Volume 35 — Kansas Reports

<p>1. Case-Made; Findings; Review. Where a case-made shows that all of the evidence offered upon the trial to sustain a particular finding of fact of the trial court is preserved therein, the supreme court can decide whether such finding is sustained by any evidence, although all of the evidence presented upon the trial upon other issues of fact is not embraced in the record.</p> <p>2. Earnings oe Debtor; Exemption; Resilience of Debtor. The earnings of a debtor for his personal services at any time within three months next preceding the attempt to subject such earnings to the payment of his debts are exempt under $490 of the civil code and \ 157 of the justices act, from such payment, if it be made to appear that such earnings-are necessary for the maintenance of his family, supported wholly or partly by his labor; and as the statute of the state does not restrict the exemption to residents, the courts have no authority to make such restriction; therefore, no distinction is to be made between residents and non-residents.</p> <p>3. Garnishment; Non-Resident Debtor. Where a citizen of this state at - ■ tempts by a proceeding in garnishment against a foreign railroad corporation to subject to the payment of his claim in the courts of this state the personal earnings of a citizen of another state, which personal earnings are by the laws of this state, and also of such other state, exempt from being so applied, the earnings of such debtor are exempt from such process.</p> <p>é.--• Case Distinguished. The case of The Burlington S Missouri River Railroad in Nebraska v. T. W. Thompson, 31 Kas. 180, distinguished.</p>

Error from Cowley District Court. Action brought in the district court of Cowley county under tbe provisions of chapter 136 of the Laws of 1872, in which the plaintiff alleged that the defendant company had failed to take the bond from the contractor who constructed a portion of its road, and he asked that the company be held liable for certain labor performed for the contractor upon the road, and for which he had not paid.

<p> Mror from Harvey District Coitrt. </p> <p>This was an action brought in the district court of Harvey county, on August 26, 1881, by Sarah A. Noble against G. S. Bowman, James H.-Anderson, "William H. Bean and B. C. Arnold, upon the following instrument in writing, to wit:</p> <p>“State of Kansas, Harvey County, ss.: Know all men by these presents, that we, the undersigned, are held and firmly bound unto A. B. Noble, Sarah A. Noble and M. A. Myers in the sum of two hundred dollars. The condition of this obligation is, that whereas in the case of O. J. M. Borden v. A. B. Noble, on the docket now in the possession of T. C. Cutler, J. P., of Newton township, in said county and state, the said M. A. Myers was garnished, and ordered by said justice court to pay into said court on or before September 15, 1879, the sum of one hundred and sixty-five dollars; and whereas the said Sarah A. Noble claims to be the owner of said money, and intends to institute proceedings for a final judicial determination of her claim; and whereas the said M. A. Myers has delivered to C. S. Bowman said sum of $165, to be by him held until such final adjudication is had, and until September 15, 1879, and then pay the same over to the person or authority adjudged to be entitled thereto-; and whereas the said C. S. Bowman agrees to pay to Sarah A. Noble annually 12 per cent, interest thereon : now, therefore, if all these things herein required of the said C. S. Bowman are fully done and performed, then the above obligation to be void, otherwise it shall remain in full force and effect.</p> <p>“Executed in duplicate this 27th day of October, 1877.</p> <p>C. S. Bowman. Jas. H. Anderson.</p> <p>Wm. H. Bean. B. C. Arnold.”</p> <p>The plaintiff, after giving a copy of the foregoing instrument in writing in her petition, alleged, among other things, that she had instituted legal proceedings in the district court of Harvey county for the purpose of having the question of the ownership of the aforesaid money determined as between herself and the said O. J. M. Borden, and that in such proceedings it had finally been determined that the money belonged to her and that she was entitled to the same; and that afterward she demanded the same of the defendants, but that they refused to pay it to her or any part thereof. The defendants answered, admitting the execution of the foregoing instrument and the prosecution of the aforesaid legal proceedings between the plaintiff and Borden, but setting up in substance that while the question of the ownership of said money had, in said legal proceedings and in the district court, been determined in favor of the plaintiff, yet that the judgment and decision of the district court had been reversed in the supreme court, and that it was held and decided by the supreme court that the question whether the plaintiff was entitled to said money, or not, could not be determined in that action, and that since the decision of the supreme court the defendants had paid over the money in controversy to Borden. Before the trial of the present action, the subject-matter of the controversy was assigned by Sarah A. Noble to Louis Noble, and he became the plaintiff in the action. Afterward, the case was tried by the court without a jury, and the court made a general finding in favor of the defendants and against the plaintiff, and rendered judgment accordingly. To reverse this judgment, the plaintiff brings the case to this court.</p>

<p> 'Appeal from, Wyandotte District Court. </p> <p>Prosecution for the' violation of ordinance No. 448, of the city of Wyandotte. From a conviction in the police court of the city, the defendant appealed to the district court, and was there tried and again convicted. The ordinance for the violation of which the defendant was prosecuted was entitled: “An ordinance regulating the collection of a license tax on the corporations herein named.” Section 1 of the ordinance provided:</p> <p>“That it shall be unlawful for any person or persons, firm or corporation, to transact, engage in, or pursue any business or vocation, or to do any act, or make any exhibition hereinafter named, described or specified, in the city of Wyandotte, without first having paid such sum or sums, and obtained a license so to do, as hereinafter provided or required.”</p> <p>Section 2 provided that there should be charged and collected for every license granted for any business or occupation, or object herein named and specified, as follows: . . After enumerating the sums to be charged and collected for other business occupations and objects, section 26 provided that there should be charged and collected “ upou a street railway company’s license one hundred dollars per year.”</p> <p>Section 36 of the ordinance provided that—</p> <p>“Whoever shall violate or neglect or refuse to conform to or to observe the preceding provisions of this ordinance, and any or either of them, by carrying on or engaging in any business, occupation or profession named in this ordinance, without having first taken out á license, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not to exceed one hundred dollars.”</p> <p>In 1871 the mayor and council of the city of Wyandotte enacted an ordinance authorizing the Kansas City and Wyandotte Street Railway Company to construct and operate a street railway upon certain streets and avenues within the city. This ordinance was amended in 1881 by ordinance No. 330. Section 3 of the amended ordinance provided:</p> <p>“ The said street railway company shall construct a second or double track along and upon such parts of the said streets and avenues as they now are operating their road upon, and shall construct said track alongside of the one now laid, and upon the side áud in the manner that shall be designated by the city engineer; the said track to be laid and completed on or before, and said road shall be maintained and operated as a double-track road from and after, the first day of July, 1881; all of said new track to be laid with flat rails so as not to interfere with public travel, and said company to keep said track of said road up to the established grade of said streets, and to keep the same in good repair. Also, the space occupied by its track and the space between the tracks to be four feet in width.</p> <p>“ Sec. 4. The said railway company shall, within thirty days after the passage and approval of this ordinance, make sucia running arrangements with the Jackson County Horse Railroad Company of Kansas City, Missouri, as to. run all of the cars of the Kansas. City & Wyandotte Railway Company through without change from the western terminus of the said road in the city of Wyandotte to the public square in the City of Kansas, Missouri, making a through line of said roads, on which through line there shall be at all reasonable hours and times run at least twelve cars.</p> <p>“Sec. 5. The said railway company may collect fare as follows: Eor every person over the age of five years riding in •said cars, five cents and no more, for one trip over said road or any part thereof between the state line and any point in theN city of Wyandotte to which said road shall run, or vice versa.</p> <p>“Sec. 6. The said railway company shall be entitled to the rights, privileges and benefits of this ordinance for the full term and period of twenty-one years from and after this ordinance takes effect.”</p> <p>The cause was tried in the district court upon an agreed statement of facts, which is as follows:</p> <p>“It is agreed by the parties hereto, that said railroad is ■ operated only on the streets specified; that Thomas Corrigan, the defendant, on or about the 22d day of March, 1884, was the general manager of a street railway company running and operating cars in the city of Wyandotte under ordinance No. 330, and the ordinance of which the same was amendatory; and said defendant, on said day, did run and operate said ' cars and said street railway, without first having procured any license therefor, or. paid any license tax thereon, as provided by ordinance No. 448. All other questions are waived.”</p> <p>The trial resulted in a conviction of the defendant, and on August 9, 1884, he was adjudged to pay a fine of twenty-five dollars, with the costs of prosecution, from which judgment he appeals.</p>

<p>1. Contract — Construction by Court. Where a written contract is unambiguous in its terms, its interpretation or construction is a matter of law for the court.</p> <p>2. Contract—Party Responsible for Breach. Where the agent of W. .accepts an order from T. to sell to T. a .safe in the possession and under the control of L., and the order provides that L. shall deliver the same to T., and the order is subject to the approval of W., and W. afterward.approves the same and directs L. to deliver to T. the safe, but L. refuses absolutely to do so, held, that T. is not responsible for the refusal or wrong of L., and W. is" liable to T. for the damages of the breach of the contract on his part.</p>

<p>Revebsau oe Judgment, Various Grounds Alleged for; No Material Eri'or. Where the defendants in a criminal prosecution appeal to the supreme court and ask for a reversal of the judgment of the court below for incompetency of their own counsel;'neglect and failure on the part of the court below to protect their rights and interests; incompetency of the evidence against them; leading questions; erroneous and misleading instructions; insufficiency of the evidence for conviction, it being in part the evidence of an accomplice; the alleged hearing of a motion for a new trial in the absence of the defendants; and the refusal to grant a new trial on the ground of alleged newly-discovered evidence, held, under the circumstances of the case, that no material error was committed by the court below, and that the judgment cannot be reversed.</p>

Original Proceedings in Quo Warranto. Action brought in this court, May 6, 1885, by William 8. Carroll against E. J. Wall, to determine the right between plaintiff and defendant to the office of city attorney of the City of Kansas. The facts sufficiently appear in the opinion, filed March 5, 1886. -

jError from, Wabaunsee District Court. Action brought by Watson against Spalding and two others, to recover certain land in Wabaunsee county. Trial at the March Term, 1884, and judgment for plaintiff. The defendants bring tbe case to this court. The opinion states the' material facts.

