Volume 33 — Kansas Reports

Error from Nemaha District Court. ACTION for divorce, brought by Eniily J. Avery against Edwin Av&ry. Trial at the April Term, 1884, and judgment for plaintiff. The defendant alleges error, and brings the case to this court. The opinion states the material facts.

Error from Harper District Oow't. ActioN brought by Carpenter against Titus, to determine whether the plaintiff or the defendant was entitled to the office of treasurer of School District No. 8, in Harper county. Trial at the March Term, 1884, and judgment for defendant. The plaintiff brings the case to this court. The facts are stated in the opinion.

March 25,1884, E. H. Kollock and B. Fanning, as co-partners, recovered a judgment for $325.30, against Melvin Burrows, in an an action pending before G. W. Camp, a justice of the ‘peace of Peabody township, in Marion county. June 7,1884, an abstract of said judgment was docketed in the office of the clerk of the district court of that county. An execution was issued upon the judgment, to the sheriff of said county, and by him returned unsatisfied.

.Prosecution for burglary and larceny. Tbe defendant Groning was tried at tbe March Term, 1884, found guilty of burglary in tbe second degree, and of larceny. For tbe former crime be was sentenced for five years, and for tbe latter crime for two years.. He appeals. Tbe opinion states the facts.

PROSECUTION under § 13 of the prohibitory liquor law of 1881, in which prosecution the defendant, James Hughes, was charged with keeping and maintaining a common nuisance by keeping for sale and selling intoxicating liquors at a certain place in the city of Solomon, in violation of the prohibitory liquor law. Trial at the February Term, 1884; verdict, guilty; new trial denied.

Error from Franklin District Court. The opinion states the nature of the action, and the material facts. Trial at the September Term, 1883, and judgment for plaintiff Nolan, and against defendants Rice and A. and J. Trowistine & Co., for $246.70 and costs. Defendants bring the case to this court.

Error from Woodson District Court. Ti-ie facts in this case are as follows: On October 6, 1882, Conrad Hester and others presented their petition to the board of county commissioners of Woodson county, asking a public road to be laid out in Owl Creek township in that county, described as follows: Commencing at the southeast corner of section 22, township 25, range 16 east, running thence north two miles on section line as near as practicable, and terminating at the northeast…

Error from Wabaunsee District Cou/rt. ActioN by Ephraim H. Sanford against Sarah E. Bartholomew, to enforce the specific performance of a written contract executed by the defendant December 8, 1879, to convey to the plaintiff the northeast quarter of section 6, township 14, range 12, in Wabaunsee county, Kansas, by warranty deed. The amended petition was filed October 24, 1881.

Error from, Woodson District Court. ACTION brought by Daniel Armel and Thomas P. Jones against J. J. Layton and Butler Wood, for the valué of certain cattle; in excess of all claims of the defendants against the plaintiffs, and for relief with respect to some other matters. The facts are stated in Armel v. Layton, 29 Kas. 576, et seq., and in the opinion herein.

<p> Error from Cloud District Court. </p> <p>The opinion states the nature of the action, and the facts. Trial at the August Term, 1883, and judgment for defendants. The plaintiff Tatro brings the case to this court.</p>

M'ror from Coffey District Cowrt. ACTION brought by Thimes against Stumpff to recover upon a promissory note for $200, executed by the defendant, May 23, 1882, and payable to the order, of the plaintiff, on July 15, 1882, with interest at 8 per cent, per annum after maturity.

Error from, Miami District Court. ACTION by Pierce against The Railway Company, to recover damages for the negligent killing of his cow. Trial at the February Term, 1884, and judgment for plaintiff for $50 damages, and costs. The defendant company brings the case to this court. The opinion states the facts.

Error from Greenwood District Court. ActioN by J. W. Kenner, guardian of Marais de Cygne Merket and Josephine Merlcet, minor heirs of William Merket, deceased, against Sarah Ann Smith and William M. Smith, brought March 15,1878, in the district court of Greenwood county, to establish a trust and compel a conveyance of the north half of the northeast quarter of section 11, and the south half of the southeast quarter of section 2, in township 27, of range 11 east, in all 160…

<p> Error from Shawnee District Court. </p> <p>ACTION in the nature of ejectment, brought by Hazen against Rounsaville. August 4,1883, judgment was rendered for the plaintiff. The defendant brings the case to this court. The material facts are stated in the opinion.</p>

At the November Term, 1883, of the district court, defendants Charles Collins and I. S. Collins were found guilty of assault and battery, and each was sentenced to pay a fine of |10 and costs. They appeal. The facts are stated in the opinion.

Error from Atchison District Court. ACTION brought by Johanna Limekiller, as administratrix of the estate of Frederick Limekiller, deceased, against the JIannibal & St. Joseph Railroad Company, to recover $10,000’ damages, alleged to have resulted from the gross and wanton negligence of the railroad company in running one of its locomotives and trains upon and against the said Frederick Lime-killer, in Wyandotte county, in this state, on May 27, 1881, thereby wrongfully…

Error from, Doniphan District Court. ACTION by Johnson against Moore and wife, upon two promissory notes, and to foreclose a mortgage alleged to have been executed by tbe defendants to secure tbeir payment.

<p>Prosecution for violating the prohibitory liquor law. Trial at the June Term, 1884, of the district court of Johnson county. The defendant Phillips was found not guilty, and the court rendered judgment discharging him. From this judgment The State attempts to appeal.</p>

<p>Judgment, Without Jurisdiction, Not Enforced in Another State. A resident of a state left the same, intending never to return, and afterwards an action was commenced against Mm in such state, and the original process therein was served by delivering a copy thereof to his wife at the place where he and she had resided up to the time of his departure, and where she in fact was still living, and a personal judgment was rendered against him upon this service, and upon this service only. Held, That such judgment was rendered without jurisdiction of the person of the defendant, and cannot be enforced by action or otherwise in another state.</p>

Error from Wabaunsee District Court. ACTION by Eldridge against Krapp, to recover an attorney’s fee. Trial at the October Term, 1883, when the plaintiff recovered a judgment for $100, and his costs taxed at $23.70. New trial denied. Krapp brings the judgment to this court for review.

Error from Osage District Court ACTION by Mary T. Strong, a minor, by her next friend, against Edgar H. Marcy, to recover damages for an alleged breach of a certain written contract. At the October Term, 1883, the court sustained the defendant’s demurrer to the petition, and rendered judgment against plaintiff for costs. The plaintiff brings the case to this court. The opinion states the facts.

Error from Jackson District Court. ActioN by Mull & Son against Jones, as garnishee, to recover $80.35. Trial at the March Term, 1884, and judgment for defendant. The plaintiff brings the case here. The material facts are stated in the opinion.

Error from Brown District Court. ACTION in the nature of ejectment, and for rents and profits, brought by Rogers against Bradley and others. September 29,1883, judgment was rendered for the plaintiff and against the defendants for the recovery of the land in dispute, and for rents and profits. The opinion states the facts, and other proceedings had in the action. The defendants allege various errors, and bring the case to this court.

Error from Shawnee District Court. Actioh brought by Elias Shull against J. W. Hughes, to-recover the possession of certain goods and chattels consisting of saddles, harness, bridles, horse-collars, whips, etc., alleged to-be wrongfully detained by the defendant, and also for $770 damages. The petition, inter alia, alleged that on November 4,1882, P. Q,.

<p> Motion for Rehearing. </p>

- INFORMATION against Chapman, for breaking and escaping from the prison of the city of Jamestown, Cloud county. At the April Term, 1884, the court quashed the information and discharged the defendant. The State appeals. The opinion states the facts.

