Volume 25 — Kansas Reports

Error from, Davis District Court. ACTION brought by Thomason against the Union Trust Company, as trustee of the Missouri, Kansas & Texas railway company, to recover damages for personal injuries. Trial at the February Term, 1880, of the district court, and judgment for the plaintiff for $2,000 damages and costs. The defendant brings the case to this court. The opinion states the facts.

Error from Franklin District Court. ACTION brought by Rich and two others, against William H. Bowker and Henry H. Bowker, and also against the latter as the executor of the last will of Caroline E. Bowker, deceased, to have the will, which had been probated, set aside and the probate thereof vacated.

Error from Wilson District Court. Replevin, brought by Kirkpatrick against Meixell, to recover eight municipal bonds — six thereof being each for .$1,200, issued in 1873, by Cedar Rapids township, in Wilson county, and payable to the Memphis & Northwestern railroad company, or bearer, in thirty years from the date thereof, and bearing interest at the rate of seven per cent, per annum, payable semi-annually, coupons for such interest being thereunto attached; one bond thereof…

¡Error from Labette District Court. ACTION brought by Meixell against Kirhpatrich, and the sheriff of Labette county, to perpetually enjoin the enforcement of a certain judgment. The nature of this 'action, and the facts, appear in the subjoined opinion and in the case of Meixell v. Kirhpatrich, just reported.- ■ Trial at the November Term, 1879, of the district .court, and judgment for the defendants. Meixell brings the case to this court.

Error from Harvey District Court. ACTION brought by Tennent, Wallcer & Co. against li. W. Weymouth and James H. Golden, as partners, upon a bill of exchange for $130, drawn by plaintiffs and accepted by defendants. An order of arrest was obtained by the plaintiffs, upon which the defendants were arrested. At the September Term, 1879, of the district court, the defendants moved the court for their discharge from said order, which motion was sustained.

Error from, Wilson District Court. ACTION brought by Baker against Newland, for the possession of certain land in Wilson county.' October 9, 1879, the court found for the defendant, and gave judgment accordingly. The plaintiff brings the case here. The opinion states the facts.

Error from Wyandotte District Court. ACTION brought by Wo ten Haley, as administrator of the estate of William Deal, to recover damages sustained by two minor children of the… Held: in discussing the degree of care which either party was required to use, that such an instruction, in the language above quoted, was proper — appellants complaining that an instruction given at the instance of appellee (by no means so objectionable as the one given in this case), was improper.

Error from Greenioood District Court. Action brought by Huffman against the Board of Comm’rs of Greenwood Co., to recover for certain services as an attorney at law. Trial at the May Term, 1880, of the district court, and judgment for the defendant. Other facts appear in 23 Kas. 281, 282. Huffman brings the case here.

<p> Error from Greenwood District Court. </p> <p>INJUNCTION, brought by Allen against Sword. Trial at the, October Term, 1879, of the district court, and judgment for the plaintiff. Sword brings the case to this court. The opinion states the facts.</p>

Error from Anderson District Court. ACTION brought by Ewing against Fullenwider, to recover damages for defendant’s alleged criminal conversation with plaintiff’s wife. Trial at the September Term, 1879, of the district court, when the jury found for the plaintiff and assessed his damages at $1,000. New trial denied, and judgment accordingly for the plaintiff. The defendant brings the ease here. The opinion states the facts.

Error from, Barton Distriet Court. Action brought by Spencer against Underhill and three others, upon a bond in the sum of $175 by them given in an action to restrain further proceedings under an execution issued upon a certain judgment in favor of the plaintiff and against the defendant Underhill, as constable, and his sureties. Trial by the court, at the March Term, 1879, and judgment for the plaintiff for $25 damages and for costs. The defendants bring the case here.

Error from Ellis District Court. ACTION brought by Allen against Henry Krueger and Fred. Krueger, partners as Krueger Brothers, to recover a' balance of $401.55, alleged to be due on an account.’ Trial at the adjourned November Term, 1879, of the district court, and judgment for defendants. The plaintiff brings the case here.

Error from Woodson District Court. ActioN brought by Hamilton, for himself and others, against Hurt, as treasurer of Woodson county, and the township of Neosho Falls, to enjoin the collection of a certain tax. The nature of the action, and the facts, appear in the opinion. Trial by the court upon an agreed statement of facts, at the June Term, 1880, and judgment for the plaintiffs. The defendants bring the case here.

Error from Cloud District Court. Action brought by Means against Wilson and another, to recover for money advanced to be invested in hogs, and for his share of the profits of such investment. Trial at the August Term, 1880, of the district court, and verdict and judgment for the plaintiff. The defendants bring the case here.

Error from, Lyon District Court. Action brought- by the Board of Commissioners of Lyon County against the Emporia National Bank and others, to recover certain damages.

Error from, Brown District Court. ACTION brought by John Schilling & Co. against Damme and four other defendants, on a promissory note, and to foreclose a mortgage. Trial at the October Term, 1876, of the district court, and judgment for the plaintiffs. The defendant Damme brings the case here. The opinion states the facts.

<p> Error from, Johnson District Court, </p> <p>ACTION brought by Howell against Pugh and another, to recover damages for the alleged conversion by the defendants of certain property, of which the plaintiff claimed to be the absolute owner, and entitled to the possession thereof, to wit: One-half of eight acres of wheat in the stack, of the value of $80; one-third of twenty-two acres of corn in the field, of ° the value of $50; and one-third of twenty-eight acres of flax in the stack, of the value of $100. Trial at the June Term, 1880, of the district court, and judgment for the defendants. The plaintiff brings the case here.</p>

Error from, Atchison District Court. ACTION brought by Edson Keith and two others, partners as Keith Brothers, against N. Stetter, to recover upon an open account for $487.15.

ActioN by Campbell and another against Fillmore and two others, to recover damages for the non-performance of the conditions of a contract to deliver certain prairie hay. Trial at the May Term, 1880, of the district court'of Ottawa county, and verdict and judgment for the plaintiffs for $300 damages, and costs. The defendants bring the case here.

ACTION brought by Ellis, against the Railway Company, before a justice of the peace of Cherokee county, to recover damages for injuries caused to the plaintiff's cow by the defendant's cars. The defendant made no appearance in the justice's court, and judgment was rendered for the plaintiff. The defendant appealed the case to the district court of said county.

