Volume 24 — Kansas Reports

Information for embezzlement. Trial at the December Term, 1879, of the district court, and verdict and judgment for The State. The defendant, Spaulding, appeals. The facts are stated in the opinion.

Original Proceedings in Mandamus. Action brought in this court by The State, on the relation of the attorney general, against the Board of Oomm’rs of Pratt County, to compel the board to canvass certain election returns, or to show cause, etc. The defendant answered, showing cause. The facts appear in the opinion.

Error from Miami District Court. Action in the nature of ejectment brought by Fairbanks against Margaret Williams, and two others, heirs-at-law of L. D. Williams, to recover the possession of certain real estate. The facts appear in the opinion. Trial by the court, at the October Term, 1877, and findings and judgment for the defendants. The plaintiff brings the case here.

Original Proceedings in Mandamus. Action brought in this court by Cox, against Rich, to compel the defendant, as justice of the peace of Iuka township, in the county of Pratt, to approve a certain appeal bond, or to show cause, etc. The defendant answered, showing cause. The opinion contains a sufficient statement of the facts.

Error from Russell District Court. Action brought by McKanna against Eastland, as special administrator of the estate of Wm. K. Shaffer, deceased, to recover $3,000, with interest at seven per cent, per annum from August 30th, 1873. Trial at the October Term, 1878, of the district court, and verdict and judgment for the plaintiff. The defendant brings the case here. The nature of the action, and the facts, appear in the opinion.

Mror from Cloud District Court. At the October Term, 1879, of the district court, iu the case of Tuppeny against Hill, judgment was rendered for the plaintiff and against the defendant, and an order was entered requiring Brown & Co. as garnishees to pay into court $90 for the use of Tuppeny. Brown & Co. bring the case here. The facts sufficiently appear in the opinion.

Error from Montgomery District Court. At the March Term, 1879, of the district court, The Remington Seioing Machine Co. had judgment against Parker, who brings the case here. The facts sufficiently appear in the opinion.

Error from Jefferson District Court. At the November Term, 1879, of the district court, Allen, as plaintiff, had judgment against the Railway Company for $500 and costs. The defendant brings the case here.

Error from Atchison District Court. Action brought by Treat against Sutliff, to foreclose a certain lien. The facts are stated in the opinion. Trial at the June Term, 1879, of the district court, and judgment for the defendant. The plaintiff brings the case here.

Error from Montgomery District Court. Action brought by Webster against Turner and another, partners, to recover for services rendered the defendants. Trial at the January Term, 1879, of the district court, and verdict and judgment for plaintiff. The defendants bring the case to this court. The facts are stated in the opinion.

Error from Olay District Court. Action brought by Hagaman against Dittmar, to restrain him from plowing and cultivating a certain tract of land claimed to be a public burial-ground. Trial at the January Term, 1880, of the district court, and judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

Drror from Neosho District Court. Action of forcible entry and detainer, brought by White against Bond, to obtain restitution of a certain quarter-section of land. Trial at the July Term, 1879, of the district court, and judgment for plaintiff. Bond brings the case here. The facts are stated in the opinion.

Wilson was charged with a violation of the provisions of §165, ch. 31 of the General Statutes. Trial at the March Term, 1880, of the district court, when the defendant was convicted, and adjudged to pay a fine of $100 and costs. He appeals to this court. The facts are stated in the opinion.

At the March Term, 1880, of the district court, in a proceeding to prevent the commission of an offense, a judgment for certain costs was rendered against the complaining witness, Wm. McKay, who brings the case here.

Error from Neosho District. Gov/rt. Thomas Leahy was elected treasurer of Neosho county for the term of two years, commencing on the first Tuesday of July, 1870. The other defendants were sureties on his second, or additional bond. Before entering upon the duties of his office, Leahy executed a bond as treasurer. At the general election in 1871, a new board of commissioners was elected in the county, and under the direction of this board Leahy executed the bond sued on.

Error from Reno District Court. Action brought by McMurray and another, against The Water Power Company, a corporation organized under the laws of the state of Kansas, and two other defendants, to recover upon an alleged stated account. The facts, pleadings and proceedings sufficiently appear in the opinion. Trial at the.April Term, 1879, of the district court, and verdict and judgment for plaintiffs. The Water Power Co. brings the case here. 1.

At the April Term, 1880, of the district court, Scott was convicted of an assault with intent to kill. The facts are stated in the opinion. The defendant appeals.

<p> Original Proceedings in Mandamus. </p> <p>On the 28th day of February, 1880, an alternative writ of mandamus was issued out of this court, upon a petition filed therefor by E. R. Morgan, and directed to John Sillón, L. H. Naron, and Thos. Goodwin, as the board of county commissioners of the county of Pratt, commanding them to meet on the- 20th -day of March, 1'880, at Iuka, the county seat of said county, and then and there to canvass the vote cast for probate judge of said county, at the election held therein, on November 4th, 1879, or to show cause, etc. The defendants answered, showing cause. The opinion herein was filed August 10, 1880.</p>

Error from Neosho District Court. Ejectment, brought by Mograin against Nay and four others, to recover an undivided one-fourth of a tract of land in Neosho county. Trial by the court, at the November Term, 1878, and findings and judgment for the plaintiff. The nature of the action, and the facts,, sufficiently appear in the opinion.

Error from Nemaha District Court. Action brought by Ewing against Baldwin and another, to recover a certain tract of school land. The facts are stated in the opinion. Trial at the October Term, 1879, of the district court, and judgment for the defendants. Ewing brings the case here.

