Volume 4 — Kansas Reports

Error from Leavenworth Ooimty. TRe facts of the case are as follows : The plaintiff in error filed Ris petition in the district court for LeavenwortR county, on tRe 25tR day of November, 1859, setting forth that, on the 4th of June, ’56, defendant, Rees, claiming to be the owner of lots one and two, block six, in Clark & Rees’s addition to Leavenworth City, executed and delivered to.one Elijah S. Wilhite an instrument^ of which the following is a copy of the body: “Know all…

Error from Wyandotte Comity. This action was originally brought by the plaintiff in error, in the probate court,' to recover money received by George Clark in his lifetime, as guardian of a Wyandotte Indian named Joseph Arms. The plaintiff in error was appointed administrator of Arms, deceased, and defendants in error, Armstrong and Walker, Were appointed administrators of Clark.

Error from Coffey County. This action was brought for the recovery of a salary, on an article of agreement containing stipulations to be performed by each- party, at certain times specified. The answer contained a general denial, allegations that plaintiff below had not performed the stipulations on his part, and counter-claims of damages arising from different violations of the agreement. A reply thereto, denying generally the allegations of the answer, was filed.

Error from Atchison Comity. Tbe facts of tlie case are set forth in the subjoined opinion of the court. 1. The answers unverified were not nullities; plaintiffs should have.- moved to strike them out at the first opportunity. They cannot lie by until trial, and then deprive defendants of their defense, by objecting to testimony. Sioan’s PI., 221; Wash PI., 97; 2 Code J¿., 16; 4 Wow. P., 153. 2.

Criminal Appeal from Leavenworth County. A statement of the facts of the case may be found in the subjoined opinion of the court. 1. The question raised by the record in this case is, “Whether the courts of this state have cognizance of a larceny committed upon the military reservation of the United States known as Fort Leavenworth ?” The state claims that her jurisdiction over the reserve is 1. Exclusive; or, 2. Concurrent.

Error from Marshall Qounty. The plaintiff in error, Trosper, sued the administrator in probate court, to enforce the specific performance of a contract of tlie decedent, and obtained a decree of tbe probate court in bis favor. Tbe administrator, appealed to tbe district court of tbe county, and a new petition was filed.

Criminal Appeal from Miami County. Tlie opinion contains a full statement of the facts of the case. 1. An Indian is not a citizen, but a domestic subject, 7 Opin.Att’y Gen] l, 746 ; Acts 39fh Congress, PamupTi., p. 27. 2. The laws of Kansas declaring certain Indians citizens, for the purpose of suing and being sued, are in contravention of the laws and treaties of the United States, and of no force. Comp. L., 602. 3.

Criminal Appeal from Wyandotte County. The appellant in this case was tried in Wyandotte county, on an information originally filed against him before the criminal court of Leavenworth county, and taken to Wyandotte for trial on a change of venue.

Error from Leavenworth' County. The principal questions involved in the case, grew out of these facts: Brown executed, and, on Oct. 21st, 1859, delivered to one Mundee, an article whereby, “in consideration of a certain promissory note, bearing even date with these presents, for $1,500, payable twelve months after date, executed in my [Brown’s] favor by Chas. Mundee, and in further consideration of one dollar to me in hand paid by Chas.

Criminal Appeal from Morris County. The following is the body of the indictment in the court below. The subj oined opinion contains a further statement of the proceedings under it: “The State of Kansas v. Albert Hagan. ‘ ‘Selling intoxicating liquors without having alicense.

Error from Douglas County. The facts of the case, found by the court below, are as follows : “ That on the 7th day of November, A. D. 1864, one Edward R. Jennings and one Thaddeus Prentice laid a wager of one hundred dollars a side on the result of the election for governor of the State of Kansas, which election was to take place on the 8th day of November, A. D. 1864, and deposited the money in the hands of the said defendant as a stakeholder; that the money which the said…

