Volume 44 — Kansas Reports

Prosecution for murder in the first degree. From a conviction for murder in the second degree, at the September term, 1889, the defendant Spendlove appeals. The facts are substantially stated in the opinion.

Error from Reno District Court. On the 30th day of June, 1885, John Caldwell brought his action to have his title established to and recover possession of the northeast quarter of section 12, township 23 south, range 6 west, in Reno county. On January 24, 1887, the case was submitted to the court, a jury being waived. The court was requested by both parties to find separately the facts and law.

Error from Jefferson District Court. Action in the nature of ejectment, brought by Julia M. Goodman against Willoughby Nichols, to recover the northwest quarter of section 27, township 7, range 18, in the county of Jefferson, and also to recover for the rents and profits thereof and the damages for the withholding of the possession of the same from the 1st day of March, 1875, until the commencement of this action.

<p> Mr or from Wyandotte District Court. </p> <p>Injunction to restrain the collection of a certain tax. Judgment for the defendant City and others, at the March term, 1888. The plaintiff Railway Company brings the case to this court. The material facts appear in the opinion.</p>

<p>County-Seat Election — Votes Procured by Fraud, When Counted Out. In an election for the permanent location of a county seat, when the evidence discloses the fact that a large number of the votes cast for the successful candidate were procured through bribery, fraud and corruption of the partisans of such candidate, said votes should be rejected, if they can be ascertained, and deducted from the entire poll and from the total vote of said candidate.</p>

<p> Error from Leavenworth District Court. </p> <p>Injunction, by The State against E. C. Davis, a druggist of the city of Leavenworth. The material fácts are stated in the opinion.</p>

<p> ,Original Proceeding in Habeas Corpus. </p> <p>Petition filed in this court on April 21, 1890. The material facts appear in the opinion,</p>

Error from Sumner District Court. The facts are stated in the opinion. Judgment for plaintiff Gould, at the May term, 1888. The defendant Railway Company brings the case to this court.

Prosecution for selling intoxicating liquor in violation of a city ordinance. Judgment for the defendant Webb, on October 5, 1889. The City comes to this court. The material facts appear iu the opinion.

Appeal from, Rice District Court. The opinion, filed during the June session, 1890, of this court, contains a sufficient statement of the case.

<p> Appeal from Atchison District Cowrt. </p> <p>The case is stated in the opinion.</p>

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

Prosecution for a violation of the prohibitory liquor law. From a conviction, at the April term, 1889, the defendant Schaefer appeals. The facts sufficiently appear in the opinion.

Error from Shawnee District Court. This was an action in the nature of ejectment, brought in the district court of Shawnee county, on August 4, 1885, for the recovery of certain land hereafter described. At the September term, 1887, the case was tried before the court below without a jury, and the court made the following findings and conclusions of fact and law, and rendered the following judgment: “findings of fact. “1.

<p> Original Proceeding in Habeas Corpus. </p> <p>Petition, filed in this court ou April 29, 1890. The material facts are stated iu the opinion,</p>

<p>Eminent Domain — Damages—Instructions—Error. On the trial of an appeal from the award of commissioners, made in condemnation proceedings for a right-of-way for a railroad company, it is error for the trial court to instruct the jury that they may take into consideration, as tending to depreciate the market value of the land through which the right-of-way is located, the damages for stock liable to be killed by moving trains, and for fires liable to be set out by locomotives, passengers, and employés, without making any distinction between what may be negligently done, and what may occur accidentally and without negligence.</p>

<p> Error from Atchison District Court. </p> <p>The ease is fully stated in the opinion.</p>

<p>The case of Coal Co. v. Emlen, ante, p.117, followed.</p>

Error from Ellis District Court. Action for the specific performance of a contract for the purchase of certain land. Judgment for plaintiff Emig, on June 13, 1887. The defendants Wilson and two others bring the case to this court. The facts appear in the opinion.

<p> Original Proceeding in Mandamus. </p> <p>The opinion, filed at the session of the court in June, 1890, contains a sufficient statement of the case.</p>

<p>1. Information — Indorsement of Names of Witnesses — Discretion of Court. It is within the discretion of the court trying a criminal cause to admit the testimony of witnesses whose names were not indorsed upon the information until the beginning of the trial, and the defendant has no cause to complain unless there has been an abuse of that discretion.</p> <p>2. Beverage, Intoxicating Quality of — Evidence. In a prosecution for the unlawful sale of intoxioating liquors, where a controversy arises as to the intoxicating quality of the beverage sold, testimony that the defendant had a jug of whisky in stock at his place of business about the time of the alleged sale, and that the persons who drank the beverage became intoxicated, tends to sustain the charge of the state, and is admissible in evidence.</p> <p>3. --The testimony in the record is sufficient to sustain the conviction.</p>

Error from Bourbon District Court. Injunction brought by Kaufman, and many others, against the City of Fort Scott, and others, to restrain the collection of a certain tax. Judgment for the plaintiffs, on June 1, 1889. The defendants bring the case here. The material facts appear in the opinion.

