Volume 37 — Kansas Reports

Error from Leavenworth District Court. Action by William Dunden, as administrator of tbe estate of William Dunden jr., deceased, against The Union Pacific Railway Company, to recover damages for the death of his said son. October 10, 1885, judgment for the plaintiff for $3,000 and costs. The defendant company brings the case here. The opinion states the material facts.

Error from McPherson District Court. Action brought by The State against the sureties on a bond, by them given iu a bastardy proceeding. Trial at the November Term, 1885, and judgment for plaintiff. The defendants bring the case to this court. The opinion sufficiently states the facts.

Error from Sedgwick District Court. The opinion states the nature of the action, and the material facts. July 11, 1885, judgment was rendered for the plaintiff Brown for $972.45. The defendants bring the case here.

<p> Error from, Sedgwick District Court. </p> <p>The opinion contains á sufficient statement of the case.</p>

<p>The opinion states the ease.</p>

Action by Kelley, Mans & Co. upon a promissory note made by P. H. Smith and J. F. Buok to plaintiffs. Buok in defense alleged that he was a surety on the note, and had been released by the extension of time of payment, which defense plaintiffs denied. Trial at the January Term, 1886, of the superior court of Shawnee county. Verdict and judgment for plaintiffs for $609.20. Buok brings the case here.

Error from Chase District Court. Action by Shepherd, Bueher & MeCown against Batts to recover $300, as commission for the sale of a certain farm containing 837 acres. Trial at the December Term, 1885. Verdict for plaintiffs for $283. New trial denied, and judgment on the verdict. The defendant brings the case here. The material facts are stated in the opinion.

Error from, Cowley District Court. Action by The Gas Company against The City, to recover $838.15, with interest thereon from January 15,1885, as rent for certain lamp-posts. The defendant demurred to plaintiff's petition. This demurrer was heard and overruled at the December Term, 1885. To reverse this ruling The City brings the case here. The facts are sufficiently stated in the opinion.

Error from Brown District Court. The facts of this case are stated in Bierer v. Fretz, 32 Kas. 329, et seq., and in the opinion herein. Judgment for defendant at the September Term, 1885. The plaintiffs bring the case here.

<p>1. Summons, Sei~oed in Time. A summons in an action before a justice of the peace, issued and served on the 31st day of October, to appear at 2 o’clock p. m. of the 3d day of November, is served three days before the time of appearance.</p> <p>2. --To contest such a service, the proper motion is, to set aside . the service, not to dismiss the action.</p>

Error from,Osage District Court. Action to quiet- title to certain real estate. Judgment for plaintiff Aten at the August Term, 1885. The defendant Mitchell brings the case here. The opinion states the material facts.

<p> Error from Shawnee District Court. </p> <p>On October 24,1884, IT. K. Tefft, by motion, applied to the district court of Shawnee county, to have the words, “Discharged by virtue of the bankrupt law,” indorsed upon the record of a certain judgment rendered in that court against him, and in favor of JohnD. Knox & Co., on September 12,1877. This motion was heard on November 21,1884, upon an agreed statement of facts, substantially as follows: On December 28, 1876, John D. Knox & Co. sued IT. K. Tefft as an indorser of a certain promissory note,inwhich action hewas duly served with summons, but made default. On March 10, 1877, Tefft duly filed his voluntary petition in bankruptcy, in which this debt was scheduled. On September 12,1877, John D. Knox & Go. obtained against Tefft a judgment, by default, in said action pending in the district court; and on October 31,1877,he obtained his discharge in bankruptcy. John D. Knox & Co. did not make any appearance in said action in the bankruptcy court. There were no assets, and no dividends.</p> <p>The foregoing motion was overruled, to which ruling Tefft excepted, and has brought the case here for review.</p>

Prosecution for murder in the first degree. November 25,1886, the jury found the defendant, Carl McClintock, guilty of murder in the second degree. December 2,1886, the court overruled his motion for a new trial, and sentenced him to imprisonment in the penitentiary for fifteen years. He appeals. The opinion contains a sufficient statement of the case.

Error from Ellsworth District Court. Action by Frank A. Bates against J. A. Wiggin, personally, and as Receiver in the case of Oscar A. Burton v. H. B. Clark, et al., pending in the United States circuit court for the district of Kansas, to recover the possession of the following property, to wit: 142 tons of hay (millet), at $6 per ton; 300 bushels of feed oats, at 25 cents per bu.; 285 bushels of seed oats, at 40 cents per bu.; 275 bushels of rye, at 25 cents per bu.;…

Error from Wabaunsee District Court. The opinion states the nature of the action, and the facts. Trial at the November Term, 1885, and verdict and judgment for The State. The defendant Cordes brings the case to this court.

Erre»'from Sedgwick District Court. The opinion states the case. Trial at the February Term, 1885, when the defendant, Adams, objected to the introduction of any evidence under the plaintiff’s petition. This objection the court sustained, and dismissed the case. Koenig brings the case here.

Error from Graham District Cov/rt. Action brought before a justice of the peace by Mary Shane against J. B. Smith, to recover $207 for work done by plaintiff for defendant from March 1, 1884, to July 1, 1885. Trial, and judgment for plaintiff for $90. The defendant appealed. Trial by the court, at the November Term, 1885. The plaintiff introduced her evidence; the defendant offered no evidence; the court found for the defendant; new trial denied, and judgment accordingly.

Error from Wabaunsee District Court. Action brought by Charles P. Deatherage and William. I. Ewart, under the firm-name of Deatherage & Ewart, against George A. Woods and others, upon an account for lumber and building materials sold to Woods, and to enforce a mechanics’ lien. The statement for the mechanics’ lien, filed in the office of the clerk of the district court, on July 8, 1885, reads as follows: “ Name of owner, George A. Woods.

Error from Wyandotte District Court. Action by Keepers against Bell, to recover $2,000 as damages for malicious prosecution. The transactions out of which the prosecution arose are substantially as follows: Bell sold Keepers a tract of laud, and a barn which the latter was to move upon the land and occupy and maintain as a canning factory, and was to pay as the purchase-price therefor $40 per month until the premises were paid for.

<p> Error from McPherson District Cowl </p> <p>On June 13, 1879, Nichols, Shepard & Company recovered a judgment against D. J. Israel before a justice of the peace of McPherson county, for the sum of $103.75, together with costs, taxed at $4.65. No execution was issued, or other proceeding had in the action until March 23, 1885, when plaintiffs filed a motion before the justice of the peace to revive the judgment, and caused a notice thereof to be served upon Israel. On April 1, 1885, the motion was heard, and overruled. Plaintiffs prosecuted their petition in error to the district court, and on April 30, 1885, that court' reversed the ruling of the justice of the peace, and subsequently revived the judgment of June 13,1879. An exception was taken to this ruling by Israel, who now complains thereof.</p>

Error from, Marion District Court. Ejectment brought by Joseph M. Young against Daniel Weaver. Trial by the court at the March Term, 1885, and finding and judgment for defendant Weaver. Plaintiff demanded a second trial, which was granted. At the June Term, 1885, the plaintiff and E. J. Young filed a motion to substitute the latter as plaintiff in the action in place of Joseph M. Young.