Error from Osborne District Court. The opinion states the case. At the February Term, 1884, the defendant Cooley recovered a judgment against plaintiff Garanflo, who brings it here for review.

Error from Linn District Court. ACTION by James P. Robinson against John M. Hall, brought May 22,1882, to quiet the title to the west half of the southwest quarter of section 35, in township 20, of range 22, in Linn county. On August 26,1882, the defendant filed his answer as follows (omitting title): “1. Said defendant, for answer to the petition of the plaintiff, deniés each and every allegation of the plaintiff’s petition herein. “2.

Error from, Saline District Court. MaNdamus against H. H. Bishop, a justice of the peace of Saline county, at the November Term, 1883. The defendant brings the case to this court. The opinion states the facts.

Mtot from Edwards District Court. ActioN by Watldns against Day and others, to foreclose a mortgage of real estate. Judgment was rendered for the plaintiff, and a sale of the land was made by the sheriff. The plaintiff moved to confirm the sale, and the defendant Williams moved to set it aside. At the June Term, 1884, the court overruled the former motion and sustained the latter. The plaintiff alleges error, and brings the case here. The opinion states the material facts.

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

Error from Shawnee District Court. ActioN brought March 11, 1884, by F. Q. Hentig and others against Geo. T. Gilmore, as county clerk, and Bradford Miller, as county treasurer of Shawnee county, and the City of Topelca, to perpetually enjoin the defendants from collecting certain taxes levied by the city of Topeka upon the lots of the plaintiffs in said city.

Error from Atchison District Court. Action of mandamus. The alternative writ, after alleging that the respective railroad companies are railroad corporations, and that the city of Atchison is a municipal corporation, and a city of the first class, then alleges as follows: “And [the railroad companies] having the right-of-way and privilege to lay down their tracks over certain streets and alleys in the said city of Atchison, and to run and operate their cars, engines and…

Error from Barton District Cov/rt. ACTION brought by Or egg, Son & Co., against Aaron Qarveride, August 20, 1879, before a justice of the peace of Barton county, upon a bill of particulars to recover $190.40, itemized as follows: April 7, 1879, for cash advanced defendant. §100 00 April 25, 1879, for freight paid upon broom corn shipped by defendant and at defendant’s request. 96 00 April 10, 1879, cash paid for hauling broom corn for defendant, at his request. 3 40 Upon the…

Error from Atchison District Court. PROCEEDING to enforce the individual liability of S. R. Howell, as a stockholder in the Atchison Industrial Exposition and Agricultural Fair Association. At the February Term, 1884, the court.ordered that execution in favor of A. Manglesdorf & Co. issue against S. R. Iiowell as a stockholder of said corporation, for the sum of $100 and the costs of this proceeding. Howell brings the case to this court. The opinion states the material facts.

Error from Chautauqua District Court. December 27, 1882, George W. Angelí made a voluntary assignment of his property for the benefit of creditors. B. E. Binns became his assignee.

Error from, Montgomery District Court. PROCEEDING by E. B. Clark, an elector of Montgomery ■county, for a temporary injunction to restrain the county board of said county from issuing certain bonds. November 29, 1884, Hon. Geo. Chandler, judge of the district court, refused to issue the injunction. This refusal Clark assigns as error, and brings'the case here. The facts appear in the opinion.

<p> TJrrorfrom Jefferson District Court. </p> <p>ACTION by The Atchison, Topeka & Santa Fé, Railroad Company against Levi Wilhelm, as treasurer, and George Davis, as sheriff of Jefferson county, to restrain the collection of certain taxes. Upon the filing of the petition, a temporary injunction was allowed by the district judge of Jefferson county. On June 24, 1884, the plaintiff filed the following amended petition (omitting court and title):</p> <p>“ Plaintiff complains of the said defendants, and for its cause of action says, that it is a corporation duly organized and existing under and by virtue of the laws of the territory and state of Kansas; that plaintiff is and was at all times hereinafter mentioned the owner of a line of railway and other per-, sonal property, in said county of Jefferson and state of Kansas; that at the time required by law, said property was assessed by the officers duly authorized thereto, in the county of Jefferson, for the year 1882, at the sum of $232,000.86; that its said property in school district number 85, in said county, was assessed in said year at the valuation of $23,362.67; that its said property in school district number 24 was assessed, in the year aforesaid, at the valuation of $24,142.57; that at the time required by law, the board of county commissioners in the year 1882 levied a tax of 12| mills, in said school district number 85, for a building fund; that at the time required by law, the board of county commissioners of said county levied a tax for the year 1882 of three mills, in said school district number 24, for a library fund; that at the time required by law, the board of county commissioners of said county levied a tax of two mills upon all the taxable property of said county for said year, for a poor-fund, in addition to the ten mills levied for current expenses, the said county having less than five million dollars of taxable property; that the assessed valuation of all the taxable property in said Jefferson county for the year 1882 was the sum off $3,217,000.31; that the assessed valuation of all the taxable property in school district number-24, in said county, for the year 1882, was the sum of $71,447; that the taxes assessed as aforesaid, as and for a poor-fund,, would raise a sum greatly in excess of the sum of $500, were never submitted to a vote of the people, or authorized by a vote of the people of said Jefferson county at any general election at a poll open for that purpose; that plaintiff, at the time-required by law, paid into the county treasury of the said county the sum of ten mills on its assessed valuation in said school district number 85 for a building fund, and also the-sum of one-half a mill on its assessed valuation in school district number 24 in said county for a library fund, the same being all the taxes legally levied upon its said property for said purpose, but it refused to and still doth refuse to pay tbe said excessive levy of two and one-half mills in school district number 85 for said building fund, and two and one-half mills in said school district number 24 for a library fund, and said levy of two mills upon its property in said Jefferson county for a poor-fund, for the reason that the same is illegal and not authorized by law; that the said illegal levies amounted, upon the assessed valuation of plaintiff’s property as aforesaid, in school district number 85 as aforesaid, to the sum of $58.40, in school district number 24 as aforesaid $60.35, and upon its assessed valuation in said county as aforesaid the sum of $464, making a total of $582.75; that in all previous years there was levied by the board of county commissioners of the said county for the current expenses of any one of said years a tax of one per cent, or more on the dollar of the valuation of the taxable property in said county. And plaintiff further says, that the said levy of two mills upon all the taxable property in said county for the said year, in addition to the levy of teu mills for the current expenses of the said county, is illegal and void; that such excessive levy of two mills over and above the ten mills on the dollar of the valuation of the taxable property of the said county was never submitted to or authorized by a direct vote of the electors of the said county; that no levy of a tax for the said year 1882, for the current expenses of the said year, in excess of ten mills on the dollar of said valuation of the taxable property in said county, was ever submitted to or authorized by a direct vote of the electors of such county; that Levi Wilhelm, as treasurer of said Jefferson county, Kansas, on or about the 13th day of January, 1883, issued his warrant to George Davis, as sheriff of said county, for the collection of said illegal taxes, together with the penalty prescribed by law, amounting to $611.29, and said sheriff now threatens to levy upon and sell the property of this plaintiff to satisfy the same, and will do so unless restrained by this honorable court. Plaintiff further says, it has no adequate remedy at law. Therefore, plaintiff prays that the said defendants, and each of them, may be restrained from collecting or attempting to collect, selling or attempting to sell, the property of this plaintiff, and from levying the said warrant thereon, and for such other and further relief as may be proper.”</p> <p>The defendants demurred to the amended petition of plaintiff, which demurrer was sustained by the court, and the temporary injunction dissolved. Plaintiff excepted, and brings the case here.</p>

Error from Wyandotte District Court. This cause comes up on the ruling of the district court in sustaining the motion of defendants in error, defendants below, to dissolve the injunction as to the second count stated in plaintiff’s petition.