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

<p>Attachment — Iden, Discharged — Ruling, When not Reversed. This court will not reverse a ruling of the district court sustaining a motion to discharge certain specific personal property from the lien of an order of attachment, in a case where a large number of witnesses were examined orally, the record of whose testimony makes over a hundred pages, and about which there is much conflict, there being direct and positive evidence to support the ruling of the trial court.</p>

Error from Labette District Court. At the October term, 1889, judgment was rendered for the defendant Wilson, as sheriff of Labette county; the plaintiffs Winton and another, bring the case to this court. The nature of the action, and the material facts, are set forth in the opinion.

Error from Kingman District Court. Action to recover the value of certain corn. Judgment for the plaintiff Bias, at the September term, 1887, for $80. The defendants bring the case to this court. The facts appear in the opinion.

Error from Osage District Court. Action to recover on a promissory note. Judgment for the defendant executrix, at the June term, 1887. The plaintiff brings the case to this court. The facts, so far as material, are stated in the opinion.

<p> Error from Osage District Court. </p> <p>Action on a forfeited recognizance. The case is stated in the opinion.</p>

Error form, Chase District Court. Replevin by Ghñffis as sheriff, against Lyeth. Judgment for the plaintiff, at the December term, 1887. The defendant brings the ease to this court. The facts sufficiently appear in the opinion.

<p>County OtfirOEBS, Fees of — Valid Statute. Chapter 159, Laws of 1887, took effect and was in force after its publication in the statute book, and upon the expiration of the terms of all the officers named therein. Said chapter states a time when it shall take effect and be in force, and is therefore not in conflict with the first clause of $19> article 2 of the constitution.</p>

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

Ki'ror from Sedgwick District Court. Lemuel Abbott brought an action in the district court of Sedgwick county, against the Chicago Kansas & Western Railroad Company, and in his amended petition, filed March 21, 1887, he stated in substance: “1.

<p>Vebdiot, When Not Disturbed. Where there is any proper evidence to support the verdict of a jury, approved by the trial court, this court will not disturb such verdict.</p>

<p> M'i'or from Brown District Court. </p> <p>The case is sufficiently stated in the opinion.</p>

<p>County Seat, Remains Precisely Where Originally Located. A county seat will remain precisely where it was originally located, until changed or removed under the provisions of the constitution and statutes of the state; and held, where a county seat was located upon the territory of an incorporated city, and afterward the boundaries of such city were enlarged, this extension of the boundaries of the city did not have the effect to extend the boundaries of the county seat, but the county seat remained precisely where it was originally located.</p>

<p> Appeal from, Norton District Court. </p> <p>The case is stated in the opinion.</p>

<p> Error from Shawnee District Court. </p> <p>Ejectment. Judgment for the defendant Redden, at the January term, 1888. The facts are stated in the opinion.</p>

Error from, Jackson District Court. Action to restrain the collection of a certain tax. Judgment for defendants, the treasurer and the sheriff of Jackson county, at the March term, 1888. The plaintiff Gibbins brings the case here. The facts are stated in the opinion.

<p>1. Instbdotion, When Error to Refuse. It is error to refuse to give a special instuction which correctly states the law, and is material under the evidence, unless the court in its general instructions sufficiently instructs the jury upon the matter presented by the special instruction asked and refused.</p> <p>2. Vebdiot ob Findings' — When Set Aside, When Not. Where there is a conflict in the testimony of witnesses, it is the exclusive duty of the jury to weigh and determine what facts such evidence proves, and when there is any proper evidence which supports the verdict or findings of the jury, such verdict or findings will not be set aside, although the apparent weight of the evidence is against the verdict or findings ; but where there is no evidence to support a verdict or a finding, and much more where the verdict or findings are against all the evidence in the case, they should be set aside.</p>

Error from Labette District Court. Action brought by Joseph Anderson and many other citizens and tax-payers of the city of Oswego, to enjoin the collection of taxes levied upon their property situate within the corporate limits of the city of Oswego.