Error from Leavenworth District Court. Action by Phelps against B. C. Clark & Co., to recover money. Trial at the January Term, 1885, and judgment for plaintiff for $507.50. The defendants, Henry L. Clark and Drusie Clark, administratrix of the estate of B. C. Clark, deceased, as successors to the original defendants, bring the case to this court. The opinion states the material facts.

Error from, Pottawatomie District Court. Oliver Meskimen and Mary Meskimen brought their action against Moses Day, and alleged in their petition as follows : “ The said plaintiffs have a legal estate in and are entitled to the possession of the following real estate, situate in the county of Pottawatomie, state of Kansas, and described as follows, to wit: The northeast quarter of the southeast quarter of section thirty-three, in township seven, of range eleven east,…

Original Proceedings in Quo Warranto. Action brought in this court, August 21, 1885, by the attorney general in the name of The State, against The Association above named, to test the right of the defendant corporation to do business in this state without first complying with the insurance laws thereof regulating mutual life insurance companies on the assessment plan, and to oust the defendant from such privilege, if the issue be found in favor of The State.

Error from Neosho District Court. Action brought by R. A. Johnston against the Missouri Pacific Railway Company, on Ahgust23,1884, under the railway stock law of 1874, to recover damages for five three-year-old steers belonging to the plaintiff, alleged to have been killed June 4, 1884, by the defendant in the operation of its railway.

Error from, Shawnee District Court. The opinion states the nature of the action, and the facts. The plaintiffs Dyal bring the case to this court.

Error from Douglas District Court. Action brought March 3,1882, byR. Gray against Elizabeth I. Crockett, H. C. Long, and Martha M. Long his wife, to compel them to convey to plaintiff certain real estate. The defendants filed the following answer, omitting court and title: “First.

Error from Chase District Court. Ejectment, brought by Newkirk agaiust Marshall and wife. Trial at tbe July Term, 1884, and judgment for defendants. The plaintiff brings the case to this court. The opinion states the facts.

Firrorr from Leavenworth Listriet Court. The opinion states the case. Trial at the April Term, 1884, and judgment for defendant. The plaintiff Winn brings the case here.

Eror from Butler 'District Court. Action originally commenced and tried before a justice of the peace.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court on February 9, 1886, od behalf of William T.-Edwards, wbo is charged with murder in the first degree in killing one John Wilson, on December 6, 1884.

<p>1. Cbiminax. Oase—Appeal, When. An appeal in a criminal action can be taken by a defendant only after judgment, and an intermediate order of which he complains can be reviewed only on such an appeal. ( Cummings v. The State, 4 Kas. 225; The State v. Freeland, 16 id. 9.)</p> <p>2. ---- No Appeal, When. An appeal will not lie from an order of the district court refusing an application of a defendant charged with a criminal offense, for his discharge, under the provisions of $ 221 of the criminal code, where the court remands the defendant into custody until he gives bail, and continues the case against him for trial at the next regular term. (The State v. JNorneman, 16 Kas. 452.) - i</p>

Error from Jaclcson District Court. Ejectment, brought by Hayden agaiust Rose. Trial by the court, at the July Term, 1884, aud judgment for plaintiff. The defendant brings the case to this court. • The opinion states the material facts.

Error from Riley District Court. Action by Silces against ReeJcman and another, to recover the value of a certain crop of corn and oats. Judgment for plaintiff for $292 and costs, at the December Term, 1884. The defendants bring the case here. The opinion states the facts.

M'ror from Mitchell District Court. The plaintiff Fenlon brings here for review an order made by the judge of the district court at chambers, discharging an attachment. The opinion states the case.

<p> Ei'ror from Marshall District Court. </p> <p>Ejectment, brought by Barr against Randall and wife. Trial at the August Term, 1884, and judgment for defendants. The plaintiff brings the case here. The opinion states the facts.</p>

Error from Atohison District Court. Action brought July 28, 1883, by John M. Price against William Mach, for the recovery of the immediate possession of lots 12 and 13, in block 27, North Atchison, Atchison city. .The defendant answered, admitting possession' and' claiming title in himself under a tax deed of December 7, 1869. Trial had at the November Term, 1884, by the court. The court made the following findings of fact: “1.

Error from Ellis District Court. Action upon a forfeited recognizance. Judgment for The State, at the November Term, 1884. The defendant Madden brings the case here. The opinion states the facts.

Original Proceedings in Mandamus. On January 2, 1886, The State of Kansas, on the relation of the Walnut Valley & Colorado Railroad Company, filed its petition in this court against A. Cr Lippert, J. R. Stoelc, and J. E. Ruhl, as the board of county commissioners of Rush county, praying that a writ of mandamus be awarded against the defendants, as said board, to convene and proceed to call elections in- the townships of Garfield, Banner, Center, Union, and Belle Prairie,…

Error from Coffey District Court. Action by Alice N. Cooper and another, against John Morris and two others, as sureties on a guardian’s bond. July 30, 1884j judgment was rendered on the verdict for plaintiffs for $361.64. To reverse this'judgment, the defendant Morris brings the case to this court. The opinion contains a sufficient statement of the facts.

Error from, Saline District Court. Action by Lyman Field against Thomas Riordan as administrator of the estate of Dennis Morgan, deceased, to recover upon a promissory note executed by Dennis Morgan in his lifetime, on September 10, 1879, and to foreclose a mortgage given at the same time by Morgan upon a certain eighty-acre-tract of land to secure the payment of said note.

Original Proceedings in Quo Warranto. On November 11,1885, The State of Kansas, ex rel.

Error from Jefferson District Court. . At the February Term, 1885, of the district court, the defendant Murray moved to dismiss that part of the plaintiff’s appeal which had for its object the review of the order of the justice pf the peace dissolving the attachment, which motion the court sustained. This ruling the plaintiffs bring here for review.

Error from Hodgeman District Court. Action brought by The Railroad Company to restrain the collection of certain taxes. It brings here for review a judgment against it, rendered October 28, 1884. The opinion states the material facts.

Error from Wyandotte District Court. Action brought by McCrossen against Harris and others, to recover taxes paid by plaintiff upon certain lots, and to have the same declared a lien thereon. Judgment for defendants at the December Term, 1884. The plaintiff brings the case here. The facts sufficiently appear in the opinion.

Error from Jackson District Court. Action brought by Sarbach against Newell, for the partition of certain real estate. The plaintiff brings to this court for review a certain order of distribution made by the district court at the June Term, 1884.

Error from Doniphan District Court. Action by De Witt C. Wheeler, as administrator of the estate of Frank Wheeler, deceased, against The Railroad Company, to recover damages for the benefit of the next of kin of the decedent, whose death is alleged to have been caused by the negligence of the defendant. Trial at the December Term, 1884, and judgment for plaintiff for $1,500. The Company brings .the case here. .The material facts are stated in the opinion.

Error from, Crawford District Court. Action by The McCune Mining Company against Adams, to recover $95. Judgment for defendant, at the September Term, 1884. The plaintiff brings the case here. The opinion states the facts.

Error from Saline District Court. Action by Davis against Harrington to have certain tax deeds declared void. Judgment for defendant, January 8, 1885. The plaintiff brings the case here. The opinion states the facts.

Error from, Shawnee District Court. The opinion states the case. The defendant brings to this court for review certain orders made by the district court at the January Term, 1885.

Error from Cherolcee District Court. On June 27,1882, D. P. Haeeltme brought his action against Daniel H. Edgmand to recover damages from the defendant for permitting the water falling on the roof of his (defendant’s) building to be discharged against and upon the wall and building of plaintiff, and to obtain a restraining order, preventing the defendant from continuing the nuisance.

Error from Saline District Court. In August or September, 1883, John W. Hoffman commenced an action in the district court of Saline county, against Thomas G. Ritter and Abraham Ritter, to recover the sum of $300 with interest and costs.

Error from Shawnee District Court. Action by Alexander against Simpson and another, to recover damages for the seizure and conversion of a stock of merchandise of which plaintiff claimed to be the owner. Trial at the January Term, 1884, and judgment for plaintiff for $2,650. The defendants bring the case to this court. The material facts appear in the opinion.

Error from Atohison District Court. In this case the court below made the following findings and conclusions, to wit: CONCLUSIONS OP PACT. “1.

Error from Wyandotte District Court. Action brought on December 16, 1885, by John W. Fletcher against The Atchison, Topeka & Santa Fé Railroad Company, Isaac T. Burr and others, for the purpose, among other things, of canceling a certain contract between the aforesaid railroad company and the Sonora Eailway Company, to discharge the Atchison company from all liability in respect to the guaranty in said contract, and to enjoin the directors and agents of the Atchison company…

Error from Lyon District Court. Action brought by The State against The Endowment and Benevolent Association of Kansas, to oust it from the exercise of certain corporate powers and to dissolve the corporation. Judgment for The State, at the January Term, 1886. The defendant brings the case to this court. The material facts are stated in the opinion.

Error from, Clay District Court. Action by Beatty against The Railway Company, to recover for services as a physician and surgeon and for medicines alleged to have been rendered and furnished upon the employment of the defendant company. Trial at the May Term, 1884, and judgment for plaintiff for $250 and costs. The Company brings the case here. The material facts are stated in the opinion.

