Volume 34 — Kansas Reports

The facts sufficiently appear in the following opinion, filed by Hon. David Martin, the district judge who heard the case: “On February 14, 1885, L. C. Challiss made oath before the judge of this court to a complaint against Robert Forbriger, charging him with unlawfully and willfully exacting, demanding and receiving more than was due to him for his services as assessor of the city of Atchison for the year 1884.

Eh'ror from Cowley District Court. Action brought December 7, 1883, by Noah Gribben, as guardian of Olive E. Gribben, a lunatic, against Samuel E. Maxwell, to set aside a conveyance executed by Olive E. Gribben on June 11, 1883.

Error from Doniphan District Court. Action brought, before a justice of the peace,'by Noyes against Miller, to recover on a promissory note. A process in garnishment was issued and served upon School District No. 21, in Doniphan county, whereby the plaintiff .undertook to garnish the wages of the defendant, who was teaching in the public school of that district.

At tbe April Term, 1884, of the district court, the defendant Fox was convicted and sentenced to pay a fine of $5 and the costs of the prosecution, for a violation of a certain ordinance of the city of Cherokee. He appeals. The opinion states the material facts.

Error from Wyandotte District Court. The opinion states the nature of the action, and the ruling (made September 2, 1884), which the defendant company brings here for review.

Error from Montgomery District Court. Action by Kennedy against Powell, to recover a judgment for $2,421.85. On behalf of plaintiff an order of attachment was issued and levied upon certain real estate, as the property of the defendant. Elizabeth Powell, the wife of defendant, filed a motion to discharge the attachment aforesaid on the ground that she was the owner in fee thereof, and that defendant William Powell had no interest therein at the time of the levy.

Error from Johnson District Court. On June 10, 1884, Tootle, Hanna & Co., of Kansas City, Missouri, brought a civil action in the district court of Johnson county, against Rufus Smith, of Gardner, Kansas, to recover the sum of $2,600, then over-due upon an account and note given for goods, wares and merchandise. On the same day, they caused to be filed an affidavit for an attachment against Rufus Smith.

Error from Clay District Court. Forcible detainer, brought by Docking against Frazell. Trial by the court at the May Term, 1884, and judgment for defendant for costs against the plaintiff. Docking brings the case to this court. The material facts are stated in the opinion.

Error from, Brown District Court. Action brought by Holcomb against Woodmansie, to recover damages for the alleged conversion by the defendant of a stock of groceries owned by the plaintiff. Trial at the January Term, 1884, and verdict for plaintiff for $591.06. Motion for a new trial overruled, and judgment accordingly for plaintiff. The defendant brings the case here. The facts are sufficiently stated in the opinion.

Frror from Shawnee District Court. The opinion states the nature of the action, and the facts. The defendants, Stein and wife, filed a general demurrer to plaintiff’s bill of particulars, which the court sustained at the April Term, 1884. This ruling plaintiff brings here for review.

Error from Greenwood District Court. Action brought June 8, 1883, by C. J. Haffey against II. B. Gurnsey and others, to recover $300, with interest front October 1, 1880, at seven per cent, per annum.

<p> Error from Johnson District Court. </p> <p>Ejectment, brought by Pilcher against The Railroad Company. Trial by the court at the March Term, 1884, and judgment for defendant for costs against the plaintiff. Pilcher brings the case here. The opinion states the material facts.</p>

Original Proceedings in Quo. Warranto. Action brought in this court, April 14, 1885, by R. H. C. Searle, against U. S. Ciarle.

Action by Alice B. Packard against Augustus Packard, for divorce and alimony. Trial on March 10 and 11, at the February Term, 1884, the plaintiff appearing in person and by S. A. Burroughs, James Humphrey, and J. W. D. Pierce, her attorneys; and the defendant appearing in person and by Stambaugh & Hurd, and McClure & Austin, his attorneys.

Error from, Washington District Court. Replevin, brought by Bliss against Vedder, to recover a printing press, type, etc. Trial at the April Term, 1883, and judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

<p>At the June Term, 1884, of the district court of Mitchell county, plaintiff Kestler recovered a judgment against defendants Wilson and another, who bring the case here.</p>

Ejectment, brought by E. D. Thompson and four others, against A. J. Piper and another, in the district court of Marshall county. The plaintiffs also prayed for a temporary order restraining the defendants from interfering with their possession of and rights in the real estate in controversy, which order the district judge granted, on March 10, 1885. This order the defendants bring here for review.

On December 15, 1884, there was filed in the district court of Smith county, the following information, (court, title, verification and indorsements omitted:) “I, the undersigned, prosecuting attorney of said county, in the name, by the authority and on behalf of the state of Kansas, give information, that on or about the 3d day of November, 1884, in said county of Smith and state of Kansas, one H. B. Bryan, a male person, did then and there unlawfully and feloniously obtain…

En'or from Morris District Court. Action brought by Elizabeth Sample against Matthew K. Sample and twelve others, for the partition of certain real estate. To plaintiff’s amended petition the defendant Matthew K. Sample filed a demurrer, which the court overruled at the November Term, 1884. This ruling the defendant brings here for review. The opinion states the case.

At the June Term, 1885, Job Tatlow sr. was prosecuted on the charge of feloniously assaulting and shooting at one Albert G. Craig, with intent to kill. The jury found the defendant guilty of an assault only, and the court sentenced him to pay a fine of $150. He appeals. The opinion states the facts.

Error from, Osage District Court. Charles Skinner brought his action against Augusta Gerlach and ,Philip Gerlach, alleging that Philip Gerlach, as the agent of Augusta Gerlach, agreed to sell him a house and lot in Osage City, Osage county, in this state, and also a certain stock of goods, wares and merchandise in the house, for the sum of $4,000; that through the fraud of Augusta and Philip Gerlach only a part of the real estate had been conveyed by deed to him; and that…

Error from Jewell District Court. At tlie April Term, 1884, D. M. Steele & Co. recovered against Case, Bishop & Co. a judgment which they bring here for review. The opinion states the nature of the action, the pleadings, and the material facts.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed iu this court June 24, 1885, by George H. Wheeler against Samuel Thompson, as sheriff of Brown county. The writ prayed for was issued and made returnable before the supreme court, on July 8, 1885. The material facts are stated in the opinion herein, filed October 9, 1885.

