Volume 32 — Kansas Reports

Error from McPherson District Court. November 9, 1883, the district court affirmed a certain judgment of a justice of the peace in favor of McConnell and against Bates. This affirmance Bates brings here for review. All necessary facts and proceedings are stated iu the opinion.

Error from Doniphan District Cowrt. Action brought by Charles Burhhalter against Jane Jones, for the purpose of having an alleged contract corrected and reformed and specifically enforced. The case was submitted to the court, without a jury, and the court made the following findings, to wit: CONCLUSIONS OP PACT. “1.

Original Proceedings in Quo Warranto. November 17, 1883, a petition was filed in this court, as follows, (title omitted,) to wit: “1.

Error from Leavenworth Distriot Court. Action brought by LZorman against Henry and another, to recover the possession of certain intoxicating liquors, and the furniture of a drinking,-saloon. Judgment for defendants at the September Term, 1883, of the district court.' Plaintiff brings the case here. The facts appear in the opinion.

Error from Elk District Court. Action in the nature of ejectment, brought by Osborn against Straohan. March 7, 1883, judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

Drror from Atchison District Court. The opinion states the case. At the June Term, 1883, of the district court, plaintiff Conklin recovered a judgment for $75 against the defendant Railroad Company, which brings it here for review.

Error from, Rooks District Court. Action by J. A. Cooper & Co. against Weeks & Robinson and diaries Weeks, on a promissory note. In said action plaintiffs obtained an order of attachment which was levied on a certain stock of goods as the property of Weeks & Robinson. J. A. McDonald, claiming the ownership and possession of the goods attached, filed an interplea, to which plaintiffs filed a general denial.

Error from Woodson District Cowrt. The opinion states the nature of the action, and the facts. Trial at the October Term, 1883, and judgment for defendant Platt. The plaintiff Fry brings the case here.

Error from McPherson Eistrict Cowrt. Action by C. PP, & L. J. McCormick against L. H. Roberts, on certain promissory notes. Trial at the April Term, 1883, and judgment for defendant. The plaintiffs bring the case here. The opinion states the facts.

Error from Atchison District Court. January 27, 1882, The Kansas Manufacturing Company brought its action against A. Macdonald, on seven promissory notes not then due, and procured an. order of attachment, which was levied on a stock of hardware. The stock of hardware was mortgaged by A. Macdonald, and the mortgage was assigned to J. W. Bailey. On July 7,1882, J. W. Bailey filed his motion to be allowed to interplead.

Prosecution for murder in the first degree. The defendant, Julius I. Bailey, was charged with feloniously killing and murdering his father, John P. Bailey, on May 21, 1883, in Reno county. Trial at the special term of the district court, begun July 24, 1883. Conviction and sentence for murder in the first degree. Defendant appeals. The opinion contains a sufficient statement of the case.

Error from Chase District Court. Action in replevin, commenced December 5, 1878, by L. W. Nutt against W. H. Humphrey.

Error from Pottawatomie District Court. Action brought by Beal against Coclding and three others, to recover for work and labor and for services as an attorney at law. Trial at the November Term, 1883, and verdict for defendants. New trial denied, and judgment for defendants for costs. This judgment the plaintiff brings here for review. The material facts appear in the opinion.

<p>1. Objections to Evidence; General Rule. The general rule is, that objections to evidence must state specifically the grounds of the objection, and when no grounds are stated, it is not error in the trial court to overrule such objections.</p> <p>2. Judgment Against Paetneks; What Property May be Sold on Execution. Two persons were sued as partners, and judgment rendered against them in their partnership name, but both were served with the summons, and both appeared in the suit. Held, That such judgment is joint and several, and on an execution issued upon it, the officer holding the execution may lawfully seize and sell the partnership property of both, or the individual property of either of the defendants.</p>

M'ror from Atehison District Court. Action brought by James Armstrong against B. H. Brownfield, on March 30, 1883, in the district court of Atchison county.

Error from Pawnee District Court. Mandamus, brought by School District No. 49, of Pawnee county, against School District No. £1, of that county, to compel the defendant district to levy a certain tax. Trial by the court upon the pleadings and an agreed statement of facts, and judgment for the defendant, January 24,1884. The plaintiff brings the case to this court. The facts appear in the opinion.

Prosecution for a violation of the prohibitory liquor law. February 5, 1884, William Wilgus was tried, found guilty, and sentenced to pay a fine of $100 and costs, and to be committed to the county jail until the fine and costs were paid. He appeals. The facts appear in the opinion.

<p> Original Proceedings in Quo Warranto. </p> <p>Action brought in this court by Fuller against Millar, to determine which of these opposing parties legally holds the office of chairman of the board of county commissioners of Ellis county. The agreed statement of facts is contained in the opinion, filed at the session of the court in June, 1884.</p>

Error from Edwards District Court. Action commenced October 8, 1883, in the district court of Edwards county, by The Atchison, Topeka & Santa Fé Railroad Company against E. Bartlett, as treasurer of Edwards county.

Error from, Shawnee District Court. Action by Cole against Myers Brothers. .An order of attachment was issued therein, and levied upon certain personal property belonging to the defendants. They bring to this court for review, the rulings of the district judge overruling their two motions to discharge the attachment. The facts are sufficiently stated in the opinion.

Error from, Leavenworth District Court. Action by Leonard against Prescott, upon a promissory note. Trial at the December. Term, 1883, of the district court, and judgment for plaintiff. The defendant brings the case here. The facts found by the trial court are stated in the opinion.

<p> Error from Poolcs District Court. </p> <p>The opinion states the nature of the action, and the facts. January 15, 1884, judgment against the plaintiffs, Martin & Milliken, who bring the case to this court.</p>

Error from Leavenworth District Court. January 14, 1884, the defendants, Oreen and Stanton, recovered a judgment for costs against plaintiff, Town, who brings it here for review. The opinion states the case.

Error from, Johnson District Court. Action by Gooding against The Railroad Compam/, to re-recover tbe value of his bull which had been killed by the defendant in the operation of its road. At the November Term, 1883, the defendant had judgment for costs against the plaintiff, who brings the case ifco this court. The opinion states the material facts.

Error from Clay District Court. At the September Term, 1883, plaintiff Rowland recovered a judgment against Shaw and two others, for $255.65 and interest and costs. The defendants Shaw and Farrell bring the case here. The opinion states the nature of the action, and the facts.