On July 15, 1885, the county attorney of Linn county filed the following information against Robert Whisner, (omitting court and title:) “Whereas, upon a certain inquiry by and before me, lately instituted and carried on at the city of La Cygne, in said Linn county, in the state of Kansas, into and. concerning certain violations of an act of the legislature of the state of Kansas,, Entitled 'An act amendatory and supplemental to chapter 128 of the Session Laws of 1881, being…

<p>Akgtjment, Waiver of Bight to Make. Where a case is tried before the court without a jury, and at the close of the evidence the plaintiff’s counsel, in the hearing of the court, ask the defendant’s counsel whether they desire to argue the case or not, stating that the plaintiff ’s counsel do not wish to do so, and the defendant’s counsel, hearing the same, do not answer, and the court then renders its decision, which is adverse to the defendant, and the defendant’s counsel except to the decision, and then ask the court to permit, them to argue the case, and the court refuses, held, not error; that defendant’s counsel, ' by their silence, waived their right to make an argument at that time or at any time prior to their argument on their motion for a new trial.</p>

<p>Pbaotioe; Damages; Erroneous Instruction. In an action against a railroad company to recover for personal injuries where the plaintiff specifically alleged that the injury was caused by the negligence of his coemploye, the engineer of the train, and no other basis of recovery was stated, it was error for the cpurt to present to the jury a question not made by the pleadings, by instructing them that the plaintiff might recover if the injury was caused by the negligence of the fireman.</p>

<p>1. Contbaot, Construed. An allegation that the “plaintiff contracted with the defendant to cut. and bind wheat for the defendant,” is not an allegation that the plaintiff contracted with the defendant to. cut and bind all the wheat which the defendant owned.</p> <p>2. Vekdiot, Not Set Aside. Where the evidence is conflicting upon a given subject, but sufficient to sustain the verdict of the jury, the supreme court cannot set aside such verdict.</p>

Error from Shawnee District Court. On February 17, 1883, Ray Sanborn, an infant, who sues by his next friend, Charlotte Sanborn, commenced his action against The Atchison, Topeka & Santa Fé Railroad Company to recover damages, and in his petition alleged: “ That on the 19th day of February, 18 81, and prior thereto, the defendant had been, was, and is the owner of and operating a railroad in Shawnee county, Kansas, and certain machinery connected with its said road, situate…

M'ror from Marion District Court. The opinion states the nature of the action and the facts. At the February Term, 1884, the court, upon the motion of the defendant Mize, rendered judgment against the plaintiff upon the pleadings in the cause. This ruling plaintiff brings here for review.

Error from Washington District Court.' Replevin by Van Demarlc against Dolan, as sheriff of Washington county. Trial at the February Term, 1884, and judgment for plaintiff. The defendant brings the case here. The material facts appear in the opinion.

Error from Lyon District Court. Action begun by A. B. Symns & Go. to recover from the Emporia Mercantile Association $185.05, for merchandise sold and delivered to the defendant. At the same time the plaintiff caused an attachment to be issued and levied upon certain goods which were found in the possession of the A. T. & S. F. Rid. Co., and which had been shipped to the defendant over its road. Afterward, Wm.

Original Proceedings in Quo Warranto. Action in the nature of quo warranto, brought in this court November 28, 1885, by Joseph T. Ward against U. 8. Olarlt. The opinion, filed at the May, 1886, session of the court, states the material facts.

Error from, Atohison District Court. Action by Patrick Pangan against The City of Atchison, brought August 15, 1882, to recover $3,500 as damages for personal injuries alleged to have been sustained by the plaintiff on September 26,1881, while walking upon a sidewalk of the city, by the falling of a heavy structure of timbers and lumber used as bill-boards.

Information for murder, charging John R. Miller with the murder of Delbert J. Tuuisou, on May 19,1885. At the September Term, 1885, the defendant was convicted of murder in the second degree, and sentenced to imprisonment in the state penitentiary for a term of ten years. Defendant appeals. The opinion contains a sufficient statement of the facts.

<p>1. Fokgeey ; Instrument Good on its Face; Extrinsic Evidence. A false instrument or writing, made out with criminal intent to defraud, which is good on its face, may be legally capable of effecting the fraud, even though inquiry into extrinsic facts or matters not appearing on its face would show it to be invalid, even if it were genuine; therefore, the forging of such an instrument or writing is an offense under the statute. (Crimes Act, 129, 139.)</p> <p>2. Fobgeby, Facts Constituting. One B. had his life insured in a mutual benefit insurance company of Ohio; one of the officers of the company received a notice that B. had died in this state; upon receiving the notice he forwarded blanks for proof of death to the address of the beneficiary in the policy of the alleged deceased, the blanks being in the forms of proofá of death in use by the company; the defendant was appointed a committee to investigate the cause of the death of B., and after a short time the .proofs of death were sent by him from this state to an officer of the insurance company in Ohio; these proofs of death were false and untrue, because in fact B. was not dead as alleged; the papers returned by the defendant to the company were headed “ Official Notice and Proof of Death;” on the first page there appears in blank, “The foregoing and the report of the committee, together with the certificates thereunto annexed,” with certain questions purporting to be answered concerning the death of the alleged deceased; on page two is the certificate of the attending physician, with the statement of an officer under oath that the physician is respectable, entitled to credit, and engaged in active practice; on the third page is a report of the council examining committee on the cause of the alleged death, and on the same page an undertaker’s affidavit and a clergyman’s certificate — the first stating when the remains of the alleged deceased were interred, and the other giving the date of the funeral of the alleged deceased; on the fourth page are blanks for certain officers of the insurance company to sign, setting forth that they have examined the reports and certificates of the death of the member, and approved the same; the blanks on this page were never signed or filled up. Upon receiving the proofs of the alleged death, the insurance company discovered that there was a material discrepancy in the proofs presented, in this: From the certificate of the attending physician and the statement of the committee appointed to examine the cause of the- alleged death, it appeared that the alleged deceased died May 2, 1885, while the undertaker’s affidavit and clergyman’s certificate showed that the funeral of the alleged deceased and his burial were prior thereto, to wit, on March 4,1885; the defendant was thereupon arrested for the forgery of the undertaker’s affidavit and the clergyman’s certificate. Held, That the false affidavit and certificate which the defendant executed must be treated as complete and separate instruments, and the same as though they were wholly detached from the other papers constituting the proofs of death; and being in the exact form required by the insurance company, and not being in any way invalid or defective upon their faces, are the subject of forgery within the terms of the statute. (Sections 129 and 139, supra.)</p>

<p> Error from Miami District Court. </p> <p>Action by Clark against The Railway Company, to recover damages for bodily injuries. Trial at the May Term, 1885,' when the jury found for the plaintiff, and assessed his damages at $1. Upon questions presented at the request of plaintiff, the jury answered as follows:</p> <p>“ 1. Did the 'employés of defendant that were operating the train at the time plaintiff received the injuries complained of, blow, or cause to be blown, the whistle on the engine three times, at least 80 rods before crossing the highway on the outside of the city limits of the city of Paola, Miami county, Kansas? A. No.</p> <p>. “ 2. Did the plaintiff see or know of the approach of the train of defendant in time to have avoided the injury? A. No.</p> <p>“3. Did the defendant, the Missouri Pacific Railway Company, or any of its employés, blow the whistle three times, at least 80 rods before crossing the highway on the outside limits of the city of Paola, Miami county, Kansas? A. No.</p> <p>“4. Was the defendant, the Missouri Pacific Railway Company, guilty of negligence which was the immediate cause of the injury to plaintiff? A. We cannot answer.</p> <p>“ 5. (Not given.)</p> <p>“6. How far is the crossing where the collision occurred, from the place where the highway on the outside limits of Peery’s addition to the city of Paola on the east, crosses the railway track of defendant? A. 28 rods, 11 feet.</p> <p>“7. Was the plaintiff, Clark, warned that the train was approaching in time to have stopped his team and avoided the collision? A. We cannot answer.</p> <p>“8. Did the defendant’s employés managing the train at the time the collision occurred, ring or cause to be rung the bell on the engine at any time after reaching the city limits and before colliding with plaintiff’s wagon? A. We cannot answer.</p> <p>“9. Did the plaintiff, after coming in sight of defendant’s track, at any time before arriving at the track, look in the direction from which the train was coming? A. We cannot answer.</p> <p>“ 10. Was plaintiff intoxicated at the time the collision occurred on said 15th day of April, 1882? A. We cannot answer.”</p> <p>Special findings upon questions presented at the request of the defendant:</p> <p>“1. Did the plaintiff, when driving on Locust street and approaching the railroad track, look before he drove on the track to see if a train was approaching on the track from the east? A. We cannot answer.</p> <p>“ 2. Did the plaintiff, when traveling along Locust street and near the railroad track, listen to hear if a train of cars was approaching on the road from the east, before he drove on the track? A. We cannot answer.</p> <p>“3. Could the plaintiff have discovered the approach of the train on the railroad of the defendant, for the distance of' seven hundred feet when he got within one hundred feet of the track, if he had looked in the direction from which the train was coming? A. We cannot answer.</p> <p>“4. Could plaintiff have seen the train approaching on the railway for the distance of one-half mile when he was fifty feet from the track? A. No.</p> <p>“ 5. Could the plaintiff have heard the noise of the train eighty rods before it reached the crossing of Locust street, if he had listened for its approach? A. We cannot- answer.</p> <p>“6. Lid the train make a loud noise as it was approaching the crossing on Locust street? A. We cannot answer.</p> <p>“7. Was the weather clear and calm at the time of the collision between the engine and plaintiff’s wagon? A. Yes.</p> <p>“8. Was there anything to prevent the plaintiff from seeing the train coming on the track before he drove his horses on the railroad, if he had looked in the direction from which it was coming? A. No.</p> <p>“ 9. Could plaintiff have seen the train coming on the track a sufficient length of time to have avoided the collision if he had looked in the direction from which the train was coming? A. Yes.</p> <p>' “10. Could plaintiff have heard the noise of the train a sufficient time to have averted the collision if he had listened ? A. We cannot answer.</p> <p>“11. Was the plaintiff guilty of negligence in driving upon the railroad track without either looking or listening for an approaching train ? A. We cannot answer.</p> <p>“12. Lid plaintiff exercise ordinary care and prudence in driving his wagon and team on the railroad track? A. We cannot answer. ■</p> <p>“13. Lid the plaintiff at any time after he got within two hundred feet of the railroad track, and before he drove his wagon upon the track, look to see if a train was approaching on‘the railroad from the east? A. No.”</p> <p>Upon the special findings, the court rendered judgment for the defendant. The plaintiff brings the case here.</p>

