Volume 38 — Kansas Reports

Error from Shawnee District Court. Ejectment, by Head against Daniels and Ryan. Trial by the court, and judgment for defendants, on December 28,1885. The plaintiff brings the case here. The facts are substantially stated in the opinion.

Error from Franklin District Court. On May 31, 1884, H. F. Sheldon commenced his action against Robert Atkinson, to recover the immediate possession of the following-described lands and tenements situate in Franklin county: Commencing 935 feet south of the northeast corner of the northeast quarter of section two, in township seventeen, of range nineteen, running thence south forty feet, thence running west to the Southern Kansas Railway, thence running north forty feet,…

Error from Bourbon District Court. On November 13, 1884, the plaintiff in error, who was plaintiff below, filed a petition in the district court of Bourbon county, alleging: “Under and by virtue oí proceedings commenced in the probate court of Bourbon county, Kansas, one John H. Leavitt, who in that proceeding was called Holland Leavitt, was on the 16th day of May, 1884, by the verdict of a jury impaneled to try that issue, declared an insane person and incapable of managing…

<p>Aoiion — Misjoinder of Causes. When the plaintiff’s petition states three separate demands, the first two on promissory notes past due, and the third on an account not due, there is a misjoinder of causes of action.</p>

Error from Cherokee District Court. The opinion states the nature of the action, and the facts. Trial at the April Term, 1886, and judgment for the plaintiffs. The defendant Miller brings the case to this court.

<p> Error from Atchison District Court. </p> <p>Action brought by the defendant in error before a justice of the peace, to recover the value of a trunk and its contents. Trial, and j udgment for the plaintiff. The defendant appealed. Trial by the court, at the June Term, 1885; findings of fact and conclusions of law, and judgment thereon in favor of the plaintiff, defendant in error, for $211.25 and costs. The defendant company brings the case here for review. The opinion states the facts.</p>

Prosecution for bu rglary. Prom a conviction and sentence at the November Term, 1886, the defendant Cash appeals. The facts appear in the opinion.

Error from. Mitchell District Court. Action by McCoy against Huckell, to recover three hogs. Judgment for the plaintiff was rendered in the district court on July 24,1885. The defendant brings the case here. The material facts are stated in the opinion.

Error from Franklin District Court. Action by The Bank against Bodley and two others, to recover upon a promissory note. Judgment for the plaintiff, at the January Term, 1886. The defendants bring the case to this court. The opinion states the facts.

Error from, Shawnee District Court. Action to foreclose a mortgage. Trial at the October Term, 1884, and verdict and judgment for defendant Norris. Defendants, Gabbey and wife, bring the case to this court. The material facts are stated in the opinion.

Error from Nemaha District Court. Action brought by Whittaker against Voorhees, as sheriff of Nemaha county, to recover damages for the alleged wrongful taking and conversion of a stock of goods. At the April Term, 1885, the defendant recovered a judgment. The plaintiff brings the case here. The opinion states the facts.

<p>1. New Tbiae- — Verdict and Special Findings, Inconsistent. When the special findings of a jury are in conflict with the general verdict, and are inconsistent with each other, and are so uncertain and incomplete that this court cannot render judgment on them, it is not error in the court below to grant a new trial for these reasons.</p> <p>2. Juby — Special Questions — Refusal, Error. On an appeal from the award of commissioners on an assessment of damages to land appropriated for the right-of-way of a railroad company, it is error for the trial court, when requested, to refuse to submit special interrogatories to the jury, as to the value of the land immediately before and immediately after the location of the right-of-way. The case of W. & W. Rid. Go. v. Fechheimer, 36 Kas. 45, cited, and approved.</p>

<p> Error from Orawford District Court. </p> <p>Replevin, by Elerick against Braden, as sheriff of Crawford county. Trial at the August Term, 1886, and judgment for defendant. The plaintiff brings the case to this court. The facts are stated in the opinion.</p>

<p> Error from Marshall District Court. </p> <p>Action by Warden against Reser and wife, upon a promissory note, and to foreclose a mortgage given to secure its payment. Trial at the August Term, 1885, and judgment for defendants. The plaintiff brings the case to this court. The material facts are stated in the opinion.</p>

Error from Miami District Cowrt. Ejectment, by McNaughton against Bryan and others. Judgment for plaintiff, at the February Term, 1886. The defendants bring the case here. The opinion contains a statement of the facts.

<p> Error from Reno District Court. </p> <p>The Wichita & Western Railroad Company, by proper proceedings, condemned a strip of land through the farm of Barbara Kuhn, in Sedgwick county, and the commissioners awarded her $510 as damages, from which award she appealed to the district court. The railroad company procured a change of venue from Sedgwick to Reno county. Trial at the May Term, 1885, and verdict and judgment for the plaintiff for $1,593.28. The Company brings the case here.</p>