This action was brought by The Town Company of the Town of MePherson against Emma L. Fisher, to recover for the value of the possession of the east half of the northwest quarter and the east half of the southwest quarter of section twenty-eight, in township nineteen, south, of range three, in McPherson county, with the improvements thereon; also, for the value of a certain frame dwelling house, and for various sums advanced to enable her to enter the land under the homestead…

Error from Osage Elstrict Court. ACTION brought by McDonald against Shepard and others, to foreclose a vendor’s lien upon real estate. The nature of the action, and the facts, appear in the opinion. Trial by the court, July 19, 1879, and judgment for defendants Shepard & Waldo, against the plaintiff, for costs. The plaintiff brings the case here.

Error from Anderson District Court. Action brought by Constance Bowen against the Citizens’ Bank of Garnett and another, to recover money which the plaintiff alleged had been deposited with the bank to her credit and subject to her call. The facts appear in 21 Kas. 360-364, and in the subjoined opinion. Trial at the March Term, 1880, of the district court, and judgment for the plaintiff. The defendant brings the case here..

Error from Franklin District Court. July 30th, 1879, defendant in error (plaintiff below) filed in the district court of Franklin county the following petition (court and title omitted); “Plaintiff, John Baldwin, for cause of action against the defendant, David M. Clark, states the following facts: That on or about the 21st day of December, 1878, at the said county of Franklin, the defendant maliciously, unlawfully and without any probable cause, caused the plaintiff to be…

<p> Error from Atchison District Court. </p> <p>ACTION brought by Warden & Walker, partners, against Halsey, to recover certain damages. The nature of the action, •and the facts, appear in the opinion. Trial at the June Term, 1879, of the district court, and verdict and judgment for the plaintiffs. Also, for the plaintiffs various special questions ■of fact were submitted to the jury, which with the answers thereto are as follows:</p> <p>“1. On Aug. 31, 1878, were the plaintiffs partners, doing business under the firm-name of Warden & Walker, as bankers and brokers, at Irving, Kansas? A. Yes.</p> <p>“ 2. As such bankers, were they engaged in loaning money •and making advancements on bills of lading and consignments of goods, merchandise and grain? A. Yes.</p> <p>“ 3. As such, have said plaintiffs been engaged in such business since October 1,1877? A. Yes.</p> <p>“ 4. Were the three bills of lading or receipts, copies of which are attached to plaintiffs’ petition, as exhibits ‘A/ ‘B’ and ‘C/ issued and-delivered to said M. R. Conley by the said Central Branch Union Pacific railroad company on account of grain delivered to it by M. R. Conley on the day of the •dates thereof, to be transported by said railroad company to Atchison, Kansas? A. Yes.</p> <p>“ 5. Did M. R. Conley, on Sept. 2,1878, deliver two of said bills of lading (exhibits ‘A’ and ‘B’) to said plaintiffs, attached to said draft of $875 of same date? A. Yes.</p> <p>“ 6. Did said plaintiffs on said date at the time they received ■said draft and bills of lading from said Conley, part with value and give credit to Conley in consideration of said draft and bills of lading? A. Yes. w</p> <p>“7. Did M..R. Conley, on September 3,1878, deliver one of said bills of lading (exhibit ‘C’) to plaintiffs, attached to the draft of $215 of same date? A. Yes.</p> <p>“8. Did plaintiffs on September 3, 1878, at the time they received said draft and bill of lading from Conley, part with value and give credit to Conley, in consideration of said •draft and bill of lading? A. Yes.</p> <p>“9. At the time when M. R. Conley delivered each of said drafts to plaintiffs with the bills of lading, was not M. R. Conley indebted to plaintiffs in a large sum of money, for' moneys by plaintiffs advanced to him for the purpose of buying the identical grain covered by the said bills of lading? A. Yes.</p> <p>“10. For more than six months previous to September 2, 1878, did not the defendant -have notice that M. R. Conley was engaged in shipping grain to defendant, and accustomed to draw drafts in favor of plaintiffs against such shipments, and transferring the bills of lading received by Conley on account of such shipments to plaintiffs? A. Yes.</p> <p>“11. With such notice, did the defendant, previous to-September 2, 1878, pay all such drafts so drawn on him by Conley in favor of the plaintiffs? A. Yes.</p> <p>“ 12. Were not the conduct of defendant, and his course of' dealing with Conley, of such a.character as to induce the-plaintiffs, in the exercise of ordinary prudence, to accept said-drafts and said bills of lading under the belief that the net proceeds of said grain would be applied toward the payment of the drafts? A. Yes.</p> <p>“13. For what length of time previous to September 2,. 1878, had the defendant been paying drafts drawn by Conley in favor of plaintiffs, accompanied by bills of lading received for consignment of grain to defendant? A. Several months.</p> <p>“ 14. Had defendant at any time previous to the presentation of the two drafts and the bills of lading set forth in plaintiffs’ petition, ever refused payment of any other drafts-drawn by Conley on defendant? A. No.</p> <p>“15. At the time the plaintiffs received the drafts and bills of lading in question, or at any time previous thereto, did plaintiffs have notice of any contract or agreement between Conley and defendant, in any manner different from-the general course of dealing that had existed between said parties previous to September 2, 1878? A. No.</p> <p>“16. Did defendant receive the grain in controversy and refuse to apply the same or the proceeds thereof to the benefit of plaintiffs? A. Yes.</p> <p>“17. What were the net proceeds of the grain covered by the three bills of lading? A. $854.66.</p> <p>“ 18. Did defendant at any time previous to September 2, 1878, in any manner notify the plaintiffs that Conley had no right or authority to draw drafts on defendant in favor of plaintiffs, and transfer to plaintiffs bills of lading for consignments of grain to defendant, for the payment of said drafts? A. No.</p> <p>“19. Previous to September 2, 1878, did plaintiffs as such bankers from time to time advance money to Conley for the purpose of enabling him to purchase the grain that he [Conley] would from time to time ship to defendant, upon the faith and credit that the bills of lading for such shipments would be turned over to plaintiffs to insure the payment of drafts drawn by Conley against such shipments to repay such advances? A. Yes.</p> <p>“20. Did defendant refuse payment of the drafts in question? A. Yes.</p> <p>“21. Was there any express agreement between the defendant and Conley that defendant should have a lien on the grain in controversy for previous advances made by defendant to Conley? A. No.</p> <p>“22. Did Conley advise defendant by letter that he had drawn said drafts before defendant had actually received any of this grain? A. No.”</p> <p>For the defendant certain special questions were submitted, which, with the answers thereto, are as follows:</p> <p>“ 1. Had Conley in cases of shipments to the two lots, the subjects of this controversy, invariably drawn drafts through plaintiffs on defendant therefor? A. Yes.</p> <p>“2. Had Conley in cases of such previous shipments invariably drawn such drafts, with bills of lading attached, as security for such drafts? A. Not in every instance.</p> <p>“ 3. Had Conley drawn on defendant through plaintiffs on August 30, 1878, by'draft for $875? A. Yes.</p> <p>“4. Had defendant at the time reason to believe that the second draft for $875 was drawn against the same consideration or shipment as that of the said $875 draft of August 30? A. No.</p> <p>“ 6. Was the second draft for $875 drawn against the same consideration as the first draft for $875? A. No.</p> <p>“6. Were said shipments of grain put on track by Conley, under contract with defendant for sale thereof and delivery of same to defendant, at Irving station? A. In part it was.</p> <p>“7. Had defendant the right upon such shipments to receive such grain without then having possession of the bills of lading therefor? A. Yes.</p> <p>“8. Did defendant obtain possession of such grain without knowledge on his part that the plaintiffs had then any claim thereon? A. No.</p> <p>“ 9. Had defendant the actual possession of such grain before the delivery by Conley to plaintiffs of said bills? A. No.</p> <p>“ 10. Was defendant purchaser of such grain in good faith, without notice of any claim in favor of plaintiffs, or knowledge of facts which should have put him upon inquiry? A. Yes, he was..</p> <p>“11. How much had Conley overdrawn his account with the defendant on such grain transactions at the time he drew the drafts, the subject of this action? A. $894.68.</p> <p>“12. Had defendant notice of such drafts in favor of plaintiffs before having credited Conley with the full value of such shipments? A. Yes.</p> <p>“13. Were said drafts drawn by Conley on his general account with defendant, or by him for the specific value of such special shipments? A. On general account.”</p> <p>Halsey brings the case here.</p>

