Volume 22 — Kansas Reports

Error from Lyon District Court. Marion Sanders, the relator, by his attorneys, instituted a suit against the Atchison, Topeka & Santa Fé Railroad Company to recover 207 separate penalties, of twenty dollars each, amounting to $4,140, for a failure on the part of the railroad company to ring a bell or sound a whistle while crossing Jefferson street, in the town of Plymouth, in Lyon county, brought under the provisions of § 60, ch. 23, Gen. Stat. 1868.

Error from Leavenworth District Court. At the September Term, 1877, of the district court, the defendants in error (plaintiffs below) had judgment against Stillings, who brings the case here for review.

<p> Error from Miami District Court. </p> <p>Action brought by Lot P. Ravenscraft and another against Jonathan PI. Pratt and three others, defendants, to recover the sum of $6,696.98, with interest from April 16, 1857. The facts, pleadings and proceedings are sufficiently stated in the opinion. At the October Term, 1877, the court below sustained a demurrer to the plaintiffs’ amended petition, and this is the only ruling of which they here complain.</p>

Error from Marion District Court. February 16, 1878, at the instance of Buck & Co., an execution was issued out of the district court of Marion county, on a judgment against plaintiff in error and one T. W. Reed. The writ was delivered to T. J. Smith, under-sheriff of said county, and was by him on the above date levied upon certain personal property of the plaintiff in error. On March 27, 1878, the property so levied upon was by said under-sheriff advertised for sale.

Error from, Lyon District Court. ■ At the March Term, 1878, of the district court, Atyeo & Herman, as plaintiffs, had judgment against Bancroft, as defendant, for $67.24, and costs. Bancroft brings the case here for review. The opinion contains a sufficient statement of the facts.

Error from Cowley District Court. Action brought by Emily J. Houston, against Creen and two other defendants, to foreclose a certain mortgage. Trial at December Term, 1877, of the district court, and judgment for plaintiff. The defendant Green brings the case here.

Action of replevin, brought by the Howe Machine Co. against Peterson, for the recovery of one sewing machine, valued at $40. Trial at the March Term, 1877, of the district court of Atchison county, and judgment for defendant. The-plaintiff brings the case here.

<p> Error from Greenwood District Court. </p> <p>At the November Term, 1877, of the district court, the Board of Comm’rs of the County of Greenwood, as plaintiff, recovered a judgment against defendant Hall, who brings the case here on error. The opinion contains a sufficient statement of the facts.</p>

Error from Atchison District Court. Action brought by James C. Hotham against the Central Branch Union Pacific Railroad Company, to recover damages alleged to have been sustained through the negligence of the railroad company in permitting sparks to escápe from its engine, whereby certain hay belonging to Hotham, stacked near the railroad track, was burned and destroyed.

Error, from, Shaivnee District Court. Action brought by Spalding, against Joseph S. Black, Clarence A. Black, and S. P. Wade, Sheriff, to recover damages for the unlawful conversion by defendants of certain goods and chattels belonging to plaintiff. Trial at the December Term, 1875, of the district court, and judgment for the defendants. Spalding brings the case here for review. The facts are sufficiently stated in the opinion.

Error from Atchison District Court. Action brought by Byrnes against The City of Atchison to recover an alleged balance of $667.50, with interest, for maeadamizing Commercial street in said city, in 1872, under a-contract between the parties to the action dated July 25th,. 1872. Trial at the June Term, 1877, of the district court. Verdict and judgment for plaintiff Byrnes. The defendant brings the case here on error.

Error from Leavenworth District Court. Action brought by Olsen, against Mooney and another, to set aside the will of Lydia Foster, who died July 8, 1876. Trial by a jury, at the March Term, 1877, of the district court, and verdict against the will. The defendants below filed their motion for a new trial, which was overruled, and judgment rendered in favor of the plaintiff Olsen, upon the verdict of the jury. Defendants bring the case here.

Error from Marion District Court. The defendant in error (plaintiff in the court below) brought his action against the plaintiff in error (defendant in the court below), before a justice of the peace of Marion county, on January 17, 1877, to recover the first three installments of purchase-money agreed to be paid by the following contract for certain town lots: “This agreement, made this 10th day of July, 1873, by and between R. T. Battey of the first part, of Marion Centre,…

<p>1. Motion for New Trial; Continuance of Hearing; Exceptions. Where a case was tried at one term before a jury, verdict returned, and a motion for a new trial duly filed, and such motion was continued to a subsequent term, and then upon hearing overruled and time given in which to make a case, held, that the exceptions to the proceedings on the trial, though first reduced to writing at the time of making the case and after the close of the trial term, were in time, and must be considered in this court.</p> <p>2. Bill of Sale, Construed. A bill of sale executed in Illinois upon personal property situated in Nebraska, is valid inter, partes, though intended only as security for advances, and though neither filed nor recorded in Illinois or Nebraska, and though possession of the property was not delivered.</p> <p>3. —--- Eights of Administratrix under Bill of Sale. An administratrix of the vendor in such a bill of sale has no greater rights in said property than her intestate, and can make no other defenses than he against such bill of sale.</p> <p>4. Administration ; Domicil; Jurisdiction. Where F., domiciled in Nebraska, dies, leaving personal property in Kansas, and administration is duly taken out at the place of his domicil, and the administratrix so appointed takes peaceable possession of such property in Kansas, and there is no opposing administration in this state, and no local creditors, held, that the courts of this state will, ex comitate, recognize her possession as rightful, and protect it as fully as though she had taken out letters of administration in this state.</p> <p>5. Jurisdiction ; Void Levy of Process; Valid Levy. Where a sheriff of one of the counties of Nebraska, with process issued by a Nebraska court, comes into this state and levies upon personal property within the limits of this state, such levy is absolutely void, and confers no title or right of possession upon such sheriff; but where such sheriff with such process levies upon property within the limits of his jurisdiction, he establishes a title and right of possession which will be recognized and protected in the courts of this state, although while holding such possession he temporarily moves such property into this state, and while in this state it is seized upon process issued out of a court of this state.</p> <p>6. Comity; Lex Loci Contractus; Lex Fori. While it is a general proposition that, as to contracts concerning personal property, the lex loci contractus governs, or in other words, that whatever goes to the form, manner of execution, and all other matters affecting the validity of the instrument as a contract inter partes, is settled by the law of the state where the contract is entered into, yet, where such contract is made concerning personal property situated in another state, the latter may, without violating any of the obligations of comity, uphold its own laws concerning the effect of such a contract upon the rights of third parties domiciled within such state.</p> <p>7. Chattel Mortgage ; Duties and Liability of Mortgagee. If a chattel mortgagee in this state takes possession of the property mortgaged, and in good faith, according to the statute, advertises and sells the property, he is responsible to the mortgagor for only the surplus of the proceeds of such sale above the debt, interest and costs; but if he make other disposition, he is responsible for the difference between the actual cash value at the time and place of taking possession and the amount of the debt and interest.</p> <p>8. --In enforcing remedies, the lex fori governs.</p>

Error from Osage District Court. Action for false imprisonment, malicious prosecution, and libel, brought by Dolbe against Norton. Trial at the April Term, 1877, of the district court, and judgment for the defendant. Dolbe brings the case here.

Error from Cowley District Court. Replevin, brought by Newlin, as assignee of A. A. Estlin, against Walker, sheriff of Cowley county, for the recovery of certain goods and chattels. The opinion contains a sufficient statement of the facts. At the December Term, 1877, of the district court, plaintiff had judgment against •defendant, who brings the case here.

Error from Dickinson District Court. Eeplevin, brought by Armstrong against Hoisington for the recovery of a buggy, horse, and harness. Trial at the March Term, 1878, and judgment for the plaintiff. Hoisington brings the case here. submitted points and authorities, as follows: 1. Where property is seized under an order of attachment against a given person, such person cannot replevy the same in the hands of the officer.

<p>Facts Constituting a Cause of Action; Error: A petition was filed by F. against M., alleging that M., individually, and on behalf of the firm of Osbun & Co., a firm composed of O. and M., agreed for a sufficient consideration to let F. draw out ¡¡!660 in merchandise from the firm of O. & Co., to which agreement 0. & Co., for value, assented; that M. bought the interest of O., his copartner, and became the sole proprietor; that both M. and the firm of O. & Co. refused to deliver the merchandise to F., when demanded under the agreement with M. and O. & Co. Held, error for the court below to sustain a demurrer to said petition for defect of parties, or that the petition failed, to state facts sufficient to constitute a cause of action against M.</p>

Error from Shawnee District Court. Action by Williams against the Railroad Company, to recover damages for personal injuries received by him while in the service of the company. Trial at the January Term, 1878, of the district court, and judgment for defendant. Williams brings the case here. The facts are sufficiently stated in the opinion. cited §1, ch. 94, Laws of 1874; Snow v. Housatonic Rid. Co., 90 Mass. 441; Sayzer v. Taylor, 76 Mass. 280.

Error from Jackson District Court. Replevin, brought by Gardner against Williams and Naylor, for the recovery of a mare and a saddle. Trial at the April Term, 1878, of the district court, and judgment for plaintiff. The defendants bring the case here for review.

Error from Osage District Court. Replevin, brought by Ellett against Frankhouser, sheriff of Osage county, to recover certain goods and… Held: and perhaps properly, that the filing of the mortgage' is not legally equivalent to actual delivery and continued change of possession, but that the statute in regard to filing “merely adds to the grounds on which a mortgage of personal chattels shall be void.” In other words, they decide that all mortgages spoken of in § 6 are…

<p>Verdict Directed by the Court, When Not Error. L. agreed with his mortgagor, one B., and a purchaser of the mortgaged property, to release the lien which he held on a span of mules, under a chattel mortgage, if B. delivered to him, on January 1st, 1876, $250 worth of corn, at twenty cents a bushel. Afterward, L. accepted certain com on condition that he was to bring suit against a third party to obtain it for B.’s benefit, who was to save him harmless. In this action, he received $185.80 worth of corn, but paid out $30 as attorney’s fees. The opposing party then prepared the case for the supreme court; and before three years had expired from the rendition of the judgment, L. brought his action in replevin to recover the mules. Held, Not error for the court to direct a verdict for L., if the evidence failed to show that L. had been tendered-the balance of the $250, and attorney’s fees, and a bond of inderaitity to save him harmless in the action brought by him to secure the com.</p>

Error from Atchison District Court. McCeum sued Challiss to recover the sum of $229.60, with interest thereon at seven per cent, per annum, from December lOtb, 1875, alleged to be due plaintiff on a certain promissory note by defendant, indorsed without recourse, and transferred to plaintiff.