Error from, Kearny District Court. The plaintiff filed a petition on March 16, 1889, a copy of which, omitting the title, is as follows, to wit: “The plaintiff complains of the defendant, and says that the county of Kearny, in the state of Kansas, was at all the times herein mentioned an organized county of said state; that the defendant, the First National Bank of Larned, Kansas, was at all times herein mentioned a corporation duly organized under the laws of the state of…

Error from, Wyandotte District Court. A sufficient statement of the facts is contained in the opinion. Judgment for the defendant Company, at the September term, 1889. The plaintiffs, Brown Bros., bring the case to this court.

<p>1. Pebsonal Pbobebtx, Sold after Time for Listing — Tax, Who to Pay. The person who owned certain personal property on the 1st day of March, 1886, was under a legal obligation to list such property for taxation for the year 1886, when called upon by the assessor to do so, and to pay the taxes thereon, notwithstanding he sold and transferred the same on the 8th day of March, 1886.</p> <p>2. Vendob to Pay Tax — Purchaser, ¡Entitled to Injunction. A stock of merchandise that had been in the county during the entire preceding year, was sold and transferred on the 8th day of March, 1886. Thereafter the purchaser was assessed, and-a tax warrant issued, under whioh the sheriff threatened to levy on the property. Held, That the purchaser was not liable, under ¶ 6864, General Statutes of 1889, to pay the taxes levied on such property, it being the duty of the vendor who owned the property on the 1st day of March, 1886, to list the same for taxation; and that the purchaser was entitled to an injunction restraining the levy of the tax warrant.</p>

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

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

<p> Appeal from Barton District Court. </p> <p>The opinion states the case.</p>

Error from Bourbon District Court. Injunction. Judgment for plaintiff EmmeH, at the September term, 1888. The defendant Richardson brings the case here. The material facts are stated in the opinion.

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

Error from Saline District Court. The plaintiff Company brings here for review a certain order discharging an attachment made on July 6, 1888. The case is stated in the opinion.

<p>Supreme Court — Case Brought too Late for Review. Where a demurrer by the plaintiff is sustained as to the third paragraph of the defendant’s answer, and afterward the case is tried upon the issues presented by the petition and the remainder of the answer, and within less than one year after the rendering the judgment, but not within one year after the sustaining of the demurrer, the defendant, as plaintiff in error, brings the case to the supreme court, held, that the supreme court cannot consider the question whether the court below erred or not in sustaining the demurrer, as it is brought to the supreme court too late.</p>

Error from, Johnson District Court. Replevin. Judgment for the defendants, at the September term, 1887. The plaintiff Hogue brings the case here. The facts are set forth in the opinion.

<p> Original Proceeding in■ Habeas Corpus. </p> <p>The case is sufficiently stated in the opinion,</p>

Error from Republic District Court. The nature of the action, and the material facts, appear in the opinion. Judgment for Howell Bros., plaintiffs, at the May term, 1888. The defendant School District comes here.

Error from, Wichita District Court. The facts sufficiently appear in the opinion. Judgment for The State, at the November term, 1889. The defendant Brown brings the case here.

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

<p> Error from Butler Distriet Court. </p> <p>A statement of the case is in the opinion.</p>

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

Error from Ellsworth District Court. Action to recover wages. Judgment for plaintiff Liebert, at the May term, 1888. The defendant Jung brings the case to this court. The material facts appear in the opinion.

<p>1. Divoboe — Admissions as Evidence. The admissions of a party against himself are admissible in evidence in an action for a divorce> when it appears that the admissions have not been obtained by connivance,'fraud, coercion, or other improper means.</p> <p>2. Husband, Guilty of Adultery — Wife, Ditto. Divorce is a remedy protecting the innocent party, and is not intended for cases in which both parties are equally guilty; therefore, where the husband is shown to be guilty of adultery, he cannot have a divorce for adultery committed by the wife.</p> <p>3. Adudteby — Presumptive Evidence. Where an action is brought for divorce upon the ground of adultery, the proof to establish the adultery must be clear, positive, and satisfactory. Although presumptive evidence alone is sufficient to establish the fact of adulterous intercourse, the circumstances must lead to it, not only by fail-inference, but as a necessary conclusion; appearances equally capable of two interpretations, one an innocent one, will not justify 'the presumption of guilt.</p>

Prosecution for libel. Trial at the October term, 1889, and judgment for The State. The defendant Wait comes to this court. The facts, so far as they are material, are stated in the opinion.

Error from Chautauqua District Court. The case is stated ia the opinion. Judgment for the plaintiff, Cowgill, at the February term, 1888. The Company comes here.