Action brought by The Railroad Company against Carpenter, as treasurer, and Hedrioh, as sheriff, of Johnson county, to restrain the collection of certain taxes. At the June Term,, 1884, of the district court of said county, the court sustained defendants’ demurrer to the plaintiff’s petition, ordered that the temporary injunction theretofore granted in this cause be dissolved, and adjudged that the plaintiff pay the costs of this, action. The plaintiff brings the case here.

<p>1. New Tbial; Plea of Former Jeopardy. Where a defendant in a criminal prosecution is convicted, and he moves for a new trial upon various grounds, among which are the following: “ 6. The information does not state sufficient facts to constitute an offense. 7. The information and . the evidence do not show or prove any offense under the laws of Kansas ; ” and the court grants the new trial as prayed for in the defendant’s motion; and the court also finds that the information “did not state facts sufficient to constitute the offense of which the defendant is found guilty,” and orders that a new information be filed by the county attorney, which is done: Held, That the defendant, by moving for and obtaining such new trial, has waived his right to subsequently plead former jeopardy.</p> <p>2.,-Position of Defendant. In this state, when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had.</p> <p>3. New Tbial; Nolle Prosequi; New Information. And after a new trial has been granted on the motion of the defendant in a criminal case, the attorney-for the state, with the consent of the court, may enter a nolle prosequi without prejudice to a future prosecution, and thereafter the defendant may be put upon his trial and convicted upon a new information charging the identical offense set forth in the prior information.</p> <p>4.-Arrest of Judgment. And the same result would follow if, instead of a motion for a new trial being made and granted and a nolle prosequi being entered, a motion in arrest of j udgment were made by the defendant upon the ground that the information did not state a public offense, and the motion were granted.</p> <p>5. Rape; Sufficient Information. A criminal information under $$ 283 and 31 of the crimes and punishments act, charging the defendant with an attempt to carnally and unlawfully know a female child under the age of ten years, may be sufficient, although the word “rape” may not be used in the information; and held, that the information in the present case is sufficient, although the word “rape” is not used therein.</p> <p>6. Wobds Equivalent to Words in Statute. The exact words used in a . criminal statute defining a public offense are never required to be used in a criminal information charging such offense, but any equivalent words, or any words clearly and intelligibly setting forth the offense, are all that are required.</p> <p>7. Rape — Attempt—Valid Verdict. In a criminal prosecution where the information sufficiently charges the defendant under ££ 283 and 31 of the crimes and punishments act, with attempting to commit the offense of rape by attempting to carnally and unlawfully know a female child under the age of ten years, but does not use the word “rape” in charging the offense, and the jury finds that the defendant was “guilty of an attempt to commit a rape, as charged, ” held, that the verdict is sufficiently responsive to the information, and is valid.</p>

Error from Hodgeman District Cowrt. ActioN brought by The Atchison, Topelca & Santa Fé Fail-road Company against C. E. Wilson, county treasurer of Hodge-man county, and School District No. 19, of that county, to restrain the collection of certain taxes levied for school purposes, and which are alleged to be illegal.

Hh'-ror from Cherolcee District Court. Action brought by The South-Side Town, Mining and Manufacturing Company against John H. Rhodes and his wife, on September 1,1882, to recover the possession of mining lot No. 25, upon the northeast quarter of the southeast quarter of section 14, in township 34 south, of range 25, east of the 6th principal meridian, formerly lots Nos. 1 and 2, in block No. 19, of Ford’s addition to the city of Galena, Cherokee county, in this state.

Error from, Shawnee District Court. ACTION brought on March 11, 1884, by F. C. Hentig and others against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the City of Topelca, to perpetually enjoin the defendants from collecting certain special taxes levied by the city of Topeka upon the lots of the plaintiffs to pay for grading and paving certain alleys in said city.

Error from Shawnee District Court. The nature of tlie action, and the material'facts, sufficiently appear in the opinion. Trial at the January Term, 1884. The defendant objected to the introduction of any evidence by the plaintiff, on the ground that the petition does not state facts sufficient to constitute a cause of action, which objection the court sustained, and refused to admit any evidence in said action. This ruling plaintiff ELentig brings here for review.

Error from Olay District Court. REPLEVIN, brought by Gollober against Martin, as sheriff of Clay county. Trial at the May Term, 1883, and judgment for defendant. The plaintiff brings the case to this court. The facts appear in the opinion.

Error from, Brown District Court. ACTION brought by George A. Osborne against John E. Osborne and others, to enforce the specific performance of a parol contract for the conveyance of land. Trial at the September Term, 1883, and judgment for defendants. Plaintiff brings the case here. The opinion states the material facts.

Mrror from Osborne District Court. ACTION by Burke against Muthersbaugh and others, for •equitable relief, and to recover the undivided one-half interest in certain real estate. Trial by the court at the June Term, 1883, and judgment for plaintiff. The defendants bring the ■case here. The opinion states the material facts.

Error from Franklin District Court. ACTION brought by E. M. Rowand against Peter Anderson and another, to recover the value of a certain fence which was situate on his land, having been erected thereon by his vendor, and which was removed by the defendants, who claimed to own the same.

Error from Brown District Court. ON March 25, 1882, Austin Bamsey was a farmer living-in Holt county, Missouri, and had dependent upon him for support eight children, the oldest being twenty-one years and the youngest three years of age. His property consisted of three work horses, a lumber wagon, a set of harness, some house and kitchen furniture, beds with bedding, and stoves.

Erren' from Chctse District Court. , ACTION brought by The Railroad Company against Fearns and another, to recover certain land in Chase county. Trial by the court, at the December Term, 1882, and finding and judgment for plaintiff. The defendants bring the case here. The opinion states the facts.

Error from Wilson District Court. ON June 15, 1877, J. L. Forsyth was tbe owner of eight municipal bonds — six thereof being each for one thousand dollars, issued in 1873, by Cedar Rapids township,… Held: over the objection of the defendant, that the defendant had the burden of proof. The jury returned a verdict for the plaintiff and against the defendant, and also found that the value of the bonds was $9,275.