<p>Answer ; Refusal to Permit Amendment, not Error. Where an action is brought against a fire insurance company to recover damages alleged to have been sustained by fire, and the defendant is in default for want of an answer for several months, and afterward, on leave of the court, files an answer; and afterward the trial of the case is had, and had nearly two years after the fire occurred; and after the plaintiff has introduced the principal portion of her testimony, but before she has rested, the defendant asks leave of the court to amend its answer by setting up new matter, and what it claims to be a new, independent and complete defense to the plaintiff’s action, but makes no showing with reference to the delay, or as to whether the defense is true; and the court refuses to permit the amendment to be made: Held, Not error.</p>

<p> Error from Ellsworth District Court. </p> <p>At the October Term, 1885, plaintiff Getty recovered a judgment for $80 against defendant Ransom. He brings the case to this court. The opinion contains a sufficient statement of the facts.</p>

<p>1. Redundant Wobds, Striking Out; Discretion of Court. Where certain words in a petition are immaterial and redundant, the court has a discretion to permit them to remain in the petition, or to order them to be stricken out; and where the court permits them to remain in the petition it does not commit material error.</p> <p>2. --The petition in this case states a cause of action.</p> <p>8. Unieobm Custom; Evidence; No Error. Parties to a contract are presumed to contract with reference to a uniform and well-settled oustom or usage pertaining to the matters concerning which they make the contract, where such custom or usage is not in opposition to well-settled principles of law nor unreasonable; and therefore, held, that the trial court did not err in permitting testimony to be introduced tending to prove a general custom at Wichita, with reference to the method of ascertaining the number of brick in a wall, the contract having been made at Wichita, and not prescribing how the number of the brick in the wall should be ascertained.</p> <p>A Evidence, Competent and Incompetent; Practice. Where testimony, a portion of which is competent and a portion incompetent, is introduced without ob] ection, and afterward the adverse party moves to strike out the whole of it, held, that the court may overrule the motion without committing error.</p> <p>5. Finding by Court, When tó be Made. Where the trial of a case is submitted to the court without a jury, the court may find generally and without stating its conclusions of fact found separately from its conclusions of law, unless requested to find specially before the general finding is made and the judgment rendered thereon.</p>

Error from, Greenwood District Court. The opinion states the case. Trial at the December Term, 1884, and judgment for the defendant Railroad Compa/ny. The plaintiff brings the case here.

Error from Miami District Court. Ejectment, brought by McGannon against Straightlege. Judgment for defendant, at the October Term, 1885. The plaintiff brings the case to this court. The opinion states the facts.

<p>Chattel Mortgage, Executed by Husband; Wife, not Estopped from Claiming Property. Where a husband executes a chattel mortgage upon the property of a wife to secure a debt of the husband without the knowledge or consent of the wife, and before the mortgage becomes due she is informed by the husband of the mortgage, but she does not inform the mortgagee of the fact that she is the owner of the property, and did not consent to the mortgage, but does declare these facts when the mortgagee takes possession of the mortgaged property, held, that the wife is not estopped from setting up her ownership and Tight of possession to the property.</p>

Error from Reno District Court Action by Osear W. Olmstead, executor of the estate of David D. Olmstead, deceased, against The Masonie Mutual Benefit Soeiety of Kansas, upon a policy issued by said society on the life of D. I). Olmstead. Trial at the September Term, 1885, and judgment for the plaintiff. W. J. Olmstead and the other legal representatives and heirs of Jennett Olmstead have brought the case to this court. The opinion contains a sufficient statement of the facts.

Error from Shawnee Superior Court. Action brought by William- Weir against Jonas D. Clark and two others to recover damages for an assault and battery. September 24, 1885, judgment for plaintiff and against defendants for $300 and costs. The defendants bring the case to this court. The facts are sufficiently stated in the opinion.

<p>Judgment, Opened; Order, not Erroneous. A judgment was obtained upon service by publication alone. Subsequently, the defendant applied, under $ 77 of the code, to open up the judgment, and be let in to defend. The application was allowed, and upon the final trial judgment was rendered in favor of the defendant and against the plaintiff. The plaintiff prosecuted his writ of error to the supreme court, claiming that the application and order to open the judgment were made after the lapse of three years, and therefore too late. He attached to his petition in error only a copy of the entries upon the journal of the district court. These entries show that the final action in opening the original judgment was taken by the district court after the lapse of three years from the date of the judgment, but the court recited in the journal “that the defendant gave due and legal notice to the plaintiff of his intention to make his application;” and also recited “that three years had not elapsed since the judgment was rendered.” The application .of the defendant and the notice given by him to the plaintiff were wholly omitted from the record. Held, That upon the record so presented, it does not clearly appear that the application and notice of the defendant were not filed and served within three years from the date of the original judgment; therefore it cannot be said that the order of the district court is erroneous.</p>

M'ror from Bourbon District Court. Ejectment, brought by Hewitt against the Trustees of the African Methodist Episcopal Church, to recover a certain lot in the city of Fort Scott. Trial by the court, at the September Term, 1885, and judgment for defendants, awarding them the lot, subject, however, to plaintiff’s lien for taxes by him paid thereon. The defendants bring the case here. The opinion states the facts.

Error from Franklin District Comí. Action by J. Parkinson & Go. against H. B. Alexander a's principal, and II. G. Gross and two others as sureties, on a certain statutory bond by them given to The Kansas Oity & Emporia Railroad Company. Trial by the court, upon an agreed statement of facts, at the September Term, 1885, and judgment for defendants. The plaintiffs bring the case here. The opinion states the material facts.

Error from Leavenworth District Court. Action by Steivart Van Vliet and Levi Wilson against Robert Halsey, A. C. Van Duyn, as administrator of the estate of Madison Mills, deceased, and five others.

Error from Harper District Court. Action by Swearingen against Howser and another, to recover money. The defendants filed a motion to dissolve an attachment in said action, which had been issued for the plaintiff. This motion was heard June 2, 1885, when the plaintiff asked leave to amend the attachment affidavit. The district judge refused to permit this amendment, and dissolved the attachment. The plaintiff brings the case here. Other facts are stated in the opinion.

Prror from Leavenworth Distriet Court. The opinion states the nature of the action, and the facts. October 10, 1885, judgment was rendered for the plaintiff company for $87.50 and costs. The defendant Geiss brings the case here.

M'ror from Shawnee District Court. M. E. Patee filed a petition in the district court, and alleged substantially that on the 1st day of Juue, 1884, she was the owner… Held: as described in the answer, she would be guilty of contributory negligence, and could not recover. The plaintiff excepted to the rulings of the court upon the instructions refused and given. The verdict and judgment being in favor of the defendant, the plaintiff brings the cáse to this court for review.

Error from Marshall District Court. Action by Carr against Tays and two others, to recover upon a promissory note. Trial at the August Term, 1885, and verdict for plaintiff. New trial denied, and judgment rendered for plaintiff for $425 aud costs. To. reverse this judgment, defendant brings the case here. The facts appear in the opinion.

<p> Error from Neosho District Court. </p> <p>Action brought by Luther C. French against John Stone and others, for the partition of certain land. Judgment for the plaintiff, at the April Term, 1885. The defendant Stone brings the case here. The opinion states the material facts.</p>

Error from Barton District Court. Action by Murdy against Linder, on his answer in a garnishment proceeding had in an action brought before a justice of the peace by Murdy against James A. and S. S. Shields. Judgment for plaintiff on said answer; the defendant appealed to the district court. Trial before E. C. C., judge pro tern, presiding, and a jury, at the adjourned June Term, 1885 ; verdict aud judgment for plaintiff, for $187.77. The defendant brings the case here.