<p> Error from, Douglas Qounty. </p> <p>The facts of this case are similar to those in the pre-' ceding case of Reynolds v. McKinney — both having grown out of the same transaction, and this presenting “the other horn of the dilemma.” This action was brought after the garnishment by McKinney.</p> <p>it was submitted:</p> <p>There was no evidence on the trial, and no finding as to who was electéd governor; nothing was known as to the result of the election bet upon, the 'official canvass not having taken place. The bet was an illegal contract, and executory, and the plaintiff might recover back from the defendant at any time before the contract was executed.</p> <p>“A bet involving an inquiry into the validity of the election of a public officer is illegal and void on principles of public policy.” {Bunn v. Biker, 4 Johns., 426; Lansing v. Lansing, 8 Johns., 454; Fischer v. Yates, 11 Johns., 23; Denniston v. Qook, 12 Johns., 376; Bust v. Gott, 9 Qow., 169; Wheeler v. Spencer, 15 0<m, 28 ; Stoddard v. Martin, 1 Angelí, 1; Tarleton v. Baker, 18 • TA, 9; Smith v. McMasters, 2 Brown's [Penn.~\ Q. P. Rep., 182.) “And money paid on an illegal contract may be recovered back while the contract is executory.” {Busty. Gott, 9 Qow., 175;' Morgan v. Groff, A Barb. Rep., 524.) “If the loser claim money he has deposited on an illegal wager, and claim it even after the wager is decided against him, but before it is actually paid over, the stakeholder is bound to return it to him.” This seems to have been held by the courts of most of the states in the Union. 2 Par. on Qon., 139; Dunlap's Paley's Agency, 66; Yischer f. Yates, 11 Johns., 23; Stacy y. Foss, 19 Maine R., 335 ; Tarleton v. Baker, 18 Yt. (3 Washb.), 9 { Wheeler v. Spencer, 15 Qonn. Rep., 28; Moore v. Trlppe, 1 Spencer {JY. J.,) 263 ; McAlister v. Hoffman, 16 Serg. and Rawle {Penn.,) 147; Forrest v. Hart, 3 Murphy (IF. O'.,) 458; Woody. Wood, ib., 472; Bates v. Lancaster, 10 Humph. {Tenn.), 138; Perkins y. Hyde, 6 Yerg. {Tenn.), 288; Shackleford v. Wood, 3 Ala., 37; Wood v. Duncan, 9 Port. {Ala.), 227; Jeffrey v. Ficklin, 3 Pike {Ark.), 227; Humphreys v. McGee, 13 Mis., 435; Merritt v. Neill, Wright's Ohio Rep., 472.</p> <p>But there was no wager at the time plaintiff demanded his money, the money deposited by Prentice having been attached and taken into the custody of the law, and leaving the money deposited by plaintiff alone in the hands of the stakeholder, and alone liable to any risk. The risk on the part of said Prentice had ceased, so far as the wager was concerned. As the case then stood, if the plaintiff won, he would receive nothing of the money deposited by the other side ; but if he lost, the other party to the wager would receive the money deposited by him. The risk was all on the plaintiff’s side. In order to constitute a wager, there must be a risk by both parties. Quarles v. The State, 5 Humph--, 561.</p> <p>• The wager having been rescinded by the attachment, on the part of Prentice, the defendant was simply holding the plaintiff’s money in trust, and was bound to return it on demand.</p> <p>If it is claimed that the stakeholder is in pari delicto, and for that reason recovery cannot be had against him, we answer that even where all parties are in pari delicto, and the contract is still executory, and “ either party paying the money is desirous of rescinding the contract, he may do so and recover back his money.” ‘ ‘A distinction is taken where the action is in affirmance of an illegal contract, and the object of which is to enforce its performance ; and where the action proceeds in disaffirmance of such a contract, and on the ground that it is void, and seeks to prevent the defendant from retaining the benefit which he has derived from an unlawful act.” Morgan v. Groff, 4 Barb., 527, and cases there cited.</p> <p>But the defendant is not in pari delicto, because he is in no way beneficially interested in the result of the wager.. Dunlap's Daley's Agency, p. <dl,and note-, Yischér v. Yates, 11 Johns., 23.</p> <p>submitted:</p> <p>1. The laying of the wager and the depositing of the money were two distinct contracts — the one between the plaintiff and Thaddeus Prentice, the other between defendant and the said plaintiff and Prentice. The contract of defendant in error was to pay over to the winning party.</p> <p>2. The agreement between plaintiff and Prentice is fully executed by the payment of the 'stake to the stakeholder. The money is then placed beyond the control of either party betting. Story Agency, § 344 ; Tates v. Fort, 1 Johns., 1; Murdoch v. Kelborne, 6 Williamson, 408.</p> <p>3. The money having been paid over by the parties to the wager, and their agreement executed, no action would lie by either party to recover his share, both being in pari delicto. Story’ s Agency, §§ 422, 344,195, 186, 225; Story’s Conjl. L., §§240, 241, 248 ; 4 Barb., — ; 115 Jfyns., 1; 7 Johns., 23,' 434.</p> <p>4. The agreement by which defendant became a stakeholder is in violation of law — a criminal offense. The criminality consists, not in paying over the stakes, but in receiving them and becoming a stakeholder. Comp. L., 335, § 242; 17Mass., 258; 13 Pick., 518, 521; 5 Mass., 395; 12 Mete., 397.</p> <p>5. The illegal contract, whereby defendant became a stakeholder, was completely executed. 5 Mass., 395 ; 17 id., 258 ; 12 Mete., 397; 13 Pick., 518.</p> <p>6. The plaintiff having induced defendant to violate the law, is in pari delicto with him, and cannot now rescind the illegal contract, nor invoke courts of justice to interpose to the restoration of his money for his co-offender. Yiolations of law will not be thus encouraged.</p>

Error from Shawnee County. The case at Bar was one Brought By relator for a mandamus against the treasurer of the county of Shawnee, to compel him to assign a certificate of land sold for taxes on the 4th of May, 1864, for the delinquent taxes of 1863. The application was made under § 9, chap. 37, L. ’64, p. 72, and under §§74, 88, act of Feb. 27, ’66, on taxes.

<p> Criminal Appeal from Jefferson County. </p> <p>The facts sufficiently appear in the subjoined opinion :</p>

No particular statement of facts seems called for in this case, in order that the point decided may be apparent. filed a brief on the merits of the action.

Error from Marshall County. The facts of the case sufficiently appear in the opinion of the court. 1. The sheriff’s return, showing the appraisers to have been householders and residents of the county, was conclusive. Koehler v. Ball, Kans. R.; 2 Ohio R., 360 ; 15 U. S. Big., 498 ; 4Mass., 478 ; 10 id., 313 ; 11 id., 163; 17 id., 433 ; 24Mo., 590 ; 7 Piclc., 555 ; 19 Maine, 278 ; 6 if. II., 393 ; 8 Pide., 204. 2.

Error from Atchison County. The city of Atchison was organized as a corporation under a special act of the territorial legislature. After the adoption of the constitution of the state, Jan. 25th, 1866 {L. ’66, p>. 120), the city charter was amended, among other things, in respect to the mode of collecting assessments for improving streets, as to change the rate and proportionate bearing upon the property. An injunction was granted by the court below.

Criminal Appeal from Miami County. The facts of the case sufficiently appear in the opinion of the court. submitted: That no grand jury having presented the paper under which defendant was arraigned, it must be shown that it was an information, else the court had no jurisdiction.

Error from Leavenworth County. The opinion hereto appended contains a statement of the facts of the case. 1. The bill of exceptions was assented to by defendant, whose substantial rights are not affected by the allowance of the bill by the court. Case v. Hannahs, 2 Has., 496 ; Small v. Douthitt, 1 id., 335 ; Koehler v. Ball, 2 id., 171; Lannon v. damn, 3 id., 17; 10 O. S., 236 ; 13 id., 281. 2. But no error appears. Civ. Code, %% 300-1-2-3. 3.

Criminal Appeal from Miami County. The facts of the case are sufficiently stated in the opinion, for prosecuting the points decided. submitted: The chapter of Kansas statutes on crimes and punishments (Comp. L., oh. 33), was approved Feb. 3d, 1859'.

Error from Leavenworth County. A sufficient elucidation of the facts of the case, for presenting the question decided, will be found in the subjoined opinion.

Error from Shawnee Coxmty. Tbe opinion of tbe court contains a statement of tbe facts of tbe case. submitted: 1. The demurrer admits the truth of all the facts in the petition that are well pleaded. 1 ditty on Plead., 661. 2.

Error from Bourbon County. In the opinion of the court may be found a statement of the facts in the case. submitted: 1. A general denial is not the general issue. Under the code there is no such thing as the general issue, as formerly -understood. Texier v. Gowin, 5 Duer, 391; McKyring v. BuU, 16 iZ Y., 297. 2. Payment must be specially pleaded, and cannot be proven, under a general denial.

Error from Wyandotte County. The facts of the case appear in the opinion of the court. submitted: 1. The petition sets out the contract. The answer nowhere denies the execution of the contract, or liability on it, but avers performance. With this state of pleading, judgment must be for or against all defendants. There is no issue as to the liability of other members of the firm, but whether the services were performed under the contract. 2.