Error from Lyon District Court. Action brought by Heifer against Moon, to recover the sum of $15,000, the alleged value of certain goods of which plaintiff claimed to be the owner, taken by the defendant as sheriff of Lyon county, under various orders of attachment issued in certain actions pending against one Nathan Stetter. Trial at the March Term, 1880, of the district court, when the court instructed the jury, in writing, as follows: “1.

Error from. Crawford Distriot Court. ACTION by Braley against Laughlin and others, upon a note and mortgage. Trial by the court at the September Term, 1879, and judgment for the plaintiff. The defendant Laugh-lin brings the case here. The opinion states the facts.

Error from Linn District Court. Action by Agnes H. Kennedy and others, against John T. Kennedy, to enforce a trust. Trial by the court at the November Term, 187*\ and judgment for the defendant. The plaintiffs bring the case here. The opinion states the facts.

<p> Error from Atchison District Court. </p> <p>Action by attachment, brought December 22, 1879, by Simon and three others, partners as Simon, Strauss & Co., against Stetter, upon an open account alleged to be due January 15, 1880. May 20, 1880, the district court sustained defendant’s motion to dissolve the attachment, and made an order accordingly. The plaintiffs bring the case here. The opinion states the facts.</p>

Error from Leavenworth District Court. Action brought by Seokler against Delfs and others, for rent. The nature of the action, and the facts, sufficiently appear in the opinion. Judgment for the defendants at the September Term, 1879, of the district court. The plaintiff brings the case here.

Error from Leavenworth District Court. ACTION for damages brought by Hershfield against Horace B. Claflin and others, partners. Trial by the court at the March Term, 1877, and judgment for the defendants. . The plaintiff brings the case to this court. The nature of the action, and the facts, appear in the opinion.

Error from Atchison District Court. Action brought by the Missouri Valley Life Insurance Company against Price and others, on a note and a mortgage. Trial by the court, January 16, 1880, and judgment for the plaintiff. The defendants Hubbard and wife bring the case here. The opinion states the facts.

<p>1. Supreme Court — Question not Considered in. This action was begun on Sunday, but the defendant, without ever raising any question or making any objection concerning the irregular commencement of the action, voluntarily appeared in the case, filed an answer setting forth various defenses, went to trial upon the merits of the case, introduced evidence, made a motion for a new trial, and then brought the case to the supreme court on petition in error, and then for the first time, and in the supreme court, raised such question and made such objection-Held, That the objection comes too late; that the defendant should have raised the question and made the objection in the district court, and before answering to the merits.</p> <p>■% Consolidated Baptist Church; Trustees; Title to-Property. Where property is conveyed to the five trustees (giving their names) of an unincorporated Baptist church, and to their successors in trust for the use and benefit of the church; and afterward the church changes its name and again elects its trustees, reelecting only two of the original trustees .and electing three new ones; and afterward the church consolidates with another Baptist church under a new name; and the consolidated church then elects an entirely new set of trustees in place of the former ones; and the consolidated church then takes possession of the property •conveyed to said original trustees; and all the foregoing is done in strict ■compliance with and in exact conformity to thé rules, regulations, usages, customs and polity of the Baptist denomination; and afterward the consolidated church attempts in good faith to incorporate under the laws of Kansas, and becomes at least a corporation de facto; and afterward the second set of trustees above mentioned, with a very few others, in violation of the rules and regulations of the Baptist denomination, secede from the consolidated church, and the second set of trustees then claim to own and have the right to control the property conveyed to the original trustees, held, that as between the second set of trustees and the consolidated church, the consolidated church is entitled to the property.</p> <p>3.-The rules and regulations of a church are, so far as church matters are concerned, a part of the law governing the members of such church', unless such rules and regulations are clearly illegal.</p>

INFORMATION for murder in the first degree, charging Hugo Malm with feloniously killing Charles H. Wells, in ■the county of Atchison, June 30, 1880. Trial at the November Term, 1880, of the district court, when the jury returned a verdict of guilty of murder in the first degree. Motions in arrest of judgment and for a new trial were overruled, .and the defendant was sentenced in accordance with the verdict. Mahn appeals. The opinion states the facts.