Error from, Shawnee Superior Court. Action in the nature of ejectment, brought by Kate Gillette against Charles N. Dunean, to recover possession of the southwest quarter of the southeast quarter of section twenty-eight, in township twelve, range fifteen, in which the plaintiff alleged that she was the owner in fee of the premises and entitled to their possession, and that the defendant unlawfully kept her out of it; which averments were denied in the answer of the defendant.

Error from Atchison District Court. The opinion states the nature of the action, and the facts. Judgment for the plaintiffs for $3,765.98, at the June Term, 1886. The defendant Railroad Company brings the case here.

Fh'ror from Woodson District Court. On August 26,1884, D. W. Finney brought an action against James J. Davis, to recover $625.62, with interest from August 1, 1884, as a balance claimed to be due on a written contract dated February 9, 1884.

Error from Jackson District Court. Action by Augustus A. Fleming against A. D. Walker and James H. Lowell, to recover damages for the breach of covenants in a certain deed executed by defendants to plaintiff.

<p>Quitclaim Deed — Holder, How not a Bona Fide Purchaser. A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records, or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.</p>

<p>1. ■ Cobpobítion — ■Obligations of Officers. When the offices of vice president and treasurer of a corporation are vested in one person, and at the same time he is the managing and controlling officer of the company, his relations to the creditors and stockholders are of such a character that the utmost good faith towards their interests, and the most scrupulous attention to the affairs of the corporation, are imperatively demanded of him.</p> <p>2.--Inability. The law does not permit such a person to so manage the affairs of the corporation as to result to his own pecuniary advantage;1 and if he speculates with the funds of the company, or buys claims against it at a discount, he must account to its creditors or stockholders for any profit that results from such dealings.</p>

In a bastardy proceeding against George W. Soioders, before H. S. Clark, a justice of the peace of the city of Topeka, the defendant, with Peter Ij.

<p>Wrongful Aots — Railroad Company, not Responsible. Where it appears that the plaintiff, while standing upon the platform of one of the cars of a train, which he was about to enter as a passenger, was knocked ■off and robbed just as the train started, by a person holding a lantern in one hand and a club in the other; and where it does not appear that the person committing the assault and robbery was an ■employé of the railroad company, otherwise than that he carried a lantern with letters on it, and wore a cap with a badge upon it; and where it does not appear that the assault was made in ejecting, or attempting to eject, the plaintiff from the cars by any one connected with the operation of the train, or having any charge of the depot, its grounds, or the road; and where it further appears that the alleged assault was wholly disconnected from any service in which any employé of the railroad company was engaged in: Held, That the railroad company operating the train is not responsible for the wrongful acts committed upon the plaintiff, under a petition charging that the plaintiff was assaulted and injured by the servants and employés operating and controlling a train of the company.</p>

Error from Shawnee Superior Gowrt. On March 23, 1886, the plaintiffs in error filed in the superior court of Shawnee county their petition, which (omitting the title) reads as follows: “The plaintiffs, A. Washburn, H. R. Clark, Thomas White, John Armstrong, H. I).

Prosecution for obtaining money under false pretenses. Verdict, guilty; new trial denied. May 13, 1887, the court sentenced the defendant Metsch to imprisonment for two years in the .state penitentiary, and to pay the costs of the prosecution. He appeals. The facts are sufficiently stated in the opinion.

Prosecution for grand larceny. Erom a conviction and sentence at the February Term, 1887, of the district court of Sumner county, the defendant Dorsey appeals.

Action in the district court of Wabaunsee county by Catherine Hindman against Mary C. Beaubien and four others, to establish and quiet her title to certain lands in that county. Trial by the court, and finding for the plaintiff. New trial denied, and judgment for the plaintiff, on December 23,1884. The defendants bring the case to this court. The opinion contains a sufficient statement of the facts.

<p>1. Demuebee — Ruling, When Reviewed. A party who seeks to have the ruling of the district court on a demurrer to the petition, reviewed in this court, must elect to stand on the demurrer and at once bring the case to this court; or an answer may be filed, and when the case is tried, if it is tried on. the original petition, and then brought here by the party demurring, the ruling on the demurrer will be passed on here.</p> <p>2. Adveese Ruling, When Not Reviewed. If, after an adverse ruling on a demurrer to the petition, the defendant files an answer, he cannot be permitted to file a petition in error in this court to review the adverse ruling; he must await the result of the trial.</p> <p>3. Petition — Sufficiency, When Not Considered. When a demurrer to a petition has been overruled, and the defendant answers, and the plaintiff is then permitted to amend the petition, and to this amended petition the defendant answers, and after a trial is had on the amended pleadings the defendant brings the case here for review, this court will not consider the sufficiency of the original petition.</p>

M'ror from Anderson District Court. The Davis Sewing Machine Company commenced this action against the defendants, E. Cooper, Clark Decker, and J. C. Renzenberger, on several promissory notes made by E. Cooper, and also upon the guaranty bond given by all the defendants to guarantee the payment of all indebtedness between defendant Cooper and plaintiff in the sale of goods, and for which these notes were afterward given.

Error from Jctclcson Distriot Court. Action by Kroth against Bennett and another, to recover for certain services as a witness for defendants. At the November Term, 1885, the court overruled the defendants’ demurrer to the petition, and gave judgment for plaintiff for $10.70 and costs. The defendants bring the case here. The opinion contains a sufficient statement of the facts.

Error'from Trego District Court. Action to restrain the collection of certain taxes. Judgment for the defendants, at the November Term, 1885. The plaintiffs bring the case here.

Hror from Shawnee District Court. Replevin by Harrison against Raper and wife. Judgment for plaintiff, May 21, 1885. The defendants bring the case here. The opinion states the facts.

Error from Franklin District Court. Action by Molitor against Sheldon, to recover damages upon facts stated and covenants of title to, and for quiet and peaceable possession, etc., of lots 27 and 29, in block 2 of Sheldon & Hamblin’s addition to the city of Ottawa. Trial by the court, February 15, 1886; demurrer to plaintiff’s evidence sustained, and judgment for defendant. The plaintiif brings the case here. Other facts are stated in the opinion.

<p>Public Róad — Damages—Practice. Where an appeal is taken by a land-owner from an award of damages allowed for the location of a public road across his lands, Held, that the only question the court has jurisdiction to hear and determine on said appeal is the amount of damages appellant is entitled to. And further Held, That it is no defense to said action that a public road had been previously laid out and established over the same right-of-way.</p>

Error from Lincoln District Court. Action by Badway against Ellis, upon a promissory note. Judgment for defendant, at the March Term, 1885. The plaintiff brings the case to this court. The material facts are stated in the opinion.

Error from, Harvey Distriet Court. Action for a specific performance of a contract for the sale of a certain tract of land. Judgment for the plaintiff, May-berry, at the September Term, 1884. The defendants bring the case here. The material facts are stated in the opinion.

Error from Johnson District Court. Action by Crust against Evans and two others, to recover possession of the W. -J of the N.W. | of sec. 21, tp.14, range 25, in Johnson county. Trial at the November Term, 1885, before I. O. P., judge pro tern., and a jury, and judgment for defendants. Crust brings the case here. The material facts are stated in the opinion.

<p> Error from Wabau/nsee District Court. </p> <p>Ejectment, brought by Murphy and three others against Hindman. Trial at the October Term, 1884, and verdict for plaintiffs. The defendant moved for a .new trial, which was granted. To reverse this ruling, plaintiffs bring the case here. The opinion states the facts.</p>

Error from Shawnee District Court. Action in ejectment, brought by Hall against the plaintiffs in error, on the 28th day of November, 1879. Trial and judgment for the plaintiff, on the 22d day of January, 1880. On the 5th day of March the defendants below filed their demand that said judgment be set aside and a new and second trial be had, as provided by § 599 of the code of civil procedure.

