Volume 3 — Kansas Court of Appeals Reports

Memorandum. — Error from Atchison district court; Robert M. Eaton, judge. Action by The State Insurance Company of Des Moines, Iowa, against W. D. Gilbert and George H. Roberts, upon an agent's bond. Judgment for plaintiff. The defendants bring the case to this court.

Memorandum. — Error from Shawnee district court; Z. T. Hazen, judge. Action by W. C. Hamilton and another against William Thomson and another to set aside a .judgment. Judgment for defendants. Plaintiffs bring the case to this court.

Memorandum.— Error from Shawnee circuit court; J. B. Johnson, judge. Action by Pleasant Smelser against the city of Topeka to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant. Judgment for defendant. New trial granted plaintiff. The defendant brings the case to this court.

Memorandum.— Error from Shawnee district court; John Guthrie, judge. ' Action by J. H. Hitchcock and others against George D. Hale, as administrator, on a promissory note. Judgment for plaintiffs. Defendant brings the case to this court.

Memorandum. — Error from Shawnee district court; John Guthrie, judge ; Action by Burnham, Hanna, Munger & Co. against Cook Bros. & Co., in which an attachment was issued. There was an order overruling a motion to discharge the attachment, and a judgment for plaintiffs. Defendants bring the case to this court.

Memorandum. — Error from Nemaha district court; J. F. Thompson,- judge. Action 'by Ida M. Gibbons against William Playden for purchase price of certain personal property. Judgment for defendant. Plaintiff brings tire case to this court.

Memorandum. — Error from Wabaunsee district court; William Thomson, judge. Action by Josephine Smith against Henry J. J. Wege and wife to foreclose a mortgage. Judgment for plaintiff as against defendant Henry J. J. Wege. Plaintiff brings the case to this court.

<p>Memorandum.— Error from Wyandotte district court; Henry L. Auden, judge. Action by George Steinmuller and others against the city of Kansas City and others for an injunction. Judgment for defendants. The plaintiffs bring the case to this court.</p>

Memorandum.— Error from Wyandotte court of common pleas; T. P. Anderson, judge. Action*by The Missouri Pacific Railway Company against Joseph Gruendel, on appeal from an award for right of way. Judgment for defendant. The plaintiff brings the case to this court.

Memorandum. — Error from Shawnee district court; John Guthrie, judge. Action by Frank Durein against John W. Hughes, John W. Hall, Henrietta Hall and others on a note and mortgage. Judgment for plaintiff, and John W. Hall and Henrietta Hall bring the case to this court.

Memorandum. — Error from Leavenworth district court; Robert Crozier, judge. Action by John C. Douglass against The City of Leavenworth and others to quiet title. Judgment for plaintiff. Defendant city brings the case to this court.

<p>1. Confiscated Realty — Life-Estate. The estate forfeited by proceedings to judgment under the confiscation act of congress of July 17,1862, and the joint resolution of the same date, is the life-estate of the offender, the fee remaining in him after the confiscation, but without power of alienation until his disability is removed.</p> <p>2. -Invalid Quitclaim Leed. Where the life-estate of an offender has been duly confiscated, and thereafter, but prior to removal of his disability, he executes a quitclaim deed to such real estate, such deed will be ineffectual to transfer the fee to the grantee.</p> <p>3. —,-Effect of Pardon of Offender. While a pardon of an offender restores him to the control over his estate which had not been forfeited, with full power of alienation, such pardon will not operate to give force or validity to a quitclaim deed previously executed by him, nor prevent his heirs from inheriting the fee upon his death.</p> <p>á. Title — Subsequently Acquired — Invalid Tax Leed. Where M., whose only title to real estate is based upon a tax deed which is void upon its face, executes in favor of S. a warranty deed to said real estate, and thereafter procures, under a quitclaim deed, an outstanding life-estate therein, such after-acquired interest inures to the benefit of S., and where, after these deeds have all been duly recorded in the office of the register of deeds of the proper county, S., by quitclaim deed, conveys the said real estate to C., who goes into immediate possession of the premises under said deed, such life-estate becomes at once vested in C., and he cannot, during the continuance of such estate, acquire an adverse title to the real estate as against the owners of the reversion by purchasing the same at a sale thereof made for delinquent taxes which it was his duty to pay.</p>

<p>Memorandum. — Error from Jefferson district court; Robert Crozier, judge. Action in replevin by Marion S. Morris against W. H. Brown, as sheriff of Jefferson county, and others. Judgment for plaintiff. Defendants 'bring the case to this court.</p>

Memorandum. — Error from Morris district court; James Humphrey, judge. Action upon a contract for sale of personal property by C. H. Titus against Albert Mitchell. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Appeal from Brown district court; R. M. Emery, judge. Prosecution for violations of the prohibitory law. The defendant, Billy Hughes, was convicted. He appeals.

<p>Insahity — Notice and Opportunity to be Heard, Essential. An inquiry and trial in the probate court, had upon an information charging one with beirig a person of unsound mind and incapable of managing her own affairs, should only be had after notice to the person alleged to be insane, and after opportunity has been given such person to be present at the trial, in person or by counsel. 'An adjudication of insanity that is made without such Dotice and opportunity to be.heard is a nullity, and void, and a commitment thereunder to the insane asylum is i llegak</p>

Memorandum. — Error from Wilson district court; L. Stillwell, judge. Three actions brought by Asa Webster, Milton Ruth and H. R. Poison against The Missouri Pacific Railway Company to recover damages on account of overflow of water. Judgment for plaintiffs. Defendant brings the cases to this court.