<p> Error from Anderson District Court. </p> <p>The case.is stated in the opinion. Judgment for plaintiff Gedney at the September term, 1887. The Company comes here.</p>

M-ror from Miami District Court. Action to recover damages for bodily injuries. The facts are fully stated in the opinion. Verdict for the plaintiff Holcomb, at the February term, 1888, for $5,000 damages. New trial denied, and judgment given for the plaintiff. The defendant Company comes to this court.

<p> Error from, Johnson District Court. </p> <p>Injunction. The facts are stated in the opinion. Judgment for the defendant City, and others, at the January term, 1888. The plaintiff Giffen brings the case to this court.</p>

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

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

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

<p>Covenant Against Incumbrances — Breach—Damages. In an action by a grantee against a grantor upon a covenant by the grantor that the land conveyed was free and clear from all incumbrances, where it is alleged that another than the grantor had the right under a lease which would not expire for some years, to procure ice from the premises and a right-of-way across the premises for such purpose, the plaintiff may, upon proper and sufficient proof, recover substantial damages although he has paid nothing to extinguish the incumbrance nor been disturbed in his possession.</p>

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

<p>1. Divoboe— Cruelty — Pleading. It is error for the trial court to overrule a motion to make the petition, in an action for divorce, more definite and certain, which charges “That during the time the plaintiff lived with the defendant as his wife he was guilty of gross-neglect of duty and extreme cruelty toward the plaintiff.”</p> <p>2. Aots Complained of — Statement—Reasonable Certainty. In a petition for divorce for gross neglect of duty and extreme oruelty, the particular acts complained of and the dates of their commission should, be stated with reasonable certainty.</p>

Error from Allen District Court. Action to recover damages for killing cattle. Judgment for plaintiff Schmidt, at the November term, 1887, for $50 damages. The defendant Railway Company comes to this court. The material facts appear in the opinion.

<p>Attobnevs’ Lien for Fees — Independent Action to Enforce and Golleat. An action for false imprisonment in which the attorneys for the plaintiff had filed an attorney’s lien, and given notice thereof to the defendant in the action, was thereafter settled between the plaintiff and the defendant, and the plaintiff dropped out of the case; whereupon, without any motion for substitution, the case proceeded, over the objection of the defendant, as upon an issue between the plaintiff’s attorneys and the defendant for the recovery of the attorneys’ fees under their lien and notice. Held, Error; and that the attorneys must proceed in an independent action to establish their lien and collect their fees. (K. P. Ely. Go. -w. Thacher, 17 Has. 92.)</p>

Error from, Greenwood, District Court. On the 14th day of May, 1886, James Weatherbee commenced his action against Ettas Cockrell, and alleged in his petition that— “On or about the 28th day of January, 1879, plaintiff purchased the following-described lands situate in Greenwood county, to wit: The east half of section 23, in township 23 south, of range 12 east; that at the time of said purchase, said plaintiff caused and procured the conveyance of said land to Paul…

Error from Pratt District Court. Action to recover for personal injuries. Judgment for plaintiff Brown, at the April term, 1888. The defendant Company brings the case here. The opinion states the facts.

jError from Marion District Court. Action by J. C. Dwelle to recover damages from the Atchison, Topeka & Santa Eé Eailroad Company for wrongfully and forcibly ejecting him from one of its passenger trains.

Error from, Wyandotte District Court. Ejectment. Judgment for plaintiff Powell, at the February term, 1887. The defendant McAlpine brings the case here. The facts are sufficiently stated in the opinion.

Error from Republic District ■ Court. The opinion contains a sufficient statement of the facts. Judgment for the plaintiff Company, at the May term, 1888. The defendants, Delia Abbey and many others, bring the case to this court.

<p>1. Nolle Pbosequi — No Bar, The mere entry of a nolle prosequi, or the dismissal of an indictment, with the oonsent of the court, is no bar to the filing of another indictment or information for the same offense.</p> <p>2. Prosecution — Computation of Time. Where a prosecution fails, on account of a defective indictment or information, the time during which it is pending is not to be computed as a part of the time limited for prosecution, and the accused, after the nolle or dismissal of an indictment or information, may, within the time prescribed, be again proceeded against for the same offense.</p> <p>3. Statute oe Limitations — When Inoperative. The failure of a defective indictment or information and the presentation of a new and correct indictment or information after the statute has begun to run, does not revive the statute. The statute of limitations is put aside by the presentation and filing of an indictment against a defendant, and remains silent until the legal proceedings thereon are terminated. If a defective indictment is nolled or dismissed, with consent of the court, and an information is filed charging the defendant with the same offense, the information continues the legal proceedings which were commenced by the presentation and filing of the original indictment.</p>

Appeal from Thomas District Court. Prosecution for unlawful sale of intoxicating liquor. From a conviction at the March term, 1890, the defendant, Allison, appeals.