Error from Atchison District Court. Action brought by Thos. Plunhett, as- administrator of the estate of Peter Plunkett, deceased, against the Railroad Company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of said Peter Plunkett. Trial at the June Term, 1879, of' the district court, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Marion District Court. ACTION brought by Mehl against D. L. Wells & Co., upon an account for beef. Trial at the October Term, 1880, of the district court, and judgment for the plaintiff for $488.28 and costs. The defendants bring the case to this court. The opinion states the facts.

<p> Error from Bourbon District Court. </p> <p>Action brought by Hammond, against the Railroad Company, under the stock law of 1874. Judgment for the plaintiff, at the December Term, 1880, of the district court. The defendant brings the case here. The opinion states the facts.</p>

Error from Riley District Court. At the September Term, 1880, of the district court, Haines had judgment against Hunt for $300, damages and costs. The nature of the action, and the facts, appear in the opinion. The defendant brings the case here.

Error from Cloud Distriet Court. ActioN brought by Gibbs against Williams and two others, to recover damages for the obstruction of an alleged watercourse. Trial at the August Term, 1879, of the district. ■court, and judgment for the defendants. Gibbs brings the case here. The opinion states the facts.

• Error from Dickinson District Court. Action brought by the Nordyke & Marmon Company against Bashor and others, to foreclose a mechanic’s lien. Trial, and judgment for the plaintiffs, at the September Term, 1880, of the district court. The defendants bring the case here. The opinion states the facts.

<p> Error from Miami District Court. </p> <p>ActioN of forcible entry and detainer, brought by Campbell against Coonradt. Trial at the May Term, 1880, of the district court, and judgment for plaintiff. The defendant brings the case here.</p>

Error from, Saline District Court. Action for damages, brought against Beckwith by Douglas, who alleged in his petition, in substance, that— On, April 7, 1876, a certain agreement was made between himself and the defendant, whereby the' plaintiff agreed to sell the “roller grain drill” for the defendant, who agreed to supply the plaintiff with as many as he could sell, and to pay him $20 lor each and every such drill by him sold; that, in pursuance of this agreement, the…

ffl'ror from Leavenworth District Court. Action brought by Caroline Gibson, as administratrix of the estate of her husband, Thomas Gibson, deceased, against the City of Wyandotte, to recover damages in the sum of $10,000, on account of the death of her husband, alleged to have been caused by the negligence of said city in maintaining one of its public streets in an unsafe and dangerous condition, and in carelessly allowing a dangerous excavation to remain therein without…

Error from, Sedgwick District Court. Replevin, brought by Smith against Hague and another, to recover the possession of three hundred bushels of wheat. Trial, and judgment for the defendants, at the April Term, 1879, of the district court. The plaintiff brings the case here. The opinion states the facts.

<p> Error from, Leavenworth District Court. </p> <p>Action by Bulhley against Graves and four others, as sureties upon a sheriff’s bond. Judgment for the plaintiff, at the December Term, 1879, of the district court. The defendants bring the case here. The opinion states the facts.</p> <p>There was no neglect, unless in notifying the plaintiff in the execution of the fact of the levy and sale, and of the loss of the execution. (7 Kas. 283: 33 N. J. L. 378; 34 id. 542; 39 Ga. 52.)</p> <p>Accepting the proceeds of the sale estopped the plaintiff from the proceeding to amerce the sheriff for not returning the execution. (33 N. J. L. 378; 39 Ga. 521; 51 id. 161; 83 Ill. 194; 21 Pa. St. 266.)</p> <p>The order or judgment of amercement is res adjudícala as to the sureties. The whole case is not thrown open for them to make the defenses which Young might have made. If it were, the proceeding contemplated by said § 478 would not amount to anything more than an action on an official bond. This is a proceeding to make sureties parties to a judgment. The proof which warranted the judgment is closed. (3 Ohio St. 522.)</p> <p>It is claimed that the defendant in error waived her rights against Young by the alleged receipt of some money returned by him with his statement long after the return day of the execution issued to him, and long after the time-he ceased to be sheriff. Even if this were material, the evidence does not show that the defendant in error authorized the taking of this money by T. E. Bulkley, as her agent, or that she acquiesced in or knew of the act. But the objection is not tenable if the facts were as the plaintiffs in error contend. The neglect to return the execution on or before the return day thereof, fixed Young’s liability. (17 Kas. 410.)</p> <p>Acceptance by a judgment creditor of proceeds of the execution, does not release the sheriff from his liability to be amerced. (4Humph.309;'2Swan,442; 2Heisk. 10; 2 Mete. [Ky.] 327.)</p>

Error from Marion District Court. INJUNCTION brought by Barker and others, against the Board of Commissioners and the treasurer of Marion county, to restrain the collection of a certain tax. Judgment for the plaintiffs, at the October Term, 1880, of the district court. The defendants bring the case here. The opinion states the facts.

Original Proceedings in Mandamus. ACTION begun in this court October 1st, 1880, to compel the issue and delivery of $5,000 of bonds, being… Held: and made proof of all the foregoing facts, and of the tender of said stock certificate and of the filing of said agreement as herein-before recited, and the plaintiff then and there demanded of said board of county commissioners, the full board being, present, and of said J. W. Lowe, the issue and deliveiy to it of the said ten…

Original Proceedings in Mandamus. ON the 4th of January, .1881, on the petition of Fletcher P. Privett, an alternative writ of mandamus was issued out of this court, and directed to T. H. Stevens, F. JB. Singer, and J. W. Clehouse, commissioners of Harper county, and II. 0.

ACTION brought by The State, on the relation of the coun'ty attorney of Marion county, against the Board of Commissioners of that county and the county clerk and the sheriff thereof, to enjoin the board from making any order calling or holding any election for the removal of the county seat of that county to Hillsboro, or for a relocation of the county seat, based upon a certain petition filed in the office of the county clerk of Marion county, March 11, 1881, and to enjoin…

Action brought by Freeman against Waynant, as administrator of the estate of J. B. Waynant, deceased, for services as an attorney. The facts are stated in the opinion, infra.