<p>At the May Term, 1876, of the Labette district court, Scott had judgment against Vanderbur, who brings the case here.</p>

Error from Saline Distriet Court. Defendant in error, plaintiff in the court below, on the 14th day of August, 1877, filed his petition in the district court of Saline county against the plaintiff in error, for the recovery of lot 140, on Fifth street, in Salina. The plaintiff in error filed an answer, denying that the defendant in error was seized in fee simple of the lot, and claiming title under a tax deed to Sarah Sebring, and a warranty deed from her.

<p> Appeal from Lyon District Court. </p> <p>Prosecution commenced against the appellant, E. P. Bancroft, by the State of Kansas, for the embezzlement of $9,000 of moneys belonging to the State Normal School, at Emporia, Kansas, being principal less three per cent, commission for the sale, and interest on sales, of normal school lands of the state of Kansas. The amended information filed herein originally contained three counts, but the second •one was stricken out by the court, leaving the first and third •counts standing. To the information was attached and made a part thereof, a schedule containing in separate columns a list of the lands sold, when and to whom sold, dates and amounts of payments on each tract of land, of principal less commission and interest. At the September Term, 1878, of the district court, the appellant was tried for the above embezzlement, found guilty, and sentenced to the state penitentiary for the term of five years. From this judgment he now appeals to this court. All necessary facts, pleadings and proceedings are sufficiently stated in the subjoined cpinion.</p> <p>1. The district court erred in overruling defendant’s motion to compel the prosecution to elect as between the first and third counts of the information, and also in overruling his motion to strike out one of said counts. All criminal pleadings are to be judged by our code, and not by the rules of the common law, or decisions of courts thereunder. (Criminal Code, §§101, 102, 103, 123.) But viewed in the light of the common law, the defendant should not have been put on trial on these two counts. They cannot be said to be introduced solely for the purpose of meeting the evidence as it may transpire, the charges being for the same offense. This is a case not only of distinct felonies, but the counts set out distinct felonies, which are radically repugnant. Statev. Johnson, 5 Jones (N. C.), 221.</p> <p>The two offenses charged are in law just as distinct as if they were covered by separate sections of the statute; the fact that they appear in one section does not alter their legal character. It is absolutely impossible for a person, guilty of embezzlement of funds under the first clause, to be guilty of a criminal refusal to pay over funds collected as provided for in the second. The second clause was enacted for the purpose of reaching a class of individuals who were not and could not be punished under the first clause; a class of collecting agents who were not even civilly liable until after demand. It is true that a demand and refusal may be evidence of an embezzlement under the first clause, but it would not necessarily constitute the embezzlement; and then it will not be supposed that, in enacting this second clause, the legislature was simply putting in a statute of evidence in embezzlement cases. If, by the amendment of 1873, the legislature did not provide for two distinct felonies, and felonies that, so far as the same individual and the same funds are concerned, are as to each other inconsistent and repugnant, then we have in this amendment an indirect attempt to legislate out of existence the statute of limitations so far as embezzlements are concerned, for the addition clearly amounts to this and no more: “that whenever any agent, officer or servant mentioned in § 88, ch. 31, shall have embezzled any such moneys mentioned in said section, and shall neglect or refuse to deliver to his employer, on demand, the same, unless the same shall have been lost by means beyond his control,” etc., “or his employer has permitted him to use the same, he shall be committed,” etc.</p> <p>If this second clause does not make the things therein mentioned a crime, and the same did constitute a crime under the first clause, then it is an absurdity, or else the legislature simply meant to say, that if anyone has at any time been guilty of embezzlement under the first clause, he is to be convicted and punished, even though prosecution for this crime is barred by the statute of limitations, provided the demand mentioned is made, and the other things stated exist; and we cannot suppose the legislature intended any such thing. Now does not this third count amount to this: that although we charge Bancroft with embezzlement under the first count, he is not guilty thereof, but he is guilty by reason of the existence of a state of facts covered by this second clause? The two charges are repugnant, and they cannot, in the very nature of things, be predicated on the same funds — in law, just as repugnant as would be two counts for larceny or any other crime, the one charging the offense to have been committed in one county, and the same offense in another county. (1 Wharton’s Crim. Law, §419.)</p> <p>Then, again, it is impossible that the defendant could have committed two offenses under this act — first, bj fraudulently converting to his own use the money, for this offense would be complete at the moment of the conversion. Then is it possible that a simple demand, several months after the conversion, would add a new offense because the defendant failed to pay over on demand? But again, suppose on demand he had paid the money over: would that have exempted him from punishment for embezzling it several months before? Surely not. If this law should be thus construed, it would be a trap to catch the poor and least offending; while the sharp and wealthier rogue could always, when caught in his villainy, pay up and get out. Evidently the last clause of this act was intended to cover a new class of cases, such as the embezzlement act did not before cover; and such is the-history of the embezzlement laws since the first act was passed in England — every new one was intended to cover a larger class. This last clause was tacked to our act for the express-purpose of catching a class of agents, such as lawyers, that could not be guilty of a conversion of money coming into their hands until demand was made; so, of course, a lawyer could not be convicted of embezzling his client’s money, which he had collected, until demand was made; neither could the client maintain a civil action against his lawyer for money collected, until demand was made. It has been often decided that statutes of limitation never begin to run in favor of a lawyer until the client has made demand. Now, as Bancroft-is not an agent upon whom demand should be made before suit is brought, it was therefore an error to convict him under the third count, as well as not to strike it out. (Pierce, et al.t v. Thornton, 44 Ind. 235; Foss v. Baehop, 5 Kas. 59, and cases cited; Qreen, Adm’r, v. Williams, Adm’r, 21 Kas. 64.)</p> <p>2. Judgment should have been rendered in favor of the defendant, on the issues joined on his plea in abatement in this court, and his motion to set aside the verdict and for a new trial should have been granted. Said verdict and decision were not sustained by the evidence; they were contrary to law, and grave error was committed by the district court-in its instructions, in its refusal to give instructions requested during the trial of said issues, and in overruling said motion. (Dassler’s Stat., p. 820, §4253; 3 Kas. 250; 6 id. 370.) It is expressly admitted that Bancroft never was a fugitive from justice, and that neither the district court nor any judge thereof ever ordered the information herein, or any information, to be filed against him. On this issue the state had, or at any rate assumed, the burden of establishing by proof that the defendant had had a preliminary examination on the charges contained in the information filed, and for this purpose introduced in evidence the transcript of the docket of Bacheller, J. P., a warrant of arrest, and the complaint on which said warrant was issued. And this evidence, with the above admission, and the admission that said transcript, warrant and complaint were the only ones ever made, issued or filed by or before said justice, and the-only ones upon which defendant ever had an examination for the matters charged in said information, was all the evidence introduced. It is therefore evident, that unless, the charge contained in said warrant and complaint is the same in law as the charge contained in the information, the defendant never did have the preliminary examination, without wffiich no information can be lawfully filed against him.</p> <p>The information charges in the first count, that Bancroft was an agent and officer of the state of Kansas, and that as-such he embezzled certain moneys belonging to said state, a corporation, without the assent of his employer, the state of Kansas, and is based on the first part of § 88 of the crimes act, or on that section as it existed prior to the amendment of 1873; while in the complaint before the justice, which is also wholly based upon the said portion of said § 88, Bancroft is charged with being an agent of the hoard of regents, and that as agent of said board he collected and had under his care, by virtue of such agency, certain moneys, and that he embezzled the same. Now we insist, that neither in fact nor in law are these charges the same, and that the evidence required to sustain the charge made in the complaint would wholly fail to sustain the charge made in this count.</p> <p>An allegation that Bancroft was an agent and officer of the state of Kansas is not in any legal sense an allegation that he is an agent of the board of regents, any more than a charge that Bancroft is an agent of John Doe is legally the same as a charge that he is the agent of Richard Roe. If the difference is not apprehended .at a glance, no argument will bring conviction. If, however, we are in error, so far as this first count is concerned, and this court holds that the charge in the complaint is substantially the charge made in this first count, it certainly cannot be seriously contended that the crime attempted to be charged in the third count of the information is anywhere hinted at or pretended to be set forth in this complaint. The whole charge before the justice was predicated upon said § 88 as it existed before the amendment of 1873. There is no language in this complaint capable of bringing the attempted charge within the purview or provisions of that portion of § 88 added thereto by the amendment of 1873. If this complaint will sustain the first count of this information — if the two charge substantially the same offense, or come within the same class of offenses — then it is nonsense to talk about this third count being based upon this bomplaint, because this third count does not charge an embezzlement by an agent or officer of moneys belonging to his •employer, and without his employer’s consent, or attempt to make any charge within the scope of the first portion of § 88 as it now stands; but said count is drawn entirely under the latter portion of said section — that part added thereto by the amendment of 1873. It ignores completely the language of the embezzlement clause of the section, and uses the precise words of the other clause. We therefore contend that; Bancroft never did have a preliminary examination for the offense charged in this third count; that this section includes at least two distinct offenses, and that clear and prejudicial error was committed by the district court in reference to this plea. (Meister v. People, 31 Mich. 99-112; People v. Jones, 2 Mich. 315, 217, et seq.; People v. Pox, 3 Mich. 497.)</p> <p>Again, we call the attention of the court to the warrant issued on said complaint, and which follows this complaint, except that it. charges that the embezzlement was committed on the 6th day of June, 1878, while the complaint and the information (which was filed March 20th, 1878) charge it to have been committed on June 6th, 1877. Now we submit that, judged either by this complaint or this warrant, the defendant never had any preliminary examination for either of the offenses charged; and yet the jury, under the instructions of the court, found that he had, and judgment was rendered accordingly.</p> <p>We also call the attention of the court to the fact that defendant requested the court to instruct the jury: “That an ■examination on a charge of embezzlement of money on June •6th, 1878, is not an examination for a charge of embezzlement on June 6th, 1877,” and the court refused; and on this point charged the jury “that time is not an essential ingredient in the issues submitted to you, and the mere fact the warrant read in evidence before you states the offense to have been committed June 6th, 1878, and the complaint read in ■evidence before you states the offense to have been committed on June 6th, 1877, would make no difference, and you may find for the state, so far as that circumstance is concerned.” This we think error. State v. Sexton, 3 Hawks (N. C.), 184; State v. Liteh, — Vt. 67; Mashley v. State, 10 Mo. 291; Serjpertine v. State, 2 Miss. (1 How.) 256; State v. Pratt, 14 N. H. 456; State v. Woodman, 3 Hawks (N. C.), 384; Pennsylvania v. McKee, Add. (Pa.) 33; Joel v. State, 28 Tex. 642; .Johnson’s ease, 5 City H. Rec. 103. We do not claim that the warrant and complaint before the justice should describe the offense as accurately as the information, but we do insist that the charge made in the latter should be substantially the same as that made in the former.</p> <p>3. The defendant’s motion to quash the several counts in ■this information should have been sustained.