Error from Doniphan District Court. Repel yin brought by Long, against Bailey (constable), to recover the possession of certain corn. The facts are stated in the opinion. Trial at the March Term, 1877, of the district court, and judgment for the plaintiff. The defendant, Bailey, brings the case here. Under the facts found by the court, the agreement between T. W. Bailey and J. S. Long was an executory agreement, and not an absolute sale.

<p>Judgment Against Surety for Costs; Notice. In an action where security ■ for costs has been given by the plaintiff, and afterward final judgment is rendered against the plaintiff for costs, and afterward certain persons interested in the costs, and seeking to have the said judgment extended under g 585 of the civil code, so as to make it a judgment against the sureties for costs, as well as against the plaintiff, gave to said sureties the following notice (omitting the title), to wit: “You will take notice that a motion will be made on behalf of the officers and ex-officers of this court having fees in the above-entitled cause, to take judgment against you as sureties on plaintiff’s bond for costs in the above-entitled cause at one o’clock p. m., Feb. 24th, A. D. 1879, or as soon thereafter as counsel can be heard, at the court house at Lyndon. — ÍT. F., Sheriff)” held, that said notice is sufficient.</p>

Error from Shawnee District Court. Action brought by Elizabeth Greer against John P. Greer, on two promissory notes, and for the foreclosure of a mortgage. Trial by the court, a jury being waived.

Error from Osage District Court. At the November Term, 1875, of the district court, Edie, as sheriff, etc., and the Osage City Savings Bank, as defendants, had judgment against McNeill, as plaintiff, who brings the case here. The facts are sufficiently stated in the opinion.

Error from, Norton District Court. At the May Term, 1878, of the district court, Kelley, as defendant, recovered a judgment against Pratt, as plaintiff, who brings the case to this court. The facts are.stated in the opinion.

jError from Shawnee District Court. Action brought April 28, 1877, by Knox & Co. against Parmelee, to recover money which they had paid him for a certain school-district bond that proved to be spurious.

Error from Saline District Court. The Howe Machine Co. brought its action against Lincoln, before a justice of the peace, on a promissory note, and at the same time obtained an order of arrest for defendant. Afterward, the defendant filed a motion to be discharged from ar-rest, for the following reasons: 1. That prior to the issuance of the pretended' order of arrest herein, neither the plaintiff, its agent, nor attorney, filed an affidavit as required by law. 2.

Original Proceedings in Mandamus. Action brought by plaintiffs to compel defendants, who are members of the school board of School District No. 64, Marshall county, Kansas, to rescind an order made by them September 11th, 1879, rescinding an order made by the former school boavd, adopting Cowperthwait & Co.’s school publications for use in the district school; and also to compel them to readopt said publications, and reintroduce them into the school.

Error from Miami District Court. At the May Term, 1877, the district court granted a new trial in a certain action, as prayed for by H. N. Medberry, Penn Yetter, F. M. Shaw, and C. A. Leighton. The adverse parties, Soper, Brainard & Go., bring the case here. The •opinion sufficiently states the facts.

Error from Saline District Court. At the November Term, 1879, of the district court, Waitr as defendant, recovered a judgment against The White Sewing Machine Co., as plaintiff, which brings the case here. The facts are stated in the opinion. The district court erred in not reversing the order and judgment of the probate judge.

Error from Shawnee District Court. Action on an account brought by Smith against Rogers, as executor of the estate of Emma J. Rogers, deceased. The facts appear in the opinion. Trial at the May Term, 1879, of the district court, and judgment for the defendant. The plaintiff brings, the ease to this court.

Original Proceedings in Mandamus. Action brought in this court November 28, 1879, by Hayes, against John R. Rogers, A. H. McLain and George Seaton, commissioners of Harvey county, and H. W. Bunher, county clerk of said county, to compel a canvass of the vote cast for him for commissioner of the old second district of that county, at the general election in November, 1879.

Error from Sedgwick District Court. Action brought by M. C. Edmiston, (widow of M. V. Edmiston,) against Werner, to recover damages under the provisions of §§ 9 and 10 of chapter 35 of the General Statutes.

Error from Linn District Court. Action brought by Corbin against Inslee, to quiet title to certain lands in Linn county. Trial at the July Term, 1878, of the district court, and judgment for the defendant. The plaintiff brings the case tojthis court. The defendant’s demurrer raises the question whether an undivided interest in land can properly be assessed for taxation; and if the taxes remain delinquent, whether it can be sold for such delinquent taxes.

Error from Wyandotte District Court. May lltb, 1878, plaintiff in error brought this action in the district court of Wyandotte county against the defendant in error, to recover $3,629, with interest. January 16th, 1879, an amended petition was filed, in the following words and figures (omitting the title and name of the court): “1.

Error from Morris District Court. Action brought by Downing against Beeves and another, to enjoin them from interfering with plaintiff’s right of possession of certain lands in Morris county. June 5,1879, a temporary order of injunction was issued by the probate judge ■of said county in behalf of the plaintiff. Thereafter, the .defendant Beeves in vacation moved the district judge to dissolve the injunction.

Original Proceedings in Mandamus, On the 7th day of May, 1879, an alternative writ of man*damus was issued out of this court, upon a petition filed therefor on behalf of the Memphis, Kansas & Colorado Railway Company, and directed to John W. Thompson, as mayor of the city of Parsons, and A. A. Osgood, as clerk of said city, commanding them, as such officers, immediately upon the receipt of said writ, to issue and deliver to the plaintiff thirty negotiable bonds of said city,…

At the March Term, 1880, of the district court, the appellants, Boyland and MoCurty, were tried, convicted and sentenced to four years’ imprisonment at hard labor in _ the state penitentiary, on a charge of committing an assault with intent to commit a rape upon Anna M. Boyland, the wife of the said Boyland. They now appeal to this court.