<p> Error from Sumner Eistriet Court. </p> <p>This cause comes here on the pleadings, verdict, findings of fact, instructions, and the judgment of the court. Trial at the May Term, 1885, and judgment for the defendant in error, plaintiff below. The petition (court and title omitted) is as follows:</p> <p>“The plaintiff says that the defendant is and at all times hereinafter mentioned was a corporation organized under the laws of Kansas, and doing business as a common carrier; that the Wichita & Southwestern Company is and at all times hereinafter mentioned was a corporation organized under the laws of Kansas; that on or about the 1st day of April, 1873, and before the defendant entered into a written contract with the Wichita & Southwestern Railroad Company, whereby the defendant leased the road-bed, depot grounds, side track and rolling stock, and agreed and bound itself to operate the Wichita & Southwestern railroad; that one T. J. Peter was the agent and general manager of the defendant, and in the matters and things hereinafter set out was the agent for said Wichita & Southwestern Railroad Company; that this plaintiff, at the instance and request of said T. J. Peter while so acting for and on behalf of defendant and said Wichita & Southwestern Railroad Company, made, executed and delivered to the Wichita & Southwestern Railroad Company his certain written conveyance, a copy of which is here annexed, marked ‘A,’ and made a part of this petition, whereby he conveyed to the Wichita & Southwestern Railroad Company, its successors and assigns, the rights, privileges and easement to construct a depot and side track, situated in the county of Sedgwick and State of Kansas, on the land described as follows, viz.: Being a strip of land two hundred and seven feet wide, lying along, and adjoining, and parallel with, and on the east side of the line of the west side of an avenue in English addition to Wichita, Kansas, and extending in length from the north line of the southwest quarter of section twenty-one, township twenty-seven, range one east, thirteen hundred feet south; a copy of which is hereto attached, marked ‘A’; that the consideration of the said conveyance was, that this plaintiff should have a life pass, by which he should at all times have the right and privilege, at any and all times he chose so to do, to ri le on any of the trains of said defendant; that said consideration was promised and made by said Peter for and on behalf of defendant, and while so acting for it as its agent in that behalf; that defendant immediately thereafter entered into and upon said real estate, and has at all times held, used and occupied the same, and has in all things satisfied and confirmed the action of said T. J. Peter therein.</p> <p>“This plaintiff further avers that the defendant did, for a long time and up to and including the year 1878, carry out in good faith its agreement, and did issue and deliver to this plaintiff annually its certain annual ticket or pass in writing, whereby it authorized and permitted this plaintiff to ride on any of its trains, which pass on its face in writing stated that it was 'issued on account of depot grounds.’</p> <p>“ This plaintiff further avers that the defendant, notwithstanding its promise and agreement so to do, has since the year ending December 31st, 1878, and still does refuse to issue or deliver to plaintiff any pass to allow plaintiff to ride on defendant’s trains or any of them unless he will agree to pay it for the privilege so to do; that by reason of its so refusing this plaintiff permission to ride on its trains as aforesaid, and by reasons of the premises herein set out, the plaintiff has been damaged in the sum of five thousand dollars, for which he demands judgment and costs of suit.”</p> <p>“A.”</p> <p>“Know all men by these presents, that we, N. A. English and Osie English, his wife, have and by these presents have given and granted unto the Wichita & Southwestern Railroad Company and to its successors and assigns, the right, privilege and easement to construct depots and side tracks upon a tract of land situated in the county of Sedgwick and state of Kansas, and described as follows, to wit: Being a strip of land two -hundred and seven feet wide lying along and adjoining and parallel with and on the east side of the line of the west side of Fifth avenue’ of English’s addition to the city of Wichita, Kansas, and extending in length from the north line of the southwest quarter of section twenty-one, in township twenty-seven, range one east, thirteen hundred feet south, and have and use the land for the purpose aforesaid forever.</p> <p>“In witness whereof, we have hereunto set our hands, this the 13th day of April, 1872.</p> <p>“Witness the hand of N. A. English and hand of Osie A. English, by her attorney in fact, N. A. English.</p> <p>N. A. English.</p> <p>Osie A. English, ■</p> <p> By her attorney, N. A. English.” </p> <p>The foregoing exhibit was duly acknowledged.</p> <p>Questions submitted by counsel for plaintiff, and the answers ■of the jury thereto, are as follows:</p> <p>“1. Who has had the beneficial use and occupation of and received the rents and profits (if any have accrued therefrom) of the land described in the plaintiff’s petition since the making of the deed in the plaintiff’s petition mentioned ?</p> <p>“Ans.: The defendant, the Atchison, Topeka & Santa Fé Railroad Company.</p> <p>“2. If the jury shall find that a contract was made by the plaintiff with the defendant for a life pass, and that said contract was made for the defendant by T. J. Peter, and shall find that said defendant had at the time given said Peter no authority to make such contract, then state whether the defendant has since that time ratified said contract by receiving the beneficent use of the land conveyed, and by issuing to the plaintiff its passes under said contract up to a certain time.</p> <p>“A. The defendant has ratified the action of T. J. Peter in this case by receiving the benefit of said land and using the same; and also by granting passes to plaintiff annually for about six years.”</p> <p>On behalf of the defendant, questions were submitted to the jury, and answered, as follows:</p> <p>“1. Did the defendant ever agree to issue to the plaintiff a pass over its line, annually, for life? The defendant agreed to give plaintiff a pass for life, but issue it annually.</p> <p>“ 2. If so, by whom was said contract made, when was it made, and what was the consideration therefor ? , First, by defendant, through T. J. Peter, of Wichita, Kansas; second, April 15, 1872; third, consideration, the deed in plaintiff’s petition.</p> <p>“ 3. From what point to what point, in the state of Kansas, was the defendant’s line of railroad constructed and in operation at the date of the execution of the deed mentioned and described in plaintiff’s petition ? From Atchison to Newton, Kansas.</p> <p>“4. If, in answer to the first interrogatory, the jury shall find that the agreement therein referred to was made, did that agreement contemplate an annual pass on the Wichita & Southwestern Railroad Company’s line, or was it to be over the line of the defendant railroad ? An annual pass for life over the defendant’s road.</p> <p>“5. If, in answer to the fourth interrogatory, the jury shall say that the pass was to be over the defendant’s line, was the agreement for the pass over the line as then constructed and in operation, or was it to be over the lines then constructed and thereafter to be constructed by it, and did it have any reference to lines then and thereafter leased and operated by it ? The pass to be over all the defendant’s roads that were constructed at the date of the refusal of the pass.</p> <p>“6. What was the distance from the defendant’s line of railway to the point where the lands mentioned in plaintiff’s petition were situated ? We do not know.</p> <p>“ 7. What interest did the defendant have and obtain by the deed mentioned in plaintiff’s petition to the lands therein described ? The right to use it for side track, depot grounds, and other railroad purposes.</p> <p>“ 8. What is the plaintiff worth financially, and what was he worth on the date of the making of the conveyance mentioned in his petition ? First, forty to fifty thousand dollars; second, don’t know.</p> <p>“ 9. How often did the plaintiff ride over the defendant’s line east of Newton, each year while he had a pass, upon business? About twenty-four times.</p> <p>“ 10. How often did the plaintiff ride over the defendant’s line east of Newton, each year while he had a pass, for pleasure ? Two times.</p> <p>“11. How often has the plaintiff ridden over defendant’s line east of Newton, upon business, each year since a pass was refused him, and how much did he pay therefor each trip ? We do not know.</p> <p>“12. How often has the plaintiff ridden over defendant’s line east of Newton each year, for pleasure, since the refusal of the pass, and how much did he pay therefor? We do not know.</p> <p>“ 13. What is the defendant’s business now, and what has been his business since the date of the refusal of his pass? We do not know.”</p> <p>“ 16. Would the plaintiff, if a pass had been issued to him, have traveled over defendant’s line for pleasure more than he has; if so, how often ? We think he would, but can’t say how often.</p> <p>“17. Would the plaintiff, if a pass had been issued to him, have traveled over defendant’s line on business more than he has; if so, how often ? We think he would, but can’t say how often.</p> <p>“18. If the jury shall say that a contract was made by the plaintiff with the defendant for a life pass, was the contract in writing ? No.”</p> <p>“ 21. If the jury shall say that a contract was made by the plaintiff with the defendant for a life pass, and that said contract was made for the defendants by T. J. Peter, state who authorized him, whether the directors, or stockholders, or anyone acting for them. Under the power of T. J. Peter, general manager. We do not know whether by directors or stockholders.</p> <p>“ 22. Who is the owner at this time of the land mentioned in plaintiff’s petition, and who has been the owner thereof since the making of the deed thereon mentioned ? We do not know.”</p> <p>Verdict for plaintiff for $4,541, and judgment thereon.</p> <p>The Railroad Company brings the case to this court.</p>

<p>1. Mechanics’ Lien — Goods Ordered by Contractor. Where mill-owners-contract with A. to change their mill from an old to a new process, and A. agrees to make such change, and .furnish all the material and machinery, and to guarantee results, before said mill-owners are to pay for said work; but A., without the authority or knowledge of' the mill-owners, orders the mill machinery necessary to make said change, of the plaintiffs, in the name of' the mill-owners; and said plaintiffs bill and ship said machinery to said mill-owners, but said machinery is received by A., and placed in the mill; and when the mill is completed, plaintiffs demand payment of the mill-owners for the purchase-price of said machinery, and this demand is the first notice or knowledge said mill-owners have that A. had ordered said mill machinery in their name; and when payment is refused, but more than sixty days after the completion of the mill, plaintiffs file-a mechanics’ lien upon said mill property as contractors furnishing said machinery, and afterward bring this action to foreolOBe said lien: Held, That the court committed no error in finding for the defendants upon said facts.</p> <p>2. Changing Goods to Owneb — Evidence of Custom. And it would make no difference, even if plaintiffs had adopted a custom by which they charged all mill-owners for the machinery ordered by millwrights or contractors, required in changing or repairing mills, unless they also show that such custom was known to the mill-owners, and that they contracted for such repairs with reference thereto.</p> <p>3. Payment of Pbeight — Ratification, When. And the fact that the machinery is billed and shipped to said mill-owners, and the freight bill is paid by them, would not constitute a ratification of A.’s order and purchase in their name, unless, at the time, they also had knowledge that A. had ordered the machinery in their name.</p>

Error from Johnson Distriet, Court. On December 29, 1885, plaintiff below filed his petition in the Johnson county district court against the Atchison, Topeka & Santa Eé Eailroad Company, as follows (court and title omitted): “The said William Sadler, plaintiff herein, complains of the said defendant, the Atchison, Topeka & Santa Eé Eailroad Company, defendant herein, for that the defendant is now and was at the date hereinafter stated a railroad corporation duly organized…

