought to have been rendered for, instead of against him, brings the case here for reversal of the judgment.

Error from Riley District Court. On the 23d day of October, 1875, the chairman of the board of county commissioners of Riley county executed and delivered to the Riley County Agricultural Society, defendant in error, a certain order upon the treasurer of said county, of which order the following is a copy, to wit: “ Office of County Clerk, Riley Co., Kansas, \ Manhattan, Oct. 23, 1875. j To Treasurer of Riley Co.: J. Q,.

Error from, Atchison District Court. In September, 1873, George Jansen, the defendant in error, ■commenced his action against The City of Atchison and A. G. •Otis, to recover damages in the sum of ten thousand dollars, by reason of personal injuries alleged to have been received by him on August 10th, 1873, through defects in a certain ■sidewalk of one of the public streets of the city of Atchison. •Jansen’s petition alleged, among other things, that on said 10th day of…

In January, 1878, Frank Davis, the appellant, was tried and convicted in nine cases in the police court of the city of Eureka, for selling intoxicating liquors contrary to the provisions of ordinance No. 55 of said city, entitled “An ordinance regulating dramshops, tippling-houses, etc.” Said nine cases were forthwith appealed to the district court, where, at May Term, 1878, of said court, this case, being one of the aforesaid cases, was tried by the court without a jury,…

Martin Ruth was charged by information with having committed the crime of rape.

Original Proceedings in Mandamus. On the 4th of February, 1879, an alternative writ of mandamus was issued out of this court, and directed to John P. St. John, governor of the state, commanding and requiring him, the governor aforesaid, to appoint some competent person, who is a bona fide inhabitant of the county of Stafford, to táke the census of said county, and ascertain the number of bona fide inhabitants of said county, in order that said county might be organized as…

Error from Leavenworth District Court. Action brought by Claypoole, under § 595 of the code, against Mary M. King and twenty-nine other defendants, to recover certain real property situate in Leavenworth county, and in the possession of said defendants.

Error from Douglas District Court. Action under chapter 94, laws of 1874, brought by Yates against the Railroad Company, to recover damages for killing two hogs belonging to plaintiff.

<p>Railroad Stock Law od 1874; Presumption. In an action to recover damages from a railroad company for the killing of three swine, it appeared from an agreed statement of facts that the swine killed were running at large in violation of section 46 of the stock law, Gen. Stat. 1011, and the herd law of 1872, page 384. Held, That as the animals were under the control and charge of their owner, and as it was his duty to see that they were so secured as not to be at large, the said admission of the owner in the agreed statement, that they were running at large when killed, raises the presumption against him that they were at large with his permission.</p>

Original Proceedings in Habeas Corpus. The petition was filed in this court on the 14th of February, 1879, on behalf of George N. Holcomb, for a writ of habeas corpus.

Original Proceedings in Habeas Corpus. The petition was filed in this court on the 13th of March, 1879, on behalf of Joseph Hollon, for a writ of habeas corpus.

Error from Wyandotte District Court. Action brought by Sophia Zeitz against The Oity of Wyandotte, to recover upon ten certain bonds of said city issued by the proper officers thereof, which bonds were designated as “special sidewalk bonds.” A full copy of one of said bonds is as follows (the others being like it except as to amount, date, and time of payment), to wit: No. 31. $69.75. SPECIAL SIDEWALK BOND — WYANDOTTE, KANSAS.

Error from Morris District Court. Action brought by Hinton against the Morris County Cooperative Association, to recover the sum of $200 by him loaned to said society. Trial at the April Term, 1877, of the district court, and verdict and judgment for the defendant. Plaintiff brings the case here for review.

Error from Linn District Court. Action brought by Cady against Bard and Buck, as executors of G. W. Bard, deceased, said executors having been appointed in another state, and being non-residents. Service was sought by attachment and publication. The district court,'at the November Term, 1877, sustained a motion made by the defendants to set aside the service, on the ground that the court could not obtain jurisdiction of the defendants by attachment and publication.

Error from Shawnee District Court. Action brought by Caleb D. Ward against The Board of Comm’rs of Shawnee Co. for the sum of $1,158.56, on account •of medical services, medicines, clothing, provisions, groceries, •dry goods and other necessary merchandise by plaintiff provided and furnished for the temporary relief of certain paupers in Silver Lake township, Shawnee county. Trial at the December Term, 1874, of the district court, and judgment for the defendants.

Error from Washington District Court. Action brought by Martin against John Borgman, a justice of the peace, and E. H. Prall and Henry Heilman, the sureties on his official bond, for the alleged illegal proceedings of a special constable appointed by said j ustice. At the April Term, 1877, of the district court, the defendants de¿murred to plaintiff’s petition, which demurrer was sustained, and Martin brings the ruling here for review.

At the April Term, 1878, of the Nemaha district court, Hastings had judgment against Clippenger, who brings the case here for review.

<p>At the September Term, 1877, of the Bourbon district court, Sivey had judgment against Mayberry for $300 damages, and for costs, in an action for personal injuries. New trial denied, and Mayberry brings the case here on error.</p>

Error from Bourbon District Court. Action brought by B. P. McDonald, defendant in error, against The Adams Express Company, the plaintiff in error, to recover rent for certain premises from June 1st, 1877, to February 1st, 1878, at the rate of $500 per annum, payable monthly.