At the September Term, 1879, of the district court, the appellant, Wilson, charged with the murder of one Benjamin Ball, was tried therefor, found guilty of murder in the second degree, and sentenced to fifteen years’ imprisonment in the state penitentiary. From this judgment he appeals to this court. The facts sufficiently appear in the opinion. '

Error from Linn District Court. Action brought by Corbin against Young, to quiet title to certain land in Linn county. The facts are stated in the opinion. Trial at the November Term, 1877, of the district court, and judgment for defendant. The plaintiff brings the case here.

Error from Smith District Court. Action brought by Frazer against Benton, to enjoin the defendant from selling or otherwise disposing of - a certain promissory note, and a chattel mortgage given to secure its payment. January 3, 1880, in vacation, the district judge sustained the defendant’s motion to dissolve a temporary injunction theretofore allowed in said action by the probate judge. The plaintiff*seeks to have this ruling reversed. Other facts appear in the opinion.

Error from, Harvey District Court. Action upon the official bond of defendant Munger, as county treasurer; and the cause having been remanded by this court to the court below for further proceedings, the plaintiff, on the 15th day of August, 1879, with leave of the court, filed an amended petition, setting out among other things, that the defendant, Geo.

Prosecution for selling intoxicating liquor without duly taking out and having a license so to do. Trial, conviction and sentence of the defendant, Hughes, at the September Term, 1879, of the district court. He appeals to this court.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court on the 28th day of May, 1880, by Daniel A. Millington, who also appealed from the judgment against him ip the court below.

Error from, Allen District Court. Action brought by Reimert against Griffiths, on an account. The facts are stated in the opinion. Trial at the November Term, 1879, of the district court, and judgment for the plaintiff. The defendant brings the case here.

Error from, Doniphan District Court. At the September Term, 1879, of the district court, Reecher recovered a judgment against the Atchison & Nebraska Rid. Co., for $137.50. The Railroad Co. brings the case here. The facts appear in the opinion.

Error from Montgomery District Court. Action brought by Wills against Leonard and two others, to correct a mistake, supply an omission, and amend the description of certain premises, contained in a warranty deed, so as to make the description correspond with the actual intention of the parties thereto. Trial at the September Term, 1879, of the district court, and judgment for the plaintiff. The defendants bring the case here. The facts appear in the opinion.

Error from, Wyandotte District Gowrt. Replevin brought by Pretz against Partonier, for the recovery of certain hogs. Trial at the July Term, 1879, of the district court, and judgment for plaintiff. The defendant brings the case here.

Error from Nemaha District Court. Action brought by Nichols against the G. B. U. P. Bid,Co., to recover damages for killing a cow belonging to the' plaintiff. Trial at the October Term, 1879, of the district court, and judgment for the plaintiff. The Railroad Company brings the case to this court. The opinion sufficiently states the facts.

<p>Chattel Mortgage ; Description of Property, Not Void. C. and H. mortgaged a certain mare to A., describing her as follows: “One bay mare, one hind foot white, and white.spot in face, branded G, 17 hands high, five years old,” and being in the possession of the mortgagors, in Clay county, Kansas. This description was correct in every particular, except that the brand was J, (though very indistinct and scarcely discernible,) and the mare was not 17 hands high, and possibly only 15|- hands high. So far as was shown, the erroneous part of said description did not apply to any other animal, nor did the correct part thereof apply to any other animal, and taking the whole description together, it did not apply to any other animal. Held, That, as the description applied to the mare in controversy in so many particulars, and not applying to any other animal, the description is not void, and although partially untrue, it does not render the mortgage void in any respect. ■</p>

At the March Term, 1880, of the district court, Stewart was convicted of the crime of grand larceny, and sentenced to be imprisoned in the state penitentiary for the period of four years and three months. He appeals to this court. The facts are sufficiently stated in the opinion.

At the September Term, 1880, of the district court, Gutekunst was convicted of a violation of § 6 of the dramshop act, and sentenced to sixty days’ imprisonment in the county jail, adjudged to pay afine of $100 and costs, and to be committed until the fine and costs were paid. He appeals to this court. The facts appear in the opinion.

Error from Marion District Court. Action brought by Biggs against the Board of Comm’rs of Marion Co., and the City of Florence, to recover damages sustained by certain live stock belonging to plaintiff, by reason of an unsafe and defective public bridge, in said county.

Error from Greenwood District Court. Action brought by Fletcher against Wormington, for the purpose of subjecting certain land belonging to the defendant to the payment of a certain debt due the plaintiff. The facts appear in the opinion. Trial at the November Term, 1879, of the district court, and judgment for the' defendant. Fletcher brings the case here.

Error from Lyon District Court. Action brought under the stock law of 1874, by Seeley, against the Railroad Company, to recover damages for alleged injuries to plaintiff’s cow. Trial at the March Term, 1880, of the district court, and judgment for the plaintiff. The Railroad Co. brings the case here.

Action brought by Hamilton, in the district court of An-, derson county, to set aside a certain deed of real estate made by Shadwell to McDonald, and to subject the property conveyed to the satisfaction of a judgment theretofore recovered by plaintiff against Shadwell. Trial by the court, at the September Term, 1879, and judgment for the plaintiff. New trial denied, and the defendants bring the case here.