<p> Error from, Atchison District Court. </p> <p>On January 31, 1884, David H. Woolf brought his action against Linn B. Hargrove, as sheriff of Atchison county, to recover the value of a stock of goods levied upon by him in the case of Leiberman & Manheimer against Isaac Woolf, claiming to be the owner of the goods by virtue of a chattel mortgage executed to him by his- son, Isaac Woolf. On April 22, 1884, he filed his amended petition in the case, and on April 23, 1884, he filed an interplea in the case of Joseph Cohn & Co. against Isaac Woolf, claiming to be entitled to the proceeds of the sale of a stock of goods levied upon by the sheriff of Douglas county, under a chattel mortgage executed by his son Isaac. Issue was joined in the' case of David H. Woolf against L. B. Hargrove, as sheriff, and also upon the interplea of David H. Woolf in the case of Joseph Cohn & Co. against Isaac Woolf, the defense in each case being that the chattel mortgages were fraudulent and void. By agreement of the parties, the cases were tried as one, at the same time, and on the same evidence, before the court without a jury. The court made the following special findings of fact:</p> <p>“1. During the year 1883, said Isaac Woolf was carrying on business at Atchison, Kansas, as a dealer in hats, caps and gentlemen’s furnishing goods, and about December 1, 1883,-he started a small branch store at Lawrence, in Douglas county, Kansas, and he went to Lawrence to manage the business there, leaving his cousin, Mendel Woolf, to manage the store at Atchison.</p> <p>“2. Said David H. Woolf is the father of said Isaac Woolf, and on April 10, 1883, said David H. Woolf loaned to said Isaac Woolf the. sum of $1,000, taking his promissory note therefor, payable one day after date, with interest at eight per cent, per annum; and on November 26, 1883, said David H. Woolf loaned to said Isaac Woolf the further sum of $500, taking his promissory note therefor, payable one day after date, with interest at eight per cent, per annum.</p> <p>“3. Afterward, in December, 1883, said David H. Woolf, at the request of Isaac Woolf, advanced to him sums as follows: December 3, check, $100; December 7, check, $175; December 21, check, rent, $55; December 26, $60; December 29, check, $200; December 31, check, $357; total, $947.</p> <p>“4. On or about January 5, 1884, said David H. Woolf caused to be drawn up with blank dates two promissory notes to be signed by said Isaac Woolf, each payable to the order of said David H. Woolf one day after date — one for $1,000, and one for $1,500, each drawing interest at the rate of eight per cent, per annum; and at the same time two chattel mortgages to secure said promissory notes respectively — the chattel mortgage to secure said $1,0.00 note being upon said Lawrence stock of goods, and the chattel mortgage to secure said $1,500 note being upon said Atchison stock of goods. On January 7, 1884, said David II. Woolf went to Lawrence and saw said Isaac Woolf there, but said David H. Woolf did not take said blank notes and mortgages with him, and did not say anything to said Isaac Woolf about signing the same, or giving-security for said indebtedness.</p> <p>“5. On January 19, 1884, said David EL Woolf advanced to said Isaac Woolf the further sum of $43 to pay Mendel Woolf for salary; on January 21,1884, said David EL Woolf again went to Lawrence, taking with him said two blank promissory notes and said chattel mortgage on the Lawrence stock of goods, and on the same day said Isaac Woolf executed all three of said instruments at Lawrence, filling in the date of said promissory note for $1,000 as January 21, 1884, and the promissory note for $1,500 as January 22, 1884, and said chattel mortgage as January 21,1884; true copies of said promissory notes are set out in the petition in the first-entitled action, and the bill of interpleader in the second-entitled action, and a true copy of said chattel mortgage is set out as an exhibit to said bill of interpleader; said chattel mortgage was duly filed and entered in the office of register of deeds of Douglas county, Kansas, on January 21, 1884, and by consent of said Isaac Woolf said David H. Woolf took immediate and actual possession of said Lawrence stock of goods described herein; and at the request of said David H. Woolf, who remained at Lawrence, said Isaac Woolf came to Atchison, and on January 22, 1884, executed the chattel mortgage on the Atchison stock, a true copy of which is annexed to the petition in the first-entitled action as an exhibit, said chattel mortgage being dated January 21, 1884; said chattel mortgage was duly filed and entered in the office of the register of deeds of Atchison county, Kansas, on January 22, 1884, at 10 o’clock A. M., and by a previous agreement between said David H. Woolf and Isaac Woolf, said Isaac Woolf immediately turned said Atchison stock of goods over to said Mendel Woolf, as agent of said David H. Woolf, and from said time said Mendel Woolf held possession of said Atchison stock of goods as such agent of David H. Woolf. On the execution and delivery of said two notes and chattel mortgages, said David H. Woolf delivered up to said Isaac Woolf said promissory note of April 10,1883, for $1,000, and said promissory note of November 26, 1883, for $500.</p> <p>“6. On January 23,1884, Louis S. Leiberman and Joseph C. Manheimer, partners as Leiberman & Manheimer, commenced an action in this court against said Isaac Wooif to recover the sum of $830.15 on an account for goods and merchandise, together with interest thereon from December 14, 1883; and upon due proceedings therefor, an order of attachment was issued in said action upon said claim against said Isaac Woolf, which order of attachment came into the hands of the sheriff of this county at 11 o’clock a. m. of said day; and thereafter, on said day, said sheriff levied said attachment in due form of law upon said Atchison stock of goods described in said Atchison chattel mortgage, upon goods of David H. Woolf of about the value of $21.25, in the trunk of said David H. Woolf, and he caused an inventory thereof to be made and duly returned with said writ; and the said sheriff took the said goods into his posession.</p> <p>“7. On January 23, 1884, said Joseph Cohn & Co. commenced an action in this court against said Isaac Woolf to recover the sum of $144.55 on an account for goods and merchandise, together with the interest thereon from December 8, 1883; and upon due proceedings after jurisdiction therefor had been properly acquired, an order of attachment was duly issued to the sheriff of said Douglas county in said action upon said claim against said Isaac Woolf, which order of attachment came into the hands of said sheriff of Douglas county on January 24,1884, at 1 o’clock p. m., and thereafter on said day said sheriff levied said attachment in due form of law upon said Lawrence stock of goods described in said Lawrence chattel mortgage; and he caused an inventory thereof to be made and duly returned with said writ; and the said sheriff took said goods into his possession.</p> <p>“8. After the appointment of a receiver, said Lawrence stock was shipped to Atchison, and the same was sold with said Atchison stock, but a separate account was kept of each stock; said Lawrence stock was sold for $166.85, which was the market value thereof; and said Atchison stock, including the individual goods of David H. Woolf, taken from his trunk, was sold for $550.40, which was the market value thereof.</p> <p>“ 9. Before the commencement of the first-entitled action, said David H. Woolf, plaintiff therein, duly demanded of said sheriff of Atchison county the possession of said Atchison stock of goods, and he also made due demand for said Lawrence stock of goods.</p> <p>“10. Said Isaac Woolf has never paid to said David PL Woolf any part of the indebtedness mentioned in conclusions of fact 2, 3 and 5, nor any part of said two promissory notes, executed January 21, .1884, for $1,000 and $1,500 respectively, which were given in renewal of said indebtedness as mentioned in conclusions of fact 4 and 5.</p> <p>“11. At the time of taking said two last-mentioned promissory notes and said two chattel mortgages, said David PL Woolf had good reason to believe, and he did believe, that said Isaac Woolf was insolvent, and that unless said indebtedness was secured, he, the said David PL Woolf, would lose the same.”</p> <p>And thereon the court made the following conclusions of law:</p> <p>“1. In the first-entitled action, the plaintiff, David H. Woolf, is entitled to recover of the defendant, Linn B. Hargrove, the value of said Atchison stock of goods, including the individual property taken from the trunk of said David H. Woolf, amounting in all to the sum of $550.40, and also the costs of suit.</p> <p>“ 2. In the second-entitled action, the interpleader, David H. Woolf, is entitled to recover the sum for which said Lawrence stock of goods was sold, to wit, the sum of $166.85, and said Joseph Cohn & Co. have no right to the same; but said David H. Woolf is not entitled to recover any costs in said interpleader proceeding.”</p> <p>Afterward the court gave judgment for David H. Woolf against the sheriff for $550.40, the value of the Atchison stock of goods, and for David H. Woolf upon his interplea in the case of Joseph Cohn & Co. against Isaac Woolf, for the sum $166.85. Linn JB. Hargrove, as sheriff, and Joseph Cohn & Co. excepted to the rulings and judgments of the court, and bring their cases here. Only one case-made is filed, but separate petitions in error are attached thereto.</p>

Error from, Johnson District Court. Two actions, one brought by Theodore Schermerhorn sr., in the names of his children, against Mary F. Mahaffie and others, to set aside a certain decree, and for partition of real estate; the other action, a proceeding for allotment begun by plaintiff in the probate court, and by defendants appealed to the district court. Both cases were tried together before the court without a jury.

Prosecution for bribing, inducing- and deterring a witness from appearing and giving her testimony in a certain criminal proceeding. Trial at the April Term, 1885, when the defendant, Anderson, was found guilty, and sentenced to be imprisoned in the county jail of Cloud county for the term of four months, beginning May 27, 1885, and to pay a fine of $200 to The State, and the costs of the prosecution. Defendant appeals. The opinion states the case.

Error from, Barber District Court. Action by Moore against Boyd and two others, to recover damages under the provisions of § 7, chapter 161, Laws of 1881. At the November Term, 1884, the court sustained plaintiff’s demurrer to the second defense set up in defendants’ answer. This ruling the defendants bring here for review. The opinion states the material facts.

<p> Error from Norton District Court. </p> <p>Action by Montgomery against Road and others, upon a promissory note and a real-estate mortgage given to secure its payment. Judgment for defendant Delcourt for costs, at the April Term, 1884. The plaintiff brings the case to this court. The opinion states the material facts.</p>

Error from, Bourbon District Court. Action brought by Maltby & Co. against The Railway Company and another, to recover $116.40 from said company because of its failure to answer as garnishee in an action brought by plaintiffs against George W. Ridgway before a justice of the peace. Trial by the court at the September Term, 1884, upon an agreed statement of facts. Judgment was rendered for plaintiffs and against the defendant company for $62.25, and costs. New trial denied.

Error from, Rice District Court. Action brought by Cabbert against The Railroad Company, to recover $500 and an attorney’s fee, for killing a jáckass belonging to the plaintiff. ■ Trial at the March Term, 1884, and verdict for plaintiff' for $280.13 damages, and $25 attorney’s fee. New trial denied, and judgment on the verdict for plaintiff, and for costs, taxed at $155.75. The defendant company brings the case here. The facts are stated in the opinion.

' Error from Brown District Court. Action by DicJdnson against Wood and another, upon a promissory note. Trial at the January Term, 1884, and judgment for plaintiff for $101.34. Defendants bring the case to this court. The opinion states the facts.

Error from Osage District Court. This action wás brought in the district court of Osage county, on August 1,1884, by William C. McPike and J. C. Fox, partners as McPike & Fox, against E. D. Atwell, to recover the sum of $428.88 for goods sold and delivered. On the same day an affidavit and bond for attachment against the property of the defendant was filed by the plaintiffs.

Error from Marion District Cowrt. Action upon a forfeited recognizance. At the June Term, 1884, The State had judgment for $1,413.50 and costs against the sureties, Boberts, and four others. They bring the case here. The material facts are stated in the opinion.

Error from Neosho District Court. On March 31,1884, Alexander Allison filed with a justice of the peace of Neosho county his bill of particulars, and therein demanded judgment against G. W. McClelland and E. E. McClelland, partners as McClelland Brothers, for $285, with interest from March 15,1884. Judgment was rendered in the action before the justice in favor of Allison against the McClelland Brothers on May 5,1884, for $288 debt, and $12.50 costs.

Error-from Bowrbon District Court. Action brought by Cohen against The Railroad Company, to recover $28,700, with interest from October 1, 1880, as damages for the permanent taking and appropriation of a strip of land through the plaintiff’s premises for a right-of-way for railroad purposes. Judgment for plaintiff for $2,195, at the May Term, 1884. Cohen brings the case here. The opinion contains a sufficient statement of the facts.

Error from Atchison District Court. Action by Sullivan against The Phenix Insurance Company of Brooklyn, to recover $600, with interest, upon a certain policy of insurance. Trial at the February Term, 1884. After the evidence on behalf of both parties had been submitted, the court directed the jury to find against the plaintiff; verdict and judgment accordingly. Sullivan brings the case here. The opinion states the material facts.

Error from Leavenworth Distriet Court. On January 9, 1884, F. Kothman, one of the defendants in the action of E. H. Skaggs v. E. J. Myers, et al., filed his motion to amerce John W. Prest, as sheriff of Leavenworth county, in this state, of which the following is a copy, omitting court and title: “ Now comes the defendant, F. Kothman, and moves the court to amerce and order John W. Prest, as sheriff of Leavenworth county, Kansas, to pay to said F. Kothman, or his attorney of…

Error from, Marshall District Court. On May 10, 1883, Alexander McLeod insured bis property against fire, lightning, tornadoes, cyclones and wind-storms, in The Burlington Insurance Company, to the amount of $8,115, for the term of five years, at an agreed premium of $325, to be paid by the assured.

Error from Allen District Court. Action for a divorce, brought by Elizabeth Walton against J. E. Walton. April 22, 1884, decree for plaintiff. The defendant brings the case here. The facts are stated in the opinion.