<p> Error from Sedgwick District Court. </p> <p>The opinion states the facts. The defendant Petrie brings the case here.</p>

<p>Person Peesonating Anotheb; Indorsement of Draft; Mistake; Diability. Daniel Guernsey was the owner of a quarter-section of land in Butler county, in this state; he formerly resided in Butler county, but at the time of the transactions hereinafter stated lived in Iowa; an unknown person, assuming the name of Daniel Guernsey, obtained a loan from S. upon the Guernsey land, and executed his notes and mortgages for the loan in the name of Daniel Guernsey; S. sent the amount of the loan by draft by mail to the person executing the notes and mortgages, who said his name was Daniel Guernsey and whose name he then believed to be Daniel Guernsey, and made, the draft payable to the order of Daniel Guernsey, intending thereby the person to whom he sent the draft. A bank received this draft for a valuable consideration, in good faith, from the same person to whom it was sent, whom the bank believed to be Daniel Guernsey, and who indorsed the draft by that name. Held, Although S. was mistaken and deceived in the transactions, the person he dealt with was the person intended by him as the payee of the draft, designated by the name that he assumed in obtaining the loan, and that his indorsement of it was the indorsement of the payee of the draft by that name; and further held, under all the circumstances of this case, as the bank took the draft in good faith and for value, S. cannot recover his loss from the bank.</p>

<p>Information —Waiver of Defects. Where a criminal warrant is issued upon an information charging the defendant with selling intoxicating liquors in violation of law, and the defendant, without making any objection to the sufficiency of the warrant, or the sufficiency of the information, or the sufficiency of the verification thereof, enters into a recognizance for his appearance at the next term of the court, and is thereby discharged from arrest, he waives any supposed defects or irregularities in the issuing of the warrant without a sufficient verification of the information, and cannot afterward for that reason and upon motion have the warrant quashed or set aside.</p>

<p>1. Beginning oe Pboseotjtion; Statute of limitations. Themerefiling of a'complaint before a magistrate charging the commission of a felony upon which no warrant is issued nor arrest made, is not such a commencement of the prosecution as will take the case out of the operation of the statute of limitations.</p> <p>2. --Statute of limitations. Imprisonment in the state penitentiary does not fall within any of the exceptions of the limitations upon criminal prosecutions; and therefore the time of imprisonment of the accused within the state, which passes before a prosecution is begun, cannot be excluded from the statutory period of limitation.</p>

<p> Error from Wyandotte District Court. </p> <p>Two actions in the nature of ejectment, brought by Kersey Coates, as assignee of the Mastin Bank, to recover certain lots in Kansas City, Kansas. Trial by thé court, and judgment for plaintiff in each case, January 30, 1885. The defendants bring the cases here. The opinion states the material facts.</p>

Prosecution under § 253 of the crimes act. Prom a conviction at the November Term, 1885, the defendant Burns appeals. The facts sufficiently appear in the opinion.

<p>1. Agent—Evidence of Authority. While an agent may testify under oath as to his authority to act for the principal, the mere declarations of one who professes to be an agent are not competent evidence to establish his agency.</p> <p>2 Evidence; Communications between Husband and Wife. The plaintiff caused the deposition of one of the defendants to be taken prior to the trial in which the witness gave testimony concerning communications had with her husband during the marriage, and prior to his death. Held, That the testimony falls within the prohibition of the code which forbids husband or wife “ to testify concerning any communication made by one to the other during marriage, whether called while that relation subsisted, or afterwards,” and its admission over the objection of the defendants was error. (Civil Code, \ 323.)</p>

<p> Error from Cherokee District Court. </p> <p>In October, 1884, M. V. B. Bennett commenced his action before a justice of the peace of Cherokee county against The St. Louis & San Francisco Railway Company, to recover attorney’s fees. He obtained judgment before the justice of the peace, and the railway company appealed to the district court. With the consent of the defendant, the plaintiff filed an amended bill of particulars, in words and figures as follows, (court and title omitted:)</p> <p>“The plaintiff, complaining of the defendant, for his cause of action respectfully shows unto the court, by way of amendment to his original bill of particulars, that the defendant is a corporation doing business in Cherokee county, state of Kansas; that on the 18th day of September, 1882, and at divers days thereafter, the plaintiff performed services for it as local attorney in the county of Cherokee, state of Kansas; that said defendant agreed and promised to pay to plaintiff such compensation as his services were reasonably worth; that said services were of the value of three hundred dollars; that defendant has often been requested to pay said plaintiff for the same, but that said defendant fails, neglects and refuses to pay plaintiff for the same, or any part thereof; that said sum is due and unpaid.</p> <p>“Wherefore, plaintiff prays judgment of said defendant for said sum of three hundred dollars and his costs.”</p> <p>The defendant filed no answer, or other pleading in the case.</p> <p>Trial had at the January Term, 1885, .before the court, with a jury. The jury returned a verdict for the plaintiff, and assessed his damages at $50. They also made the following special findings of fact:</p> <p>“1. Did the plaiutiff represent the railway company in the case of Brubaker against the railway company? No.</p> <p>“ 2. Did the firm of Bennett, Lewis & Bennett represent the railway company in the case of Jarrett v. The Railway Company; Cummings v. Railway Company; and Darrick v. The Railway Company? Yes.</p> <p>“3. Did J. D. Lewis act as one of the attorneys for the railway company in the above case, with the consent of M. V. B. Bennett? Yes.</p> <p>“4. Was Pat Bennett a member of the"fii'm of Bennett, Lewis & Bennett? Yes.</p> <p>“ 5. Did the firm of Bennett, Lewis & Bennett represent the company, or have anything to do with the case of Brubaker v. The Railway Company? No.</p> <p>“6. Was the draft to pay Mrs. Brubaker sent by the railway company to M. V. B. Bennett to be turned over to Mrs. Brubaker? Yes.</p> <p>“ 7. Did Cowley & Hampton, or either of them, notify a member of the firm of Bennett, Lewis & Bennett that they had a claim on the money of Mrs. Brubaker before the check had been delivered to Mrs. Brubaker? Yes.”</p> <p>Thereupon the railway company filed its motion for judgment upon the special findings, notwithstanding the general verdict, which motion the court overruled. The company then filed a motion for a new trial, which motion was also overruled. The plaintiff remitted ten dollars from the amount of the verdict, and the court then entered judgment against the company for $40 and costs, taxed at $24.50. The defendant brings the case here.</p>

<p>1. Eebobs of Eaot, Seldom Considered. Questions with regard to the assignments of errors of fact, alleged to have been committed by a justice of the peace, discussed, and held, that such assignments of error can seldom if ever be considered.</p> <p>2. Confession of Judgment; Waiver of Irregularity. Where a justice of the peace left his office and went to the defendant’s residence, which was in the same township, and there the defendant waived summons, confessed judgment, and swore to the necessary affidavit therefor, and the justice then returned to his office, where he made the proper entries of the proceedings, held, that such judgment is neither void nor voidable; that the defendant, when she waived the summons, confessed the judgment, etc., waived the irregularity of the justice’s taking the confession of the judgment at a place other than his office.</p>

<p> Error from, Shawnee District Court. </p> <p>The material facts are stated in the opinion. The plaintiff Hazen brings the case here.</p>

Error from Sedgwick District Court. On February 16, 1885, B. N. JSershfield commenced his action against L. M. Lowenthal and A. F. Lowenthal, partners as Lowenthal Bros., to recover $400, with interest, upon two promissory notes, each for $200, executed by the defendants on November 29, 1884. The notes were not due at the commencement of the action.

At the April Term, 1885, of the district court of Smith county, plaintiff Welden recovered a judgment against defendants Hodson and two others, who bring the case to this court.

Ejectment, brought by King against Wiggin and another. Trial at the May Term, 1884, of the district court of Franklin county, and judgment for plaintiff. The defendants bring the case here.

Error from Harvey District Court., Action brought by John W. Weaver against The St. Louis & San Francisco Railway Company, to recover damages for personal injuries. Trial at the January Term, 1885, when the jury found for the plaintiff, and assessed his damages at $10,-000. In answer to special questions submitted to them, at the request of defendant, the jury made special findings of fact, as follows: “1. What caused the plaintiff’s'injuries complained of in his petition?

Error from Johnson District Court. . On January 15, 1883, Alice Haverty filed ber petition in the district court of Johnson county, in this state, asking a decree of divorce against John V. Haverty, on the following grounds, to wit: First, gross neglect of duty; second, extreme cruelty and inhuman treatment; third, abandonment for more than one year; and demanded the custody of George W. Haverty, a minor child, and asked that John V. Haverty be debarred of all interest in…

Error from Franklin District Court. Replevin, brought by A. & J. Trounstine & Co., to recover from A. H. Sellers the possession of a stock of ready-made clothiug of the alleged value of $2,085.20. It was tried at the January Term, 1885, without a jury, and findings of fact and law were made by the court,, which are as follows: “1.

Error from Montgomery District Court. The opinion states the nature of the action, and the facts. To plaintiff’s petition defendants Madden and Conrad filed a demurrer, which on April 3,1885, was sustained by the court. The plaintiff Miller brings the case to this court.