Replevin, brought before a justice of the peace of the city of Emporia, Lyon county, by Minnis against Jordan, for the recovery of a certain mule. Trial June 7, 1879, and judgment for the plaintiff. Thereafter, the defendant took the case by petition in error to the district court, wherein Minnis moved the court to dismiss the cause and remand the same, for the following reasons: 1.

Error from Marion District Court. Action brought by The State against Harrison as principal, and the two sureties upon his official bond, as a county commissioner of Marion county, given under § 1432, p. 279, of the Compiled Laws of 1879. The alleged breaches of the bond grew out of the drawing of a certain warrant in favor of H. C. Koble, October 7, 1878, for $4,500, mentioned in the case of The State, ex ret., v. Comm’rs of Marion Co., 21' Kas. 438.

Error from Brown District Court. Replevin, brought by Livings against Lauer, for the possession of a horse. Trial at the September Term, 3879, of the district court, and judgment for plaintiff. The defendant brings the case to this court. The facts, pleadings and proceedings are fully stated in the opinion.

Error from Allen District Court. Action in the nature of ejectment, brought by Watts and four others against Cook and another, for the recovery of certain real estate. The opinion states the facts. Trial at the June Term, 1879, of the district court, and judgment for the defendants. The plaintiffs bring the case to this court.

■ Error from, Brown District Court. Replevin, brought by Shew against Blair (constable), to recover the possession of two horses, a colt, a wagon and a harness. The facts appear in the opinion. Trial at the September Term, 1879, of the district court, and verdict and judgment for the plaintiff. The defendant brings the case here.

Error from Bourbon District Court. In an action brought by Bennett, Carter & Co., against Wm. Wolverton & Co., upon an account, certain lands situate in the counties of Bourbon and Linn were attached.

Error from Atchison District Court. Action brought by Butcher against Graves upon his bond as constable, and the sureties therein. Trial at the March Term, 1879, of the district court, and judgment for the plaintiff. The defendants bring the case here. The facts appear in the opinion.

Error from, Sumner District Court. Action brought by Quigley & Leonard, publishers of the Sumner County Democrat, against the Board of Comm’rs of Sumner Co., upon an account in the sum of $1,363 for printing done for said county for the year ending July 3, 1879.

Error from, Nemaha District Court. Action brought by Wren & Clawson, late partners, against The Board of Comm’rs of Nemaha Co., to recover $295.70 for the publication of the delinquent tax list of said county for 1878. Trial by the court at the April Term, 1880, and findings and judgment for the defendant. The plaintiffs bring the case here. The facts are fully stated in the opinion.

Error from Cowley Eistriet Court. Action brought by Lewis against Genthner, to quiet title to a certain tract of land in Cowley county. The facts appear in the opinion. . Trial at the August Term, 1879, of the district court, and judgment for the plaintiff. The defendant brings the case here.

Action brought by Coonradt and another, against Myers, to recover damages for an alleged trespass upon certain real estate. Trial at the October Term, 1879, of the Miami district court, and judgment for the defendant. The plaintiffs bring the case to this court.

<p> Original Proceedings in Mandamus. </p> <p>April 14th, 1880, an alternative writ of mandamus was issued out of this court, upon a petition filed therefor by PI. N. Kirkpatrick and five others, who claim to have been elected officers of the city of Anthony, in the county of Harper, at an election held in that city on April 5th, 1880, and directed to Q. W. Vickers and four others, as members of the council of that city, and' to G. W. Maffett, as the city clerk thereof, commanding them, on the 24th day of April, 1880, to meet at the council room in said city, and then and there to count the entire vote cast at said election, and to declare the true result thereof, or to show cause, etc. May 14th, 1880, the defendants answered, and made a return to the writ that they had obeyed the command thereof, but the plaintiffs controverted the truth of this return. Other facts are stated in the opinion, filed herein November 9th, 1880.</p>

Error from, Leavenworth District Court. At the September Term, 1878, of the district court, Moore, as plaintiff, recovered a judgment against the L. & T. Rly. Co. for $1,000. The nature of the action, and the facts, appear in the opinion. The Railway■ Company brings the case to this court.

Error from, Cherokee District Court. Action brought by the Galena Mining & Smelting Company against O. A. Tousley and J. IT.

Error from, Atchison District Court. May 11, 1880, the district court affirmed an order made by a justice of the peace, reviving a certain judgment rendered in favor of Martin and against Angell, on the 2d day of July, 1860. Angell brings this ruling here for review. The facts appear in the opinion.

Error from, Cherokee District Court. Action in attachment by W. B. Stone and H. Gove against L. D. Boone. The plaintiffs reside in Cherokee county, and the defendant in Chicago, Illinois. The plaintiffs are producers and operators in lead and zinc ore, and the defendant is the proprietor of zinc works at Weir City, Cherokee county. .

Error from Saline District Court. Action brought by Beebe against Wm. C. Sloan, county clerk of Saline county, J. B. Hamilton, the treasurer of said county, the City of Salina, and the Salina Building, Saving and Trust Association, to obtain an injunction restraining the defendants from collecting certain taxes, and from obtaining or issuing certain tax deeds. Trial by the court at the November Term, 1878, and judgment for the plaintiff. The defendants bring the case here.

Error from Crawford District Court. Action under the stock law of 1874, brought by Byron against the Railway Company, to recover damages for killing a mare belonging to plaintiff. Trial at the April Term, 1880, of the district court, and judgment for the plaintiff for $90 as damages, $35 as attorney’s fee, and for costs. A new trial being denied, the Railway Company brings the case here.