Error from Wyandotte Ootonty. The facts of the case fully appear in the subjoined opinion. contended : 1. The order of attachment does not conform to the constitution {Art. 3, § 17), nor to the civil code (§ 592). 2. The premises attached, ordered sold, appraised, and advertised, consisted of a whole lot. The process conformed thereto, but the sheriff sold only one undivided half thereof. This was error.

Error from Wyandotte County. Plaintiff in error brought action in the district court of Wyandotte county, against defendant in error, to' recover moneys alleged to have been lent to and used, by them in constructing their road. Receipts for the money, introduced in evidence, were signed — a part of them, J. L. Hallett, per Convers, and a part of them Sam’l Hallett, per Convers.

Error from Wyandotte County. The evidence and facts of tile case sufficiently appear in the opinion of the court. contended : 1. Corporations must act by agents duly constituted. {Ang. & Ames' s Cor., §276; Story Agency, % 16.) The power of appointing such agents belongs to the coz’poration, unless the charter defines a different method. {Angel, §277.) The charter method must he pursued. Id., §277. 2.

Error from Leavenworth County. A statement of the condition of the pleadings in this case may be found in,the subjoined opinion. On the trial, Theodore A. Hurd, one of the plaintiffs, was offered as a witness on their part; the defendant objected to his being sworn, on the ground that he was a joint party with the administratrix of a deceased person — the defendant being excluded from testifying in the case.

Error from Shawnee County. The opinion of the court presents the condition, of the record. cited § 260, Civ. Code; Voorhies Code, 412; 10 How. Pr., 542 ; 7Bos., 643, and Nash’s PL, 447, against the practice of allowing amendments of affidavits under the circumstances of this case.

Criminal Appeal from Shawnee County. The following is the agreed statement of the facts : William Cummings and William Reed were jointly charged, by information in the district court in and for Shawnee county, after due preliminary examination, of murder in the first degree, of one Rufus H. Waterman; which information was filed in said court on the 28th day of May, 1867, of the May term of said court.

Error from Atchison County. The facts of the case appear in the appended opinion. submitted: 1. The defendant’s plea of the statute of limitation is defective in not alleging that the cause of action arose out of the state. Mwnn v. Taiman, 2 Kas., 255 ; Parsons Mereh. L., 248. 2. But the causes of action are not barred.

Error from Wyandotte County.. Sufficient of the facts of the case for presenting the points decided, appear in the opinion of the court. submitted: The authority to stay proceedings at law by injunction, is given to maintain purity in the administration of justice. It is a usual method of equitable interposition. 1 Wat. ■& Eden Inj., 11, note 1-, Wil. Eq. Jur., 347; 2 Story Eq. Jur., §§879, 880, 885, 887; dril Code, §247.

Mandamus from Shawnee County. The opinion of the court, 'hereafter inserted, contains a sufficiently ample statement of the facts of the case for illustrating the points decided. relied upon the following authorities : L. 564, p. 58, §§1, 4; L. ’65, p. 75, §1; id., p. 74, §1.

This was an application to the Supreme Court for a writ of mandamus against the county treasurer and commissioners of Leavenworth county, commanding them to pay certain Leavenworth county bonds held by relator.

Tlie facts of the case appear in the opinion of the court. contended: 1. The question submitted involves the constitutionality of the act of March, 1868, and its conflict with art. 11, sec. 3, of the constitution. 2.