</p> <p>(a) In this information the defendant is charged with being an agent and officer of the state of Kansas, a public corporation, and that as such ho was guilty of embezzling and criminally refusing to pay over $9,000, which had come to him by virtue of such agency and office. We contend that the state of Kansas is not included in the word “incorporation” found in § 88 of the crimes act, and that no agent or officer cf the state can be guilty of embezzlement under said section. According to well-established rules of construction, words and phrases are to be construed according to the context and approved usage of the language; and certainly words used in a criminal statute are to be construed iYtheir usual acceptation in common language. We have searched in vain for an instance in our statutes wherein the state is spoken of as a corporation, or where the legislature has ever indicated that the word corporation should include the state. On the other-hand, the statutes are full of instances where the legislature has enacted laws for the protection of state property, and for the punishment of those injuring or making way with it, in all of which the state is designated by the name of “state;”’ and we also find that when it is deemed necessary that the-state should be included in some name that does not ordinarily include it, such intention is made manifest by express-legislation. (Gen. Stat., ch. 31, § 314.) Now, when we find nowhere any clear indication that it was ever intended that the state should be included within the words “ corporation, or “incorporation,” but on the contrary, find that in all cases-where it is evident the state’s interest is sought to be protected by the provisions of the crimes act-, the word “state” is used,, except when, by the force of § 314, the state is held to be included within the word “person,” how can it be claimed that-in this particular § 88 a rare exception is made, and the sovereignty is wrapped up in the word incorporation?</p> <p>We do. not claim that a state is in no sense a corporation, but only that it is in no such sense one as to be ordinarily embraced within that word when found in statutes. It is a corporation in the same sense as a king is a corporation, and# in no other. (1 Bl. Corn. 469.) It has the legal advantage of perpetuity. It may sue in a foreign court; in a certain sense cede its sovereignty and be so far considered a corporation. (2 Johns. Cases, 422; 2 Hill, 159; 6 id. 36.) As is said in Angelí & Ames on Corporations, §15: “Nations or states are denominated by publicists bodies politic; and are said to have their affairs and interests, and to deliberate and resolve, in common. They thus become as moral persons, having an understanding and will peculiar to themselves, and are susceptible of obligations and laws. In this extensive sense theUnited States may be termed a corporation. ... It may be so said of each state singly.” '</p> <p>The question before the court is not whether, in the language of publicists, a state may be termed a corporation; but whether whén the state was enacting this criminal statute for the punishment of agents and officers of private persons and incorporations, it meant that the state was a corporation within that section? We believe that the legislature used this word in its ordinary legal sense, and attached to it no broader meaning than law writers generally do, and that it meant private and public corporations, and that it was legislating for the protection of its citizens, private persons, and of its own creations, corporations. If in the ordinary legal sense the state is a corporation, it is a public corporation, and it is charged in this information to be such. Now the state is the government, and by legal writers,-public corporations are defined to be those “ created by the government for political purposes, as a county, a city, a town or.village.” (Burrill’s Die., p. 352, title, Public Corporations; 2'Kent’s Com. 275.) “They are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good, and such powers are subject to control of the legislature of the state.” (2 Kent’s Com., marg. p. 275; 1 Dillon on Cor., § 10; Field on Cor., §§ 2, 3.) So, according to these eminent law writers, the words “public corporations” do not mean the state, but corporations subordinate to the control of the state; creations of the legislative will. Judge Dillon, in § 14, vol. 1, of his work on Corporations, says: “Although not styled such, each one of the United States, in its organized political capacity, is in effect a public corporation. Corporations, however, as the term is commonly used, do not include states, but only derivative creations owing their existence and powers to the state, acting through its legislative department,” etc.</p> <p>The argument seems to us clinched, and the conclusion put beyond all question, when we find that the legislature has expressly defined this word “corporations” in the very statutes in which § 88 is found, and in that definition excludes the state as effectually as if the enactment had been that “ the state is not a corporation within the meaning of that word as found in these statutes;”, and it makes the definition of the words “public corporations,” as given by Burrill and Kent, the law of construction of statutes in that regard in this state. In chapter 23 it is enacted, in § 1, that corporations are either, first, public, or second, private. In § 2, that “a public corporation is one that has for its object the government of a portion of the state.” In view of this legislation, we ask, how can it be seriously contended that the word corporation, or incorporation, found in chapter 31, shall have some broader or other meaning than that given to the same word in chapter 23?</p> <p>In so far as a state is a corporation, it is also a person. “ Corporations are artificial persons, bodies politic, possessing some of the attributes of natural persons, and are subject to many of the obligations and duties imposed by law upon individuals.” But it never has been held that, because in this sense a corporation is a person, when this word “ person ” is found in a statute it will be construed to mean or embrace a state. Its meaning may be extended by express definition so as to include the sovereignty, but unless so extended it will not be so considered; and the reason is, that “in construing a statute, words are to be taken in their ordinary sense, unless from a consideration of the whole act it appears that a different meaning was intended.” As an example of this, we refer the court to § 314 of the crimes act, which provides: “ When the term ‘person’ is used in this act to designate the party whose property may be the subject of any offense, such term shall be construed to include the United States, this state,” &e. (52 N. Y. 534, et seq.; 94 U. S. 320, 321; 1 Bishop Cr. Law, §§ 224, 225, 249, 250, 272.)</p> <p>If the state is included in this word in § 88, then the section is broad enough to and does cover all agents and all officers of the state, and certainly the state treasurer. Yet we find that the same legislature enacted a law which took effect at the same time that chapter 23 did (October 31, 1868), covering embezzlement in all cases by said officer, and this law prescribes a punishment, and one much greater than that fixed in said § 88. If the construction contended for by the prosecution in this case be correct, then we have this peculiar condition of things all enacted into law by the same legislature and at the same time, viz., two sections covering identically the same case — a state treasurer liable for the same act to one rule of punishment by said § 88, ch. 31, and to another rule of punishment by § 56, ch. 102.</p> <p>(6) The motion should have been granted, because, in fact and law, the defendant never was the agent of the state of Kansas as therein charged, but he was, on the contrary, the' agent of the board of directors of the normal school, who, it is alleged, appointed him, and of its successors the board of regents during such of the time named in the information as such board had authority, under the law, to sell the school lands. By the act of 1872 (Laws 1872, ch. 189, §1), the-board of directors was authorized to sell the normal school lands, and by § 3 said board was empowered to appoint an agent for the same purpose, who was to be at all times subject to the control and directions of said board, and who was to receive such compensation for his services as said board within certain limits might allow. Our contention is, that under the well-known and long-established rules of law pertaining to principal and agent, these provisions constituted such appointee the agent of the board of directors, and not in any sense the agent of the state. His selection and appointment were to be made by the board; he was to be subject at all times to the control and directions of the board; he was to give such security as might be approved by said board, and the board was to fix and pay him compensation for his services; and when selected and appointed, and his bond or security approved, he became not the agent of the state but the agent of the board; in the language of § 1' of said chapter, “their” (the board’s) “authorized agent.” Even if we did not here have all the legal essentials to constitute the relation of principal and agent between this board and its appointees, and outside of any expression from the legislature of its purpose and intention on the subject, a fair doubt might arise as to whose agent the board’s appointee became; yet, when we find that the legislature, which created the board, empowered it to sell the lands, and, if it saw fit, to appoint an agent to do so also, in express terms and unequivocal language speaks of this agent as their agent, and nowhere intimates that he was to be an agent of the state, it is certainly a forced and unnatural construction of the language and evident intention of the legislature, to claim or insist that he is not the agent of the board. We submit that the law, as it reads, settles this question. (18 Ohio St. 456, 462.) Clearly, the fact that the state through its legislature authorized the appointment of this agent, does not militate against our claim that he was agent of the board, because the power which authorized the appointment had full authority to declare whose agent he was to be, and that power has fixed his status, not only by the general terms of the act, but also by express words. (Regina v. Welch, 61 Eng. Com. Law Rep. 295.)</p> <p>4. One of the essential ingredients necessary to be proved by the state in order to justify a conviction under the third count of this information, was a proper demand for the funds collected, and we propose to show the court that there was not only an absolute failure of proof on this point, but also that the proof clearly demonstrated that no proper demand was ever made. If any demand was ever made, it was made by Dr. Wright and J. H. Crichton, two members of the board of regents, and who were appointed a committee to wait on Bancroft; and this demand, if ever made, was made by these persons about April 18, 1877, or March 2, 1878, or at both these times.</p> <p>[Counsel, after considering the testimony of Wright and Crichton, together with the two resolutions passed - by the board of regents, upon which the committee was appointed- and acted, contended further:]</p> <p>There is not, in the whole record, one word or scintilla of evidence that this direction of the board was ever brought to the notice or attention of Bancroft, either by word of mouth or by writing, by this committee or any one else, or that this committee or any one else ever demanded that Bancroft pay over or deposit these moneys in the state treasury; and, therefore, admitting that language can be so ■distorted for the purpose of conviction in this particular case .as to make these resolutions confer authority on this committee'to make the requirement spoken of in the last one, nevertheless there is, as ’ we have shown, an absolute failure of proof showing any demand, order or requirement coming from this committee, or any one else, to Bancroft to deposit these moneys in the state-treasury.</p> <p>And further: even if we are all wrong on this question of the authority of this committee, it will not be disputed that the proof must conform to the allegations. The charge is not that the board demanded that Bancroft should turn over the moneys to it, nor that a committee of the board demanded he should pay them over to it, but that the board demanded of him “that he pay over into the state treasury” said moneys. The only demand proven, or attempted to be proven, was, thát he pay over the moneys to the committee. We submit that under the law Bancroft had no legal right to deliver these moneys, or any part thereof, to this committee, in ■response to its demand, or to any one else, or to do anything with them save to deposit them where the statute in express terms says they shall be deposited, (Laws 1872, ch. 189, § 4,) and had he been entirely innocent of any wrongdoing or intent, and, having the funds in his hands, paid them over in response to this demand, and any portion thereof had been lost or -failed to reach the state treasury, he would have been responsible for the loss, and his bondsmen .(if any he had had) would also have been liable. We claim that the law does not authorize any one to demand’ or receive this money except the state treasurer; the law has made him .alone the custodian of these funds; he alone has given the bond and necessary security to answer for any default.