Error from Miami District Court. Action brought by Shively against Beeson and four others, upon a certain promissory note. The petition (court and title omitted) is as follows: ' “The plaintiff, Iowa T. Shively, complains of the said defendants, for that on the 6th day 'of April, 1870, the defendant H. Y. Beeson executed and delivered his promissory note in writing of that date to W. T. Shively, guardian of Ida Ward, in the words following, to wit: ‘$1,500.

Error from Butler District Court. Action brought by Gulick against the Exchange Bank of Eldorado, as garnishee, to recover $180, with interest from July 16, 1878, at the rate of-7 per cent, per annum. The nature of the action, and the facts, appear in the opinion. Trial at the March Term, 1880, of the district court, and judgment for the plaintiff. The defendant brings the case to-this court.

Error from Brown District Court. At the February Term, 1880, of the district court, the plaintiff, McGregor, had judgment against Dilley, as defendant, who brings the case here for review. The facts appear in the opinion.

Error from, Saline District Court. Action brought by the Salina Building, Saving & Trust Association against Beebe, to recover upon a certain promissory note. Trial at the April Term, 1878, of the district court, and judgment for the defendant. The plaintiff brings the case here. The facts appear in the opinion.

Error from Wilson District Court. Action brought by McReynolds against the Railway Company, ' to recover damages for killing a cow belonging to plaintiff. Trial by the court at the May Term, 1880, and judgment for the plaintiff for $30 as damages, $35 as attorney’s fee, and for costs. The defendant brings the case here. The opinion contains a sufficient statement of the facts.

Proceeding under article IX/ch. 23,-Gen. Stat. 1868, as amended by ch. 74, Laws 1870.

<p>Impertinent Instructions; New Trial. Instructions should, be applicable to the case under consideration, and where it is reasonably made to appear that the jury have been misled to the prejudice of the rights of the party moving for a new trial by instructions upon irrelevant issues, or matters foreign to the case, a new trial will be granted.</p>

Error from Dickinson District Court. Replevin, brought by Huff against Hoisington (constable) and another, to recover the possession of a certain mare claimed to be exempt. The facts are stated in the opinion. Trial by the court at the March Term, 1880, and judgment for the plaintiff. The defendant brings the case here.

Error from Hush District Court. Mandamus, brought, by Millis against Templeton, to compel him»as a justice of the peace to approve and file a certain appeal bond. The facts appear in the opinion. At the November Term, 1879, of the district court, the plaintiff had judgment against the defendant justice, who brings the case to this court for review.

Error from, Saline District Court. Action originally brought before a justice of the peace, by Switzer against Wilvers, upon an account for $53.20, for medicines. On the 21st day of February, 1880, the district court affirmed the decision and action of the justice, who had decided a certain amended affidavit for an order of arrest to be insufficient, and discharged the defendant. Switzer brings the case here. The facts are stated in the opinion.

<p> Error from, Cherokee District Court. </p> <p>At the October Term, 1879, of the district court, Shomon, as plaintiff, had judgment against defendant Herriman, who brings the case here. The opinion contains a sufficient statement of the facts.</p>

Error from, Rice District Court. Action brought by Gore against Conaway and wife? for the reformation of a certain deed. The facts sufficiently appear in the opinion, infra, and in the statement of the .case of Conatoay v. Gore, in 21 Kas. 726, 727. Trial by the court, at the adjourned term, commencing January 27, 1880, when the findings and judgment were for Gore. The defendants bring the case here.

Original Proceedings in Mandamus. Mandamus, brought in this court by Philpin and three others, against McCarty, county superintendent of public instruction of Ford county.

Error from Shawnee District Court. Action under the stock law of 1874, brought by Landis against the K. P. Rly. Co., to recover damages for killing his mule. Trial at the January Term, 1880, of the district-court, and judgment for the plaintiff. The Railway Company brings the case here. The opinion states the facts. In 1862, Congress had the exclusive right and dominion over the Pottawatomie reservation, which was not parted with or abridged, until after 1862.

- Error from Atchison District Court. Action brought by Beisner against Strong and nine others as individuals and as an assumed corporation, to perpetually enjoin them from ever constructing or using a certain contemplated railroad track across a portion of one of the plaintiff’s lots in the city of Atchison.

Error from AUen District Court, Action brought by Lewis against Walkenhorst and six others, upon a deed of land, and a bond to reconvey upon the payment of a certain debt. Trial at the November Term, 1875, of the district court, and judgment for the plaintiff, and an order for the sale of the mortgaged premises. Afterward the plaintiff purchased said premises at a sheriff’s sale thereof.

Error from Miami District Court. Action in the nature of ejectment, brought by Horace B. Smith against Torbett Entreken, to recover a certain quarter-section of land in Miami county. After the commencement ■ of the action the plaintiff died, and the action was revived in the names of his administrator and heirs. Trial by the court, and judgment for the defendant Entreken.

Error from Saline District Court. Action brought by Bugher against Sale and two others, to quiet the title to a certain quarter-section of land in Saline county. The facts appear in the opinion. Trial by the court, at the November Term, 1879, and judgment for the plaintiff. The defendants bring the case here.

Error from Johnson District Court. Young & Short commenced an action against Cole before a justice of the peace in Cass county, Missouri, to .recover upon an account for goods by them sold to the defendant. When this suit was begun, the parties thereto were heads of families, and resident in Johnson county, Kansas.

Error from Neosho District Court. Replevin, brought by Watson against Jackson, to recover the possession of 450 bushels of corn. Trial at the April Term, 1880, of the district court, and judgment for the defendant. The plaintiff brings the case here. The opinion states the facts.