<p>1. County Okfice; Diminution of Salary. A county office is not a contract, and the incumbent is not protected in it by the prohibition of the federal constitution against the impairment of the obligation of contracts. A county officer has no such vested interest in the salary as will prevent the legislature from diminishing it during his term of office.</p> <p>2. Law Prospective, Not Retroactive. Where a law is enacted diminish- . ing the salary of a county officer during his official term, and such diminution applies after the law takes -effect, the law is prospective, and not retroactive.</p>

Error from Wabaunsee District Court. Action by Keeler against the The Railroad Company, to recover damages for the destruction by fire of two stacks of bay belonging to plaintiff. At tbe October Term, 1883, the plaintiff recovered a judgment for $234 and costs against the defendant company. It brings the case here. The material facts are stated in the opinion.

Error from Saline District Court. Action by Chapman against Veach, to recover the value of certain wheat and rye. Trial at the November Term, 1883, and judgment for the defendant. The plaintiff brings the case here. The opinion states the facts.

Error from Lincoln District Court. Action by Maria A. Spurgeon against John Spurgeon, for the possession of certain wheat. Judgment for defendant, at the October Term, 1883, of the district court. Plaintiff brings the case to this court. The facts are stated in the opinion.

Error from Leavenworth District Court. The opinion states the case. February 2, 1884, plaintiffs, Insley, Shire & Co., recovered a judgment against defendant, Lyons, who brings it here for review.

Error from Shawnee District Court. Action by Inness against Jones, to recover money. Trial May 24, 1883, and verdict for plaintiff' for $584.50. New trial denied, and judgment on tbe verdict for plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Clay District Court. • Action by Chreen against Brust, upon an account. At the May Term, 1882, plaintiff had judgment for $146.80 against defendant, who brings it here for reversal. The opinion states the facts.

Jfh'ror from Leavenworth District Cowrt. Action by N. IL Dillingham against Enos JLoolc, upon his bond as treasurer of' Leavenworth county, and the sureties thereon. Judgment for the defendants at the December Term, 1883. Plaintiff brings the case here. The material facts appear in the opinion.

Original Proceedings in Quo Warranto. Action brought in this court, January 30,1884, by Pogers against Slonaker, to establish the relator’s right to the office of county commissioner for the second district of Anderson county, and to oust the defendant from that office. The facts are stated in the opinion, filed at the session of the court in June, 1884.

Error from SedgwicJc District Court. Action by The Kansas Lumber Company against Jones upon an account, and to foreclose a lien on certain real estate for building materials. At the May Term, 1881, the court rendered a personal judgment for the plaintiff and against the defendant, but refused to enter any judgment foreclosing the alleged lien. This ruling the plaintiff brings here. The opinion states the facts.

Prosecution for a violation of the prohibitory liquor law. At the December Term, 1883, the defendant, M. A. Bedford, was found guilty on two counts of the complaint filed against hita, fined $100 on each count, adjudged to pay the costs, and be committed to the county jail until the fines and costs were paid. Defendant appeals.

Prosecution for a violation of the prohibitory liquor law. At the December Term, 1883, defendant Nye was convicted on three counts in an information filed against him, fined $100 on each count, adjudged to pay the costs, and be committed to the county jail until the fines and costs were paid. Prom this sentence he appeals.

At the March Term, 1882, Daniel M. Nixon was convicted of murder in the second degree, and sentenced to imprisonment for life. He appeals. The opinion contains a sufficient statement of the facts.

Error from Jaokson District Court. Action by Harrison against King, to recover on an account for oats' sold and delivered to defendant. Trial at the November Term, 1883, and judgment for plaintiff. King brings the case to this court. The facts appear in the opinion.

Error from Coffey District Court. The opinion states the facts.' Trial at the July Term, 1883, and judgment for plaintiff Morrow, against The Railway Company, for $150 damages and costs. This judgment the defendant company brings here for review.

Error from Labette District Court. November 18,1882, the district court overruled a motion made by plaintiff Brocicway to revive a certain judgment in his favor against Oswego Township, in Labette county, which ruling he brings to this court. The opinion states the material facts.

Error from McPherson District Court. Action by Swenson ¿¡ Son against Teberg, on two promissory notes. April 28, 1883, judgment for plaintiffs for $208.81. The defendant brings the case to this court. The material facts are stated in the opinion.

Error from Douglas District CouH. May 19, 1880, L. N. Snyder filed his bill of particulars before a justice of the peace of Douglas county, claiming judgment against Mrs. 8. B. Bell and H. S. Bell for the sum of $62.20, upon an award of fence viewers. Judgment was rendered in favor of Snyder against the Bells by the justice of the peace, and the defendants appealed the case to the district court. Trial had at the April Term of the district court for 1881, a jury being waived.

Error from Harper District Court. Action brought by Bullard, as sub-contractor, against Davis, the owner, and Williams, the contractor, on an account for building materials furnished by the plaintiff to the contractor, and to foreclose a lien for such materials. Trial at the July Term, 1882, and judgment for plaintiff. The defendant Davis brings the case to this court. The facts are stated in the opinion.

Error from Harvey District Court. The opinion states the nature of the action, and the facts. Trial by the court, at the September Term, 1883. The court made certain findings of fact and conclusions of law, to which plaintiff Seaton excepted, and filed his motion for a new trial, which the court overruled. The court rendered judgment for plaintiff against defendant Chamberlain for $711.25 and costs, but refused judgment for the foreclosure of the lien claimed.

Prosecution for a violation of § 7 of the prohibitory liquor law. At the March Term, 1884, the defendant Gleason was found guilty, and sentenced to pay a fine of $100 and costs, and to be committed to the county jail until the same were paid. From this judgment he appeals. The material facts appear in the opinion. No warrant can lawfully issue upon such a complaint or information as the one in the present case, as the first step in a criminal prosecution.

Information for selling intoxicating liquor contrary to law. May 2, 1884, the jury found the- defendant Babbitt guilty on the sixth count in the information, and not guilty on the first, second, third, fourth and fifth counts thereof. Motions for a new trial and in arrest of judgment were overruled.