<p> Error from Phillips District Court. </p> <p>W. H. Johnson brought an action in the district court of Phillips county, alleging in substance that he was the occupant and in actual possession of a quarter-section of land in that county under the homestead laws of the United States, and which he had continuously occupied as his homestead, and had cultivated it as a farm. He averred that the Burlington, Kansas & Southwestern Eailroad Company, without his consent, wrongfully entered upon and constructed a line of railroad over the land, and had wrongfully appropriated a portion thereof without in any way compensating him for the injury done. The answer of the railroad company was a general denial. A trial was had at the April Term, 1886, with a jury, and testimony was offered to the effect that Johnson was twenty-six years of age, a citizen of the United States, and entitled to the benefit of the homestead laws of the United States; that on the 19th day of July, 1882, he made a homestead entry on the land in question, and with his family had resided upon and Cultivated the land since that time; that he had built a house and stables, dug two wells, and broken and put in a tillable condition thirty-five acres or more of the land; that in June, 1885, the railroad company constructed its road across the laud and appropriated thirteen and nine-tenths acres; and that, on account of the character of the land, deep excavations and high embankments were made in building the road. It was built in front of the house and stable, the center of the tract being only two hundred and twenty-three feet from the house, and about three hundred feet from the stable, and by reason of deep cuts and high fills and banks, the house and stables were cut off from the timber and water on the other side of the road. There was testimony that the market value of the right of Johnson to the possession and use of the laud under his homestead entry was worth at the rate of from seven to twelve dollars per acre for the land taken, and that the portion not taken was depreciated in value from two hundred to more than six hundred dollars. The court gave the jury the following charge:</p> <p>“ 1. This is an action for damages, brought by the plaintiff against the defendant, on account of the taking and appropriating of a right-of-way embracing thirteen and niue-teuths acres of land, over and across a quarter-section of land, situate in said county and state, and described as follows, to wit: the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter of section four, and the northwest quarter of the northeast quarter and the northeast quarter of the northwest quarter of section nine, township one south, range nineteen west, containing one hundred and sixty acres. The plaintiff claims to be entitled to damages for the taking of such right-of-way by virtue of a homestead entry on said land made July 19, 1882, by him, and his subsequent compliance with the United States laws in relation to acquiring title to the public lands. Under the homestead laws of the general government, a person who is twenty-one years of age and a citizen of the United States, and who has not had the benefit of the homestead laws, is qualified to make a homestead entry on not to- exceed one quarter-section of the public domain, and if the entryman subsequent to such entry continues to reside upon and cultivate his entry and does not at any time abandon his homestead entry for a longer period than six months, hé may, after five years of continuous residence and cultivation, prove up under his entry and obtain a patent for the land from the government. The entryman under the said homestead laws by such entry and subsequent residence and cultivation acquires the right of possession of the land embraced in his entry, the right to use of the same (including the right to grass and a sufficient amount of the timber growing thereon, if any, for firewood, and in the improvement of the land), the fight and ownership of all improvements put upon the land, and the right to acquire a full legal and equitable title thereto. By the act of putting on his homestead entry, the entryman acquires the exclusive right, by continuous residence and cultivation of the land, to obtain the full legal title; and his equities increase from the time of his entry to the expiration of the five years provided for in the government land laws; and if at the end of five years he has complied with the said laws in all particulars, and there is no valid adverse prior claimant, the government issues to him a patent for the land.</p> <p>“2. If you find from the evidence that the plaintiff had a valid homestead entry on the land above described, within the meaning and as explained in the first instruction, at the time of the taking of a right-of-way amounting to thirteen and nine-tenths acres across said land, (the taking of which is admitted by defendant,) and that the same have been damaged by reason thereof, and that such damages have not been paid or settled for, you may then take in consideration the following matters or elements as a basis for fixing the amount of such damages: First, the market value of the possession and use of the strip of ground containing the thirteen and nine-tenths acres taken by the defendant for the right-of-way at the time of the taking, in June, 1885. In this connection you will remember that the company only acquires the perpetual right to use the right-of-way in the operating and maintaining of its road-way, and that the ultimate fee remains in the landowner, and he can use the right-of-way for every purpose not incompatible with, and which does not interfere with, the use thereof, of the defendant, in the operating and maintaining of its road. Second, the difference between the actual market value of the right of possession, use and improvements in the remaining one hundred and forty-six and one-tenth acres immediately before the taking of the right-of-way, and immediately thereafter. Third, seven per cent, interest on the ivnount of damages to the land (if you find from the evidence that it was damaged) from June 29, 1885.</p> <p>“3. In arriving at the amount of damages done to tie plaintiff’s interests in said tract of land, if any, you a>e not to make any allowance for any enhancement of the value thereof, if any, growing out of a knowledge on the part oí' the people or public in the vicinity of the land that defendant-was about to construct a railroad through the neighborhood in which the land is situated. You have a right, and it is your duty, to take into consideration the physical characteristics of the land described in the petition, the uses to which it was put, and, from the nature of things, is suitable for; the course of the railroad across the land; the shape the remaining portion of the land is left in; the convenience or inconvenience of using the portion not taken for the purposes for which the land is used; and the increased liability, if any, of accidental fires from passing trains. On the whole, you may take into consideration all incidental loss, inconvenience and damage, present and prospective, which may be known, or may reasonably be expected to result from the construction and operation of the railroad, in a legal and proper manner.</p> <p>“4. The difference between the fair market value of the property taken as it was before- and after the taking', not the estimate derived from fancy local attachment, or otherwise, which the owner may put upon it, or, on the other hand, the price which it would bring at a forced sale, is the true measure of the owner’s consideration. The use to which the right-of-way is to be put may be considered, but annoyances which do not differ in kind from those suffered by the community in general are not to be taken into consideration. The market value is meant that price at which a similar property is generally sold at the time and in the vicinity of the property in question. You are the exclusive judges of the evidence, of ■what it proves or disproves, and of the credibility of witnesses. In arriving at the weight that ought to be given to the testimony of any witnesses who had testified in this cause, you can take into consideration the interest such witnesses may have, if any, in the result of this case, his disposition to tell t-he truth, opportunities for knowing about the matters and things about which he testifies, and his demeanor while on the witness stand. This case should be tried and determined by you the same as an ordinary case between private parties, and without any reference to the fact that a private person is plaintiff and a corporation is defendant.”</p> <p>The jury returned a verdict in favor of Johnson, fixing the amount of his damages at $454.25; and also answered special questions that were submitted, as follows:</p> <p>“Ques.l.: Do you fina from the evidence that the plaintiff, W. H. Johnson, had a valid homestead placed on the land in question, on July 19, 1882; and was plaintiff over the age of twenty-one years at t-he time he homesteaded said land; and has plaintiff complied with the homestead law? Am.: We do.</p> <p>“Q. 2. Has plaintiff at all times since used said land, and cultivated the same for agricultural purposes? A. Yes.</p> <p>“ Q,. 3. What was the market value of the use and possession of the thirteen and nine-tenths acres of land appropriated by defendant for their right-of-way over said land ? A. $139.</p> <p>“Q,. 4. What was the actual market value of the use and possession of said land as an entire tract just prior to the location of said railroad ? A. $1,1G8.80.</p> <p>“Q,. 5. What was the depreciated market value of the right of use aud possession of the remaining one hundred and forty-six and one-tenth acres, if you find there was depreciated market value on account of location and operating said railroad over said homestead ? A. $293.20.</p> <p>liQ. 6. What amount of interest do you find that plaintiff is entitled to recover on said sum ? A. $23.05.”</p> <p>A motion to set aside the findings of fact and the verdict of the jury, and to grant a new trial, was overruled by the court, and judgment was given in favor of the plaintiff for $454.25. The Company has removed the case to this court.</p>