Action originally brought before a justice of the peace of Greenwood county, by Axford against Hubbell, upon a certain promissory note and an account. The plaintiff prayed for judgment on the note for $100, with interest, etc., and for the further sum of $158.28 on.the account.

Indictment for murder in the first degree, charging William Stackhouse with the felonious killing of Samuel P. Kipple, at the county of Ellis, on or about the 28th day of May, 1879. At the September Term, 1879, of the district court, Stackhouse was found guilty of murder in the second degree, and sentenced to confinement at hard labor in the state penitentiary for a term of twelve years. He appeals to this court. The opinion contains a sufficient statement of the facts. 1.

September 20, 1880, the appellant, Frank Henry, was convicted of grand larceny, and sentenced to imprisonment in the state penitentiary for the term of four years. He appeals to this court. The opinion contains a sufficient statement of the facts.

Error from, Atchison District Court. Action brought by Ostertag against Millbanh, and two others, concerning a certain lot in the city of… Held: in case of Ghalliss v. Parher, 11 Kas. 386, affirming the decision of the court below with reference to this identical tax, that “the sidewalk tax was legally placed on the tax-roll, and the sale of said lot therefor by the defendant, as county treasurer, is fully authorized by law.” We submit that on the authority of Knox v. Dunn,…

Error from Washington District Court. Action brought by Shaw against Kirkwood, to quiet the title to certain real estate. Trial at the August Term, 1877, of the district court, and judgment for the defendant. Shaw brings the case here. The opinion states the facts.

Error from Nemaha District Court. Action upon an account.brought by Bucher against Warner, before a justice of the peace. Trial and judgment for the plaintiff, August 7, 1879. Thereafter the defendant filed his petition in error in the district court, wherein, at the October Term, 1879, the proceedings before the justice were affirmed. Warner brings the case here.

Error from. Franklin District Court. Action brought by McQuesten against Williams, upon a ■certain promissory note. Thereafter Morris Center, Henry Center and Joshua Hodges were made parties defendant. The nature of the action and the facts appear in the opinion, and in the case of Center v. McQuesten, 18 Kas. 476.

Error from Greenwood District Court. Action brought by Pritchard against Madren, to quiet tbe title to a certain tract of land in Greenwood county. Trial by the court at the November Term, 1879, and judgment for the defendant. Pritchard brings the case here. The opinion states the facts.

Error from Sedgwick District Court. The facts appear in the opinion, and in the case of Jenkins v. Green, 22 Kas. 562. At the May Term, 1880, of the district court, Green and two others, as plaintiffs, had judgment against Jenkins, defendant, who brings the case here.

Error from Shawnee District Court. Injunction brought by Sweet against F. G. Hentig, A. H. Hentig, and W. B. Disbroiv, as sheriff, etc., to restrain the collection of the remainder apparently due defendant F. G. Hentig upon a certain judgment against the plaintiff, and to obtain an order that the said F. G. Hentig, for himself and as attorney for A. H. Hentig, enter upon the records of the court aforesaid, full satisfaction of said judgment.

Error from Linn District Court. Action brought by McHenry against the Railroad Company, to recover damages for killing a cow and two hogs belonging to plaintiff. Trial by the court at the April Term, 1880, when the court found for the plaintiff $25 damages for the cow killed as alleged in the petition, $8.50 for one hog killed, and $35 as attorney’s fee. Judgment accordingly for the plaintiff. The Railroad Company brings the case here. The opinion states the facts.

jError from Cloud District Court. Action under the railroad stock law, brought by Walters against the Railroad Company, to recover damages for killing five horses and wounding another — all belonging to the plaintiff. Trial at the October Term, 1879, of the district court, and judgment for the plaintiff. ' The Railroad Company brings the case to this court. The opinion states the facts.

Error from Chase District Court. L. K. Carter commenced an action in the district court of Chase county, upon a petition in error, from the action of the Board of Commissioners of that county, in establishing a public road upon and across certain lands, owned by him in said county. January 13,1880, the district court vacated the order aforesaid, and the Board, defendant, brings the case here.

Error from, Rice District .Court. July 7,1874, Norman brought an action against Clark, to recover damages for tearing down plaintiff’s store-house building, situate on lots 19 and 20, in block 224, in the town of Raymond, Rice county, removing the materials thereof, and •converting the same to the defendant’s use. Trial by the ■court, August 12,1875, and judgment for the plaintiff.

Error from Rice District Court. Action originally brought before a justice of the peace by Muscott against Stubbs, to recover $25 which he claimed to be due him from the defendant for his services as an attorney at law in a certain case. Trial before the justice, April 22, 1878, and judgment for plaintiff. The defendant appealed to the district court, wherein, at the June Term, 1880, the plaintiff’s motion for a new trial was overruled, and judgment given for the defendant.

Error from Wyandotte District Gowt. Action brought by Efarris against Drought, as treasurer of Wyandotte county, and the county clerk and the commissioners of that county, to perpetually enjoin the defendants from placing certain lots situate in the city of Wyandotte, on the delinquent tax list for 1879, etc. The opinion states the facts. Trial at the December Term, 1879, of the district court, and judgment for the defendants. The plaintiff brings the case here.

Error from Greenwood District Court. Action brought by I'm. Martiudale and two others, partners doing a banking business as,' The Eureka Bank, against Sarah A. Smith and three others, (sureties,) upon her bond, as executrix under the will of W. C. Way bright, deceased. Trial by the court at the May Term, 1880, and findings and judgment for the plaintiff, for $5,532.06 and costs. The defendants bring the case to this court. The opinion states the facts.

