Volume 28 — Kansas Reports

Original Proceedings in Habeas Corpus. Two petitions for writs of habeas corpus, filed in this-court, January 5, 1882 — one thereof by Timothy Carr, and the other by John Dillon. The petitioners/alleged that they were illegally deprived of their liberty by one W. D. Dis-brow, sheriff, and keeper of the common jail of the county off Shawnee, in the state of Kansas, at the city of Topeka, in- the county and state aforesaid.

Error from Cowley District Court. February 28, 1880, MeNeil filed the following petition (title omitted) in the district court of Cowley county; “The plaintiff states that on the first day of January, 1880, she became, by a conveyance thereof, of that date, in writing,, the owner in fee simple of the following-described real estate,, situated in. the county of Cowley, state of Kansas, to wit, lot numbered eight, in block numbered one hundred and sixty-seven, in the city of…

Error from Miami District Court. Action in the nature of ejectment, by Elijah F. Allen against Rebecca J. Allen, A. B. Lavett and Sarah J. Lavett, begun June 8, 1881, to recover the undivided one-fourth of the S.W.J- of sec. 25, tp. 15, of range 24, east, in Miami county, and the undivided one-fourth of the west one-half of the S.W.J of sec. 25, tp. 15, of range 24, east, in said county, and also for the sum of $420 for rents and profits.

Error from Neosho District Court. October 10th, 1881, P. B. Campbell commenced an action before a justice of the peace of Neosho county,.against Perry MoGowen, to recover the possession of certain cattle. The order for the delivery of the property was returned on the 18th day of October, 1881.

Error from Allen District Court. February 21st 1881, Jos. N. Cowles and Jos.

Error from Labette District Court. At the November Term, 1881, of the district court,- E. D. Keirsey and others recovered judgment against the Board?of County Commissioners, upon claims for fees as officers, witnesses and jurors in a misdemeanor case, tried before a justice of the peace.

Error from, Montgomery District Court. November 4th, 1880, T. Ewing Miller filed a petition in the district court against Harriet M. Turner, Wm. F. Turner, and Wm.

Error from Jefferson District Court. Action by Jared P. Barnes against Zack Gragg, brought September 19, 1879, to recover upon a promissory note,, of which the following is a copy: “$1,941.23 Valley Falls, Kas., April 17,1876. “ One day after date I promise to pay to the order of M. P. Evans as cashier, at the Valley Bank and Savings Institution, nineteen hundred forty-one and twenty-three one-hundredths dollars, with interest at twelve per cent, per annum after due until…

Error from Sedgwick District Court. Replevin brought by Werner against Bergman. Trial at the May Term, 1881, of the'district court, and judgment for defendant. The plaintiff brings the case here. The facts appear in the opinion.

Original Proceedings in Mandamus. Action brought in this court February 22, 1882, by The Btate of Kansas, on the relation of the attorney general, against the Board of Commissioners of Anderson County. The object of the action, and the facts, sufficiently appear in the opinion.

Action brought by Loofborow and another against Shaffer and another, on an injunction bond to recover $150, the fee paid their attorney for procuring a dissolution of the injunction, and $50 as other expenses in said action. At the February Term, 1881, of the Wilson district court, a general demurrer to the petition was sustained. The plaintiffs bring the case here.

Error from Osage District Court. Action brought by Dodge against Bailey, to recover damages for a malicious prosecution. Trial at the April Term, 1881, of the district court, and judgment for plaintiff for $1 and. costs. The defendant brings the case here.

Original Proceedings in Mandamus. Action brought originally in this court, April 7,1882, by The Commonwealth Company, to compel the defendant, C. J. Brown, as clerk of the supreme court of the state of Kansas, to deliver to the plaintiff, for publication in the Daily Commonwealth, a daily newspaper published at Topeka, Kansas, copies of the official syllabi of the decisions of the supreme court. The defendant duly filed his answer May 2, 1882.

Error from Wilson District Court. Ejectment, brought by Hudson against Russell and others, to recover the possession of certain real estate in Wilson county. Trial at the May Term, 1881, of the district court, and judgment for plaintiff. Russell brings the case here. The facts are stated in the opinion.

Error from Jewell District Court. ' At the September Term, 1881/of the district court, plaintiff Edmiston recovered a judgment for $879.31 and costs against defendants Fay and two others, who bring the case here. The opinion states the facts.

Error from Johnson District Court. January 5, 1882, (Nov. Term, 1881, of the district, court,) plaintiff, Walter, recovered a judgment against defendant, Kay, who brings the case here. The opinion states-the facts.

<p>Assignment for the Benefit of Creditors; Attachment Properly Discharged. Where an action was commenced on a promissory note before it was due, by attachment, under \\ 230 to 236 of the civil code, on the grounds that the defendant had sold, conveyed or otherwise disposed of his property with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or was about to make such sale, conveyance or disposition of his property with such fraudulent intent, or was about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts; and the defendant moved to discharge the attachment, on the ground that the matters and things set forth in the plaintiff’s affidavit for the attachment were untrue and false; and upon the hearing of the motion it was shown for the purpose of sustaining the attachment that the defendant had previously executed a voluntary assignment of nearly all his property, conveying the same to an assignee in trust for the benefit of the defendant’s creditors; and from the evidence introduced it appeared that this assignment was in fact made in good faith, although there were some irregularities connected with' the execution and consummation of the assignment which might possibly have rendered it void, or voidable; and the court below discharged the attachment: Held, Noterror; that if the defendant had not done anything, nor was about to do anything, for the purpose of hindering, delaying or defrauding his creditors, the plaintiff was not entitled to the attachment, although possibly the assignment, for certain irregularities, might have been void or voidable.</p>

<p> Error from Atchison .District Court. </p> <p>At the November Term, 1880, of the district court, plaintiff McCrum recovered a judgment against defendant Challiss, who brings the case here. The facts appear in the opinion.</p>

<p>1. Corporation, Quiescent for Nineteen Years; Quo Warranto, Maintained. Where a corporation is organized for the purposes of the promotion of education, the conducting of experiments in agriculture, the testing of soils, and the cultivation of trees; and, to carry out these purposes, the corporation is authorized by its charter to locate a college at a certain place, and to purchase real and personal property, but not to hold at any one time more than five thousand acres of real property; and the corporation is afterward duly organized, and for a time carries out the purposes for which it was created, but afterward transfers all its property both real and personal, and ceases to maintain a college, or to perform any of the other duties or things required or authorized by its charter, and remains in such condition for nearly nineteen years; and at the end of such time the attorney general commences a civil action in the nature óf quo warranto, in the name of the state, for the purpose of obtaining a judicial determination dissolving the corporation, held, that the action may be maintained.</p> <p>2.---And further held, that the action may be maintained, although there may be a suit pending at the time, brought by the corporation against one of its grantees, to recover some of the real estate which the corporation had conveyed to such grantee nearly nineteen years prior to that time.</p>

<p> Error from Marshall District Court. </p> <p>At the August Terna, 1881, of the district court, plaintiff Ward, as assignee of W. E. Brown, had judgment against defendant Kunz, who brings the case here. The nature of the action, and the facts, appear in the opinion.</p>