Memorandum. — Error from Coffey' district court; Charles B. Graves, judge. Action by R. S. Coveil against J: L. Senior and others to foreclose a mortgage. For review of a judgment in favor of- J. L. Senior and R. E. Fisher, Angelí Matthewson, one of the defendants, brings the case to this court.

Memorandum. — Error from Crawford district court; S. H. Allen, judge. Action in replevin by M. T. Hadley against H. F. Adsit. .Judgment for defendant.. Plaintiff brings the case to this court.

<p>Heirs and Legatees, not Liable on Warranty of Testator. In. Kansas, a personal judgment cannot be obtained against an heir for the liability of his testator, except in accordance with the provisions of paragraph 2958 of the General Statutes of 1889.</p>

<p>1. Record — Sufficient for Heview. Where the only error complained of is that the conclusions of law are not sustained by the findings of fact made by the trial court, and the record fully presents that question, it is sufficient to challenge a review in that respect by. this court.</p> <p>2. Findings, Held Sufficient. The conclusions of law in this case examined, and upheld, under the findings of fact made by the trial court.</p>

Memorandum. — Error from Anderson district court; A. W. Benson, judge. Action by Matt. E. Osborne against Henry C. Nouse, as receiver de bonis non of The Missouri, Kansas & Texas Nailway Company, for killing stock. Judgment for plaintiff. Defendant brings the case, to this court.

Memorandum.— Error from' Montgomery district court; J. D. McCue, judge. Action in replevin by Maria S. Butler against J. B. Cooper and M. L. Conley. Judgment for defendants. Plaintiff brings tbe case to this court.

<p>General Assignment — Pleading and Practice. A creditor may maintain an action upon an original claim against an assignor who - has made an assignment for the benefit of creditors which is still open, and recover a personal judgment against him for the amount due, notwithstanding such creditor has presented a claim against. the estate which has been disallowed by the assignee, and from which said ruling of the assignee an appeal is pending in the district court.</p>

<p>1. School District, Formation of — Appeal. An appeal lies to the board of county commissioners from the order of the county superintendent refusing to form or to alter a school district.</p> <p>2. -Statute Construed. The provisos to paragraph 5581 of the General Statutes of 1889 are intended to direct the different parties how to proceed if the superintendent decides to form or to alter a district so that the appeal may be taken and decided before the district shall be formed or altered, the officers elected, etc., as is provided in paragraphs 5571 and 5572 id.</p>

Memorandum. — Error from Crawford district court; S. H. Allen, judge. Action in replevin by Henry Baden against Christian Beck and others. Judgment for plaintiff. Defendant Beck brings the case to this court.

Memorandum. — Error from Franklin district court; A. W. Benson, judge. Action by H. E. Smeiding against Edgar Hawley and others to foreclose a mortgage. Judgment for plaintiff. Defendant Edgar Hawley brings the case to this court.

Memorandum. — Error from Crawford district court; 5. H. Allen, judge. Action by H. G. Craig against The First National Bank of Girard, Kan. Judgment for plaintiff. Defendant brings the case to this court.

<p>Memorandum.— Appeal from Crawford district court; J. S. West, judge. Defendant, 0. A. Zimmerman, was convicted of an assault and battery. He appeals.</p>

Memorandum. — Error from Wilson district court; L. Stillwell, judge. Action by J. C. Stevens and Eveline Stevens against The St. Louis & San Francisco Railway Company to recover damages for loss by fire. Judgment for plaintiffs. Defendant brings the case to this court.

Memorandum. — Error from Labette district court; J. D. McCue, judge. Action by William Miller, and John H. Lyles, as guardian of Rose E. Miller, against tbe mayor and council of tbe city of Parsons for a writ of mandamus. Defendants bring the case to this court.

<p>Usury — Improper Offset. Where a party has dealings with a bank covering a period of two years, and during such time borrows va- ■ rious sums of money, paying thereon usurious interest, and afterward borrows other money from the bank, giving a note with surety therefor, and a suit is afterward brought on such note, held, that the party cannot offset such note by usurious interest paid on former loans.</p>

<p>• Memorandum. — Error from Elk district court; M. G. Troup, judge. Action in attachment by J. E. Dust against R. R. Conklin. Judgment for plaintiff. Defendant brings the case to this court.</p>

Memorandum.— Error from Bourbon district court; J. S. West, judge. Action on a contract for shipment of stock by John J. McGrath against The Missouri Pacific Railway Company. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Bourbon district court; S. H. Allen, judge. Action by Thomas Brown' against The Milwaukee Mechanics’ Insurance Cojnpany to recover on a policy of fire insurance. Judgmeat for plaintiff. Defendant brings the case to this court.

