Volume 42 — Kansas Reports

Error from Bourbon District Cowrt. This was an action in the nature of ejectment, and for rents and profits, brought in the district pourt of Bourbon county on April 2, 1886, by Ella Shinn against Abner Shinn, to recover certain real estate in that county, and for rents and profits.

Error from Smith District Court. Action to recover upon a promissory note. Judgment for plaintiff, Ream, at the December term, 1886. The defendants, Knickerbocker and two others, bring the case here. The opinion states the facts.

<p> Error from, Pottawatomie District Court. </p> <p>Action to recover damages for trespass. The Association complains of a judgment for costs against it, rendered at the September term, 1887. The facts appear in the opinion.</p>

<p> Error from Osage District Court. </p> <p>This was an action brought by defendant in error in the district court of Osage county, against the plaintiff in error, to recover the sum of $500 for an alleged trespass, and to enjoin further trespasses threatened by plaintiff in error upon the same real estate, which trespass would permanently injure the said real estate. Defendant below filed a general denial. At the April term, 1887, the case was heard by the court, a jury being waived, upon the following agreed statement of facts:</p> <p>“It is hereby agreed by and between the parties hereto, that this cause shall be heard upon the following agreed statement of facts: That on and prior to September, 1880, one A. O. Morgan was the owner of the following-described real estate in Osage county, Kansas, to wit: Bounded by a line commencing at a point fifty feet south and one hundred feet east of the southeast corner of block numbered thirteen, in the town (now city) of Burlingame, in said county and state, as platted and recorded in the office of the register of deeds of said county; thence running east one hundred and twenty-five feet; thence south one hundred and fifty-five and one-half feet; thence west one hundred and twenty-five feet; thence north to the place of beginning. Also, a strip of land adjoining and immediately south of the above-described land, running fifty feet north and south; one hundred and thirty-six feet east and west. The west boundary of the last piece being a continuation of the west boundary of the first-described real estate; the west • boundary of each of said pieces being the right-of-way, at the time, of defendant, and ever since belonging, used and occupied by the defendant as and for its right-of-way. The first-described piece is designated by agreement as ‘A,’ and the second-described piece as £B/ for the purpose of reference. At about September, 1880, the defendant purchased from the said A. O.'Morgan the said piece of land designated as £B/ and received from him a good and sufficient conveyance therefor; that immediately thereafterwards the defendant, intending to erect a well and pump and boiler-house upon the land so purchased by it and designated as ‘B/ commenced the work of digging such well and building such house and so forth, on what it in good faith believed to be the land so purchased by it and designated as £B/ but that as a matter of fact it built its boiler-house upon the ground designated as CA/ and in digging its well dug it of the following dimensions: twenty feet in diameter and eighty feet deep, but walled up about twenty-four feet; that the well when so dug was, as a matter of fact, located and situated so that two feet of it only were upon the land belonging to the defendant, and designated as £B/ and the balance of it upon the land designated as £A;; that after the building of said house on land £A’ the boiler was put in there for the purpose of operating a pump in said well, and a pump was also placed in said well, to be operated by steam furnished by said boiler. The pump and boiler were all actually located upon land ‘A.’ The defendant dug this well for the purpose of obtaining water to be used in a tank situated on its right-of-way, to supply its engines running on its right-of-way. Afterwards, and about 1882, the said A. O. Morgan disposed of and conveyed land ‘A’ to third parties, who subsequently and soon afterwards conveyed the same to the present plaintiff, who since that time has been, and is now, the owner thereof, and has been continuously in possession of the land since he owned it, save and except the boiler and pump, which was used by defendant and in its possession except as hereinafter stated. About June, 1886, the plaintiff having ascertained that said well was located mostly upon his premises, and that said boiler-house and boiler were also upon his premises, inclosed the same with a fence, and forbade the defendant from entering upon his premises for the purpose of using either said pump or boiler; that this was the first time defendant was ever notified by any owner of said property not to use the same, and the first time it knew it was on plaintiff’s property, except as shown by the statement hereinafter made; that from that time until about September the plaintiff kept the defendant from using the same; and that about September, 1886, the defendant commenced proceedings for the purpose of having the land on which said boiler, pump and well were situated condemned, and had commissioners appointed, who made a view and report, assessing plaintiff’s damages under such condemnation proceedings at six hundred dollars; that the defendant, deeming said assessment too high, refused to accept the same and abandoned said proceedings, and has never done anything further to acquire any right under said proceedings, and claims none by virtue thereof; that thereafterwards, against the will and consent of plaintiff, and in the night-time, the defendant forcibly took and removed said boiler from said premises on which they were located, as above described, and that in doing so they so damaged the boiler-house that it has since blown down and broke through the fence built by the plaintiff; that the plaintiff having commenced this action and obtained a temporary order of injunction, the pump has not been removed, owing to said injunction, and remains where it was originally placed; that the value of the boiler at the time it was taken by defendant was the sum of one hundred dollars; that the value of the pump as it remains in the well is the sum of one hundred dollars; that the boiler is connected with the pump by a steam pipe for the purpose of furnishing steam from the boiler to operate the pump with, and for conveying and carrying water to the tank; that the boiler was placed upon the ground upon a cast-iron base, which held the ash-pan, and that it was not set in masonry; that the damages occasioned by the trespass outside of the taking and carrying away of the boiler and injury to the building is, and was, the sum of twenty-five dollars, and the injury to the building was the sum of twenty-five dollars; that at the time the well was being dug the then owner of the property, A. O. Morgan, stated to the workmen that he believed they were too far north to be on their own land; that at and prior to the time of the commencement of the suit the defendant was intending to remove the pump off from the land designated as £A/ and intended to fill up the well, and threatened to do these things, each of which the plaintiff forbade the defendant from doing at the time; that at the time of the commencement of this suit the defendant had no interest in land £A/ except as herein stated; and that plaintiff had no interest in land £ B/ except as herein stated; that the well on land £A’ was for the purpose of obtaining water, and the pump was connected with pipes with the water in the well, and was adapted to drawing water from the well and used for that purpose, and that purpose only; and the motive power to work the pump was the boiler connected with the pump by pipes, and without the boiler the pump could not be worked, as the pump had a steam cylinder and could not be worked by hand power, and the defendant severed the boiler from the pipes connecting the boiler with the pump, and removed the said boiler from the freehold.”</p> <p>Upon the agreed statement of facts the court found as conclusions of law:</p> <p>“1. Defendant had no right to remove the boiler at the time when it did remove the same.</p> <p>££2. The defendant has no right to remove the pump.</p> <p>££3. The plaintiff is entitled to recover the value of the boiler.</p> <p>“4. As between the parties hereto, the pump is the property of the plaintiff.</p> <p>££ 5. The defendant was a trespasser in its use of the boiler and pump.</p> <p>“6. The plaintiff is entitled to recover for the injury to the boiler-house.</p> <p>“7. The plaintiff is entitled to recover from the defendant the sum of $150, as follows: For value of boiler, $100; for damages by removal of boiler, $25; for damages to boiler-house, $25; total, $150.”</p> <p>A judgment was rendered in conformity to the conclusions of law; complaining of the judgment, the defendant brings the case here, and asks for a review, and judgment in its favor on the agreed statement of facts.</p>