Error from Brown District Court. Action brought by Acker against Kimmie, to recover the purchase-price of a harvester. Trial by a jury, at the January Term, 1885. Judgment for the defendant. Plaintiff brings the case here. . The opinion states the facts.

Error from Dickinson District Court. The opinion states the material facts. At the May Term, 1885, the court dismissed the action by Eisenhouer against Stein, and gave judgment for defendant. The plaintiff brings the case here.

Error from Shawnee District Court. John S. Branner, guardian of the persons aud estates of Anthony N. Brown and other minors, brought this action for said minors on July 24,1885, against Chester Thomas, jr., sheriff of Shawnee county, and A. J. Huntoon, treasurer of that county, to restrain and enjoin them from the collection of taxes levied upon certain agreements for the sale of real estate.

Error from Brown District Court. The opinion states the nature of the action, and the facts. At the September Term, 1885, the court sustained defendants’ demurrer to plaintiffs’ petition. To reverse this ruling the plaintiffs bring the case to this court.

Error from Lyon District Court. Ejectment, brought by Smith against Jones. Judgment for defendant, at the June Term, 1885. Plaintiff brings the case here. The opinion states the facts.

Error from Woodson District Court. D. W. Finney brought an action against- James J. Davis, in the district court of Woodson county. The case was referred, and a full hearing had before the referee at Ida, in Allen county. The referee’s report, together with the evidence and exhibits, was sent to the judge of the district court, who was then at Osage Mission, in Neosho county. Afterward said report was confirmed, and a judgment rendered thereon at Erie, in Neosho county.

<p>Baptism and Bubiad — Error in Admitting Evidence. When by the custom of a religious society a register of baptisms and burials is kept, and a duly-verified copy of the same is offered in evidence to establish that a child registered as having been buried at a certain time is the same one that was registered as having been baptized at an earlier time, and which shows that the entries of baptism and burial were made in different names, its admission, without further evidence tending to show that they were one and the same person, is error.</p>

Error from Wilson District Court. The opinion states the case. Judgment for plaintiff Andrees, at the September Term, 1884. The defendant wife brings the case to this court.

Error from Sedgwick District Court. Action to vacate a judgment rendered by the district court of Sedgwick county, on October 17,1884, in favor of O. J. Love-joy and against Pder Mulvaney, for the sum of $521.01. The petition in this case was filed July 16, 1885, and (omitting title) is as follows: “1.

Error from McPherson District Court. Action by Eberhardt & Sudendorf, to enforce a mechanics’ lien. The opinion states the pleadings, proceedings, and the material facts. At the January Term, 1885, the court rendered certain judgments and declared the respective liens thereof. A new trial was refused defendants, J. E. Hayne>' & Co. They bring the case here.

Error from Wabaunsee District Court. Action by Harris against Pratt, to partition the N. E. -}: of sec. 10, tp. 12, range 13, in Wabaunsee county — plaintiff alleging that he was the owner of an undivided half thereof, and that the defendant was the owner of the other half. The defendant in his answer claimed that he was the owner of the entire tract of land, and alleged that he was in possession thereof Trial by the court, at the March Term, 1885.

Error from Ottawa District Court. Plaintiff in error, plaintiff below, brought this action for the recovery of eighty acres of land in Ottawa county. In his petition he alleged that he was the executor of the last will of Henry Ricket, that by the terms of said will he was to sell the land in controversy, and that defendant wrongfully kept him out of possession of the same.

Error from Shawnee Superior Court. Action brought by Austin against Jones and three others, to recover the possession of certain land in Shawnee county. The defendants answered in substance as stated in the opinion herein.

Error from Anderson District Court. Action by Flint against Dulany and twenty-two others, to quiet his title to certain lands in Anderson county. On September 13, 1881, judgment by default was rendered for plaintiff. Thereafter the judgment against the defendant Wickel was opened, and he was let in to defend. On September 4, 1884, he filed his answer or cross-petition, to which the plaintiff demurred.

Error from Johnson District Court. Action brought by Frank Burke against T. E. Armstrong. An order of attachment was issued therein, and the property in controversy attached as the property of Armstrong. J. B. Johnson, the defendant in error, interpleaded, claiming the property attached. Armstrong made default, and judgment was rendered against him and in favor of the plaintiff for $5,200. The cause on the interplea was submitted to the court, a jury being waived.

Error from Butler District Court. On December 18, 1884, R. H. Cooper brought his action against H. T. Dodson for ten thousand dollars damages for the wrongful conversion of a general stock of merchandise, consisting of hats, caps, boots, shoes, carpets, notions, etc., of the value of six thousand dollars, which the plaintiff alleged he was the owner of on November 27, 1884, at the time the same was seized and taken possession of by the defendant.

Error from Wyandotte District Court. This case was tried before a referee, who made the following report (court and title omitted): “This is an action wherein the plaintiff claims that certain land known as the ‘ Splitlog purchase/ bought in 1878 through the united efforts of plaintiff and defendants, was deeded to defendant M. Shepard Bolles, to be held by him in trust for plaintiff and defendants after certain payments should be made to him, in proportion of four-tenths to…

Prosecution for murder in the first degree. The defendant, Henry Mowry, was charged with the unlawful, willful, deliberate and premeditated killing of James P. Smith, in Cowley county, Kansas, on the 21st day of August, 1885. Trial at the April Term, 1886, of the district court, and conviction of the crime as charged. The defense interposed was insanity and self-defense. New trial denied; judgment in accordance with the verdict. The defendant appeals.