Thmor from Shawnee District Court. Action by Thul against The Railroad Company, to recover damages for personal injuries. Trial at the October Term, 1883, and judgment for plaintiff for $2,000 and costs. The defendant brings the case to this court. The opinion states the material facts.

Error from Heno District Court. The nature of the action, and the facts, are stated in the opinion. At the January Term, 1884, after plaintiff Kiff had introduced his evidence, the defendant Company demurred thereto, on the ground that the evidence does not prove or tend to prove any cause of action against the defendant. The court sustained' the demurrer, discharged the jury, and ' rendered judgment for co’sts against the plaintiff. ‘ Ne*w trial denied.

Error from Hodgeman Distriet Coivrt. ■ Action brought by Gross Longendylce, W. A. Frush, and P. JB. Ikneoln, against C. E. Wilson, treasurer of Hodgeman county, and School Districts Nos. 13 and 16, and Center township, in that county. The petition alleged: “1.

Error from Miami District Court.. The opinion states the material facts. Defendant Coonradt alleges error in the judgment of the district court in this case at the February Term, 1884, and brings it here for review.

Error from Reno District Court. Action brought by Woodson against Cole, to recover damages for slander. The plaintiff’s petition (omitting court and title) is as follows, to wit: “1.

Error'from Shawnee Distmct Cou/rt. January 28, 1884, the district court made an order dismissing the case of Henry D. Carr, as executor of the last will of Elijah Osterhout, deceased, v. Sarah Osterhout, without prejudice to a future action. This order the plaintiff brings here for review. The opinion states the facts.

Peosecution for a violation of the prohibitory liquor law. At the February Term, 1884, of the district court, the defendant Forner was found guilty, and adjudged to pay a fine of $200 and costs. He appeals. The facts are stated in the opinion.

Error from Osage District Ooivrt. Action brought by Edwards against Madaris and wife and The Lyndon Savings Bank, on two negotiable promissory notes, and to foreclose, as against all the defendants, a mortgage given to secure their1 payment. Trial by the court, at the October Term, 1883, and judgment for plaintiff. The defendant Madaris brings the case here. The material facts are stated in the opinion.

Proceeding by Angie T. Chureh against CormcmJS. Young, under the act providing for the maintenance of illegitimate children. Trial at the November Term, 1883, and judgment for the defendant. The relatrix brings the case to this court. The facts appear in the opinion.

Errof from Phillips District Court. Action by Doggett;Bassett, Hills & Co. against Bell & Stevens, and 'George Bell and A. F. Stevens, to recover $383.05 on an account for goods sold and delivered. The plaintiffs obtained an order of attachment, which was levied upon a stock of goods as the property of .defendant, George Bell.

Error from Jefferson District Court. Action by Jared P. Barnes against Zach Gragg and The Valley Bank and Savings Institution, brought December 7, 1880, in the district court of Jefferson county. On November 13, 1882, the plaintiff, upon leave of the court, filed an amended petition in words and figures as follows, (court and title omitted:) 1.

Error from Pawnee District Court. Action by Brown against The Railroad Company, to recover the value of certain broom corn. Mullins and other persons were made parties, as requested by the defendant company. Mullins answered, setting up his claim to the subject-matter of the controversy. Trial at the November Term, 1883, when the jury rendered a general verdict for the plaintiff for $550, and also made special findings.

Error from Jefferson District Gowrt. The opinion contains a sufficient statement of the facts. At the March Term, 1883, the court overruled the defendant’s demurrer to plaintiff’s petition. This ruling defendant Gheer brings to this court for review.

M'ror from Jackson District Court. The opinion sufficiently states the nature of the action, and the facts. Trial and judgment for the plaintiff Phbamks, at the March Term, 1883, of the district court. The heirs at law of the defendant, A. W. Bentz, bring the case to this court.

Error from Greenwood District Goit/rt. The plaintiff in error, P. G. Wdr, brings to this court for review an order of the district court, made at the May Term, 1883, setting aside a sheriff’s sale made to her of certain real estate. In the opinion is a sufficient statement of the facts.

Error from Brown District Goitrt. Action brought by Fretz against Bierer and Downer, to recover damages for breach of a contract to convey to plaintiff certain real estate. Trial before the court and a jury; October 5, 1883, judgment for plaintiff and against defendants for $500 and costs. Defendants bring the case to this court. The opinion states the material facts.

Error from Montgomery District Court. .The opinion states the nature of the action, and the facts. December 29, 1882, the court sustained defendant’s demurrer to the petition of plaintiff Cotton, and rendered judgment against him for costs. He brings the case to this court,

Error from SedgmcJc District Cowrt. Action brought by Davis against Woodman, to quiet his title to certain real estate, and to recover on an account for money. Trial at the June Term, 1883, of the district court — B. H. F., judge pro tern., presiding. The issues raised upon the first four causes of action stated in the petition were tried by the court, which found for the plaintiff.

This case is reported in 28 Kas. 262, etseq., where the facts acre stated. Defendant in error filed his motion for a rehearing, which the .court decided at its session in July, 1884.

Error from Pottawatomie District Court. Action brought by Boh against Walker and three others, to quiet title. Trial by the court at tbe November Term, 1883, and judgment for plaintiff. To reverse this judgment, , Walker brings the case here. The material facts are stated in the opinion.