<p>1. Party, Not to Impeach His Own Witness; Extent of Rale. Where a party to a suit introduces in evidence the deposition of the other party, the party introducing the deposition is not bound by every statement made in the same, but may rely upon other statements contained in such deposition, and also introduce other evidence for the purpose of proving his case, although these other statements and this other evidence may tend to contradict and impeach some of the statements made by the said party in his said deposition. The rule that a party shall not impeach his own witness, goes only to the extent that a party shall not introduce evidence for the mere purpose of impeaching one of his own witnesses, and it does not go to the extent that he may not introduce evidence to prove the facts of his case, although incidentally such evidence may impeach or contradict some of the statements made by one of his previous witnesses.</p> <p>2. Disposition of Property, To Defraud Creditors; Evidence. Where W. and S. enter into an arrangement to dispose of certain property, for the purpose of hindering, delaying and defrauding the creditors of the owner of such property, and in carrying out such arrangement, S., as the attorney in fact of the owner of the property, executes a chattel mortgage to W,, and on the next day S, in conjunction with W., sells and disposes of the remainder of the property belonging to such owner, held, in an action between the attaching creditors of the owner of the property and W., to determine which has the prior lien on the property mortgaged to W., that evidence of the disposition of all of such property by S. and Wo both that mortgaged to W. and that disposed of by S. and W. on the next day, may be given in evidence for the purpose of showing the nature and character of the entire transactions had between S. and W., and for the purpose of showing whether the chattel mortgage itself was executed for the purpose of hindering, delaying and defrauding the creditors of the owner of the property.</p> <p>3. Chattel Mortgage, Void In Toto. Where a chattel mortgage was executed, purporting to secure the amount of $7,920 of indebtedness, and there was in fact only the sum of $3,000 of such amount bona fide indebtedness, and the remainder of the amount was fraudulent, held, that the mortgage was void in toto, and that it cannot be sustained even to the extent of the actual debt covered by the mortgage.</p> <p>4. Attaching Creditors, Lien of, Not Defeated; Practice. Where several attachments are levied upon certain personal property, and afterward the property is replevied by another party, who claims the same by virtue of a chattel mortgage, and while the replevin action is pending, the property is sold by order Of the court and the proceeds are held subject to the further order of the court, and afterward a personal judgment is rendered in favor of the attaching creditors, and no order is t#en made with reference to the attached property, and afterward in the replevin action a judgment is rendered in favor of the sheriff and against the party claiming under the chattel mortgage, and holding that the lien of the attaching creditors is prior to the lien of the holder of the chattel mortgage, held, that the mere fact that a personal judgment only had been rendered in favor of the attaching créditors in the suits between them and the owner of the property, does not defeat the lien of the attaching creditors upon the proceeds of the attached property, nor give to the holder of the chattel mortgage a prior right to the property or to the proceeds thereof.</p>

At the November Term, 1881, of the district court, Sterns was found guilty of an unlawful sale of intoxicating liquor, and sentenced to pay a fine of $250. and costs, from which judgment he appeals. The facts appear in the opinion.

Error from Marion District Court. At the April Term, 1881, of the district court, plaintiff Dudley had judgment against the defendant School District No. 78, in Marion county, which brings the case here. The facts appear in the opinion.

Error from, Shawnee Distriet Court. • Action between Phelps and two others, plaintiffs, and the Railroad Company, defendant, in certain garnishee proceedings. Trial at the January Term, 1882, of the district court, and judgment for defendant. The plaintiffs bring the case here. The facts appear in the opinion.

Error from Doniphan District Court. Action brought by Jeffers and thirteen others against Forbes and another, to set aside certain deeds. The nature-of the action, and the facts, appear in the opinion. At the-September Term, 1881, the court sustained a demurrer to plaintiffs’ petition, to which ruling they excepted, and have-brought the case here for review.

Error from Neosho District Court. Action brought by Wentworth against Phelps and others, to correct a mistake in a certain mortgage on real estate, and accordingly to 'reform the proceedings in the foreclosure thereof. Trial at the July Term, 1881, of the district court, and judgment for plaintiff. One of the defendants, the First National Bank of Parsons, brings the case here. The facts'are sufficiently stated in the opinion.

Error from, Cowley District Court. Action brought by Mann against Corrigan and the Southern Kansas & Western Railroad Company, to recover $301.90 for work done in the construction of the railroad of said company. May 10, 1881, the district court sustained a demurrer to plaintiff’s petition, which ruling Mann brings here. The opinion states the facts.

<p>1. Railroad Company, When not Absolved from Liability. Where stock are killed by a railroad train, the company is not absolved from liability under ch. 94 of the Laws of 1874, by proof that the place of injury was within the territorial limits of an incorporated city, or even that it is within such portion of those limits as is regularly laid off into blocks and lots, surrounded by streets and alleys.</p> <p>2. Parol Testimony, When Incompetent. Where it appears from a plat offered in evidence, that a street in a city has been regularly laid out and dedicated to the uses of the public, parol testimony is not competent to prove that such street has been vacated.</p> <p>8. Fence ; Burden of Proof. In an action under said chapter 94, to recover of a railroad company for stock killed, if it appears from the plaintiff’s testimony that the road was unfenced at the place of injury, the burden of proof is on the company to show that it was under no obligation to fence at such place, or that the night herd law was in operation, and that the animals were killed in the night-time.</p> <p>4. Verdict, When Set Aside. Where in such an action the plaintiff’s testimony simply shows that the animals were killed sometime between 6 o’clock p. m. and 8 o’clock of the next morning, and is absolutely silent as to the hour at which they were killed, and it is conceded that the night herd law was in force, and the testimony of the defendant from unimpeached witnesses shows that they were killed about the hour of midnight, which testimony is contradicted neither directly nor indirectly by any witness and is supported by every fact appearing in the case, a verdict for the plaintiff will be set aside as against the evidence, although it was coupled with a special finding that the jury did not know the hour at which the animals were injured.</p>

<p> Error from Leavenworth District Court. </p> <p>At the September Term, 1881, of the district court, plaintiff Harris recovered a judgment for $90 and costs against the Railway Company, which brings the ease here. The facts appear in the opinion.</p>

Error from, Miami District Court. At the December Term, 1881, of the district court, defenddant Coonradt recovered a judgment against plaintiff Myers, who brings the case here. The facts appear in the opinion.

Error from Washington District Court. Action brought by Kelsey against Layne, to recover the possession of six head of cattle. Trial at the November Term, 1880, of the district court, and judgment for defendant. Kelsey brings the ease here. The opinion states the facts.

Error from Allen District Court. March 7, 1882, Kasebeer filed his petition in the district court against Long, in the following words: “ 1. Plaintiff says that he is and for years has been the owner and in the actual possession of the southwest quarter of section thirty (30), township twenty-five (25), range twenty (20), in Allen county, Kansas, and that the same is partially inclosed, and about fifty acres thereof broken and in cultivation. “2.

Original Proceedings in Habeas Corpus. Petition filed in this court on June 8,1882, on behalf of Franklin Vanderberg, for writ of habeas corpus. The petition alleges: 1. That the said Franklin Vanderberg is illegally restrained of his liberty by one Henry Hopkins, warden of the penitentiary of the state of Kansas, at the penitentiary of said state, at Lansing, Kansas. 2. The cause and pretense of his restraint, according to the best knowledge and belief of the said J. Gr.

Error from.Dickinson District Court. Action brought by Davies ¿gainst Cole, to quiet his title to certain land in Dickinson county. Trial at the February Term, 1882, of the district court, and judgment for defendant. Plaintiff brings the case here. The opinion states the facts.

jError from Leavenworth District Court. Action by Douglass against Anderson, of forcible detainer of lot 18, in block 93, in Day & McCaulay’s subdivision of the city of Leavenworth. The case was originally brought before a justice of the peace of Leavenworth county, and certified up to the district court by the justice upon the ground that it appeared, to his satisfaction that the title to the premises sought to be recovered, was in dispute.

Error from Bourbon District Court. Action by Noel against Drake, commenced January 5, 1881.

Information charging false pretenses under § 94 of the •crimes act.

Error from, Leavenworth District Gourt. Action brought by William McGlinn against the Chicago, Rode Island & Pacific Railway Co., to recover the value of a cow which strayed upon defendant’s railroad, within the limits of the Fort Leavenworth military reservation. The case arose under the stock law of 1874, making railroad corporations liable for stock killed on roads not inclosed with a good and lawful fence, to prevent such animals from being on the road.

Error from Shawnee District Court. At the September Term, 1881, of the district court, plaintiff, Miley, had judgment for $45.31 and costs against defendants Hazen and two others, who bring the case here. The facts sufficiently appear in the opinion.

Information against C. W. Lund, for an unlawful sale of intoxicating liquor, on or about August 31, 1881. Trial at the December Term, 1881, of the district court, when the defendant was found guilty and sentenced to pay a fine of $300 and the costs of prosecution, and to forfeit his permit under ch. 128, Laws of 1881. The defendant appeals.

Error from, Greenwood District Court. At the December Term, 1881, of the district court, plaintiff Dudgeon recovered á judgment against the Railway Company, which brings the case here. The facts appear in the opinion.

Error from Barton District Court. Action brought by Lee against Morton, as administrator of the estate of T. C. Tinnon, deceased, and the sheriff of that county, to enjoin the collection of a certain judgment. July 28, 1881, judgment was given for the plaintiff, granting the perpetual injunction prayed for. The defendants bring the case here. The opinion states: the facts.