</p> <p>5. On the 13th day of March, 1873, the only persons or ■body of persons empowered by the state to sell normal .school lands, or to appoint an agent to sell the same, were legislated out of existence (Laws 1873, ch. 135), and from that time until the enactment of the “act to reorganize the-state normal school at Emporia, and to provide for the sale-of its lands,” which took effect March 13, 1877 (Laws 1877, ch. 179), no authority existed anywhere to do these things-</p> <p>After reviewing the legislation upon the subject of the Empolla normal school and the normal school lands, counsel claimed that when the act of 1873 was passed, the board of directors was abolished, the members passed into private life,, and as by the acts of 1866 and 1872 the authority was conferred on the board to sell the lands and appoint an agent,, when it passed out, the agent went with it; and that Bancroft was no more agent for the sale of endowment lands,, after March 13, 1873, than were the gentlemen who composed the board of directors, prior thereto, still the board of directors. The power to sell these lands remained in abeyance until 1877, when the normal school was reorganized, and it was-made the duty of the board of regents to sell the lands under the provisions of the act of 1872. (Laws 1877, p.236.) It certainly won’t do to argue that because Bancroft assumed to act as agent, and on that assumption did sell lands and collect proceeds, that therefore he is estopped to set up this-claim, for whatever law there may be-in this idea, under any circumstances such law has no application when in law there-can be no agency; for the embezzlement of money by one in fact and law a servant or agent of another, when said agent or servant is not authorized to receive it, is not within the-statute, although the party paying it to him supposes he is so-authorized. (2 Whar. Crim. Law, §1942.) In that case as-in this, the money would not come to him by virtue of his-employment. Nor will it do to say that the act of 1873 only substituted the regents in the place of the directors so far as the government of the school was concerned, leaving this-board of directors in full life so far as the lands were concerned, and clothed with all the powers of the act of 1872, because the authority to sell was given to the board of directors of the school, and by the act of 1873 they ceased-to be-the board of directors. And even if this last idea has any foundation, it would not assist the prosecution in this case,, because the whole case, from beginning to end, was conducted and tried on the theory that the regents, and not the directorsT had control of these lands.</p> <p>6. We claim the court erred in refusing to quash the information, and to grant a new trial, and in failing to arrest the judgment, and refusing defendant’s instructions because the defendant vyas only charged, proven and found guilty of embezzling money, when there is no law making any such, offense. Section 88, p. 334, Gen. Stat., reads as follows: “If any clerk . . . shall embezzle or convert to his own use, or shall take, make way with or secrete with intent to embezzle or convert to his own use, without the assent of his master or employer, any money, goods, rights in action, or valuable security, or effects whatsoever, belonging,” &c. Now, ch. 83, p. 177, Laws of 1873, was an act to amend the above § 88 of the crimes act, and is a literal copy of the latter, as far as it goes, except the words are “any goods, rights in' action, or valuable security, or effects whatsoever, belonging,” &c. Now, when we read on to the conversion part of the-section, we find another class of articles mentioned, to wit: “Any money, promissory notes, evidences of debt, or other property which,” &c. Then it continues, “he shall upon conviction thereof be punished in the manner provided in this section, for unlawfully converting such money or other-property to his own use.” It seems self-evident that the word “money” used in § 88, crimes act, had a different meaning from the words “goods,” “rights in action,” “valuable security,” or “ effects whatsoever,” for it is a first principle of construction that a statute shall be so construed as to-give every word a distinct and definite meaning. Now it-may be argued that the word “goods” will include money; but when both words are used together, would any one so-understand them? Certainly not. Then the second subdivision of ch. 104, p.999, Gen. Stat., reads, “Words and phrases shall be construed according to the context and the approved usage of the language.”- To construe the other words used in § 88 according to approved usage and the context, would be that they do not mean money. Then we can take it for granted that “money” has a meaning of its own not found in the other words and phrases of § 88. The last •clause of first subdivision of ch. 104, Gen. Stat., reads: “The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” To construe the first part of ch. 83, Laws 1873, where the word “money” is left out of the act, in accordance with this statutory rule, would be to give to the language adopted in the amendment the same meaning it had in § 88, with “money” omitted, and we would then have no punishment provided for unlawfully converting money to one’s own use, and Bancroft was wrongfully convicted. It will not do to say the legislature made a mistake, and through accident left it out, for the courts of the country do not sit to make laws and supply omissions, accidental or otherwise, of the legislature. Moon v. Mansert, •5 Lans. (N. Y.) 173; State v. Ciarle, 57 Mo. 25; Woodbury & Co. v. Berry, 18 Ohio St. 456. See as to meaning of ■“goods,” “chattels,” &c., Rex v. Beaeall, 1 Carr, and Payne, 454; 11 Eng. Com. Law, 448; Johnson v. State, 11 Ohio St. 324; crimes act, §§78, 90, 92.</p> <p>7. The court certainly committed error in defining what is meant by a fraudulent conversion of money to commit the crime. The court said, in the hearing of jury: “If a party fraudulently converts property to his own use, the crime is completed, and he cannot be heard to say that he intended no fraud, and intended to replace the same. If he intended to commit the wrongful act complained of, it amounts to crime.” In construing what the court meant in the instruction by fraudulent conversion, counsel for the state several times referred to the court’s opinion above quoted, given during the trial. Now it remains to be ascertained whether the court, in the above-quoted opinion, gave a clear definition of what constitutes a fraudulent conversion.</p> <p>Is it possible that if a party does the wrongful act of appropriating another’s money to his own use without the assent of the owner, he has been guilty of embezzlement? If this be law, then there are not a dozen business men in the United States who have not been guilty of the offense. Every man has at some time appropriated money and property of another to his own use without the assent of the owner. The very gist of all these offenses is the fraudulent design of the party appropriating the money or property to thereby increase his own estate to the loss of the estate of the owner; so it seems to us that the intent to cheat and defraud the owner is the very gist of this offense. So, if when a party appropriates the property he intends to replace it at once, and has the means to do so, and it never enters into his head that the owner shall lose anything, or the one appropriating shall gain anything thereby, surely there is no intent to defraud, and cannot be embezzlement.</p> <p>Then, again, how a party can be guilty of a fraudulent conversion without an intent to defraud, beats us; yet the court said, “he could not be heard to say he intended no fraud.” The intent is the very gist of fraud, in a civil action. (Green v. Nixon, 23 Beav. 535; 2 East. 108; Kerr on Eraud and Mistake, 42, 43; 2 Bish. Crim. Law, §357.) '</p> <p>8. The court erred in refusing to allow Bancroft to answer the question showing why he did not make a full report of the lands sold, and in rejecting defendant’s offer of proof; for certainly, if a criminal intent is necessary in embezzlement* the proffered explanation would have been strong evidence to rebut any inference to be drawn from Bancroft’s failure to. make a full report. This seems too plain for argument.</p> <p>1. Does § 88, ch. 83, Laws 1873, charge two separate and distinct offenses ? The first and third counts of the information are not in conflict with each other. They do not state two distinct offenses, but they state distinct conditions under which the one offense of embezzlement may be committed. By proving the facts applicable to either condition, the accused may be convicted of the offense; or by proving the facts applicable to both conditions, he may be convicted as in the case at bar. The first condition of the law is found in the first part of §88, ch. 83, laws of 1873, and the second condition, in the last part of said section ( . . . “or, if any agent shall neglect or refuse,” etc.)</p> <p>These distinct conditions of the law run to the same offense, and are in perfect harmony. The jury found the defendant guilty of embezzling two separate and distinct sums of money. Under the first count he was convicted of embezzling $3,436.18, for which there had been no demand, and none was required by the law. Under the third count he was convicted of embezzling $1,987.24, which he neglected and refused to pay over on demand, as required by that part of the statute on which it was founded. But if this view of the statute be incorrect, and it be true that the legislature in amending the- law intended to create two distinct felonies, yet the judgment cannot for this cause be set aside, because-the defendant was properly convicted on either and on both counts, and was not sentenced for embezzlement on different counts, but the penalty pronounced was five years’ imprisonment, being the maximum limit of imprisonment for committing the acts denounced in either count, and the rights of defendant were not thereby prejudiced.</p> <p>2. Counsel quoted the first count in the information and also' the third count therein, giving each in extenso, and in like manner the complaint and the warrant issued thereon, and argued that the charge in this count and that in the complaint and warrant are the same. The warrant and complaint contain the two essential charges: 1st, that E. P. Bancroft had embezzled and converted to his own use a certain sum of money; 2d, that said money belonged to the-state of Kansas. It was not necessary to state in the warrant the capacity in which he did it. It is well established, that the same particularity of description and statement is-not required in a complaint or warrant that is required in the information — the office of the complaint and warrant being merely to bring the accused into the proper court for trial on the general charge, without reference to the details •of manner of commission, and the. capacity in which the accused may have acted. In this view of the law, it makes no difference that the accused in the complaint is charged as being an “agent of the board of regents,” when he was in fact the agent of the state. The first count alleges, that the defendant converted the said money to his own use, “without the assent of the state of Kansas, or of any other person or persons thereto lawfully authorized; ” “ that said embezzlement was concealed by said defendant . . . till the month .of February, A. D. 1878.” The third count alleges, that demand was made on defendant for the money, and that he “failed, neglected and refused” to pay it into the state treasury; that said money was not lost by means beyond defendant’s control before he had opportunity to make delivery thereof; that his employer did not permit the defendant to use said money, or any part thereof, and that the defendant concealed the fact of his crime until the month of February, 1878.</p> <p>The complaint and warrant both charge fully the crime of embezzlement, and it was not necessary to allege in either the fact that a demand had been made, etc., for these are facts which are only required to be alleged in the information, because they must be proven on trial, and are not necessary in the examination.</p> <p>3. Is the state a corporation within the meaning of the embezzlement'act in question? For the purposes of owning, holding and controlling property, the state is a corporation; and while exercising its power over property, the fact that it is known^by uthe same name as when exercising its sovereignty,udoes not negative,the idea that it is a corporation. The mere fact that the legislature has not declared that the state of Kansas is a corporation, does not negative the idea that it is a corporation for purposes embraced in the act under consideration. It was not necessary for the legislature to declare that the state is a corporation. The very nature of its functions in reference to property proves that it is a corporation within the meaning of the statute in question. The state has two classes of functions. The first may be termed its sovereign power, the second its corporate power. The sovereignty is not wrapped up in the corporate power. The corporate power may be a part of the sovereignty. The fact that the state, in exercising certain corporate powers, is not called a corporation, does not negative the idea that in using such powers, which are common to all corporations, it is itself a corporation. The fact that the state is not commonly called a corporation, does not negative the fact that it is a corporation in the sense used in the statute in question, any more than the fact that because a county is not commonly called a corporation, it is not therefore a corporation. The fact that the term corporation, as commonly used, does not include a state, does not disprove that for certain purposes it is a corporation.</p> <p>[Counsel cited § 15 of Angelí & Ames on Corporations; § 2, ch. 23, and § 314, ch. 31, of Gen. Stat., and contended that there is nothing therein at variance with the foregoing views.]</p> <p>However, should the court determine that the state is not a corporation within the meaning of the statute, the defendant must be held as properly convicted on the third count, which is based on the last part of said section, which applies to “any agent,” which term must include all agents of the state, whether viewed as a sovereign or as a public corporation, in the sense admitted by counsel for defendant. The term must refer to any person, corporation, employer or power (of whatever name) which is not only capable of having an agent, but must perform its duties by an agent. The state need not be. divested of its sovereign character, in order to. own and control property.