Error from. Harper District Court. The facts are stated in the opinion. Judgment for plaintiffs, Merrick & Rinehart, for $798.17, on October 28, 1886. The defendants, Hammers and Forbes, bring the case here.

Error from Elk District Court. Action to recover damages caused by fire. Trial at the May term, 1887, Hon. L. Scott, judge pro tern., presiding; verdict and judgment for $200 damages for plaintiff Gibson. The defendant Railroad Company brings the case here. The opinion states the facts.

Error from Barton District Court. The plaintiff in error brought an action on an injunction bond executed by defendants in error and Janies E. Julian. On appeal, it was tried at the October term, 1886, of the Barton district court, by the court without a jury.

Error from Lincoln District Court. S. H. Brunt, county surveyor of Lincoln county, in February, 1887, made a survey of the township line in range 9 west, and between townships 12 and 13 south, which had been disputed. A certified report thereof is as follows: “Plat and Field-Notes of survey for Geo. Huhl and others of Lincoln county, state of Kansas, section 1 in township 13, south of base line, range 9, west of 6th principal meridian.

Error from Elk District Court. This was an action brought in the district court of Elk county by B. C. Smith against H. J. O’Brien and E. H. Hudson, to recover $1,126.50 for personal services, and for the use of a horse and wagon.

Original Proceeding in Mandamus. Application by The State, upon the relation of S. B. Bradford, attorney general, for a writ of mandamus to A. F. Maloy as sheriff of Gray county; J. L. Cailey, as clerk of the district court; George B. Antrim, as county clerk; J. H. Williams, as county treasurer; E. J. Clark, as register of deeds; F. P. Hammer, as superintendent of public instruction; J. R. Brady, as probate judge; J. L. Bower, as county surveyor; and George W. Dunn, as…

Error from Dickinson District Court. Condemnation proceeding for a railroad right-of-way. Judgment for the plaintiff Town-Site Company, at the May term, 1887, for $7,400 damages. The Railroad Company brings the case here.

Motion for Rehearing. The facts are sufficiently stated in the opinion, filed at the session of the court in July, 1889.

Motion for Rehearing. The material facts are stated in The State v. Malo, ante, pp. 54, et seq., and in the opinion herein, filed, on October 5, 1889.

<p> Original Proceeding in Mandamus. </p> <p>The facts are fully stated in the opinion, filed at the July, 1889, session of the court.</p>

Error from, Shawnee District Court. This case was commenced by George W. Tourtellott and George P. Allcutt, October 23, 1879, in the district court of Wyandotte county, against Charles Wilkins, Nicholas Me Alpine, James M. Mason, et al., to recover a tract of land in Kansas City, in Wyandotte county, 289 feet long by 120 feet wide, excepting two small parcels thereof, specially mentioned in the petition.

<p>Highway — Dedication, Not Proven. To constitute a dedication of a public highway, an intention on the part of the owner to dedicate is absolutely essential, which must be clearly and unequivocally shown; and it is held that the facts in the present case are insufficient to prove a dedication.</p>

Original Proceeding in Quo Warranto. The facts are stated in the opinion, which was filed at the session of the court in July, 1889.