<p> Error from, Jackson District Court. </p> <p>The plaintiffs in error are N. D. Lewis, the father, and William O. Lewis, James B. Lewis, George A. Lewis, and Joseph W. Lewis, his sons, and Elizabeth JR. Locke, his daughter, and A. M. Seaton, a partner in business with N. D. Lewis. On March 20, 1884, the defendant in error, S. K. Linscott, recovered a judgment in the district court of Jackson county, against the firm of Lewis & Seaton, for the sum of $1,172.20, and costs — the judgment bearing interest at the rate of 12 per cent, per annum. The costs now amount to over $100. The action in which this judgment was rendered was founded on promissory notes of Lewis & Seaton, given to Linscott in May, 1883. An execution was issued on this judgment on the 31st of March, 1884, and on the 1st day of April it was levied on the following lands, alleged to, be the property of N. D. Lewis, in Jackson county, to wit: The N. E. ¿ of sec. 7, the N. E. ¿ of sec. 8, the S. E. ¿ of sec. 5, and the E. ¿ of S.W. ¿ of sec. 5 — all in township 7, of range 16. On the 20th day of July, 1883, N. D. Lewis and A. M. Seaton, under the firm-name of Lewis & Seaton, made their promissory note to Bohart, Dillingham & Co., of Kansas City, for $1,000, payable in thirty days, with ten per cent, interest per annum. This note was assigned to the defendant in error Linscott, probably for collection, and on March 20, 1884, a judgment was rendered for the amount remaining due and unpaid on it, in the district court of Jackson county, for $716.40 and costs, with interest at ten per cent, per annum. An execution was issued on this judgment, on the 1st day of April, 1884, and was levied on the above-described lands, alleged to be the property of N. D. Lewis. These lands were appraised at an average price of $20.07 per acre.</p> <p>On January 17, 1884, N. D. Lewis called his children together, and his attorney drew up, and they all signed, the following memorandum:</p> <p>“January 17th, 1884. — N. D. Lewis being in failing health, and in order to throw off the burden of business cares, makes the following disposition of his property and provision for the payment of his just debts, viz.: He owns the following lands in Jackson county: N.W.¿ of sec. 8, township 7, range 16 — homestead; N.E.Jof sec. 7, N. E. ¿ of sec. 8, S.E.Jof sec. 5, E.of S.W. ¿ sec. 5 — town 7, range 16.</p> <p>560 acres.</p> <p>160</p> <p>720</p> <p>“He owns the following property in Colorado: S.W.Jof sec. 19, town 6 south, of range 65 west, and 8. |ofN. E. ¿, and N. of S. E. ¿ of sec., 24, town 6 south, of range 66 west.</p> <p>“He owes in just debts as follows: The sum of $13,225. His homestead in Jackson county above described as the N.W.jfOf sec. 8, town 7, range 16, is estimated to be worth about $7,000. His homestead he will transfer absolutely to his five children by way of advancement, namely, as a gift, provided his wife will consent thereto. The valuation of the remaining real estate in Jackson county, Kansas, is $11,725. The valuation of personal property on said mentioned real estate is $1,500. $11,725</p> <p>1,500</p> <p>$13,225</p> <p>“The debts of said Lewis are $13,225. The design of N. D. Lewis is to make said last-described real estate pay off said just debts. The said Colorado lands are incumbered by a mortgage of about $2,750.</p> <p>The value of said lands is about.................. §3,700</p> <p>The value of the cattle on said ranch is about..... 1,500</p> <p>Making a total of property in Colorado.......... $5,200</p> <p>Less incumbrance on ranch...................... 2,750</p> <p>Actual estate in Colorado........................ 2,450</p> <p>“It is designed to deed and convey the above property in Colorado to Celia Lewis, wife of N. D. Lewis, in consideration of her joining in the conveyance aforesaid if she will do so. The said Celia Lewis has refused to dispose of any Jackson county property, unless she is indemnified with property elsewhere, and the transfer of said Colorado property to her is in justice given her in consideration of the extinguishment of her right elsewhere in the nature of dower, as well as to repay her for moneys and property heretofore advanced by her in the acquisition of the Jackson county property.</p> <p>“We have read over the minutes above made, and here attest to their correctness. By our hands, this 17th day of January, 1884.</p> <p>Nicodemus Lewis.</p> <p>Celia Lewis.</p> <p>William O. Lewis.</p> <p>D. W. C. Locke.</p> <p>J. B. Lewis.</p> <p>Geo. H. Lewis.</p> <p>J. W. Lewis.</p> <p>James H. Lowell.</p> <p>W. S. Hoaglin.”</p> <p>Indorsed: “Memorandum of the transactions of N. D. Lewis with his wife and children.”</p> <p>“a schedule op the debts and liabilities op n. d. lewis.</p> <p>One note and mortgage, dated-•, 18 — , bearing-■ per cent. interest, in favor of Prancis A. White, for................ $3,000</p> <p>One note and mortgage, dated May 3, 1881, bearing 8 per cent. interest, in favor of Mary A. Broddus, for................. 1,500</p> <p>Interest, 80</p> <p>One note in favor of J. H. Wilson, dated about the 1st of January, 1884, with 12 per cent, interest...................... 1,200</p> <p>One note in favor of Holton City Bank, dated January 16,1884, 500</p> <p>One note in favor of Mrs. Clara Nichols...................... 1,320</p> <p>One note given to Sid. Hayden about Eeb. 1,1883 — 12 per cent., 500</p> <p>One note in favor of Valley Palls Bank........................ 1,500</p> <p>One account in favor of Williams & Wenner................... 135</p> <p>One account in favor of G. F. King........................... $130</p> <p>One account in favor of John Knopf.......................... 10</p> <p>One account in favor of Scott & Go........................... 50</p> <p>Miscellaneous accounts, including attorneys’ fees and claims.... 500</p> <p>One note and mortgage in favor of one Newlin, upon lands in Colorado, amounting with interest to...................... 2,800</p> <p>Total..........................................$13,225</p> <p>“We, the undersigned, children of N. D. Lewis, agree severally to assume the payment of the debts hereinbefore scheduled, as follows: (1) the said William O. Lewis, one-fifth thereof; (2) the said James B. Lewis, one-fifth thereof; (3) the said George H. Lewis, one-fifth thereof; (4) the said Joseph W. Lewis, one-fifth thereof; (5) the said I). W. C. Locke, husband of Elizabeth R. Locke, formerly Elizabeth R. Lewis, a daughter of N. D. Lewis, one-fifth thereof — the consideration for said assumption being the transfer to us of lauds of said N. D. Lewis in Jackson county, Kansas, except the homestead or home place of said N. D. Lewis, and the sale and transfer by said N. D. Lewis to the undersigned of all the chattels and personal property belonging to the said N. D. Lewis, and situated and located on the farm of said N. D. Lewis in Jackson county, Kansas, except the household property.</p> <p>“In witness whereof, we have hereunto set our hands, this 18th day of January, 1884. William O. Lewis.</p> <p>George H. Lewis.</p> <p>James B. Lewis.</p> <p>D. W. C. Locke.</p> <p>Joseph W. Lewis.”</p> <p>“contract op sale op personal property prom n. d. lewis to w. o. lewis, et al.</p> <p>“Holton, Kansas, January 18, 1884. — For and in consideration of the sum of fifteen hundred dollars, to mein hand now here paid, I hereby sell, assign, transfer and set over unto William O. Lewis, James B. Lewis, George H. Lewis, Joseph W. Lewis and D. W. C. Locke the following-described personal property, to wit: Two yoke of oxen, four head of horses, one pony, one cow and calf, seven hundred bushels of corn in crib, three sets of double harness, one buggy, one two-horse wagon, all the saw-logs, wood and lumber, and all other personal property on the premises of the undersigned in Jackson county, Kansas, excepting only household goods.</p> <p>N. D. Lewis.</p> <p>Witness: James H. Lowell.”</p> <p>Trial by the court, a jury being waived, at the November Term, 1884. Before the trial the plaintiff made an application to amend the second cause of action in his petition, by interlineation showing that, instead of selling and' assigning this judgment to Linscott for a valuable consideration, Bohart assigned it merely for the purpose of combining the two claims in the present suit. This leave to amend was granted. The court made findings of fact and conclusions of law as follows:</p> <p>“1. The defendants, N. D. Lewis and A. M. Seaton, were copartners, as alleged in the plaintiff’s petition.</p> <p>“ 2. The defendants, N. D. Lewis and A. M. Seaton, for value received, made, executed and delivered to the plaintiff, and to Bohart, Dillingham & Co., all of the promissory notes in the plaintiff’s petition described, in the amounts, at the times, and payable as therein alleged; and said note made to Bohart, Dillingham & Co. was by the payees thereof sold, transferred and indorsed to said W. H. Bohart, as alleged in plaintiff’s petition.</p> <p>“3. Said judgments in favor of plaintiff and in favor of said W. H. Bohart, were duly obtained on said promissory notes against said N. D. Lewis and A. M. Seaton, as alleged in plaintiff’s petition.</p> <p>“4. No part of said judgments, or either of them, has been paid.</p> <p>“5. Executions were duly issued on said judgments, and for want of goods or chattels were each duly levied on the lands in the petition described, and proceedings were had thereon, and the executions returned as stated in the petition.</p> <p>“6. On the 20th day of March, 1884, after the recovery of his said judgment against said N. D. Lewis and A. M. Seaton, the said W. H. Bohart for the purpose of avoiding a multiplicity of suits, by an instrument in writing duly assigned his said judgment to the plaintiff, S. K. Linscott, and thereby duly appointed him, the said S. I-L Linscott, as his true and lawful attorney, to ask, demand and receive and sue out executions, and take all lawful ways for the recovery of the money due or to become due on said judgment, and to acknowledge satisfaction or discharge of the same, upon the understanding and agreement between said Bohart and the plaintiff that the second cause of action in plaintiff’s petition alleged herein should be prosecuted by plaintiff in this action in behalf of said W. H. Bohart — the expenses and costs for which the plaintiff might be liable to be ratably apportioned between and borue by said Bohart and plaintiff, as alleged in plaintiff’s petition herein.</p> <p>“7. On and before the 18th day of January, 1884, the defendant N. D. Lewis was the owner, and seized in fee, of all the following-described premises, situated in the county of Jackson and state of Kansas, to wit: The northeast quarter of section number 7, the northeast quarter of section number 8, the southeast quarter of section number 5, and east half of the southwest quarter of section 5, all in township number 7, of range number 16, containing 560 acres.</p> <p>“8. On January 18,1884, the defendant N. D. Lewis and his wife Celia Lewis, with intent on the part of N. D. Lewis to hinder, delay, and defraud his creditors, and especially the said Linscott and said Bohart, and without sufficient consideration, made, executed, acknowledged, and delivered to defendants William O. Lewis, James B. Lewis, George H. Lewis, Joseph W. Lewis, and Elizabeth R. Locke, who are children of N. D. Lewis and Celia Lewis, a deed for said 560 acres of land, which deed was on the same day recorded in the office of the register of deeds of Jackson county, Kansas. No part of the laud described in said deed was at the date thereof the homestead of the grantors therein.</p> <p>“ 9. Upon the first day of the term of court at which the judgments in favor of said Linscott and said Bohart were rendered, to wit, March 20, 1884, the lands above mentioned were incumbered with mortgages, which are still unsatisfied, and remain liens thereon as follows: One in favor of M. A. Broddus of $1,500, upon said northeast quarter of section number 7, township 7, range 16; and one in favor of F. A. White, of $3,000, upon said southeast quarter, and the east half of the southwest quarter of section number 5, township 7, range 16.</p> <p>“10. Since the commencement of this action, and on or about June 25,1884, the grantees in the deed of N. D. Lewis and wife to their children, conveyed to James PI. Lovrell and A. D. Walker the lands aforesaid, the said Lowell and Walker at the time being fully advised of all the circumstances under which the said N. D. Lewis and Celia Lewis conveyed said lands to their children, and said Lowell and Walker took said land subject to any claim that may be adjudged against the same in this action in favor of the plaintiff and said Bohafit.</p> <p>“11. There is now due on' the judgment in favor of S. K. Linscott, including interest and costs, the sum of $849.65, and on the judgment in favor of Bohart, including interest and costs, the sum of $1,288.20.</p> <p>“12. The said A. M. Beaton is and at the time of the commencement of this action was insolvent, and had no property whereon to levy.”</p> <p>“conclusions of law.</p> <p>“1. The deed set forth in the petition is fraudulent and void as against the rights and claims of the plaintiff and said W. H. Bohart, as said plaintiff hath in his said petition averred.</p> <p>“2. Plaintiff is entitled to a judgment and decree ordering the lands described in the petition, or so much thereof as may be necessary for that purpose, to be appraised and sold subject to the mortgages found to be liens thereon, and the proceeds applied to the amounts due the plaintiff and Bohart on their judgments, and to the costs.”</p> <p>New trial denied, and judgment for plaintiff Linscott. The defendants have brought the case to this court.</p>