Error from Douglas District Court. Action brought by the National Banlc, of Lawrence, against Barber, as treasurer of Douglas county, and the Township of Eudora, in said county.

Error from Jaclcson District Court. Ejectment brought by the Central Branch Union Pacific Railroad Company against John Shoup, Winfield Shoup, and Thomas H. Phillipi, to recover the possession of the southeast quarter of section number’ thirty-five, in township number five, of range number sixteen, situate in Jackson county. The petition was filed April 12, 1878, and alleged that the plaintiff was the owner of the land in fee. John Shoup filed a general denial.

Error from, Coffey District Court, Ejectment, brought by Horatio D. Coe, an infant, by James M. Hendry, his guardian, against Farwell and three others, to recover the possession of the southeast quarter of section 22, township 21, range 15, situate in Coffey county. Trial by the court at the June Term, 1879, upon the pleadings and an agreed statement of facts.

Ejectment, brought in the district court of Wilson county by Hudson against R. G. Chitwood and wife, and Joshua Chitwood and wife, to recover the possession of certain lands situate in that county — the plaintiff’s title thereto being based upon certain tax deeds. The two first above-named defendants were afterward discharged from the action, and Russell was made a party defendant in their stead. Judgment for the plaintiff, at the February Term, 1880, of the district court.

Error from Lyon District Court.. At the March Term, 1880, of the district court, Sergeant had judgment against the Board of Commissioners of Lyon county, which brings the case here. The opinion states the facts.

Error from Reno District Court. At the adjourned November Term, 1879, of the district court, Fletcher had judgment for $545.20 against McMurry and two others, who bring the case here. The opinion states the facts.

Error from Butler District Court. Action brought by Tyler against Safford, to recover for an alleged breach of a contract. ■ The plaintiff procured an order of attachment, and caused certain property to be attached. December 10,1879, the district judge, at chambers, dissolved the attachment. Of this ruling the plaintiff complains, and brings the case here. The opinion states the facts.

Error from, Doniphan District Court. Replevin brought by Ashmead against Babcock, to recover a certain sewing machine. Trial at the September Term, 1880, of the district court, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Saline District Court. Action under the railroad stock law of 1874, brought by Wiggins against the K. P. Ely. Co., to recover damages for killing a mare belonging to the plaintiff. Trial at the May Term, 1880, of the district court, and verdict and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Wyandotte District Court. Ejectment, brought by Drought against Galbraith, to recover lot No. 20, in block No. 132, in the city of Wyandotte. Second trial at the April Term, 1880, of the district court, and judgment for the plaintiff. The defendant brings the case to this court. The opinion states the facts.

Error from Sumner District Court. ' Action brought by Thralls, sheriff of Sumner county, against the Board of Commissioners of that county, to recover certain fees. The opinion states the facts. Trial at the adjourned April Term, 1880, of the district court, and judgment for the defendant. Thralls brings the case here.

Error from, Sedgwick District Court. Action brought by Fraker against Little, as receiver of the First national bank of Wichita, for the recovery of money. The facts are stated in the opinion, infra, and in Fraker v. Cullum, 21 Kas. 556, 557. Trial at the December Term, 1879, of the district court, and judgment against Fraker, who brings the case here.

Error from Ottawa District Court. Action by Heald against J. P. Cummins, doing business, as J. P. Cummins & Co., brought March 20, 1879, to recover $408.37, with interest, said sum being, the proceeds of two notes deposited with the defendant by the plaintiff for collection. The plaintiff and defendant lived in Ottawa county. The first note read as follows : “$134.

Error from Cloud District Court. Mary E. Mulls, one of the defendants in error, commenced her action in the district court of Cloud county, December 22d, 1879, against L. A. Frasius and F. W,. Frasius, to recover $266.50, with interest at the rate of 12 per cent, per annum from August 16th, 1879, upon two notes executed by L. A. and F. W. Frasius, and to foreclose a real-estate mortgage-given to secure the same.

Error from, Coffey District Court. Action in the nature of ejectment, brought by Watkins against Inge, to recover the possession of the southwest quarter of section 16, township 23, range 17, in Coffey county. At the December Term, 1879, of the district court, the second trial was had, and judgment rendered for the defendant. Watkins brings the case here. The opinion states the facts.

Error from Riley District Court. Two actions, brought under the stock law of 1874, against the Kansas Pacific Railway Company; one action by Wood, to recover damages for two steers belonging to him, which had been killed by the defendant’s trains, and the other by Weichselbaum, to recover damages for his horse killed thereby.

Error from, Doniphan District Court. Action brought by Sue Flinn, an infant, by her next friend, Martin Flinn, against the Atchison & Nebraska Railroad Company, to recover $25,000 damages for personal injuries. Trial at the December Term, 1878, of the district court, when the jury made many special findings of fact, and rendered a general verdict for the plaintiff, and assessed her damages at $12,500.

At the March Term, 1880, of the district court, William Jennings was tried upon an information charging him with murder in the first degree in killing one Herschel McLaughlin, 'in Allen county, on or about the 12th day of December, 1879. The jury returned a verdict in the following form, to wit: “We, the jury, find the defendant guilty in manner and form as charged in the information.” The court sentenced the defendant as for murder in the first degree.

Error from Shawnee District Court. Action brought by McFadden against Cartwright, to quiet title to certain lots on Buchanan street, in blocks 9 and 16, in King’s addition to the city of Topeka. Trial by the court at the January Term, 1880, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts. 1. Since this is apparently an action brought under § 594 of the code, the plaintiff must allege actual possession.