<p>1. Chattel Mortgage — Liability of Sheriff. Where Q. is in possession of personal property by virtue of a valid chattel mortgage, and the sheriff levies an execution upon a portion of it, Q. has a cause of action against him for the return of the property held by him or for the value thereof.</p> <p>2. -Lights of Assignee. Where Q. transfers a note and an unrecorded chattel mortgage to M. & Co., and delivers to them the possession of all the mortgaged property except the articles held by the sheriff under the execution, Q. does not thereby assign and transfer to said M. & Co. his cause of action against said sheriff.</p> <p>3. -Lights of Judgment Creditor. Where M. & Co. come into the possession of an unrecorded chattel mortgage at a time when a portion of the mortgaged property is in possession of the sheriff, under an execution, said sheriff is entitled to hold said property for the benefit of the judgment creditor in whose favor said execution was issued, as against M. & Co.</p> <p>4. - Transfer — Sheriff in Possession. In the transfer of an unrecorded chattel mortgage, the assignee takes said mortgage subject to the rights of judgment creditors who have already reduced the mortgaged property to possession.</p>

Memorandum. — Error from Elk district court; M. G. Troup, judge. Action in replevin by S. V. Ross against Oley Richolson, as sheriff óf Elk county, Kansas. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Coffey district court; Charles B. Graves, judge. Action by E. C. Barr against J. W. Irey to recover upon contract. Judgment for defendant'. Plaintiff brings the case to this court.

Memorandum. — Error from Osage district court; William Thomson, judge. Action by Henry J. Croll against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for personal injuries. Judgment for plaintiff. Defendant brings the case to this court.

<p>Foreclosure — No Conflict of Jurisdiction. The decree in this case examined, and held to be equitable to all parties in the case, and not in conflict with article 3 of the constitution of the United States, or with the jurisdiction of the circuit court of the United States for the district of Kansas.</p>

<p>1. Fraud — Insufficient Evidence. Evidence which shows poor business management or misfortune is not necessarily evidence of fraud.</p> <p>2. -Insufficient Affidavits. No fraud is shown by the affidavits filed in this case and the order of attachment was properly discharged.</p>

Memorandum. — Error from Cherokee district court; J. D. McCue, judge. Action, by George Brown against The St. Louis & San Francisco Railway Company to recover damages for loss of property by fire. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Bourbon district court; J. S. West, judge. Action by T. E. Furst against The Kansas City, Fort Scott & Memphis Railroad Company to recover for stock killed. Judgment for plaintiff. Defendant brings the case to this court.

<p>1. Teacher’s Contract — Hules of Board. Where the board of education of a city of the second class has adopted rules and regulations to govern it and the city schools, and where if has employed a teacher who has a copy of and is familiar with said rules and regulations, and where the only contract between the teacher and the board is a notice from .the board to the teacher that she has been elected to teach for the ensuing year at a stated salary, held, that such rules and regulations are part and parcel of the contract entered into between the parties.</p> <p>2. - Construction of Contract. Where the board of education of a city of the second class has employed a teacher for the ensuing school year, unless sooner removed by vote of the board, ■held, that the1 words “unless sooner removed by vote, of the board ” do not specify the causes for which said teacher may be removed, nor can they be construed to mean that the teacher may be removed without cause.</p>

<p>Eailroad Companies — Effect of Consolidation. Where a railf oad company is consolidated with other railroad companies under a new name it ceases to exist as a corporation, and an action brought by or against such railroad company before its consolidation cannot afterward'be prosecuted by or against it or in its original name. (JST.O.& T. Ely. Co. v. Smith, 40 Kan. 192.)</p>

Memorandum. — Error from Franklin district court; A. W. Benson, judge. Action by J. J. Lawrence and Martha Lawrence against The Kansas & Colorado Pacific ^Railway Company to recover damages for refusal to construct and maintain a crossing. Judgment for plaintiffs. Defendant brings the case to this court.

Memorandum. — Error from Coffey district court; Charles B. Graves, judge. Action by J. L. Senior against Mary W. Cook, and L. H. Scott, as sheriff of Coffey county, Kansas, to enjoin proceedings under an execution. Judgment for plaintiff. Defendants bring the case to this court.

<p>Memorandum. — Error from Anderson district court; A. W. Benson, judge. Action for injury to stock by N. A. Borrer and Julia Borrer against The Missouri Pacific Railway Company. Judgment for plaintiffs. Defendant brings the case to this court.</p>

<p>Injunction — Parties. A1 final injunction will not be granted until all the parties whose legal rights are to be affected by it are made parties to the action.</p>

Memorandum. — Error from Crawford district court; S. H. Allen, judge. Action -by Simon Britton, as administrator of the estate of William James, deceased, against The Cherokee & Pittsburg Coal and Mining Company to recover damages for the killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Crawford district court; S. H. Allen, judge. Action by E. D. Haines and Joseph T. Murtaugh, partners as E. D. Haines & Co., against The Long-Bell Lumber Company and others to reform and foreclose a trust deed. Judgment for plaintiffs. Defendant lumber company brings the case -to this court.