Error from Chase District Court. Action by Barlcer against Critzer, to compel tbe specific performance of a certain contract. At tbe April Term, 1885, tbe court sustained defendant’s demurrer to plaintiff’s petition, and rendered judgment against him for costs. The plaintiff brings the case here. The opinion states the facts.

Error from Greenwood District Court. T. L. Davis brought this action against The St. Louis, Fort Scott & Wichita Railroad Company, to recover $680 for legal services rendered by him for and at the request of the railroad company during the year 1883, in the trial of seventeen causes before justices of the peace of Greenwood county, and in the trial of fifteen causes in the district court of Greenwood county, and in the making and preparation of ten of the cases for the…

Error from Shawnee District Court. Action in the nature of ejectment, brought October 1,1883, by Joseph W. Redden against A. J. Hentig and others, to recover the possession of lots 408, 410, 412, and 414, on Clay street, in the city of Topeka, in this state.

Error from Chase District Court. Ejectment, brought by Crawford against Shaft, to recover certain land situate in Chase county. Trial by the court, at the April Term, 1885, and judgment for the defendant. The plaintiff brings the case here. The opinion states the facts.

<p> Error from Chautauqua District Court. </p> <p>Action brought by Hendricks against The County Board of Chautauqua County, to recover for medical services, etc. The defendant demurred to plaintiff’s petition on the ground that it does not state facts sufficient to constitute a cause of action, which demurrer the court sustained at the March Term, 1885, and rendered judgment for costs against plaintiff. He brings the case here. The opinion states the facts.</p>

■Error from Phillips District Cou/rt. On November 2, 1883, The State Savings Association of St. Louis, Mo., filed its petition against W. M. Barber, in words and figures as follows, (omitting court and title:) “1. Now comes tbe plaintiff, and for cause of action states that the plaintiff, the State Savings Association of St. Louis, Mo., is a corporation existing under the laws of the state of Missouri, and doing business at St. Louis, Mo. “2.

Error from Washington District Court. Action brought by Chappel against Crippen, Lawrence & Go., and others, for the partition of certain real estate. To the answer of defendants, Crippen, Lawrence & Co., the plaintiff demurred on the ground that it does not state facts sufficient to constitute any defense to her petition. The demurrer was sustained at the November Term, 1884. This ruling said defendants bring here for review. The opinion states the facts.

Error from Saline District Court. Replevin, brought by Roberts against Radcliff, as sheriff of Saline county. Trial at the November Term, 1883, and judgment for defendant. The plaintiff briugs the case to this court. The opinion states the material facts.

<p>1. Embezzlement; Waiver of Tort; Set-Off. Where the agent or clerk of a principal is guilty of the embezzlement of his principal’s goods, the principal may waive the tort if he chooses, and treat his cause of action against his agent or clerk as one arising upon an implied contract; and if the agent or clerk is the owner of a note executed by the principal, in an action thereon the principal may plead as a set-off to the note the value of his goods embezzled and converted to his own use by his agent or clerk.</p> <p>2. Set-Oee, Striking Out, Not Material Brror. An action was' brought by the wife of W. upon a promissory note payable to her order. The defendant alleged in his answer that the wife was not the real party in interest, but that the husband furnished the consideration of the note and was the owner thereof, and also alleged a set-off existing in favor of the defendant against the husband for a sum exceeding the amount of the note. Upon motion of the wife, the set-off was stricken out. The other allegations in the answer were permitted to stand. The case was tried by the court, without a jury, and the court found that the plaintiff was the real party in interest, and thereon rendered judgment against the defendant. Held, That although the district court committed error in striking out the set-off, the error, under the findings, cannot be said to be material, as it did not affect or prejudice in any way the substantial rights of the defendant.</p>

Error from Shawnee Superior Court. Action brought by Washington Mason and seveuty-nine others, against Charles F. Spencer, as county clerk, and others, to enjoin the defendants from. collecting certain sewer taxes levied by the city of Topeka.

Error from Marshall District Court. Action originally brought by J. C. Frissell and another against John V. Coon and E. J. Coon,' partners under the firm-name of John Y. Coon & Son, and Randall Stetson, to quiet their title to lot eleven on the county road within the city of Blue Rapids, and which they further describe by metes and bounds.

Eh'ror from Wyandotte District Court. Action brought February 21, 1883, by Charles Collins against H. E. Bush, as sheriff of the county of Shawnee. The petition is in words and figures as. follows, (omitting court, title, and exhibit:) “1.

<p> Error from Republic District Court. </p> <p>Action brought by Weyand and others, against Stover, as treasurer of Republic county, and others, to eujoiu defendants from collecting certain taxes. The defendants demurred to plaintiffs' petition on the ground that it does not state facts sufficient to constitute a cause of action. At the April Term, 1884, the court'sustained the demurrer, and rendered judgment for costs against the plaintiffs. , They bring the case here. Other facts appear in the opinion.</p> <p>Chapter 80 of the Session Laws of 1;883 has the following title:</p> <p>“An act authorizing the board of county commissioners of Ottawa county, and other counties therein named, to provide a fund and appropriate the same for the purpose of building county buildings in said counties.” (Laws of 1883, p. 128.)</p> <p>The act was approved February 27, 1883, and purports to have taken effect February 28, 1883. Before its passage it was senate bill No. 226. The printed journals of the two houses show as follows:</p> <p>On Friday, February 9, 1883, the following proceedings were had in the senate:</p> <p>“By consent, Senator Patchin introduced bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same. The bill was read the first time. On motion of Senator Patchin, the rules were suspended, senate bill No. 226 was read the second time, and referred to the committee on judiciary.” (Senate Journal, 367.)</p> <p>On Thursday, February 15, 1883, the chairman of the committee on judiciary made the following report:</p> <p>“Mr. President: Your committee on judiciary, to whom was referred senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same, have had the same under consideration, and instruct me to report .the bill back to the senate with the recommendation that it be passed. S. O. Thacher, Chairman.”</p> <p>(Senate Journal, 426.)</p> <p>On Wednesday, February 21, 1883, the following proceedings were had in the senate:</p> <p>“Senator Patchin moved that the rules be suspended, and senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same, be considered engrossed, and placed on the calendar for third reading, subject to amendment and debate, which motion prevailed.” (Senate Journal, 543.)</p> <p>On Thursday, February 22, 1883, the following proceedings were had in the senate:</p> <p>“Senator Patchin moved that the rules be suspended, and that senate bill No. 226, which was on the calendar for third reading, subject to amendment and debate, be read the third time now, which motion prevailed.</p> <p>“ Senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same, was read the third time, and being subject to amendment, Senator Rector moved to amend the bill so the provisions thereof shall apply to Washington county, which motion prevailed.</p> <p>“Senator Case moved'to amend the bill so its provisions shall also apply to Jewell county, which motion prevailed.</p> <p>“ Senator Brown moved to amend the bill by adding Republic county to the counties named in the bill, which motion prevailed.</p> <p>“The question then being, Shall the bill pass? The roll was called, with the following result: Yeas, 22; nays, 0.”</p> <p>The names of the senators voting, and those absent, are given. (Senate Journal, 576.)</p> <p>Also, on the same day, the chairman of the committee on engrossed bills made the following report:</p> <p>“'Mr. President: Your committee on engrossed bills, to whom was referred senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county, and other counties therein named, to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same, have examined the same, and instruct me to report the bill back to the senate correctly re-engrossed. A. R. Greene, Chairman.”</p> <p>(Senate Journal, 589.)</p> <p>Also, on the same day, the secretary of the senate made the following report to the house:</p> <p>“ Mr. Speaker : I am directed to inform the house that the senate has passed the following bills: “ . . . Senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same.</p> <p>Henry Brandley, Secretary.”</p> <p>(House Journal, 732, 733.)</p> <p>On Friday, February 23, 1883, the following proceedings were had in the house:</p> <p>“On motion of Mr. Orner, senate bill No. 226, An act authorizing the board of county commissidners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same, was placed on third reading, subject to amendment and debate.” (House Journal, 743.)</p> <p>On Saturday, February 24,1883, the following proceedings were had in the house:</p> <p>“Senate, bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same, was read the third time, and the question being, Shall the bill pass? the roll was called, with the following result: Whole number of votes cast, 92; constitutional majority,. 63. Yeas, 91; nays, 1; absent or not voting, 33.”</p> <p>The names of the members voting for and against, and those absent, are given. (House Journal, 787.)</p> <p>On Monday, February 26, 1883, the chief clerk of the house made the following report to the senate:</p> <p>“ Mr. President : I am directed to inform the senate that the house has amended senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same, by striking out of second line of section 1 the word ‘ Jewell/ and respectfully desires your concurrence therein.</p> <p>(Senate Journal, 642.)</p> <p>H- L- MlLLAKIb °}uef Clerk”</p> <p>And on the same day, the following proceedings were had in the senate:</p> <p>“Senator Patchin called up house message relating to senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county, and other counties therein named, to provide a fund and appropriate the same for the purpose of building county buildings, and to provide for the building of the same.</p> <p>“The house having amended the bill by striking therefrom Jewell county, Senator Patchin moved that the senate concur in house amendment.</p> <p>“ On which the roll was called, with the following result: Yeas, 22; nays, 1.”</p> <p>The names of the senators voting for and against, and those absent, are given. (Senate Journal, 645.)</p> <p>On the same day, the secretary of the senate made the following report to the house:</p> <p>“ Mr. Speaker : The senate has also concurred in house amendment to senate bill No. 226, An act authorizing the board of county commissioners of Ottawa county to provide a fund and appropriate the same for the purpose of building county bridges, and to provide for the building of the same.</p> <p>Henry Brandley, Secretary.” ’</p> <p>/TT T i \ (House Journal, 803.)</p> <p>The bill was enrolled and duly signed by the officers of the respective houses, and signed and approved by the governor, and is now on file in the office of the secretary of state as a duly-enrolled statute, and is duly published in the Session Laws of 1883, as chapter 80, and on pages 128 and 129.</p>

, Prosecution for a violation of a certain prohibitory liquor ordinance of The City of Topeka. From a conviction at the April Term, 1884, of the district court of Shawnee county, the defendant Myers appealed. The supreme court reversed the case on account of the misconduct of the prosecuting attorney in using the following words in addressing the jury: “If the defendant is not guilty, why did he not take the stand?