Pkror from Pottawatomie District Court. Action brought by Sabin against Sherman and two others, as commissioners of Pottawatomie county, to perpetually enjoin defendants from canvassing the votes polled at the election held in that county, September 23, 1879, for the relocation of the county seat thereof.

Error from Leavenworth District Court. Action in the nature of ejectment, brought by Ellen Tuhan against W. E[. Duffitt, to recover the possession of a certain lot in Leavenworth city. Trial had at the March Term, 1881, of the court, without a jury; second trial had at the September Term, 1881, of the district court, without a jury. The trial judge made and filed the following findings of fact: “1.

Error from, Atchison District Court. Action brought by Aldrich against Moulton and two others, partners as Moulton & Yates, to recover $16,600 damages on account of certain injuries to plaintiff's person and property. Trial at the November Term, 1881, of the district court, and verdict and judgment for plaintiff for $3,450 and costs. The defendants bring the case here. The facts appear in the opinion. 1.

Error from Labette District Court. Nr the February Term, 1882, of the district court, defendant Kirkpatrick had judgment against plaintiff Meixell, who brings the case here. The facts are sufficiently stated in the opinion.

<p> Error from Jewell District Court. </p> <p>Petition in error, filed in this court March 9, 1882, by Hodson, for the purpose of reviewing the action of the court below in overruling motions to dissolve attachments in each of the following cases: Tootle, Shireman & Co. v. P. W. Hod-son;. Catlin & Knox v. P. W. Hodson; Smith, Frazier & Co. v. P. W. Hodson; Quigg & Allen v. P. W. Hodson; and R. L. McDonald & Co. v. P. W. Hodson. The facts sufficiently appear in the opinion.</p>

At the December Term, 1881, of the district court, John B. Wells was convicted of murder in the first degree and ■sentenced accordingly, from which judgment he appeals. The opinion states the facts.

Error from Dioldnson District Court. At the May Term, 1881, of the district court, defendants Seohrist and another had judgment against plaintiff Davidson, who brings the case here. The opinion states the facts.

Error from, Wyandotte District Court. Action brought by Richards against the Board of Commissioners of Wyandotte County and the treasurer of that county, to recover certain taxes. Trial by the court, at the April Term, 1881, and judgment for the defendants. The plaintiff brings the case here. The opinion states the facts.

Error from Reno District Court. February 14, 1880, defendants Fletcher and others recovered a judgment against plaintiffs J. & C. McMurry, who bring the case here. The nature of the action, and the facts, appear in the opinion.

Error from DieMnson District Court. Action was brought by A. Laura Armstrong against Union School District No. 1, Dickinson and Saline Counties, for damages alleged to have been caused by the defendant’s illegal dismissal of the plaintiff as a school teacher of said Union school district. The action was begun before a justice of the peace, and after trial and judgment was appealed to the district court, where it was tried by the court without a jury.

Error from Marion District Court. Action brought by Doster against Howe, as treasurer of Marion county, to recover the amount of a certain county •order which defendant refused to pay. Trial at the adjourned November Term, 1881, of the district court, and judgment for defendant. Plaintiff brings the case here. The opinion states the facts.

Error from Harvey District Court. Action brought by Koons and wife against Rittenhause find two others, for the cancellation of certain deeds. Trial at the March Term, 1881, of the district court, and. judgment •for defendants. Plaintiffs bring the case here. The opinion states the facts. 1. The facts show the land to have been the homestead-of the plaintiffs at the time Koons made the deed.

<p>1. Case-Made; Practice in Sup-erne Gourt. Where a case for the supreme court is properly made, served, settled and signed by the judge of the district court, and then brought to the supreme court before the same is attested or authenticated by the clerk of the district court, and a motion is made in the supreme court to dismiss the case and the petition in error for that reason, and then the plaintiff in error on leave withdraws the case temporarily and presents it to the clerk of the district court, who then and there duly attests and authenticates the same with proper certificates and with his signature and the seal of the district court, held, that the motion of the defendants in error to dismiss the case and the petition in error because of such want of attestation and authentication will be overruled.</p> <p>2. --A petition may be amended before answer, without leave and without prejudice, where the amendment is served upon the defendant or his attorney.</p> <p>3. ---In an action commenced by attachment on a claim before due, it is not necessary to set forth in the petition the grounds upon which the attachment is obtained.</p> <p>4. --Where a summons is personally served upon the defendant, and afterward he appears in the action otherwise than for the mere purpose of questioning the jurisdiction of the court, the court unquestionably has jurisdiction of the person of the defendant.</p> <p>5. Attachment; Practice. In an application for an order of attachment under $ 230 et seq. of the civil codediefore the claim is due, if the order of attachment is not granted, then the action must be dismissed; and if the order of attachment is granted, but should afterward be set aside for the reason that the grounds therefor are not true, then the action thould also be dismissed; but if the order of attachment, after being granted, should be set aside for some mere technical defect in the attachment proceedings, then the district cqurt should as a rule exercise a sound judicial discretion as to whether the action should be dismissed or not; and if not dismissed, the plaintiff should be required to immediately correct, by amendment or otherwise, the defects in his attachment proceedings, so as to make them correspond with the law governing actions and attachment proceedings instituted on claims not yet due. If the order of attachment should not be set aside, but should be upheld, and only the levy of the attachment upon particular property should be set aside, then the action should not be dismissed unless the plaintiff should then wholly al^ndon his attachment proceedings; and if only a portion of the attached property should be discharged from the attachment, then the action should not be dismissed, but should proceed to judgment. And as an application of these principles, where a plaintiff commences an action on a claim before due, and procures an attachment under \ 230, et seq., of the civil code, and afterward and after the claim has become due, and upon a motion made by the defendant to discharge the attachment upon the ground that the facts stated and set forth in the affidavit for the attachment are untrue and false, wholly abandons his attachment proceedings and relinquishes the attached property to the defendant, and afterward procures another attachment, under \ 190 of the civil code, upon the ground that the defendant is a non-resident of the state of Kansas, and the defendant then moves to dismiss the action upon the ground that the same was commenced upon a claim not due, and that the original attachment proceedings had been wholly discharged and the attached property released, held, that the action should be dismissed.</p>

Error from Wabaunsee District Court. At the March Term, 1881, of the district court, John B. McLean and Walter A. Buel were convicted of grand larceny, and sentenced to the penitentiary, from which judgment, they bring error. The opinion states the facts.

Error from Saline District Court. Injunction brought by the Board of Regents against J. B. Hamilton, as treasurer of Saline county, to perpetually restrain the defendant, and his clerks, deputies, and successors in office, from selling or attempting to sell certain lands for taxes. Trial at the May Term, 1881, of the district court, and judgment for the defendant. The plaintiff brings the case here. The facts appear in the opinion.

Error from Wyandotte District Court. Action brought by Mason against Taylor, to recover for professional services. Trial at the April Term, 1881, of the district court, and judgment for plaintiff. ■ The defendant brings the case here. The opinion states the facts.

Error from, Sumner District Court. Ax the October Term, 1881, of the district court, the defendant Roard of Education'had judgment against plaintiff Mary E. Hamrick, who brings the case here. The facts are stated in the opinion.

Error from Harvey District Court. Action brought by the Harvey County Savings Bank against the City of Burrton, to recover upon seven warrants of that city. Trial at the November Term, 1881, of the district court, and judgment for the plaintiff. The defendant brings the case here. The facts are stated in the opinion.

Error from JacJcson District Court. Action bi’ought by the Railroad Company against Shoup and two others, to recover the possession of certain land in Jackson county. The facts appear in Shoup v. C. B. U. P. Rid. Co., 24 Kas. 547, et seq., and in the opinion, infra. Trial at the November Term, 1881, of the district court, and judgment for defendants. The plaintiff brings the case here.

JfiJrroy from Wyandotte District Court. Action brought July 21, 1874, by Willis Wills, Jr., and «other heirs of Willis Wills, against George B. Wood, and numerous other defendants. Trial by the court, in July, 1876, when the court made findings of facts as follows: “1. That Willis Wills, sen., the ancestor of these plaintiffs, did, in 1854, file his intent to preempt the land in suit, in the proper land office.

Action brought in the district court of Franklin county by Rohrbaugh against Fletcher and another, to recover for materials furnished to improve certain lots in. the city of Ottawa. Olin having a tax deed on the lots, was made a party defendant. Trial at the' January Term, 1882, when the plaintiff and the defendants, H. E. and F. M. Fletcher, had judgment against defendant Olin, who brings the case here.

rAT the March Term, 1882, of the district court of Johnson county, Dorcas Greenwell recovered a judgment against Robert Greenwell, who brings the case to this court.