<p> Appeal from Miami District Court. </p> <p>On February 11th, 1884, there was filed in the district court of Miami county an information against S. W. Lee, which, omitting court, title and verification, is as follows:</p> <p>“First count: In the name and by the authority of the state of Kansas, I, Jno. C. Sheridan, county attorney in and for the county of Miami, in the said state of Kansas, who prosecute for and on behalf of said state, in the district court of said district, sitting in and for the said county of Miami, and duly empowered to inform of offenses committed within said county of Miami, come now here and give the court to understand and be informed, that on or about the 24th day of January, 1884, at the county of Miami, in the state of Kansas, one S. W. Lee, with the intent then and there to defraud, feloniously and unlawfully did falsely make, forge and counterfeit a certain instrument of writing, to wit, a grain check for the payment of money, to wit, the sum of thirty-five dollars and seventy-five cents ($35.75), the same purporting to be the act of another person, to wit, of one M. Reed, which . said false, forged and counterfeited grain check is of the purport, value and effect as in the following copy thereof, to wit:</p> <p>‘Lotjisbukg, Kan., January 24, 1883.</p> <p>‘M. Reed: Pay L. Johnson, for corn, gross-, tare-, net,bu.-, at-cts., $35.75. M. Reed,</p> <p>Per J. H. JR., Weigher.’</p> <p>by which said false, forged and counterfeited grain check a pecuniary demand and obligation was then and there purported to be created, contrary to the form of the statute in such case made and provided.</p> <p>Second coimt: And in the name and by the authority aforesaid, I, Jno. C. Sheridan, county attorney as aforesaid, who prosecute as aforesaid, and duly empowered as aforesaid, further give the court to understand and be informed, that on or about the 24th day of January, 1884, at the county of Miami, in the state of Kansas, one S. W. Lee unlawfully and feloniously did sell, exchange and deliver one false, forged and counterfeited instrument of writing, to wit, a grain check for the payment of money, to wit, the sum of thirty-five dollars and seventy-five cents, the same purporting to be the act of another person, to wit, of one M. Reed, and in the similitude and likeness of the true and genuine grain checks of the said M. Reed then and there regularly used in his business, and by which false, forged and counterfeited grain check a pecuniary demand and obligation was then and there purported to be created to one George Casebeer, for and in consideration of certain money, to wit, the sum of thirty-five dollars and seventy-five cents, lawful money of the amount and value of thirty-five dollars and seventy-five cents, and which said false, forged' and counterfeited grain check is of the purport, value and effect as in the following copy thereof, to wit:</p> <p>‘Louisbubg, Kan., Jan. 24, 1883.</p> <p>‘M. Reed: Pay L. Johnson, for corn, gross-, tare-, net-, bu.-, at-cts., $35.75. M. Reed,</p> <p> Per J. p[. P., Weigher.’ </p> <p>and which false, forged and counterfeited grain check by the said S. ~W. Lee then and there well known to be false, forged and counterfeited, with the intent then and there unlawfully and feloniously to have the same passed and uttered, contrary to the form of the statute in such case made and provided.</p> <p>John C. Sheridan,</p> <p> Cownty Attorney Miami County, Kansas.” </p> <p>At the May Term of the court for 1884, the defendant pleaded not guilty, and thereupon a trial was had before a jury. After the evidence was closed and before the jury were instructed, by leave of the court the first count was dismissed, and a conviction asked only on the second. The jury returned a verdict of guilty against the defendant, as charged in the second count of the information, and after motions for a new trial and in arrest of judgment were overruled, the defendant was sentenced to the penitentiary for the term of one year and six months, and adjudged to pay the costs, taxed at $117.15. He appeals.</p>

Error from Reno District Court. Action brought by Carlisle against McCandless as treasurer and Hedrich as sheriff of Reno county, to restrain the collection of a certain tax. Trial at the January Term, 1884, and judgment for the plaintiff. The defendants bring the case here. The opinion states the facts.

Error from Smith District Court. The opinion states the nature of the action, and the material facts. Trial at the December Term, 1883, and judgment for plaintiff Thompson. The defendant Gripton brings the case to this court.

At the January Term, 1884, the defendant Krum was convicted and sentenced for a violation of the pz’ohibitory liquor law. He appeals. The facts appear in the opinion.

Error from Brown District Cowrt. Action brought by Allison against Scantlin and two others for partition of certain real estate, and also for the rents and profits thereof. Trial at the September Term, 1883, and judgment for plaintiff. The defendants Samuel Scantlin and Ellen V. Scantlin bring the case to this court. The material facts are stated in the opinion.

Error from, Leavenworth District Court. Action of forcible entry and detainer, brought by Douglass against Whitaker. Judgment for defendant, May 3, 1884. Plaintiff .brings the case to this court. The material facts are stated in the opinion.

Error from Edwards District Court. June 5, 1883, the plaintiff T. S. Johns filed the following amended petition (omitting court and title) in the district court of Edwards county, against Jacob Schmidt : “ The said plaintiff, T. S. Johns, alleges that he is the owner of and in possession of the following lands, tenements and hereditaments, in the county of Edwards, state of Kansas, to wit; The northeast quarter of section five, township twenty-five south, of range nineteen,…

Error from Sumner District Ctnvrt. Action by McGeorge against Sease and wife, upon certain proinissory notes and a real-estate mortgage. Judgment for tbe plaintiff, February 16,1883. An order of sale was issued in accordance with the judgment, and on October 1, 1883, the sheriff sold the mortgaged real estate at public auction to J. B. Wathins for $300.

Error from Lyon District Court. Replevin, brought by Cowling against Greenleaf for the possession of certain sheep. Trial by the court at the March Term, 1883, when the court adjudged that the defendant recover from the plaintiff the costs of this suit, taxed at $119. This judgment plaintiif brings here for review. The opinion states the facts.

Error from Moi’ris District Court. This .action grew out of a demand for house rent claimed by plaintiff, D. S. Powell, to be due him from Garrett W. Snedaker and wife as his tenants. Said claim was originally litigated in a justice’s court, and from there appealed to the district court by defendant in error, and is founded upon an account which is in the words and figures as follows: “ Council Grove, Kas., Jan. 13, 1884. Garrett Snedaker and Mrs.-Snedaker to I).

Ei'ror from Lyon District Court. Action brought by Yeast against Wiclner and another, to recover ¡$1,119.34, with interest from November 21, 1878, at 7 per cent, per annum. Plaintiff demurred to defendant's answer, on the ground that it does not state facts sufficient to constitute a defense to the action. At the March Term, 1884, the court sustained this demurrer,, and rendered judgment against defendant for $1,570 and costs. Widner brings the case to this court.

Error from Bourbon District Court. Injunction, brought by The Water Company against Stuart aud another. Trial bjrthe court at the December Term, 1883, and finding and judgment for the plaintiff. The defendants bring the case to this court. The facts appear in the opinion.

Error from Sedgioick District Court. Action for slander, brought by Lavina Norris against Marsha Corkill and T. D. Corkill.

Error from Deavenioorth Distriet Court. Action by Douglass against Sargent & Brother, to. recover $500 with interest from July 15, 1882.

JEh'ror from, Marshall District Court. Action in the nature of ejectment, brought by MeFadden and another against Goff. Trial by the court, January 5, 1884, and judgment for defendant. The plaintiff brings the case to this court. The facts appear in the opinion.