<p>Memorandum. — Error from Wilson district court; L. Stillwell, judge. Action by The State of Kansas, on the relation of P. C. Young, county.attorney of Wilson county, against the City of Neodesha for an injunction. Judgment for defendant. Plaintiff brings the case to this court.</p> <p>The statement of the case, as made by Johnson, P. J., is as follows :</p> <p>On the 20th day of September, 1894, the plaintiff in error commenced an action in the district court of Wilson county, Kansas, to enjoin the mayor and councilmen of the city of Neodesha, Kan., from contracting any more debts, and issuing scrip therefor, to build footwalks or sidewalks along and across the streets of said city. The petition alleges the following facts, upon which the injunction was requested :</p> <p>“Now comes P. C. Young, county attorney of Wilson county, Kansas, in behalf of the citizens and taxpayers of Neodosha, a municipal corporation in said •county and state, and says: (1) That said corporation is governed by a mayor and councilmen, and is a city of the third class ; (2) that its bonded indebtedness is $12,000 ; (3) that its floating indebtedness is $3,-008.41; (4) that of its floating indebtedness $473.12 has been created by this council this year; (5) that the taxable property of all kinds in said city is $144,-••749.86 as shown by the last assessment, and $124,000 for the previous year ; (6) that the mayor and councilmen have issued scrip on the current fund for all the floating indebtedness, and which scrip — or city warrants — have been presented to the city treasurer for payment and payment refused for want of funds, and have been ‘ registered/ as provided by chapter 249 of the Laws of 1891, by an act of the legislature, being ‘An act for the registration and payment of warrants issued by counties, cities, townships, school districts/ etc. (7) Plaintiff further says the 'mayor and councilmen are threatening to, and are about to, let contracts and issue scrip on the current funds for building a large number of footwalks across the streets and alleys, and that they are also threatening and are about to construct a large amount of sidewalks under and by virtue of ordinances Nos. 102 and 103 lately passed by said mayor and "councilmen, copies of which are herewith annexed and made a part hereof, and called ‘A’ and ‘B/ and pay for the same in the first instance by issuing scrip on the current fund on the city treasurer, for the reason a large number of the lotowners cannot and will not build sidewalks under these ordinances, and' because there is no money out of which to make an appropriation under ordinance .No. 102. And plaintiff says .the amount of scrip said mayor and councilmen are about to issue for this purpose, in addition to what they have already issued, will be about $15,000, and that' there is no money in the city treasury to pay any of the scrip or warrants issued as above stated, or that about to be issued, nor will the tax levy for the present fiscal year be large enough to pay the warrants or scrip already issued and registered, but that the same is now in excess of the limit within which the mayor and councilmen can lawfully create indebtedness and issue scrip therefor. And plaintiff says this threatened expenditure and issue of scrip has never been authorized by a vote of the people of the city; that none of the sidewalks or cross-walks are necessary for the safety or security of the people'. Plaintiff therefore p'rays an injunction may issue .to, J. M. Keck, mayor of said city, and to Angus Stewart, N. P. Carpenter, T. Blakeslee, and A. O’Hara, councilmen of said city, to restrain and enjoin them from contracting any more debts, and issuing scrip therefor, to build footwalks or sidewalks, and for such other and further relief as plaintiff may be entitled to have.”</p> <p>To this petition the city of Neodesha interposed its demurrer, setting forth four grounds for demurrer thereto, as follows:</p> <p>“(1) The plaintiff has no legal capacity to sue. (2) There is a defect of parties plaintiff. (3) Several causes of action are improperly joined. (4) Said petition does not state facts Sufficient to constitute a cause of action.”-</p> <p>This demurrer was sustained and the cause dismissed. The plaintiff excepted and brings the case here for review.</p>

<p>Memorandum. — Error from Wilson district court; L. Stillwell, judge. Action by Kate Stewart against the City of Neodesha to restrain it from tearing out a sidewalk and constructing a new one in its stead. Judgment for defendant. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Neosho district court; L. Stillwell, judge. Action by O. W. Hill against The Parsons Water Company on motion for judgment in accordance with the mandate of the supreme court. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Bourbon district court; J. S. West, judge. Action by John Patten against The Kansas City, Fort Scott & Memphis Railroad Company to recover for loss of baggage. Judgment for plaintiff. . Defendant brings the case to this court.

<p>Memorandum. — Error from Elk district court; A. M. Jackson , j udge. Action by Clara E. Patterson against N. Patterson and others for alienating the affections of plaintiff’s husband. Judgment for plaintiff. Defendants bring the case to this court.</p>

Memorandum. — Error from Lyon district court; Charles B. Graves, judge. Action by The .Connecticut Mutual Life Insurance Company against Robert Martin and others. Judgment for the plaintiff. The defendant Lucy Bain brings the case to this court.

Memorandum. — • Error from Harvey district court ; L. Houk, judge. Action ’by J. H. Turner against The First National Bank of Newton, Kansas, to recover penalty for alleged usury. Judgment for plaintiff. Defendant brings the case to this court.

<p>1. Garnishment — Jurisdiction—Courts of Appeals. This court has the power to review the action of the trial court in discharging a garnishment, though the record does not contain the judgment in the original action.</p> <p>2. -Effect of Order. Garnishment proceedings bind only such property, moneys, and credits, not exempt by law from execution, as belong to the defendant, and in the possession of the garnishee, or owed by him at the time of the service of the process upon the garnishee.</p> <p>3. -lieaMy Held in Trust. Where real estate is conveyed by the debtor to a person in trust to answer a bona fide debt due another, such trustee is not liable in proceedings in garnishment, unless it appears that at the' time of service of the notice in garnishment a surplus remained in his hands belonging to the debtor after answering the requirements of such trust.</p>

<p>Memorandum. — Error from Sedgwick court of common pleas ; Jacob M. Balderston, judge. Action by Henry G. Pert and James B. Johnson against The Kansas Refrigerator Company. Judgment for plaintiffs. Afterward the death of plaintiff Johnson was suggested to the court, and the judgment was revived in the names of H. G. Pert and Nancy J. Johnson, as administrators of the estate of James B. Johnson, deceased, and H. G. Pert. Defendant brings the case to this court.</p>

Memorandum. — Error from Cowley district court; M. G. Troup, judge. Action by The Domestic Sewing Machine Company against T. H. Group and others to foreclose a mortgage. The motion of Group and wife to set aside the sheriff’s sale of certain growing wheat was granted. The purchasers at said sale excepted to the order, and bring the case to this court.