<p> FJrror from Sedgwick District Court. </p> <p>Action brought February 24,1884, by J. C. Davis'against The Atchison, Topeka & Santa Fé Railroad Company, to recover damages for personal injuries alleged to have been received in the city of Wichita, on December 26, 1883, by reason of a collision of a wagon in which plaintiff was and a train of cars alleged to have been operated by the employés and servants of the railroad company. The company answered, denying generally all the allegations in plaintiff’s petition, and further alleged that plaintiff was guilty of contributory negligence. Trial at the June Term, 1884. The court, among other things, charged the jury as follows:</p> <p>“It is incumbent upon the plaintiff to prove that the injury complained of was committed by the Atchison, Topeka & Santa Fé Eailroad Company. It is claimed by the defendant that the train by which the plaintiff was injured was operated by the Wichita & Western Railroad Company, and that the persons in charge of and managing the train were the servants and employés of the latter company, and not of the defendant. This question is one of fact, to be determined by you from all the evidence in the case. The burden is upon the plaintiff to establish the fact that the train was being operated by the Atchison, Topeka & Santa Fé Railroad Company at the time, and if the evidence is evenly balanced on the question, you should find for the defendant. If you find from the evidence that the accident to the plaintiff' happened by a train of cars colliding with the wagon in which he was riding, at the crossing of Oak street, on the railroad track owned by the Wichita & Western Railroad Company, in the city of Wichita, and that the train was at the time under the control and management of men who were agents and servants of the Wichita & Western Railroad Company, and who were not in the employ or under the direction and control of the defendant company, then you must find for the defendant. The mere fact that the same men were officers of the defendant company, and also of the Wichita & Western Railroad Company, is not sufficient evidence to justify a finding that the two companies were one and the same; and if the evidence shows that the Wichita & Western Railroad Company was a corporation duly created and organized under the laws of the state of Kansas, and that the injuries to plaintiff were caused by the negligence of its servants in the management of its business, you cannot find the defendant company liable for such negligence. But the last instruction must be considered with this qualification: that what is true of individuals is also true of corporations, in this respect, that one may be the servant of the other, and the servants of the one may be under the control and direction of the other. In determining the liability of the defendant in this case for the acts of the men in charge of the train in question, the true test is, what company had the control and direction of the men in the operation of that train at the time? Was it the defendant, or some other company? And if it was not the defendant, it is immaterial, for the purposes of this case, who it was; the defendant would not be liable. But if the defendant in fact exercised the actual control of the men in the management and operation of that train, it would be liable for the negligence of the men in the operation of the train, notwithstanding the men were at the time the servants and engaged in the business of another com-party; and this fact, as I have said, must be determined upon the whole evidence in the case.”</p> <p>The defendant asked the court to instruct the jury as follows:</p> <p>“1. I instruct you that under the evidence and the law in this case, the defendant is not liable, and you must find a verdict in its favor.</p> <p>“ 2. I instruct you that the defendant, the Atchison, Topeka & Santa Eé Railroad Company, is in no manner responsible for the negligent acts, if any, of the servants, agents or employés of the Wichita & Western Railroad- Company, who were not in the employ of the defendant, or under its management and control.</p> <p>“3. I instruct you that the mere fact that the Atchison, Topeka & Santa Eé Railroad Company, by the purchase of the stock and bonds, or either, of the Wichita & Western Railroad Company, was aiding said railroad company in its construction, is not sufficient to render said Atchison, Topeka & Santa Fé Railroad Company liable to the plaintiff in this action.</p> <p>“4. I instruct you that if you find from the evidence that the accident happened by a train of cars colliding with the wagon in which plaintiff was riding, at the Oak street crossing, in Wichita, on the tracks owned by the Wichita & Western Railroad Company, and that the said train was under the control and management of persons who were the agents and servants of the Wichita & Western Railroad Company and were not in the employ of the Atchison, Topeka & Santa Fé Railroad Company, then you must find for the defendant.”</p> <p>The court refused to give these instructions, to which refusal the company excepted. The jury returned a verdict for the plaintiff, and assessed his damages at the sum of $2,500, and also made the following special findings:</p> <p>“1. Is it not a fact that the persons present, or having to do with the train which collided with plaintiff’s wagon and caused the injury, were Charles Plañís, the conductor, and George Beals, brakeman, and-Richardson, who was running the engine? and if not, state fully the names of all other persons present, who in any manner had anything to do with the running of said trains. A. Yes.</p> <p>“ 2. Is it not a fact that at the time of the accident resulting in plaintiff’s injury, Charles Plank, the conductor of the train, Eichardson, the person who was running the engine, and George Beals, the brakeraan, were each of them in the employ of and on the pay-rolls of the Wichita & Western Eailroad Company? A. They were on the pay-rolls of the Wichita & Western Eailroad.</p> <p>“3. Is it not a fact that the Wichita & Western Eailroad Company is a corporation duly incorporated under the laws of the state of Kansas for the purpose of constructing, owning and operating a railroad from Wichita west? A. Don’t know.</p> <p>“ 4. Is it not a fact that neither conductor Plank, nor brakeman George Beals, nor-Eichardson, were, either of them, at the time of the accident resulting in plaintiff’s injuries, agents or servants or in the employ of or under the control of the Atchison, Topeka & Santa Fé Eailroad Company? A. No.</p> <p>“5. If you answer the last question in the'negative, state fully which of such persons were in the employ of the Atchison, Topeka & Santa Fé Eailroad Company; state what positions they held, if any; what services they performed for said company, and what the duties of such employment for said .Atchison, Topeka & Santa Fé Eailroad Company consisted of. A. Charles Plank, conductor; George Beals, brakeman; Eichardson, fireman. We find they were agents or servants or in the employ or under the control of the A. T. & S. F. Eld. Co.</p> <p>“6. Is it not a fact that just prior to said accident, the plaintiff was driving eastward, on Oak street, in the city of Wichita, toward the railroad tracks situated near the union depot in Wichita? A. Yes.</p> <p>“ 7. Is it not a fact that there was situated on the south side of Oak street, and about four or five rods from the west railroad track, a peach orchard, about three or four rods wide and four or five rods long? A. Yes.</p> <p>“ 8. Is it not a fact that the peach orchard referred to in the last question was situated about sixty-four feet from the west rail of said railroad tracks? A. Yes.</p> <p>“ 9. Is it not a fact that after the plaintiff passed said peach orchard thei’e was nothing to obstruct his view of the main track, on which said engine and train of cars were approaching, which would prevent him from seeing said approaching engine and cars for a distance of several blocks, had he looked toward the south ? A. Don’t know.</p> <p>“ 10. If you answer the last question in the negative, state fully what such obstructions consisted of, and the height and location of the same. A. Don’t know.</p> <p>“11. Is it not a fact that the track on which the train was approaching from Oak street south to Douglas avenue, in the city of Wichita, was straight, or nearly so? A. Yes.</p> <p>“12. State what there was, if anything, to prevent plaintiff from seeing said approaching train, had he looked to the south, after passing the corner of said peach orchard, anywhere between Oak street and the old railroad depot on Douglas avenue in said city, giving location and height of such obstruction. A. Don’t know.</p> <p>“13. Is it not a fact that the railroad track on which said train was passing at the time of said accident, belongs to the Wichita & Western Railroad Company? A. No.</p> <p>“14. Was it not about 1 o’clock P. M., on a bright, clear day, when the alleged injury to plaintiff was done? A. No.</p> <p>“15. Was not plaintiff at that time in the possession of full mental and physical powers, with his senses of sight and hearing unimpaired? A. Yes.”</p> <p>The railroad company filed its motion for judgment upon the special findings, which was overruled. Thereupon it filed its motion for a new trial, which was also overruled. Judgment was entered upon the verdict in favor of the plaintiff and against the railroad company for the sum of $2,500 and costs. The Company excepted to the rulings and judgment, and brings the case here.</p>

Plaintiff in error filed a motion for a rehearing of the above ease, which motion the court heard during its session in December, 1885, and then filed the opinion, infra.

Error from, Sedgwick, District Court. Ejectment, brought by English against Williamson. Judgment for defendant at the June Term, 1884. The plaintiff brings the ease to this court. The material facts are stated in the opinion.

Error from Sedgmck District Court. Action by McCrocJdin against Davis, to recover $500 damages for the failure of the defendant to deliver plaintiff a certain quantity of corn. Judgment for plaintiff for $150, with interest, amounting to $169.95, at the June Term, 1883. The defendant brings the case to this court. The opinion states the facts.

Error from Osage District Court. Action brought December 16,1881, by Philip Barrett and Ducretia Barrett against James Hogden, J. C. Rogers and James Rogers, Charles B. Hatch, and W. E. McCrary, to have a mortgage on certain real estate in Osage county declared void and canceled, for the reason that the same had been procured by duress and gross abuse of the criminal process of the state.

Error from Chautauqua Eistrict Court. Action brought by The State of Kansas against School Eistrict No. S, Chautauqua County, to recover on seven school-district bonds and thirty-five accompanying coupons. The petition contained a separate count and a separate statement of a cause of action upon each of the seven bonds and on each of the thirty-five coupons.

Error from Shawnee District Court. Action brought by F. P. Zimmerman against John D. Knox, to recover for an alleged false imprisonment.

The defendant in error filed a motion for a rehearing in Bishop v. Mugler, (reported in 33 Kas. 145, et seq., wherein the facts are stated.) The opinion herein was filed at the October, 1885, session of the court.

<p> Motion for Rehearing. </p> <p>The plaintiff in error filed a motion for a rehearing in Western News Co. v. Wilmarth, (reported in 33 Kas. 510, et seq., wherein the facts are stated.) The opinion herein was filed at the October, 1885, session of the court.</p>

Appeals from Osage District Court. On April 21, 1884, an indictment was filed in the district court of Osage county against Charles Skinner, charging him in seven different counts with unlawfully selling intoxicating liquors in violation of chapter 128, Laws of 1881, commonly known as the prohibitory liquor law.