Ejectment, brought in the district court of Leavenworth county by Flint against Douglass, to recover the possession of a certain tract of land in that county. Trial at the September Term, 1881, and judgment for defendant. Flint brings the case here.

Error from Brown District Court. The firm of I. N. Speer & Co., of Hiawatha, in the fall of 1880 employed C. H. Orth to purchase corn for them at Hiawatha, and gave him the money with which to do it. The contract between the parties was that Speer & Co. were to furnish him the money, which he was to deposit in the bank of Morrill & Janes at Hiawatha, and as he bought corn he was to check it out.

At the June Term, 1881, of the district court of Wood-son county, defendants Shears and others had judgment against the plaintiff Waddell, who brings the case here.

Error from Rooks District Court. . At the May Term, 1881, of the district court, defendant Shaw recovered a judgment against plaintiff Randall, who brings the case here. The facts are stated in the opinion.

<p>1. Petition, Allegations of, Construed. The statements in a petition that an incorporated bank has long since ceased to transact business, is insolvent, and has no property or assets of any description out of which the money alleged to be due can be collected by execution or other process of law, are not equivalent to an allegation that the corporation is dissolved.</p> <p>2. Bank; Execution against Stockholders, When. Where an action is brought against an incorporated bank to recover money due upon a certificate of deposit issued by it to the plaintiff, and certain stockholders of the bank are also made parties defendant, and the petition fails to show that the bank is dissolved, or that primarily there is any liability against the stockholders within the terms of the statute, no judgment can be rendered in the first instance against the stockholders. After judgment is obtained against the corporation, if the execution issued thereon against its property be returned nulla bona, then execution may issue against any of the stockholders to an extent equal in amount to the amount of stock owned by him or her, in accordance with the terms of \ 32, art. 4, ch. 23, Comp. Laws of 1879.</p>

Error from .Lyon District Court. Action brought by Sterry against Hetherington, to recover damages for an alleged libel. At the September Term, 1881, of the district court, defendant’s demurrer to the petition was overruled. This ruling Hetherington brings here. The facts are sufficiently stated in the opinion.

Error from Shawnee District Court. Mandamus brought by The State of Kansas, on the relation of the attorney general thereof, against the Board of Commissioners of Shawnee county, to compel the defendant to audit and pay a part of the cost and expense of establishing a certain state road. The facts appear in the opinion. November 12, 1881, the district court sustained defendant’s motion to quash the alternative writ which had been herein issued, and gave judgment accordingly.

Error from Franklin District Court. At the May Term, 1881, of the district court, plaintiff Menefee had judgment against defendants Jones and another, for the recovery of the possession of certain real estate. September 27, 1881, the court overruled defendants’ application for an order directing the service of notice of the time at which the case-made herein' should be presented for settlement. This ruling defendants bring here. The opinion states the facts.

Error from Bourbon:District Court. Action brought by the Howe Machine (\ompany against Miner and others, to foreclose a judgment lien. May 5,1881, the defendant Louisa Miner filed a motion asking that all that part of the petition be stricken out which referred to the land,, the lien, and the rights of defendant in and thereto. The court sustained the motion, and trimmed the petition down to a simple suit for money only against this defendant on a former judgment.

Error from Sumner District Court. Action brought by McKinney and two others, partners, against Purcell and another. At the April Term, 1882, the district court sustained defendant’s motion to discharge certain attached property, which ruling the plaintiffs bring here. The facts are stated in the opinion.

Error from Atchison District Court. Proceedings by the Atchison, Topeka & Santa Fé Railroad Company, to condemn certain lands owned by the Central Branch Union Pacific Railroad Company. The • former company being about to enter upon these lands, the latter company applied for a temporary injunction, which the judge of the district court refused February 13, 1882. This ruling the plaintiff company brings here. The opinion contains a sufficient statement of the facts.

Error from, Shawnee District Court. Injunction, granted at the January Term, 1882, of the district court, for plaintiff Patch and against the Railroad Company, which brings this order, here for review. The facts appear in the opinion.

Error from Douglas District Court. Action brought by Edwin Whipple, an infant, by his next friend, Frank B. Whipple, against the Union Pacific Railway Company, formerly the Kansas Pacific Bailway Company, to recover damages for personal injuries. Trial at the November Term, 1881, of the district court, and verdict and judgment for the defendant. The plaintiff brings the case here. The opinion sufficiently states the facts.

Error from, Miami District Court. Action brought by Drake and another against Black and others, to recover certain real property, and also the rents and profits thereof. At the May Term, 1882, the court overruled defendants’ demurrer to the petition, which ruling they bring to this courf

<p> Error from Johnson District Court. </p> <p>At the March Term, 1882, the court sustained the motion of the defendant Railroad Company to dismiss plaintiff’s appeal and strike the cause from the docket, and overruled his application for leave to file an appeal bond therein. These rulings Beckwith brings here. The facts appear in the opinion.</p>

Error from Sumner .District Court. Action by Wells, Fargo & Co. against the Merchants’ and Drovers’ Banh of Caldwell, Kansas, J. S. Danford and W. D. C. Smith, to recover the sum of $8,000, with interest at the rate of seven per cent, from the 30th day of November, 1881.

Error from Woodson District Court. April 18, 1881, August Todman commenced his action against J. P. Cowdin in the district court of Woodson county, to recover judgment for the sum of - $2,500, with interest thereon at the rate of eight per cent, per annum from the 15th day of June, 1880, upon five several promissory notes of $500 each, executed by Cowdin on June 15, 1880, and also to foreclose a mortgage embracing a quarter-section of land situate in that county, given to…

Error from Sedgwick District Court. Action brought by Lewis against Kirk and another, upon a note and mortgage. Trial at the May Term, 1881, of the district court, and judgment for defendant Kirk and against plaintiff Lewis, who brings the case here. The facts appear in the opinion.

Error from Sumner District Court. Action by Quinlan, Montgomery & Co. against The Merchants’ and Drovers’ Bank of Caldwell, Kansas, and J. S. Danford, to recover $2,895.62. The petition was filed in the district court.of Sumner county, November 26, 1881, on a certain sight draft drawn by the bank in favor of and payable to the order of Quinlan, Montgomery & Co., which draft, upon presentment, was refused payment.

Error from Bourbon District Court. Action by Wilson against Larhin, to quiet title. Trial by the court, before W.C.W., judge pro tern., at the December Term, 1881, and judgmentfor plaintiff. Thedefendant brings the case here. The opinion states the facts.

<p>1. 'Written Contract; Voidable for Fraud. Where a person positively makes false representations as an inducement for another to contract with him, and such other person, relying wholly upon such false representa" tion, enters into a written contract, the contract is voidable for fraud, although the false representations were innocently made.</p> <p>2. Fraudulent Promissory Notes, Not Collectible. Where a railroad company was seeking to procure local aid for the construction of its road> and in pursuance of this plan its board of directors at a regular meeting adopted a blank form for notes for the purpose of obtaining private subscriptions; and by the order of the Aboard a number of these blanks were delivered to one of the members of the board, who resided at the town to which the railroad was to be built, and it was made his dhty by the order of the board to work up the desired aid; and such person be- . ing a Swede, and having great inflhence'among the population of that nationality in his neighborhood, employed one Carl Carlson, another Swede of influence, who could not read or write English well, 'to take the blanks and obtain from the Swedish population in his town subscriptions to the railroad; and Carlson, under the direction and with the consent of said director, made positive assertions of fact to a Swede farmer, who could not read or understand English thoroughly, as to the purport and meaning of the language of the notes, which assertions of fact were false and untrue, though believed by the director and Carlson at the time to be true, and such Swede was induced thereby to sign the notes — such notes, being obtained by false assertions of fact, are fraudulent, and if accepted by the railroad company from its director cannot be collected from the maker thereof, and being non-negotiable, cannot be enforced in the hands of a purchaser from the railroad company for a valuable consideration.</p>

Error from Allen District Court. At the March Term, 1882, of the district court, plaintiff Jackman recovered a judgment against defendant Leitzbach, who brings the case here. The nature of the action, and the facts, appear in the opinion. •

Error from Leavenworth District Court. The facts in this case are as follows: About March 1,1881, JR. B. Soper leased a tract of land in Leavenworth county of Elizabeth H. Hook, of Pittsburgh, Pennsylvania, for a term •commencing March 20, 1881, and ending March 1, 1882, and contracted to pay as rent the sum of $150 in installments.