Error from Leavenworth District Court. Appeal by Ortman from tbe determination of the commissioners as to the value of a certain lot belonging to him and appropriated by The Union Pacific Railway Company for its railroad. The facts are stated in the opinion.

Error from Wilson District Court. Action brought by Townsend against Stout, to recover $442.20, with interest thereon from March 10,1883, and costs. 'Trial by the court at the May Term, 1883, and a general finding of facts in favor of the plaintiff. New trial denied, and judgment'for plaintiff. The defendant brings the case here. The facts are stated in the opinion.

Error from Eioldnson District Court. Ti-ib opinion states the case. January 24,1884, the district judge, Hon. M. B. Nicholson, at chambers, vacated and dissolved a temporary injunction granted on behalf of plaintiff, Welch, by the probate judge of Dickinson county, in an action wherein said Welch was plaintiff and T. C. Henry & Co. and another were defendants; and also refused to appoint a receiver to take charge of the mortgaged property.

September 12, 1883, the following complaint, omitting title and verification, was filed with W. H. Wolf, a justice of the peace of Bice county: “Samuel G. Bradley, being duly sworn, on oath says, that on, to wit, the _6th day of September, 1883, in the county of Bice and state of Kansas, Henry.

Error from Shawnee District Court. Action brought by Gillett and other tax-payers and residents of “Ritchie’s Addition” to the city of Topeka, against The City, The Board of Education thereof, and Bradford. Miller, as treasurer of Shawnee county, to enjoin the collection of certain taxes for 1883, levied by the city upon the plaintiffs’ property situated in said addition, and claimed by them to be illegal and void.

' Error from, Jaalcson District Court. At the March Term, 1884, plaintiff Lamphear recovered a judgment for $546.17, with interest and costs,' against defendants Hummer and wife, who bring the case to this court. The opinion states the nature of the action, and the material facts.

Error from Mitchell District Court. Ejectment, brought by Chapman and another, as executors of the will of William Appleton, deceased, against Price. At the October Term, 1883, the court sustained defendant’s demurrer to the plaintiffs’ petition, and rendered judgment against them for costs. They bring the case here. The facts appear in the opinion.

February 27, 1884, the following complaint, (omitting caption and verification,) was filed before D. N. Caldwell, a justice of the peace in and for the city of Wellington, in Sumner county: “ Geo.

Error from Lyon District Court. Action brought by Newman against The City of Emporia and the county treasurer of Lyon county, to restrain them from collecting a certain special tax. Trial at the September Term, 1883, and judgment for defendants. The plaintiff brings the case to this court. The opinion states the facts.

<p>1. Order of Attachment, Granted by Probate Judge, When. Under the provisions of $ 231 of the code as amended by § 1, ch. 122, Laws of 1883, a probate judge is not authorized to grant an order of attachment excepting upon some one of the grounds for an attachment enumerated in \ 230 of the code.</p> <p>2. Attachment, When Properly Dissolved. If a probate judge grant an order of attachment upon the ground that the defendant has fraudulently contracted the debt, or fraudulently incurred the liability or obligation for which suit is about to be or has been brought, the district judge of the proper county may properly discharge the attachment, as the statute does not authorize the probate judge to grant an attachment in such a' case.</p>

Original Proceedings in Mandamus. Action brought in this court March 24, 1884, by J. B. Evcms, a justice of the peace of Soldier township, in Shawnee county, against Chester Thomas, Jr., sheriff of said county, to compel the defendant to deliver the body and custody of one Isaiah McClary to the plaintiff, at his office in said township. The facts are stated in the opinion, filed at the October, 1884, session of the court.

Prosecution for a violation of the prohibitory liquor law. The opinion states the material facts. From a judgment against him at the October Term, 1883, the defendant, Jenkins, appeals.

Prosecution for a violation of the prohibitory liquor law. The facts are stated in the opinion. From a judgment against him at the October Term, 1883, the defendant Muir appeals.

<p>Injunction Against Officer, Not Sustained in Supreme Court. Plaintiff, claiming to be the duly-elected, qualified and acting county attorney of Saline county, brings his suit in this court, against the defin hint, to obtain a judgment prohibiting him from exorcising or attempting to exercise any power or duty of the office of such county attorney, and asks for a restraining order pending the suit. On motion of the defendant to dismiss the action, held, that this court has no jurisdiction of the subject-matter, or power to grant the relief demanded, and that sucli action cannot be maintained in this court.</p>

Error from Shawnee District Court. Action brought by Luella L. Could ¿gainst The City of Topeka, to recover damages for personal injuries alleged to have been caused by reason of the unsafe and dangerous condition of a certain public street in that city. Trial at the April Term, 1883, and verdict and judgment for the defendant. The plaintiff brings the case to this court. The opinion states the facts.

Error from Leavenworth District Court. The opinion states the case. Trial at the April Term, 1883. After the plaintiff Douglass' had introduced his evidence, and the defendants, Henry Easter and Oscar Harris, their evidence, the court discharged the jury and dismissed the case because the title to real estate was in dispute, and held that as a justice of the peace cannot try title to real estate, the case cannot be tried in the district court on appeal.

Error from Leavenworth District Court. The opinion states the nature of the action, and the facts. At the April Term, 1883, the court rendered judgment for costs against plaintiff Douglass, who alleges error, and brings the case here.

Drror from Bourbon District Court. Action by The Insurance Company against Bitter, on two promissory notes. The plaintiff obtained an order of attachment, which was levied upon certain land owned by the defendant. February 11, 1884, the district court overruled defendant’s motion to dissolve the attachment. This ruling he brings here for review. The facts are stated in the opinion.

Error from Doniphan District Court. Action brought by Troy, to enjoin The County Board of Doniphan county from vacating a public roach Judgment for the defendant board, at the March Term, 1884. The plaintiff brings the case here. The facts appear in the opinion.

Pkror from McPherson District Court. The plaintiff Nixon alleges error in an order made by the district judge, at chambers, February 27, 1884, dissolving a temporary restraining order. The facts appear in the opinion.

Error from Lyon District Court. The plaintiff in error, J. F. Stratton, as administrator of the estate of Caleb Stratton, deceased, brings to this court for review a certain order made by the district court at the September Term, 1883. The opinion states the facts.