<p>Liee-Insubanoe Policy — Conversion—Measwreof Damages — Bide. In an action to recover damages for the conversion of a life-insurance policy, where the insured is still in good health and his life insurable, the measure of damages for the conversion would be the present value of the amount of the benefit named in the policy, less the present value of the cost in premiums it would require to procure another policy of like kind and value on the same life, taking into consideration, in making these estimates of value, the life expectancy tables; but where the insured is not in good health, and his life not insurable, it would be necessary, first, to ascertain from the life expectancy tables, from proof of his general condition of health, and from the testimony of experts, the number of years he iá likely to live, and then compute the present value of the amount of the benefit named in the policy, and the present value of all the premiums to be paid thereon during such life; and where the present value of the benefit is greater than the present value of the premiums to be paid, the difference between such values would be the measure of damages.</p>

On the 2d day of May, 1889, the following information, omitting caption and verification, was filed in the district court of Elk county: “I, the undersigned, county attorney of said county, in the name, by the authority and on behalf of the state of Kansas, give information that on the 8th day of March, 1889, in said county of Elk and state of Kansas, one James Angel did then and there unlawfully, feloniously, forcibly and fraudulently decoy, entice, take and carry away from…

<p> Original Proceeding in Mandamus. </p> <p>The opinion, filed at the July session, 1889, of the court, states the material facts.</p>

<p> Original Proceeding in Mandamus. </p> <p>The opinion, filed at the October, 1889, session of the court, contains a sufficient statement of the case.</p>

Error from Anderson District Court. The opinion states the case. Judgment for plaintiff Cwyhendall at the March term, 1887, for $190 damages. The defendant Company brings the case to this court.

Error from Anderson District Court. The opinion states the case. Judgment for plaintiff McAfee at the March term, 1889. The defendant railroad companies bring the case to this court.

Error from Wyandotte District Court. Action brought by Wahlgren, to enjoin the collection of a special assessment levied to pay for the grading of a street. On February 23,1889, the district court denied the plaintiff’s application for a preliminary injunction, and to review this order he brings his petition in error.

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

Error from Wabaunsee District Court. On the 27th of October, 1886, A. F. Aderholt filed bis petition, alleging a partnership in the butchering business with Edward Krapp, commencing on the 26th day of May, 1886, and asking for an accounting and winding-up of the business. Krapp filed an answer containing a general denial only. The issues of fact in the case were referred to M. Nicolson, Esq., for hearing, on or before the 15th day of December, 1886.

Error from Atchison District Court. The opinion contains a sufficient statement of the facts. Judgment for plaintiff Smith, at the September term, 1887. The defendant Bevens brings the case here.

Error from Franklin District Court. The opinion states the facts. Judgment for defendant Rohrbough, at the October term, 1887. The plaintiff City brings the case here.

<p> Error from Reno District Cowrt. </p> <p>The case is stated in the opinion.</p>

Original Proceeding in Mandamus. Petition filed in this court, on December 31,1888. The opinion, filed at the session of the court in July, 1889, states the nature of the action, and the material facts.

<p> Original Proceeding in Quo Warranto. </p> <p>The opinion, filed at the session of the court in July, 1889, states the material facts.</p>

Error from Shawnee District Court. Action to recover on a fire insurance policy. Judgment for plaintiff Hillmer, at the December term, 1886. The defendant Company brings the case to this court. The material facts are stated in the opinion.

The fact-s are stated in Insurance Go. v. Hillmer, supra, and in the opinion herein, filed at the session of the court for July, 1889.

Error from Miami District Court. Action brought by Mary E. Lott, to recover of the railroad company for personal injuries received by her while attempting to cross the defendant’s railroad in Miami county. At the time of the injury she was riding on horseback. The horse was struck and killed, and the plaintiff injured and bruised, from the effects of which she suffered very much in her health.

<p>Qtjo Waebanto — County Offices. Upon the facts stated, judgment for plaintiffs for the possession of the offices, for damages for the detention thereof, and against the defendants for costs. {The State, exrel., v. Fulton, ante, p. 164, approved, and followed.)</p>

Error from EioMnson District Court. This was an appeal from an award of commissioners, condemning a right-of-way for the Chicago, Kansas & Western Eailroad Company, through the northeast quarter of section 33, in township 15 south, of range 3, in Dickinson county. The total damages allowed by the commissioners were $246.40. Trial had at the June term, 1887. The jury assessed the damages at $1,040, and also returned the following special findings of fact: “1.

Error from, Greenwood District Court. Action brought by Orvis against DeFord, as sheriff of Greenwood county, to recover the value of a stock of goods seized and sold by defendant to satisfy certain j udgments against H. Malloy. Trial at the May term, 1886; verdict and judgment for the plaintiff for $2,185.66. The defendant brings the case here.' The material facts appear in the opinion.

Error from Shawnee District Court. Action by The State to recover upon a bond given in a certain bastardy proceeding. The material facts are stated in Sowders v. The State, 37 Kas. 209, and in the opinion herein, filed October 5, 1889.

Error from Pratt District Court. Action by Bretches and another against Chinn, to recover $300. Trial at the April term, 1887, and judgment for plaintiffs for $177. The defendant brings the case to this court. The opinion states the facts.

<p>1. Physician, Not Guilty of Murder or Manslaughter. A practicing physician and surgeon who makes an examination of the womb of a patient to learn its condition or whether she is pregnant, with an instrument commonly employed for that purpose, and who, without evil intent or culpable negligence, inadvertently inflicts a wound which results in the death of the patient, is not guilty of murder or manslaughter.</p> <p>2. Judgment, Not Sustained. The evidence in the case examined, and held to be insufficient to sustain the judgment of conviction.</p>

<p> Error from Shawnee Ejstrict Court. </p> <p>The opinion states the case.</p>

Lucy Tennison was charged with the murder of her husband J. D. Tennison, by means of poison. She was tried at the January term, 1889, found guilty as charged, and sentenced for murder in the first degree. She appeals.