</p> <p>4. The court did not err in saying in the hearing of the jury: “If a party fraudulently converts property to his own use, the crime is completed, and he cannot be heard to say that he intended no fraud, and intended to replace the same. If he intended to commit the wrongful act complained of, it amounts to crime.” This is the law, and it has been so held in Commonwealth v. Tuekerman, 10 Gray, 173. See, also, State v. Healey, 48 Mo. 531. These authorities were read by the court before he uttered the words above referred to. These words of the court are its decision sustaining the objection of the state to a question of defendant’s counsel put to him, as to whether, at the time he used the moneys mentioned in his “plat report,” “he intended to defraud the state of Kansas or the state normal school.” This same idea, advanced by the court and sustained by these authorities, is embodied in the tenth instruction.</p> <p>On the argument in the court below, the counsel for the defendant made four points against the validity of said information, viz.: 1st, the state of Kansas is not a corporation within the meaning of ch. 83, Laws of 1873; 2d, the information charges the defendant with the embezzlement of moneys: the word moneys, which existed in original section 88, crimes act, is omitted in this chapter 83, Laws of 1873;. 3d, chapter 135, Laws 1873, revokes the agency of Bancroft; 4th, Bancroft had, by reason of commissions, a joint interest in the moneys. The language of the embezzlement statute, § 1, ch. 83, Laws 1873, is: “If any officer, agent, clerk, or servant of any incorporation, or any person employed in such capacity.”</p> <p>Is the state such a corporation as is contemplated by statute? The state acts and is endowed with a dual capacity. In its political action it is a sovereign, but in-its business, financial, and property-owning and operating capacity, it is to all intents and purposes a corporation, as much as a railroad company or a bank. It has perpetual succession, and is represented only by its agents. “Nations or states -are denominated by publicists bodies politic, and are said to have their affairs and interests, and to deliberate and resolve, in common. They thus become as moral persons, having an understanding .and will peculiar to themselves, and are susceptible of obligations and laws. In this extensive sense the United States may be termed a corporation. They are a collective, indivisible body, which can act and be seen only in the acts of those who administer the affairs of the government, and also their agents duly appointed. So it may be said of each state singly; so the king of England is a corporation, and so is parliament.” (Angelí & Ames on Corp., § 15, and from § 6 to § 15 inclusive.) “Although not styled such, each one of the United States, in its organized political capacity, is in effect a public corporation. Corporations, however, as the term is commonly used, do not include states, but only derivative creations, owing their existence and powers to the state, acting through its legislative department. Like corporations, however, a state, as it can make contracts and suffer wrong, so it may for this reason, and without express provisions, maintain in its corporate name actions to enforce its rights and redress its injuries.” Dillon on Munic. Corp., §14, and cases cited; Delafield v. Illinois, 2 Hill (N. Y.), 159, 162; 26 Wend. 192; 8 Paige, 531; Indiana v. Noram, 6 Hill (N. Y.), 33; State v. Delesdenier, 7 Tex. 76'; People v. Assessors, 1 Hill, 620. See also, The State v. Smith, 13 Kas. 292, 293.</p> <p>It seems to us that the understanding and intent of the legislature must have been, that all officers and agents of any individual, partnership, incorporated company, or public corporation, including the state, were included in the embezzlement law of 1873. If, as was decided in State v. Smith, a county officer is included in that law, and is liable for embezzling county money, where is the distinction to be drawn in reason which shall allow a state officer or agent embezzling state money to escape? Is not the reason which requires the punishment of the county officer for embezzling county moneys, equally conclusive when applied to the case of an agent of the state for embezzling its moneys? ' Is the one any less a crime than the other? The county treasurer is the agent of the state to collect state tax. .(2 Kas. 61.) The legislature must have known that the state, in performing its vast corporate functions, must own property; must receive •and dispose of property, both real and personal; must collect and pay out moneys, and build buildings, and have a multiplicity of transactions; that in the performance of all these corporate acts, it must be represented by its agents; that these agents must handle and disburse its moneys; must sell and dispose of its vast property; receive and receipt for the moneys •derived from the sales thereof; and execute conveyances, bills •of sale, and acquittances. And if a criminal law is to be applicable to a county,- city, township or school-district officer, for a malperformance of his duties, why should an agent of the state be exempted from the operation of the same general law? Is human nature any nearer perfect in the one position than the others? Does a dishonest or corrupt county officer, whom the chances of politics may seat in a state office, become thereby regenerated ?</p> <p>We apprehend that, by the general language of the embezzlement law of 1873, the legislature intended to cover all ■cases of embezzlement by any officer, servant or agent of-any body, from the sovereign state to the private individual; that it was the wrong they intended to punish, by whosesoever agent committed. The legislature never intended to offer a premium on embezzlement of state funds. The legislature has nowhere provided any criminal law other than the general law of embezzlement as being specially applicable to these several agents of the state, or to any agent of the state, •except the state treasurer; and the law applicable to him (§§ 56, 57, pp. 983-4, Gen. Stat.) makés no substantial change in the general embezzlement law, except to increase the punishment. This fact, we think, tends very strongly to the conclusion that the legislature considered every other embezzlement except by the state treasurer as covered by the general embezzlement law of 1873, and his embezzlement was only provided for in a separate law so as to increase the punishment; (and it is very questionable, under the rulings of this court, if that state treasurer embezzlement law will stand the constitutional tests under the rules laid down in Bailey v-Comm’rs Sedgwick Co., and Swayze v. Britton;) so that in an information against a state treasurer, the prosecution might have to proceed, if at all, upon the general embezzlement law of 1873. It will be observed that the embezzlement statute-of 1873 consists of two parts, the first part of which we have-discussed, and it seetns to us that the state is included within the term “corporation,” as used in the first part of said law. The second part proceeds: “Or if any agent shall neglect or refuse to deliver to his employer or employers, on demand, any money, promissory notes, evidences of debt, or other property which may have come into his possession by virtue of such-employment, after deducting his fees as attorney, charges as agent, or stipulated commission for making collection of such money, unless the same shall have been lost by means beyond' his control, before he had opportunity to make delivery thereof to his employer or employers, or the employer or employers have permitted them to use the same, he shall, upon conviction thereof, be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.”</p> <p>The original first count was based on the first part of the section, and the original third count was intended to be based upon the portion above quoted, which is an addition to our old law.</p> <p>It seems to us that under this third count (the second was-stricken out by the court below), there can be no question-that the legislature intended to gather in agents of the state,, as well as anybody else. The language is as broad as it can be made, “or if any agent,” etc. The term “agent,” as there used, is not limited, nor is it attempted to be limited,- by any words, but it is expanded to the fullest extent of our language. Any agent, as there used, means every kind of an agent, and an agent of anybody or everybody who is capable of being represented by an agent. The state can be represented in no other way than by agents — therefore an agent of the state must be included in the term any agent, as there used. • The third count charges that the defendant was acting as agent, etc. This is sufficient, (Bishop Crim. Law.)</p> <p>The second point made is, that in the statement of the things of which embezzlement may be committed, in the first part of said section, to wit, “secrete with intent to convert to his own use, without the assent of his employer, any goods, rights in action, or valuable security or effects whatsoever, belonging,” etc., the word “money” is omitted. It will be observed that the word “money” was contained in the Compiled Laws, and also in the General Statutes, but omitted in the act of 1873. This, it is claimed, evinces an intention on the part of the legislature to take moneys out of the list of property of which embezzlement can be committed. In other words, to enact severe penalties against embezzling those things which are seldom embezzled, and to make the embezzlement of money, which is about the only thing that embezzlement is committed of, no crime. This construction can hardly be seriously contended for in this court. We suppose that the word “money” was inadvertently left out of the law of 1873, as the context shows clearly that the legislature supposed and understood money to be included. (See end of section.) When it uses the language, “he shall, upon conviction, be punished in the manner provided in this section for unlawfully converting such money or other property to his own use,” the words refer to those things stated in the first part of the section, of .which embezzlement may be committed, viz., “any goods, rights in action, or valuable security or effects whatsoever,” showing that they are all meant; and if we are wrong in this, the word “moneys” is included in the term “effects,” anyway. (See Bouvier’s Law Die., title, Effects; Web. Die.; Worces. Die.)</p> <p>Besides, this very question was squarely presented to this court in the case of The State v. Smith, supra, and also in the cases presented with it, viz., The State v. Calvin H. Graham,. and The State v. Sidney S. Smith, 13 Kas. 299, 300. In each of these cases, the information alleged the embezzlement by the defendant, of moneys. In each ease, a motion to quash was filed, on the ground, among others, that the information did not state facts sufficient to constitute a public offense. In the first case, the court below overruled, and in the last two cases the court below sustained, the motion to quash, and the state appealed. This court reversed the orders of the court below in the last two cases quashing the informations, thus holding that embezzlement of money could be committed. This question concerning the omission of the word “money” from the law of 1873 was argued in the Coffey county case, and pressed upon that court, and the same question was presented and argued in this court in the brief of the then county attorney of Coffey county, who took that case up. In that case, the embezzlement was charged to have been committed after the law of 1873 took effect, and the second squarely raised this question; and the county attorney’s brief names this as one of the points made in the court below why the information ought to be quashed, and it was quashed in the court below; and this court reversed the order of the court below quashing it, and thus holding that the said information under the act of 1873, charging the embezzlement of money, was a good information so far as this question is concerned.</p> <p>As to defendant’s plea in abatement, which plea was tried by a jury, which upon the issues joined, found for the state: we think no error was committed therein by the court below. No technicality is required in a • preliminary examination. The examination in this case was undoubtedly sufficient to fully notify the defendant of the general nature of the charges to which he was expected to answer. (The State v. Smith, supra.) The demand was well proved. The defendant deliberately made a statement for the board at the time he turned over the $2,800 that that amount was all he had received; that the list was all he had sold of the lands, when he then held and had used about $7,000, which was unaccounted for at that time. That he turned over this $2,800, and- stated it to be a full statement and settlement, estops him in any event from denying that a demand was made. In appellant’s brief (p. 24. XI), the court refused to allow Bancroft to answer a question showing why he did not make a full report of the lands sold, etc.. This was not error. Commonwealth v. Tuekerman, 10 Gray (Mass.), 173.</p> <p>The third point made is, that chapter 135, Laws 1873, revokes the agency of defendant; that up to that time the normal school was governed and managed by a board of directors; that if defendant was appointed by the board of directors in 1872, this law of 1873, changing them to regents, annulled everything, and wiped out all appointments previously made. We do not so understand it. Their duties were not changed. It was simply a change in name of the management. The board of directors were the agents of the state, and a new general agent, styled board of regents, appointed in their place. The defendant, sub-agent of the state, was not displaced any more than a local .agent of an insurance company would be who had been appointed by a general agent who had been relieved by the parent company. The law did not attempt to repeal the law of 1872, authorizing the sale of normal school lands.</p>