Action brought by Dudley to enjoin the issuance of a certain tax deed. Trial by the court,-at the January Term, 1885, of the district court of Shawnee county, and judgment for defendants. Plaintiff brings the case here. The opinion herein, filed at the July, 1885, session of the court, contains a sufficient statement of the facts.

Error from Wyandotte District Gowrt. • The facts in this case are substantially as follows: On January 8, 1884, R. W. Hilliker, mayor of Kansas City, in this state, and seventy-six other residents and tax-payers of Wyandotte county, filed a petition with the board of county commissioners of that county, asking them to appropriate $1,000 to assist in building a bridge across the Kansas river, between the cities of Wyandotte and Kansas City, in this state, the bridge to be…

<p> Error from Bourbon District Court. </p> <p>Action brought April 16, 1881, by The First National Bank of Fort Saott, Kansas, against G. F. Drake, to recover for alleged violations by Drake of his trust as a cashier and president of the bank. The petition alleged that from May 5, 1877, until September 28, 1880, Drake was the largest stockholder of the bank and a director thereof, and that upon May 5, 1877, he was elected as its cashier, and held that office continuously and acted as such up to July 7, 1880, when he was elected president of the bank, and held the office of president continuously and acted as such up to September 28,1880, and that during all this time he was the general manager and custodian of the property, business, money, rights and credits of the bank. The charges alleged against him in the petition in brief are, first, that he paid to himself $2,203.97, as interest on demand certificates of deposit issued to himself while cashier, in violation of the rules and by-laws of the bank; second, that he paid to himself $3,165.50 salary, contrary to law, and contrary to his agreement to serve without salary ; third, that he sold to himself certain municipal bonds of Bourbon county,/Kansas, which were the property of the bank, at considerably less than their actual value. All of these acts are alleged to have been done while Drake was acting as the managing officer of the bank, without the authority or knowledge of the board of directors of the bank. The answer alleged, among other things, that these acts were done with the knowledge, consent and approval of the officers and directors of the bank, and that a record of them was made in the usual course of business in the proper books of the bank. It was also alleged that the demand certificates of deposit for interest were signed by the proper officers of the bank, that they were made payable to Mr. Drake, and that none, of them were signed by him as cashier or otherwise. It is also alleged that all of the payments were voluntarily made to him by the bank with full knowledge of all the facts and circumstances attending the same, and that the officers and directors had actual knowledge thereof. The case was first tried at the December Term, 1881, of the district court, and judgment was then entered for the defendant' upon a demurrer to the plaintiff’s evidence. It was then brought to this court .for review, and the judgment of the district court was reversed, and the case remanded for a new trial. (National Bank v. Brake, 29 Kas. 311.) It was again tried at the May Term, 1884, of the district court with a jury, when certain particular questions of fact were submitted, which, with the answers thereto, are as follows:</p> <p>“1. Was there an understanding between the other directors of the bank and the defendant, at and before he was made cashier of the bank, that if he was made cashier he would serve without salary? A. Yes.</p> <p>“ 2. If you find that there was an understanding that defendant would serve without salary, was the understanding between the board and the defendant ever changed after he became cashier? A. No.</p> <p>“ 3. Did the defendant, at any time after he had taken any sum for salary, inform the board of directors of the bank that he had done so? A. No.</p> <p>“4. "Was it a rule of the bank before and during all of the time that defendant was its cashier, that no interest should be paid on demand certificates of deposit? A. Yes.</p> <p>“5. Did the defendant have any agreement with the board of directors of the bank as to the transfer to him of the Bourbon county funding bonds, at or before the time he took them? A. No.</p> <p>“ 6. While the defendant was an officer of the bank, did he ever inform the board that he had taken interest on demand certificates of deposit? A. No.</p> <p>“ 7. Did the directors at any meeting of the board authorize the taking by defendant of the said sums of interest? A. No.</p> <p>“8. Did the directors at any meeting of the board ratify the taking by defendant of the said sums of interest? A. No.</p> <p>“ 9. Did the directors at any meeting of the board authorize the taking by the defendant of the Bourbon county bonds? A. No.</p> <p>“10. Did the directors at any meeting of the board ratify the taking by the defendant of the Bourbon county bonds? A. No.</p> <p>“11. What was the value of the Bourbon county funding bonds at the time the defendant took them? A. 95 cents, with accrued interest.</p> <p>“ 12. Did the board of directors ratify the first taking of salary by the defendant at any time? A. No.</p> <p>“13. Did the board of directors at any time ratify the second taking of salary by the defendant? A. No.</p> <p>“ 14. Did the board of directors at any time ratify the taking of the several amounts of interest, for which this suit is brought? A. Yes.</p> <p>“15. If £Yes,; then state how the board did in fact ratify it. A. By individual consent of a majority of the board.</p> <p>“16. Did the board of directors at any time ratify the taking of the Bourbon county funding bonds by the defendant? A. No.”</p> <p>A verdict was returned by the jury in favor of the plaintiff for the sums alleged to have been wrongfully received by Drake for salary as cashier, and for the difference between the amount actually paid by him upon the municipal bonds which he purchased from the bank and their value at the time he received them, amounting in all to $4,408.75. The jury refused to find for the plaintiff as to the sum claimed for interest on demand certificates. The plaintiff then moved the court to render judgment for the additional sum received by Drake as interest on deposits, basing its motion on the answers returned by the jury finding that the board of directors of the bank did not, as a board, authorize or ratify the taking of the interest by the defendant, and that the only ratification was by individual consent of a majority of the directors. This motion was disallowed, and judgment rendered in accordance with the general verdict returned by the jury. The-plaintiff brings the case here.</p> <p>The plaintiff in error claims, first, that the board of directors had no power to ratify, and that the alleged ratification constitutes no defense; and, second, that there never was any ratification, even if ratification would constitute a defense.</p> <p>I. In order to lay a foundation for the examination of the first claim, we must establish some preliminary propositions:</p> <p>1. The cashier of a national bank is its chief executive officer. His duties are defined by law, and are strictly executive., He does not regulate or control the business; he transacts it-. (Morse on Banks, 1st ed.; p. 137; Ball-on National'Banks, p. 265; Bank v. Bank, 10 Wall. 604.)</p> <p>The cashier, being an executive officer who transacts business for a bank, must, perforce, be an agent. But whose agent is he?</p> <p>2. The cashier of a bank is the agent of the stockholders, and is not the agent of the board of directors. The board has its well-defined legal and statutory duties to perform, the same as the cashier has. The board therefore is also an agent of the Stockholders. Consequently the cashier and the board are coagents of a common principal. The cashier is no more the agent of the board than the board is the agent of the cashier. The board can elect a cashier, but his duties are defined by law. He obeys the law and not the board. (Thompson on Powers of Bank Cashiers, §§ 1, 5; Bank v. Barrington, 2 Pa. 27; Bank v. Bank, 1 Par. Sel. Cas. 180, 240; Bissell v. Bank, 69 Pa. St. 415.)</p> <p>3. If an agent wrongs his principal, the wrong cannot be forgiven or pardoned by another agent. The principal alone must do the pardoning. If a cashier converts to his own use money of a bank, the directors cannot forgive the cashier. They have no such power. They are agents merely, and their duties are defined by law. If a board of directors had power to forgive a cashier for robbing a bank, then a majority of the board could collude together with the cashier and continue to rob, divide and forgive.</p> <p>“A usage of the board of directors to permit the cashier to misapply the funds of the bank cannot ’exonerate his sureties.” (Minor v. Bank, 1 Pet. 46. See also Burke v. Smith, 16 Wall. 395; TJpton v. Tribileoek, 91 U. S. 48; Bedford Co. v. Bowser, 48 Pa. St. 37; Austin v. Daniels, 4 Denio, 299; Salem Bank Case, 17 Mass. 1.)</p> <p>4. The doctrine of ratification has no application to a transaction or wrong wholly between principal and agent. Ratification is the acceptance by a principal of the acts of one who, without original authority, acted with third parties in the name of such principal. It is a branch of the doctrine of principal and agent. The acceptance must "be by the principal; one agent cannot ratify the acts of another agent unless the acts were, in the first place, lawful; and secondly, were with third parties in the name of the principal; and thirdly, the ratifying agent must have had previous authority, before the act, to command the performance of the act ratified, or be given special power afterward. (Domat’s Civil Law, Strahan’s ed., § 2364.)</p> <p>In all cases of ratification there must be an “outsider”— a third person—either actual or in contemplation of law; and the. ratification must operate on the outsider, the third person. (Wharton on Agency, § 74.) Acquiescence is a branch of the doctrine of ratification. It is a ratification by presumption. (Kent v. Mining Co., 78 N. Y. 187.)</p> <p>5. The ratification of a tort must be by a principal, concerning some act done to a third party by the command of, or for the use and benefit of, the principal. There is no such a thing as the ratification of a tort committed by an agent upon the principal. The idea of ratification of a tort, implies by its very terms the existence of an agent and a third person. In strict language there is no such thing as a ratification of a tort. To ratify means to make valid. That which is void cannot be made valid. (7 Hen. IV, fo.' 35; 4 Coke’s Inst. 317.) The ratification of a tort is simply the assumption of a liability created by law.</p> <p>The directors of a bank are agents, and have no power to make gifts. They cannot give away the money of the bank, or give away its right to money. It may be asked: If the board of directors cannot ratify the act of defendant in error, who can? We confess our ignorance; we do not know. The directors cannot do it; it is their duty to collect the money. A majority of the stock at a stockholders’ meeting cannot do it. The majority‘of stockholders might pass’a resolution directing the board not to sue, and might even elect a board on that issue. If the majority did this, then if there was one dissenting stockholder he might sue in behalf of the bank, on showing that the bank would not. The desire not to sue must be unanimous, and must continue for a length of time that would bar the claim by limitation. Then, and not till then, would the trustee be safe from suit; and this would be forgiveness, and not ratification — forgiveness by the stockholders and not by the corporation. (Hazard v. Durant, 11 E. I. 196; 7 Hare, 129.)