Err.or from Bourbon District Court. ■ Action brought by Corbin and another against Bronson, to recover certain land in Bourbon county. Trial at the December Term, 1881, of the district court, Hon. W.C. W., judge pro tern., presiding, and judgment for defendant. Cor-bin brings the case here. ' The opinion states the facts.

Error from Dickinson District Court. Action of forcible detainer, brought by Kellogg against Lewis. The opinion contains a sufficient statement of the facts. Trial at the October Term, 1881, of the district court, and judgment for defendant. Plaintiff brings the case here,

Error from Chase;-District Court. Griffis sued the Railroad (Company before a justice of the peace, for the value of a certain steer calf killed by the cars of the defendant company. Judgment was taken on default, and the case appealed to the district court, where it was tried by the court without a_-jury, at the December Term, 1881. The court, among other findings of fact, found that— ¡ “3.

Error from, Osage District Court. Action brought by James Smith, an infant, by his next friend, William Smith, against the Railroad Company, to recover damages for personal injuries. Trial at the October Term, 1881, of the district court, and verdict for the plaintiff for $5,000 damages. New. trial refused, and judgment on the verdict for the plaintiff. The defendant brings the case to this court. The facts appear in Smith v. A. T. & S. F. Rid.

Error from Labette District Court. At the February Term, 1882, of the district court, plaintiff Koch recovered a judgment against the Railway Company, which brings the case here. The opinion states the facts.

At the March Term, 1882, of the district court, George A. Plowman was found guilty of robbery iu the first degree, and sentenced to imprisonment in the penitentiary for the term, of ten years, from which sentence he appeals. The opinion states the facts.

jError from, Miami District Court. Action brought by Iowa T. Shively against Beeson and three others, on a promissory note. Trial at the February Term, 1882, of the district court, and judgment for plaintiff. The defendants bring the case here. The opinion states the facts.

Error from Doniphan District Court. Action by Luth against Martha A. Brenner and Adam Brenner, to recover $1,200, with interest at 7 per cent, per annum from April 12,1876. Trial at the April Term, 1881, of the district court, and judgment for plaintiff. Defendants bring the case here. The opinion states the facts.

jError from Bourbon District Court. At the May Term, 1882, of the district court, Hahn, as plaintiff, had judgment for $110 and costs, against defendants Wolf and another, who bring the case here. The opinion, states the facts.