<p>I. CONSTITUTIONAL Law; Ch. 93, Laws of 1874. Chapter 93 of the Laws of 1874, which provides that railroad companies shall be liable for all damages to any of their employés, caused by the negligence of coemployés, does not deny to railroad companies the equal protection of the law guaranteed by the fourteenth amendment to the constitution of the United States, and is not in conflict therewith. (Mo. Pac. Ply. Co. v. Haley, 25 Kas. 35; Bucklew v. Central Iowa Ply. Co., S. C. of Iowa, 21 3ST. W. Bop. 103.)</p> <p>2.-Expert Testimony. The inquiry of what are the general duties of a fireman on a switch engine in a certain track yard at a stated time, does not relate to a matter which is the subject of expert testimony, and upon which an opinion may be given, but is a question of fact which may be testified to by any witness having personal knowledge thereof. 3. Duties of Fireman, How Shown. While witnesses ought not to be permitted to express an opinion that a fireman upon an engine performed a certain service in the manner required of him in the proper discharge of his.duty, yet it is competent for any witness having personal knowledge of the facts, to state what the duty is, or what services were generally performed by firemen in that yard.</p> <p>4. Bailroad Employe, To Exercise Ordinary Care. In an action against a railroad company by one of its employés, to recover for personal injury occasioned by the negligence of eoemployés, the plaintiff is held only to the exercise of ordinary care to entitle him to recover — such care as men of ordinary judgment, intelligence and prudence would exercise under like circumstances;. and an instruction that any negligence or slight negligence on the part of the plaintiff would prevent a recovery, would imply and hold the plaintiff to a higher degree of care than is by law required of him, and was properly refused.</p> <p>5. Evidence — Ordinary Care. The evidence considered, and held to be sufficient to show that plaintiff’s injury was caused by the negligence of his eoemployés, and also to sustain the finding of the jury that plaintiff was in the exercise of ordinary care at the time he received his injury.</p> <p>6. Under Evidence, Verdict not Excessive. An employé of a railroad company thirty-nine years of age, in good health, who was serving in the capacity of fireman on a locomotive, h%d his leg and foot crushed, making amputation necessary, and causing great and protracted suffering, impairing his general health, and after a lapse of more than two years the injury occasions him considerable nervous irritation and pain, which will probably increase and continue during his lifetime, was by the jury awarded damages in the amount of $12,000. Held, That under the circumstances, the verdict is not so excessive as to lead to a conclusion that the jury were actuated by passion, prejudice, or improper influences, nor to justify this court in setting the verdict aside.</p>

Error from Clay District Court. REPLEVIN, brought by Christie & DeGraff against Barnes. Judgment for defendant, at the January Term, 1884. Plaintiffs bring the case here. The opinion states the facts.

Error from Brown District Court. Action by Williams against Dowell, to recover the sum of $2,017.18, for certain cattle and hogs which Williams claims to have sold and delivered to Dowell under the terms of the following written contract: “Robinson, KANSAS, April 4, 1883. “I have this day sold to John A. Dowell the choice of eighteen steers out of twenty head now feeding in my lot on home farm, and guarantee the same to weigh eleven hundred pounds or upwards, at five dollars…

Mrror from Allen Distriet Court. ACTION for the dissolution of a partnership, and an accounting between the parties, brought by E. L. Marsh against W E. Davis, George S. Davis and Elias Bruner, on January 4, 1883.

Error from Johnson District Court. ACTION brought by Mary Caeman and another against Lucy Van Harhe and five others, to set aside a certain will. Trial at the March Term, 1884, and judgment for defendants. The plaintiffs bring the case to this court. The opinion states the facts.

Mror from Lyon Listmet Court. Action brought by Randolph & Randolph against Maier, before a justice of the peace.

M'ror from Johnson District Gowrt. ACTION by Ambrose Dickens against William Grane and others, brought August 28, 1882, in the district court of Johnson county, to partition the southeast quarter of section 5, township 13, range 22, in said county. The petition alleged, among other things, that the plaintiff was the owner in fee-simple of the undivided two-eighths of said quarter-section.

Error from Butler District Court. The findings of fact and conclusions of law made by the district court at the January Term, 1884, upon the trial of' this case, read as follows: FINDINGS OF FACT. “First: On the first day of January, 1881, William DeMoss was the owner of the S. W. J of section 10, township 28 south, of range 4 east, in Butler county, Kansas; and on that day, with his wife, executed and delivered to the Hartford Life and Annuity Insurance Company a mortgage…

Error from Miami District Court. ACTION by Bigelow against Henniger, to recover upon a coupon, note for $81, with interest thereon from maturity. Trial at the May Term, 1883, and judgment for defendant. The plaintiff brings the case here. The material facts are stated in the opinion.

Error from Lyon District Court. The opinion states the nature of the action, and the facts. Trial at the September Term, 1883, and judgment for plaintiff for $2,000 damages. The Railroad Company brings the case to this court.

Error from Lyon Distriet Court. Action by Joseph Biley against The Kansas City & Em-poria Bailroad Company, brought July 17, 1883, to recover $300, as damages for the obstruction of an alleged watercourse by reason of the construction of an embankment upon the right-of-way of the railroad company, and upon which its railroad was built. Trial at the September Term, 1883, before the court and a jury.

Drrorfrom Manon District Court. ACTION by Doster against Sterling and another, to recover two town lots in Peabody. Trial at the May Term, 1883, and judgment for defendants. The plaintiff brings the case to this court. The opinion states the material facts.

Error from Wilson District Court. ActioN for slander. At the May Term, 188°, plaintiff Cooley had judgment for $30 against defendant Haag, who brings the case here. The opinion states the facts.

Error from Atchison District Cowrt. ACTION brought by Belz against Bird, to recover a certain lot in the city of Atchison. The facts appear in Belz v. Bird, 31 Kas. 139, et seq., and in the opinion herein. Bird complains of the judgment rendered by the district court at the June Term, 1884, and. brings the case here.

Error from, Linn District Court. ActioN brought by William Applegate against Elizabeth Ii. Douthitt, to set aside a certain deed of conveyance, and to quiet bis title to certain real estate. The case was tried before the court without a jury, and on the trial the court made findings of fact and conclusions of law as follows: FINDINGS OF FACT. “1.

Jffrror from Greenwood District Court. Action by Ritz against The Railway Company, to recover ■damages alleged to have been caused by the failure of the defendant to construct and maintain proper cattle-guards. Trial at the December Term, 1882, and verdict and judgment for plaintiff for $221. The Company brings the case here. The opinion states the facts.