</p> <p>6. The by-laws of a national bank, that are passed within the scope of its authority, are as binding upon its officers as statute law. (Owmmings v. Webster, 43 Me. 192; Anacosta Tribe v. Murbaek, 13 Md. 91; German Evan. Gong. v. Dressier, 17 La. An. 127; McDermott v. Board of Dolice, 5 Abb. Pr. 422; Sassenscheldt v. Ben. &c. Union, 1 City Ot. Eep. N. Y. 8.)</p> <p>7. Section 5209 of the U. S. banking law is:</p> <p>“Sec. 5209. Every . . cashier . . of any association, who . . willfully misapplies any of the moneys, funds or credits of the association, . . shall be deemed guilty of a misdemeanor, and shall be imprisoned,” etc. ( See also In re Van Campen, 2 Benedict, 419; United States v. Tainter, 11 Blatehf. 374.)</p> <p>The facts of the case being undisputed, as is shown by the special findings, then, if the various propositions of law are as we have stated them, it follows that the doctrine of ratification has no reference or application to this case; because, first, the liability of the defendant is for a wrong done by him to his principal, the stockholders; and, second, there being no third person, the doctrine of ratification does not apply.</p> <p>II. That the members of a board must act as a board, and cannot act individually, we deem to be so well settled that the citation of authorities is unnecessary. Without waiving that point, we argue the question on the fundamental proposition that the board could not ratify at all.</p> <p>Counsel for the plaintiff in error contend, first, that the board of directors had no power to ratify, and that the alleged ratification constitutes no defense; and second, that there never was any ratification, even if ratification would constitute a defense. It is more convenient, for the purposes of this argument, to discuss the second proposition of counsel for plaintiff in error before proceeding with the other.</p> <p>Question 14 was, “Did the board of directors at any time ratify the taking of the several amounts of interest for which this suit is brought?” Ans., “Yes.” Question 15 was, “If yes, then state how the board did in fact ratify it?” Ans., “By individual consent of a majority of the board.” The jury were asked by question 14 to say whether there was ratification; and am I not right in declaring that where the jury were required to answer whether or not the board of directors had ratified the action of defendant in error in taking the in7 terest, and when they had answered in the affirmative, then such answer was conclusive upon the plaintiff in this case? The question submitted to them was, “Was there ratification?” which is but another form of asking, Was there approval? Was there sanction? Was there confirmation ? ' The jury found that there was approval, sanction, confirmation. The case was tried, as the pleadings and the special questions submitted to the jury show, upon the theory that the board of directors might ratify. Is it not true, then, that when the jury have found that there was ratification, that further inquiry is precluded ?</p> <p>When asked to state how the board did in fact ratify Mr. Drake’s action, the jury say, “By individual consent of a majority of the board.” This implies not only ratification in law, but, taking the answer in its ordinary signification, consent to the act itself upon the part of the board. Consent implies knowledge, and therefore the full meaning of this last answer would be, that the board of directors, with full knowledge of the fact, consented to it. The jury, after hearing the evidence adduced on the trial and the instructions of the court, might very well come to the conclusion that there was ratification, and they might so answer. And yet it might be impossible for them to express in words how the ratification was obtained, or what constituted it. Indeed, the counsel on the other side might vainly endeavor for an indefinite time to define ratification in precise terms, but the fact and truth remain that the jury have answered that there was ratification. That finding has not been disturbed—it remains as a settled proposition ; and I most respectfully submit that it is not within the province of this court to say that there was not ratification.</p> <p>As to the first proposition stated by counsel for plaintiff in error, viz., that the board of directors had no power to rátify, it should be remembered that the allegations of the petition upon this point are, that the taking of this interest was contrary to the orders of the board of directors, and that the case was tried in the court below wholly upon the theory that the board of directors might ratify the taking of the interest, if, in fact, it was not authorized in the first instance. The special questions submitted by the plaintiff are all predicated upon the theory that the board of directors might ratify; and I submit that when the case 'was tried in the court below upon that theory, and the motion for judgment for the interest was predicated upon that idea, it would be an outrage, both upon the court below and the jury, to permit the bank now to claim that the board had ;no power to ratify. The theory that the board could not ratify was not advanced when the case was on trial. When, at the instance of plaintiff, the jury had answered affirmatively to the question as to whether there was ratification, it is not in good faith for the plaintiff to say now that the board had no power to ratify.</p> <p>Counsel for the bank say that not even a majority of the stockholders could ratify; that, perhaps in strictness, not all of them could. But they did not put their case upon that ground in the court below; for aught this court knows, evidence was adduced of the fullest and most complete ratification upon the part of the stockholders of this corporation.</p> <p>The defendant in error was neither the agent of the directors, nor of the stockholders. The question of principal and agent does not apply, and consequently all the authorities quoted upon that point are irrelevant. In discussing this question when the case was in this court before, Mr. Justice Brewer said: “We think, therefore, that it will not do to say that it [ratification] is strictly a branch of the doctrine of principal and agent. It is the confirmation of a voidable act.” (29 Kas. 324.) The declaration of this court, therefore, disposes of the major part of the argument of counsel for the bank.</p> <p>The startling declaration is made by counsel that in all cases of ratification there must be an outsider, i. e., a third person, either actual or in contemplation of law, but no authorities are quoted to sustain it, for the reason, probably, that none can be found.</p> <p>Counsel for the bank say that the board had no power to atify. Stated in another form, I suppose that proposition would be that even if the act was without the knowledge or consent of the board of directors in the first instance, they could not afterward ratify and confirm it so as to make it binding upon the bank. Mr. Justice Story, in Fleclmer v. Bank of U. S., 8 Wheat. 339, said:</p> <p>“The whole business of the bank is confided entirely to the directors, and of course with them it would rest to fix the duties of the cashier or other officers.”</p> <p>This court said, iu the case of Bank v. Brake, 29 Kas. 325, that—</p> <p>“The directors constitute the governing body of the bank, the bank itself being an incorporeal entity without power to see or know. The directory constitutes the visible representative, the thinking, the knowing head, of the bank. Its knowledge and purpose is the knowledge and purpose of the bank.”</p> <p>By the express provisions of the federal statute governing national banks, (Rev. Stat. of U. S. § 5136,) they are authorized to receive deposits. Their business is to be managed by a board of directors elected by the stockholders. In the case of the Salem Bank v. Gloucester Bank, 17 Mass. 1, it is said:</p> <p>“In certain things the directors of a bank have all the authority of the corporation vested in them by a vote, and in respect to such things their engagements, express or implied, will bind the corporation.”</p> <p>Now,' then, this bank was authorized to receive deposits. Being so authorized, it certainly had authority to pay interest on the same if its board of directors saw fit, even though the deposits had been made upon the condition that no interest was to be paid. While there was an allegation in the petition that there were by-laws of the bank, to the effect that no interest should be paid on demand certificates of deposit, there is no finding to that effect by the jury. These certificates, it has been shown, bore interest on their face. They were signed by officers of the bank other than Mr. Drake. Why, then, was not the bank bound by the obligation which it entered into to pay interest on the deposits? Grant, for the sake of the argument, thát there was a rule of the bank that no interest should be paid on such deposits as those in question, still that would not make it criminal in one to receive interest on the same, and having received it with the consent of the directors, as is shown by the findings of the jury, I cannot see why the bank can now question the validity of the transaction.</p> <p>“It must also be remembered that the tendency of modern judicial interpretation and legislation has been to waive needless formalities, and that consequently at the present many agreements are held binding upon corporate bodies, even without ratification, which a few years since would, from technical reasons, not have been so.” (Durham v. Goal Go., 22 Kas. 244.)</p> <p>“Eatification may he inferred from corporate acts involving or implying confirmation.” {Howe v. Keeler, 27 Conn. 538; Ridgeway v. farmers’ Bank, 19 Serg. & E. 256; Field on Corporations, § 207.)</p> <p>In Bank v. Drake, 29 Kas. 331, this court said:</p> <p>“ We think that the question is rather to be treated as a question of fact, and to be determined by a jury, as to whether the bank acquiesced in and ratified the action of the cashier, than to be disposed of as a question of law and dependent upon a purely legal presumption.”</p> <p>Upon the whole case, as this court said in Bank v. Drake, supra:</p> <p>“It maybe fairly submitted to a jury whether, independent of any proof of actual knowledge, the action of the cashier has not been so .open, and long continued, and under such circumstances, that it may be inferred that the directors assented to his acts.”</p> <p>The fact is, that for a long time this bank had- the use of Mr. Drake’s money; and it is not in good faith for it to complain after it has had such use and paid him only a moiety of what his money was actually worth.</p>

Error from Shawriee District Cowt. Action brought by Andrew J. Huntoon, against The Capital Bank of Topeka aud others, to set aside a certain sheriff’s sale, and for other relief. Trial at the January Term, 1884, before Hon. John W. Day, judge pro tern., and a jury; judgment for the plaintiff. The defendants bring the case to this court. The opinion contains a sufficient statement of the facts.