<p>Appeal, Defective — Case, Dismissed. Where the only record upon which an appeal from the district court is founded is an original bill of exceptions, which is not authenticated by the clerk of the district court, the supreme court acquires no jurisdiction, and the appeal should be dismissed.</p>

Appeal from Kingman District Court. Prosecution for unlawfully selling intoxicating liquors. From a conviction at the April term, 1890, the defendant, Ratner, appeals.

Error from Anderson District Court. The case is stated in the opinion. Judgment for defendant on September 28, 1887. The plaintiff BrooJc brings the case here.

Prosecution for libel. December 16, 1889, the defendant Brady was sentenced to pay a fine of $10, and the costs of the prosecution. He appeals. The facts appear in the opinion.

<p>1. County Warbant — Over-issue—Error in Admitting Evidence. Where an indictment charges the defendant, a member of the board of county commissioners, with corruptly voting for and allowing a claim in a sum too large, it is error to permit the introduction of evidence to prove that a warrant had been issued in payment of said claim in a sum larger, dollar for dollar, than the amount of the claim as allowed, without proving that the defendant voted to issue the warrant for said larger sum.</p> <p>2. Vebdiot, Not Supported. It is error in a trial court to refuse to set aside a verdict of the jury and grant a new trial when there is no evidence to support the verdict.</p>

Appeal from Ness District Court. The opinion states the facts. Trial at the January term, 1890, and judgment for The State. The defendant, Corning, appeals.

<p>Reoovebv oe Real Pbobebtv— Rents and Profits — Practice. Where the plaintiff’s action is for the recovery of real property, and also for rents and profits, and pending the action the defendant abandons the property, and the plaintiff then in effect dismisses that portion of his action which relates to the recovery of the real property, and proceeds with his action only as an action for rents and profits, and obtains a verdict and judgment for the value of the rents and profits, held, that the defendant is not entitled under § 599 of the civil code to another trial merely by demanding the same.</p>

<p> En-or from Woodson District Court. </p> <p>The opinion states the case.</p>

<p>Tax — Restraining Collection — Civil Code, Amended. Section 253 of the code of civil procedure is amended so far as restraining the collection of an assessment is concerned, by the provisions contained in § 1 of chapter 101 of the Laws of 1887, incorporated into the General Statutes of 1889, as ¶ 590.</p>

Error from Leavenworth District Court. Action to restrain the collection of a certain tax. Judgment for the defendant City, at the December term, 1887. The plaintiffs, Marshall and others, bring the case to this court. The facts appear in the opinion.

<p>1. Wobds, Slanderous. The following words, “What are you doing with that nine-dollar blackmailer here?” spoken of a woman, are actionable per se.</p> <p>2. --- Words not Privileged. The evidence in this case examined, and held, that the relation existing between the parties showed that the alleged Blanderous words were not privileged.</p> <p>3. Instbuotion, Not Erroneous. In an action for slander, it is not error for the trial court to instruct the jury that if they believe from the evidenoe that the words alleged to have been spoken, were spoken, and spoken maliciously, by the defendant, they were authorized to assess punitive damages against the defendant.</p>

<p> Motion for Rehearing. </p> <p>The facts are sufficiently stated in Hess v. Sparks, supra.</p>

<p>Habeas Coepus — Petitioner, Discharged, Where an application is made by a prisoner for his discharge upon habeas corpus, and the evidence fails to show the commission of any crime on the part of the petitioner, he should be discharged.</p>

<p>1. Pleadings — Evidence. The evidence in a ease must correspond with the allegations of the pleadings, and be confined to that point or points in issue.</p> <p>2. Finding oe Fact, When a Nullity. The findings of fact of a trial court must be upon the issue or issues made in the pleadings, and every finding of fact not found upon any issue is a nullity.</p> <p>3. Pleadings — Error in Receiving Evidence. Where the only issue presented by the pleadings to recover upon a promissory note is whether the defendants ever executed the note, and the court finds as a fact that the defendants never executed, or authorized the note to be executed for them, it is error, in the absenoe of any amendment to the pleadings, for the court, in order to show that the defendants are estopped from denying the execution thereof, to receive evidence and make findings showing that subsequently to the execution of the note, the defendants, by their acts and declarations, are estopped from contesting their signatures, or their liability upon the note.</p> <p>4. Oase-Made — Entire Evidence — Certificate. In order to have the question whether the evidence supports the findings and judgment examined, the case-made should show that it contains all the evidence. A statement to that effect in the certificate of the district judge settling the case, or in the notice served with the oase upon the opposing party, when such notioe is not a part of the case-made, is insufficient.</p>

Error from Chase District Court. The opinion states the case. Judgment against defendant Adam M. Clay, who brings the case here.