Error from Rice Distriet Court. Action of forcible entry and detainer, brought by Conaway against Gore and Reed. Trial at the June Term, 1878, of the district court, and judgment for defendants. Conaway and wife bring the case here.

Error from Marshall District Court. At the December Term, 1877, of the district court, Thompson had judgment against The State for costs. The State brings the case here. The facts appear in the opinion.

The defendant was tried in April, 1878, upon an information charging him with murder in the first degree in the killing of one John S. Goodwin, in Chautauqua county, on or about the 21st day of September, 1877. Upon the trial, the jury returned a verdict of guilty of murder in the second degree. The court overruled the motion for a new trial, and sentenced the defendant to imprisonment at hard labor for the period of ten years.

Error from Shawnee District Court. Action by Durham against the Carbon Coal and Mining Co., to recover $2,000 claimed to be due on a… Held: that when by its charter powers are conferred on a corporation in obscure and ambiguous language, and it becomes a question of legitimate construction as to what powers the corporation possesses, that in such a case, where the corporation deliberately decides that it has such a power, and acts upon it, and has incurred liabilities…

Error from Linn District Court. Action on a promissory note, brought by Coleman against' Abbott, and judgment for the plaintiff at the July Term, 1877, ■of the district court. The defendant Abbott brings the case here. The opinion contains a sufficient statement of the facts.

Error from Greenwood District Court. At the May Term, 1878, the district court affirmed an order made by the probate court of Greenwood county, Octo'ber 25, 1877, that G. W. Donart, administrator of the estate ■of James M. Church, deceased, should sell certain land belonging to the above estate, to wit, the S. J of the S.W.-J of sec. 11, and the N. J of the N.W. ^ of sec. 14, in township 28, •south, of range 12, east, in said county, in order to pay certain debts against the…

Error from Johnson District Court. Action brought by Wallace against Eliza Hall and Geo. W. Hamilton, to recover damages for his forcible ejection from the premises occupied by him, under a written lease from one Geo.

Error from Saline District Court. At the November Term, 1877, of the district court, Ebusband and Short had judgment against Johnson, who brings the case to this court. The facts, pleadings and proceedings sufficiently appear in the opinion.

Error from Jefferson District Court. In June, 1877, the Kansas Central Railway Company made written application to the judge of the district court of Jackson county for the appointment of commissioners to make the appraisement and assessment of damages of a right of way for its road through that county. The commissioners were appointed, and subsequently made and filed their report in the office of the county clerk.

Error from, Atchison District Court. This action was brought to recover damages for personal injuries, which the plaintiff in error (plaintiff below) alleged he received while crossing the railroad of the defendant in error (defendant below), in Atchison county, on or about. October 2, 1875. On January 27, 1872, the plaintiff, with his wife, executed a deed to the defendant, conveying a right of way for a single or double-track railway through their lands in said county.

At the June Term, 1877, of the district court of Jefferson county, Ireland had judgment against the Railway Company for $247 damages, and for costs. The said Company brings-the case here.

Error from Woodson District Court. In July, 1870, Neosho Falls Township, in Woodson county, issued bonds for the construction of a bridge across the Neosho river, in said township. Held: possibly, that these defects do not constitute a defense to a suit brought by an innocent holder, but in such suits it is a matter of indifference whether the bonds were issued lawfully or unlawfully, or whether in fact there was any vote of the people.

Error from Sedgwick District Court. • On the 28th day of August, 1876, the parties to this proceeding entered into a written contract whereby the defendant in error, plaintiff below, undertook to- move a building for the plaintiff in error, defendant below, from where it then •stood, on the corner of Main and Third streets, in the city of Wichita, to the corner of Emporia and Douglas avenues, in the same city, and to do certain other work in connection therewith, for which…

At the September Term, 1876, of the district court of Hárvey county, the Board of Commissioners of said county, as plaintiff, recovered a judgment against Monger and four other defendants, who bring the casé to this court for review.

Error from Montgomery Eistriet Court. The facts in this case are substantially as. follows: On or' about the 13th day of January, 1876, the plaintiffs in error,. by virtue of a chattel mortgage given by one B. Grubb to T. O. Ford, and by him assigned to said plaintiffs in error, took possession .of a certain lot of corn, grown on one hundred acres of land in Montgomery county.

Error from Shawnee District Court. This suit originated in the presentation of a claim by the defendant in error against the Estate of E. W. Baker, deceased, to the probate court of Shawnee county, for allowance.

Error from Shawnee District Court. The plaintiff in error, plaintiff below, obtained an order from the district court of Shawnee county for an execution for the sum of $800 against the property of the defendant, as a stockholder in a corporation known as the Topeka Rolling Mill Company, under § 32, ch. 23, Gen. Stat., 198.

Error from Wyandotte District Court. Action brought by Downs against Reeve, to foreclose a vendor’s lien upon the S.W. ¿ of S.W.J of sec. 8, township 11, range 24, east, in Wyandotte county. The facts, pleadings and proceedings are sufficiently stated in the opinion. Trial by the court, at the April Term, 1878, and findings and judgment for the plaintiff. New trial denied, and the defendant Reeve brings the case here.

Error from Doniphan District Court. Action brought by the Atchison National Bamk against Frank Sproul and five others, to subject certain land situated in Doniphan county to the payment of a certain judgment rendered in favor of the Bank, and against Sproul. The facts are substantially stated in the opinion. Trial by. the •court, at the December Term, 1877, and findings and judgment for the plaintiff. New trial denied, and the defendants bring the case to this court.

Error from Cowley District Court. At the December Term, 1878, of the district court, Yount, as plaintiff, had judgment against Headrick, as administrator, etc., as defendant. New trial denied, and Headrick brings the case here. The fact's are sufficiently stated in the opinion. The district court ought to have sustained the demurrer of plaintiff in error to the petition of defendant in error.

Error from, Atchison District Court. At the November Term, 1877, of the district court, Wad-dell, as defendant, recovered judgment against John W. Palmer, John Palmer, and James W. Palmer, as plaintiffs, in an action by them brought against Waddell to recover damages for unlawfully digging ditches and erecting and maintaining certain dams and obstructions in a certain water-course, whereby the water was turned away from defendant’s lands, and upon the lands of the said…

Error from, Marshall District Court. Action brought by Hadley against the Railroad Company, •to recover damages for injuring and for killing certain stock belonging to the plaintiff. This action came on for trial at ¿he August Term, 1877, and a jury being waived, the case was submitted to the court ou the pleadings and an agreed statement of facts, contained in the opinion, infra. Judgment for the defendant, and against Hadley, who brings the •case to this court.

Error from Atchison District Court. Action brought by Ogden, against P. L. Hubbard, and Ellen R. Hubbard, on a promissory note and a mortgage by them executed to the plaintiff. At the March Term, 1877, the case was submitted to the court, without a jury, upon the pleadings with the exhibits thereto attached, and upon an agreed statement of the facts of the case. Findings and judgment for the plaintiff. Ellen R. Hubbard brings the case to this court.

Error from, Osage District Court. At the April Term, 1878, of the district court, Norton, as plaintiff in an action upon an attachment bond, recovered, against defendants Hoge, as principal in said bond, and Dolbe, Vaneil, Hoover, and McCullough, as his sureties thereon, a judgment for $468 damages, and for costs. The facts are fully stated in the opinion. The defendants bring the case to this court.

Error from Saline District Court. Defendant in error, John Geis, who was plaintiff below, on May 5th, 1877, commenced this action in the district court of Saline county against the plaintiff in error, The Board of. Commissioners of Saline County, the defendant below, to recover on nine tax-sale certificates.

Error from Lyon District Court. This action was commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover an amount of money alleged to be due the defendant in error as assignee of certain tax certificates.

At the April Term, 1878, of the district court of Saline county, Goodnow, as plaintiff, recovered a judgment against the Board of. Comm’rs of Saline County, as defendant. The Board brings the case to this court for review.

Error from Atohison District Court. Action brought by Butcher against Auld, to recover the sum of $3,500 and interest thereon, the value of certain bonds and coupons issued by the city of Atchison, Kansas, and belonging to Butcher, which bonds plaintiff alleged that defendant had converted to his own use.

Error from Atchison District Court. Action brought by Abeles, against Cochran and four other defendants, charging both a special contract with them for the sale of one thousand shares of the capital stock of the German Savings Bank, of- Leavenworth, August 23, 1873, and on all of which shares there had been paid at that date by plaintiff to said bank the sum of twenty dollars on each share thereof, and also in assumpsit for $23,300, the alleged value of said shares of stock…

Error from Douglas District Court. On December 10, 1877, William A. Simpson commenced an action against Joseph J. Orippen, in the… Held: (p. 186,) that until a party has shown to the state court that it has no right to “ proceed further with the cause,” that court may proceed with the action. “Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended.” See, also, Gold Washing Co. v. Keyes,…

Two cases, brought here by petition in error from the district court of Douglas county, in each of which T. A. Hurd and O. A. Bassett appeared for plaintiff in error, and 8. O. Thaeher for defendant in error James S. Crew.

Two cases, brought here by petition in error from the district court of Douglas county. In each of these cases, T. A. Hwrd and O. A. Bassett appeared for plaintiff in error, and S. 0. Thaeher for defendant in error James S. Crew.

Error from Allen District Court. At the June Term, 1878, of, the district court, Dozer, as defendant, had judgment against Wolf, as plaintiff, who brings the case here. All necessary facts appear in the opinion.