Error from, Cowley District Court. Action brought by Harris against Lynn, for an alleged breach of an implied warranty in the sale of an Quitman vibrator threshing machine, with the horse power and appurtenances belonging thereto, by the defendant to the plaintiff. Trial at the December Term, 1880, of the district court, and judgment for defendant. The plaintiff brings the case here. The facts appear in the opinion. 1.

Error from Pawnee District Court. Action brought before a justice of the peace by Knickerbocker against Baker and another, upon a promissory note. Judgment for plaintiff, January 26,1880, for $208.08. The defendants, by petition in error, took the case to the district court, and therein, at the June Term, 1880, the ruling of the justice was sustained. The defendants bring the case here. The opinion states the facts.

<p> Error from Chase District Court. </p> <p>'Ejectment, brought by the Atchison, Topeka & Santa Fé Railroad Company against Rockwood, for the recovery of the northeast quarter of section 31, in township 19, south, of range 8, east, in Chase county. Trial, and judgment for the defendant, at the May Term, 1880, of the district court. The plaintiff brings the case here. A statement of facts appears in the opinion.</p>

Original Proceedings in Mandamus. ON the 18th of December, 1880, on the petition of Rice, an alternative writ of mandamus was issued out of this court and directed to T. H. Stevens, F. B. Singer, and J. W. Olehouse, commissioners of Harper county, and H. 0.

Original Proceedings in Habeas Corpus. PETITION for a writ of habeas corpus, filed in this court by Frank B. Bort, February 3, 1881. The facts are sufficiently stated in the opinion, filed herein May 3,1881. The case was argued orally by Mr. C. F. W. Dassler, for the petitioner, and by Mr. Luden Baker, for the defendant.

Error from Saline District Court. At the November Term, 1880, of the district court, the Iiowe Machine Company demanded a finding and judgment that the defendant, Lincoln, was subject to arrest and imprisonment, and an award of execution against the person of defendant. This application the court overruled. The plaintiff brings the ease here. The nature of the action, and the facts, appear in the opinion.

Error from Atchison District Court. EjectmeNT, brought by Stebbins against Estes and four others, to recover the possession of lot 12, in block 17, in old’ Atchison. Second trial in the district court, January 17, 1881, and judgment for the plaintiff. The defendants bring the case to this court. The facts appear in the opinion. 1. The tax purchaser cannot, at his own will, extend either the statute of limitations, or the time when it shall begin to run.

Error from Rush District Court. REPLEVIN, brought by the Board of Commissioners of Rush county, against Stubbs and two others, for the possession of a certain frame building. Trial by the court, at the adjourned May Term, 1880, and judgment for the defendants. The Board brings the case here. The facts appear in the opinion.

Error from, Anderson District Court. ACTION brought by Pattie against Wilson and four others, upon a note and mortgage. Judgment for the defendants, at the September Term, 1880, of the district court. The plaintiff brings the case here. The opinion states the facts.

Error from Wyandotte District Court. ACTION brought by Ferguson against the Bank of Kansas City, to recover |403!46. Trial and judgment for the defendant, at the December Term, 1880, of the district court. The plaintiff brings the case here. The facts appear in the opinion.

Error from Chase District Court. Action by Noyes against The Missouri, Kansas & Texas Railway Company, to quiet his title to certain land in Chase county.

INFORMATION charging Daniel Pomeroy with assaulting one Robert Watson, with intent to kill and rob him, on or about October 1, 1879. Trial at the April Term, 1880, of the district court, and verdict and judgment for The State. The defendant appeals. The opinion states the facts.

Error from Leavenworth District Court. ActtoN brought by Lattin against Monroe, to recover damages for injuries to a horse, buggy and harness. Trial and judgment for the plaintiff, February 10, 1879. The defendant brings the case to this court. The opinion states the facts.

Error from Osborne District Court. INJTTNCTION, brought by Blake against the Board of Commissioners of Osborne County, and the treasurer and the sheriff thereof, to restrain the collection of a certain tax. The facts appear in 19 Kas. 299-302, and in the opinion, infra. Judgment for plaintiff at the April Term, 1879, of the district court. The defendants bring the case here.

<p> Error from Washington District Court. </p> <p>INJUNCTION, brought by Foote against Forbes, as street •commissioner, etc. The nature, of the action, and the facts, appear in the opinion. March 12, 1880, the judge of the district court dissolved a temporary injunction which had been granted in the action. Foote brings the case to this court.</p>

Error from Oraioford District Court. INJUNCTION, brought by the Union Trust Company of New York, as trustee of the M. K. & T. Rly. Co., against Braden, as sheriff of Crawford county, to restrain the collection of a certain tax. At the January Term, 1879, of the district court, a temporary injunction restraining the collection of the tax, which had been issued, was made perpetual, and costs were adjudged against the defendant, who brings the case here.

Error from Wyandotte District Court. EJECTMENT, brought by Young against Rheineeher and another, for the possession of a certain lot in the city of Wyan-dotte. Trial, and judgment for the defendants, at the April Term, 1880, of the district court. Young brings the case here. The facts appear in the opinion.

JEh'ror from Osage District Court. ACTION brought by McConnell and another against the Railroad Company, to recover for board and lodging furnished by plaintiffs to an alleged contractor of defendant. Trial, and judgment for the plaintiffs, at the January Term, 1880, of the district court. The defendant brings the case to this court. The facts appear in the opinion.

Error from Chautauqua District Court. ACTION brought by Berry against Withers and three others, upon a promissory note. The facts appear in the opinion. At the March Term, 1880, the court sustained a demurrer to the answer of the defendant Withers, who brings this ruling here.

Error from, Neosho District Court. At the April Term, 1879, of the district court, Clements,. as plaintiff, had judgment against Johnston and another, as defendants, who bring the case to this court. The nature of the action, and the facts, sufficiently appear in the opinion.

Error from Cherokee District Court. ACTION brought by Gammon and another against Prather and two others, on a promissory note. Trial, and judgment for the plaintiffs, at the April Term, 1878, of the district •court. The defendants Prather and Sandusky bring the case here. The opinion states the facts. A surety will be discharged if a new agreement be made between the creditor and the principal debtor, as in this case, extending the time for the payment of a note..