The district court of Brown county affirmed the judgment of a justice of the peace taxing the costs in a certain criminal case against the prosecuting witness, McGillvray, who appeals to this court.

Error from Barton District Court. Action brought by J. W. Winkfield against G. L. Brinkman and Alice P. Brinkman, to enforce a trust. At the September Term, 1878, of the district court, the defendants’ general demurrer to the petition was sustained, of which ruling Wink-field complains, and brings the case here. The facts are sufficiently stated in the opinion.

At the April Term, 1878, of the district court, Simmons was tried and found guilty of an alleged violation of the dramshop act, and sentenced to pay a fine of $20 and the costs of the prosecution. From this judgment he appeals to this court.

Error from Chase District Court. Replevin, brought by Brown and another against Holmes, to recover the possession of ninety-two head of cattle. The action was commenced in May, 1872, against Holmes, then in possession of the cattle in Chase county, who retained them upon a redelivery bond. The first trial was had at the September Term, 1873, of the district Court, when judgment was rendered for defendant and against the plaintiffs for costs.

Error from Leavenworth District Court. April 23d, 1877, Mary E. Olsen, plaintiff below, filed her bill of particulars before John McKee, a justice of the peace in and for Leavenworth township, for the use and occupation of lot 22, in block 79, in Leavenworth city proper. May 26th, 1877, defendant below filed his sworn answer, and moved the justice to stay proceedings before him, and certify the case to the district court of Leavenworth county, which motion was sustained.

Error from Harvey District Court. This was an action of replevin, originally brought by the defendant in error against the sheriff and deputy sheriff of Harvey county, to recover the possession of certain personal property. The property was taken on execution by said officers, and claimed as exempt by the defendant in error.' The ■officers gave a redelivery bond and retained possession of the property.

Error from Sumner District Court. At the April Term, 1878, of the district court, in an action wherein Gilworth was plaintiff and Cody was defendant, the court sustained defendant’s motion to dissolve an order of attachment levied upon certain real estate taken as the property of the defendant. The plaintiff complains of this-ruling, and brings the case here on error. The facts sufficiently appear in the opinion.

Error from Sedgwick District Court. Action brought by Dodd, Brown & Co., against H. J. Hills arid H. T. Kramer, partners as Hills & Kramer, and H. C. Day, to set aside a certain deed of assignment made by the said Hills & Kramer to the said H. C. Day — said deed of assignment having been made ostensibly for the benefit of the assignors’ creditors, but by the plaintiffs claimed to have been made for the purpose of hindering, delaying and defrauding creditors.

Error from, Nemaha District Court. Action brought by Dadoislca A. Perley, by her next friend,John A. Perley, against Jacob E. Taylor and three other defendants, on the covenant of warranty in a deed of conveyance from defendants to plaintiff,.to recover the sum of $2,000 for taxes, interest and penalties alleged to have been incumbrances upon the property at the time it was conveyed, and which plaintiff claimed'she bad paid after the defendants had refused so to do.

Error from Franlclin District Cowrt. Action of replevin brought by Smith against Woodleaf, to recover possession of certain cattle. Trial at May Term, 1878, of the district court, and judgment against Smith, who brings the case here.

Error from Cowley District Court. Action brought by Corkins, against Titus, for damages in the sum of $5,000, for an assault and battery. . Trial at the August Term, 1877, of the district court, and verdict and judgment for plaintiff for $900 and costs. New trial denied, and Titus brings the case here for review.

Error from Rice District Court. This was an action brought on March 18th, 1878, by the defendant in error against the plaintiffs in error, for the reformation of a deed executed May 24th, 1877, by Conaway and wife to said Core.

Information for embezzlement, charging the appellant, William Lillie, with the embezzlement of certain United States treasury notes, and certain national bank notes,' amounting in the aggregate to ¡$15.0. At the September Term, 1878, of the district court, Lillie was tried, found guilty of the offense charged, and sentenced accordingly. He now appeals to this court. The facts are sufficiently stated in the opinion.

At the December Term, 1876, of the district court of Shawnee county, Morse and Dunlap had judgment against Jewell, who brings the case here for review.

Error from Clay District Court. At the November Term, 1876, of the district court, Harris had judgment against Fanson, who brings the case here on error.

Original Proceedings in Habeas Corpus. Petition filed in this court on the 24th of January, 1879, on behalf of Charles G. Scrafford, for a writ of habeas corpus.

Action under chapter 94, laws of 1874, brought by Wilkinson, against the Railroad Company, to recover damages for killing one brood sow and one shoat belonging to the plaintiff. Trial at a special term of the district court of Douglas county, February 25,1878, when special findings, were made, and judgment was rendered thereon in favor of the plaintiff for $40 and costs. The Railroad Company brings the case here for review.

Error from Pawnee District Court. At the December Term, 1877, of the district cour-t, the defendant in error (plaintiff below) had judgment against the Commissioners of Pawnee County, who bring the ease here on error. The facts appear in the opinion.