Original Proceedings in Mandamus. Action brought in the name of the state, on the relation of the attorney general, against all the… Held: relocated at La Crosse, in said county, and at which place all the county officers of said county-kept their offices from said 27th day of February, 1877, until the happening of the events hereinafter mentioned; but defendants say that the said order of the board of commissioners calling an election for the relocation of said county…

<p> Motion for Rehearing. </p> <p>On December 13, 1887, the defendants filed a motion for a rehearing, which the court overruled, at its session in February, 1888, and then filed the following opinion.</p>

<p> Appeal from Davis District Court. </p> <p>At the March Term, 1887, of the district court of Davis county, James Smith was prosecuted upon a charge of murder. The prosecution was based on the following information, caption and verification omitted:</p> <p>“Now comes H. J. Humphrey, county attorney for the county of Davis, in the state of Kansas, and in the district court in and for said Davis county, at the March, 1887, term of said district court, in the name, by the authority, and on behalf of the state of Kansas, information gives that James Smith, on the 16th day of February, 1887, at the county of Davis and state of Kansas, then and there being, did then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, make an assault on one Thomas Hill, and with a certain knife which he, the said James Smith, then and there had and held in his hand, did then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, strike, stab, thrust and cut at, upon, and into the said Thomas Hill, inflicting on the said Thomas Hill, in the abdomen of the said Thomas Hill, one mortal wound, of which said mortal wound the said Thomas Hill thence continually languished until on the 17th day of February, 1887, at the county of Davis and state of Kansas, he died therefrom.</p> <p>“And so said county attorney gives this court information that the said James Smith did., in manner and form aforesaid, feloniously, willfully, deliberately, premeditatedly, aud of his malice aforethought, kill and murder the said Thomas Hill, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”</p> <p>A motion to quash the information was filed by the defendant, upon the grounds: First, that the facts stated in the information did not constitute a public otfense; and second, that the information was not verified according to law. This motion was overruled, and upon a trial with a jury the defendant was convicted of murder in the second degree. Motions for a new trial and in arrest of judgment were filed and overruled, and the defendant was sentenced to confinement at hard labor in the penitentiary for a term of sixteen years from the 21st day of March, 1887. The defendant appeals.</p>

<p> Appeal from, Neosho District Court. </p> <p>On March 31,1887, the county attorney of Neosho county filed the following information (omitting caption and verification ) against Morgan K. Sipe, in the office of the clerk of the district court of that county:</p> <p>“And now comes J. L. Denison, county attorney of Neosho county, in the state of Kansas, who prosecutes for and on behalf of the state of Kansas, in the district court in and for said county and state, and gives the court to understand and be informed:</p> <p>“First Count: That heretofore, to wit, on or about the 1st day of July, 1886, the said Morgan K. Sipe, at the county of Neosho and state of Kansas, and within the jurisdiction of this court, did willfully, unlawfully and feloniously defile one Austa Kinne, by carnally knowing her, she the said Austa • Kinne being then and there a female under the age of eighteen years, confided to the care and protection of said Morgan K. Sipe by A. D. Kinne and Harriet A. Kinne, the father and mother of said Austa Kinne.</p> <p>“Second Count: That the said Morgan K. Sipe, late of the-said county of Neosho and state of Kansas, at the county of Neosho and state of Kansas, and within the jurisdiction of this court, on or about the 1st day of July, 1886, he the said Morgan K. Sipe being then and there a male person over the age of twenty-one years, did obtain illicit connection under promise of marriage with one Austa Kinne, she the said Austa Kinne being then and there a female of good repute, under eighteen years of age; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”</p> <p>The defendant filed his motion to quash, stating among other grounds, a misjoinder of causes of action; that the information joins two distinct felonies, which cannot properly be united; and for defects in the information affecting the substantial rights of the defendant. This motion was overruled, but the court required the state to elect upon which count in the information it would proceed; and thereupon the state elected to try the defendant upon the first count. Subsequently the defendant renewed his motion to quash the first count of the information, upon the ground that it did not state facts sufficient to constitute a public offense. This motion was also overruled. Trial had at the April Term, 1887.</p> <p>On April 9, 1887, the jury returned a verdict of guilty against the defendant as charged in the first count of the information. The defendant duly filed his motion for a new trial, which was overruled on April 29,1887; and thereupon the defendant -was sentenced to hard labor in the penitentiary of the state for the period of twénty-one years, and also adjudged to pay all the costs of the prosecution. The defendant appeals.</p>

<p>1. Jueob — Opinion, Not Formed or Expressed. The evidence in this case does not prove that a certain juror had, before the trial, formed or expressed any opinion with reference to the guilt of the defendant.</p> <p>2. Juey— Questioning Instructions — Judgment, Not Reversed. In a criminal prosecution where the only misconduct of the jury was that after they had retired for deliberation and some time prior to their agreeing upon a verdict, some One or more of the jurors questioned the correctness of the instructions of the court, stating that they were too favorable to the defendant, and afterward the defendant was convicted and sentenced, held, that the judgment of the court below will not be reversed for such misconduct.</p> <p>3. Laboeny — Circumstantial Evidence, Properly Admitted. In a criminal prosecution for larceny where the prosecution has to rely wholly upon circumstantial evidence,' it is not error to prove the acts and accompanying declarations of a third person for the purpose of showing that the larceny was actually committed, and that such third person was one of the guilty persons, where such acts and declarations do not tend in the least to implicate the defendant in the commission of the offense.</p> <p>•4.--No Error. Where the court refuses instructions as asked for, but gives all that were proper to be given in its general charge, held, not error.</p> <p>5. Instbuctions— Rule. As a general rule, where the court properly instructs the jury, except that it omits some matter which might properly be given, no available error is committed, unless the court has been properly requested to instruct with reference to such matter.</p>

<p> Error from, Sumner District Court. </p> <p>Action by Mathes and two others against Keys, to cancel a certain note and a mortgage. On November 5, 1885, the court overruled defendant’s demurrer to plaintiffs’ petition. This ruling defendant brings here for review. The opinion states the case.</p>

<p> Error from Pottawatomie District Court. </p> <p>The case is stated in the opinion.</p>

Error from Saline District Court. Action to vacate a decree of divorce. The opinion states the material facts. The defendant, John Hemphill, brings the case here.

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

Error from Rush District Court. Action brought before a justice of the peace, for the unlawful and forcible entry and detention of real property, and damages for withholding the same. Trial by the justice without a jury, and judgment for the plaintiff for the possession of the premises, and for $69 damages. The defendant removed the cause to the district court, where, on September 17, 1885, the judgment was affirmed. The defendant brings the case to this court for review.

Error from McPherson District Court. Action by The Company against Chinberg, upon a promissory note. Trial at the April Term, 1886, and judgment for plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Wyandotte District Court. Ejectment, by Coates against Rogers. Judgment for plaintiff, at the July Term, 1885. The defendant brings the case here. The opinion states the facts.

Error from Nemaha District Court. The record shows that on December 20, 1859, Joseph Grubb, for value received, sold and assigned to Robert C. Satterlee a certificate of location and the warrant and the land therein described, which was duly recorded January 21,1860. The land mentioned is described as follows, to wit: the northwest quarter of section twelve, township five, range fourteen, in Nemaha county, Kansas.

<p>1. Felony — Trial — Personal Presence of Accused — Error. Section 207 of the criminal code prohibits the trial of any person accused of felony unless he is personally present throughout the trial; and it is therefore error for the court, in a prosecution for felony, to recall the jury and give further instructions while the defendant is absent and under confinement in jail.</p> <p>2. Presence, Not Waived. In such case, the presence and consent of defendant’s counsel did not waive or cure the illegality; nor will a reviewing court inquire whether the additional instructions given were applicable and correct statements of the law.</p>

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

Error from Phillips District Court. The opinion states the case. April 6, 1886, judgment for the plaintiffs. The Railroad Company brings the case to this court.