Original Proceedings in Mandamus. Petition filed in this court on May 24, 1887, by A. R. Cormack, for a writ of mandamus to compel the register of deeds of Russell county to permit the plaintiff to make a set of abstracts of the titles to real estate in that county; on which petition an alternative writ was by the court granted.

Error from, Cloud District Court. The opinion contains a statement of the facts. Plaintiff Barons brings here for review a certain judgment rendered against him and for defendant Anderson, in the district court, on March 4, 1886.

On November 10, 1886, E. D. Parker died, in the penitentiary, to which he had been sentenced for attempting to kill his wife. This case is in this court to determine the liability of Parker’s estate for the costs of the prosecution. The opinion contains a sufficient statement of the facts.

Error from Johnson District Court. Action to recover damages for personal injuries. Trial at the March Term, 1886, and judgment for the defendant Railway Company. The plaintiff Warren brings the case here. The material facts appear in the opinion.

Error from Clay District Court. The opinion states the nature of the action, and the material facts. At the May Term, 1885, the- plaintiff Ehrhard recovered a judgment against D. M. Osborne & Company for $245 and costs. The defendant Company brings the case here.

Ejectment, brought by Emma B. Stagg against Eugenia D. Campbell and another. The opinion states the case. Judgment for plaintiff, at the December Term, 1885. The defendants bring the case to this court.

On April 28, 1886, the county attorney of Rice county filed an information against the defendant, W. E. Carr, charging him with the crime of criminally libeling one John W. White. The information contains two counts.

Error from Pratt District Court. Ti-iis is the second time this case has been in this court. (34 Kas. 714.) When here before, the order setting aside the temporary injunction was reversed, and the cause remanded for further proceedings in accordance with the views then expressed.

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

Error from Wabaunsee District Court. The opinion states the case. Judgment for defendant Kast, at the November Term, 1885. The plaintiff Toivnship brings the case here.

Error from Franklin District Court. The opinion contains a sufficient statement of the facts. At the January Term, 1886, judgment for plaintiff Taylor for $176.18 and costs. The defendant Company brings the case here.

Error from Marion District Court. Action by The State of Kansas against C. F. Roberts as principal, and L. W. Hutchinson and others as sureties, upon a forfeited recognizance. On December 29, 1885, judgment was rendered for the defendants. The State brings the case to this court. The material facts appear in the opinion.

Error from McPherson District Court. The opinion states the facts. At the November Term, 1885, the court overruled plaintiff’s demurrer to defendant’s answer, and sustained defendant’s demurrer to plaintiff’s reply. To reverse these rulings the plaintiff, Sophia Thorn, brings the case here.

Error from Leavenworth District Court. Action brought by IF. J. Forbes, in a justice’s court, to recover the value of certain hogs killed by the defendant company in the operation of its railway. The defendant made default, and judgment was rendered for the plaintiff for $60 and costs. The defendant appealed to the district court.

Error from, Barton District Court. The opinion states the facts. Judgment for defendants, at the February Term, 1886. The plaintiff brings the case to this court.

Error from, Dickinson District Court. Action by Stickel against Bender, to recover certain real estate. Judgment for the defendant, at the May Term, 1885. The plaintiff brings the case here. The opinion states the material facts.

Error from Marshall District Court. This was an action commenced originally before a justice of the peace by Richard Wellington against Gideon Fitzgerald, on an appeal bond, in which action judgment was rendered by the justice of the peace in favor of Jhe plaintiff, and against the defendant for $300 and costs.

Error from Barton District Court. The opinion states the facts. Trial at the June Term, 1885, and judgment for the plaintiff administratrix for $1,500 and costs. The defendant Company brings the case to this court.