Memorandum.— Error from Harvey district court; L. Houk, judge. Action in replevin by S. W. Shat-tuck against Hiram Hall. Judgment for defendant. Plaintiff brings the case to this court.

<p>Memorandum.— Error from Barber district court; C. W. Ellis, judge. Action by J. E. Piersol against F. H. Shelley and Elizabeth B. Shelley to foreclose a mortgage of $1,800. Judgment for plaintiff for $362.-50. Plaintiff brings the case to this court.</p>

<p>Memorandum. — Error from Sedgwick court of common. pleas ; Jacob M. Balderston, judge. Action by W. S. Corbett and others, as trustees of the board of trade of Wichita, against Arthur Sullivan, upon a contract called a “mortgage donation.” Judgment for plaintiffs. Defendant brings the case to this court.</p> <p>The statement of the case, as made by Johnson, P. J., is as follows :</p> <p>This action was commenced in the court of 'common pleas of Sedgwick county by W. S. Corbett, H. C. Sluss, John M, Allen, A-. A. Hyde, and R. E. Lawrence, as trustees of the board of trade of Wichita, against Arthur Sullivan, on a certain written instrument called a “mortgage donation,” of which the following is a copy:</p> <p>“mortgage donation.</p> <p>“For the purpose of obtaining the location at or near the city of Wichita, Sedgwick county, Kansas, of such industries and other needed enterprises which the board of trade of the city of Wichita may be able to secure by the use of the property hereinafter described, and in consideration of the benefits which I will derive from the location of such additional industries, etc., at said city, I hereby bind myself to execute and deliver, within 15 days from ■ the date hereof, a mortgage upon the following-described real estate, to wit: Northeast quarter of the northwest quarter of section '32, township 26, range 1 east, being 40 acres, more or less, situate in Sedgwick county, Kansas, to W. S. Corbett, H. C. Sluss, John M. Allen, A. A. Hyde, and R. E. Lawrence, to be by them held in trust to be sold, assigned and transferred to such persons, at such .times and for such purposes as may be deemed best by and determined upon by resolutions of the board of directors of the board of trade of Wichita, and upon the further trust that if said mortgage is not used in good faith for such purposes within three years after the execution and delivery of said mortgage, then in that event the said mortgage shall be canceled and returned to me. This trust to be in force and take effect from date of acceptance by said trustees.</p> <p>“ It is understood that I am to give an abstract of i he title to said property, and that the title of said property shall be free and clear of all liens, claims and clouds of every kind. It is further understood that I am to give a negotiable promissory note which said mortgage shall secure in the sum of $1,000, payable to said trustees, or order, and due five years after date, with 7 per cent, interest, payable annually, and I further agree that my wife, Agnes S., shall join in said mortgage. Said note to be payable on or before maturity.</p> <p>“Witness my hand, this 20th day of September, 1888. I reside at No. -,- street, Wichita, Kan. Arthur Sullivan.</p> <p>“ September —, A. D. 1888. We accept the above trust. ---</p> <p> •---Trustees." </p> <p>The defendant below filed his answer setting forth six defenses. The first defense was as follows : That when he signed said agreement it contained a provision that the same was not to take effect or be in force until the day of acceptance of the trust to be created in pretended contract, by said plaintiffs as such trustees; that said plaintiffs as such trustees never accepted said trust; and that a short time after the 20th day of September, 1888, he notified the plaintiffs that he withdrew his said offer or subscription.</p> <p>The second defense was as follows : That he never received, nor was he ever promised, any consideration, or thing or matter of value for said subscription ; that he would not in any way be benefited by the consummation of the matters ia said agreement or subscription mentioned ; that neither the plaintiffs as trustees, nor the said board of trade of said city of Wichita, have expended any money, or matter or thing of any value, or contracted any liability, or in any way changed Choir condition on the faith of said pretended agreement or subscription, or in anticipation that he would comply with the provisions therein contained ; that the same is wholly without consideration and void.</p> <p>Trial was had before the court and jury, and judgment rendered for the plaintiffs below. The defendant below made a case and brings it to this court for review.</p>

Memorandum.— Error from McPherson district court; Frank Doster, judge. Action in replevin by W. P. Pierce against C. C. Batten. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Sumner district court; James A. Ray, judge. Motion by F. P, Neal against The Carey Lumber Company for an execution to enforce a stockholder’s liability. Motion granted. The Carey Lumber Company brings the case to this court.