<p> Hror from Harvey District Court. </p> <p>January 14, 1882, The Newton City Bank filed in the district court of Harvey county the following petition, (omitting court and title:)</p> <p>“The plaintiff above named, the Newton City Bank, a corporation duly and regularly incorporated under and by virtue of the laws of the state of Kansas, providing for the incorporation of savings banks, complains of the defendants, and says: That on the 24th day of June, 1881, the defendants, Charles Horn and W. Long, executed and delivered to said defendant, O. B. Hildreth, their negotiable promissory note, in the sum of $214, bearing interest at the rate of ten per cent., due January 1, 1882-; that before the maturity thereof, said O. B. Hildreth, for a valuable consideration, sold and delivered said note to the plaintiff herein, and. indorsed the samé as follows :• ‘ Protest waived. — O. B. Hildreth ; ’ and that this plaintiff is the owner of said note. Plaintiff further says that said note is now due and has not been paid, by either of the makers or indorser, although each has been requested to pay the same; that a copy of said note is hereto attached, marked exhibit “A.” and made a part hereof, and all credits and indorsements thereon.</p> <p>“Plaintiff therefore prays judgment against said defendants for said sum of $214, and interest thereon at ten pér cent, from June 24, 1881, and costs.”</p> <p>“EXHIBIT A.</p> <p>“§214. Burrton, Kas., June 24, 1881.</p> <p>“On or before the first day of January, 1.882, for value received, we,, the undersigned, of Burrton post office, county of Harvey, state of Kansas, promise to pay to O. B. Hildreth or order, two hundred and fourteen dollars, at the office of G. A. Vandevier, banker, Burrton, Ks., with interest at the rate of ten per cent, per annum.”</p> <p>Thereafter the defendants, Chas. Horn and W. Long, filed an answer, the third defense of which is as follows:</p> <p>“And defendants say that the note sued on in this action was originally executed by them to H. A. Pitts’ Sons Manufacturing Company; but that since its execution by them the same has been altered and so changed as to make it payable to O. B. Hildreth; that said change was made without the knowledge or consent o'f these defendants, and is in fraud of their rights, and was so changed and assigned to the plaintiff for the purpose of preventing them from pleading thereto a failure of consideration and other equitable defenses existing against said note in favor of these defendants; that by reason of said change, which is material and fraudulent upon the rights of these defendants, said note has become and is absolutely void.”</p> <p>The reply filed to this defense is:</p> <p>“The plaintiff, for a second and further reply thereto, says, that at the time of the execution and delivery of said note, and for a long time thereafter, the defendants herein, Chas. Horn and W. Long, were partners, and as such partners they executed and delivered said note; that said note was originally executed payable to the H. A. Pitts’ Sons Manufacturing Company, and delivered to O. B. Hildreth; that after this execution and delivery of said note, and while said Long and Horn were such partners as aforesaid, Long, on behalf of and representing said partners and the makers of said note, authorized O. B. Hildreth to so alter said note as to make the said O. B. Hildreth the payee instead of H. A. Pitts’ Sons Manufacturing. Company; that said note was executed, and delivered within the scope of the partnership business, and at the time of the alteration and change as aforesaid said O. B. Hildreth was the owner of said note, and this fact was known to both Horn and Long; that after the change in said note, and before the plaintiff herein became the owner, and before the maturity of said note, the defendant herein, W. Long, was informed of such change being made, and consented to and ratified the same.”</p> <p>Trial on the 28th day of April, 1883, at an adjourned term of the March Term for 1883. A jury was waived, and the case submitted to the court. The defendants requested the court to state fully in its findings of fact all the issues involved, except the failure of the consideration of the note, upon which no evidence was offered, and also its conclusions of law- The court, after hearing the evidence and arguments of counsel, made the following findings of fact:</p> <p>“1. The note for $214 sued on in this action was signed by Chas. Horn and W. Long in their individual names, and given to H. A. Pitts’ Sons Mfg. Co.</p> <p>“2. Said note was given fora threshing machine jointly owned by them, and with the intention of running said machine by them for the profits, and dividing the profits or losses equally.</p> <p>“ 3. Said note was afterward and while this relation between the parties continued, altered by substituting the name of O. B. Hildreth for the original payee.</p> <p>“ 4. Said alteration was made with the knowledge and consent of said defendant Chas. Horn, but without the knowledge or consent of defendant W. Long.</p> <p>“5. No partnership or firm-name was adopted by said Horn & Long.</p> <p>“ 6. Said note was transferred for value to plaintiff, by said Hildreth before maturity.</p> <p>“7. The original payee of said note, H. A. Pitts’ Sons Mfg. Co., authorized said Hildreth to have his name substituted for its name.</p> <p>“ 8. Said W. Long did not at any time consent to or ratify said change of payee.”</p> <p>And thereon the court made the following conclusions of law:</p> <p>“ 1. There was a partnership between Horn and Long for the purpose of doing the business of threshing grain for the public.</p> <p>“ 2. As one of the partners, Horn had a right to authorize a change of payee of said note,'and Long was bound thereby.</p> <p>“ 3. The alteration of the note in question by changing the name of the payee, did not release Long.</p> <p>“4. There is due to the plaintiff $214 from defendants Chas. Horn and W. Long, with ten per cent, interest from June 24, 1881.”</p> <p>The court rendered judgment for $253.48 against the defendants. They allege error, and bring the case here.</p>

Error from Miami District Court. ■Ejectment, brought by McGannon against Straightlege. Trial at the February Term, 1884, and judgment for defendant. The plaintiff brings the case to this court. The facts are stated in the opinion.

Error from Beno District Court. Action brought by Wolcott against Ellwood and others, to . foreclose a mortgage. Trial at the May Term, 1884, and judgment for plaintiff. The defendants bring the case here. The opinion states the facts.

Error from Bourbon District Court. The opinion states the nature of the action, and the material facts. Trial at the September Term, 1883, and judgment for costs against Brown and another, plaintiffs. They bring the case to this court.

Error from, Wyandotte District Court. Action brought by Wolf against Washer and' another, to set aside a certain deed. Trial by the court at the December Term, 1883. At the close of the plaintiff’s evidence, the defendants demurred thereto on the ground that no cause of action is proved in favor of the plaintiff and against the defendants. The court sustained the demurrer, and rendered judgment for the defendants and against the plaintiff for costs.