<p>Specific Pebeobmanoe — Inchoate Interest of Wife — Referee—Practice. W. brought an action against E. and wife for a deed on a contract to convey, clear of incumbrance, four lots, not a homestead, in the city of Topeka, owned by E. The only allegation concerning Mrs. E. or her interest in the lots was, that she was the wife of E., and claimed some interest in them. After a jury had rendered a verdict in favor of W. and against E., and had been discharged, and a judgment rendered in favor of E.’s wife for costs, W., without any amendment of his petition, offered to prove the value of her supposed inchoate right or interest in the lots as E.’s wife, and also then asked to refer the question of its value to a referee, or for the court to frame and submit the question of its value to another jury. The court refused to hear further testimony, and denied both W.’s motions. Held, No error.</p>

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

Error from Woodson District Court. Action by Morrow against the Railroad Company, to recover damages for defendant’s right-of-way across plaintiff’s land. Trial on March 15, 1887, and verdict for plaintiff for $750. New trial denied, and judgment on the verdict for plaintiff. The company brings the case to this court.

Ph'ror from Woodson District Court. Action by Turner against the Railroad Company, to recover damages for defendant’s right-of-way over his land. Trial at the March term, 1887, and verdict for plaintiff for $1,302.75. New trial denied defendant, and judgment rendered accordingly for plaintiff. The defendant company brings the case to this court. The facts appear in the opinion.

Error from Johnson District Court. The opinion states the case. Judgment for plaintiff Woodcock for $55, at the September term, 1887. The defendant company brings the case here.

Error from Era/nlclin District Court. Action brought by Fogle, defendant in error, against Towle and wife, and E. P. Short, the plaintiff in error, to foreclose a mortgage on certain real estate in the town of Williams-burg. The Towles made default, and the plaintiff in error Short filed an answer and cross-petition alleging a mortgage upon the same property, and asked to have the same foreclosed and made a prior lien to plaintiff’s mortgage.

Error from, Woodson District Court. John Lind was the owner of the north half of section 32, township 25, range 16, in Woodson county. In February, 1887, The C. K. & W. Rid. Co., in the method provided for by law, condemned a right-of-way through this tract. Commissioners were appointed, and their report was filed with the county clerk on February 15; on the 22d the plaintiff appealed from the award of damages; trial in the district court on March 15, 188-.

<p>Railboad Company — Stock-Killing Law — Erroneous Instruction. In an action brought by the plaintiff against a railroad company to recover the value of stock which plaintiff alleged were killed at a public crossing by the negligence of the railroad company, the bill of particulars alleged, among other things, “ That the whistle of the engine was not sounded as prescribed by law, and that in consequence thereof the stock were not warned of the approach of the train until it was too late to prevent them from being killed, and that if the whistle of the engine had been sounded as prescribed by law, the person in charge of the stock could have prevented any injury.” The bill of particulars further stated, “That the railroad company permitted a very high and dense growth of hedge to extend out on its right-of-way, and nearly to the track;” and further stated, “It prevented persons traveling upon the public road from observing the approach of trains.” Held, That under the allegations of the bill of particulars, it was misleading and erroneous to instruct the jury, “if the railroad company permitted and suffered a hedge to stand upon its right-of-way so as to obstruct the view of the track, and but for such obstruction the injury to the stock would not have happened, the company is liable for the injury to the stock.” Held, also, That where it appears from the instructions and findings of the jury, under the allegations of such a bill of particulars, that the liability for the injury to the stock was fixed by the jury for the negligence of the railroad company in permitting the hedge to grow upon the right-of-way as alleged, the verdict and judgment must be set aside.</p>

<p>Registbation Act — Application to City of First Class. The act of the legislature relating to the registration of voters, etc., approved March 2, 1889, (being chapter 206 of the Laws of 1889,) applies only to cities of the first class where more than 6,000 votes were cast at the general election in November, 1888, or shall be cast at some future general election.</p>

Error from Mitchell District Court. Action brought by The First National Bank of Beloit, against Joseph Hill, to enjoin the defendant from, erecting a partition across the head of a stairway of a certain building, the property of said Hill, and situated on lot 12, block 12, of the city of Beloit. Judgment for plaintiff, at the January term, 1887. The defendant brings the case here. The opinion states the facts.

Error from, Wabaunsee District Court. The opinion states the facts. Judgment for plaintiff Loehr, at the November term, 1887. The defendant brings the case here.

<p>Mechanics’ Lien, Judgment Denying, a Bar. Where, in an action to foreclose a mechanics’ lien against F., B., the owner of the real estate, is made a party, and judgment is rendered against F. for the material but a lien is denied against the real estate of B., and afterward B. conveys the property to other parties in good faith, and afterward and within one year plaintiff brings proceedings to set aside such judgment, which is granted as to F. but denied as to B., and no action is taken by the plaintiff to reverse or vacate such judgment, and afterward the grantees of B. are made parties defendant with F., held, that plaintiff is concluded by the judgment in B.’s favor from maintaining proceedings to establish a lien against the property.</p>

Error from Atchison District Court. On the 28th of June, 1881, the defendants in error, who were plaintiffs below, purchased at St. Joseph, Missouri, of J. P. Quigley, manager of the western branch office of defendant company, a Champion harvester and cord binder, and on the same day took it to the farm of one of the defendants, near Troy, Kansas.