Action originally brought before a justice of the peace of Doniphan county, by Snively against Selover and another, upon a promissory note, of which the following is a copy: “$95. Wathena, Kansas, March 22, 1873. “Twelve months after date, I promise to pay to A. J. Se-lover, or bearer, the sum of ninety-five dollars, for value received, negotiable and payable without defalcation or discount, at-, with interest at the rate of 10 per cent, per annum from date until paid.

Error from Rice District Court. Ejectment, brought by the A. T. & S. F. Rid. Co. against Bobb, to recover a certain quarter-section of land situated in Rice county. Trial at the February Term, 1880, of the district court, and judgment for the defendant. The opinion states the facts.

Error from, Sedgwick District Court. Two actions brought by H. B. Cullum, as receiver of the First national bank, of Wichita, against W. C. Fraker, upon certain promissory notes executed by the defendant to J. C. Fraker, who indorsed and delivered them to the bank aforesaid.

Error from, Brown District Court. Action brought by Devinney against Mann and another, to restrain the collection of a certain judgment. At the May Term, 1880, the district court dissolved a temporary injunction theretofore granted herein, and gave judgment against the plaintiff, who brings the case here. The opinion states the facts.

Original Proceedings in Quo Warranto. The petition herein was filed in this court by the attorney general, May 27,1880; the answer of the defendants, L>. W. Stormont, W. W. Cochrane, C. C. Furley, R. Morris, S. F. Neely, C. PI. Guibor, and G. W. Haldeman, was filed July 29, 1880; and the demurrer thereto, August 25,1880.

Original Proceedings in Habeas Corpus, etc. The adoption of the amendment to the state constitution, •at the general election of 1880, prohibiting the manufacture .and sale of intoxicating liquors, except for certain specified purposes, gave rise to several actions brought to test the validity of the amendment itself, and its effect, if valid, on the •dramshop act. Four of these cases were -heard and considered together in this court, in February, 1881.

Error from, Saline Distriet Court. Action brought by Dunmeyer against the Kansas Pacific Railway Company, .to recover damages because of his ouster from a certain tract of land, to which the defendant had, in consideration of $200, executed to him a warranty deed. Trial by the court at the November Term, 1879, when the court found for the plaintiff, and assessed his damages at $326.45, and costs. New trial denied, and judgment accordingly for the plaintiff.

Error from Chase District Court. Action to quiet title, brought by Young, who filed her petition, and the defendants failing to appear, judgment was rendered on the first day of the term in her favor, on the averments of the petition, without any testimony having been introduced to support the same.

■ Error from Mitchell District Court. The nature of the action, and the facts, appear in the opinion. At the December Term, 1879, of the district court, Lyon had judgment against the Railway Company, which brings the case to this court.

Error from, Jackson District Court. Action brought by Bishop against Douglass and ten others, to quiet the title to four hundred acres of land situate in Jackson county. Trial by the court at the April Term, 1877, and judgment for the plaintiff. The defendant Douglass brings the case to this court. The opinion states the facts.

Original Proceedings in Mandamus. . Action brought in this court by L. J. Crans against John Francis, as state treasurer.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court, December 17, 1880, on behalf of Gus Goldsmith and Max S. Goldsmith, who alleged that they were unlawfully imprisoned by B. R. Kiehl, the sheriff of Davis county, in the common jail thereof.

Error from Harvey District Court. January 24,1880, in an action wherein the Board of Commissioners of Harvey County was plaintiff, and Munger and four others were defendants, the latter recovered a judgment for costs. The plaintiff brings the case here. The facts are stated, ante, pp. 205-207, and in the opinion, infra.

Error from, Reno District Court. 'Replevin brought by Loche and another against Hedrick and another, to recover certain goods used in furnishing a hotel. Trial at the April Term, 1880, of the district court, and judgment for the defendants. The plaintiffs bring the case here. The opinion states the facts.

Error from Leavenworth District Court. Action brought by Huhn and another .against Douglass, to quiet title to certain real estate. Trial by the court, and judgment for the plaintiffs. The defendant brings the case here. The opinion states the facts.

Original Proceedings in Quo Warranto. Action brought in this court by Smith against Holt, to determine the right to the office of judge of the fifteenth district. At the general election of November 2, 1880, the plaintiff Smith and W. C. Hon Carlos were candidates for said office, the former receiving 10,687 votes therefor, and the latter 4,879 votes.

Error from Lyon District Court. At the adjourned September Term, 1879, of the district court, Chase recovered a judgment against the Board of Com■missioners of Lyon County for $327.50. The Board brings the ease here. The opinion states the nature of the action, and the facts.

Error from Marion District Court. Action brought by Hoch against the Board of Commissioners of Marion Co., for a bounty of $58.75, to which he claimed to be entitled under the provisions of “An act to encourage the growing of hedges and the building of stone fences.” Trial at the April Term, 1880, of the district court, and judgment for the plaintiff. The Board brings the case to this court.

Error from Miami District Court. Action brought by Thomas against Sheppard, and three others, (Z. M. Perkins, Lucinda Perkins, and Herman Speilbursch,) to set aside as fraudulent a certain conveyance made by Z. M. Perkins to Ely Snyder, and by him to Lucinda Perkins, wife of Z. M. Perkins, and to subject the land thereby conveyed to sale, on a judgment in favor of the plaintiff and against said Z. M. Perkins.

Error from Pottawatomie District Court. Action brought by Farris against Holthaus, to restrain the execution of a sheriff’s deed of certain lands to defendant, and to have her title thereto declared good. Trial by the court at the August Term, 1877, and findings and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.