Error from Wilson District Cov/rt. Action by P. O. Baughman and. Barbara Baughman against Mary W Baughman, commenced June 13, 1881, in the district court of Wilson county, to quiet title to the northwest quarter of the southeast quarter and the south half of the southeast quarter of section 31, in township 28 south, of range 17 east.

Error from Wyandotte District Court. Two actions against Wm. Leser & Co., on accounts for goods sold and delivered to defendants — one action brought by Glaser, Straus & Co., and the other by Straus <fe Meyer. In each action an order of attachment was issued and levied upon a stock of goods consisting of clothing, gentlemen’s furnishing goods; etc., in the city of Wyandotte, and belonging to the defendants.

Error from Elh District Court. Action brought by Crawford against The County Board of Elk county and others, to enjoin defendants from opening a certain public road. Judgment for the defendants at the November Term, 1883. Plaintiff brings the case here. The opinion states the facts.

<p>1. Murder — Declarations — Incompetent Evidence. In a criminal prosecution against a husband and wife for murder in the first degree, where the wife is tried separately, she has no right to prove the declarations of her husband made the day before the killing, and made only in the presence and hearing of third persons having no connection with the controversy which resulted in the death of the person alleged to have been murdered.</p> <p>2. Impeached Witness, Testimony of, IIow Corroborated. If a witness be impeached by proof of his having previously made statements out of court inconsistent with his testimony in court, he may then be corroborated by evidence of other statements made by him out of court in harmony with his testimony, if made immediately after the occurrences of which he has testified took place, and made before he has had any reason or ground for fabricating an untrue or false statement; and such corroborating evidence is not limited to those statements made by him before the time when his statements given in evidence to impeach him were made, but may be extended to other statements made by him afterward.</p> <p>3. Husband and Wipe — Coercion—Presumption. The laws of Kansas do not presume that a wife who unites with her husband in the commission of a crime acts under his coercion. On the contrary, the laws of Kansas presume that all persons of mature age and sound mind act upon their own volition and are responsible for their acts. The question whether a wife acted under the coercion of her husband or not is a question of fact which should in all cases be left to the jury.</p> <p>4. Instructions, Limited to the Evidence; No Material Error. Instructions in a criminal prosecution for murder in the first degree, as well as in other cases, should run to the facts as detailed by the evidence and to all probable interpretations of them, but not to questions which, though possible under the information, are not in fact presented by the evidence; and held, in this particular case, that the trial court did nqt commit material error in failing to instruct the jury upon the several degrees of manslaughter</p> <p>5. Jury — Separation. The court in a criminal prosecution for murder in th'e first degree, as well as in other cases, may permit a separation of the jury after the instructions are given and before the arguments of counsel are fully completed, and indeed at any time before the jury are allowed to retire under the charge of their bailiff for final deliberation upon their verdict.</p> <p>Other questions considered and decided. 6.</p>

Error from Barton District Cowrt. Action by Hulme against Winstead, as sheriff of Barton county, commenced August 29, 1879, to recover possession of certain goods and chattels of the value of $270.65. The petition also alleged that the defendant, by the unlawful seizure of the goods and chattels, damaged and injured the business of plaintiff in the sum of $2,300.

Error from Johnson District Cow't. Action brought by Baldwin on the bond of Julien as sheriff of Johnson county, and the sureties thereon, to recover damages for an alleged unlawful attachment. After the trial of the case, plaintiff died, and Dow was appointed assignee of the estate of C. H. Taylor, and the action was revived in his name. Trial at the June Term, 1883, and .judgment for the defendants for costs against the plaintiff. He brings the case here.

M'ror from Shawnee District Court. Two actions, brought by Harris against Curran and others, to recover the possession of certain lots in the city of Topeka. February 19, 1884, the second trial was had in each case, and in each a judgment was rendered for the defendants, and against the plaintiff, for title and costs. Harris brings the cases to this court. The opinion states the facts.

S. Jennings, county attorney of Cowley county, Kansas, come now here and give the court to understand and be informed— “That John Fleming, at and within the county of Cowley, in the state of Kansas, and at and in a one-story frame building situated on lot No. ten, in block No. one hundred and twenty-eight, in the city of Winfield, in said county and state, and on, to wit, the 27th day of January, 1884, the said John Fleming then and there being a physician and following his…

Ph-ror from Leavenworth District Covrt. Forcible detainer, brought by Douglass against Parker, for tbe possession of lot 6, in block 9, in the city of Leavenworth. May 3,1884, judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

Error from Doniphan District Court. Action by Rullman against Hulse and another, on three promissory notes. Defendant Hulse made a motion before the district judge, at chambers, to discharge the attachment therein. The plaintiff moved that the defendant make his motion more specific and definite, and also moved for a continuance of the hearing of the defendant’s motion.

Mror from Johnson District Court. Injunction, brought by Hindman against Carpenter, as treasurer of Johnson county, to restrain the collection of a certain tax. Judgment for plaintiff at the March Term, 1884. The defendant brings the case to this court. The facts are stated in the .opinion.

<p> Error from Lyon District Court. </p> <p>Appeal by Kregelo from tbe award of commissioners appointed to condemn a right-of-way through Lyon county for the Kansas City & Emporia railroad company. The report of the commissioners was made October 19, 1882, and the appeal taken October 28, 1882. Trial at the March Term, 1883, and verdict against The Railroad Company for $2,045.37. This sum the court adjudged to stand as an award of damages in favor of the plaintiff in the condemnation proceedings appealed from; and it also rendered judgment for plaintiff for $206.80 costs. The Company brings the case here. The facts appear in the opinion.</p>

Prosecution for a violation of the prohibitory liquor law. At the January Term, 1884, defendant Blaaltman was found guilty on seven of the twelve, counts of the information filed against him.

Error from Bourbon District Court. Action by Hines against The Railroad Company, to recover the value of his cow, alleged to have been killed by the defendant company. Trial at the September term, 1883, before E. F.W., jiidge pro tern., and a jury. The plaintiff offered in evidence the deposition of G. PI.