<p> Error from Franklin District Court. </p> <p>Action by Ella Leggett against Alfred Johnson, to recover damages for a breach of promise of marriage. Verdict and judgment for plaintiff for $1,250, at the January Term, 1882, of the district court. The defendant brings the case here. The opinion states the facts.</p> <p>1.' The court erred in instructing the jury as follows:</p> <p>“The jury are authorized to take into consideration, in support of the express promise alleged on the part of the plaintiff, the facts and circumstances accompanying the acquaintance of .the parties, the visits of the defendant to the plaintiff, his accompanying the plaintiff to meetings and social gatherings — in fact, the whole intercourse of the parties; and if from all the evidence you are satisfied that the contract testified to' by the plaintiff was entered into, you will be authorized to find for the plaintiff.”</p> <p>It was undoubtedly true, prior to the change in the law of ■evidence, whereby parties were permitted to give evidence, that marriage contracts were in some cases sought to be upheld in the manner given by the court to the jury; but this instruction was erroneous in this, that the inferential promise of marriage was given to the'jury as a support for the alleged specific contract of marriage. If there was a specific contract, then the inferential promise was unnecessary; if there was no specific contract, then in either case too great prominence was given in the charge to the visits of the defendant to the plaintiff. This exact instruction has been commented upon, as we think, in Walmsley v. Robinson, 63 111. 41. There the jury were told in substance “that the promise of marriage might be inferred from- the conduct of the parties and the circumstances which usually attend an engagement of marriage, as visiting, the understanding ¡of friends and relatives, preparations for marriage, and the reception of the defendant by the family as a suitor.” The supreme court in passing upon this instruction declares it too broad. “We think the instruction should not have been given.” “It by no means follows, because a gentleman is the suitor of a lady and visits her frequency, that a marriage engagement exists between them. If,this weré so, it would be dangerous for an unmarried man to pay attention, to an unmarried woman.” It was said by the court that the tendency of juries in such cases “was to lean to the side of the women.” Never had this a clearer exemplification than in this case now before the court.</p> <p>2. In connection with the charge of the court, the defendant Johnson requested the court to give the following charge to the jury:</p> <p>“If the plaintiff stated to the defendant, or to others who repeated her statements to the defendant, that she was engaged in marriage to a person named Artz, and the defendant believed it, it makes no difference in the case whether in fact she was so engaged.” “If the defendant only paid such attentions to the plaintiff as a man might pay to a woman engaged to another, in consequence of plaintiff’s statements to defendant that she was' so engaged, then the plaintiff cannot rely on such attentions' to prove or substantiate a promise of marriage.”</p> <p>The necessity of this charge, in.connection with the charge already given by the court to the jury, will be seen on a little consideration of the testimony given in the case.</p> <p>It appears from the testimony of many witnesses that the plaintiff had represented not only to the defendant, but to various other parties, that she was engaged to a young man at her old home in Illinois, by the name of Artz. This appears by the defendant’s own testimony, which the plaintiff put in as part of her case, being the so-called deposition of the defendant, in which it is in evidence that he addressed several letters for the plaintiff to Samuel Artz, sometimes in San Francisco, sometimes at Oregon, Illinois. From this' testimony and that of other witnesses, it would seem.that the plaintiff gave out that she was engaged to a man by the name of Artz, in Illinois. The court having charged the jury- that the visits of the defendant to the plaintiff might be considered by them in proof of the marriage contract, it became important atad relevant that the jury should be instrubted that if the visits and the intercourse had been made on the supposition of an engagement of the plaintiff to another person than the defendant, then they would not have the same weight or influence as they would have were they addressed to an unengaged person. The plaintiff, to negative this story that she had circulated with respect to her engagement to Artz, (nowhere denying it herself or that she had given currency to it,) introduced in evidence the deposition of some witnesses in Illinois by that name to the effect that there was no such person there to whom she could become engaged. Now the jury should have been told that she was bound by her statements ; that Johnson was not required to ascertain- whether she was or not an engaged person.</p> <p>It is quite evident that two .persons who are engaged to different parties might treat each other with much more freedom, knowing of their mutual engagement, than they otherwise would. If Artz was a myth, it would make no difference if the defendant really believed that she was engaged to such a person; and after the court had seen fit to instruct the jury as to the relations and general intercourse of the parties, as-they seemed on the theory of the marriage contract, it would seem very clear that the jury should have been instructed on the other branch of the case also. For it may well be believed that Johnson would not have been so frequent a visitor to her house had he not known that she was engaged tQ' another, and hence his conduct would not be misconstrued.</p> <p>3. The court below certainly erred in refusing the second instruction asked for by the defendant. If the defendant paid only such attentions to the plaintiff as a man might properly do to a young lady who was engaged to another, and they were paid in accordance with that understanding, she could not make them the basis of a promise of marriage between herself and defendant. It is the case of a young woman, a stranger, coming into a country where there are few unmarried men, herself poor and born out of wedlock, telling that she is engaged to a young man back in the village from which she came; under these circumstances she receives visits from the defendant, who was in charge of the house in which her family lived, and attempts to make these attentions the basis of a promise of marriage. Under these circumstances, it would seem to be the duty of the court to instruct the jury upon so vital a point.</p> <p>4. The ruling of the court in regard to the testimony of Jane Pledges we think is error in this case. It is true that as a general rule, the weight of authority in this country is to the effect that a party cannot discredit his own witness by statements claimed to be at variance with his testimony, but this rule has its exceptions. (2 Met'c. [Ky.] 17; 1 Browne, [Pa.] 176.) In the case at bar the latter doctrine commends itself to the favorable consideration of the court. While in a great measure the conduct of the examination of witnesses must be left to the discretion of the court and its ruling under the circumstances, yet it seems to us that taking into account the nature of the case, the intimacy disclosed as existing between the plaintiff and the witness as shown by her testimon y the evident hostility of the witness to the defendant in this case, and the alacrity with which the witness displayed her bias and prejudice in favor of plaintiff, all tended to show that the truth could not be extracted in any other way than by showing her declarations made at.a time when there could have existed no incentive to mendacity.</p> <p>The necessity of the cases that have been tried has in England resulted in the following provision in the Common-Law Procedure, § 22, [quoted in the opinion, infra.] See Jacob Fisher’s Digest, 5098.</p> <p>The duty of examining counsel is here pointed out, and this was the course offered to be pursued, but the court ruled that the objection made by counsel below should be sustained. And of this we complain, although the code of Kansas has no similar provision to that above cited. The cardinal feature of our code is to assist the parties in obtaining justice. The spirit controlling the practice of law under the code is, and of right ought to be, in harmony with that object. We cannot conceive of an instance in which a more flagrant injustice could be perpetrated by the sustaining of an objection, and we think it at least an abuse of discretion which is a manifest error in this case.</p> <p>5. [Counsel’s review of the evidence, omitted.]</p> <p>We now have the testimony of nine witnesses, all of them contradicting the statement of the plaintiff as to the engagement between herself and the defendant. It was in view of this testimony, in which the mass and preponderance were in favor of the defendant, that the court was called upon to review on a motion for a new trial the sufficiency and preponderance of the evidence. In support of the motion for a new trial, the case of Williams v. Townsend, 15 Kas. 564, was cited; but the court overruled the motion, flatly refusing to weigh the evidence in the cause. This was error. This court has laid down certain salutary rules as to the duties of the trial court in relation to setting aside the verdict as against the evidence. The trial court is bound to examine and determine, on the motion for a new. trial, the sufficiency of the evidence in the case. If the court had doné so in this case, the verdict would have been set aside. The rule laid down by the court in this case, is the rule which obtains in the supreme court, that where there is any evidence to sustain the verdict, the supreme court will not interfere with the finding of the court below. This application of the rule we think is error. And where the court below has failed to consider the question of the preponderance of the evidence, the verdict should not be sustained.</p> <p>It is undeniable' that the trial court held its duty done when it saw there was some evidence to sustain the verdict. In fact, it ruled that the supreme court had stated the duty of the trial court too strongly in Williams v. Townsend, supra.</p> <p>In this case the most cursory review of the evidence shows how imperative it was for the court below to have considered the evidence adduced, and to have seen where the preponderance lay. In shutting its eyes to the question presented, the court seriously erred.</p> <p>It is claimed that the charge authorizing the jury to take into consideration, in support of the express promise, the facts and circumstances accompanying the acquaintance of the parties, their visits, etc., is erroneous within the decision in Walmsley v. Bobinson, 63 111. 41. A careful examination of that case, however, leads to an opposite conclusion. There, the jury were authorized to find the promise, from the facts and circumstances detailed. Here, they were told that they might consider them in corroboration of the express promise sworn to. Manifestly this is correct. (12 Reporter, 93.)</p> <p>The defendant asked for an instruction based upon certain statements attributed to the plaintiff concerning a mythical person named Artz. As requested, the instruction would certainly have misled or at least mystified the jury. Whatever there was about this man Artz, was before the jury, among the “facts and circumstances” concerning which, as we have seen, the jury were already instructed. But it contains a manifest error, for even though the plaintiff was engaged tp another, if the defendant, knowing that fact, (as he now claims,) still promised to marry her, he must be held liable for his default. Besides, it clearly appears from the despositions of both parties, that no such person was in existence. This Artz matter was a collateral issue, brought into the case by the defendant as a sort of counter-irritant.</p> <p>The suggestion that persons engaged, but not to each other, may fairly be presumed to treat each other with greater freedom than they otherwise would, is certainly an unsound proposition in law and morals.</p> <p>The ruling upon the testimony of the witness Jane Hedges is correct. Indeed, this is admitted to be so under the general rule, but it is claimed that an exception ought to have been made in this case. No surprise, accident, or other reason to take this case out of the admitted.rule, is suggested; but it is in effect’argued that in order to do justice .in this particular trial, a rule of evidence well known and long established ought to have been set aside. It is safer to follow the “ old paths.”</p> <p>Finally, the broad claim is made that the preponderance of the evidence is with the defendant, and for that reason the verdict ought to have been set aside. It is argued that the facts are first to be passed upon by the jury, and next by the court; that the revision by .the court is not to be confined to the question whether the verdict is supported by legal evidence, and is free from frahd, but to ascertain where the preponderance of the evidence, in the judge’s opinion, rests. That is, that the judge, as to all questions of fact, is an appellate tribunal, whose jurisdiction may be invoked by a motion for a new trial; and this startling proposition, it is claimed, is supported by the decisions of this court. We hope it is not. Now to all this, we make two answers: First, the preponderance of the evidence is not with the defendant, unless it can be affirmed that a qualified and equivocal denial preponderates against a clear, straightforward and unequivocal affirmation. Here is not only the engagement and promise sworn to, but all the incidents of courtship clearly stated. The defendant says in substance: “Yes, I paid these attentions, and at one time we talked of marriage, but that was broken off. True, I continued my visits as before, but it was because you asked me to.” When we reflect that this was between a girl of sixteen and an experienced business man of forty, the absurdity of the defendant’s claim is the more apparent. Again, the positive statements of the plaintiff, as we have seen, are supported by the evidence of the defendant’s express admissions, as well as his deliberate and long-continued course of conduct. And if anything further were needed, it was supplied by numerous witnesses called by the defendant himself, showing that the prospective wedding of these parties was a matter of neighborhood talk. The young people of the plaintiff’s acquaintance often asked her when the marriage was to come off, and similar questions; and one gossippy old lady undertook to provoke her jealousy by pointing out her affianced in company with another lady, saying, “There goes Alf. and his new girl.” The witness said she did this “ to see how Ella would take it.” Another witness, who seems to have been “going somewheres,” overtook Ella on the road, and although an entire stranger, forthwith asked her “when that wedding was coming off.” Manifestly the defendant must have made his love affairs quite conspicuous, and his attentions very marked indeed, or he could not so easily supply the witness stand by the young and old of both sexes, so well posted upon this long-expected wedding in high life in Peoria.’ And yet it is seriously contended that, because this young girl, exercising the'usual grace of maidenly modesty, answered these busybodies with evasion and denial, she is to be deemed as admitting that no marriage engagement subsisted! We do not insist that this court shall take judicial notice of the habits and inclinations of young people under similar circumstances, but we do say that the common knowledge of human nature which everybody may be presumed to possess clearly shows that what are called admissions on her part are only the natural expression of maidenly reserve,-secreting from too-familiar eyes the sacred affairs of the heart which other people had no business with; and even though she carried, these evasions to the verge of falsehood, it is only what has been done by the sex in numberless instances. Counsel ought to remember that young girls do not usually parade the country with the legend, “I am engaged,” bound upon their foreheads, even though old bachelors, exhilarated and softened by the smiles of their betrothed, may be eager to publish the fact. It is claimed further, that after Mr. Johnson had in fact married another, Miss Ella denied that “Alf.” had ever asked her hand. Suppose she did. ■She was being teased about his “going back” on her. She was smarting under a sense of cruel wrong, and being taunted by others upon her discomfiture, sought refuge in a denial. Shall this be held an admission? The above are fair samples of the so-called admissions of the defendant; and yet it is chiefly ■upon such testimony that the court below was asked to find that the verdict was contrary to the evidence.</p> <p>Second, if there was proper and material evidence tending to prove the issue on the plaintiff's part, and. the jury, without fraud or mistake, were fairly convinced by it, as shown by their verdict, then their conclusion is final, no matter what the judges may think as to the mere preponderance of evidence. The practice contended for would overthrow trial by jury, or make the jury at best the mere adviser of the court. It would subvert a provision of the constitution, and in effect repeal a clause of the code. (Bill of Eights, § 5; Code, § 266.) Manifestly these provisions do not mean a mere preliminary trial, but a final determination of the issues, subject only to the proper revision of the court when their verdict was not sustained by the evidence, or where through fraud or mistake they have manifestly misapplied it. This case is clearly within the rule laid down by this court. (17 Kas. 145.)</p> <p>Counsel say the court “ flatly refused to weigh the evidence.” We do not so understand it. Its judgment was appealed to by a motion for a new trial, and by argument thereon, and its judgment sustained the verdict. The denial of the motion, in the language of this court in the case just cited, “must be taken as the certificate of the trial court that the verdict is either fully in' accord with its belief upon the testimony, or else that there was such a fair and reasonable doubt as to the weight of the evidence, pro and con, that honest and intelligent minds might differ,” and that therefore “the verdict must be accepted as just.” Certainly any remark made by the judge in deciding the motion, made, as we may fairly suppose, to soothe 'the excited feelings of the losing party, cannot be considered against the legally-expressed judgment of the court — even if the remark has any proper place in the record, which we doubt.</p>

Error from Brown District Court.. At the January Term, 1882, of the district court, plaintiff Toennisson recovered a judgment against defendant Moore, •who brings the case here. The opinion states the facts.