Error from Pottawatomie District Court. On the 5th day of February, 1886, in an action pending in the district court of Pottawatomie county, wherein Joseph Rosevear and Thomas W. Eoach were plaintiffs, and T. J. Peter, Mary Jane Peter his wife, and C. G. Means, W. W. Means, and C. H. Means, co-partners doing business under the firm-name of C. G. Means & Sons, were defendants, Eosevear and Eoach recovered a judgment upon a note against T. J. Peter and Mary Jane Peter for…

Prosecution for keeping a bawdy-house. At the April term, 1888, the defendant Jaohson was found'guilty, and sentenced to pay a fine of $1,000 and costs. He appeals. The opinion states the case.

Error from Shawnee District Court. The opinion states the ease. Judgment for plaintiff Martineau against The City for $800, at the September term, 1886. The defendant brings the case here.

Error from Leavenworth District Court. Ejectment. Judgment for plaintiff Boyle, at the June term, 1886. The defendants Douglass and another bring the case to this court. The opinion contains a statement of the facts agreed upon by the parties.

Error from Jackson District Court. Action brought by the plaintiff in error to enjoin the opening of a highway through her land. At the trial, at the November term, 1885, a judgment was rendered for the defendants. The court made findings of fact as follows: “1. The plaintiff at the commencement of this action was and still is the owner and seized in fee of the premises in her petition described, and has been the owner thereof since the 12th day of October, 1883. “2.

<p> Error from Allen Eistriet Court. </p> <p>Petition in error to review an order dissolving an attachment. The opinion states the facts.</p>

Original Proceeding in Mandamus. Proceeding brought by the authorities of Hodgeman county to compel the board of county commissioners of Garfield county to levy certain taxes on territory which is now a part of Garfield county, but which was formerly included within the boundaries of Hodgeman county, for the purpose of paying the interest on and providing a sinking fund for certain bonded indebtedness of Hodgeman county.

Error from Morris District Court. Action by plaintiffs Butler and another against the County, to recover damages resulting from the opening of a public road through their land. Judgment for the defendant, at the November term, 1886. The plaintiff brings the case here. The material facts appear in the opinion.

Prosecution for grand larceny. Trial at the April term, 1889. The defendant Book was found guilty, and sentenced for five years. He appeals. The opinion states the facts.

On January 12, 1889, there was filed in the district court of Edwards county the following information, omitting caption, signature, and verification: “I, W. H. Kobb, 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 11th day of April, 1888, in said county of Edwards and state of Kansas, one D. M. Jessup did then and there unlawfully,…

Original Proceeding in Mandamus. Petition filed in this court on October 10, 1889. Answer to alternative writ filed on October 22, following. The plaintiffs, George H. Evans, J. J. Cox, and J. A. McCall, partners as Geo.

Error from Lyon District Court. Injunction, to restrain the collection of a certain tax. Judgment for the plaintiff Smith, at the February term, 1889. The defendant City brings the case to this court. The opinion states the facts.

Error from Franklin Eistriot Court. The Council Grove, Osage City & Ottawa Railway Company, by proper proceedings, caused to be condemned a strip of land through the farm of Mary Center, and she was awarded $390 as damages, from which award she appealed to the district court. Trial at the January term, 1887, and verdict and judgment for the plaintiff for $1,005.23. The Railway Company brings the case here.

<p>1. Rape — Cross-Examination — Proper Question. At the trial of a criminal action wherein the defendant was charged with having committed rape five times upon the witness, between the 1st day of April, 1888, and the 1st day of August of the same year, and her testimony tended to show that the offenses were committed in the months of February, March and April, 1887, it was proper to ask in cross-examination if she did not swear before the grand jury that the special offense about which she was then testifying was perpetrated on the 13th day of April, 1888.</p> <p>2. Question — Error to Forbid Answer. Where the state at such trial introduced testimony showing that a sister of the prosecutrix saw the crime committed, and the defendant in making his defense asked the sister whether or not she was present and saw the offense, it was error to refuse to allow her to answer that question.</p> <p>3. Leadinq Questions — Discretion of Court. It is largely within the discretion of a trial court to permit leading questions to be asked; yet, unless there is some special or apparent reason why they should be, the court should not permit them to be asked continuously concerning the material and important facts to be proven, when the witness is a willing witness and of full age.</p>

<p>False Pbetenses — Obtaining Money — • Verdict of Guilty, Sustained. A firm, of which the defendant was a member, kept about 390 steers during the summer and part of the fall of 1887, in the Indian Territory. On the 20th of November 202 head of them were shipped to Kansas City, Mo., and sold with defendant’s knowledge. On the 9th day of December he executed a bill of sale for 383 head as being at “Hayden’s ranch, on Lightning creek, Indian Territory,” and stated then that a few of them might have died and the others might be scattered, but that there were at least 383 in the Indian Territory. Relying upon this statement, the purchaser paid $2,000 in cash to a bank to liquidate the indebtedness of the firm to which the defendant belonged. Held, The evidence was sufficient to sustain a verdict against the defendant of guilty of obtaining money under false pretenses.</p>

Original Proceeding in Habeas Corpus. On the 3d day of September, 1889, there was filed in the district court of Meade county, against T. O. Bozeman, an information in the following words and figures, omitting caption, signature, and verification: “I, R. W. Griggs, 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 20th day of August,…

Error from, Miami District Court. Action to quiet title. Judgment for defendants Wilgus and others, at the October term, 1887. The plaintiffs, the Cou/nty Board of Miami county and the Board of Education of the city of Paola, bring the case here. The opinion states the material facts.