Error from Marion District Court. This action was commenced by the defendants in error upon a note for $275, given by’the plaintiff in error upon a contract of purchase and warranty of a Walter A. Wood twine self-binding harvester. Three trials were had in the court below, resulting in each in a verdict for the'defendant. Each of said ' verdicts was by the court set aside, upon the ground that the same was not sustained by sufficient evidence.

<p>1. Stenogbapheb’s Fee, Taxed as Costs. Section 6, chapter 189, Laws-of 1885, provides that a stenographer’s fee shall be taxed in each case in the district court in any county in which a stenographer may be appointed; such a fee must be taxed as costs in every case in such county, though the stenographer is not called upon to render any services in that particular case.</p> <p>2. Fee, Not a Tax. When a stenographer’s fee is taxed as a part of | g the costs in an action in which no services of a stenographer have been rendered, such an item is not a tax within the purview of § 1, article 11 of the constitution of Kansas. It is a fee to the public, imposed for the purpose of adjusting on an equitable basis as between a suitor and the public, the expense of the administration of justice.</p>

Error from Chase District Court. The opinion states the case. Judgment for defendant Jones, at the December Term, 1885. The plaintiffs bring the ease here.

Error from Smith District Court. On July 11,1884, the board of county commissioners of Smith county established a public, road across the lands of C. C. Labore, Lewis W. Labore, Arthur C. Labore, and others. The commissioners awarded to C. C. Labore $66.67 damages, to Lewis W. Labore $133.33 damages, and to Arthur C. Labore nothing; and these parties severally appealed to the district court.

Error from Norton District Court. Action for specific performance of contract to convey real estate. Trial by the court, at the October Term, 1885. The court made findings of fact and conclusions of law as follows : “ 1.

Error from Chase District Court. Action by Jenkins against Simmons and wife and two others, upon five promissory notes, and to enforce a certain contract made by plaintiff and defendant Simmons in October, 1878; also, to obtain a decree setting aside and canceling the release of a certain mortgage executed by Simmons and wife on their homestead in Chase county, to secure the payment of the notes aforesaid, and for the foreclosure of said mortgage.

Ei'ror from Marion District Court. The note, the subject of this actiou, was given by Joseph Sylvester to the firm of Lockwood, Paddock & Co., and was transferred without indorsement by said firm to the firm of W. C. Lockwood & Co. Afterward, and while the note was the property of W. C. Lockwood & Co., and while both firms were in existence, W. C. Lockwood & Co. wrote the name of Lockwood, Paddock & Co. across the back of said note.

<p> Error from, Wilson District Court. </p> <p>The opinion states the case.</p>

Error from Neosho District Court. Replevin by Ford and another, against Barnhart and two others. Judgment for plaintiffs, at the April Term, 1885. The defendants bring the case here. The opinion states the material facts.

Error from Pawnee District Court. Action brought in the district court of Pawnee county by E. R. Yan Horn and Charles Yan Horn, partners under the firm-name of Van Horn Brothers, against The Great Western Manufacturing Company, of Leavenworth, Kansas, a firm consisting of John Wilson and D. F. Fairchild, to recover $33,200, for alleged loss and damages. Service of summons was made upon Wilson in Pawnee county, and upon Fairchild in Leavenworth county.

Error from, Wyandotte District Court. Action to recover damages for bodily injuries. Trial at the July Term,1885,and judgment for the plaintiff, Alice Agan, for $1,500, and costs. The defendant City brings the case to this court. The opinion states the facts.

Error from Lyon District Court. M. ~W. Gilchrist commenced this action against the city of Emporia to obtain an injunction forbidding it from removing the sidewalk in front of his livery barn in said city. On this sidewalk were two raised platforms, or approaches, extending from his barn to the street.

Error from Greenwood District Court. Action by Birkett against Frederick, to recover damages for the breach of a bond to convey certain lands. Trial at the August Term, 1885, and judgment for plaintiff' for $1,828.10 damages, with $26.25 interest, and for costs. The defendant brings the case here. The facts are substantially stated in the opinion.

Error from, Harvey District Court. This action was tried by the court below without a jury, and on April 6,1885, the court made findings of fact and a conclusion of law as follows, to wit: “findings of fact. “ Prior and up to December 4,1877, one William Hall Mitchell was engaged in the business of retailing drugs, and so forth, at Larned, Kansas, and was largely in debt and wholly insolvent.

Error from Shawnee District Court. Action upon a promissory note. On November 11,1885, a judgment for $307, and costs, was rendered for plaintiff Steele. The defendants, Stiles and Manspeaker, bring the case here. The opinion states the facts.

Error from Allen District Court. Ejectment, brought by Pearson against Ford. At the June Term, 1885, judgment was rendered for the plaintiff for the recovery of the land in controversy, and for $200 damages, and costs. The defendant brings the case here. The material facts are stated in the opinion.

<p>New Trial ; Motion Not Made and Overruled. An objection to a judgment of the district court that it is not supported by the evidence cannot be considered or sustained by the supreme court, unless a motion for a new trial, founded on that ground, has been made and overruled in the district court.</p>

Error from Dickinson District Court. Action brought by George W. Coble against John P. Chellis, now plaintiff in error. The material facts presented by the record are as follows: In 1860,WilliamW. Stickney and Elliott T. Merrick were the joint owners of the land in controversy.

Error from Wyandotte District Court. Action by Jared Cone against The Railroad Company, to recover damages for personal injuries. Trial at the July Term, 1885. The jury found for the plaintiff, and assessed his damages at $50,000, the sum which he prayed for. The jury also made 136 special findings of fact, requested by the defendaut company.

Drror from Wyandotte District Court. This was an action to determine the rights and interest of the parties thereto to certain real estate situated in Wyandotte county, alleged to have been purchased on joint account, and for an accounting between them for the proceeds of the sale of a portion of the real estate, and to set off in severalty to each his respective share of that which remained unsold.

Error from Shawnee Superior Court. This cause was tried in the superior court of Shawnee county, in June, 1885. The defendant in error as plaintiff recovered a judgment for $2,000. He had been employed in the car-shops of the defendant, at Topeka, Kansas, and while sawing truss-rod blocks had his right hand cut off at the wrist.

Error from Bourbon District Court. On December 10, 1884, Francis Fernán filed his petition against The St. Louis, Fort Scott & Wichita Railroad Company, in the district court of Bourbon county, in the words and figures following, (court and title omitted,) to wit: “The plaintiff for cause of action says: “I. That the defendant is a corporation duly organized under and by virtue of the general laws of the state of Kansas. “That the defendant is indebted to this plaintiff upon…

Error from Bourbon District Court. The opinion' states the case. The plaintiff demurred to defendant’s answer. On December 21, 1885, the court overruled the demurrer. This ruling the plaintiff brings here for review.

Motion for Rehearing. The defendant filed a motion for a rehearing, which the court overruled at its session in January, 1888.

The plaintiff in error filed a motion for a rehearing, which the court sustained at its session in January, 1888. (See C. B. U. P. Rid. Co. v. Andrews, ante, p. 162.)

Prosecution for a violation of the prohibitory liquor law. From a judgment against him at the June Term, 1887, the defendant Standish appeals. The material facts are stated in the opinion.

Error from Shawnee District Court. Replevin by Ament against Cady. Judgment for defendant, at the January Term, 1886. The plaintiff brings the case here. The material facts appear in the opinion.

Error from Hamilton District Court. The opinion states the case. Trial before S.M.T., judge pro tern., and judgment on June 1, 1886, for plaintiffs, Pratt & Ellis, for $85 debt, and costs. The defendant Krouse brings the case to this court.