<p> Error from, Olay District Court. </p> <p>ACTION by Riehter against Deetjen in the nature of ejectment, commenced December 5, 1882, to recover possession of lots 2, 6 and 9 of section 5, in township 7 south, of range 2, in Clay county. Trial at the May Term, 1883, before the court, a jury being waived. The court found the following conclusions of fact:</p> <p>“1. That a patent was issued for lots 2, 6 and 9 in section 5, township 7, in range 2, east of the sixth principal meridian, in Clay county; Kansas, to the plaintiff, Eudolph Eichter, on the 15th day of August, 1876.</p> <p>“2. That on the 3d day of May, 1879, the plaintiff made a warranty deed to said premises to his daughter, Lydia Eich-ter, which was a mere voluntary conveyance, for which there was no consideration. This deed was recorded on the same day, viz.: May 3, 1879.</p> <p>“3. That on the first day of April, 1881, a mortgage on said premises for the sum of $45, and due April 1, 1886, was executed by Lydia Eichter to Underwood, Clark & Co., and on the' same date another mortgage, for the sum of $300, was executed by said Lydia Eichter to the Scottish American Mortgage Co., due April 1, 1886, both of which mortgages were recorded on the 1st day of April, 1881.</p> <p>“4. That on the 18th day of June, 1881, said Lydia Eich-ter reconveyed said premises to plaintiff by warranty deed, which deed was recorded October 10, 1882, the plaintiff assuming the payment of said mortgages, which was the only consideration for said deed and reconveyance, except that said plaintiff told said Lydia Richter that unless she recooveyed, he would sell his personal property and leave her. Plaintiff had no way to provide for said Lydia except said land.</p> <p>“5. That on the 31st day of May, 1882, such proceedings were had as that the said Lydia Richter was found to be insane, and ordered by the probate judge of Clay county, Kansas, to be committed to the insane asylum of the state of Kansas, and she was accordingly sent to said asylum, and has remained there ever since said time.</p> <p>“6. That afterward such proceedings were had as that George W. Martin was appointed guardian of said Lydia Richter, and by appropriate proceedings thereafter the premises in question were sold to the defendant Deetjen, to pay the costs of the proceedings wherein said Lydia Richter had been adjudged insane; and the said probate judge having approved the proceedings, a deed was made by said guardian to said defendant for said premises, on the 3d day of August, 1882, and filed for record on the 3d day of August, 1882, the terms of said sale being the payment of $300 cash, and the assumption of the payment of the said mortgages, which said $300 cash was paid by the defendant, and said mortgages also were paid off by him on the 4th day of October, 1882; the said mortgages at the time amounting to the sum of $350, and $-interest and principal, had previously been paid upon said mortgages, making in all the sum of $-paid by him thereon; also, one-half the taxes for the year 188- were paid by defendant, .amounting to $-.</p> <p>“ 7. That until the time said Lydia Richter was found to be insane, by said proceedings in said probate court, she and her father, the plaintiff, resided upon said premises, plaintiff having no other family. But the cultivated ground upon said premises had been leased for that season by plaintiff, to one Stober; the lease to Stober was made in the spring of that year, to wit, in the year 1882, and the fact that said Stober was farming said land as the tenant of Rudolph Richter was known to said defendant at the time, but he did not have actual notice of the deed from Lydia Richter to plaintiff, nor did he inquire into the title, although he knew, as stated, that Stober was farming said premises as the tenant of said Rudolph Richter, and that said Rudolph Richter and Lydia had resided upon said land continuously from the date of said patent from the United States until said Lydia was found to be insane.</p> <p>“8. That at the time defendant showed plaintiff his deed, after he had obtained the same from the said guardian of Lydia Richter, plaintiff gave defendant one of the keys to the house upon said premises, and said Stober gave him the other of said keys. Plaintiff at the same time also gave defendant a notice which he had received • of an installment of interest being due upon said mortgage, and told him to pay it. At the time of doing this, plaintiff1 was not in good health, and was considerably excited and quite nervous.</p> <p>“ 9. That the amount paid on said mortgages has never been tendered back to defendant by plaintiff, or anyone in his behalf, nor has plaintiff ever demanded possession of said premises from the defendant/'’</p> <p>The court thereon made the following conclusions of law:</p> <p>“1. That the defendant, if he desires to do so, should be allowed to file an amended answer herein, to correspond with the facts as found by the court, so as to ask to be subrogated to all the rights of the mortgagees in said mortgages paid off and discharged by said defendant, and setting aside the release of said mortgages.</p> <p>“ 2. That if such amended answer is filed, that then the defendant will, as matter of law, be entitled to relief of the character mentioned in the preceding conclusion of law.</p> <p>“ 3. That the plaintiff is entitled to a judgment for the possession of the premises in question, notwithstanding his deed was unrecorded at the time of the purchase at guardian’s sale by defendant, for the reason that he knew said Stober was tenant of said premises under said plaintiff, and was therefore bound to inquire as to plaintiff’s title, and was bound to take notice of plaintiff’s title by reason of plaintiff’s living upon said land and the land being farmed by said tenant.</p> <p>“4. That plaintiff is entitled to a judgment against said defendant for costs of suit.”</p> <p>To all and each of said conclusions of fact and of law, the defendant at the time duly excepted. Afterward the court rendered judgment that the plaintiff recover of the defendant the land described in the petition, together with his costs in the action. The court, however, under the amended answer filed by the defendant, adjudged that the amount of the mortgages given by Lydia Richter upon the premises, together with all taxes paid by the defendant, were a lien in favor of the defendant upon the land. The defendant excepted, and brings the case here.</p>

Error from, Leavenworth District Court. Action brought July 29, 1883, by Harris agaiust The Union Pacific Railway Company, to recover for a personal injury.

Error from Riley District Court. ACTION by Diehl against The Railway Company, to recover damages for bodily injuries. Trial at the September Term, 1883, and judgment for plaintiff for $8,000. The defendant brings the case to this court. The material facts are stated in the opinion.

Drror from Douglas District Court. Action to recover damages for personal injuries. November 28, 1882, the plaintiff Aclams recovered a judgment for $2,000 against the defendant Railway Company. It brings the case here. The opinion states the material facts.

Error from Sedgwick District Court. ActioN for divorce, brought by Margaret Birdzell against Caleb J. Birdzell. Trial at the October Term, 1883, when the court refused to grant the divorce, but granted $5,000 as alimony, and decreed that the same should be a lien upon the homestead of the plaintiff and the defendant, and that it should be sold to satisfy the judgment. The defendant brings the case to this court. The material facts are stated in the opinion.

Error from Montgomery District Court. Arbitration proceeding by Morgan against Smith. After the award of the arbitrators had been delivered to each of the parties in interest, plaintiff Morgan filed the same, together with an arbitration bond, in the court below, and asked for judgment thereon. This the court refused, at the September Term, 1883. This ruling the plaintiff brings here for review. The opinion states the material facts.

Peosecution for libel. At the October Term, 1883, James Mayberry and another were convicted, and sentenced to pay a fine of $25 each, and the costs of the suit. They appeal. The facts appear in the opinion.

Error from, Leavenworth District Court. Ti-ie opiuiou states the nature of the action, and the facts. September 29, 1883, judgment for plaintiff Shannon. The defendant company brings the case here.

Error from Jachson District Court Action for partition of the real estate of Godfrey Hafer, who died intestate, on the 24th day of June, 1882, and left surviving him Virginia Hafer, his widow, and Benjamin Hafer, William G. Hafer, John H. Hafer, Louisa Hafer, Emma B. Hafer, George Hafer and James Hafer, his children.

Error from, Wyandotte District Court. ACTION by The City of Wyandotte, on the bond of Chris. Bernhard as treasurer of said city. Judgment for The City, at the April Term, 1884. The defendants bring the case to this court. The opinion states the material facts.

Error from McPherson District Court. ACTION by W. W Marbourg against R. M. Clark and John F. Appleby, as partners, doing business under the firm-name and style of E. M. Clark & Co., brought February 15, 1883, in the district court of McPherson county, to recover $1,467.58, together with interest thereon from September 22,1882.

Error from Marshall District Court. AotioN by Nelson W. Wait against James P. Burtis, Polly Burtis, James P. Burtis as administrator of the estate of Lizzie. S. Burtis, deceased, Fred.

Prosecution for a violation of the prohibitory liquor law.. At the September Term, 1884, the defendant, Barnes, was found not guilty, and judgment was entered against Manlove-for the costs of the prosecution. He appeals. The opinion states the facts.

Error from Lyon District Court ActioN by Schmidling against The City of Emporia, to recover for personal injuries resulting from a defective sidewalk. Trial at the March Term, 1884, and judgment for the plaintiff for $1,000. The City brings the case here. The opinion states the material facts.

M'ror from Cowley District Court. Action by The Wheeler & Wilson Manufacturing Company against Peter Thompson and M. A. Thompson, his wife, brought ■originally before a justice of the peace of the city of Winfield, upon two instruments in writing for the payment of money.

Error from Smith District Court. ACTION by Burrow & White against McNall, upon a written guaranty. At the April Term, 1884, the court sustained the plaintiffs’ demurrer to defendant’s third defense in his answer. This ruling he brings here for reversal. The opinion states the material facts.