Prosecution for a violation of the prohibitory liquor law. From a judgment against him at the April Term, 1885, the defendant, Showers, appeals. The opinion states the case.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court September 24, 1885, by James Gosnell against Conway Marshall, as sheriff of Anderson county. The material facts are stated in the opinion herein, filed at the November, 1885, session of the court.

Prosecution for a violation of the prohibitory liquor law of 1881. Judgment for the defendant' Webster at the May Term, 1885, of the district court of Sumner county. The State appeals. The opinion states the case.

Error from Shawnee District Court. Action by Broohs against The City of Topeha and others, to perpetually enjoin the defendants from interfering with his possession of a certain strip of land. Judgment for defendants at the January Term, 1884. Broohs brings the case here. The opinion states the facts.

Appeal from, Finney District Court. The opinion states the case. At the April Term, 1885, judgment for the defendant. The City brings the case here.

<p>County, When Not Liable for (Josts. Prior to the enactment of chapter 108 of the Laws of 1881, a county was not liable for costs in a prosecution wherein the accused was charged with a felony, but was convicted of only a misdemeanor that was included in such charge.</p>

Prosecution for a violation of the prohibitory liquor law. From a judgment against him at the April Term, 1885, the defendant Ciarle appeals.

Error from Linn District Court. On May 31,1881, Ed. JR. Smith filed the following petition in the district court of Linn county, omitting court and title: “ Plaintiff, for a cause of action against defendant, says that he resides upon, is in possession, cultivates and is the owner of the following lands and tenements in Linn county, Kansas, to wit: The west half of the northeast quarter of section 14 and the west half of the southeast quarter of section 11, all in township…

Original Proceeding m Mandamus. Action brought in this court February 6, 1885, by The State, on the relation of the attorney general, against The Board of Commissioners of Harper Cov/nty, and the county clerk thereof, to compel said board to canvass the votes cast in said county on November 4, 1884, for the permanent location of the county seat thereof, and to declare the result of said election.

<p>Action brought by Smith against Rhodes to recover damages for obstructing a road alleged to be a public road. Trial at the April Term, 1883, of the district court of Linn county, and judgment for plaintiff. The defendant brings the case here.</p>

Error from Marshall District Court. At the December Term, 1883, plaintiff McLeod had judgment against the defendant Board of Commissioners for $924.20 aud costs, which judgment it brings here for review. The material facts appear in the opinion.

<p>1. Continuance — Foots Showing Dm Diligence. Where a criminal information is filed nineteen days before the commencement of the term of the court, and the defendant causes a subpena to be issued six days before the commencement of such term for a witness who resides in the county in which the court convenes, and the officer by mistake serves the subpena upon the wrong person; and the defendant five days before the commencement of such term causes another subpena to be issued for such witness, and this subpena is served upon the witness at his usual place of residence, and not upon him personally; and the defendant again, on the day on which the court convenes, causes another subpena. to be issued for such witness; and the case being called for trial on that day, the defendant moves for a continuance of the case to some subsequent day of the term, or to the next term, and supports his motion by affidavit, and the affidavit sets forth the foregoing facts and what would be the testimony of the witness if he were present, and such testimony is material; and the court overrules the motion, and requires that the defendant shall immediately proceed to trial: Held, Error; that up to that time the defendant had used sufficient diligence to procure the attendance of such witness, and that the continuance should have been granted.</p> <p>2. Offense, Including Another Offense; Conviction, When. Where a criminal information sets forth facts sufficient to constitute the offense of assaulting and wounding a person with intent to commit murder, under | 38 of the act relating to crimes and punishments, and the facts as thus set forth also constitute the offense of wounding under such circumstances as would constitute manslaughter if death had ensued, under $ 42 of the crimes act, held, that the jury may find the defendant guilty of either of the offenses charged, as the evidence will justify. And generally, wherever a person is charged upon information with the commission of an offense under one section of the statutes, and the offense as thus charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense.</p> <p>3.--Impeaching Verdict. Where a defendant in a criminal prosecution has been found guilty by the jury, and the defendant to support his motion for a new trial offers to prove by the testimony of the foreman of the jury that he, the foreman, was “misled by the form of the verdict, and would not have signed it had he known its real meaning,” and the court refuses to permit such testimony to be introduced, held, not error.</p>

<p> Error from Ottawa District Court. </p> <p>In April, 1880, A. G. Smith was the agent of the Union Pacific Railway Company at Minneapolis, in this state. David V. Findley had shipped from Bloomington, Indiana, to Minneapolis, via the Union Pacific Railway, on April 12, 1880, a car in which there were two horses and some household goods, and also potatoes, bacon, vinegar, and salt. Upon the arrival of the car at Minneapolis, Findley paid $100 freight, $65 of which was for back charges, and $35 for transportation over the Union Pacific Railway from Kansas City, or state line, to Minneapolis. After the payment of this money to Smith, the agent of the railway company, the latter discovered that the company had transported in the car along with the household goods for Findley, potatoes, bacon, vinegar and salt, and thereupon demanded of Findley $11.88 as additional or extra freight, and also held the goods for the'same. Findley refused to pay the $11.88, and on April 16, 1880, commenced an action against A. G. Smith before a justice of the peace of Ottawa county, to replevy the goods from Smith, for which extra or additional freight was charged. Judgment was rendered in his favor before the justice, and the defendant appealed to the district court. Upon leave of that court, Findley filed the following petition, court and title omitted:</p> <p>“ Said plaintiff complains of said defendant, and says that plaintiff is entitled to the immediate possession of the following-described goods, and that he is the owner of the said goods, to wit: Thirty bushels of potatoes, of the actual value of $30; 111- barrels of apple vinegar, at the actual value of $10; one-half barrel of salt, at the actual value of $1.75; 200 pounds of hog meat, of the actual value of $20. Said plaintiff alleges that said defendant wrongfully detained said goods for the space of one day; that said plaintiff was detained at Minneapolis, Kansas, for the space of tw^ days, by reason of not getting possession of said goods, to his damage in the sum of thirty dollars. Plaintiff therefore demands judgment for the immediate possession of said goods, or in case he cannot get possession, for the value thereof, together with $30 damage, and costs of suit in the case.”</p> <p>Trial at the May Term, 1884, before the court with a jury. The following is the contract between the plaintiff and the Kansas Pacific Railway Company, (Union Pacific Rly. Co.,) which was offered in evidence by plaintiff:</p> <p>“Live Stock Contract. — Cars, Nos. 4117.; initials, I. & St. L. — State Line Station, April 11,1880. — Agreement made between the Kansas Pacific Railway Company, of the first part, and D. V. Findley, of the second part, Witnesseth : That whereas, the said Kansas Pacific Railway Company, as a ■common carrier, transports live stock only as per annexed tariff, now considering that the said party of the first part will transport for the said party of the second part one car-load of H. H. goods and two horses from State Line station to Minneapolis station at the rate of $35 per car-load, the same being a special rate, lower than. the. regular rates mentioned in said tariff, the said party of the second part hereby relieves said party of tbe first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a private carrier for hire.</p> <p>“And said party of the second part hereby accepts for such transportation the cars provided by said company and used for shipment of said stock, and hereby assumes all risk of injury which the animals or either of them may receive in consequence of any of them being wild, unruly or weak, or maiming each other or themselves, or in consequence of heat or suffocation or other ill effects of being crowded in the cars, or on account of being injured by the burning of hay, straw, or other material used by the owner for feeding the stock or otherwise, and also all risk of damage which may be sustained by reason of any delay in such transportation, and all risk of the escape of any portion of said stock, or of loss or damage from any other cause or thing not resulting from the willful negligence of the agents of the said party of the first part.</p> <p>“And the said party of the second part further agrees that he will load and unload said stock at his own risk, and feed, water and attend the same at his own expense and risk, while it is in the stock-yards of the party of the first part awaiting shipment, and while on the ears, or at feeding or transfer points, or where it may be unloaded for any purpose.</p> <p>“And it is further agreed that said party of the sécond part will see that said stock is securely placed in the cars furnished, and that the cars are safely and properly fastened so as to prevent the escape of said stock therefrom. And it is further agreed that in case the said party of the first part shall furnish laborers to assist in loading and unloading said stock, they shall be subject to the orders and deemed the employés of the said party of the second part while so assisting. And for the consideration before mentioned said party of the second part further agrees that as a condition precedent to his right to recover any damages for loss or injury to said stock he will give notice in writing of his claim therefor to some officer of the said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party, and before such stock is mingled with other stock.</p> <p>“The evidence that the said party of the second part, after a full understanding hereof, assents to all the conditions of this contract is his signature hereto.</p> <p>“Frank C. Jackson, Agent for the Company.</p> <p>“L. V. Findlet, Shipper.</p> <p>“Bules and Begulations for the Transportation of Live Stock.— Blood animals, or animals deemed especially valuable, will be carried only on special contract, and agents are not allowed to receive and ship such animals until a proper contract is made between the owner or consignor and the general freight agent. Live stock, not especially valuable, will be rated at first-class rates upon the following estimated weights:</p> <p>One horse, mule, or horned animal................................................................. 2,000 lbs.</p> <p>Stallions estimated at................................................................................... 4,000 “</p> <p>Two horses, mules, or horned animals............................................................3,500 “</p> <p>Three horses, mules, or horned animals......................................................... 5,000 “</p> <p>Each additional animal................................................................................. 1,000 “</p> <p>“Hogs, sheep, lambs and calves will be estimated at actual weight, but not less than 280 lbs. -each, and will be charged first class. One will not be charged less than 75 cents, however short the distance. Tariff rate per car on this shipment from state line to Minneapolis, §60.</p> <p>“In case damages occur in transporting live stock, for which the company may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed for a stallion, §200; horse, §100; mule, §65; cattle, §50; and other animals, §20. At the above classification the company agrees to take proper care of the animals, and assume the liability, not exceeding the amounts given above, for loss or damage which may occur to them through the fault or negligence of its officers, agents or employés while in transportation over its road. In case, however, the owner or consignor agrees to save the company from liability for loss or damage occurring from any or all of the causes enumerated in the foregoing contract, and also agrees to load, unload, feed, water and attend to the stock himself, a special rate will be given upon ordinary stock in car-load lots. Persons not accompanying stock on same train, but preceding it, or following after on passenger or freight train, will not be passed on stock contract, but will be charged regular passenger fare; nor will money be refunded, or passes given, for fares thus paid. _ Agents are not authorized to agree to forward live stock at any specified time.”</p> <p>The following receipt was also offered in evidence by the plaintiff:</p> <p>“A. O. 13. — No. 130. — Minneapolis, Ks., Station, April 13, 1880.— Mr. D. V. Findley, for transportation from -, to Union Pacific Railway Company, Dr. Manifest. Date, 11. No. 1586. Car No., 4117; initials, I. & St. L. Description of articles: H. H. gds. and 2 horses. Weight, 20,000; rate for — ; amount, $35.00. Rel. Consignor, Wabash 28. Freight, $35.00; charges advanced, $65.00; total, $100.00.</p> <p>“ Instructions. — 1. This expense bill must be properly filled up. _ 2. Charges must in all cases be paid in cash on delivery of goods. 3. Claims for overcharge, loss or damage, should be sent to the general freight agent, accompanied by original expense bill, bill of lading, and full particulars.</p> <p>“Received payment for the company, 18 — .</p> <p>A. G. Smith, Agent.”</p> <p>The following is the bill made out by the defendant, A. G. Smith, for the freight upon the potatoes, vinegar, salt and bacon shipped by plaintiff to Minneapolis, which freight the plaintiff refused to pay:</p> <p>“A. O. 13. — Minneapolis, Kansas, Station, 4 — 13-1880. — No. 130-|-. — Mr. D. V. Findley, for transportation from S. L., to Union Pacific Railway' Company, Dr. Manifest. Date, 4-11. No. 1586. Car No., 4117; initials, I. & St. L. Description of articles — weight: 1 bbl. salt and bacon, 180; 1 bbl. vinegar, 400; bbl. vinegar, 180; 1 bbl. bacon, 216; bulk potatoes, 1,664; total, 2,640. Rate,45c — $11.88; freight, $11.88; charges advanced,-; total, $11.88.</p> <p>“Corrected bill. Consignor, Wabash.</p> <p>“Instructions. — 1. This expense bill must be properly filled up. 2. Charges must in all cases be paid in cash on delivery of goods. 3. Claims for overcharge, loss or damage should be sent to the general freight agent, accompanied by original expense bill, bill of lading, and full particulars.</p> <p>“Received payment for the company, 18 — .</p> <p>-:--, Agent.”</p> <p>' The jury returned a verdict for plaintiff, and assessed his damages at the sum of $5: They also made the following special findings of fact:</p> <p>“ Ques. 1: Was there not in the car in question'a quantity of bacon, potatoes, salt and vinegar which, or a part of which, the plaintiff* sold or endeavored to sell after his arrival in Minneapolis? Ans.: Yes.</p> <p>“Q,. 2. Was not the rate of the railroad company for the transportation of potatoes, bacon, salt and vinegar greater than for the transportation of household goods ? A. In this case, no.</p> <p>“Q,. 3. Did not the increased rate of the railroad company upon the salt, potatoes, vinegar and bacon over and above the rate upon household goods amount to $11.88, and did not Eindley refuse to pay the same? A. First question, no; second question, yes.</p> <p>“ Q. 4. Was not the defendant Smith the agent of the railroad company, and did he not for the company demand the increased rate, and in making said demand did he not conform to his duties as such agent? A. Yes.”</p> <p>Upon the return of the verdict, the defendant filed its motion to set aside the answers of the jury to questions 2 and 3, which motion was overruled. It next filed its motion for judgment in its favor upon the special questions and answers, which motion was also overruled. Thereupon the defendant filed its motion to vacate and set aside the verdict, which motion was overruled. The court then entered judgment in favor of the plaintiff* that at the time of the commencement of the action he was the owner of and entitled to the possession of the property described in his petition, and that he have and recover of the defendant the sum of $5 and his costs in the action. To the ruling and judgment of the court the defendant excepted, and brings the case here.</p>