Error from Osborne District Court. At the December Term, 1881, of the district court, Margaret E. Gibbony, as executrix of F. R. Gibbony, recovered a judgment against defendant Hudson, who brings the case here. The opinion contains a statement of the facts.

Error from Shawnee District Court. Action brought by Hentig against the Kansas Loan and Trust Company, to recover for professional ’services as an attorney at law. January 10, 1882, the jury returned a ver•diet for plaintiff for $1,337, instead of $10,186.13, the sum sued for. New trial denied, and judgment upon the verdict for. plaintiff, who brings the case to this court. The opinion states the facts.

Error' from Labette Eistriet Court. At the May Term, 1881, of the district court, plaintiff Curl had judgment for $195 against the defendant Railway Company, which brings the case here. The nature of the action, and the facts, appear in the opinion.

Error from Shawnee District Court. Action brought by Mary II. Heller against the Railroad Company, to restrain its occupation of certain vacated ground, and to have the same adjudged a public thoroughfare. At the April Term, 1882, the district court refused to grant plaintiff a temporary injunction in such action, which ruling she brings to this court. The opinion states the facts.

Error from Johnson District Court. At the March Term, 1882, of the district court, Goldeny as plaintiff, had judgment against defendants Reed and Baxter, who bring the case .here. The facts appear in Reed v. Golden, 26 Kas. 500, and in the opinion, infra.

Action by Whetstone against Paul, for damages done by defendant’s horses .and cattle to plaintiff’s crops. Trial at the May Term, 1881, of the district court of Franklin county, and judgment for plaintiff. Paul brings the case here.

At the March Term, 1882, of the district court of Atchison county, plaintiff Meredith recovered a judgment against defendant Thompson and two others, who bring the case here.

At the September Term, 1881, of the district court of Crawford county, plaintiff Hough had judgment against defendant Patmore, who brings the case here.

Error from Lyon District Court. At the March Term, 1882, of the district court, Wilson recovered a judgment against The Missouri Pacific Railway Company for the sum of $16, for damages for killing a heifer belonging to the plaintiff, and for the further sum of $40.25 for costs of suit. The jury returned a general verdict for the plaintiff, and answered in writing the following questions.: “1.

Error from Jackson District Court. Action by Sarbach against Mary Newell and Samuel JJ. Newell, her husband, brought May 21, 1881, in the district court, to recover the possession of six-sevenths of lot No. 43, in the city of Holton, and for partition. At the November Term of court for 1881, first trial was had. Judgment was set aside, and new trial granted.

Error from, Brown District Court. Action begun 21st of March, 1880, by Christopher Beck-man against Joseph Riohardson and John Richardson, to-recover the possession of the south half of the southwest quarter of section 4, town 4, range 17, in Brown county. Defendants filed an answer, which being held bad on demurrer, on June 2, 1880, they obtained leave of the court to file an amended answer. On July 27, 1880, plaintiff filed his reply.

Error from Smith District Court. At the October Term, 1881, of the district court, plaiutiif Cannon recovered a certain judgment against defendant Tar-penning, who brings the case here. The opinion states the facts.

Error from Greenwood District Court. Replevin, brought by Bosworth and another against Verner, as sheriff of Greenwood county, to recover the possession of certain cattle. Trial at the August Term, 1881, of the district court, and judgment for the plaintiffs. The defendant brings the case here. The opinion states the facts.

At the October Term, 1881, of the district court of Smith county, plaintiff Ransom had judgment against defendant Gates, who brings the case to this court.

Error from, Johnson District Court. At tbe March Term, 1882, of the district, court, defendant Dorcas Greenwell had judgment against plaintiff Robert Green-well, who brings the case here. The opinion states the facts. 1. The first special instruction given for defendant is erroneous.

Error from Jackson District Court. Replevin brought by Bishop against Jones, as sheriff of ' Jackson county. The facts appear in the opinion. Trial at ' the November Term, 1881, of the district court, and judgment for defendant. Plaintiff brings the case here.

Error from Chase District Court. At the December Term, 1881, of the district court, plaintiff Ferry recovered a certain 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. Shawnee District Court. Action by Wendell against Whitaker and others, to quiet title. Trial by the court, at the April Term, 1881, and-findings and judgment for defendant. Wendell brings the case here. The opinion states the facts.

Error from Neosho District Court. Action brought by Parrott against Ambrose and another, to recover a personal judgment on three promissory notes, and to foreclose a mortgage given to secure the same. The facts appear in the opinion. At the April Term, 1882, of the district court, the plaintiff had judgment against the defendants, who bring the case here.

Error from Rice District Court. 1 At the January Term, 1882, of the district court, J. A. Porter and R. B. Porter, partners as Porter & Porter, as plaintiffs, recovered a judgment against defendants W. C. Edwards, R. E. Edwards and D. J. Fair, partners as Edwards Brothers & Fair, who bring the case here. The nature of the action, and the facts, appear in the opinion.

Error from Harvey District Court. December 12, 1881, the plaintiff filed the following petition in the district court of Harvey county, to wit: “The plaintiff, B. F. Stout, complains of the defendant, H. L. Ennis, and for cause of action says: “That during the year 1878, the plaintiff was auditor of the county of Henry, in the state of Ohio; that the defendant was a candidate in the democratic party for the nomination for that office, and that the defendant then and there…

<p> Error from Greenwood District Court. </p> <p>Action brought by Mary F. Stickel and John Culler, to perpetually enjoin the defendants, the road overseer, the township trustee and the board of county commissioners, from removing the plaintiff’s fence, and opening what the defendants claim to be a public highway across the plaintiff’s land. The case was tried by the court below without a jury, and the court made special findings of fact and conclusions of law, as follows:</p> <p>FINDINGS OF FACT:</p> <p>“1. At the time, of the beginning of the said action, the defendant H. L. Stoddard was the legally elected, qualified and acting trustee of Eureka township, Greenwood county, Kansas; and the defendant Philip Phillips was the legally elected, qualified and acting road overseer of road district No.4, in said Eureka township; and G. W. Springer, Samuel Brookover and Samuel Holmes were the legally elected, qualified and acting members of the board of county commissioners for said county.</p> <p>“2. In 1871, and previous thereto, F. B. Stickel, the husband of the plaintiff Mary F. Stickel, was the owner of the S.'W. £ of sec. 34, T. 25, R.10, E., in said county. In 1874 said plaintiff and her said husband conveyed said premises to one Joseph Stickel, who in 1876 conveyed the same to the plaintiff Mary F. Stickel, who ever since has been and now is the owner thereof.</p> <p>“3. At the July session of 1871 of the said board of county commissioners, the said board, upon the petition of John McPeclc and others, legally and properly, and in full compliance with the law then existing, located and established, by its order duly and properly made, a county road as follows: Commencing at the quarter-section corner on the north line of section 16, T. 25, R. 10, in said county, and running thence south one mile; thence east on the section line to the southeast corner of said section; thence south on the section line to the southeast corner of section 33, in said township and range; said road to be sixty feet wide. And afterward, on the 6th day of July, 1871, said board, by its order duly and legally made, ordered the trustee of Eureka township aforesaid to cause said road to be opened for public use and travel.</p> <p>“4. At the time of the establishment and location of the road by the board of county commissioners as aforesaid, the entire line of said road was over open, unoccupied and un-. inclosed lands, and the same remained so open and unoccupied and unimproved continuously afterward, until the spring of 1881.</p> <p>“5. In 1879, the west half of said road, for a distance of eighty rods north of the southwest corner of the .said lands of the plaintiff Mary F. Stickel, was fenced up by one Brock, the owner of the lands adjoining, which fence has ever since remained there, though ordered to move the same by road overseer.</p> <p>“ 6. The remaining portion of the west half of said road, where it touches the said land of the said plaintiff Mary F. Stickel, was fenced up by one Eolly, in 1879, who removed the same by order of the road overseer before the commencement of this action.</p> <p>“7. In the spring of 1881, the plaintiff fenced up the said road after being notified by the road overseer not to do so, and said road overseer threw it down. Plaintiff rebuilt it, and began this action to restrain said overseer from throwing said fence down again, and to have said road declared vacated by lapse of time. At the time this suit was begun, defendants were threatening to take down plaintiff’s said fence, and, but for said suit, would have done so.</p> <p>“8. Except where said road touches the said plaintiff’s land, the entire line thereof is open and unobstructed and unoccupied, and has been ever since its location.</p> <p>“9. The plaintiff John Culler was, during the year 1881, in possession of the said S.W. ¿ of section 34, as the tenant of the plaintiff Mary F. Stickel. Said land was inclosed with a fence, and a portion of said quarter-section was under cultivation, which portion of said land was rented' to said Culler for said year 1881, and said Culler was to pay said plaintiff the one-half of the corn raised thereon that year as rent therefor.</p> <p>“10. About three-fourths of a mile of said road north from the southwest corner of sec. 34 is crossed by several deep ravines, which make general travel over such portion of said road impossible, though there has been some local and occasional travel thereon. This condition has existed ever since it was first established. Since the location of said road, this portion thereof has been traveled occasionally between said ravines, but not enough to make a well-defined and beaten wagon-track. The general travel in that direction has been on a track leading around said ravines, and varying from said road from 80 feet to 100 yards. Said ravines have never been improved, and no attempt has ever been made to construct crossings over the same, or to work or improve any part of said portion of said road. Excepting said ravines, said road would be a fairly good natural road.</p> <p>“11. The plaintiff Mary F. Stickel has never received any damages on account of the location of said road, nor been tendered any, and never consented to the location thereof.”</p> <p>CONCLUSION OP LAW.</p> <p>“1. The plaintiffs are not entitled to the perpetual injunction prayed for.”</p> <p>Upon these findings of fact and this conclusion of law, the court below rendered judgment in favor of the defendants and against the plaintiffs for costs, and refused the injunction. The plaintiffs bring the case to this court for review.</p>