Error from Linn District Court. ACTION' brought by Drawyer against Slainbrook, on a promissory note. Trial at the November Term, 1876, of the district court, and judgment for plaintiff for $1,840.60, and costs. The defendant brings the case here. The opinion states the facts.

ACTION brought by Cobb against the Railway Company, to recover for supplies furnished for the subsistence of persons working in the construction of the defendant’s road. Trial at the September Term, 1880, of the Franklin district court, and judgment for the plaintiff. The defendant brings the case here.

. ACTION brought in the Davis district court by the Missouri Valley Life Insurance Co. against Kiehl, sheriff of that county, and five others, to recover damages for certain wheat and rye cut and taken from the land of plaintiff. Trial at the May Term, 1876, of the district court, and judgment for the defendants. The plaintiff brings the ease here.

Error from, Shawnee District Court. This action was brought September 5, 1879, by Lyman Richardson against the Kansas Pacific Railway Company, to-recover $10,000 for the injury to plaintiff's person and also to his team, harness and wagon, occasioned by the negligence of defendant’s agents and employés in running over with'its locomotive and train said team, etc., while being driven by him across Kansas avenue, a main thoroughfare of the city of Topeka, adjoining the…

Error from Cloud District Court. ACTION brought by Brown and another, partners as N. B. Brown & Co., against Barons and four others, to recover $ 1,000 with interest. Trial at the October Term, 1879, of the district court, and judgment for the plaintiffs. The defendants bring the case here. The opinion states the facts.

Error from Bourbon District Court. Action brought by Owen against the Railroad Company, to recover damages for certain hay said to have been destroyed by fire from a locomotive engine on the defendant’s railroad. Trial at the December Term, 1880, of the district court, and judgment for the, plaintiff. The defendant brings the case here. The opinion states the facts.

Error .from, Greenwood District Court. At the November Term, 1880, of the district court, Merrill, as plaintiff, had judgment against the defendant Railroad Company, which brings the case here. The nature of the action, and the facts, appear in the opinion.

Error from Franklin District Court. ACTION brought by Nancy R. Imbrie, as executrix of the estate of D. R. Imbrie, deceased, against Clark and another, upon a note and mortgage. Trial at the September Term, 1880, of the district court, and judgment for the plaintiff. The defendants bring the case here.

Etror from Elk District Court. PETITION by Manwell and Dory for a new trial in a certain cause wherein judgment had been rendered against them at the November Term, 1879, of the district court. At the April Term, 1880, the court sustained a general demurrer to this petition, which ruling the plaintiffs bring here. The nature of the action, and the facts, appear in the opinion.

Error from Chase District Court. ActioN brought by Bundrem against Derm, to recover $1,200, the value of goods alleged to have been by the defendant unlawfully converted to his own use. At the May Term, 1880, the court sustained defendant’s motion to discharge the attachment which had been granted in the action. This ruling the plaintiff brings here. The opinion states the facts. 1.

Error from Jewell DistHot Court. At the September Term, 1880, of the district court, Edmis-ton, as plaintiff, recovered a judgment for $952.25 against defendants, Fay and two others, who bring the case here. The nature of the action, and the facts, appear in the opinion.

Error from Marion District Court. Ejectmekt, brought by Eathbone against Sterling and another, to recover lots 9 and 10, in block 84, in the town of North Peabody, in Marion county. Trial at the April Term, 1880, of the district court, and judgment for the defendants. The plaintiff brings the. case here. The opinion states the facts.

Error from Shawnee District Court. Replevin, brought by Noble against Knox, to recover the possession of certain horses and farming implements. Trial at the January Term, 1880, of the district court, and judg-meat for the plaintiff. Knox brings the case here. The opinion states the facts.

Error from Reno District Court. February 14, 1880, Garner, as plaintiff, recovered a judgment against defendants Tucker and another, who bring the case here. The two special instructions (mentioned in the opinion, infra) which the defendants asked for and the court refused, are as follows: “1.

Error from Cowley-District Court. At the May Term, 1880, of the district court, MoNeil, as plaintiff, recovered a judgment against defendants Jordan and Buehman, who bring the case to this court. The nature of the action, and the facts, appear in the opinion. 1. The demurrers raised the question squarely, whether a deed procured by fraud and misrepresentation should be annulled when the grantee under the fraudulent deed has conveyed to innocent purchasers for value.

Error from Meno District Court. November 9, 1880, B. B. Shadduck filed in the district court of Reno county bis petition (court and title omitted) as follows: “Plaintiff says that he is a resident, tax-payer and patron of the public schools in School District No. 1, in Reno county, state of Kansas; that said school district is a duly-organized school district of said county and state, and is hereby made one of the defendants in this cause; that the said N. T. P. Robertson is…

Error from Butler District Court. At the March Term, 1880, of the district court, Levis, as plaintiff, had judgment against defendant Jenkins, who brings the case here. The opinion states the facts.

Error from, Butler District Court. ACTION brought by Treon against White, upon a certain judgment. Trial at the March Term, 1880, of the district court, and judgment for the plaintiff. White brings the case here. The opinion states the facts.

Error from, Nemaha District Court. ActioN on a promissory note, brought by McFarland, as administrator (with the will annexed) of the estate of Joseph B. Smith, deceased, Judgment for the plaintiff, at the April Term, 1879, of the district court. The defendant brings the case here. The facts are stated in the opinion.

Error from Saline District Court. REPLEVIN, brought by. Warner against Fleck, to recover an iron fire-proof safe. Trial at the November Term, 1879, of the district court, and judgment for the plaintiff. Fleck brings the case here. The opinion states the facts.

Error from Franklin Distriot Court. Ejectment, brought by Libbey against Clark. The facts appear in 17 Kas. 634, et seq., and in the opinion, infra. Judgment for the defendant at the May Term, 1880, of the district court. The plaintiff brings the case here.

Error from, Butler District Court. ActioN brought by Irby against Blain and another, on a promissory note and a mortgage. Judgment for the plaintiff at the April Term, 1880, of the district court. The defendants bring the ease here. The opinion states the facts.

Error from Cloud District Court At the October Term, 1879, of the district court, Short, as plaintiff, recovered a judgment against defendant Waffle, who brings the case here. The opinion states the facts.