<p>Memorandum.— Error'from Chase district court; Frank Dostisr, judge. Action by John Stewart against Falls Township, in Chase county, to recover for personal injuries. Judgment for plaintiff. Defendant brings the case to this court.</p>

<p>• Memorandum. — Error from Kingman district court; S. W. Leslie, judge. Action by Robert E. McKinstrey against R. W. Hodgson to recover on an appeal bond. Judgment for plaintiff. Defendant brings the case to this court.</p>

Memorandum. — Error from Kingman district court,; S. W. Leslie, judge. Action by Charles B. Hardy against R. W. Hodgson to recover on an appeal bond. Judgment for plaintiff.- Defendant brings the case to this court.

Memorandum.— Error from Greenwood district court; C. A. Leland, judge. Action by G. W. Smith against A. J. and Alonzo Batterton to recover on. a promissory note. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Lyon district court; Charles B. Graves, judge. Action by A. S. Smith against D. W. Holderman and Carl Nation on a contract of sale of personal property. Judgment for plaintiff.. Defendants bring the case to this court.

Memorandum. — Error from Barber district court; C. W. Ellis, judge. Action in replevin by James R. Brown against John H. Wheat. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Chase district court; Frank Doster, judge. Action in replevin by C. C. Whitson against J. W. Griffis, as sheriff of Chase county. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Sumner district court; James A. Ray, judge. Action in replevin by The Great Western Manufacturing Company against True Richardson and others. Judgment for plaintiff. Defendant True Richardson brings the case to this court.

Memorandum. — Error from Sedgwick district court; 0. Reed, judge. Action by G. L. Ditmars and others, partners as Ditmars, Voris & Vandevere, against The Atchison, Topeka & Santa Fe Railroad Company, to recover damages for alleged negligence in shipment of cattle. Judgment for plaintiffs. Defendant brings the case to this court.

Memorandum. — Error from Barber district court; G. W. McKay, judge. Action by Frederick Shoup against James W. Dobson and George W. Stevens, to enjoin a judicial sale. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Cowley district co.urt; M. G. Troup, .judge. Action on a contract of sale by The Frick Company, a corporation, against William Geddes Carson. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Error from Sedgwick district court; C. Reed, judge. Action by The Farmers Loan and Trust Company against W.W. Dill and others to enforce a mechanic’s lien. Judgment against Frank Wood, as trustee, etc. He brings the case .to this court.

Memorandum.— Error from Butler district court; G. A. Leland, judge. Action of replevin by J. PI.Porter against William Scully. Judgment for plaintiff.

Memorandum. — Error from Lyon district court; Charles B. Graves, judge. Action on contract of sale of personal property by Griffith & Ewing against Joseph Cannon. Judgment for plaintiffs. Defendant brings the case to this court.

Memorandum. — Error from Kingman district court • S. W. Leslie, judge. Appeal from award of damages for right of way by M. Doney against The Omaha, Hutchinson & Gulf Railway Company. Judgment for plaintiff. Defendant hmigs the case .to this court.

Memorandum. — Error from Sedgwick district court; C. Reed, judge. Action in attachment by The Guaranty-Loan and Trust Company against George M. Boyd and others. Charles F. Harding filed a motion to discharge the attachment, and from an order overruling said motion he brings the case to this court.

Memorandum. — Error from Reno district court; L. Houk, judge. Action by W. R. Marshall against John W. Jones, as sheriff of Reno county, and The First National Bank of Hutchinson, Kansas, to enjoin the enforcement of a judgment. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Reno district court; L. Houk, judge. Action by A. McInturff against The First National Bank of Hutchinson, Kansas, to recover a penalty. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Sedgwick court of common pleas ; Jacob M. Balderston, judge. Action for personal injuries by Jane Coggshall against The City of Wichita. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Marion district court; Frank Doster, judge. Action by D. B. Curd against S. P. Bown and Richard Williams, partners as Bown & Williams, to recover a penalty for failure to enter of record satisfaction of a title note. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — Error from Lyon district court; Charles B. Graves, judge. Action in ejectment by Caroline M. Savage against F. E. Smith and others. Judgment for plaintiff. Defendants bring the case to this court.

Memorandum. — Error from Sedgwick court of common pleas ; Jacob M. Balderston, judge. Action by The Getto-McClung Boot and Shoe Company against The Western Union Telegraph Company to recover damages for alleged negligence. Judgment for plaintiff. Defendant brings the case to' this court.

Memorandum. — Error from Sumner district court; James A. Ray, judge. Action to recover upon a forfeited recognizance by The State of Kansas against William George. Judgment for plaintiff. Defendant brings the case to this court.

<p>Oiticiai, Bond — Sureties not Liable for Moneys Collected under a Void Contract. Where the petition in an action on the official bond of a justice of the peace alleges the collection of certain moneys by the principal of such bond as a justice of the peace, and the answer admits the execution of said bond, and alleges that the moneys so collected were collected by virtue of a contract made and entered into between the plaintiff in the action and the said justice of the peace, and a copy of said contract is made part of the answer, which contract shows upon its face that it was a written agreement, and also that it was illegal and void as being against public policy, and a reply is filed consisting of a general denial unverified, held, that the execution of the written contract was properly alleged under section 108 of the code and was not put in issue by the allegations of the unverified reply, and held, further, that under such pleadings the legal effect of the instrument set forth in the answer is admitted, and that a judgment for the defendant was properly rendered upon the pleadings.</p>

Memorandum.- — Error from Butler district court; C. A. Leland, judge. Action by Anna Hoover and others against The St. Louis & San Francisco Railway Company to recover damages for fire. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Marion district court; Frank Doster, judge. Action by Joseph C. Lilley and others, partners as J. C. Lilley & Co., against The Florence, El Dorado & Walnut Valley Railroad Company, on appeal from an award in condemnation proceedings. Judgment for plaintiffs. Defendant brings the case to this court.