Prosecution under ch. 128, Laws of 1881. The information chai’ges that— “On the 30th day of April, 1882, in the county of Smith,, and state of Kansas, one Louis N. Wells, who was a practicing physician, did then and there unlawfully and willfully prescribe vinous, fermented, and other intoxicating liquors, and that the intoxicating liquors prescribed as aforesaid were not prescribed in cases of actual sickness, and were not necessary for the health of any patient or person…

Action brought in the district court of Leavenworth county, by P. 8. Brown, as trustee for Smith & Keating and the Smith & Keating implement company, against H Mabbett and another, for the proceeds of certain goods. Plaintiff obtained an order of attachment in the suit, on the ground that Mabbeit’s alleged liability was fraudulently incurred. Mabbett moved to discharge this attachment, which motion the court sustained December 16, 1881, and made an order accordingly.

Error from Shawnee'District Court. Action brought by The State of Kansas, on the relation ■of A. H. Nance, as county attorney of Shawnee county, against Lester M. Crawford and G. N. Boutell, to perpetually shut up and abate the further continuance of a certain illegal liquor saloon. The petition, filed May 2, 1882, alleges that — “The said Lester M. Crawford is the owner in fee of certain premises situate in the city of Topeka, in the county of.

Error from Shawnee District Court. June 3, 1882, the defendants, Lester M. Crawford and G. N. Boutell, recovered a judgment against the plaintiff, The State, which brings the case to this court. The nature of the action, and the facts, sufficiently appear in a case of the same title just decided, ante, and in the opinion, infra.

Error from Leavenworth District Court. Action by Maultby against the City of Leavenworth, to recover damages for personal injuries. The opinion states the facts. January 19, 1882, the defendant recovered a judgment for costs against the plaintiff, who brings the case here.

Error from, Lyon District Court. Action brought by Jones against Pettingill, to recover a balance due on settlement of a partnership transaction. July 5, 1882, the plaintiff recovered a judgment for $118.44, and costs, against defendant, who brings the case here. The facts are stated in the opinion.

Error from, Miami District Court. . The nature of the action, and the facts, sufficiently appear in the opinion-. At the October Term, 1882, of the district eourt, plaintiff Campbell moved to set aside the second and amended -report made by the referee, but this motion was overruled, and judgment entered in favor of plaintiff for $490.60, and for all costs in the action. Plaintiff brings the case here.

Error from Leavenworth District Court. Replevin brought by Joseph Westenberger against Benjamin F. Simpson and George F. Sharritt, to recover the possession of a certain stock of goods. May 20, 1882, plaintiff recovered judgment against defendants, who bring the case here. Thé opinion sufficiently states the facts.

<p>1. Beocks, Considered Town Lots; Tax-Scde Notice, Nee for. Where the proprietor of forty acres of land adjacent to Fort Scott, laid out the same as a town and platted the land into blocks, calling it “Williamstown,”' and reserved in the plat parcels of ground for streets and other purposes, and also numbered the blocks, one of which embraced five acres and the others smaller parcels of land, and fixed the width of the-streets, and thereafter duly acknowledged and recorded the map or plat-in the office of the register of deeds of the county where the town or addition is situate, held, that the blocks so numbered are to be considered town lots, and in publishing any notice of the sale of any one of them for taxes, only the fee should be charged therefor specified for publishing a notice of sale of a town lot.</p> <p>2. No Ten-Cení Fee for Selling. The county treasurer, in selling land1 and town lots at tax sale, is not authorized by the statute to include a fee of ten cents “for selling” each tract of land or town lot.</p>

Error from Crawford District Court. Action brought by William B. Osborne, executor of Noah Ely, deceased, againstT. G. Harlan, Mary Harlan, J. W. Young, and Frank Playter,'to recover judgment upon a certain coupon promissory note given by I. G. Harlan to the plaintiff, and to foreclose a mortgage given by Harlan and wife to the plaintiff to secure the note.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus in behalf of Emily C. Evans, by Joseph A. Bullen, against Josephine Cantwell, filed in this court August 22, 1882, and thereupon the writ was allowed and issued. The case was argued and submitted October 24,1882, and was heard and decided by Brewer, J., at chambers, in the city of Leavenworth. Judgment was entered for the petitioner and the opinion filed October 31, 1882.

Error from Rush District Court. The following are the facts, in this case, chronologically stated: On the 12th day of February, 1878, there was an election held in Rush county for the purpose of relocating the county seat of that county; on the 14th day of that month, the board of commissioners met and canvassed the vote, and declared the result in favor of Walnut City.

<p> Error from Leavenworth District Court. </p> <p>Action brought by Madden, against Smith, to recover $358.75 on an account for work and labor. Trial at the December Term, 1881, of the district court, and judgment for defendant. Madden brings the ease here. The opinion states the facts.</p>

Error from Crawford Eistriot Court. Action in the nature of ejectment, brought by Braley against Langley, to recover the possession of certain land in Crawford county. Trial at the January Term, 1882, of the district court, and judgment for defendant. Braley brings the case to this court. The facts appear in the opinion.

Error from, Shawnee District Court. The nature of this action, and the facts, are sufficiently-stated in the opinion. July 5, 1882, the defendants, J. Thomas .and Peter Smith, partners as the Citizens’ bank, had judgment against the plaintiff, Mrs. E. -A. Reynolds, who brings the ease here.

Error from Leavenworth District Court. Two actions in the district court, tried upon appeals from the assessment of damages for the right of way appropriated by the Leavenworth, Topeka & Southwestern Railway Comvany. In one action, plaintiff Paul recovered a judgment for $3,000 against the defendant company, February 2,1882; and in the other action, plaintiff Holman had judgment for $400 against the company, January 31, 1882. The defendant brings the cases here.

Error from Wyandotte District Court. Ejectment, brought by George W. Tourtellott and George P. Aloott, against Charles Wilkins and five others, to recover the possession of a certain tract of land in Kansas City, Kansas. The opinion contains a sufficient statement of the facts. December 29, 1881, it was adjudged that the plaintiffs recover of the defendants the land described in their amended petition, and have judgment against defendants for costs.