<p>Negligence; Burden of Proof; No Cause of Action Proved. In an action by a yard switchman against a railroad company in whose employ he had been, for injuries alleged to have resulted in consequence of a defect in the draw-bar of a car, or in some of its accompanying appliances, held, that no recovery can be had against the railroad company except by proof of negligence on its part, and that it devolves upon the plaintiff to prove the negligence and to prove all the facts which constitute or make apparent such negligence; and therefore, where it was not shown that the railroad company had any knowledge of the defect existing in the draw-bar, or in some of its accompanying appliances, prior to or at the time of the injury, or that such defect had existed for any considerable length of time; nor what was the nature or character of the defect, that it was obvious or manifest, or could have been discovered by the exercise of reasonable care and diligence or by any of the tests employed by car inspectors; nor that the car had not been properly inspected by the car inspectors at the yard where the injury is alleged to have occurred, held, that no negligence is shown on the part of the railroad company, and that no cause of action against the railroad company has been proved.</p>

<p>1. Master and Servant; Cause of Action Stated. In an action by a parent to recover damages for the willful negligence and misconduct of the defendants toward his infant daughter while in their service, the plaintiff alleged that the daughter was an inexperienced girl of tender years, who was employed by the defendants as a house servant to do such work as was suitable to her years and strength, and that during her employment her menses began, causing her great pain and sickness, and that after gaining her confidence the defendants took advantage of her weakness, youth and inexperience, and in order that she might continue in their service, and perform a great and unusual amount of labor for them, they negligently, willfully and wickedly advised her that menstruation was a dangerous disease, likely to cause insanity and death, and that the best and only known remedy therefor was hard and unremitting labor; and that by reason of this advice and the influence exerted upon her. by the defendants, she was exposed to danger and hardship, and made to do work for them far beyond her strength, and compelled to perform the labor of two persons, by reason of which she became very sick, and was permanently crippled and disabled, and that ever since that time her father has been not only deprived of her assistance and service, but has been compelled to expend for her care and medical attendance a large sum of money: Held, Upon the demurrer, that the petition stated a cause of action in favor of the plaintiff and against the defendants.</p> <p>2. Infant Servant — Duty of Employers. In such a case the defendants were bound to exercise ordinary care and diligence to protect her from injury in the course of the employment, and as the servant was an infant of tender years, a higher degree of care and a greater precaution was required of the defendants than if she had been an adult of ordinary intelligence and judgment.</p>

<p> Error from, Wyandotte District Court. </p> <p>September 6, 1884, the court dismissed the action at the cost of the plaintiff, The Anglo-American Packing and Provision Company. It brings the case here. The opinion states the nature of the action, and the material facts.</p>

Error from, Cloud District Court. Action by Sprague against The Railway Company, to recover $500 damages. Judgment for defendant, at the August Term, 1883. Plaintiff brings the case here. The opinion states the material facts.