Error from Marion District Court. February 23, 1880, Cochshult filed a petition in the’district court of Marion county, against David Christie and wife' to foreclose a mortgage executed by them on February 10,. 1879, to secure the sum of $7,215, with interest at the rate of 7-J per cent, per annum. Elijah Leonard, an attaching creditor of David Christie, was a defendant in the action.

Error from Republic District Court. ActtoN upon a promissory note, brought by. Case & Co., against Jeannette Neil, administratrix of the estate of John Neil, deceased. Trial at the October Term, 1879, of the district court, and judgment for the plaintiffs. The defendant brings the case here. The opinion states the facts. 1. Section 108 of the code applies only to actions.

Error from Clay District Court. TRESPASS, brought by Ogden against Stokes. Trial, and judgment for the defendant, at the January Term, 1880, of the district court. The plaintiff brings the case here. The opinion states the facts.

Error from Sumner District Court. Injunction, brought by the Township of Dixon, in the county of Sumner, against the Board of Commissioners and. the county clerk of said county. Trial at the November Term, 1880, of the district court, and judgment for the defendants. The plaintiff brings the case here. The opinion states the facts.

Error from Doniphan District Court. EjectmeNT, brought by Long against Wolf, to recover one hundred and twenty acres of land. Judgment for the defendant, at the March Term, 1880, of the district court. The plaintiff brings the case here. The opinion states the facts.

Error from, Linn District Court. EepleyiN for two horses, brought by Burgett against Bar-rich.

Error from Shawnee District Court. ActioN brought by F. P. Baker and three others, partners as “F. P. Baker & Sons,” upon the official bond of Spencer P. Wade, late, sheriff of Shawnee county, to recover the amount of certain printers fees. Judgment for the defendants, at the August Term, 1880, of the district court. The plaintiffs bring the case here. The opinion states the facts.

Error from Douglas District Court. At the April Term, 1880, of the district court, Rfieinschild, as defendant, had judgment against the Victor Sewing Machine Co., as plaintiff, which brings the ease here. The nature of the action, and the facts, appear in the opinion.

Error from Shawnee District Court. ACTION brought by Hall against Sanders and two others, for the recovery of certain real estate and damages for its detention. Judgment was rendered for the plaintiff at the January Term, 1880, of the district court.

Error from Shawnee District Court. J. Claeke Swayze died March 27, 1877, and on April 9, 1877, Jennie M. Swayze, his widow, was duly appointed administratrix of the estate of her deceased husband by the probate court of Shawnee county.

Error from, Shawnee District Court. ACTION brought by Kernke against Hentig, on an'account for the plaintiff’s services as a physician. Trial at the January Term, 1881, of the district court, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Labette District Court. Action under the stock law of 1874, brought by Armstrong against the Railway Company, to recover damages for killing two calves belonging to the plaintiff. Trial at the February Term, 1881, of the district court, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Doniphan District Court. At the December Term, 1880, of the district court, Smith, as defendant, had judgment against Challiss as plaintiff, who brings the case here. , The opinion states the facts.

Error from Atchison District Court. EjectmeNT, brought by Cheesebrough and another against the Atchison National Bank and James W. Parker, to recover the possession of the west twenty-four feet of lot seven, in block twelve, in the city of Atchison. Trial at the March Term, 1880, of the district court, and judgment for the defendants. The plaintiffs bring the case here. The opinion contains a sufficient statement of the facts.

Action brought in Greenwood district court, by Jordan against Miller, to recover $2,500 damages. The nature of the action, and the facts, appear in the opinion. Trial at the November Term, 1879, of the district court, and judgment for the plaintiff for $10. Jordan brings the case here.

ActioN brought before a j ustice of the peace of Rush county, by Blanton against Merriman, to recover for certain improvements on the E.of the S.W. of sec. 21, tp. 18, range 19, west, in said county, sold by plaintiff to the defendant. Trial and judgment for the plaintiff, May 5, 1880, for $90 and costs. The defendant appealed to the district court, where, at the November Term, 1880, the plaintiff had judgment for $45 and costs. Merriman brings the case here.

INFORMATION against James Rhea, for shooting and wounding with intent to kill C. E. Jenkins, in the county of Morris, on or about the 5th day of July, 1880. The defendant was •convicted at the October Term, 1880, of the district court, -and sentenced to the penitentiary for a term of four years. From this sentence he appeals. The opinion states the facts.

Error from Douglas, District Court. ACTION under the stock law of 1874, brought by Phillibert ■•against the Railroad 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 :$70 damages, $25 attorney’s fee, and costs. The Railroad Company brings the case here. The opinion states the facts.

Error from Lyon District Court. INJUNCTION, brought by Soden against the City of Emporia, the mayor and the council thereof, and Russell and Alexander, partners.

Error from Anderson District Court. ’ At the September Term, 1880, of the district' court, the Railway Company, as defendant, recovered a judgment for costs against the plaintiffs, S. P. Cornell and E. J. Cornell, who bring the case here. The opinion states the facts.

Error from Chase District Court. Action brought by Allen against the Board of Commissioners, to recover damages in the sum of $240, alleged to have been sustained by the plaintiff by- reason of the location and opening of a public road through his land. Trial at the May Term, 1880, of the district court, and judgment for the plaintiff for $200 and costs. The Board brings the case here. The opinion contains a sufficient statement of the facts.

Error from, Cowley Distriot Court. EjectmeNT, brought by Samuel A. Stephens, and J. Jay Buck and L. B. Kellogg, partners as Buck & Kellogg, to recover the north half of the northwest fractional quarter of section five, in township thirty-two, south, of range seven, east, situate in Cowley county.

Error from Labette District Court. Action brought by the New England Mortgage Security Company against Smith and three others, upon a note and mortgage. Judgment for the plaintiff, at the November Term, 1879, of the district court. At the November Term, 1880, the court made an order setting aside a sale made by the sheriff, and permitting the defendants, upon certain conditions, to redeem. The Company brings the case here. The opinion states the facts.

Error from Douglas District Court. ACTION brought by Burhans against Hutcheson and four others, upon two promissory notes and a mortgage. Trial by the court at the October Term, 1878, and judgment for the defendants. The plaintiff brings the case here. The opinion states the facts.

Error from Anderson District Court. A.ction brought by Neville against the Railroad Company, to recover damages for killing a cow and a steer belonging to plaintiff. Trial at the March Term, 1880, of the district court, and judgment for plaintiff for $65 damages, $30 attorney’s fee (including fees before the justice and in the district court), and for costs. The defendant brings the case here. The opinion states the facts.