Error from Cowley District Court. The opinion states the case. Judgment for plaintiff Hurst, at the December term, 1886. The defendant company brings the case to this court.

Error from Bice District Court. The opinion states the case. Judgment for defendants Barstow and two others, at the September term, 1887. The plaintiffs, Thomas Kane & Co., bring the case here.

Prosecution for a violation of the prohibitory liquor law. At the September term, 1888, the defendant George A. Druitt was tried and found guilty on the first and fourth counts of the information. New trial denied, and sentence on each count to pay a fine of $500, to be imprisoned in the county jail ninety days, and to pay the costs of the prosecution. Defendant appeals.

.Error from, Lyon District Cov/rt. In September, 1886, H. G. Bonham was engaged in the grocery business at Emporia, Kansas; he had been in the business about two years. Upon the 25th of September he purchased of plaintiffs in error, who were plaintiffs below, $477.25 of Chase & Sanborn’s coffee on a credit of sixty days.

Error from Miami District Court. On October 31, 1883, D. Wygal & Son being indebted to S. G. Bigelow for that amount, gave their five promissory-notes for $3,236.19, with 10 per cent, interest. These notes were payable at different times, but they all became due by October 30, 1884.

Error from, Johnson District Court. Action to compel the specific performance of a contract to convey certain land. Judgment for defendant McKittrick, at the January term, 1888. The plaintiff Henry brings the case to this court. The material facts are set forth in the opinion.

Error from Harvey District Court. On September 1,1886, Hugh Fox instituted an action against the St. Louis, Fort Scott & Wichita Railroad Company, and on September 1, 1887, by permission of the court, Fox filed a supplemental and amended petition making The Fort Scott, Wichita & Western Railway Company an additional party defendant, of which the’ following is a copy: “Comes now the plaintiff, and for his amended petition herein says, that the defendant, the St. Louis, Fort…

Error from Wyandotte District Court. The opinion states the case. Judgment for the City, at the March term, 1888. The Railway Company brings the case to this court.

ffl'ror from Chase District Court. This action was tried at the June term, 1887, of the district court. The following statement of facts was agreed to by N. S. Goss, as plaintiff, and Martha E. Young, S. P. Young and Phebe M. Boynton, as defendants: “1. This is an action by N. S. Goss to foreclose a mortgage made to him by John Emslie and Jane Emslie his wife, on the southwest quarter of section 33, township 19, range 8 east, in Chase county.

Error from, Harper District Court. Ejectment. Judgment for the plaintiffs Wing and four others, at the January term, 1887. The defendant Coulson brings the case here. The facts are stated in the opinion.

Error from, Brown District Court. This action was brought by Henry C. Baker, receiver of the Elevator and Mill Company, of Everest, against the defendants. Trial at the January term, 1887, of the district court, and judgment was rendered in favor of the defendant, the State Savings Bank of St. Joseph, Missouri, and Benjamin F. Harpster.

Error from Ellis District Court. The opinion contains a sufficient statement of the case. Judgment for the defendant Motz, at the January term, 1887. The plaintiff Feidler comes to this court.

Error from Shawnee District Court. Ejectment. Judgment for defendants, Hannah C. Geer and another, on January 14, 1886. The plaintiffs, Julia A. Stinson and four others, bring the case to this court. The material facts appear in the opinion.

Error from Douglas District Court. This was an action brought in the district court by the Merrimack Savings Bank and against Enut Ketels, Catherine Margaretta Louisa Ketels his wife, Julius Ketels, Mary Ketels his wife, Carl Ketels, The Frick Company, a corporation organized and existing under the laws of Pennsylvania, and Erick & Company, another .corporation existing under the laws of Pennsylvania, the Kansas Loan & Trust Company, E. M. Sheldon and T. B. Sweet, upon…

Error from Labette District Court. The opinion states the case. Judgment for the defendant Board, at the November term, 1887. The plaintiff Kent brings the case here.

Error from Crawford District Court. Action to recover damages for bodily injuries. Trial at the January term, 1887, and verdict and judgment for plaintiff Morgan, for $500 damages. The defendant company brings the case to this court. The facts appear in the opinion.

Error from Greenwood District Court. In October, 1886, the defendant in error commenced action in justice’s court against the defendants, asking judgment for the amount of $129.16. The defendants answered by a general denial, an offset, and the tender of $25, and deposited that amount with the justice of the peace. A trial was had before the justice and a jury, and a verdict rendered in favor of defendants for $22.14.

<p> Error from Leavenworth District Court. </p> <p>Ejectment. The opinion staffs the case.</p>

Fkror from Sumner District Court. IN December, 1885, Wells, Fargo & Uornpan~j obtained a judgment against the Merchants' and Drovers' Bank of Caldwell, and also J. S. Danford and W. D. 0. Smith. The judgment against the bank was taken for $9,120, and costs taxed at $96.50, on the 6th day of December, and the judgment against Danford and Smith was taken on the 28th of December, for tbe same amount.

Error from Olíase District Court. Condemnation for a railroad right-of-way. Judgment for plaintiff Cosper, for $2,474.41 damages, at the June term, 1887. The defendant company brings the case to this court. The opinion states the material facts.

Error from Linn District Court. On the 7th day of October, 1869, a plat of the town of La Cygne was duly filed in the office of the register of deeds of Linn county. The town thus platted contained about 150 acres. On the 14th of January following, the probate court of said county incorporated the original town of La Cygne and other territory adjacent thereto as the village of La Cygne.