Error from Atchison District Court. The opinion states the nature of the action, and the facts. Judgment for plaintiff Dulaney, at the February Term, 1886. The defendant Railway Company brings the case here.

<p> Error from Shawnee District Cowrt. </p> <p>Pboceeding to amerce the plaintiff in error, as sheriff of Sedgwick county. The facts are as follows: On June 5,1884, Stephen Franklin recovered a judgment in the district court of Shawnee county against the Topeka Transportation and Omnibus Company, a corporation, for $1,000. On the 15th day of September the plaintiff in said action caused an execution to issue on said judgment, directed to the sheriff of Sedgwick county. On the 16th day of December the execution was returned by the sheriff, which return recited that he could find no property in his county belonging to the judgment debtor. In March, 1886, plaintiff filed his motion in the district court of Shawnee county to amerce the sheriff for his failure to return the execution within sixty days. At this hearing the sheriff was permitted to amend his return to show that he in person never received the execution until the 16th day of December; but the evidence in addition thereto showed (and it was not disputed) that the execution was received by the under-sheriff about the 16th day of September, and by him sought to be served, with the result as stated in the return. And it was also shown that during November the sheriff was absent from the state, and was so absent at the time the return ought to have been made. Upon the hearing in the district court, at the April Term, 1886, the motion was sustained, and judgment rendered against the sheriff for the amount of $1,000, together with $22.65 costs, and $5 additional costs, with 10 per cent, as statutory penalty added thereto. To review this judgment the defendant brings the case here.</p>

Error from Shawnee Superior Court. Ejectment, by Redden against Heil. Judgment for plaintiff, at the October Term, 1885. The defendant brings the case here. The opinion states the facts.

Error from Republic District Court. Replevin by Martha J. Haynes against Reiley and another.. Trial at the June Term, 1886, aud judgment for the plaintiff. The defendants bring the case to this court. The opinion states the facts.

Error from Allen District Court. Action to foreclose a mortgage. Trial by the court, at the November Term, 1885, and judgment for defendant Hottenstein. The plaintiff Northrup brings the case to this court. The material facts are stated in the opinion.

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

Error from Sumner District, Court. Action by Elliott against Reynolds, to recover upon two-promissory notes made by the defendant. Trial at the October Term, 1885, and judgment for defendant. The plaintiff brings the case to this court. The material facts are stated in the opinion.

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

<p>New Tbiae— Delaying Decision — Waiver of Irregularity. Where a motion for a new trial before a justice of the peace is filed the day following the rendition of a verdict, and due notice of the saméis given, the holding of the motion under consideration and for decision by the justice of the peace until the ninth day after the verdict is only an irregularity which may be waived. {Scott v.Kraemer, 37 Kas. 753.)</p>

<p>Special Findings— Contradiction and Inconsistency — Reversal of Judgment. Special findings of a jury must be so contradictory as to material facts, and so inconsistent with the general verdict as to render it impossible for the court to render an intelligent judgment which embraces and harmonizes all the facts found, and necessary to support the judgment before the cause should be reversed because of such contradiction and inconsistency.</p>

Error from Riley District Court. Ejectment, by Henry Dunstan and three others, against Emma James and another, to recover possession of 120 acres of land in Riley county. Trial by the court, at the January Term, 1886.

Error from Shawnee District Court. In 1876, M. F. Schwoertz and Katherine Wolf were married ; both had been married before; Schwoertz had a daughter, Anna; Mrs. Wolf had a son, Henry. After their marriage as aforesaid, they bought lot 71 on Kansas avenue, in the city of Topeka; the deed therefor was executed to the husband.

Error from Greenwood District Court. ■' The opinion states the case. Judgment for defendant, at the December Term, 1885. The plaintiff Company brings the ease here.

Error from Shawnee District Court. Action by Curtis against Stilson and two others, to set aside certain deeds, etc. To plaintiff’s petition the defendants filed a general demurrer, which the court sustained, July 21, 1885. This ruling plaintiff brings here for review. The facts appear in the opinion.

Error from Anderson District Court. On August 26, 1879, the St. Louis, Kansas & Arizona Railway Company, by commissioners duly appointed, condemned fifty lots, and thirty feet of one other lot, all in Chapman’s addition to the city of Garnett, as a right-of-way for said company, and assessed the damages at $227; from which appraisement plaintiff Chapman appealed to the district court. Trial at the September Term, 1885.

Error from Johnson District Court. Action . by Horner against The City,• to recover for excavating a reservoir for water works. At the March Term, 1886, the plaintiff was granted a new trial. The defendant City brings the case to this court. The opinion states the •material facts.

<p> Original Proceeding in Mandamus. </p> <p>The opinion herein, filed at the session of the court in January, 1888, states the material- facts. ' •</p>

Error from Wabaunsee District Court. Action brought December 15, 1880, by Henry M. Weeks aud Joel P. Weeks, against Ephraim H. Sanford, to quiet title to the northeast fractioual quarter of section six, township fourteen, of range twelve, in Wabaunsee county, containing one hundred sixty-one and twenty-eight hundredths acres.

Error from Washington District Court. Action to recover wages for work. Judgment for plaintiff Struve for $12.50, at the June Term, 1886. The defendant Hctah brings the case here. The court below gave the following instructions: “1. The plaintiff claims a balance due him of twelve dollars and fifty 'cents on an account for work in cutting wood and posts.

Error from Shawnee District Court. Action by Woodford against Sarver, to recover for the loss of four steers: Judgment for the plaintiff for $30, at the September Term, 1885. The defendant brings the case here.

Error from, Sedgwick District Court. Action brought by Maggie Willis, as administratrix of the estate of Charles R. Willis, deceased, against The St. Louis, Fort Scott & Wichita Railroad Co., and The Ellsworth, MoPherson, Newton & Southeastern Railway Co., to recover damages for the death of the intestate, Charles R. Willis, her husband, caused, as she alleged, by the negligence of the defendant railroad companies.

Error from Shawnee Superior Court. Action brought by the plaintiff in error to recover the possession of two mares claimed by her by virtue of a chattel mortgage given to her by one Brinzendine, the owner. The action was brought against E. J. Cady, who was a constable, and held and claimed possession of the property in controversy by virtue of an execution issued against Brinzendine. Trial by the court at the April Term, 1886, and judgment rendered for the defendant.

Error from Marion District Court. Action by Kraft against Baxter to quiet the title to certain land, and to restrain the defendant from the commission of certain trespasses thereon. Judgment for defendant, at the February Term, 1885. The plaintiff brings the case to this court. The opinion fully states the facts.

Error from Gh'eenwood District Court. Proceeding in error for the reversal of an order overruling a motion to quash an execution. W. Rierson brought an action against The St. Louis & San Francisco Railway Company to recover damages sustained by reason of the failure of the railway company to construct a cattle-guard where the railway entered ,his premises; and on December 10, 1884, he recovered a judgment of $144.30 as damages, and his costs, taxed at $118.

Error from Shawnee Superior Court. The opinion states the case. Trial at the November Term, 1885, and judgment for defendant. The plaintiff brings the case to this court.

Error from Shawnee Superior Court. Injunction by Ritehie against the City of South Topeha, and others. The opinion contains a substantial statement of the facts. Trial at the November Term, 1886, and judgment for defendants. The plaintiif brings the case to this court.

<p> Motion for Rehearing. </p> <p>The opinion herein was filed at the March, 1888, session of the court.</p>

Error from Shawnee District Court. Action by Higgs against the Topeka City Railway Company, to recover damages for bodily injuries received on October 1, 1885, while plaintiff was a passenger on one of the defendant’s cars. Trial by a jury, at the April Term, 1886. Among the instructions given the jury, are the following: “3.

Prosecution for drunkenness. From a conviction and sentence at the June Term, 1887, the defendant John Brown appeals. The opinion contains a sufficient statement of the facts.