<p> Error from Shawnee District Court. </p> <p>ActioN by E. D. Jones, against JET. B. Franks, Hattie B. Franks (now Foster), and Mary E. Franks, commenced March 12, 1883, in the nature of a bill to redeem a chattel mortgage and two bills of sale alleged to have been intended to operate as chattel mortgages, and for an accounting, and an injunction against the disposition of the property which had been taken possession of by the defendants, pending .the litigation. The original petition was against H. B. Pranks and Hattie B. Pranks. Mary E. Franks was brought in by a supplemental petition. At the August Term of the district court for 1883, the action was referred for trial to J. P. Greer, Esq. Said referee was directed to report his findings of fact and conclusions of law separately, and to take and state an account between the respective parties. -At the same term of court, the referee returned and filed his report, which was as follows, omitting court and title:</p> <p>“The undersigned referee, having been first duly sworn according to law, to faithfully and to the best of his ability try the issues joined in the above-entitled cause, and a true report to make to said court on or before the first day of September, 1883, and after having heard the allegations and proofs of the parties submitted, and arguments of counsel, does find that on the 30th day of August, 1882, the plaintiff, E. D. Jones, was the owner of a large amount of personal property then on his farm in Shawnee county, state of Kansas, and consisting of live stock, farm products and farm implements, and of the value of about $-.</p> <p>“ 2. That at the'time, the plaintiff executed to the defendant, Hattie B. Franks, a bill of sale of a portion of said property, to secure the payment of a sum of money then loaned to him by her.</p> <p>“ 3. That the sum of money so loaned to him by her is the sum of thirteen hundred and fifty dollars, and that the plaintiff, to secure the payment thereof, with interest at the rate of twelve per cent, per annum for thirty days, and commissions for furnishing said loan, executed and delivered to said defendant, Hattie B. Franks, a bill of sale for a part of said property, for the sum of fifteen hundred dollars; that the excess over and above the thirteen hundred and fifty dollars, and the amount for which said bill of sale was given, was for interest and commissions for furnishing said loan.</p> <p>“4. That on the 27th day of September, 1882, the plaintiff borrowed from the defendant, Hattie B. Franks, the further sum of about six hundred dollars, and to secure the payment thereof, with interest at the rate of twelve per cent, per annum, and commissions, he executed and delivered to her another bill of sale of part of said property, for the sum of seven hundred dollars.</p> <p>“5. That on October, 1882, the plaintiff paid to H. B. Franks, who then held the bill of sale of date August 80, 1882, as agent of the defendant, Hattie B. Franks, the sum of fourteen hundred dollars, to be placed as a payment on said first-mentioned bill of sale, and that at a subsequent time fully paid and satisfied the same.</p> <p>“6. That on the 11th day of January, 1883, was had a full settlement between the plaintiff and the defendant, Hattie B. Franks, which included all previous transactions had between them, except the seven hundred dollars bill of sale, which was not paid nor satisfied.</p> <p>“7. That on the 11th day of January, 1883, the plaintiff" executed his promissory note to the defendant, Hattie B. Franks, for the sum of seven hundred dollars, bearing interest at the rate of twelve per cent, per annum, in full satisfaction of the seven hundred dollars bill of sale of date September 27, 1882, and then borrowed of the said defendant, Hattie B. Franks, the further sum of thirteen hundred and fifty dollars, which, with interest at the rate of twelve per cent, per annum, ninety days, and certain commissions, and several small sums of money advanced to him by defendant, Hattie B. Franks,, amounted to seventeen hundred and ninety-nine dollars and forty-three cents, and for which sum of money the plaintiff, E. U. Jones, made his promissory note, dated January 13,, 1883, payable to the said defendant, Hattie B. Franks.</p> <p>“ 8. That to secure the payment of the several sums of money mentioned in said promissory notes, the plaintiff gave the defendant, Hattie B. Franks, a chattel mortgage of that date, on a large amount of his personal property, consisting of live stock, wagons, farm implements, corn, oats, millet, etc., and particularly mentioned and described in said chattel mortgage.</p> <p>“ 9. That afterward, on the 14th day of February,. 1883, the plaintiff turned over to the defendant, Hattie B. Franks, all the goods and chattels so mortgaged to her to secure the payment of said several sums of money mentioned in said promissory notes, and which said goods and chattels were left in the care of the plaintiff.</p> <p>“ 10. That on the 19th day of February, 1883, the defendant, Hattie B. Franks, bought of the plaintiff, E. D. Jones, all the goods and chattels described in said mortgage, at the price and sum of twenty-eight hundred and seventy-four dollars, and in part payment thereof delivered up to said plaintiff the promissory note mentioned in said chattel mortgage, for the sum of seventeen hundred and ninety-nine dollars and forty-three cents, and gave a credit of three hundred .and four dollars and fifty-seven cents on the seven-hundred-dollar note and still held the Kate Wilson note for three hundred and thirty dollars; the Dudley note, for one hundred fifty-two; the Frederick, mortgage, forty dollars, and balance •of three hundred ninety-five dollars and forty-three cents due to her on the seven-hundred-dollar note; eleven dollars paid by H. B. Franks for care of fat cattle; and three dollars .sheriff’s fees.</p> <p>“11. That there was no fraud nor undue influence used by the defendant, Hattie B. Franks, or her agent, to induce the ■plaintiff Jones to sell to her the property mentioned and ■described in the mortgage dated January 11, 1882, and given by the.plaintiff to secure the payment of the money mentioned in the two notes of that date, and given by the plaintiff to .said defendant, and that the property was transferred to her .at its fair value; and that she, by her agents, took possession of a part of said property, of the aggregate value of twenty-two hundred and fifty-three dollars, and disposed thereof.</p> <p>“12. That the whole sum of money actually loaned to the plaintiff by the defendant, Hattie B. Franks, including the Kate Wilson note, is twenty-three hundred eighty-six dollars .and seventy-five cents.</p> <p>“I find as a matter of law, that the defendant, Hattie B. Franks, is entitled to recover of plaintiff, E. D. Jones, the amount of money actually loaned by her to the said plaintiff in excess of the actual value of the property secured by her of the plaintiff on the 19th day of February, and that that ■excess is the sum of one hundred and thirty dollars; and that ■she is entitled to recover said sum only after she shall surrender to said plaintiff Jones the J. Thomas note and mortgage, the Dudley note and mortgage, the Kate Wilson, note and mort.gage, ■and the seven-hundred-dollar note, dated February 11, 1883, and the note attached to the reply of the plaintiff to the answer of the defendants to the original petition of the plaintiff, marked ‘Exhibit A/ and releases on the chattel mortgage all further right under and by virtue of its provisions; and that the plaintiff is not entitled to the relief prayed for in his bill; and that the plaintiff, E. D. Jones, pay one-third of the costs and expenses of these proceedings, and that the defendant, Hattie B. Franks, pay two-thirds of the costs and expenses of this proceeding.”</p> <p>Before the report was filed, plaintiff tendered to the referee his bill of exceptions, embracing all of the evidence adduced upon the hearing. This was duly allowed and signed by the referee as a true bill of exceptions, and returned and filed with his report, The plaintiff filed the following exceptions to the report of the referee:</p> <p>“1. And now comes said plaintiff and excepts to each and every of the findings of fact made by said referee, severally, and to each and every separate part thereof, and prays that these his exceptions may be allowed.</p> <p>“2. And said plaintiff further excepts to each and every conclusion of law of said referee in his report therein, severally, and prays that these his exceptions be allowed.</p> <p>“ 3. And said plaintiff further excepts to the result reached by said referee in said report.</p> <p>“4. And said plaintiff further excepts to said report, in that it does not respond fully to the order of reference.</p> <p>“ 5. Said plaintiff further excepts to said report, in that it embraces matters not authorized by said order of reference.”</p> <p>Hattie B. Franks remitted the $130 found to be due her, and thereupon the defendants moved the court to confirm the referee’s report. At the'October Term of the court for 1883, the motion to confirm the report was sustained, and thereon judgment was entered as follows:</p> <p>“ It is ordered by the court, that the defendant, Hattie B. Frauks, surrender to plaintiff the Guilford Dudley mortgage, with the notes secured, and also the Kate Wilson mortgage for $330; and it is also ordered that the referee be and he is hereby allowed the sum of seventy-five dollars, and that the plaintiff pay one-third thereof, and the defendant, Hattie B. Franks, two-thirds thereof; and it is hereby ordered and adjudged • by the court that the plaintiff pay one-third of the balance of the costs, and the defendant, Hattie B. Franks, two-thirds of said costs taxed in this case.”</p> <p>The plaintiff excepted, and brings the case here.</p>

Error from Wilson District Court. EepleviN by Penn against Baughman, as sheriff of Wilson county. Judgment for plaintiff, at the February Term, 1884. The defendant brings the case to this court. The opinion states the material facts.