<p> Error from Shawnee District Court. </p> <p>On January 30,1884, the following amended petition was filed, omitting court and title:</p> <p>“Come now said plaintiffs, Ellsworth, Walter and Kenneth Pontious, minors, by their sister and next friend, Emma Pontious, and for cause of action against said defendants, Oscar Straub, Joseph Kramer, Frank Durein, Conrad Kreipe, Lewis W. Head, William Zimmerman, Philip Zimmerman, Philip H. Moeser, Carl Jockheck, and F. Poppendick, say: That the plaintiffs are the children of Elias Pontious, and his wife, Anna Pontious, deceased; that the plaintiffs, Ellsworth Pontious, Walter Pontious, and Kenneth Pontious, are minors, of the ages of eighteen, twelve, and three years respectively; that plaintiffs, together with Anna Pontious, wife of Elias Pontious, constituted the family of said Elias Pontious; that for more than eight years last past Elias Pontious has been a citizen of the state of Kansas and resided with the family in the city of Topeka, in said county and state; that during all of said time Elias Pontious has been addicted to the use of intoxicating liquors in excess, and was possessed of an inordinate and uncontrollable appetite for strong and spirituous liquors, and in the habit of becoming intoxicated, and was and is an habitual drunkard; that plaintiffs have been during all their lives wholly dependent upon the earnings of their father, Elias Pontious, for their support and maintenance, and without any other means of support; that Elias Pontious is a contractor and builder, and also a competent and skillful mechanic, very popular as a workman, and as a superintendent and contractor among those who knew him, and when sober and free from the influence of intoxicating liquors, always industrious and attentive to business, and capable of earning large sums of money and furnishing his said children with ample and competent means of support; and that prior to the injuries hereinafter alleged, said Elias Pontious did realize large sums of money from his employment as mechanic and contractor, and did provide his family with comfortable and necessary and competent maintenance and support, keeping plaintiffs and their mother well housed, clothed and fed, and supplying ample means of education to his said children; that when sober and free from the effect and influence of intoxicating liquors, Elias Pontious was always a kind and considerate husband and father, attentive to all the wants, comforts and education of his children, ready and willing to spend his earnings for their comfort and support; that when under the influence and effects of intoxicating liquors, said Elias Pontious was abusive of his family, destructive of his property, neglectful of his business, and wasteful and profligate of his earnings.</p> <p>“During the time since the first day of May, 1881, said Elias Pontious has been constantly and continuously under the influence and effect of intoxicating liquors, and in a constant and continuous state of intoxication caused by intoxicating liquors sold, bartered or given to him by said defendants, and during all of said time wholly neglected to provide common means of support for plaintiffs, and spent and squandered all his earnings and means with defendants for intoxicating liquors, whereby plaintiffs were injured in their means of support in the sum of ten thousand dollars.</p> <p>“Since the first day of May, 1881, defendants have been and each of defendants has been engaged in the business of selling, bartering and giving away intoxicating liquors in the city of Topeka, in Shawnee county, Kansas, and they and each of them did, at divers and many times since the first day of May, 1881, sell, barter and give intoxicating liquors to Elias Pontious, and thereby caused the continuous and constant intoxication of said Elias Pontious during said period of time, .in consequence of which intoxication plaintiffs have been deprived of their means of support and of the parental love, admonition and protection, nurture and care of their father, Elias Pontious, whereby plaintiffs have been injured in their means of support in the sum of ten thousand dollars.</p> <p>“At said times of selling, bartering and giving away said intoxicating liquors to Elias Pontious, defendants and each of them were notified and informed and well knew that Elias Pontious was an habitual drunkard, and when intoxicated a very vicious, abusive and dangerous man, and wholly neglectful of his duty to plaintiffs as their father and natural provider and protector, and that plaintiffs were dependent upon him for support, and would be injured in their means of support by his said intoxication.</p> <p>“During all of said time since the first day of May, 1881, Elias Pontious wholly neglected to provide for his family, and the plaintiff Ellsworth Pontious was compelled to give up his studies and quit school, and seek such employment as he could ■obtain to earn means to pay house rent and furnish food, clothing, fuel and other necessaries of life for himself, and mother, and younger brothers, and they were obliged to beg and to accept assistance and support from relations and others.</p> <p>“All the support provided for said family, during said time, was provided by the meager earnings of said plaintiff, and the charity of friends. During all of said time, plaintiffs were in the condition of actual suffering and poverty and want from the lack of the common necessaries of life in consequence of the constant and continuous intoxication of Elias Pontious, caused by intoxicating liquors, sold, bartered and given away by defendants aforesaid. Said Anna Pontious, wife of said Elias Pontious, and mother of plaintiffs, was sick and confined to her bed almost all of said time until the 14th day of January, 1883, when she died. During said sickness, said Elias Pontious was constantly and continuously intoxicated, from intoxicating liquors sold, bartered and given to him by defendants, and wholly neglected and refused to provide competent medical attendance and treatment, or proper food, nursing and care for his wife, in consequence of which neglect she died.</p> <p>“ Since the death of their mother, plaintiffs havebeen wholly deprived of the nurture, care and protection and support of their father by reason of his intoxication so caused by defendants, and plaintiffs have been obliged to accept the charities and mercies of strangers and be deprived of their family relations with each other, and have been wholly abandoned by their father, and the family wholly broken up and scattered, whereby plaintiffs have been damaged in their means of support in the sum of ten thousand dollars.</p> <p>“Wherefore, plaintiffs pray judgment against defendants in the sum of ten thousand dollars as and for damages actually sustained by plaintiffs in their means of support in consequence of the constant and continuous intoxication of Elias Pontious since May 1,1881, caused by intoxicating liquor sold, bartered or given away to said Elias Pontious by defendants; and for exemplary damages, and for costs of suit, and all proper relief.”</p> <p>On February 8, 1884, the defendants Oscar Straub and Joseph Kramer, partners as Straub & Co., William Zimmerman, Philip Zimmerman, Lewis Head and Carl Jockheck filed the following demurrer to said amended petition, omitting court and title:</p> <p>“1. The court has no jurisdiction of the persons of the above-named defendants, or of the subject of the action.</p> <p>“ 2. The plaintiffs have not the legal capacity to sue.</p> <p>“ 3. There is a defect of parties plaintiff.</p> <p>“4. There is a defect of parties defendant.</p> <p>“5. Several causes of action are improperly joined.</p> <p>“6. The petition does not state facts sufficient to constitute a cause of action.”</p> <p>On the same day, Frank Durein and Conrad Kreipe separately filed a demurrer to the amended petition, setting forth the same grounds; and on the same day, F. Poppendick filed his demurrer to the amended petition, setting forth like grounds. On April 15,1884, all the demurrers were overruled, and subsequently the defendants answered by way of a general denial. Oscar Straub, Joseph Kramer, William Zimmerman, Philip Zimmerman, Lewis W. Head and Carl Jockheck joined in one answer, with Waters & Ensminger as their attorneys. Frank Durein and Conrad Kreipe joined in another answer, with Hazen & Isenhart as their attorneys. F. Poppendick filed his separate answer, with Case & Moss as his attorneys. Trial was begun February 10,1885, before the court with a jury. On February 14, 1885, the jury returned a verdict for plaintiffs, assessing their actual damages at $1,500, and exemplary damages at $600, aggregating $2,100. The jury also returned the following special findings of fact:</p> <p>“1. How much money would Elias Pontious earn at his business per annum when not in the habit of using intoxicating liquors? A. Eight hundred and fifty dollars.</p> <p>“ 2. How much money could Elias Pontious earn per annum after May 1st, 1881? A. One hundred dollars.</p> <p>“3. Were the plaintiffs, Ellsworth Pontious, Walter Pontious and Kenneth Pontious, the minor children of Elias Pontious? A. They were.</p> <p>“4. Had the said plaintiffs any property or means of support other than their father’s labor? A. They had not.</p> <p>“5. Was Elias Pontious in the habit of becoming intoxicated between the 1st of May, 1881, and the 5th of December, 1883? A. He was.</p> <p>“6. Did the defendants, Frank Durein, Conrad Kreipe, William Zimmerman, Philip Zimmerman and F. Poppendick, their servants, agents, clerks, or bar-tenders, sell or give away any intoxicating liquor to Mr. Pontious between May 1, 1881, and December 5, 1883, and if you answer yes, state which one of the defendants? A. Yes. Frank Durein, Conrad Kreipe, William Zimmerman, Philip Zimmerman, and F. Poppendick.</p> <p>“7. Did the defendants or either of them keep open saloons for the sale of intoxicating liquors in the city of Topeka, between May 1, 1881, and December 5, 1883? If you answer yes, state which of them? A. All of them, as above.</p> <p>“8. Do you find from the evidence that Elias Pontious was in the saloon of either of the defendants between May 1, 1881, and December 5, 1883? If you do so find, which one of them? A. Yes, all of them.</p> <p>“ 9. What actual damages do you find for the plaintiffs and against the defendants, and if against either of them, which of them? A. Fifteen hundred dollars; against all of them as above.</p> <p>• “10. What exemplary damages do you find in favor of the plaintiffs and against the defendants, and which of them? A. Six hundred dollars; against all of the above defendants.”</p> <p>The defendants made a motion for a new trial, which was overruled, and on February 27, 1885, judgment was rendered upon the verdict in favor of the plaintiffs and against the defendants for the full sum of $2,100, and all costs. The defendants excepted to the rulings and judgment of the court, and bring the case here.</p>

Error from Marshall District Court. Action by Rufus S. Craft and others, against William Lo-finch, as treasurer of Marshall county, and others, to perpetually enjoin the collection of certain taxes. At the August Term, 1884, a judgment for costs was rendered against the plaintiffs. They bring the case here. The material facts are stated in the opinion.

Prosecutions for violations of § 27 of the prohibitory liquor law. Trial at the April Term, 1884, of the district court of Douglas county.

Action by Charles Brunswick and another, partners as Brunswick & Co., against J. H. Morse and two others, to recover $200 with interest, upon a certain draft. Trial at the February Term, 1884, of the district court of Marion county, and verdict and judgment for $224.33 and costs. The defendants bring the case here.

Error from Atchison District Cou/rt. Action for an injunction, brought on December 31,1884, in the name of The State of Kansas, on the relation of James F. Tufts, acting county attorney of Atchison county, against The Oity of Atchison, Charles J. Drury, as City Treasurer of the city of Atchison, Dilgert & Wagner, John Peterson, James A. Doper, as County Treasurer of Atchison county, and The Atchison National Bank.

Appeals from Sumner District Court On July 27, 1883, J. P. Mayfield filed his complaint in writing, under oath, before a justice of the peace of Sumner county, charging that on July 26,1883, Franklin E. Knowles and Thomas J. Garland were the owners and occupiers of a slaughter-house on lot “B,” in C. R. Godfrey’s addition to the city of Wellington, in Sumner county, in this state, where hogs, beeves and other animals were slaughtered for a long time prior to July 26, 1883;…

Prosecution' for a violation of § 7 of the prohibitory liquor law of 1881. The defendant Schmidt was tried June 5,1885, found guilty as charged, sentenced to pay a fine of $200 and costs, and to be committed to the jail of Edwards county until the judgment should be complied with. Defendant appeals.

Error from Atchison District Court. The facts are stated in Henderson v. Stetter, 31 Kas. 56, et seq., and in the opinion herein. Immediately after the reversal of the judgment in Henderson v. Stetter, supra, the plaintiffs in error filed in the district court a petition for a new trial upon the ground of newly-discovered evidence. Trial upon this petition August 2, 1884, when the application for a new trial was denied. This ruling Carson, Pirie, Scott & Co. and Wm.

<p>1. Practice; Garnishment. In a garnishment proceeding before a justice of the peace, under $ 44 of the justices code, a final judgment against the garnishee cannot legally be rendered, under any circumstances, but only an order.</p> <p>2. Injtjrctioi), for Garnishee, Whem. But where such a judgment has been ■rendered, and an execution issued thereon and levied upon the property of the garnishee, an action will lie in favor of the garnishee, to perpetually enjoin the holder of such judgment from enforcing the same by execution.</p>

Error from Osage District Court. Action upon a certificate of deposit executed by the Osage City Bank, payable to the order of Julius Kuhn, and indorsed by the defendants C. S. Jones & Bro. The following is a copy of the instrument, and the indorsements thereon: “No. 84. Osage City Bank, Osage City, Kas., April 20, 1883.

Error from Shawnee District Court. On December 19,1883, an information, embracing twenty-four counts, was filed by the county attorney of Shawnee county against Lew. W. Head, for selling intoxicating liquors in a certain room in a certain building situated on lot 144, Adams street, in the city of Topeka.