Error from Johnson District Court. Action brought by Benjamin Rice against The Southern Kansas Railway Company on October 31, 1885, to recover as damages the sum of one thousand dollars for being unlawfully assaulted and ejected from a passenger car by the conductor thereof, while returning from Kansas City, Missouri, to Olathe, in this state, the plaintiff at the time having a ticket to ride as a passenger in the car.

Error from Wabaunsee District Court. The opinion states the case. Judgment for plaintiff Gates for $65 and costs, at the July Term, 1885. The defendant Sanford complains, and comes here.

Error from Greenwood District Court. The opinion states the case. At the December Term, 1885, judgment for plaintiff Wash, for $20 and costs, taxed at $600. Defendant Benepe complains, and comes here.

This was an application by C. Wood Davis for a writ of habeas corpus, before the judge of the district court of Sedgwick county.

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

Error from Bourbon District Court. Action by Mosher against Van Fossen and Wilcox, for one-third of the profits from the sale of lot 11, in block 103; in Fort Scott, Kansas. Trial at the May Term, 1886, and verdict and judgment for plaintiff for $249.63. The defendants bring the case here.

Error from Clay Dhtriot Court. The opinion states the case. Judgment for the plaintiff, at the May Term, 1886. The defendant brings the case here.

<p>Pibe — Damages—No Recovery, When. Section 2, chapter 118, Comp. Laws of 1885, does not authorize a recovery against a railroad company for a fire caused by burning dry grass and weeds on its right-of-way in the performance of its duty to prevent an accumulation thereof, when there is no negligence or carelessness on the part of the company, and when the damages claimed are the result of unavoidable accident only.</p>

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

<p>Continuance, Refused; Remark of Court, not Erroneous. Where a plaintiff, by his counsel, asks the court to continue a case after the jury has been called, because of his illness, and who, being sworn, states that he is too ill to be present during the trial, but upon further examination states that he had traveled five miles that day, was able to be about town, and finally testified that he was able and ready to proceed with the trial; and following this he requests the court to further delay the trial in ordei that he may call his witnesses so as to determine whether he would ask for a continuance on account of absent witnesses; and the court thereupon ordered the trial to proceed, remarking that plaintiff’s counsel were trifling with the court: Held, That the remark and action of the court were not unjustifiable nor erroneous.</p>

Action by The Bailroad Company, to recover a certain tax paid by it, tinder protest, on December 19,1885, to wit, a tax of $48.17, for road purposes in Osawkee township. At the May Term, 1886, of the district court of Jefferson county, the court sustained the defendants’ demurrer to the petition. This ruling the plaintiff company brings here for review.

Error from Allen District Court. The opinion states the material facts. At the June Term, 1885, the court sustained the motion of defendants to strike out and dismiss the second cause of action inserted in plaintiff A amended petition. Afterward the defendants demurred to the first cause of action in said petition, for the following reasons: “1.

Original Proceedings in Mandamus. On December 27, 1887, an alternative writ of mandamus was issued out of this court upon a verified petition filed there-’ fin’ on behalf of H. L. Brown, and directed to the board of county commissioners of Rush county, and J. R. Stock, A. C. Lippert and J. E. Ruhl, members of said board, and L. K. Hain, county clerk of said county, commanding them to meet on the 31st day of December, 1887, at the office of the county clerk of Rush county, as…

Error from Linn District Court. The opinion states the case. Judgment for defendants, at the December Term, 1885. The plaintiff brings the case here.

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

Error from Pratt District Court. Action brought in the district court of Pratt county, on February 22, 1886, by Sylvester Smith against H. P. Cooper, under § 1)94 of the civil code, to quiet the title of the plaintiff to certain real estate situated in the city of Saratoga, in said county.

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

Error from Shawnee Superior Court. Action by Ward against Hughes, to recover possession of certain books and a book-case— both valued at $279. Trial at the September Term, 1885.

<p>Obeditob— Not Owner of Property Attached. Where personal property is attached as the property of B., and is claimed by N. as interpleader in the action, and in the evidence introduced it is shown that the property attached was used by B. in cultivating and stocking the farm of N., under a contract which provided that N. was to furnish the money, and B. was to use it in buying such implements and stock as he thought proper, and was given authority to sell the same without consultation with N., but was required from time to time to report all his transactions to N., and to pay him in cash the net proceeds of the farm and net increase of the stock, and at the end of ten years repay in money the amount advanced, less the amount expended upon the farm in per- [ manent improvements, held, that N. was simply a creditor of B., and not the owner of the property attached.</p>

<p> JEk'ror from Shawnee District Court. </p> <p>The opinion states the case.</p>

<p>1. Case Reopened for Evidence, Not Error. Where a plaintiff introduces her evidence and rests her case, and the defendant demurs to the evidence, and while his counsel is making an argument upon the demurrer, the court, over the defendant’s objection, grants leave to the plaintiff to open her case and to introduce further testimony, held, not error; that it is all within the sound judicial discretion of the trial court.</p> <p>2.--Dismissal. A plaintiff, without any order or judgment of the trial court, cannot actually dismiss his case from the court.</p>

Error from, Lyon Listriot Court. Ejectment, brought by Harriet N. Spioer to recover from Sarah C. Howe the east sixty acres of the northwest quarter of section 4, township 19, range 10, situated in the county of Lyon. Plaintiff claimed title through a tax deed executed and recorded February 16,1874, based on a tax sale made on May 3, 1870, for the delinquent taxes of 1869.

The facts of this case are stated in Beaubien v. Hindman, 37 Kas. 227, and in the opinion herein, filed at the session of the court in February, 1888.

Error from Reno District Court. Replevin by Shahan against Smith, as sheriff. Judgment for defendant, at the January Term, 1886. The plaintiff brings the case to this court. The opinion states the material facts.

Error from Leavenworth District Court. Action by Shannon against The Railway Company to recover the value of seven- head of cattle alleged to have -been wrongfully and negligently killed by the defendant company. On May 1, 1886, judgment was rendered- for the plaintiff. The Company -brings the case here. The facts appear in U. P. Ply. Go. v. Shannon, 33 Kas. 446, and in the-opinion, infra.

Error from Gh'eenwood District Court. Application for a- continuance, refused at the December Term, 1885. The defendants, Harlow and wife, bring the case here. The facts are stated in the opinion.

Error from Saline District Court. Action by Wemyss to recover upon certain promissory notes given by the Salt Worhs to him. Among other things set up in defense, the defendant alleged that plaintiff obtained the notes by certain fraudulent representations. Trial at the May Term, 1886; verdict for plaintiff; judgment thereon for $6,594.50 and costs. The defendant brings the case here. The opinion contains a sufficient statement of the facts.

Error from Shawnee District Court. On February 19, 1885, The State of Kansas brought its action against Frank Durein, John R. Mulvane, and Conrad Kreipe, to recover five hundred dollars upon a certain written bond, executed June 10, 1884. Trial had July 1, 1886, before the court without a jury, upon the following agreed statement of facts: “It is stipulated and agreed that the above and foregoing case shall be tried and decided upon the following facts, and none other: “1.

Error from Barber District Court. The facts are stated in the opinion. Judgment for The State, at the May Term, 1886. The defendant Dark brings the case here.

Error from Clay District Court. Action by Hollis against Shaffer, to restrain the defendant from selling windmills, pumps, etc., in certain counties in this state. Trial by the court, at the January Term, 1886, and judgment for defendant. The plaintiff brings the case here. The facts sufficiently appear in the opinion.