Original Proceedings in Quo Warranto. The petition herein was filed in this court February 19, 1879; the answer thereto, by the Lawrence Bridge Company, C. W. Babcock, Edward Thompson, Jerre Brooks, and •Charles Pearsall, the defendants, was filed March 21,1879; and the reply thereto, April 21,1879.

Error from Wilson District Court. Action brought by Wright against Kuhuke, to recover $50 ■deposited by plaintiff with defendant, as a stakeholder on a bet on a horse race. At the February Term, 1878, of the •district court, Wright had judgment against Kuhuke, who brings the case here.

<p>At the March Term, 1878, of the Doniphan district court, Hastings & Saxton, as plaintiffs, had judgment against Johns, as principal, and Frank M. Tracy, and E. D. Shumate, as sureties. The action was brought upon the official bond of said Johns, as constable of Centre township in said county. Johns and his sureties bring the case here.</p>

Error from Wyandotte District Court. At the December Term, 1877, of the district court, Sehliefer, as plaintiff, had judgment against the Wyandotte and Kansas City Gas Co., as defendant, for $223.89, and for costs. The Gas Company brings the case here on error. The facts are sufficiently stated in the opinion.

Information charging Joseph T. Benson with an assault with intent to kill one Charles Finch, in Phillips county, Kansas. At the October Term, 1878, of the district court, Benson was tried, convicted and sentenced, upon the above ■charge, and from said judgment he now appeals to this court. 'The opinion contains a sufficient statement of the facts.

At the February Term, 1879, of the district court, Alexexander Cole was tried for the crime of grand larceny, found guilty thereof as charged, and sentenced accordingly. From such sentence and judgment he now appeals to this court. The facts appear in the opinion.

Original Proceedings in Habeas Corpus. On the 13th day of May, 1870, a true bill of indictment was returned into the district court of Greenwood county by the grand jurors thereof, against Geo. W. Petty, for the willful, deliberate and premeditated killing of one Eobert Clark, on the 27th day of May, .1866. Petty was arrested in 1878, and first tried upon the indictment at the May Term, 1878, of said district court.

At the February Term, 1879, of the district court, Hagan' was convicted of grand larceny, and from such conviction he now appeals to this court.

Error from Doniphan District Court. Action brought by a landlord, to dispossess a tenant for failure to pay rent for leased premises. The defendant filed an answer, setting up title in himself to the property, under a tax deed acquired after the lease. The case was commenced on February 27,1878, before a justice of the peace, and taken to the district court of Doniphan county. It was tried at the March Term of that court for 1879, a jury being waived.

At the February Term, 1878, of the district court of Brown county, Dowell as plaintiff had judgment against M. D. Noble- and E. T. Noble as defendants, who bring the case here.

At the November Term, 1878, of the district court, George Jansen was charged with, tried for and convicted of the crime of burglary in the second degree, committed August 2, 1878, in the saloon building of M. Marcus, in the city of Atchison. From such conviction he now appeals to this court. The facts are sufficiently stated in the opinion. The essential elements of burglary are a breaking and an entry with intent to steal or commit a felony.

Original Proceedings in Mandamus. Action brought in this court by George W. Reed against John Francis, treasurer of state, to compel the defendant, as such officer, to pay a certain bill of plaintiff for printing the official syllabi of the decisions of the supreme court of Kansas. The facts are sufficiently stated in the opinion.

Error from, Shawnee District Court. At the January Term, 1878, of the district court, Sargent and Disbrow, as defendants, had judgment against Ransom, as plaintiff, who brings the case here on error. All necessary facts are stated in the opinion. There'is no difference in principle between this case and that of Harrison v. Andrews, 18 Kas. 541.

Error from, Lyon District Court. At the September Term, 1878, of the district court, School District No. 37, Lyon county, as defendant, recovered a judgment against C. F. Conklin and J. Q. Ames, partners as Conklin & Ames, as plaintiffs, who bring the ease here on error. The facts are stated in. the opinion. This case involves the construction of chapter 122, Laws of 1876.

Error from Franhlin District Court. The substantial facts in' this case are fully stated in the findings of the district court, which are as follows: “ This is a suit on two appeal - bonds, of which true copies are annexed to the petition. The action mentioned in said appeal bonds was tried by this court at the May term, 1878, and the court rendered judgment therein for the said C. W. Goodin.

Error from Marshall District Court. Action brought on a school - district treasurer’s bond, given to School District No. 27, of Marshall county, dated' April 18, 1873, to recover a balance alleged to be due to the district. Moses Saville was the treasurer, and the principal-on the bond, and John L. Freeland and Henry Knowllon were the sureties. Trial was had by the court, with a jury, at the December Term of the district court of said county for 1875.

Error from Allen District Court. It appears from the case-made, that the petition of the Board of Commissioners of Allen County was filed against certain lots and other property, together with the owners thereof, in the district court of that county, in the year 1877, in accordance with the provisions of ch. 39 of the Laws of 1877. Thereafter, proceedings were had in all respects in conformity with the provisions of said act.

<p> Error from Brown District Court. </p> <p>At the April Term, 1877, of the district court, Marbourg •and four others, as defendants, recovered judgment against ■the First National Barth of Alton, Illinois. The Bank brings the case to this court for review.</p>

Error from, Riley District Court. July 28, 1875, Jesse Ingraham made his note, payable to the order of Josephus Warner¡ for $2,531.89, payable sixty days after date, which note Warner soon after indorsed to the plaintiff. The plaintiff recovered a judgment on this note against Ingraham and Warner, in the Eiley district court, March 6, 1876, for $2,229.80, to bear twelve per .cent, interest.

At the April Term, 1879, of the district court, George Fodder was tried for the crime of burglary, found guilty thereof as charged, and sentenced accordingly. From such judgment he now appeals to this court.

Error from Harvey District Court. Maria Wiebe sued J. W. Crawford upon certain promissory notes, alleging that the notes were given for lumber furnished to Crawford, and used by him in the erection of a dwelling-house on a lot in the city of Newton, occupied by Crawford and his family as a residence.

Error from Atohison District Court. Action to foreclose a mortgage given by Hehelnlmmper and wife to the German Building and Savings Association, of Atchison, Kansas. Trial by the court, without a jury, at the November Term, 1877, of the district court, when special findings of fact were made, and a decree was entered foreclosing the mortgage. The opinion contains a sufficient statement of the facts. The defendants bring the case here for review.

Error from, Chase District Court. Action brought by Emetine Eilcenberry, September 3, 1878, to recover from the Township of Bazaar, in Chase ■county, damages for personal injuries alleged to have been occasioned on account of the impassability of a public highway.

Error from Sedgwick District Court. Dependants in error obtained judgment against the-plaintiff in error, Jenkins, in two suits before a justice of the peace, filed transcripts thereof in the district court, caused-executions to be issued thereon, and levied upon certain real estate belonging to the plaintiff in error. The sheriff in his-return said that he levied the executions subject to a'mortgage made by plaintiff in error to H. G. Rose and B. H. Steadman.

Error from Allen Distriot Court. Action brought by the Board of Commissioners of Allen* County, against School District No. 15, in said county, to recover from said district the proportion of certain taxes which it had received out of the county treasury on certain government lands not taxable, which taxes had been refunded by the county. The opinion states all necessary facts. Trial at-the June Term, 1878, of the district court, and judgment for-the plaintiff.

Error from, Shawnee District Court. Action brought by Knox against S. P. Wade, upon two certain promissory notes made by defendant to plaintiff, amounting to $1,590, with interest at the rate of twelve per cent, per annum from May 3,1878, and to foreclose a mortgage executed by Wade to Knox upon the west half of section 35, township 11, range 13, in Shawnee county, to secure the payment of the notes aforesaid.

Criminal prosecution for an escape. On the 19th day of October, 1878, there was filed in the district court of Marion county an amended information, in words and figures as follows: [Court, and Title.) “In the name and by the authority of the state of Kansas, I, C. Reed, county attorney in and for the county of Marion, in said state of Kansas, duly elected and qualified as such according to law, now here in open court information give, that one Joseph Hollon, late of Centre…

Error from Leavenworth District Court. On the 24th of August, 1870, the Leavenworth Educational Association, being seized in fee of the east part of block thirty-four in the central subdivision of Leavenworth city, known as “ Maplewood,” gave a note for $5,000 to plaintiff’s intestate, Andrew Stuart, and a mortgage upon the premises described, to secure the payment of the note; which moi’tgage was duly recorded, August 30, 1870.

Error from Chautauqua District Court. Injunction brought by Hart against Mouriquand and the sheriff of Chautauqua county,.to restrain the sale of certain land claimed by Hart as his homestead. All necessary facts are stated in the opinion. Trial at the March Term, 1877, of the district court, and judgment for Hart and against Mouriquand, who brings the case here.

Error from Washington Eistrict Court. Action brought by Selena Mullock against John Mullen, a •constable of Little Blue township, in Washington county, and E. E. Ballard and Thomas Murphy, sureties on his official bond, to recover the value of a mule colt.

Error from Saline District Court. Action originally brought by Campbell against Warner, before a justice of the peace of Saline county, on September 18, 1878. Plaintiff obtained an order of attachment in the action against the goods of the defendant, and thereafter the defendant obtained a change of venue on account of the alleged prejudice of the justice of the peace before whom the case was commenced. The action was then transferred to another justice of the county.

Error from Doniphan District Court. Ejectment for lot six, in block thirteen, in Wathena, Doniphan county, brought by Rullman against Hier.

Error from Franhlin District Court. Replevin by John Heolder for certain vehicles of the aggregate value of $490, claimed by him as his own, and held by Ef. C. Branson under an alleged lien thereon for advances-for freight, storage and insurance. The action was tried at the September Term of the district court of Eranklin county for 1878, by the court, a jury being waived.

Error from Franklin District Court. Replevin brought by Shaffer & Becker, partners, as plaintiffs, to recover the possession of. certain stock-hogs. The plaintiffs claimed they were the special owners of two hundred and fifty hogs, by virtue of a certain chattel mortgage executed to them by one D. B. Mott, on October 15th, 1877, and that the hogs sued for were included in said mortgage.

Fh'ror from Shawnee District Court. Action brought by the Citizens’ Building and Savings Association, of Paola, Kansas, against Massey and another, upon a certain promissory note and mortgage by them executed to the said Association. The action was commenced in Miami county, but duly removed to Shawnee county, where it was tried February 10, 1876, and judgment rendered against the defendants, who bring the case here. The facts are sufficiently set forth in the opinion.

Error from Atchison District Court. ' Action, under chapter 94, Laws of 1874, brought by But-man against the Railroad Company, to recover $30 damages for killing a 'cow belonging to the plaintiff. Trial at the June Term, 1878, of the district court, and judgment for Butman for $29.16 damages, $25 as attorney’s fee, and for costs. The Railroad Company brings the case here.