Ph'ror from Atehison District Court. Action in ejectment, brought by George Manley against the Atchison & Nebraska Railroad Company, and the Burlington & Missouri River Railroad Company in Nebraska, for the recovery of lot number 1, in block number 111, in the city of Atchison. The second trial of the action was had before the court without a jury, in May, 1887, when the following conclusions of fact and of law were found and stated: “1.

Prosecution for murder in the first degree. At the March term, 1889, the defendant Frank F. Wilson was tried and found guilty as charged; new trial denied, and sentence accordingly. He appeals.. The opinion contains a sufficient statement of the facts.

Error from Franklin District Court. This action was tried at the October term, 1887, of the district court, without a jury. The court made the following findings of fact and conclusions of law: “On September 26, 1886, the defendants, A. J. Sutton and E. A. Lusk, were carrying on a general mercantile business in Williamsburg, Kansas, and were indebted to the plaintiffs in the sum of $798.85.

<p> Original Proceeding in Quo Warranto. </p> <p>The opinion, filed at the session of the court in December, 1889, states the case.</p>

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

This is an appeal from a conviction for a felonious assault alleged to have been committed in the county of Chautauqua on November 18, 1887, upon the person of Willie Watson.

<p> Error from Ford District Court. </p> <p>The opinion states the facts.</p>

Error from Cloud Eistrict Court. Action brought by Frederick Somers upon a certificate of membership and proof of death of Martha Somers, his wife.

<p>Tenant — Note—Surety—Authority of Lessor. A surety on a note given by a tenant for the rental of land cannot dispute the authority of the lessor, when the tenant was given and held full and peaceable possession of the land for the entire term of the lease.</p>

Error from Shawnee District Court. The opinion, filed at the session of the court in November, 1889, contains a sufficient statement of the nature of the action, and the material facts.

<p> Error from, Leavenworth District Court. </p> <p>The opinion states the material facts.</p>

Error from Leavenworth District Court. The material facts are stated in the opinion. Judgment for plaintiff Usher, on January 28, 1888, for $2,517.83 damages. The defendant Company brings the case to this court.

Error from Pratt District Court. This was an action brought in the district court in the name of The State, by William Barrett, county attorney of Pratt county, to perpetually enjoin John Burkholder, E. N. Watson and J. D. Fitzsimmons, county commissioners, Demcy Lewis, county clerk, E. W. Farmer, county treasurer, and James K. Beauchamp and Tirzah F. Beauchamp, from carrying into effect a certain transaction whereby the Beauchamps sold and conveyed 240 acres of land to…

Error from Pottawatomie Eistriet Court. Action to recover $45.24. Judgment for plaintiff Codding, at the February term, 1887. The defendant Township brings the case here. The facts appear in the opinion.

Error from Shawnee District Court. This action was commenced on the 20th day of June, 1887, in the district court, by Harriet F. Green against Oliver Green, to obtain a divorce. She filed two affidavits, upon which she attempted to make service by publication. This service was defective, and not sufficient for the purpose of the statute. Although the defendant did not appear by answer or otherwise, judgment was rendered on the 1st day of October, 1887, against him.

<p> Error from Johnson District Court. </p> <p>The facts are stated in the opinion.</p>

Error from Shawnee District Court. Action brought by Thompson & Miller to recover of D. A. Plant and wife their commission for a sale of real estate. The plaintiffs were partners, selling real estate on commission. The defendants placed in their hands in January, 1887, a farm in Shawnee county for sale, the plaintiffs say for the price of $3,750, the defendants $4,000. The farm was subsequently sold to George Kellam by Mrs. Plant for $3,500.

Error from Harvey District Court. The opinion states the case. Judgment before a justice of the peace for plaintiff Shuster. The defendant Overturf appealed. At the May term, 1887, the plaintiff moved to dismiss the appeal. This motion was overruled. This ruling plaintiff brings here for review.

Error from, Marshall District Court. The opinion states the facts. Plaintiffs in error bring here for review the action of the court below at the December term, 1887, in dissolving certain, attachments.

Error from Osage Distriet Court. This was an appeal in the court below from the award of the commissioners as to the appraisement of value and the assessment of damages of the right-of-way of the Ottawa, Osage City & Council Grave Railroad through and across the southwest quarter of section 36, township 16 south, range 16 east, in Osage county, the property of R. E. Fisher. The commissioners allowed $175 as the amount of damages for the appropriation of the right-of-way.

Error from Wyandotte District Court. Action of replevin, brought by the Inter-State Galloway Cattle Company against J. K. McLain, to recover the possession of 347 steers. On November 9,1885, the cattle company was the owner of 361 steers, which were being held together in Edwards county, and the company tried to sell the whole lot to Samuel Martin, of Lincoln county.

<p>1. Exchange oe Lands — Misrepresentation—Action—Competent Evidence. At the trial of an action for damages caused by misrepresentation as to the location of a two-acre tract of land, it is competent for the plaintiff to show, that shortly after he traded a tract of farming land to the defendant for the two-acre tract, the defendant mortgaged the farming land for a large sum of money, as it tends to show motive by subsequent conduct.</p> <p>2. Ckoss-Examination — No Prejudice. At the trial of such an action, the defendant, testifying on his own behalf, was asked on cross-examination if he had not, about the time he made this exchange with the plaintiff, committed similar frauds against other persons, and he promptly denied that he had, and there was no other evidence introduced of similar frauds. Held, Whether this cross-examination was proper or not, the defendant was not prejudiced.</p>

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

This case was assigned for hearing at the March sitting of this court for 1889. The case was referred to and heard before the commission; Holt, C., preparing the report. Held: That the stipulation in such contract was no defense against her claim after notice. “2.