<p> Error from Shawnee County. </p> <p>At the May term, A. D. 1867, of the district court of Shawnee county, one William Need was duly tried for, and convicted of a felony, and thereupon sentenced to confinement and hard labor in the-penitentiary.</p> <p>The claim of the defendant in error is for costs (sheriff’s fees) made by the said Reed, on his part, and' exclusively in his own defense, in his said trial; defendant in error being then sheriff of Shawnee county.</p> <p>At the regular session of the board of county commissioners of Shawnee county, in Qctober, 1867, the plaintiffs in error refused to allow or pay the defendant in error such costs; claiming that the county of Shawnee was not liable therefor under the law. An agreed statement of these facts, the parties to this action submitted to the court below for a determination of the rights of these parties under the law, asking for judgment accordingly.</p> <p>The court below rendered judgment in favor of the defendant in error, and against plaintiffs in error; and upon this, error is assigned.</p> <p>submitted:</p> <p>The simple question to be determined, is, whether the county is liable to pay the costs made by the defendant, on his part, in a case where such defendant is charged with a criminal offense, tried for the same, duly convicted .thereof, and sentenced, such defendant being insolvent.</p> <p>It is submitted that the county is not liable for such costs, whether such defendant is solvent or insolvent. Unquestionably, the county would not be liable at common law for such costs. . If liable at all, then it must be by virtue of some statute law. 36 Pa. 8., 317.</p> <p>Sec. 311 (Code Grim. Pro.) provides “the costs shall he paid by the county in which the offense is committed, in which the defendant shall be convicted, and shall be unable to pay them.” It cannot fairly be gathered from the terms of this section, that the county would be liable for the costs made on the part of the defendant, if he were unable to pay them himself. It rather contemplates that the costs on the part of the state shall be paid by such defendant, if he be convicted, and shall be able to pay them. At common law, the defendant, Reed, would alone be liable for these costs. 21 Mo., 272; Co. of Franklin v. Conrad, 36 Pa. 8, 317.</p> <p>It was not the intention of the legislature, by that section, to relieve defendant from such liability, nor to encumber the county therewith, but to compel him to pay the costs incurred on the part of the state, if he be solvent, and thereby relieve the county; but in case of his insolvency, to compel the payment of costs incurred by the state in convicting him, by the party making such costs — not costs made by the defendant on his part. But this -question of what the term “costs” in said §311 was intended to embrace, is made clear by §318 (Code Grim. Proc.): “Whenever any person shall be convicted of any crime or misdemeanor, no costs incurred on his part, except fees for board, shall be paid by the territory or county.”</p> <p>There is no conflict between these sections. They must be so construed together as to give effect to each and every part of both, if possible. This is done when § 311 is interpreted correctly, in which case it would read thus: “The costs (made by the state) shall be paid by the county in which the offense is committed, in which the defendant shall be convicted, and shall be unable to pay them.”</p> <p>When the rules for the construction of statutes are applied to the sections cited, it will then be found:</p> <p>1. That when a party is convicted of a criminal offense, such party is liable for all the costs.</p> <p>2. If such convicted party be insolvent, then the county shall pay costs mads on the part of the state, and no other, except fees for board.</p> <p>Until the passage of the act of March 6th, 1862, there was nothing in the laws of .Kansas, limiting the time for the collection of- the state’s costs by the state from the defendant, or fixing any period for paying them out of the county treasury to the officers entitled to the same.</p> <p>Section 22, chapter 99, of that act, provides : “The fees of the district clerk and sheriff, in any criminal action wherein the state fails to convict, or to collect the costs during the next vacation after sentence, shall be paid out of the county treasury; but no fees shall be paid by the county during the pending of the suit.”</p> <p>By this section, a remedy is supplied for the mischief of delay in making any effort to collect cost from the defendant, and thereby keeping the officers out of the fees the county would be liable to pay if defendant were insolvent. Here the state must collect the costs froin defendant “during the next vacation after sentence,” and if she fails to do so, then the fees of these officers shall be paid out of the county treasury. What fees? Certainly only such as the county would be liable to pay under the law as it then stood — in case of defendant’s insolvency.</p> <p>It was not the intention of the legislature to augment the liability of the county by enacting this section, but simply .to limit the state to a time for the collection, of her costs from the defendant, or determining his insolvency, that .officers might not be indefinitely deprived of such fees as defendant ought- to pay; or in case of his insolvency, as the county would be liable for, to wit: costs made on the part of the state. This is apparent, when we consider what the old law was, the mischief that existed, and the needed remedy.</p> <p>The old law provided that no costs incurred on the part of the defendant, except fe.es for board, shall be ■ paid by the county, if such defendant be convicted; but that in such case the county shall be liable for costs made on the part of the state, if the same cannot be collected of such defendant.</p> <p>Surely there is nothing in this section (22) necessarily repugnant to the old law. It will not be construed to repeal sec. 318 of the code of criminal procedure, unless it be absolutely repugnant to the same. 1 Bish. Or. L., §§65, 6 ; 1 Kent’s Com., 518, 520, 524, note “c;” 9 Cush., 465 ; 12 111. B., 339.</p> <p>It will be construed to harmonize with the old law, if possible, for repeals by implication are not favored in law.</p> <p>Each and every part of the old law remains in full force when sec. 22, above cited, is construed to mean that, if the state fails to collect the costs during the next vacation after sentence, the fees of the sheriff and district clerk, made by the state, shall be paid out of the county treasury. If sec. 22 is amendatory of sec. 318 of the code of criminal procedure, it is in conflict with sec. 16 of art. 2 of the constitution, and therefore void. 5 Ind., 327.</p> <p>The defendant, Need, is alone liable for this claim. If he be .insolvent, such fees 'are a burden upon the office of sheriff.</p> <p>He who takes the office of sheriff takes it cum onere. Bryner v. the Board of Supervisors of Peoria Co., 24 III. B., 195.</p> <p>The defendant in error must be able to point to a statute to entitle him to .recover his claim from the county. County commissioners have no power to pay such costs, except in the specific circumstances prescribed by the legislature. The Co. of Franklin v. Conrad, 36 Pa. S., 317, Woodman, J.; Donnelly v. The Co. of Johnson, 7 Iowa, 419; Gale v. Qrannis, 9 Ind., 139; Israeli. The State, 8 Ind., 467; Buber v. Auditor of Wayne Co., 12 Ohio 8. B., 429.</p> <p>maintained:</p> <p>That section'22, act of March 6th,. 1862, clearly provides for the payment of all the fees of the clerk and sheriff — 1. When the state fails to convict; and 2. When the defendant is convicted and the state is unable to make the costs off the felon’s estate.</p> <p>Section 311, Grim.' Code, joroviding that “the costs shall be paid by the county * * * (in cases) in which the defendant shall be convicted, and shall be unable to pay them,” includes all costs. The next section (312) provides that “in all cases in which the defendant is acquitted, the costs shall be paid by the county, unless the prosecution shall be adjudged to pay them.” {Comp. L., 281.) If there be any rule controlling these two last sections, it will be found in section 318 {p. 282).</p> <p>It is insisted • by defendant in error that any effect that may be drawn from this section, as to limit the effect of sections 311 and 312 to a liability on the part of the county to pay, of the costs made in behalf of the defense, only the board of the culprit, was destroyed by the act of March 6th, 1862, section 22 of which, by implication, repealed section 318 of the criminal code. The latter act was passed in 1859 (July 9th). The last expression of the legislative will (March 6th, 1862), must prevail.</p>

Error from Shawnee County. This case arose out of the same criminal trial as the next preceding case, and the facts are similar, except that in this case the application was made by a witness called for the defendant alone, to the county board for an allowance for fees and mileage, while in the other case (Com’rs Shawnee Co. v. Whiting) the application was made by the sheriff of the county. The proceedings in both cases are substantially similar.

Error from Bourbon Bounty. The facts of the case fully appear-in the opinion of the court. contended: 1. That the judgment is in form proper. 2. The sections of the civil code, title 11, chap. 3, fully authorize the j udgment and proceeding in this case. While the court below did not deny that the statute did in fact authorize it, yet it was contended that these sections were unconstitutional.

Criminal Appeal from Shawnee County. This case was founded on an information filed in the district court of Shawnee county, November, 1867, charging the appellant, Leonard' Lewis, Van Burén Lewis, Charles Lewis, and Sandford Rounds, with the larceny of a set of double harness, of the value of $50, the property of John'W. Surfis.

<p> Error from Shawnee County. </p> <p>The facts of the case sufficiently appear in the opinion of the court.</p> <p>submitted:</p> <p>1. County commissioners have no power to pay, except in cases specified in the statute. Co. of Franlclin v. Conrad, 36 Pa. 8., 317.</p> <p>2. Where the county in which the cause originated has been held for such costs, there has been a statute specially providing for such payment. (11 Iredell, 104; 1 Carter \Ind.\ 309; 4 id., 479.) The only statutory provision referring to costs of removal, is silent as to who shall be liable therefor: Crim. Code, §171.</p> <p>3. When the transcript is filed in the court to which the cause is removed, it becomes a case of that county; it stands, in every respect, “as if it had originated there.” (Comp. L., 261, §167.) Jurors are paid out of the county treasury of the county, in which they serve. L. ’66, p. Ill, §2.</p> <p>4. Defendant in error is alone liable. 4 Mo., 433; 9 Mo., 356 ; 7 id., 433.</p> <p>5. Neither county was liable for boarding and lodging of jurors and bailiffs. 24 Geo., 82; 4 Texas; 19 U. 8. Big., 163.</p>

Error from Bourbon County. The facts of the case sufficiently appear in the opinion of the court. submitted : 1. It is only when the property “exceeds $100 in value ” that the justice is required to certify the cause to the district court. (Comp.