<p>1. Intoxicating Liquors —Nuisance—Competent Evidence. In the trial of a criminal case, where the defendant is charged in separate counts of an information with illegal sales of. intoxicating liquors, and also with maintaining a nuisance by keeping a place where intoxicating liquors are sold, bartered or given away in violation of the statute, it is competent for the state to introduce in evidence, and for the jury to consider, certain jugs, bottles, and other paraphernalia shown to have been seized by the officer at the place claimed to be a public nuisance, as bearing upon the ' question whether such place was or was not a nuisance as defined by the statute.</p> <p>2. -Competent Evidence Defined. Under an information: like the above, evidence that the building described in the information was a place where liquor was unlawfully sold immediately prior to the time the defendant took charge thereof; that there was no change in the business after the defendant took charge thereof; that he sold or gave away intoxicating liquors, permitted them to be drunk upon the premises as a beverage, and that he gave intoxicating liquors to minors, is all competent as tending to show the character of the place kept and who the keeper of the place was.</p> <p>3. -Search and Seizure Clause not Unconstitutional. Paragraph 2533, General Statutes of 1889, being that portion of the prohibitory liquor law known as the “ search and seizure clause,” was enacted by the legislature to assist in the proper exercise of the police power of the state in a matter over which the legislature had control, and is not in contravention of either section 10 or section 15 of the bill of rights.</p> <p>4. -Instructions Upheld. Instructions in this case examined and upheld.</p>

<p>Memorandum. — Error from Barber district court; Gr. W. McKay, judge. Action by Christian Mayer against John Sparks and others to recover on a note and mortgage. Judgment for plaintiff. From an order satisfying said judgment plaintiff brings the case to this court.</p>

Memorandum. — Error from Sedgwick court of common pleas; Jacob M. Balderston, judge. Action by C. H. Smyth against Rufus Cone, as sheriff of Sedgwick county, to recover for an alleged conversion of goods. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum.— Error from Sumner district court; James A. Bay, judge. Action by George E. Fultz against F. P. Neal to recover on an order to garnishee to pay money into court. Judgment for defendant. Plaintiff brings the case to this court.

<p>1. Homestead — Actual Occupancy Necessary. Where a tract of land is purchased for a homestead, in order to preserve a debtor’s right to the homestead exemption he must actually occupy the same as a residence within a reasonable time after the purchase. The constitution and statutes require actual occupancy in order to preserve a homestead right.</p> <p>2. -Occupancy after Suit Commenced. Where proceedings are commenced to subject the equitable interest of a debtor in certain real estate to the payment of a judgment, occupancy after the commencement of such proceedings does not change the rights of the parties.</p>

<p>Public Printing — Delinquent Tax-List — Statute Construed. Paragraph 6957, General Statutes of 1889, provides that every printer who shall publish a delinquent tax-list and notice shall, within 14 days after the last publication thereof, file with the county treasurer an affidavit of such publication, made by a person having' • knowledge of the fact of publication, but such paragraph does not prescribe any special form for such affidavit; and where a printer, within the time prescribed by the statute, files with the county treasurer a statement of an account for the publication of such list and notice for four consecutive weeks, and attaches thereto a copy of the same, and also makes affidavit of the correctness of said publication and account, he has substantially complied with the provisions of the statute.</p>

Memorandum. — Error from Ford district .court; A. •J. Abbott, judge. Action by E. F. Towler against John Bull in person and as administrator of the estate of George W. Parker, deceased, for damages by failure' to give statutory bond. Judgment for defendant. Plaintiff brings the case to this court.

Memorandum. — Appeal from Rice district court; Ansel R. Clark, judge. Prosecution for violations of the prohibitory liquor law. The defendant, Jack Stredder, was convicted. He appeals.

<p>Mortgage — Subrogation — no Actual Knowledge of Second Mortgage. Where a mortgage is taken upon land with the understanding that it shall be a first lien thereon, and that the money to be loaned on the same is to be applied by the mortgagee to the payment and discharge of a prior incumbrance on the same land, and it is so applied, such mortgagee will be subrogated to the rights of the prior incumbrancer whose debt was so discharged, when it is equitable to do so, although there was, before the discharge of such prior incumbrance, a second mortgage on the land of which the subsequent mortgagee had no actual knowledge or notice.</p>

<p>Memorandum. — Error from Decatur district court; G. Webb Bertram, judge. Action by Jacob Wilson against The Pennsylvania Investment Company to recover penalties for failure to discharge of record two mortgages. Judgment for plaintiff. Defendant brings the ease to this court.</p>

Memorandum. — Error from Phillips district court; A. C. T. Geiger! judge. Action by M. BE. Tarbox against Fred W. Ferguson and others on a note and mortgage. Judgment for plaintiff. Defendant'Ferguson brings the case to this court.