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

<p> Appeal from Montgomery District Court. </p>

Error from Marshall District Court. Ejectment. Judgment for the defendants, at the October term, 1889. The plaintiff Company brings the case to this court. The facts are stated in the opinion.

<p>Demubbeb to Evidence — Practice. Where, in the trial of an action, a demurrer is interposed to the plaintiff’s evidence on the ground that it does not prove any cause of action, held, that unless there has been a total failure upon the part of the plaintiff to prove a case, or some material fact in issue, the demurrer should be overruled. (Brown v.A. T. & S. P. Bid. Go., 31 Kas. 1, and Gardner v. King, 37 id. 671, followed.)</p>

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

Hr or from, Lyon Listriot Court. Action by J. B. Watkins, against Peter B. Houck, Mary L. Hall, Joseph Wheat, Laura B. Wheat, Edward E. Murray, Warren & Harrison, Kellogg & Sedgwick, and J. M. Campbell, to foreclose a mortgage given by Peter B. Houck and wife upon the following-described premises: The north-cast quarter of section number 29; also, the northwest quarter of the southwest quarter of section number 28, all in town 15, range number 12, east of the 6th principal…

Appeal from Norton District Court. The opinion states the material facts. From a conviction at the May term, 1890, the defendant White appeals.

Error from, Harvey District Court. The case is stated in the opinion. Judgment for the plaintiff, Mary F. Stout, as executrix, etc., at the May term, 1888. The defendant, William K. Van Fleet, brings the case here.

<p>County Seat — Re-location—■Petition, When Sufficient. A petition to the board of county commissioners to order an election to re-locate the county seat, when said county seat had been originally located by a vote of the people of the county, and had remained for more than five years, must contain three-fifths of the names of the electors of the county as shown by the last assessment rolls of both real and personal property, to be sufficient to authorize the board to order such an election.</p>

Error from Nemaha District Court. Replevin. Judgment for plaintiff Gibbons, at the September term, 1887. The defendants, Scrafford and others, bring the case to this court. The material facts are stated in the opinion.

Error from Marion District Court. The case is stated in the opinion. Judgment for plaintiff, Hillard, at the March term, 1888. The defendants, Coffman and others, come here.

Error from Shawnee District Court. Ejectment. Judgment for plaintiff, Fix, at the September term, 1887. The defendants, Martin and another, bring the case to this court. The facts appear in the opinion.

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

<p> Error from, Haney District Court. </p> <p>Trover. The opinion contains a sufficient statement of the case.</p>

<p>Public Road — Petition■—Jurisdiction. Where the petition for the laying out of a public highway, presented to the board of county commissioners, shows upon its face that more than twelve resident householders of the county have signed the same, and the journal of the board of county commissioners shows that the board made the finding “that the law had been substantially complied with” and ordered the road to be laid out in accordance with the petition and report of the viewers, held, that it cannot be said, because there is not embraced in the journal of the proceedings of the board any statement that evidence was offered to establish the allegations of the petition, that the board acted without jurisdiction or authority.</p>

Error from Butler District Court. The facts are stated in the opinion. Judgment for plaintiff Morrison, at the June term, 1887. Defendant Duff comes here.

At the January term, 1890, E. H. Creditor was convicted of a violation of the law in relation to the practice of dentistry. He appeals.

Error from Barton District Court. Action upon two promissory notes, and to foreclose a mortgage given to secure their payment. Judgment for plaintiff, Brinkman, at the June term, 1888. The defendants, Brier and another, come to this court. The facts sufficiently appear in the opinion.