<p>1. Ooootihíg-Olaimant Law — Void Proceedings. Where proceedings under the occupying-claimant law have been commenced without request by either party, or a journal entry therefor, held, that such proceedings are without j urisdiction, and void.</p> <p>2. Sidewalk, a Lasting Improvement. Under the occupying-claimant law, the party in possession is entitled to pay for all lasting and valuable improvements, and such improvements would include a sidewalk extending alongside of the property, where the sidewalk was necessary to the property, or when ordered or directed by law, or by the ordinance of a city.</p>

<p> Original Proceedings in Mandamus. </p> <p>At the general election of November 8, 1887, the plaintiff, PT. H. Patten, was a candidate for treasurer of Kiowa county, Kansas, and the plaintiff, W. L. McCord, was a candidate for county clerk of said county. At that election Addison Watson was the opposing candidate for treasurer, and J. H. Morrison for county clerk of said county. The defendants, Q. P. Fullington and J. A. Shepherd, were county commissioners, and Charles Florence was county clerk. They met as a canvassing board on the 11th of November, 1887, to canvass the votes cast at said election, and canvassed the votes cast in eight of the ten municipal townships in said county, but neglected and refused to canvass the votes cast in Reeder and Lincoln, the other two townships. The canvass of the votes of the eight townships showed that H. H. Patten received 707 votes for county treasurer, and A. Watson 652; and for county clerk, McCord received 678 votes, and J. H. Morrison 686 votes; the commissioners declared Patten elected county treasurer, and Morrison county clerk. The vote of the two townships of Reeder and Lincoln would not have changed the result for treasurer, only to increase the majority for Patten; if the votes of these townships had been canvassed, McCord would have received in the aggregate in the county 745, and J. PI. Morrison 730 votes, thus reversing, so far as the office of county clerk was concerned, the result as determined by the county commissioners.</p> <p>The county clerk and the two county commissioners gave as their reason for not canvassing the votes of Reeder and Lincoln townships, that they did not have before them proper and sufficient returns of the election held in those townships. Upon the day following the general election, the proper officers of the respective townships of Reeder and Lincoln brought in the returns of their townships, the poll-books and the ballots, inclosed in a single package, and upon the back of each package was an indorsement showing that it inclosed all the ballots received at the election held in the respective townships. It was established that the county clerk and both of the county commissioners had actual knowledge that these packages inclosed the poll-books of the respective townships, as well as all the ballots received at the election.</p> <p>It is further claimed that McCord was not at the time of the election an elector of Kiowa county, and testimony was offered which developed about this state of facts: McCord first came to Kiowa county in the autumn of 1884, and remained there until the 19th day of May, 1887; then he, with his wife and child, being all the family he had, went to Arkansas, returning on the 18th day of June following, and has ever since resided in the county. His household goods remained at his residence on his farm in Kiowa county. He had sold his cattle and mules before leaving for Arkansas. There was some testimony tending to show that he said he left Kiowa to make his home in Arkansas, with his wife’s father; he denied it, and stated that he simply went there on a visit, with no intention of abandoning his residence in Kansas.</p> <p>Plaintiffs brought this action to compel the board to canvass the votes cast. J. A. Shepherd, in obedience to the alternative writ of mandamus, appeared on the 17th day of December, 1887, at G-reensburg, the county seat of Kiowa county, at the office of the county clerk, to canvass the votes cast at the general election in the two townships in question, but the county clerk and Fullington, the other county commissioner, failed to appear, and no canvass was made.</p> <p>The opinion herein was filed at the session of the court in February, 1888.</p>

Error from Allen District Court. This case was tried by a jury, at the January Term, 1886? of the district court of Allen county. There was a verdict and judgment for the defendant in error for $525. Special questions of fact were submitted to the jury, and answers returned, as follows: “1.

Error from, Johnson District Court. Ejectment, brought by Pilcher against the Railroad Company. A trial was had at the March Term, 1884, resulting in a judgment for defendant, which was reversed by this court. (34 Kas. 46.) Another trial was had, at the March Term, 1886, and judgment for costs rendered against plaintiff. The trial was by court, Hon. S. B., judge pro tern., presiding. The court made the following special findings of fact: “1.

Eh’ror from Barton District Court. The opinion states the nature of the action, and the material facts. Judgment for plaintiffs Child & Livingston, for $295.90 and costs. The defendants O. V. Dodge & Co. bring the case here.

Error from Leavenworth District Court. Action by Douglass against Ruffin, to recover the possession of lots 8 and 9, in block 15, in central addition to the city of Leavenworth. Trial by the. court at the May Term, 1884.

Error from, Republic District Court. Action by The Bank against Lowden and wife, to recover upon a promissory note. Trial by a jury, at the October Term? 1884; verdict for plaintiff for $150 principal and $98.30 interest; new trial refused, and judgment rendered for plaintiff. The defendants bring the case here. The material facts appear in the opinion.

Error from Leavenworth District Court. On or about February 1, 1882, H. D. Rush recovered a judgment in the district court of Leavenworth county against William Gordon upon an account for flour, for the sum of $2,338.56, and costs of suit.

Error from Lincoln District Court. Action by Hardesty against Ball, to recover damages for the erection and maintenance of a dam in the Saline river, and to enjoin the maintenance thereof at such a height as to back water upon and against the plaintiff's mill. 1 Trial by a jury, at the adjourned September Term, 1885, and judgment for the plaintiff for $40 damages, and the injunction disallowed. The defendant brings the case here. The opinion states the facts.

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

<p>1. Mobtgage — Fraud — Practice. Where a mortgage is given and recorded, purporting to be a lien upon land, and it is claimed to be without consideration and in fraud of a judgment creditor, he can by proper proceedings have the validity of such mortgage determined in the courts, before the land is sold on execution.</p> <p>2. Judgment,Debtob — Actual Interest in Land. When a judgment debtor owns land, but by the public records the title appears to be in another, a judgment creditor can maintain an action to ascertain the actual interest of the debtor in the land.</p> <p>3. Execution — Practice. In an action to ascertain the interest of a judgment debtor in land, which is sought to be subjected to execution to satisfy a judgment, it is not necessary that an execution should first be returned unsatisfied, when such debtor is wholly insolvent.</p>

Error from Brown District Court. On April 21,1885, Leander Finley filed his petition against The Missouri Pacific Railway Company, and therein alleged that the said defendant is, and for more than two years last past has been, a railroad corporation duly organized and doing business in the state of Kansas; that during the whole of the year 1884, the said defendant was, ever since has been, and still is engaged in operating a railroad running from the city of Atchison, in…

Error from Cowley District Court. Action by Jordan to recover upon certain township warrants. Trial at the April Term, 1886, and judgment for plaintiff. The' defendant Township brings the case here. The material facts are stated in the opinion.

Error from Saline District Court. Action by Norton against Schippel, to recover damages for malicious prosecution. Trial at the December Term, 1885, and judgment for plaintiff for $1 as exemplary damages, and costs amounting to |545.10. The defendant brings the case here. The facts sufficiently appear in the opinion.

Error from Harvey District Court. In March, 1881, H. M. Stebbins was a resident of the city of Newton, Kansas, a city of the second class, and was then and there the owner of a certain dog alleged to be worth from $50 to $75. On March 14, 1881, Henry Mayer, who was then the marshal of said city, shot and killed the dog aforesaid; and thereupon Stebbins brought this action against Mayer to recover the value thereof.

Original Proceedings in Quo Warranto. This is an original action in the nature of quo warranto, brought in the name of the state, by the county attorney of Leavenworth county, to remove J. H. PEunter from the office of police judge of the city of Leavenworth.

Original Proceedings in Mandamus. This is an original proceeding in mandamus, brought by the attorney general, in the name of the state, to compel the mayor and council of the city of Kansas City, Kansas, to appropriate the necessary amount and to pay the persons employed by the police commissioners of that city as policemen, police officers, and servants of the police department, for their services rendered to the city in the police government thereof.