Error from Atchison County. This action was brought August '29th, 1866, by plaintiff in error, against defendants in error, on a note and mortgage for $24,000, made by defendant, Challiss, to defendant, Hamilton, which were alleged to have been transferred to plaintiff for value before maturity.

Error from Jefferson County. This is a proceeding in error to reverse a judgment, or order, of the district court of Jefferson county, dismissing an appeal taken by plaintiff in error, to that court, from an order of the probate court of that county, making distribution of the estate of George Barrett, deceased. This order of the probate court was made, and appeal taken, before the passage of the act of 1867, allowing appeals from decisions of the probate court.

<p> Error from Atchison County. </p> <p>The facts of the case are fully set forth in the opinion of the court, hereto appended.</p> <p>submitted:</p> <p>The tax involved in this case was illegal. City of Atchison v. Bartholow et al., ante.</p> <p>The treasurer went outside of his duty and threatened the agent of plaintiff, and thereby obtained payment of the tax. The threat was made by color of office, armed with apparent authority to enforce his demand. {L. ’66, p. 120, §95.) The demand was illegal.</p> <p>The payment of the tax, being without warrant of law, and not voluntary, may be recovered back. Boston <fe Sandwich Glass Go. v. Boston, 4 Met., 181; Joyner v. The Inhabitants, &c., 3 Gush., 567, 572; Amesbwry Wool Mfg. Go. v. same, 17 Mass., 460 ; Fry v. Loclmood, 4 Oow., 454; Loto v. First Parish in Ludberry, 5 Met., 73 ; 6 O. S., 470 ; 6 Mete., 497, 506 ; Ripley v..Gelston, 9 Johns., 201-8 ; Preston v. Boston, 12 Piole., 7-14; 7 Min.., 267; Blcltw. Tax Tit., 165.</p> <p>This tax was in litigation, and defendant had knowledge that plaintiff would resist the payment. The treasurer obtained the money by fraud and misrepresentation of facts.</p> <p>The fact that the treasurer has paid the money over to the city of -Atchison, affords no defense. He had full notice, by suit and otherwise, that payment was resisted. It was not paid to the defendant for the purpose of its being paid over to the city. He cannot now shift his liability. 4 Gonn., 459 ; 9 Johns., 201; 1 Taunt., 359; 1 Gamp., 397.</p> <p>submitted.</p> <p>The judgment below should be affirmed.</p> <p>Because it appears from the findings of fact, “that said defendant was, at the time of receiving said sum of $441.00, the duly elected and acting treasurer of Atchison county, Kansas; that the said sum was levied as a tax upon the personal property of plaintiffs by the authority of the city of Atchison, and that after receiving the said sum, and prior to any demand upon him therefor, and before the commencement of this action, defendant had paid same into the treasury of Atchison city.” (Story on Agency, §§300, 301, 307; 2 Cow., 568; 10 Peters, 154.) a. It is well settled that if the agent have, without notice to act otherwise, paid over the money received, to his principal, he never can be called on to refund it. {Story, § 300 ; Smith Mero. L., 143,145 [3d ed.\ 1843. 10 Pet., 154; 2 Cowp-., 568 ; 5 IF. T., 376; 2 Puer, 521.) b. Where money has been paid to an agent to avoid an illegal distress, oían illegal claim, and no notice of the objection to the payment is given before the agent pays it over, the same cannot be recovered back from the agent. Story, §301; 10 Pet., 154.</p> <p>2. It appears from the findings, that the sum was paid by plaintiffs to defendant, voluntarily, and with full knowledge of the facts. It cannot therefore be recovered. (27 Maine, 145 to 148 ; 1 O. S., 268, 275, 278 ; 24 Conn., 92; 12 IF. T., 308, 313 ; 10 Peters, 137, 158; 2 Penio, 39, 40; 9 Cow., 680, 681; 10 How. Pr., 138, 141; 1 Wend., 356; 3 Barb., 369, 371.) a. To make the payment of an illegal demand involuntary, it must appear that it was made to release the person or property of the party from detention, or to prevent a seizure of either, by the other party having apparent authority to do so, without resorting to an action of law. (Cases cited, and Seaton’s heirs v. The City of Cincinnati, 10./SC, 268; Vb Peters, 137,158.) b. Under the law of the state, the defendant, upon the non-payment of the taxes, is only authorized to issue warrants to the sheriff for the collection of same, and as the defendant could not compel the sheriff to levy an illegal warrant, the plaintiffs had no right to suppose that the sheriff of Atchison county would assume to act. (¿., ’66, 286, §95.) c. Plaintiffs should have-waited until the warrant for the collection of said tax had been placed in the hands of the sheriff, and the sheriff had called at the store and attempted to levy same, before making payment, d. The plaintiffs did not pay the tax until the next day after the defendant had notified them that same must be paid, and then went voluntarily to the office of defendant, and paid the same. e. Plaintiffs paid the tax before any warrant or other process had been issued for payment of same.</p>

Error from Bourbon Bounty. The facts of the case are fully set forth in the opinion of the court, hereto appended. submitted : 1. The allowance of $40 attorney’s fees is not only unauthorized, but it is expressly prohibited by statute. “No court shall tax over two dollars as attorney’s fees, in any case, for foreclosure of any mortgage, or trust deed, or for collection of the same.” (Comp.

Error from Pottawatomie County. The record would seem to show that the plaintiff injustice court, Crist, raised the crop injured “on shares,” and that Lucinda Springer was joint owner with him thereof. Other facts appear in the opinion of the court.. .submitted: 1. Time was material, and should have been alleged. 2 Qreenl. Bn., §624, n. 2. 2. The court erred in allowing plaintiff to vary his pleading in district court from his bill of particulars in the justice’s court.

Error from AicMson County. The principal questions involved in this case arose out of an application on the part of defendants below for the remedies given to occupying claimants in the act of March 4, 1862. The action was commenced August 25, 1866, to recover possession of fifty-four feet off the east side of lot number seven, block twelve, in Atchison City, together with rents and profits.

Error from Leavenworth County. This action was commenced by the filing of a petition, affidavit for an attachment and garnishment, notice whereof was served on defendant, Mackay, treasurer of defendants, the Platte City & Ft. Desmoines R. R. Co., a corporation doing'business in, and existing under the laws of the State of Missouri. Service by publication was attempted, and in form completed against the defendants — the railroad company.

The facts of the case are' stated in the subjoined opinion of the court. wrote: That the relator’s contract for printing the laws extended from the 4th Monday of December, 1867, to the 4th Monday of December, 1868. The secretary of state is bound, under the law, to furnish copy on demand.