<p>1. Mubbee — Verdict, Sustained. The evidence examined, and the verdict of murder in the second degree held to be sustained by sufficient evidence.</p> <p>2. Insteuotions — Inferior Degree of Grime. The trial court is not required to give instructions upon an inferior degree of crime necessarily included in the one charged, unless the evidence warrants it. (The State v. Mowry, 37 Kas. 369.)</p> <p>3. --No Reversible Error. Where the court properly instructs the jury and omits some instructions which might properly have been given, but no request was made for such instructions, no reversible error is committed. [The State v. Peterson, 38 Kas. 204.)</p>

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

<p> Appeal from Marshall District Court. </p> <p>The opinion states the case.</p>

<p>Ceiminal Case — Instructions, How to be Given — Error. It is error for a trial judge to give a portion of his instructions to the jury orally, though they are taken down by the stenographer at the time, and afterward copied and delivered to the jury, on retiring, with the other instructions.</p>

M'ror from Wyandotte District Court. The case is stated in the opinion. Judgment for the defendant Company, at the March term, 1888. The plaintiff brings this case to this court.

<p>Indoksek Not Joint Maher. Where the owner and holder of a promissory note after maturity sells and indorses the note, signing his name after that of the original payee, he is an indorser, and not a joint maker.</p>

This was a criminal prosecution upon an information containing two counts, in which the defendant, M. E. Matthews, was charged with obtaining a check and signature and money upon false pretenses. A trial was had before the court and a jury, and at the close of the evideuce for the state the prosecution elected to rely for a conviction upon the second count of the information, and entered a nolle prosequi as to the first count.

Prosecution for selling cider in less quantities than one gallon, contrary to an ordinance of the city of Lawrence. From a conviction at the May term, 1890, the defendant Monroe appeals. The material facts appear in the opinion.

Frror from, Morris District Court. The opinion contains a sufficient statement of the case. Judgment for the plaintiff Barber, at the April term, 1888, for $4,000 damages. The defendant Company brings the case to this court.

On November 8, 1890, there was an opinion filed in this case, (syllabus and opinion by Green, C.,) recommending that the judgment of the district court be affirmed; and by the court it was so ordered… Held: under the circumstances of the case, not to be erroneous.” In due time a motion for a rehearing was filed in behalf of appellant. On April 11, 1891, the court sustained the motion, and filed herein the new syllabus, supra, and the opinion, infra.

Error from Bourbon District Court. Replevin. Judgment for plaintiff Fowler, at the September term, 1887. The defendant Daugherty comes to this court. The material facts are stated in the opinion.

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

<p>New Teial — Overruling Motion, Pro Forma. It is error for a trial court to overrule a motion for a new trial merely pro forma, even if the case is submitted to the court for trial without a jury, by the agreement of the parties.</p>