■Error from. Osborne District Court; ACTION brought by Markley and another against Reasoner and three others, upon a promissory note, and to enforce a lien upon certain real estate. Trial at the September Term, 1879, of the district court, and judgment against the defendants. The defendants Markley and Bair bring the case here. The opinion states the facts.

Error from Saline District Court. ACTION for false imprisonment, brought by Hauss against Kohlar and three others. Trial at the November Term, 1879, of the district court, and judgment for the defendants. Hauss brings the case here. The opinion states the facts. Without a statement of one of the particulars named in the statute, we claim that the affidavit is a nullity, and confers upon the justice no jurisdiction to issue an order of arrest.

Error from Shawnee District Court. Injunction, brought by Noble against Butler and others, to perpetually enjoin the collection of the remainder due on a certain judgment. The nature of the action, and the facts, appear in the opinion. Judgment for the defendants, at the May Term, 1880, of the district court. Noble brings the case here.

Error from, Johnson D ¡strict Court. At the June Term, 1880, of the district court, Petigo had judgment against Kerner, who brings the case here. The nature of the action, and the facts, appear in the opinion.

Error from, Allen District Court. Action of forcible detainer, brought by Boelcen against Alderman. Trial at the March Term, 1880, of the district court, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Sedgwick District Court. ACTION brought by Watson against Richard and another, upon a certain order drawn upon the treasurer of School District No. 51, of Sedgwick county. Trial, and judgment for the defendants, at the May Term, 1880, of the district court. The plaintiff brings the case here.. The facts appear in the opinion.

Error from Brown Eistriet Court. Action brought by Raymond 'against Hoye and three others, to recover certain damages. The nature of the action, and the facts, appear in the opinion. Trial at the February Term, 1880, of the-district court, and verdict and judgment for the plaintiff for $353.83 damages, and for costs. The defendants bring the case here.

Error from Johnson District Court. MaNDAmus, brought by Mackey against Mariner, as mayor of Jhe city of Olathe, and others as the council thereof, to compel them to levy a certain tax. Thé facts appear in the opinion. Trial at the November Term, 1880, of the district court, and judgment for the plaintiff. The defendants bring the case to this court.

Error from Leavenworth District Court. ACTION brought by Whitaker against Hawley and others, ■for $275, rent claimed for November, 1880. Trial by the court, at the March Term, 1881, and judgment for the defendants for costs. The plaintiff brings the case to this court. The opinion states the facts. 1. Upon a covenant in a lease of land and buildings for a term of years to pay rent, the rent may be recovered after a destruction of the premises leased, by accidental fire.

Error from Lyon District Court. EjectmeNT, brought by Kregelo against Flint, for the recovery of the possession of the northwest quarter of the southeast quarter, and the northeast quarter of the southwest quarter, of section 30, township 20, range 13, situate in Lyon county. Trial at the March Term, 1881, of the district court, and judgment for the defendant for costs. The plaintiff brings the case here. The opinion states the facts.

At the April Term, 1880, of the district court of Linn county, defendant Haxtun, executor and trustee of the estate of Elnathan Haxtun, deceased, had judgment against plaintiff McKeen, who brings the case here.

At the March Term, 1881, of the district court, David Miller was found guilty of an assault with intent to kill. The court sustained a motion in arrest of judgment, from which ruling The State appeals. The facts appear in the opinion.

Error from Roolcs District Court. ACTION brought by Reid against Kenworthy, to recover $100 damages for entering upon certain land claimed by the plaintiff, cutting down trees growing thereon, and carrying away and converting the same to the defendant’s use. The defendant answered, among other things, as follows: “Third.

Error from, Elk District Court. - EjectmeNT, brought by McBee against Eckert. Trial, and judgment for the plaintiff, at the October Term, 1880, of the district court. The defendant brings the case here.

Error from Wyandotte District Court. Action, brought by Arn against Hoppin, for the recovery of the possession of a certain lot in the city of Wyandotte. Trial at the April Term, 1880, of the district court, and judgment for the defendant. Arn brings the case to this court. The opinion states the facts.

Error from Allen District Court. ACTION, in the nature of quo warranto, brought by Wake-field against Patterson, to try the right between them to the office of director of School District No. 16, in Allen county. Trial at the November Term, 1880, of the district court, and judgment for the defendant. The plaintiff brings the case here. The opinion contains a statement of the facts.

Error from Labette Distriot Court. Action brought by Mount Pleasant Township, in Labette county, against B. F. Hobart and C. M. Congdon, upon a certain bond. Trial at the November Term, 1880, of the district court, and judgment for the defendants. ' The plaintiff brings the case here. The opinion states the facts.

Error from Miami District Court. AcjtioN brought by Campbell against Fuller, to recover $225 claimed as a commission for selling certain land for the defendant. Trial at the February Term, 1880, of the district court, and judgment for the defendant. The plaintiff brings the ease here. The opinion states the facts.

Error from Ford District Court. At the June Term, 1880, of the district court, Combs recovered a judgment against the Railroad Company for $72 and costs. The Company brings the case here. The opinion states the facts.

Error from Lyon District Court. At the March Term, 1880, of the district court, defendant, Pye, recovered a judgment against plaintiff, Armor, who brings the case here. The facts appear in the opinion.

Error from Ellsworth District Court '. • At the September Term, 1880, of the district court, defendant, Stassen, had judgment for $164.40 against plaintiffs, D. M. Osborne & Co., who bring the .case here. The facts appear in the opinion.

Error from Osage District Court. ACTION for damages for personal injuries, brought by James Smith, an infant, by his next friend, William Smith, against the Railroad Company. Trial at the April Term, 1879, of the district court, and judgment for the defendant. The plaintiff brings the case here. The facts appear in the opinion.

Error from. Elk District Court. ACTION for damages for a breach of promise of marriage, brought by Mary L. Ames against Edward Brinsden. Judgment by default for the plaintiff for $2,000, at the October Term, 1879, of the district court. At the April Term, 1880, the court vacated this judgment, of which order the plaintiff complains, and brings the case to this court. The facts appear in the opinion.

Eight cases, heard and considered together in this court in'June, 1881.