Error from Shawnee District Court. The material facts are stated in the opinion, filed on February 9, 1889. Tbe plaintiffs, in error filed a motion for a rehearing, which the court denied at the April session thereafter, but filed no opinion.

Ffrror from Sumner District Court. On the 26tb day of February, 1887, D. C. Lindley filed his amended petition against the Atchison, Topelca & Santa Fé Railroad Company, to recover $25,000 damages for certain personal injuries received by him on July 16, 1885, at a point upon the railroad between Lawrence and Argentine.

<p>New Total— New Judge Should Have Granted. Where a case is tried before the court and a jury, and a verdict is rendered in favor of the plaintiff, and on the same day the defendant files a motion for a new trial, setting forth as one of the grounds therefor that the verdict is not sustained by sufficient evidence, and before anything further is done the county in which the court is held is made a new judicial district, and a new judge is appointed therefor, and the motion for a new trial is presented to this new judge, with the additional ground that he cannot intelligently hear and determine the motion, and he overrules the same, and renders judgment in favor of the plaintiff upon the verdict of the jury, held, error; that as a party filing a motion for a new trial has a right to have the same heard before a judge who can hear and determine the same intelligently, and as the new judge in this case could not know what the evidence was which was introduced upon the trial, and therefore could not act upon the motion intelligently, and could not overrule the same without depriving the party filing the same of a statutory right, such new judge should have granted a new trial.</p>

<p>1. Countx-Seat Election — Duty of New Board to Complete Canvass. At the first election after the organization of K. county, held July 21, 1888, votes were cast for permanent county seat, and returns made from six precincts. The county board met to canvass the result of the election, when an order restraining them from canvassing the returns from two of the precincts was served upon them. Afterward they proceeded and canvassed the returns from four precincts, and upon that partial canvass certified that L. had received a majority of the votes cast for county seat. Within thirty days the restraining order was dissolved, the court holding that there was no just cause for its allowance; but the board did not then reconvene to complete the canvass. At the general election in November, 1888, a new county board was elected, and upon January 11, 1889, they convened as a canvassing board and canvassed the entire returns of the preceding July election, finding and declaring that no place had received a majority of the votes cast. Held, That it was the duty of the new board to meet and complete the canvass, and that it was proper and legal for it to do so without the command or compulsion of any court.</p> <p>2. Obiginal Retubns, iosi — Duplicate Returns, Used. Where the original returns of an election precinct have been lost or stolen from the county clerk’s office and cannot be obtained, the board in making the canvass may use the duplicate returns retained in the township when they are properly identified as the genuine returns of the election.</p> <p>3. Sheeiít — Duty to Call Second Election. The canvassing board having declared that no place had received a majority of the votes cast, it was the duty of the sheriff on his own motion to call and proclaim a second election for the permanent location of the county seat.</p> <p>4. Injunction — No Bond Given — Void Order. Before the calling of the second election a temporary order of injunction had been allowed against the sheriff, to prevent him from calling a second election, which was to take effect on the execution of an injunction bond. This bond was not given, and the order was therefore inoperative and void. [The Slate, ex rel., v. Comm’rs of Rush Go., 35 Kas. 150.)</p> <p>5. Evidence Sustains Finding. The second election was held and the returns canvassed, when it was declared that H. had received a majority of the votes cast. Upon an examination of the testimony as to the honesty and legality of that election, the finding and declaration of the canvassing board are sustained.</p>

<p>1. Evidence — Demurrer, Overruled — Immaterial Error. Where a demurrer to the plaintiff’s evidence is overruled, when, owing to the omission of some testimony, it should have been sustained, and afterward the defendant introduced evidence which supplied the omission, and upon all the evidence introduced at the trial the. judgment was properly given for the plaintiff, the error became immaterial.</p> <p>2. Quitclaim Deed — Holder to Take Notice of Superior Titles. A person claiming to own land under a quitclaim deed executed to him, is bound to take notice of all superior titles to the land which might have been discovered by proper inquiry.</p> <p>3. Paeol Ageeement to Convey Land, When Inoperative. A parol agreement to convey land and full payment of the purchase-price, will not alone operate to pass the title thereto where no possession of the land is taken under the agreement, and no memorandum thereof is in writing.</p>

Error from Wabaunsee District Cov/rt. This was an action in ejectment, brought by Janes against Holmden, to recover possession of the undivided three-fourths of lot 7, section 8, township 11, range 13.

The opinion in Holmden v. Janes, supra, was filed on May-10, 1889. The defendant in error filed a motion for a rehearing, which was overruled at the session of the court in February, 1890.

Error from Coffey District Court. This was an action brought by Harry E. Kelley against. Ella P. McBlain, to quiet title to certain real estate in Coffey county. Various proceedings were had in the case, as will appear from the following findings made by the trial court on the final trial of the case, which findings, with the conclusions of the court, are as follows: CONCLUSIONS OF FACT. “ 1.

Error from Labette District Court. Action brought by the plaintiffs in error, tax-payers of the city of Chetopa, to enjoin a tax levied in the year 1888 to pay the interest and an installment of the principal of certain funding bonds issued by Richland township in the years 1879-80, to compromise and cancel $50,000 in bonds issued by the township in July, 1870, in payment of a subscription to the capital stock of the Missouri, Kansas & Texas Railway Company.