Error from Shawnee District Court. ACTION by George O. Wilmarth against The Western News Company, a corporation duly organized under the laws of the state of Illinois, brought December 14, 1880, to recover damages for the wrongful and malicious issuance and levy of an order of attachment. Thereafter the defendant demurred to the petition, upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff.

En-or from Cowley District Court. ACTION brought by Eliza Reihl and others against Joseph Lihowsld, to quiet title to lot 8, in block 109, in the city of Winfield. Trial by the court at the October Term, 1883, when the court found that the defendant was the equitable owner of the undivided one-half of the lot in controversy; that the plaintiff and the minor heirs together held the legal title thereto in trust for him, and that he was entitled to have partition made thereof.

Error from Chase District Court. ACTION brought by Clay Shaft against The Atchison, 2b-peha & Santa Fé Railroad Company, to recover damages for the killing of a steer belonging to the plaintiff.

Error from, Neosho District Court. ActioN by Bradshaw against The Railway Company, to recover damages for his hog, alleged to have been killed by the said company. Trial at the April Term, 1884, and judgment for plaintiff for $20 for the value of his hog, $20 as an attorney’s fee for the prosecution of his action, and for costs. The Company brings the case here. The opinion states the material facts.

ON November 25,1883, Richard Lawson filed his complaint-under oath with A. B. Chaffee, a justice of the peace of Cloud county, charging that one Napoleon Goodwin, on November 24, 1883, in the county of Mitchell and state of Kansas, did then and there unlawfully and feloniously take away from him his daughter, one Nannie Lawson, a female under the age of eighteen years, for the purpose of prostitution and concubinage, and brought her into the county of Cloud, in said state.

Error from, Atchison District Court. ACTION brought by Conrad Weber, as administrator of the •estate of Philip Weber, deceased, under § 422 of the civil code, to recover damages on account of the death of the plaintiff’s intestate, alleged to have been caused by the negligence and wrongdoing of the Atchison, Topeka & Santa Fé Railroad Company.

<p>1. CONVEYANCE; Mistake in Description; Correction. Where the parties executing a mortgage intended to convey all their real estate in a certain county in this state, and the grantees also intended to have the conveyance embrace all the lands actually owned by the mortgagors in said county, and in writing out the mortgage a mistake was made in the description of the land intended to be mortgaged in copying the description from a tax receipt, held, the mistake in the description is one that a court of equity will correct so as to conform to the actual intention of all the parties thereto.</p> <p>2. Mutual Mistake; Reformation; Debtor and Creditor. Where a mutual mistake is made in the description of the land intended to be mortgaged, the same may be reformed at any time while the title of the land remains in the mortgagor; nor can attaching creditors of the mortgagor successfully object to the reformation of the mortgage, as their lien is only upon the lands and tenements of the mortgagor, and not upon lands and tenements not in fact belonging to him. In such a case, the land intended to be mortgaged is in equity the land of the mortgagee for the purpose of securing the payment of the debt of the mortgagor.</p> <p>3. G-UARDIAN and Ward; Trust Funds Lent; Consideration. Where A and B are administrators of an estate of which there are minor heir s and before there has been any distribution of the estate the share of t}j.e minors therein is estimated, and B, as guardian of said minors, gives a bond as guardian, and thereafter, as guardian, loans the trust funds in his hands to a firm of which he is a partner, a note and mortgage given by the firm to B, as guardian of the minors, for the money so loaned, cannot be said to be without consideration. Held, further, That, where the note is payable “to the order of B, gd. of the minors,” and the mortgage sufficiently recites that the conveyance is made for the purpose of securing B, as guardian of the minors, on account of the indebtedness of the firm of which he is a partner,'to the minors, the note and mortgage do not show upon their face an attempt upon the part of B to withdraw his property from the reach of the creditors of the firm, but an indebtedness, secured by a mortgage, due the minors.</p> <p>4. Trust Funds Lent; Partnership; Rights of Ward. Where a guardian loans the trust funds in his hands to a firm of which he is a member, with the knowledge of his other partners, it becomes a partnership debt, and the successor of such guardian, in the interest of his wards, has the right to elect to consider the money as a loan, or to hold the former guardian responsible on his official bond.</p> <p>5. Mortgage, in Fkeess of Debt. The mere fact that a mortgage given by an insolvent person secures a greater sum than is actually due, is not conclusive of fraud.</p>

The defendants in error filed a motion for a rehearing in Snyder v. Bell, (reported in 32 Kas. 230, et seq., wherein the facts are stated.) The opinion herein was filed at the May 1885 session of the court.

Original Proceedings in Mandamus. ACTION brought in this court January 7,1885, by L. E. Jones against George M. Broohs, as treasurer of Sheridan county, to compel the defendant to pay certain warrants of said county. The alternative writ was issued as prayed for, and made returnable on the 6th day of February, 1885. The opinion herein was filed at the May 1885 session of the court.

The plaintiff in error filed a motion for a rehearing in Cowling v. Greenleaf, (reported in 32 Kas. 392, et seq., wherein the facts are stated.) The opinion herein was filed at the May 1885 session of .the court.

Error from Sedgwick District Court. ACTION commenced by Augusta Busenbark against Henry Busenbark, John A. Busenbark, Josephine Underwood and H. B. Watt, November 26, 1883, to obtain a divorce from her husband, Henry Busenbark, on the grounds of extreme cruelty and gross neglect of duty.

Error from Greenwood District Court. At the May Term, 1884, plaintiff Morris recovered a judgment for $50 and costs against defendant Baker, who brings it here for review. The opinion states the facts.

Error from Butler District Court. ACTION to have a supposed marriage declared to be a nullity. The material facts aré stated in the opinion. The court declared the marriage null, but adjudged that the plaintiff, Aaron H. Fuller, pay the defendant, Mary A. Fuller, the sum of $600 as alimony. The plaintiff complains, especially of this award of alimony, and brings the case to this court.

Original Proceedings in Habeas Corpus. PETITION for a writ of habeas corpus, filed in this court January 6,1885, by W. H. Suppe against J. H. Wilhite, sheriff of Lyon county. The opinion, filed at the June 1885 session of the court, states the material facts.

Error from, Wyandotte Distriet Cov/rt. ON May 15,1883, George B. Wood filed in the district court of Wyandotte county, against the defendant, The National Water Works Company of New York, the following petition: “And now comes the above-named plaintiff, George B. Wood, and for cause of action against the above-named defendant,, the National Water Works Company of New York, a corporation duly organized under the laws of the state of New York, and avers that he has a legal…

Err or from Greenwood District Court. EJECTMENT, brought by Bronson against Hafey. Judgment for the plaintiff, at the May Term, 1884. Defendant brings the case here. The opinion states the facts.