Error from Washington District Court. Action by The State to enforce the lien created by § 18 of tbe prohibitory liquor law. Trial at the November Term, 1884, and judgment for the defendants, Snyder and five others, for costs. The State brings the case here. The facts appear in the opinion.

On May 17,1883, the county attorney of Dickinson county filed in the district court of that county an information, verified upon information and belief, against George Rohrer, charging that— “The defendant on the — day of May, 1883, in the south portion of a certain connected row of frame buildings fronting east on Spruce street, between North Second street and North Third street, in the city of Abilene, in said county of Dickinson and state of Kansas, then and there being,…

Pbosecution for a violation of a certain city ordinance. December 12,1884, the defendant Collins was tried, convicted, and sentenced to pay a fine of $25 and costs. He appeals. The opinion states the material facts.

Error from Atchison District Court. Action by Denton against The City, to recover $421.90 and interest, claimed to be due upon a certain contract. Judgment for the defendant, at the November Term, 1884. The. plaintiff brings the case here. The material facts are stated in the opinion.

Error from Mitchell District Court. On July 8, 1880, Jaokson 8.

<p> Error from Wyandotte District Court. </p> <p>This case bas once before been in this court, and will be found reported in 29 Kansas, 169, and 11 American & English Kailroad Cases, 260, where the pleadings as they then were are set out in full. When the case was formerly here the judgment of the lower court was reversed, and the cause remanded for a new trial. On its return to the court below the defendant, with leave of the court, amended its answer as follows:</p> <p>“And this defendant, for further answer and by way of amendment, and in lieu of the second paragraph of its answer, says that the plaintiff executed the agreement in said paragraph of the answer mentioned; that at the time of the execution of the said agreement, John Ellis, in the petition mentioned, was in the. service of the defendant, and the plaintiff had served with him and well knew his capacity, habits and manner of handling an engine; that the plaintiff was also a locomotive engineer, and as a locomotive engineer, train dispatcher and brakeman in and about railroad yards, was thoroughly experienced at the time he took service with the defendant, and he ever after that — that is to say, for four years or more — he well knew that it was dangerous, as in fact it was, to engage in the coupling of cars moving detached from the engine without strictly observing the. speed of the detached car; and he also believed that he, said John Ellis, was liable to fail to observe signals and to so handle the locomotive as to send the car back faster than it was safe for the brakeman to undertake to couple it; and before the injury complained of said plaintiff had represented to his superior officer, having power to employ and discharge defendant’s servants in the yard, that Ellis was liable to send cars back too fast; and yet, well knowing the habits and capacity of the said Ellis, he took service with him and continued in such service for a long time after he had so complained — that is to say, for six months or more — well knowing that he was under obligation by his agreement to quit the service of the company if he had reason to suspect that his co-servants were incompetent or careless, which he was at liberty at any time to do. There was no promise made to him to discharge Ellis, or take any measures to correct or change the manner of service in the yards, of which plaintiff complained; and the said plaintiff, knowing all the facts, and his liability to injury, (the said Ellis at the time of the injury being under his control and direction, and subject to his signals,) ordered by signals a car to be detached from the engine which Ellis was operating, and sent or kicked back unattended — he intending to couple said detached car to a standing car when they should come together. And although the plaintiff believed that Ellis was likely to disregard or fail to observe his signals, and send said car back too fast, yet, without observing or knowing whether this signal was understood by Ellis, and without noticing the speed of the car, or how far distant it was cut off, or paying any attention whatever to said Ellis, the locomotive, or the car, as it was his duty to do, he did carelessly and heedlessly place himself in position to make coupling of the cars, without first taking proper care to know whether it could be safely done; and while attempting to do so, was by his own carelessness, heedlessness and negligence injured in the manner complained of.”</p> <p>August 25,1884, the plaintiff Pectvey recovered a judgment for $6,500 and costs against the defendant Railway Company. It brings this judgment here for review. The material facts are stated in the opinion.</p>

Information for murder iu tbe first degree. The defendant 8. D. Witt was charged with the felonious shooting and killing of C. Bernhardt, in the county of Chautauqua, on the 23d day of September, 1883. Trial at the November Term, 1883, of the district court .of said county. After the testimony had been concluded the defendant asked the court to give the jury the following special instructions: “First.

Prosecution for a violation of a certain prohibitory liquor */ x. ordinance of The City of Topeka. From the police court of said city the defendant Myers appealed to the district court of Shawnee county. Trial at the April Term, 1884, when the defendant was found guilty, and sentenced to pay a fine of $300 and costs, and to be committed to the county jail until the fine and costs were paid.

Error from Labette District Court. On March 2, 1884, William Morrison filed his petition against The Kansas dty, Fort Scott & Gulf Railroad Company, in the district court of Labette county, to recover $495.12, with interest thereon from February 8, 1884, the alleged value of certain wearing apparel and tools.

<p>1. City Streets; Private Railroad. A city has no right or authority to give permission to any individual or corporation to construct or operate a purely private railroad upon the public streets of the city. All the statutes which have reference to railroad companies or others constructing or operating railroads through or upon the public streets of a city, simply have reference to such railroad companies or others as perform the duties of common or public carriers, and to such railroads as are public or quasi public in their character.</p> <p>2. --Action by Abutting Lot-Owner. Where a person or corporation attempts to construct a purely private railroad upon any of the public streets of a city, any abutting lot-owner whose property is or may be injured thereby may maintain an action to perpetually enjoin such person or corporation from making such use of the streets.</p>

Error from, Douglas District Court. This action was brought by the plaintiffs to effect a partition of the northeast quarter of section 30, township 14, in range 20, containing 160 acres, and a strip of land in the northwest quarter of the same section, containing about 23 acres, all of which is situate in Douglas county.

On December 20,1884, the following indictment was filed against John Copp, (court and title omitted:) “First Count; State oe Kansas, Wabaunsee County, ss.: At the October term of said court, 1884, the jurors of the grand jury of said county, duly impaneled, sworn and charged to inquire and true presentment make of all public offenses against the laws of the state of Kansas, cognizable by said court, committed or triable within said county, on their oaths do find and present…

Fh'ror from Saline District Court. Action brought by Margaret Delaney against The Oity of Salina and Frank C. Miller, as executor of the will of John Boyd, deceased, to contest the validity' of said will. Trial at the November Term, 1883, and judgment for defendants. The plaintiff brings the case here. The opinion states the facts.

Error from Leavenworth District Court. F. Kothman brought this action against Herman Mark-son and the heirs and creditors of the estate of John J. Myers, deceased, but Herman Markson is the only defendant who has been served Avith summons, or in any way brought into the case.

Error from Pottawatomie District Court. The opinion states the case. At the September Term, 1884, the defendants Wiss & Ballard, and Watt, Powell & Co., inter-pleaders, recovered a judgment against plaintiffs, James Claris & Co. This judgment they bring here for review.

Prosecution for obstructing a public road. At the September Term, 1884, the defendant Horn was found guilty, and sentenced to pay a fine of $75 and costs. He appeals. The opinion states the case.

Error from Atchison District Court. Action brought by Andrews against The Railroad Company, to recover damages to certain lots owned by the plaintiff in the city of Atchison. Trial at the June Term, 1884, and judgment for L. A. Andrews and B. F. Hudson, as administrators of the estate of plaintiff, deceased, for $1,500, and interest thereon from August 1, 1877. To reverse this judgment, the defendant company brings the case to this court.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court September 3,1885, by J. R. Boyd against Chester Thomas, jr., as sheriff and jailer of Shawnee county. The material facts are stated in the opinion herein, filed January 8, 1886.

Fh'ror from Sumner District Court. Action brought before a justice of the peace of Sumner county, by George R. Fultz against David J. Wimer, to recover the sum of $65, which the plaintiff claimed was due him from the defendant for services rendered by him in selling the defendant’s farm. The defendant had judgment before the justice of the peace, and the plaintiff appealed to the district court of Sumner county.

Prosecution for a violation of the prohibitory liquor law. From a judgment against him at the-February Term, 1884, the defendant Guettler appeals. The opinion states the facts.

Error from Leavenworth District Gowrt. Two actions — one of unlawful detainer, and the other in the nature of ejectment — brought by Buettinger against Hurley and another. In the former action, judgment for costs against the plaintiff was rendered at the April Term, 1883; in the latter action, judgment for costs against the plaintiff at the September Term, 1883. Hurley brings the cases here. The facts are stated in the opinion.

Error from, Harvey District Court. Action brought August 3,1883, by Joseph Qerson, assignee of J. Wesléy Lightbody, against T. N. Hanson and 8.

Error from Linn District Court. Action brought by Weech against Simpson and two others, to recover the value of 154 rods of hedge alleged to have been cut down and destroyed by the defendants on the plaintiff’s land, and for other incidental and resulting injuries. August 8, 1883, judgment that plaintiff recover from each defendant f 1, and his costs. The defendants bring the case to this court. The opinion states the facts.

Action by James Ketner and J. R. Burton against Robert 0. Rizer and Mary J. Rizer, to recover a certain Decker Bros, piano, and for costs. Trial by the court, at the March Term, 1884, of the district court of Davis county, and findings and judgment for defendants. The plaintiffs bring the case to this court.

Error from Leavenworth District Court. Two actions in the nature of ejectment, brought by Insley and another against Douglass. Trial at the September Term, 1883, and judgment in each case for the plaintiffs. The de-. fendant brings the cases here. The opinion contains a sufficient statement of the facts.

Action brought in this court November 17, 1885, by M. JE. Matthews against The Board of Commissioners of Shawnee County, and the county clerk thereof, to obtain a peremptory writ of mandamus to compel the defendant board to canvass certain votes. The opinion, filed February 5, 1886, contains a sufficient statement of the case.

At the June Term, 1884, the defendant Joseph McCool was convicted of assaulting John Beckley with a deadly weapon with intent to kill, and sentenced to the penitentiary for two years. He appeals. The opinion states the facts.