Error from Marshall County. The subjoined opinion contains a statement of the facts of the case. made the following points: The county is bound to collect the taxes for the townships, and if it has done any act to prevent the payment thereof, becomes liable therefor. The taking of tax deeds is such preventive. A large amount of these deeded lands have been sold, the money paid into the treasury, and the account made to the townships thereof.

Error from Atchison County. Out November 4th, 1865, plaintiff in error was the agent for one A. A. Fleming, of Missouri, for the purpose of selling some real estate owned by Fleming, in the county of Atchison. Plaintiff in error had no formal power of attorney, but was authorized by letters from Fleming to negotiate the sale of the real estate, and the deed was to be made by Fleming to the purchaser.

Error from Marshall County. A statement of the facts of the case may be found in the opinion of the court. The court erred in allowing declarations of Fields to go to the jury, unless defendant first established the agency. {Irvine 'v. BtccJcaloe, 12 8. & R., 35; 8encer-box v, McGrade, 6 Min., 484; 3 Oow. & Hill’s notes to Phil. Bv., 412; Craighead v. Welles, 21 Mo., 404; Caldwells.

This was an application for a peremptory writ of mandamus, requiring the treasurer of Marshall county to assign to the relator two certain tax sale certificates for lands bid off by Marshall county at the tax sales of 1862 and 1863.

Error from Bourdon County. The facts raising the points decided, are stated in the opinion of the court. It may not be amiss further to state that the defendant below, Brown, served with summons in Bourbon county, answered, alleging that the act complained of was official on his part, as sheriff of Cherokee county, under authority of a writ of attachment, duly issued by defendant, Finn, sitting as probate court of said county.

Error from Marshall County. The opinion of the court contains a sufficient statement of the facts of the case. contended: That an answer should have been filed by defendant, in the district court. {Buie 15, Sup. Gt.) In absence of an answer, no 'evidence could properly be admitted where objection was interposed, as in this case. The dead and down timber passed in the deed from defendant.

<p> Application for Writ of Mandamus. </p> <p>A sufficient statement of the facts of the case is contained in the subjoined opinion of the court.</p> <p>the following:</p> <p>1. ' The wording of sub. 42, sec. 2, art. 3, of 'the second class city act, of February 23, 1867, 'makes it retrospective. It was a remedial and equitable subdivision. It applies to cases occurring before the passage of the law, and was intended so to apply. The statute should receive a liberal interpretation. When it is evident from the terms of the statute that the legislature intended a retroactive effect, it must be so interpreted. {Blackw. on tax titles, §§ 113, 627; -1 Scam., § 191; 7 Johns., 477 ; 3 Me., 333 ; 1 Ben., 128; 7 0., 247 ; 2 IF. J, 623 ; 9 Oa., 253; 1 Penn., 211 ; 1 Barb., 65; 3 Mass., 254; 4 Mass., 439; 20 Johns., 80; Blackw. on tax titles, 608, 609, 610, 611, 623.) “ Statutes are to be so constructed as to suppress the mischief, advance the remedy, and preserve fundamental principles.” {Blackw. on tax titles, 622, §135; 8 Johns., 41 ; 10 Johns., 467.) “Bxpressio uno est exclusio alterms. The express mention of one thing implies the conclusion of another.” Brown)s Maxims, 505 :■ Blackw. on tax titles, 632, § 240.</p> <p>2. The section, then, having a retroactive operation, is the assessment in question illegal, so as to entitle the relators to its beneficial provisions? “The power to impose a tax upon real estate is a high prerogative and should never be exercised in doubtful cases. It is a power derogatory of the common law, derived exclusively and directly from a statute, and in carrying its provisions into effect must be strictly pursued, or the proceedings will be illegal and void. ’ ’ Sharp v. Spier, 4 Hill, 76, 85; Blackw. on tax titles, 33, 34 to 64, inclusive. ■</p> <p>3. The special tax was levied and collected while the municipal affairs of the city were being conducted under its charter of A. D. 1859, and hence the legality of the tax is to be determined by its provisions. The provision therefor being general (§6, L. ’59, 480), the city council were authorized to define the proceeding, as they did in ordinance No. 51.</p> <p>4. The grand objection, however, to the proceeding under this ordinance arises from the act approved Feb. 26,1864. (L. ’64, p. 228.) The second section thereof provides for certifying up to the county clerk, for the purposes of collection, all delinquent taxes in cities of less than 7,000 inhabitants, the same to be collected as other taxes.</p> <p>5. As the city of Wyandotte had less than 7,000 inhabitants, the delinquent assessment should have been certified to and collected by the county officers.</p> <p>6. It may be safely affirmed, as a general rule, that the party claiming title under a tax sale must show that the acts required to be done under the statute, in order to divest the title of the former owner, were performed by the officers of the law, and not simply by persons who assumed to act in an official capacity. (SlaoJm. on tax titles, 91.) This has not been done.</p> <p>7. Where the taxes are legally assessed, they become a debt due the corporation, and an action of assumpsit is the appropriate remedy to recover the tax in all cases where the charter is silent as to the mode of collection.</p> <p>8. In the charter of the city of Wyandotte no provision is made for the collection of assessments. There is a radical distinction between taxes for general purposes and assessments. ' Taxes are burthens to be equally levied upon all taxable property within the corporation, while assessments are special taxes on the lots benefited by some city improvement, ordered by the mayor and aldermen, and existing within their powers by the terms of the charter. The section of the charter giving to the city council power to levy and colleet a special tax, section 6, article 8, is silent as to the mode of collection ;. hence the assessment could only have been collected by action. “ No general law, regulating the taxing power of the state at large, can be construed in any given case as embracing taxesleviedbysuchcorporations.” Fitchv. Pinckard, 4 Beam., 69 ; Blackw. tax titles, 449.</p> <p>9. The imposition of the penalty of ten per cent, on each delinquent tax-payer was truly a monstrous provision. All penal statutes are to be construed strictly, and surely such an one as this above all others. § 18, art. 7, of city charter-, 1 Penn., 210 ; 6 Greenl., 268 ; 4 Conn., 61; Blackw. tax tit., 628.</p>

The facts of this application are as follows: The legislature, during the session of 1866-7, passed an act authorizing the appointment of commissioners for and regulating the preparation of a compilation of the statutes of Kansas, which work was to be and was prepared and submitted to and passed by the legislature of 1867-8.

Mrror from Bourbon County. The facts of the case are as follows : An action was brought by Barker v. Redlon et al., in justice’s court, to recover the value of a sign and post alleged to be the property of plaintiff, converted by defendants. The defense interposed was that defendants had purchased a hotel in Port Scott of plaintiff, and that in that transaction the sign and post was conveyed as one of the appurtenances of the hotel, and necessary for its successful operation.