Error from Lyon District Court. P. B. Maxson commenced an action against James 8. Held: that the statute of limitations has no application to this case; also, that the plaintiff is not entitled to receive back the money paid upon the deeds, or the subsequent taxes paid thereunder. Judgment for defendants, and against Maxson, who brings the case here for review.

On the 31st of October, 1878, the court below, on the relation of J. R. Kennemuir,. granted a peremptory writ of mandamus against the plaintiffs in error (defendants below), who were then the commissioners of Rush county, to compel them to convene as such board of commissioners, and order an election for the relocation of the county seat of said county. To-reverse this decision of the court below the commissioners of said county have brought the case here.

<p> Error from Harvey District Court. </p> <p>Action brought by S. Kingsbaker, and M. Kingsbaker, partners as Kingsbaker & Brother, against M. C.' McPherson, John McPherson, and Lucy V. Darrow, to set aside a certain •deed alleged to have been made to defraud creditors. Trial •at the September Term, 1878, of the district court, and judgment for the plaintiffs. The defendants bring the case to this court.</p>

Error from Bourbon District Court. August 16, 1869, the Agricultural, Horticultural and Mechanical Society of Bourbon county, Kansas, theretofore duly incorporated under the laws of this State, executed and delivered to the City of Fort Scott, in part payment of the purchase-price of certain land in said county, its certain written obligation, secured by a mortgage on said land, which mortgage was duly recorded, August 24, 1869.

Error from Crawford District Court. Replevin brought by Hough against Wolf, agent for the Mo. R., Ft. Scott & Gulf Rid. Co., to recover the possession of certain goods of the alleged value of $75, and for $25 damages for the wrongful detention thereof. Trial at the January Term, 1879, of the district court, and verdict and judgment for plaintiff. New trial denied, and the Railroad Company brings the case here.

Error from Atchison District Court. Action brought by Culver against McNamara for forcible detainer, the plaintiff alleging in his complaint the wrongful detention by the defendant of lot 5, in block 11, in the city of Atchison, and claiming ownership, etc. The defendant made a duly verified answer to the complaint, denying the plaintiff’s ownership and right to the possession of the premises, and setting up that he was the legal and equitable owner of the same, and that the…

Error from Atehison District Court. Motion filed by Ellen R. Hubbard, July 19, 1879, wherein she moved the court to order a supplemental mandate upon the decision in this action (p. 363, ante), to be sent to the district court, ordering specifically the modification to be made of such judgment and decree, so that the status of Mrs. Hubbard’s property shall be definitely settled.

Error from Pawnee District Court. At the June Term, 1878, of the district court, Cross, as plaintiff, had judgment against Bratton, as defendant, who-brings the case to this court. A sufficient statement of the facts appears in the opinion, infra. The whole question is to be determined by ascertaining; the correct definition of the words “settled upon,” in connection with the words “actual settlers,” as used in the statute concerning school lands.

Error from Neosho District Court. Ejectment brought by Tolley against Gatton, to recover the possession of a quarter-section of land in Neosho county, together with certain damages for the detention thereof, plaintiff claiming that he was a tenant in common with his ■brothers and sisters in the premises, and that as such tenant he was entitled to the possession of all the real estate as .against Gatton, whom he claimed was a stranger and trespasser; and that, as he claimed,…

Error from, Wyandotte District Court. Action brought by Dunn, the owner of lots 38 and 39, in block 133, in the city of Wyandotte, against Knox, the holder of a tax-sale certificate thereon. Trial by the court, at the December Term, 1878, upon an agreed statement of,,facts. Findings and judgment for plaintiff. New trial denied, and defendant ATnorc.brings the case here.

Action brought by Connelly in thedistrict court of Atchison county, against the Railroad Company, to recover damages alleged to have been sustained by reason of the wounding and injuring by defendant of certain stock belonging to the plaintiff. Trial at the June Term, 1878, and verdict and judgment for the defendant. New trial refused, and Connelly brings the case here.

At the July Term, 1878, of the district court of Wyandotte county, Jennie M. James, as administratrix of the estate of David E. James, deceased, and five others, as plaintiffs, recovered a judgment against Funk, as defendant, who brings the case to this court.

Error from Leavenworth District Court. Action by Fitzsimmons, by his father as his next friend, to recover damages for personal injuries sustained. Trial at the March Term, 1878, of the district court, and verdict and findings for the plaintiff for $500 and costs. Newtrial denied, and the defendant brings the case here for review. The facts are stated in the opinion.

<p> Error from Miami District Court. </p> <p>■ Action brought by McBratney against J. F. Chandler and J. L. J. Chandler, as administrators of the estate of Charles Sims, deceased, for moneys received by said Sims in his lifetime, belonging to the said plaintiff, as attorney’s fees in the prosecution of the matter of the Miami Indians of Kansas, in the city of Washington, D. C. Trial at the May Term, 1876, of the district court, and judgment for the defendants. McBratney brings the case to this court. The opinion contains a sufficient statement of the facts.</p>

Err.or from Cherokee District Court. At the April Term, 1879, of the district court, the Jasper-Co. Bank, of Missouri, as plaintiff, had judgment against the said Salamanca Township, as defendant, which brings the case to this court for review. The facts are fully stated in. the opinion.

Error from Douglas District Court. Action for divorce, brought by Maggie 0. Smith against Ethan A. Smith. Trial at the April Term, 1879, of the district court, and judgment for defendant. The plaintiff brings the case to this court. The facts sufficiently appear in the opinion, infra.

Error from Miami District Court. Action for an unlawful and forcible entry and detainer, brought by Campbell against Coonradt. Trial at the February Term, 1879, of the district court, and judgment for the defendant. Campbell brings the case to this court. The facts are set forth in the opinion.

<p>1. One-Mill Tax, Repealed. Section 4 of ch.149 of the Laws of 1879, p. 270, works by implication a repeal of all prior enactments providing for the levy of a one-mill tax for the state annual school fund.</p> <p>2. --Said section is not invalid by reason of conflict with $ 16 of art. 2 of the state constitution.</p>

Error from Labette District Court. ' Action by Conroy against Perry, to foreclose a mechanic’s lien. Trial at the May Term, 1878, of the district court, and judgment for plaintiff. The defendant brings the case to this court. The facts appear in the opinion.

Error from Osage District Court. March 1, 1879, by the consideration of the judge of the-fifth judicial district, R. A. Wheat, Joseph Wheat, H. D. Shepherd, C. J. Bodine, and H. H. George, a justice of the peace-of Osage county, and J. C. Adams, a constable of Burlingame township in said county, defendants in error, obtained an order dissolving a certain temporary order of injunction theretofore obtained in an action then pending in the district court of Osage county in said…

Error from Miami District Court. At the February Term, 1879, the district court sustained' a demurrer to the amended petition filed by the Paola Town Company against Krutz, and gave judgment accordingly for the defendant, and against the plaintiff Town Company, which brings the case here. The opinion has a sufficient statement of the facts.

<p> Error from Labette District Court. </p> <p>Action for false imprisonment, brought by Qermond .against Littleton, in the district court of Labette- county. The case was tried, as appears from the case-made, on December 5, 1877, by the court with a jury, and a verdict for Qermond against Littleton returned for $500 damages. On December 29, 1877, the court granted an order purporting to set aside a judgment rendered November 24, 1877. The plaintiff excepted, and to reverse that order he brings the •case here for review.</p>

Error from Doniphan District Court. At the September Terra, 1878, of the district court, Mudenger, as plaintiff, had judgment against Holland, as defendant, who brings the case to this court. The facts sufficiently appear in the opinion.

Error from Leavenworth District Court. On the 1st of November, 1873, Geo. Held: but not the person, and no personal judgment can be rendered against such mortgagor. The land only is liable. (18 Iowa, 157; 1 La.

Error from Cowley District Court. Action by Trezise against John W. Smiley and five others, defendants, to foreclose a certain mortgage. Trial at the December Term, 1878, of the district court, and findings and judgment for the defendants, Joel F. Lacy and Amanda E. Lacy. The plaintiff brings the case to this court. The facts appear in the opinion.

Error from Leavenworth District Court. Action brought by the Home Building Association, of Leavenworth, Kansas, against Martin Glynn and his wife, Catharine Glynn, upon a note and mortgage by them executed to said association. The facts appear in the opinion. Trial .at the March Term, 1875, of the district court, and judgment for the plaintiff. The defendants bring the case to this court.

Error from Dickinson District Court. Action for rent, brought by Rice against Hoffmire, and tried at the March Term, 1878, of the district court, when judgment was given for plaintiff and against defendant, who brings the case here.

Error from Saline District Court. Action brought by the Salina Building, Saving and Trust Association, against Nelson and six others, defendants, on certain notes and mortgages given by the defendants to the plaintiff for money loaned. At the April Term, 1877; of the district court, a trial was had, and judgment given for the defendants. The Association brings the case to this court.

Error from Shawnee District Court. Action on a promissory note, brought by Firey, against Tefft as maker, and E. W. Auld as indorser thereof. Trial at the January Term, 1879, of the district court, and judgment for plaintiff and against defendant Tefft, who brings the case-to this court.

Error from Brown District Court. At the September Term, 1878, of the district court, plaintiff Roberts, as administrator of the estate of ¥m. H. Roberts, deceased, had judgment against the Board of Commissioners of Brown county, defendant, for the sum of $336.50 and costs. New trial denied, and the defendant brings the case to this court.

Ffrror from Lyon District Court. Action brought by Hammer against the Atchison, Topeka Santa Fé Railroad Company, to recover damages to crops from the overflow of plaintiff’s lands. Trial by the court, at the March Term, 1878, and findings and judgment for plaintiff jor $300 damages, and for costs. New trial refused, and the Railroad Company brings the case here. The facts are stated in the opinion.

Error from Miami District Court. Action brought by Thompson against Garrison and three others, to recover $395, with interest, a balance alleged to be due from defendants to plaintiff for his services as pastor of the First Presbyterian church of Paola, Kansas. Trial at the October Term, 1878, of the district court, and judgment for defendants. The plaintiff brings the case here for review. O.ther facts are set forth in the opinion.

Error from Ellsworth District Court. Arbitration between Jerome Beebe and Joseph Anderson and Ellen Anderson, his wife, which embraced matters in difference between Beebe as an individual and as surviving partner of the firm of Beebe & Anderson, of the one part, and said Joseph and Ellen Anderson, as individuals, and Joseph Anderson, as administrator of the estates of William N. and Thomas Anderson, deceased, of the other part.