Drror from Nemaha District Court. Action brought January 7,1884, by The Lewis Cook Manufacturing Company against Oscar O. Marbourg, to recover $1,721.56, upon two certain negotiable promissory notes executed by the defendant to the plaintiff, which said notes were not due at the time of the filing of the petition.

Error from Pottawatomie District Court. Civil action brought by the county attorney of Pottawatomie county, in the name of The State of Kansas, against William A. Hardten and wife, to enforce an alleged lien on certain real estate. Trial by the court at the April Term, 1884, when the court found that the plaintiff has and is entitled to its lien for the sum of $195.30 on the premises described in the petition, and that said lien ought to be enforced.

Error from Barton District Court. Replevin, brought by Baum against Burton, Moses & Brother. Trial at the March Term, 1883, and verdict for the plaintiff. Defendants moved for a new trial, which was denied.

Fh'ror from Leavenworth District Court. May 5,1883, the plaintiff Morrissey moved the court to confirm, a sheriff’s sale of the north 49 feet of lot 1, in block 9, of Clark & Rees’s addition to the city of Leavenworth, and at the same time the defendant Donohue moved the court to set aside the sale on the ground that the property sold was a part of his homestead, and therefore exempt from execution.

Original Proceeding for an Order of Distribution. On March 9, 1878, The State of Kansas, on the relation of Willard Davis, the attorney general thereof, filed in this court a petition in quo warranto against The Kansas Insurance Company and others, praying for a dissolution of the company and a forfeiture of its charter and franchises, and that á receiver of its property and effects be appointed to take charge of and collect the same, and make distribution among the…

Original Proceeding for an Order of Distribution. July 3,1884, this court directed the receiver of The Kansas Insurance Company to pay the judgment of the claimant Logan, amounting to about $1,646.40. Afterward, a motion for a rehearing was filed, on behalf of the company, and on July 16, 1884, the receiver was directed not to pay the judgment until a further hearing was had before this court. The material facts are stated in the opinion, filed November 28, 1884.

<p>1. Taxes, Adjudged a Lien — No Error. In an action in the nature of ejectment, brought by the holder of a tax deed where the plaintiff failed to recover the land, but where the court adjudged the amount of tho taxes, with all legal interest and costs thereon paid by the plaintiff to be a lien upon the land, held, that the j udgement, under the circumstances, is not erroneous, although (I) the description of the land in the tax deed and tax proceedings is indefinite and uncertain; (2) the assessor did not attach an oath to his return of the assessment of real property; and (3) a greater amouñt was charged for publishing the delinquent tax list than was paid.</p> <p>2. Indefinite Description — Lien for Taxes; No Error'. Where a person owns and is in the actual possession of 146 and acres of land in a certain quarter-section, and the the same is assessed and taxed to him and in his name, but by the following description, to-wit: “Pt. S.W. ( 146t%% a.) section 4, township 17, range 23, in Miami county,” and the land is not assessed or taxed by any other description, and the owner never pays any taxes for that year on the land, and the land is afterward sold for the taxes and the purchaser pays the subsequent taxes, and afterward a tax deed is executed to the purchaser, and afterward in an action in the nature of ejectment brought by the purchaser to recover the land, the purchaser is defeated with reference to the recovery of the land, but the court adjudges the taxes, with the legal interest and costs thereon paid by the purchaser to be a lien upon the land, held, that notwithstanding the indefinite description of the land, the owner thereof is not relieved from paying his taxes, and the judgment of the court with regard to the lien for taxes is not erroneous.</p>

Error from Brown District Court. The opinion states the nature of the action, and the facts. Trial at the January Term, 1883, and judgment for the defendants. The plaintiff Association of the Patrons of Husbandry brings the case to this court.

Error from Johnson District Cowrt. Action brought by The Sandwich Manufacturing Company against Nicholson, to recover on certain promissory notes. Trial at the November Term, 1883, when the jury found for the defendant. New trial denied, and judgment for costs against the plaintiff company. It brings the case to this court. The opinion states the material facts.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in tbis court May 1, 1884, by W. W. Dill against John Fisher, as sheriff and jailer of Sedgwick county. Held: That the attorney was not for giving said advice guilty of a contempt of court. We are at a loss to see why this case, in principle, does not settle the. case at bar. The duty and obligation of an attorney to the court are much greater than that of a defendant.

<p>1. Mechanics’ Lien ; Leasehold Estate. A mechanics’ lien, or lien for materials and labor, may attach to a leasehold estate.</p> <p>2. --A leasehold estate may include buildings, fixtures and machinery, placed upon the real estate by the tenant.</p> <p>3. Leasehold Estate; Extent of Lien. Such a lien may attach to the leasehold estate, including the buildings, fixtures and machinery placed upon the real estate by the tenant, although the tenant may have the right and privilege of removing such buildings, fixtures and machinery from the leased premises.</p>

Error from Reno District Court. February 1, 1883, Geo. W. Hardy filed his bill of particulars with a justice of the peace of Reno county, demanding judgment against The Atchison, Topeka & Santa F& Railroad Company for $100, alleged excessive charges made by the company and paid by the plaintiff on goods, wares and merchandise shipped by the plaintiff over the road of the company. Trial before the justice on February 12, 1883, the defendant not appearing.

Error from Shawnee District Court. Action brought by George W. Carey and Cornelius Bray, on October 26, 1883, against B. D. Beeves, M. D. Beeves and M. B. Cole, to quiet the plaintiffs’ title to the southeast quarter of section 15, township 13, range 15 east, in the county of Shawnee.

Error from Shawnee District Court. Action brought by 'Mary J. Cross against John D. IDiox.

<p>Railroad Commissioners ; Salaries and Expenses; Void Statute. Section four of chapter one hundred and twenty-four of the Laws of 1883, which provides for raising a fund for the payment of the salaries and current expenses of the board of railroad commissioners and its secretary, by the taxation of the property of railroad companies only, is unconstitutional and void, being in contravention of section one of article eleven of the state constitution, which provides that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” *</p>

In Supreme Court of United States. — Buie on Joseph Moore to show cause why he should not be attached for contempt in violating supersedeas. On the 27th of October, 1884, Mr. Chief Justice Waite delivered the opinion of the Court: The showing under this rule presents the following facts: The supreme court of Kansas rendered a judgment on the 1st of April, 1884, removing Foster, the plaintiff in error, from the office of county attorney of Saline county.