Error from Leavenworth County. Tlie facts of the case are substantially as follows : Tbe defendant in error brought action against the… Held: that a foreign corporation cannot be summoned by service on its head or chief officer, who at the time of service may be within the territorial jurisdiction of the state — and that such service is bad at common law as well as under the statutes of these states, g. The legislature, therefore, contemplated in § 28, natural persons…

<p>In an executory contract for a sale of goods by sample, it is the privilege of the vendee to return the goods if they do not correspond with the implied warranty, and thereby rescind the contract, or he may retain them, and recover damages.</p> <p>Semble, formerly when the goods were returned, the action was on the common counts; when not returned, on the implied warranty.</p> <p>In such a contract for goods not yet manufactured, there is an implied warranty that the goods shall fill the terms of the contract.</p> <p>In an action for damages, on account of a breach thereof, the measure of damages is the difference in the market value of the article contracted and the article delivered, at the place fixed by the parties as that of delivery.</p>

Error from Leavenworth County. The plaintiff below brought his action for $374.55, balance due for work and labor done, and materials furnished in plastering a certain building, describing it, for defendant below. The defendant alleged that the plastering was done at an agreed priee, setting forth the agreement, which price had been fully paid.

Error from Doniphan County. The facts of the case are as follows : Troy, in Doniphan county, had been, since A. D. 1855, the county seat thereof. Held: according to the notice given by the county board, under the act of 1863. It is claimed, however, notwithstanding the notice of the county board, that these elections were held under the act of 1863 and the act of 1865. It is not claimed that either of these elections were! held under the act of 1867.

Error from Leavenworth County. On the 14th of May, 1864, defendant in error obtained judgment • against plaintiff in' error in district court for Leavenworth county, on which several executions were returned unsatisfied. At the time of the rendition of the judgment, plaintiff in error owned an equitable interest in certain real estate in that county, under a contract to purchase the same.

Error from Shawnee County. The facts of the case appear in the opinion of the court. submitted: Sec. 2 of an act relating to the organization of courts (Comp. L., 454), provides that the £ ‘ district courts shall have full power * * * to assign * * attorneys to prisoners who may be unable to employ counsel.” The jurisdiction of the court is unlimited, and its proceedings will be presumed regular. In assigning counsel, in a proper case, it only performs a duty.

Error from Lyon County. The petition in the court below sets forth substantially: That the plaintiff owned the fee to the land upon both sides of Cottonwood creek, in Lyon county,describing the land; that defendants are owners, and have erected a ínilldam upon the piece of. land, describing it, lying on said creek below the foregoing described piece; that, by the dam, defendants have flowed back the waters of said creek upon said lands of plaintiff, to the depth of three…

Error from Bourbon Comity. In addition to the statement of facts in the opinion of the court, it may not be improper to add: That the record shows that the application on the part of the defendant below, for leave to amend his answer, was first made after the jury had been impanneled and sworn, and “the parties had stated their cases to the jury,” and no showing was made on the application; and the plaintiff below offered to allow the amendment on payment of costs.

Error from Linn County. Housh brought his action in the district court against Linton, on a promissory note. An answer was filed by Linton, admitting the execution of the note, but setting forth that the note was given on a contract for corn purchased by Linton, of Housh, in which contract Housh made divers fraudulent warranties and representations, to the damage of Linton, and whereby the note was without consideration.