At the June Term, 1884, Joseph McCool was tried for grand larceny, convicted, and sentenced to serve three years in the penitentiary. He appeals. The facts sufficiently appear in the opinion.

Error from Pawnee District Court. Action by Caughenaur against McAnarney, to recover damages for an assault and battery. Trial by tbe court, at the December Term, 1883, and judgment for the plaintiff for $1,000 and costs. New trial denied. The defendant brings the case here. The opinion contains a sufficient statement of the case.

<p>Justice, Certifying Case to District Court; Order Not Final. An order of a justice of the peace certifying a case to the district court of his county for trial, upon the ground that the pleadings show that the title to land is in dispute, is not a final order, within the meaning of the code, subject to review upon petition in error.</p>

Prosecution for an assault and battery. The complaint charged that on the 20th day of January, 1885, the defendant V. P. English, did, in a rude, angry, and insolent manner? unlawfully assault, strike, beat and bruise one Walter Catón, etc. The defendant was a teacher in a public school in Miami county, and the said Walter Catón was a pupil therein.

Error from Montgomery District Court. Action bought by Clark to enjoin the issue of certain bonds declared to bave been voted in Montgomery county. Judgment for the defendant Board of Commissioners, at the March Term, 1885. The plaintiff brings the case here. The opinion states the facts.

Error from Shawnee District Court. Action brought by The Central Bank of Kansas against The Kansas Dumber Company Jr., to recover $500, alleged to have been an overpayment by the bank to the lumber company on a check. August 4, 1884, judgment for plaintiff. The defendant brings the case to this court. The material facts appear in the opinion.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court December 21, 1885, by D. P. Gilson against Conway Marshall, as sheriff of Anderson county. The opinion, filed February 5, 1886, states the material facts.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus was filed in this court on November 4, 1885, in which it was repi-esented that the petitioner, Everett Wood, is held in custody by the sheriff of Eord county by virtue of a commitment issued by one John Jobling, claiming to be a justice of the peace of Meade county, Kansas, in pursuance of a preliminaiy examination upon a charge of the murder of one Widmer, in Meade county.

Error from Atchison District Court. Action by Zimmerman against Franke, to perpetually enjoin the defendant from prosecuting certain garnishment proceedings in the county court of Eichardson county, Nebraska. Trial by the court, and judgment for defendant, December 6, 1884. The plaintiff brings the case here. The opinion contains a statement of the facts.

Error from, Chase District Court. Action brought by Wilcox against Johnson and others, to recover $1,500, the alleged value of fifty-nine head of cattle belonging to the- plaintiff, and alleged to have been by the defendants converted to their own use. Trial at the April Term, 1884, and judgment for defendants. The plaintiff brings the case here. The material facts are stated in the opinion.

<p>1. Sheriff — Action against Defaulting Bidder. A sheriff may maintain an action in his official capacity to recover from a defaulting bidder at an execution sale, the amount of an accepted bid.</p> <p>2. Contract, Arises from Accepted, Bid. In such a case the action is founded upon the contract arising from the bid and its acceptance, and not upon the judgment and execution upon which the sale was made, and therefore it is not necessary that the judgment and execution should be set out at length in the plaintiffs petition.</p> <p>3. Action, After Return of Rkecuiion. Such action may be instituted and maintained by the sheriff when he has no execution in his hands, and after the execution under which the sale was made has been returned into court with his doings indorsed thereon.</p> <p>4. Sheriff, Liable for Amount of Bid. Where property is offered at an execution sale, and struck off to a bidder who refuses to'pay the amount of his bid, and the sheriff, instead of rescinding the contract and reselling the property, treats the sale as consummated, and surrenders possession of the property to the purchaser, he thereby makes himself liable for the amount of the bid.</p> <p>5. Notice — No Complaint. The purchaser at an execution sale cannot be heard to complain that the notice of such sale was defective.</p> <p>6. --Interest Sold. Only the interest which an execution debtor has in the property is levied upon and sold, and the purchaser at such sale takes the property subject to any valid and subsisting lien which may exist against it; and the sheriff is not warranted in accepting from the purchaser less than the amount of the bid, or in crediting the purchaser upon the bid with any mortgage debt which he may claim against the property sold.</p> <p>7. Case-Made — Certificate—Evidence. Where the certificate attached to-a case-made recites “that the same contains sufficient of the evidence and proceedings to raise the points desired to be presented by the defendant,” but fails to state the points raised, or those which the defendant desired to present for decision, the sufficiency of the evidence cannot be considered by this court. ></p>

Error from Wilson District Court. On July 9, 1885, the county commissioners of Wilson-county made the following order, which was entered on their journal: “It is ordered by the board of county commissioners of Wilson county, Kansas, that a special election be held at the usual places of voting in the several townships therein, on Saturday, the eighth day of August, 1885, for the purpose of voting upon the following proposition, to wit: Shall the board of county commissioners…

Error from Chase District Court. The opinion states the nature of the action, the pleadings, and the facts. Trial at the July Term, 1884, and judgment for plaintiffs Hildebrand Bros. & Jones. The defendants L. W. Clay and wife bring the case here.

<p> Original Proceedings in Mandamus. </p> <p>The opinion, filed February 5, 1886, states the case.</p>

<p> Original Proceedings in Mandamus. </p> <p>Petition filed in this court, February 10, 1886, by The State, ex rel. Isaac Morris, for a peremptory writ of mandamus requiring the defendant judge of the superior court of Shawnee county to try the case of the petitioner against Bertha Lahmer.</p>

Error from Pratt District Court. On August 19, 1880, an election for the location of the county seat of Pratt county was held, and at such election the county seat was located at Iuka. Held: and at such election the county seat was located at Iuka. On August 13, 1885, a petition for the relocation of the county seat of the county was presented to the board of county commissioners, asking for an election for the relocation of the county seat.

Error from Atchison District Court. Action brought by The Samuel Bowman Distilling Company, a corporation, against A. It. Nutt, before a justice of the peace of Atchison county, Kansas, to recover $113.42, for intoxicating liquors sold and delivered by the plaintiff to the defendant.

<p>1. Several Tracts of Land May be Assessed and Sold as One Parcel. Several tracts or subdivisions of real property adjoining and lying in compact form, which are used and occupied as a single tract, may for the purposes of taxation be listed and valued together, and may be sold at a tax sale for a single consideration, and as a single parcel.</p> <p>2. Tax Deed, Not Void. A tax deed which recites a sale of land en masse which is included within two descriptions, will not for that reason be held void upon its face, where the descriptions show that the land sold lies together in compact form within a single taxing district.</p> <p>3. Land, Designated in Tax Deed With Reasonable Certainty. A tax deed showed that a ninety-acre tract of land, which was fully and correctly described by metes and bounds, was subject to taxation, and that the taxes thereon being unpaid, “the real property above described” was duly exposed to public sale, and that B. having offered to pay the amount of taxes, interest and costs due and remaining unpaid “on said property” for the tract “beginning at the S.E. corner of the S.W.J of sec.24, T.10, R.24, and containing 90 acres” (which was only the starting-point of the description of the ninety-acre tract given in the beginning of the deed) and it then recited that the “said property” was stricken off to B. at that price; and then in the granting clause of the deed it was recited that the county clerk granted, bargained and sold unto the said B. “the real property last hereinbefore described.” Held, That, reading all parts of the deed together, and construing it as we would an ordinary conveyance between individuals, the ninety-acre tract first mentioned in the deed is the same one referred to throughout the instrument, and that the land intended to be conveyed is designated with “ordinary and reasonable certainty.”</p> <p>4. Tax Sale, Irregular, but Oared by Time. At a regular tax sale the county treasurer publicly offered certain land for sale, and none of the persons present bidding thereon, he publicly struck it off and entered it as sold to B., who had before that time placed money in his hands with the instruction that where a tract was offered and no one else offered to purchase, it should be struck off to him. In so selling the property, the treasurer acted in good faith, and without intending to injure or defraud the county or any person. Held, That while the sale was not made in the manner required by statute, it constituted a sale in fact, and that the illegal action of the treasurer in striking it off to B. instead of to the county, is one which may be cured by the lapse of time.</p>

<p>Husband and Wife; Deed in Fraud of Marital Sights. Where a widow, who was at the time of her engagement to be married, .the owner of one hundred and sixty acres of land in this state, which was all of her property and her sole means of support, induced one G., a cripple, possessed of only a few hundred dollars, to make a matrimonial engagement with her and marry her on her verbal promise and agreement that the farm was her own, and that its proceeds should go to their support after they were married so long as they lived; and G., who was loth to make the marriage engagment or to marry, until assured of some support after marriage, relying upon said verbal promise and agreement, married such widow, and after the marriage lived with her as his wife, furnishing rooms and buying food and clothing for the family, and also for the children of his wife by her former marriage, and permitting her to use one hundred dollars of his own money to pay a mortgage upon the farm, and the wife, about eighteen months after the marriage, delivered to her daughters hy her former marriage deeds of her farm, which deeds were signed and executed hy her for the consideration of love and affection only, and without the knowledge or consent of G., just on the eve of her marriage: Held, That the deeds are in fraud of the rights of G., and that G. may maintain an action during the life of his wife to set the same aside and have them declared invalid. (Hafer v.Hafer, 33 Kas. 449; Busenbarh v. Busenbarh, 33 id. 572.)</p>

<p> Error from Doniphan District Court. </p> <p>Action by The Bank against Mann and another, on a negotiable promissory note. Trial at the December Term, 1883, and verdict for plaintiff for $170.75. New trial denied, and judgment accordingly for plaintiff. The defendants bring the -case to this court. The facts appear in Mann v. National Bank, 30 Kas. 412, et seq., and in the subjoined opinion.</p>

<p>Partnership — Debt Due— Garnishment. What is due a partnership cannot be subjected to garnishment as a credit due one of the firm. In an action against one of the firm, a debtor to the partnership cannot be made a garnishee. Such debtor owes nothing to any one member of the firm.</p>