Error from Bourbon District, Court. Action upon a policy of insurance. On December 14,1882, The Continental Insurance Company, of New York city, insured J. L. Daly against loss or damage to a dwelling house, together with 'the furniture and bedding therein, on account of. fire and lightning, in a sum not- exceeding seven hundred dollars.

Error from Washington Eistriet Qowrt. ■ Action commenced by William Moorehead and E. C. Knowles, partners as Moorehead & Knowles, against Charles Mount, February 9,1882, to quiet title to the south half of section 4, in township 3 south, of range 2, Washington county, which they claim to own and be in actual possession of under a tax deed executed February 5, 1880. Service was bad upon Mount by publication.

<p> Error from Elk District Court. </p> <p>The opinion sufficiently states the case.</p>

Error from, Shawnee District Cowrt. ACTION by B. A. Feineman & Co. against Frank Sachs, to recover the price of certain intoxicating liquors. Trial at the April Term, 1883, and judgment for costs against plaintiffs. They bring the case to this court. The opinion states the material facts.

Error from Atchison District Cov/rt. ACTION commenced by the Atchison Savings Bank against J. M. Roberson and F. I. Roberson, partners as J. M. Roberson & Go., on July 14, 1882, upon the following written instrument, before a justice of the peace of Atchison county: “$278.16. Atchison, Kas., June 16, 1882.

Error from Bourbon District Court. The opinion contains a sufficient statement of the case. The plaintiff Drake brings here for reversal certain orders of the court below, made in his action against The First National Bank of Fort Scott, at the September Term, 1883.

Error from Neosho District Court. ACTION by Roads against The Railway Company, to recover the value of certain hogs which were killed by the company in the operation of its road. Trial at the April Term, 1884, .and judgment for plaintiff. The Company brings the case to this court. The opinion states the material facts.

Original Proceedings in Mandamus. The facts in this case are as follows: For eight years prior to 1880, the city of Newton was a city of the third class; the territory within the city, together with 13-J sections of land adjacent, was duly organized as School District No. 1, Harvey county, state of Kansas.

Error from Linn District Court. RepleyiN by Kinecdd against Corbin, to recover certain sheep. Judgment for plaintiff, December 6, 1883. Defendant brings the case here. The opinion states the material facts.

Error from Jefferson District Court. ACTION by Insley against Mitchell and others, to foreclose as a mortgage a certain deed. Trial at the October Term, 1883, and judgment for plaintiff. The defendants bring the case here. The material facts are stated in the opinion.

Error from Reno District Court. ACTION brought by Wagner against The Railroad Company, to recover damages for personal injuries. Trial at the January Term, 1884, and judgment for plaintiff for $2,000 and costs. The Company brings the case here. The opinion states the material facts.

ACTION in the district court of Atchison county, to enjoin the sale of certain real estate. Defendants in error recovered judgment on the 23d day of May, 1885. The plaintiffs bring the case here. The opinion herein, filed at the June 1885 session of this court, contains a sufficient statement of the case.

In Rullman v. Hulse, 32 Kas. 598, the judgment of the court below was affirmed. The plaintiff in error filed a motion for a rehearing. This motion the court decided at its session in June, 1885.

Original Proceedings in Habeas Corpus. PETITION for a writ of habeas corpus, filed in this court April 24,1885, by Melvin Burrows, against C. H Thompson, as sheriff of Marion county. Thereupon the writ prayed for was issued and made returnable before the supreme court on May 6, 1885.

Error from Osage District Court. EjectmeNT, brought by TJtley against Fee aiid another. Trial at the October Term, 1883, and judgment for costs against plaintiff. He brings the case here. The opinion states the facts.

Error from Shawnee Superior Cowrt. ACTION commenced June 2, 1885, in the superior court of Shawnee county, by Albert W. Knowles and others, to restrain and prohibit The Board of Education of the Oity of Topeha from issuing certain bonds authorized by an act of the legislature approved February 21, 1885, entitled “An act to authorize and empower the board of education of the city of 'Topeka, in Shawnee county, state of Kansas, to issue the bonds of their school district, for…

Error from Miami District Court. Action brought by Lane against The Railroad Company, to recover damages for the alleged negligent killing of two cows belonging to the plaintiff. Trial at the May Term, 1884, and judgment for plaintiff for $100 and costs. The defendant brings the case here. The material facts are stated in the opinion.

ProsecutioN for a violation of the prohibitory liquor law. From a conviction and sentence at the. January Term, 1885, the defendant Brooks appeals. The opinion states the material facts.

<p> Appeal from Allen District Court. </p> <p>PROSECUTION for a violation of the prohibitory liquor law. The defendant Carlyle was convicted and sentenced at the January Term, 1885. He appeals. The opinion states the case.</p>

Error from Lyon District Court. AN information was filed in the district court of Lyon county, on August 6,1883, alleging in the third count thereof that one Lewis Macke unlawfully sold intoxicating liquors, on August 5,1883, in a certain building on lot 130 on Commercial street, in the city of Emporia.

Error from, Davis District Court. ACTION by Doyle against Doyle and another, to cancel certain tax deeds. At the September Term, 1884, the court overruled defendants’ demurrer to plaintiff’s petition, and rendered judgment for plaintiff. The defendants bring the case to this court. The facts appear in the opinion.

Error from Leavenworth Distriet Court. ACTION by Atehison against McGonigle, to recover $2,000 damages for 200,000 bushels of sand alleged to have been taken from plaintiff’s premises in Platte county, Missouri, by the defendant, brought to Leavenworth, Kansas, and converted to his own use. Trial at the December Term, 1883, and verdict for plaintiff for $1. Defendant moved for a new trial, which motion the court overruled. Judgment upon the verdict for plaintiff.

Error from, Leavenworth District Court. ACTION brought by W. J. Buchan, as trustee for A. T. Hines and others, against George R. Hines and others, upon a. certain promissory note, and to foreclose certain mortgages •given to secure its payment. Judgment for plaintiff Buchan, ■July 4, 1884. The defendant Markson, as assignee of the Leavenworth Savings Bank, brings the case to this court. The opinion contains a sufficient statement of the facts.

Error from Chase District Court. Action by Priclcetb against The Railroad Company, to recover the value of his cow, killed by defendant’s freight train. Trial at the April Term, 1884, and judgment for defendant for costs against the plaintiff. He brings the case here. The facts are stated in the opinion.

Error from Labette District Court. The opinion states tlie nature of the action, and the facts. At the November Term, 1883, plaintiff Knapp recovered a judgment- for $1,000 against the Parsons Water Company, which brings the case here.

Error from Dyon District Court. ACTION brought against The Railroad Company by Joseph Broion, as administrator of the estate of William Haas, deceased, who is alleged to have lost his life by reason of the negligence of' .the defendant. Trial at the March Term, 1884, and verdict against the company for $5,000. The defendant moved for judgment upon the special findings, notwithstanding the general verdict, which motion was overruled.

Error from Atchison District Court. ACTION brought by Oottleib Wolf against W. JR. Stebbins, to recover damages for a breach of the covenant of warranty in a deed of real estate from plaintiff to defendant, situate in Don-iphan county. The action was tried in the district court of Atchison county without a jury, at its November Term, 1883, upon an agreed statement of facts, which is as follows: “1.