<p> Error from Shawnee County. </p> <p>The facts of the case are as follows :</p> <p>On the 4th day of July, 1866, Carney & Stevens, and Dreyfoos & Dreyfoos, two firms, each commenced an action in the Douglas county district court, against Lipman Meyer, upon promissory notes, hy filing their petitions and causing summons to he issued thereon; and at the same time procured orders of attachment to he issued to the sheriff of Douglas county, and others to the sheriff of Shawnee county, upon due proof and security, on the ground of the non-residence of the defendant.</p> <p>At that time the property afterwards attached was in the county of Douglas.</p> <p>On the 5th day of the same month, the property was removed into the county of Shawnee.</p> <p>On the 6th of the same month, said attachments, issued to the sheriff of Douglas county, were returned nulla bona, and the summons also returned “Not found.”</p> <p>On the same day the attachments issued to Shawnee county were levied upon the property in question.</p> <p>On the 12th day of the same month, alias summons in said causes were issued to the sheriff of Douglas county, and on the same day personally served, said Meyer having come from Leavenworth to Douglas county at the instance of Carney. & Stevens, to be served.</p> <p>On the-day of November, 1866, judgments were rendered in said causes, and orders for the sale of said property entered.</p> <p>On the 6th day of July, 1866, the plaintiffs in error commenced their several actions against Meyer, in Shawnee county, and caused orders of attachment to be issued, which were executed on the same property on the 7th day of the same month.</p> <p>The plaintiffs in error served their several summons by publication, the first publication in Taylor’s case being made on the- 18th day of July, 1866, and in the causes of all the other plaintiffs in error, on the 12th of the same month.</p> <p>Judgments and orders of sale were rendered in December, 1866, in the causes of Lthe plaintiffs in error.</p> <p>The property having been sold by the sheriff of Shawnee county, Taylor brought action in the district court of Shawnee county, seeking to have the judgments rendered in Douglas county adjudged void, as to him, and to settle priorities.</p> <p>All the judgment creditors appeared and set up their claims.</p> <p>The court adjudged the judgments of Carney & Stevens and Dreyfoos & Dreyfoos valid, and prior to all other judgments, which judgment is brought here for review.</p> <p>made these points :</p> <p>1. The facts found by the court do not sustain the conclusion of law, that the district court of Douglas county obtained jurisdiction either of the person or property of Meyer, prior to the levy of the attachment of plaintiff in error, a. A civil action is commenced by filing a petition in the clerk’s office and causing a summons to issue thereon. (Civ. Code, § 62.) An action for money must be brought in the county where the defendant, or some one of them resides, or may be summoned. (§60.) The service of the summons in the mode pointed out by the statute, is what gives the court jurisdiction of the person. (15 0., 435 ; 9 id., 108, 111; 17 id., 409, 431.) b. An action against a non-resident, can only be brought in a county wherein the defendant has property or debts owing him,- or where he may be found. (Civ. Code, §59.) Such action can only be brought under the provisional remedy of attachment, to subject :the property of the non-resident. (Id., §77.) The order of attachment “shall be directed and delivered to the sheriff of the county, requiring him to attach the property of the defendant-in his county.” (§202.) The mode of procedure by the officer, and disposition of the attached property, are pointed out in §§ 206, 207, Civ. Code, and §§79, 80, 81 provide how the service may be made complete on the property attached. §214 of the code provides that the order of attachment binds the property from the time of service.</p> <p>2. The district court of Douglas county acquired no jurisdiction over the property by reason of attachment, because no property of the' defendant was found in Douglas county, a. The same ruléis applicable to property as to persons. Service must be made by summons, in the county of the suit, before jurisdiction is acquired over the person ; and the same is true as to the property. . Some portion of the property must be seized in the county where the action is brought, to give jurisdiction of the property. Should the defendant be in the county of the suit when it was commenced, and go into another county before service of summons, no jurisdiction would be acquired. 5. The property, in this case, was moved from the county of the action before the attachment was served. The court, therefore, acquired no jurisdiction over it. (33 III., 459 ; 31 id., 248 ; 27 id., 509 ; 2 Kans., 340; 7 Ben. Monroe, 75; 3 IF Y, 137; 9 Iowa, 319 ; 24 Bid., 72; 51 Penn. S., 244; Drake on Attach., §221; Giv. Code, §214; Story Confl. L., §§539, 549; 1 Handy B.) c. The subsequent service of summons on Meyer, in Douglas county, on July 12th, could not give jurisdiction to issue an order of attachment on the 4th. (7 Ben. Monroe, 75; 3 IF Y., 137; 14 Ben. Monroe, 647.) d. The facts giving jurisdiction, must have existed in Douglas county, and the court must have acquired jurisdiction in that county at the'time or before the attachment was levied in Shawnee county. (See cases cited.) e. Filing a petition, affidavit and bond, does not confer jurisdiction, nor does placing process in the officer’s hands; but summons must be served, or the property-attached in the county. 33 III., 459; 15 0., 435 ; 2 Iowa, 460; Drake on Attach., § 221.</p> <p>3. Procuring Meyer to come into the county of the action, for the purpose of the service of the summons, was a fraud on the rights of plaintiff in error, by which the defendant in error takes nothing. 9 Iowa, 145, 149 ; 19 Iowa, 358; 10 Allen, 410 ; 6 Gal., 238 ; 14 id., 401.</p> <p>maintained :</p> <p>1. The attachment of defendants in error, having been first levied, if valid, has priority. Civ. Code, § 214.</p> <p>2. If they were invalid, they must have been so from lack of jurisdiction.</p> <p>3. There was no lack of jurisdiction, a. Actions for money may be brought in any county in which there may be property of, or debts owing to, the defendant, or where the defendant may be found. (Civ. Code, §39; 33 III., 460.) That is, where service can be had of an attachment, or personal service of summons, within the county. 6. Our action was properly brought in Douglas county, within the meaning of this section. We had personal service of the summons, eight days after the petition was filed. At the time the attachment issued there was property in the county. The action was, therefore, properly commenced. (Civ. Code, § 62.) But had the first summons not been served, an alias [might have issued. (Code, §68.) c. The fact that Carney & Stevens induced Meyer to come into Douglas county to be served with summons, is, of no consequence. The district court has properly found that it was done without fraudulent intent. It was, therefore, only an act of diligence, which the law approves. (See Brake on Attach., §273 to 281, inclusive.) cl. But if it should be held that the 59th section of the code, by the language, “where said defendant may be found,” means that the said defendant must be in the county when the summons is issued, by parity of reasoning the language of the same section — “in which there may be property of, or debts owing to, said defendant” — means that such property must be in the county when the action is commenced, and not that it must be attached therein. In that case our actions were well commenced, because all the property attached was in the county of Douglas, when the actions were commenced; and the court would, therefore, acquire jurisdiction of the action by the presence of the property.</p> <p>4. The court having acquired jurisdiction of the action, no doubt can exist that it acquired jurisdiction of the property by the service of our attachments in Shawnee county (Code, §203), and .that Carney & Stevens and Dreyfoos & Dreyfoos, by the priority of their levy, are entitled to priority in the distribution of the fund.</p>

Error from Leavenworth County. This was an action brought by plaintiff in error against the defendants in error, judges of election, for refusing to receive the vote of plaintiff.

<p>Elliot v. Loclmane [1 Kas.,. 126], and Boot d. Bradley [id., 437] affirmed; and held that a cause of action on a due bill, due J an. 16th, 1856, sued on April 17th, 1860, was barred by the statute of limitations.</p>

Error from Wyandotte County. The facts are stated in the subjoined opinion. submitted; 1.

<p>Error from Shawnee County.</p> <p>This was an action brought by one of the defendants in error in the usual form on a note and mortgage, making plaintiff in error, who had a lien on the mortgaged premises, and others, parties defendants. Answers were filed by defendants. On the trial of the cause, the defendants demanded a jury, which was, by the court, refused, and exceptions to the ruling were preserved. Judgment and decree were rendered for plaintiff, and Clemenson brought the case to this court for review.</p> <p>submitted:</p> <p>All the issues made by the pleadings in the court below, were issues of fact arising in an action for the recovery of money, and should have been tried by a jury. §274, Civ. Code.</p> <p>The right to a trial by jury, when demanded, was absolute, and it was therefore error in the court to refuse it. Gens on v. Keteltus, 17 N. T., 498 ; 14 B. Mon., 517; 11 Ind., 80; 15 B. Mon., 591.</p> <p>The right of trial by jury is declared to be inviolate, by the constitution of this state. § 5, Bill Rts.</p> <p>It is a inode of trial highly favored and intimately connected with the general welfare; and in the trial of issues of. fact, it is the duty of the courts to submit them to a jury when demanded by a party, unless the statute has expressly left it in the discretion of the court. 8 Greenl. on J3v., §§264-6.</p> <p>The court below should, therefore, have granted a new trial.</p>

Error from, Wyandotte County. The facts of the case, as to the notice of appeal, are the same as those of Robitaille r>. Furguson.

Error from Jackson County. In addition to tlie facts of the case set forth in the opinion of the court, the following particulars may not be amiss: The record shows that on the return day of the summons, the parties appeared, and the defendant applied for a continuance upon the following evidence: ‘ ‘ William Smith being first duly sworn upon his oath, deposes and says that he is one of the defendants in the above cause, and that he cannot, for the want of material…

Error from, Wyandotte County. The opinion contains a full statement of the facts bearing upon the points decided. submitted : This was a bond in a legal proceeding, within the meaning of the statute of 1867, § 1, p. 47. 1. This statute prohibits the taking of an attorney on any bond or recognizance, in any legal proceeding. It absolutely prohibits the .constituted authorities from taking a bond from a practicing attorney, in any legal proceeding.