Error from Saline District Court. June 3,1885, the defendant Board of Commissioners recovered a judgment against plaintiff Byington, who brings the case here. The opinion states the facts.

<p> Error from Allen District Court. </p> <p>Ejectment, by Thrasher against Geer and wife. November 14,1885, the court adjudged certain taxes paid by plaintiff to be a lien on the land in controversy. To reverse this judgment the defendants bring the case to this court. The opinion contains a sufficient statement of the facts.</p>

Error from Osborne District Court. Action hj Reasoner against Wilson, to set aside two tax deeds. Trial by the court, at the February Term, 1886, and judgment for plaintiff. The defendant brings the case here. The material facts are stated in the opinion.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court October 24, 1887. The opinion herein was filed at the December, 1887, session of the court.

Error from Clay District Court. This was an action brought by the defendant in error to partition a tract of land situated in Clay county, Kansas, alleged to be owned in common by the plaintiff and defendant.

Error from, Crawford District Court. This was an action brought by the plaintiff in error before a justice of the peace in Crawford county, to recover the possession of certain personal property.

Error from Franlclin District Court. At the April Term, 1886, Hardie recovered a judgment for $305.53 against The Insurance Company. The defendant company brings the case here. The material facts are stated in the opinion.

M’ror from Shawnee Superior Court. Action to recover a commission for selling land. Trial at the June Term, 1885. Verdict and judgment for plaintiffs, M. E. Fowler & Co., for $500. The defendant, Stewart, brings the case here. The material facts are stated in the opinion.

Error from McPherson District Court. Action to restrain the collection of certain taxes. The plaintiff Railway Company brings the case here to reverse a judgment rendered against it at the April Term, 1886.

Error from Shawnee Superior Court. Action to recover damages for malicious prosecution. April 3,1886, judgment for plaintiff Matthews. The defendant Bell brings the case here. The material facts are stated in the opinion.

Error from Rice District Court. On October 27, 1885, Roger Cain commenced an action against George Bubb and Joseph Herdock, before John Van Patten, a justice of the peace of Sterling township, Rice county, for the recovery of $200.

Frror from. Pottawatomie District Court. The opinion states the nature of the action, and the material facts. Trial by the court, at the June Term, 1885, and judgment for defendants. The plaintiffs, Weil & Co., bring the case to this court.

<p>1. Teaok and Bbidges; Duty of Company. It is the duty of a railroad company to so construct its tracks and bridges as will make them safe for its employes to perform their duties; and a party entering its service has a right to assume that this obligation has been discharged.</p> <p>2. Employe — Hazards—■ Extent of Knowledge. When an employé enters the service of a company he assumes all ordinary hazards incident to such service, and also other perils of which he had knowledge; but the conductor of a train is not required to know of all defects and obstructions that may exist on the road over which he runs.</p> <p>3. Defect — Known to Company, Unknown to Employe — Inability. In an action by a conductor of a freight train for injuries received while in the service of a company, it was shown that while engaged in the performance of duty on the top of a car, and while the train was passing through a bridge, he collided with the overhead timbers, some of the braces of which were not sufficiently high to clear a man’s head when standing erect on the top of an ordinary car, and thereby suffered the injuries complained of. Held, That the company having knowledge, and the conductor not knowing, nor having reasonable opportunity to know, of the defect, a liability arises against the company, and in favor of the conductor, for the injuries sustained.</p> <p>4. Oedinaby Oabe — Injury—■ Finding, not Disturbed. Although the conductor had passed over the bridge daily for three months, he stated that he did not know of the dangerous proximity of the braces to the top of the cars, to which position his duties seldom called him; that he had ridden on top of the cars only once prior to the accident; and it being shown that a person could stand on one part of the roof of a car with safety, while if standing on another part he would collide with the braces of the bridge; and it was further shown to be vory difficult to determine with accuracy the distance between the top of the moving car and the overhead timbers of the bridge: Held, That whether the conductor acted with ordinary care at the time of the injury was a proper question for the determination of the jury, and its finding that he did ought not to be disturbed.</p> <p>5. Misconduct of Counsel; Review, When. To properly present the question of misconduct of counsel, in argument, to the supreme court, objections should be made to the alleged improper language, and a ruling had thereon by the trial court; and generally, when this is not done, no review of the question can be had.</p>

Error from Wyandotte District Court. This case was tried by a jury, at the December Term, 1886, of the district court of Wyandotte county. The material facts are stated in the opinion and in the special findings of the jury. The plaintiff asked the court to instruct the jury as follows: “1.

Error from Wabaunsee District Court. The plaintiffs in error commenced an action on January 20, 1886, before a justice of the peace, upon a promissory note, of which the following is a copy, together with all the indorsements thereon, viz.: “$ — .

Error from. Sedgwick District Court. The defendant in error, plaintiff below, brought this action against the plaintiff in error in the district court of Sedgwick county.

Error from Franklin District Court. Replevin by Watson against Service and others. Judgment for the plaintiff, at the January Term, 1886. The defendants bring the case here. The material facts appear in the opinion.

Original Proceedings in Mandamus. Proceeding in this court to compel a justice of the peace to issue an execution upon a judgment rendered by him. The petition herein was filed July 23,1886, and the opinion at the session of the court in December, 1887.

Error from Johnson District Court. The opinion states the case. The plaintiff, Clark, brings here for review an order made on April 3,1886, discharging an attachment.

<p>1. Mandamus; Waiver and Stipulation; Practice. Where money that is due to the plaintiff is in the hands of a treasurer of a county, and the treasurer refuses to pay the same, and the plaintiff files his application for a writ of mandamus to compel the treasurer to refund the money, and the treasurer waives the issuance of an alternative writ, and signs and files a written stipulation that the facts stated in the application are true, and that he will consent to the issuance of a peremptory writ if the court finds the law of the ease in favor of the plaintiff, and subsequently, upon the hearing, the court does find that the treasurer owes the plaintiff the money demanded, and that the law of the case is with the plaintiff, held, after such waiver and stipulation the defendant cannot insist that the plaintiff must seek some other remedy than mandamus for the recovery of the money demanded. Held further, That upon the waiver and stipulation of the treasurer, and the findings of the trial court, judgment should be rendered in favor of the plaintiff for the issuance of the peremptory writ.</p> <p>2. Taxes — Redemption—Mandamus—Writ Refused. Where the owner of land sold for taxes is entitled to a redemption certificate upon paying the amount for which the land was sold, and all subsequent taxes, charges, and interest; and upon such tender being made, the treasurer refuses to execute to the owner offering to redeem the land a redemption certificate, as providedby law; and thereafter the owner obtains a peremptory writ of mandamus compelling the treasurer to execute to him a certificate of redemption, upon the payment of all taxes, charges, and interest, to the date of the tender; but subsequently the owner withdraws his tender and refuses to pay the taxes, charges and interest mentioned in the judgment, and then files a motion for the peremptory writ to issue in accordance with the judgment rendered: Held, Upon a further hearing, the court properly refused to grant the writ, unless the taxes, charges and interest to the date of the issuance of the redemption certificate were paid.</p>

Error from Miami District Court. This action was commenced by defendant in error to quiet his title to a quarter-section of land situate in Miami county.

Error from Miami District Court. The opinion states the facts. Judgment for plaintiff Dye, at the October Term, 1885. The defendant brings the case to this court.

Error from, Shawnee Superior Court. Action to recover damages for a malicious prosecution, brought against The A. T. & S. F. Rid. Co. and William Higgins, in the superior court of Shawnee county.