Error from Meade District Court. The defendant in error, Budgett, on February 13th, 1886, being a citizen of the United States and of the state of Kansas, made actual settlement upon, and improved thereafter the southeast quarter of section thirty-six, township thirty-two, range twenty-nine, west, in Mfeade county, and resided continuously thereon until the 13th day of April, 1886.

<p>1. Entibe Judgment, Suspended by Appeal. The defendant was convicted first before a police judge, and afterward in the district court, for violating an ordinance of a city of the third class, and he then appealed to the supreme court. The sentence was that “ he should pay a fine and the costs of suit, and that he stand committed to the jail of the county until the amount of said fine and costs shall be paid.” Held, That the entire judgment of the district’court, including that portion providing for the imprisonment of the defendant in the county jail, is suspended pending the appeal in the supreme court.</p> <p>2. Impbisonment; Order, Not Erroneous. And further held, in such case, that the order of the district court providing for the imprisonment of the defendant in the county jail, which order is in compliance with $ 1 of chapter 84 of the Laws of 1879, ( Coinp. Laws of 1879, ¶ 943,) is not erroneous, notwithstanding $ 66 of the act relating to cities of the third class, and notwithstanding the fact that the ordinance provided for imprisonment in the city jail and not in the county jail.</p>

Prosecution under § 319 of the crimes act. The defendant, Lewis Wahl, filed a motion to quash the complaint, which motion the court overruled at the May Term, 1886. This ruling the defendant brings here.

Error from, Shawnee District Court. On September 10, 1885, Joseph Erhart, W. S. Gordon, - Rosen, and Mrs. Dushatv, filed their petition against J. B. Billard, alleging that— “ They and each of them are citizens of the city of Topeka, in said .county; that they and each of them own real estate, and reside respectively upon their said real estate, which said real estate and the residences of plaintiffs respectively are situate upon ‘A’ street, (formerly Curtis street,) in said…

Error from Shawnee District Court. Upon the application of Erhart and others, plaintiffs in the preceding cause, the district judge granted a temporary injunction therein, to restrain the defendant, Billard, from committing the acts complained of in their petition.

Prosecution for an assault with iotent to kill. Trial had in October, 1885, when the defendant Smith was convicted of an assault only, and sentenced to pay a fine of $100 and the costs of the prosecution, and to be committed’ to the jail of Brown county until the sentence was complied with. The defendant appeals.

Error from, Atchison District Court. Action'by Stevens against The Missouri Pacific Railway Company, to recover forty-five dollars, the value of a cow alleged to have been killed ou September 18, 1883, by the negligence of the company, upon a public highway about three miles southwest of the city of Atchison. Trial had March 14, 1885, before the court with a jury. Verdict for the plaintiff /or forty-five dollars. The jury also made the following special findings of fact: “1.

Prosecution for bigamy. At the September Term, 1885, tlj.e defendant Chasteen Hughes was tried, found guilty, and sentenced to be confined in the penitentiary for one year. He appeals.

Error from Neosho District Court. Action brought by Bates against Byman, to recover damages for the alleged breach of a certain written contract made between the parties, whereby the defendant agreed to sell and deliver to the plaintiff 500 “bushels of good merchantable corn, at 40 cents per bushel, etc. Trial at the April Term, 1884.

Action for divorce, brought by Margaret Birdzell against Caleb J. Birdzell. The material facts appear in 33 Kas. 433, et seq. The defendant in error filed a motion for a rehearing, which the court decided at its session in October, 1886.

<p>On July 29, 1885, before Thomas J. Noble, a justice of the peace of Ellsworth county, in a certain case of misdemeanor then tried before him, the jury found the defendant, William Bohrer, not guilty; thereupon the justice discharged the defendant, and rendered judgment for all the costs in the case, taxed at $190.57, against T. H. Elrod, the prosecuting witness. Subsequently, the case was heard in the district court of said county, where it was adjudged that the judgment for costs against Elrod be reversed and held for naught. The State brings the case here.</p>

Original Proceedings in Mandamus. Action brought in this court, April 21, 1886, by The State against The Board of Commissioners of Hamilton County, and the county clerk thereof, to compel the defendants to hold their offices at the town of Kendall, which is alleged to be .the county seat of that county. The material facts are stated in the opinion, filed at the October, 1886, session of the court.

<p>Cbiminal Complaint — Public Offense, Charged. A criminal complaint filed in a justice’s court, charging among other things that the defendant, certain articles “ of the goods and chattels of one M. [who is not the defendant], then lately before feloniously stolen, taken and carried away, unlawfully and feloniously did buy and receive,” “ contrary to the statute in such case made and provided,” charges a public offense, although it may not in express terms, -but only impliedly, charge that the property was “ stolen from another ” than the defendant.</p> <p> Appeal from Franklin District Court. ■ </p> <p>Prosecution for unlawfully buying and receiving stolen property. At the January Term, 1886, the defendant Jic-Laughlin was tried, found guilty, and sentenced to pay a fine of $25 and the costs of the prosecution, and to be committed to the county jail until the fine and costs were paid. He appeals.</p>

Error from Anderson District Court. Action begun by 8. J. Groll, to recover upon a promissory note and to foreclose a mortgage given upon a tract of land in Anderson county to secure the payment of the note. J. J. Hoffman, one of the defendants, claimed to have acquired title to the land by tax proceedings, and that the mortgage lien had been extinguished by virtue of a tax deed executed by the county clerk of Anderson county, on the 4th day of November, 1884.

M'ror from Sumner District Court. On March 16, 1882, The Baker Manufacturing Company brought its action against G. W. Knotts and H. Wallace, partners as Knotts & Wallace, for the recovery of two thousand and nine dollars and sixty cents, upon an account for goods, wares and merchandise. Summons was issued and the defendants were legally served.

Error from Atchison District Court. Action by G. C. Hixon & Co, against Seaton and others, to foreclose a mechanics’ lien. Trial at the June Term, 1884, and judgment for plaintiffs. Thé defendants, bring the case here. The material facts, are stated in the opinion.

Error from Labette District Court. Action brought by James T. Finley against Adam Funk, to recover the sum of $300, alleged to be due under a certain agreement, which is set out at length in the petition.

Original Proceedings in Habeas Corpus. On January 12, 1885, there was filed in this court, on behalf of C. F. W. Dassler, a petition for a writ of habeas corpus. The petition sets forth the following facts: “1.

On April 15, 1886, the defendants in error filed a motion for a rehearing, which motion the court overruled at its session in November, 1886.

Error from Atchison District Court. Everest & Waggener, of Atchison, Kansas, brought an action in the district court of Atchison county, against Banks Brothers, to recover damages for the breach of an alleged contract.

Error from Crawford District Court. Action brought by Gorrell & Mosteller against Heatwole, to recover damages for the breach of a certain written contract Trial at the January Term, 1885, and judgment for plaintiffs for $500 and costs. The defendant brings the case here. The opinion states the facts. .

Error from Wyandotte District Court. At the July Term, 1884, plaintiff Fray recovered against the defendant Railway Company a judgment for $4,000, damages for personal injuries. The defendant brings the case-to this court. The material facts are stated in the opinion, and in 77. P. Ply. Co. v. Fray, 31 Kas. 739, et seq.

<p>1. Action, Founded, upon Illegal Transaction. As a general rule, an action which grows out of and is founded upon an illegal transaction, where the plaintiff and defendant are in equal guilt, cannot be maintained.</p> <p>2. Ebaud; Parlies Equally Culpable; No Cause of Action. N. was employe^. by the executors of an estate to sell the property of the estate at public auction, and he entered into a secret agreement with H. to attend the sale and purchase certain horses belonging to the estate for him. In pursuance of the agreement, H. appeared at the sale, and without any notice to those interested in the estate, or to the bystanders, he bid in the horses for N., but in his own name, and paid for them with his own funds. Afterward, the horses came into the possession of N.; and H., claiming the ownership, brings an action of replevin to recover the possession of them. Held, That the conduct of the parties in the purchase and sale of the horses, contravenes public policy and is illegal, and that as the plaintiff’s right of action is founded solely on the illegal transaction, and as he is equally culpable with the defendant, he must fail.</p>

Error from Wabaunsee Bistriot Court. The opinion states the nature of the action, and the facts. Judgment for the defendant JBrayman, at the March Term, 1886. The State brings the case here.-

Prosecution for obstructing a public road. At the April Term, 1886, the defendant Horn was found guilty, and sentenced to pay a fine of $50 and costs. He appeals. The material facts appear in the opinion, and in The State v. Horn, 34 Kas. 556, et seq.

Error from Ottawa District Court. Ejectment, brought by Darcy against McCarthy. Trial at the May Term, 1884, aud judgment for the defendant. The plaintiff brings the case here. The opinion states the material facts.

<p> Error from Diohinson District Court. </p> <p>Action brought by New against Heed, to recover $1,373.50, the alleged value of certain personal property. Trial at the January Term, 1885, and judgment for plaintiff for $1,250. The defendant brings the case to this court. The opinion sufficiently states the facts.</p>

On June 1, 1885, the following information—omitting court, title, and verification—was filed in the district court of’ Osborne county: “ I, the undersigned, county attorney of said county, in the name, by the authority and on behalf of the state of Kansas, give information that on the 19th day of May, 1885, in said county of Osborne and state of Kansas, one John R. Miller, John Cranshaw, and Albert Whitaker, did then and there unlawfully, feloniously, purposely and of their…

Error from Reno 'District Court. Action brought by Roach against The Railroad Company,, to recover the value of certain baggage. , Trial at the September Term, 1884, and judgment for plaintiff for $227.32. The defendant company brings' the case to this court. The opinion .'states the material facts.