Memorandum. — Error from Phillips district court; A. C. T. Geiger, judge. Action in foreclosure by The Mortgage Trust Company of Pennsylvania against William B. Kennedy, Edgar P. Cowles, and others. Judgment for the administratrix of defendant Cowles. Plaintiff brings the case to this court.

<p>Memorandum. — Error from Russell district court; W. G. Eastland, judge. Action by A. P. and S. G. Buck against The Union Pacific Railway Company to recover damages for injury by fire. Judgment for plaintiffs. Defendant brings the case to this court.</p>

<p>Memorandum. — Error from Ellis district court; Lee Monroe, judge. Action by S. J. Holman against C. M. and Alice M. Raynesford on two promissory notes and to foreclose a mortgage. Judgment for dofendants. Plaintiff brings the case to this court.</p>

Memorandum. — Error from Phillips district court; Gf. Webb Bertram, judge'. Action by L. A. Champlin against O. W. Bickford to recover on a contract of sale-of personal property. Judgment for plaintiff. Defendant brings vhe case to this court.

Memorandum. — Error from Norton district court; G. Webb Bertram, judge. Action by Russell Hall against Charles W. Smith and others to recover on a note and mortgage. Judgment for defendants. Plaintiff brings the case to this court.

<p>Memorandum.— Error from Phillips district court; G. Werb Bertram, judge. Action to quiet title by Arvilla K. Taylor against E. A. Prizer. Judgment for plaintiff. Defendant brings the case to this court.</p>

Memorandum. — Error from Norton district court; A. C. T. Geiger, judge. Action by The Farmers and Merchants Bank, of Hill City, Kan., against Duane-H. Nash, to quiet title. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum. — Error from Norton district court; A. 0. T. Geiger, judge. Action by The Lenora State Bank against J. S. Peak. Motion by defendant to set aside a sale of lands on execution because exempt. Plaintiff brings the case to this court.

Memorandum. — Error from Decatur district court; A. G. T. Geiger, judge. Action by Lizzie T. Ryan against Owen Phillips, as assignee of The State Bank of Oberlin, Kansas, and The State Bank of Oberlin, Kansas, to recover trust funds. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum . — Error from Dickinson district court.; M. B. Nicholson, judge. Action by The iEtna Life Insurance Company against J. E. Bonebrake and others. Defendants bring here for review a judgment for plaintiff.

Memorandum . — Error from Dickinson, district court; M. B. Nicholson, judge. Action by William H. Shook against The Union Pacific Railway Company to recover damages for breach of contract. Judgment for plaintiff. Defendant brings the case to this court.

Memorandum; — Error from Republic district court; F. W. Sturges, judge. Action in foreclosure by Belle A. Thompson against E. A. Hallowell, Florence C. Simonds, M. C. Hubbard, and others. Judgment for M. C. Hubbard. Belle A. Thompson and Florence C. Simonds bring the case to this court.

Memorandum. — Error from Ottawa district court; R. F. Thompson, judge. Action by Edward Linney against A. A. Thompson and others on a promissory note. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum — Error from Saline district court; R. F. Thompson, judge. Action by George W. Jones, as secretary of The Odd Fellows’ Funeral Benefit Association of Kansas against C. S. Conrad and others. Judgment for said Conrad. Certain defendants bring the case to this court.

<p>Verdict — Set Aside When not Approved. When the trial judge disapproves the verdict returned by a jury, for the reason that it is not warranted by the evidence, it is his duty to set it aside.</p>

Memorandum. — Error from Osborne district court; .Cyrus Heren, judge. Action by The New England Mortgage Security Company against John W. Case-bier and others to recover on a note and mortgage. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum. — Error from Marshall distriqt court ; R. B. Spilman, judge. Action iu replevin by C. T. Haskett against F. F. Auhl and T. D. Grimes. Judgment for defendants. Plaintiff brings the case to this court.

<p>Memorandum. — Error from Cloud district court; F. W. Sturges, judge. Action by B. T. Gould against G. W. Freelove to recover damages for trespasses. Judgment for plaintiff. Defendant brings the case to ■this court.</p>

<p>1. Fraud — Competent Evidence. When a transfer of property is claimed to have been made in fraud of the rights of creditors, the acts and declarations of the vendor at and preceding the time when the transfer was made are admissible in evidence for the purpose of showing his intent.</p> <p>2. Evidence — Parol—Judicial Records. Parol evidence is not admissible to prove the fáets recited in judicial records or the nature of judicial proceedings.</p> <p>3. Fraud — Notice to Vendee — Erroneous Instruction. Before a sale and transfer of property can be avoided, because made by the vendor to defraud his creditors, it must appear that the vendee either participated in such fraud or had notice at the time of the real nature of the transaction, or that, for other reasons, he was not an innocent purchaser; and it is error for the court to instruct the jury that the fraud of the vendor alone is sufficient to invalidate the transfer.</p>

Memorandum. — Error from Smith district court; Cyrus PIeren, judge. Action by A. S. Eaton against S. S. Whitmore and H. L. Simmons upon a promissory note. Judgment for defendants. Plaintiff brings the case to this court.

Memorandum.— Error from Washington district court; F. W. Sturgbs, judge. Action by Frederick Imhoff against The Chicago, Burlington & Quincy Railroad Company to recover damages for loss by fire. Judgment for plaintiff. Defendant brings the case to this court.