Original Proceedings in Mandamus. On December 28, 1885, the county board of Osage county made an order submitting to a vote of the qualified electors of the township of Agency, in said county, the question whether or not it would subscribe for three hundred shares of one hundred dollars each, of the capital stock of the Kansas, Nebraska & Dakota Railroad Company, on the condition that said road shall construct and complete its line of railroad of standard gauge, from a point…

Error from Harvey District Court. On May 29, 1885, A. C. Cants brought his action against The Atchison, Topeka & Santa Fé Railroad Company, and in his petition alleged: “That at all times hereinafter mentioned, the defendant was and now is a corporation duly organized under and pursuant to the laws of the state of Kansas, and was the owner of a certain railroad known as the Atchison, Topeka & Santa Fé Railroad, with the tracks, cars, and other appurtenances thereunto…

<p>1. Note — Demand for Payment, When Excused. Where the holder of a negotiable promissory note does not know the place of residence or the business of the maker, and makes diligent inquiry without obtaining knowledge thereof, a demand for payment of the maker is excused if he has the note when due, ready to be presented at the place where it is dated.</p> <p>2. Dishonob — Sufficient Notice to Indorser. Where notice of the dishonor of a note is sent through the mails, directed to the indorser at the post office where the note was dated and indorsed, it will be deemed sufficient when the only evidence about his residence is that he testified he lived in “Jefferson township,” but said nothing, when a witness, concerning his post-office address.</p> <p>3. Contingent Liability, Made Absolute. The placing of “ Waive notice and protest” over the name of an indorser in blank of a promissory note, converts his contingent into an absolute liability.</p> <p>4. Indobsement, Material Alteration Invalidates. Any material alteration, although innocently done, in the indorsement of a promissory note, made without the knowledge of the indorser, invalidates the indorsement.</p>

Error from Johnson District Court. Action by Brown against The Railroad Company, to recover damages for the unlawful expulsion of the plaintiff from a freight train on defendant’s railroad, on the afternoon of the 6th day of November, 1885.

Error from Shawnee District Court. Two actions against John A. Martin, as governor — one by Ingham, to perpetually enjoin the defendant from the performance of certain acts in the organization of Grant county, and especially from declaring Ulysses the temporary county seat thereof; the other, brought in this court by The State, on the relation of George Getty, county attorney of Hamilton county, to compel the governor to organize the county of Kearney, to name Lakin as the…

Prosecution for taking away a female under the age of eighteen years for the purpose of concubinage. From a conviction and sentence on October 10, 1885, the defendant McFarland appeals. The opinion states the case.

M'ror from Shawnee District Court. Action by Webb against Blackman, to recover a retainer as an attorney at law. On May 27, 1886, a judgment for $100 was rendered for the plaintiff. The defendant brings the case here. The opinion states the facts.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed iu this court on January 19, 1888, by Charles Hall, the petitioner claiming that he was unlawfully imprisoned by Lewis Y. Thompson, sheriff of Garfield county. The case is stated in the opinion, filed at the session of the court in March, 1888.

<p>The opinion, filed at the session of the court in March, 1888, contains a sufficient statement of the case.</p>

The case is stated in W. & W. Rid. Co. v. Kuhn, ante, p. 104, et seq. The opinion herein was filed at the session of the court in March, 1888.

Error from, Atchison District Court. Action by Crcdl against the Telegraph Company, to recover damages claimed by reason of the negligence of the defendant in the transmission of a certain message sent from Atchison to Eureka, Kansas, on September 19, 1883. Trial by the eourt at the February Term, 1886, and judgment for the plaintiff for $ 136.10. The defendant company brings the case here. The material facts are stated in the opinion.

<p>Teeegbam; Gross Negligence of Company; Finding, Supported. When a message is delivered to a telegraph company for transmission, very plainly written, and could not be mistaken by any person possessing ordinary eyesight who would examine it with ordinary care, and there is a mistake in the transmission, and a mistake is feared by the person who received it, and at his request the agent at the place where it is received inquires at two relay stations if the message is correctly sent, and is assured from both stations that it is, and there is no explanatory or exculpatory evidence offered on behalf of the telegraph company, a finding of the trial court that the company is guilty of gross negligence is supported by sufficient evidence.</p>

Error from Shawnee District Court. Action brought by Clara E. Arthur against Adam. Hageman, but he having died before answer, the action was revived against Anna, Samuel and Sarah Arthur, as his heirs, and Samuel Arthur as the administrator of his estate. Samuel and Henry Bealls were joined as parties defendant, against whom the plaintiff prayed incidental relief.

Error from Lyon District Court. Action by The State against H. C. Cross, to cancel a certain contract for the sale of 7,520 acres of State Normal School lands, at $3.50 per acre. The State demurred to the second count of defendant’s answer. This demurrer was overruled at the April Term, 1886. The plaintiff brings the case here. The material facts appear in the opinion.

Error from, Butler District Court. On November 1,1884, and prior thereto, Andrew Swiggett was engaged in business in the village of Towanda, Butler county, Kansas, as a retail dealer in general merchandise. He was also largely indebted to various persons and firms, including George Swiggett, bis father, and the two firms of W. W. Johnston & Co., of Wichita, and Patterson, Bell & Co., of Kansas City, Mo.

<p> Appeal from, Marshall District Court. </p> <p>Prosecution for grand larceny. From a conviction and. sentence at the August Term, 1887, the defendant Tilney appeals. The facts appear in the opinion.</p>

Error from, Wabaunsee District Court. Action brought by Fields against Russell, as sheriff of Wabaunsee county, to enjoin the defendant from the collection of a tax levied upon certain personal property of plaintiff.

Error from, Greenwood District Court. On November 1,1881, Shoemaker brought this action against The Railway Company.

Error from Washington District Court. Action brought by C. G. Carleton & Co. against the City of Washington, a city of the third class, to recover $275, alleged to be due upon a contract made between plaintiffs and defendant for the purchase of a hook-and-ladder truck and fixtures.

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

Erro?’ from Osage Distinct Cou?’t. Action to enforce a mechanics’ lien. The opinion contains a sufficient statement of the case. Judgment against defendant Woods, and for defendant Burkdall, on November 16, 1886. The plaintiffs, Deatherage & Ewa?'t, bring the case to this court.

Error from Russell District Court. Replevin, by Graham against Shaw. Trial by the court, at the September Term, 1886, and judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

On May 18, 1887, there was filed in the district court of Ness county the following information, omitting caption and verification: “I, Silas W. Porter, the undersigned, county attorney of said county, in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed that on the 15th day of July, 1885, in said county of Ness and state of Kansas, one James M. Bunker did then and there unlawfully and feloniously,…

Error from Atchison District Court. Abram Nave, James McCord and G. L. Moulton brought au action against The Atchison Street Railway Company, to enjoin the construction of a street railroad along Second street in the city of Atchison, alleging that the plaintiffs had constructed large buildings on that street to be used as wholesale houses and which were adapted to that purpose, and that the construction of the railroad in the manner threatened would necessarily obstruct and…

Error from Franklin District Court. • The opinion states the nature of the action, and the facts. On July 5, 1886, judgment was rendered for the plaintiffs Brant & Beachy, and against the interpleader Johnson, who brings the case here.

Error from Miami District Court. Action to recover upon an undertaking given in an attachment proceeding. On April 25, 1884, Woodward, Faxon & Co. commenced an action against Charles Witascheck, before Wm. H. Maxwell, a justice of the peace of the city of Paola, in Miami county, to recover $275.71. An order of attachment was issued at the same time and levied upon a certain stock of drugs, formerly owned and controlled by Charles Witascheck.

<p> Original Proceedings in Quo Warranto. </p> <p>The opinion states the case.</p>

Error from Jefferson District Court. Action to recover upon a certain promissory note. Trial by the court at the May Term, 1886, and judgment for the plaintiff for $1,211.50, for $145.35 attorney-fee, and for costs. The plaintiff, claiming interest since September 13, 1881, at the rate of twelve per cent, per annum, instead of eight per cent., as allowed by the court, brings the case here.