<p> Error from Atchison District Court. </p> <p>This was an action in the nature of ejectmént, brought in the district court of Atchison county, on July 28, 1883, by John M. Price against Samuel C. King, to recover certain real estate hereafter described ; the case was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and upon such findings and conclusions rendered, judgment in favor of the defendant and against the plaintiff for all the property in controversy, except two lots; and the plaintiff, as plaintiff in error, brings the case to this court for review. The findings and conclusions of the court below, so far as it is necessary to give them, read as follows:</p> <p>“1. On December 1, 1864, and until May 1, 1868, Charles Gould, of New York city, was the full fee-simple owner of lots 5, 6, 7, 8, 9,10,11, 12,13, 14,15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, in block 43, and lots 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19 and 20, in block 44, in L. C. Challiss’s addition to the city of Atchison, Atchison county, Kansas, together with other property in said addition, by deed which was duly recorded in the office of the register of deeds of this county December 8, 1864.</p> <p>“2. On May 1, 1868, said Charles Gould and Henriettas. Gould his wife conveyed to Courtlandt Palmer,.of New York city, an undivided one-half of said lots and other property by deed, which was duly recorded in the office of the register of deeds of this county, on June 15, 1868.</p> <p>“3. On June 24, 1880, a deed was executed in which the parties were described as follows: ‘ Courtlandt Palmer, Charles P. Palmer, and Henry Draper/ executors of the estate of Courtlandt Palmer, deceased, and Henrietta S. Gould, executrix of the estate of Charles Gould, deceased, parties of the first part, and R. F. Smith, party of the second part.’ The consideration' named in the deed was $225, and for said sum, the receipt of which was acknowledged in said deed, it was stated that the parties of the first part did remise, release and quitclaim unto said party of the second part, his heirs and assigns forever, all of block 43, being lots 1 to 30 inclusive, all of block 44 east of lots 10 and 11, being lots 1 to 20 inclusive — which included the property in controversy — and also other property, all in Challiss’s addition to the city of Atchison, Atchison county, Kansas. Said deed was without covenants or recitals as to ownership of any kind, and it did not purport to have been executed by the authority of any court, and it was signed as follows: ‘Courtlandt Palmer, Exr., Charles P. Palmer, Exr., Henry Draper, Exr., Henrietta S. Gould, executrix.’ Said deed was duly acknowledged, and on February 7, 1881, the same was duly recorded in the office of the register of deeds of this county.</p> <p>“4. On June 25, 1881, said R. F. Smith and his wife executed and delivered to the plaintiff, John M. Price, a quitclaim deed for all the property described in said deed of June 24, 1880, and the same was duly recorded in the office of the register of deeds of this county on July 5, 1881.</p> <p>“5. It further appears from the evidence introduced upon the trial in aid of the plaintiff’s claim of title that, prior to the execution of said quitclaim deed of June 24, 1880, the said Charles Gould mentioned in conclusion of fact 1, and the said Courtlandt Palmer referred to in conclusion of fact 2, had died, both testate. Said Charles Gould died prior to November 4, 1870, and his last will and testament was admitted to probate in the surrogate’s court of the county of New York, in the state of New York, on November 22, 1870; by said will, Henrietta S. Gould, widow of Charles Gould, was made his sole devisee in case she survived him, and she did survive him, and the said Henrietta S. Gould was also made the sole executrix of said will. Said will did not contain any provision as to the sale of any real estate or other property by his executrix as such. An exemplified and duly authenticated transcript of the record of said will and the probate thereof was admitted to record by the probate court of this county on April 1, 1882, and duly recorded on page 99 of the proper record book. Said Courtlandt Palmer died prior to May 14, 1874, and his last will and testament was admitted to probate in the surrogate’s court of the county of New York, in the state of New York, on June 2, 1874. By the terms of said will, after certain specified provisions not material in the consideration of this case, the residue of the estate of said Courtlandt Palmer, real and personal, was devised in four equal shares to Courtlandt Palmer, jr., Chas. Phelps Palmer, Mary Anna Draper, and the children of Richard S. Palmer, deceased; and said Courtlandt Palmer, jr., Charles Phelps Palmer, and Henry Draper, the husband of Mary Anna Palmer Draper, were named as executors of said will. All of said devisees were living at the time of the probate of said will; and at the time of the execution of said quitclaim deed of June 24, 1880, there being two children of the said Richard S. Palmer, deceased, they being minors, and Mrs. Fanny Arnot Haven, their mother, being their guardian. Said will did not contain any provision as to the sale of any real estate or other property by the executors as such. An exemplified and duly authenticated transcript of the record of said will' and probate thereof was admitted to record by the probate court of this county on April 1, 1882, and duly recorded on page 103 of the proper record book. The said Courtlandt Palmer and Charles Phelps Palmer, who executed said quitclaim deed of June 24, 1880, were two of the devisees under said will, and the said Henry Draper, who joined in the execution of said deed, was the husband of another of the devisees under said will, and the said Henrietta S. Gould, who executed said quitclaim deed, was the sole devisee under the will of said Charles Gould, deceased.</p> <p>“ 6. It further appears from said evidence, that Charles W. Gould, son of said Henrietta S. Gould, a practicing attorney of New York City, entered into correspondence with Thomas M. Pierce, an attorney at law of the city of Atchison, Kansas, who had been the agent of the said Palmer and Gould estates as to the management of certain real estate in Atchison, regarding the proposed sale of the interests of said estates in blocks 29, 30, 43 and 44 in L. C. Chali iss’s addition, which had been previously sold at tax sale, and were involved for taxes, interest, penalty, and costs.' Said Henry Draper and said Courtlandt Palmer had conferred with said Charles W. Gould, and authorized him to act in the interest of said Palmer estate, and the said Henrietta S. Gould authorized him to act in the interest of said Gould estate.</p> <p>“ The question as to whether the devisees or executors were the proper persons to sell and convey any interest in said property which had been owned by said Charles Gould, deceased, does not appear to have been discussed or considered by any of the parties who executed said quitclaim deed of June 24, 1880, and in the said correspondence the property was referred to as belonging to the Gould and Palmer estates at the time of the transmission of said quitclaim deed of June 24, 1880, which transmission was on July 8, 1880, by said Charles W. Gould to said Thomas M. Pierce, for delivery to said R. F. Smith. Such exemplified and authenticated copies of said two wills, and of the probate of the same, were also transmitted. Said quitclaim deed was delivered by said Thomas M. Pierce to said R. F. Smith early in February, 1881, at which time the said R. F. Smith paid the said Thomas M. Pierce the sum of $225, which was soon afterward remitted by the said Thomas M. Pierce to said Charles W. Gould, and he paid the same to the executors of said Palmer estate and the executrix of said Gould estate. Shortly after the delivery of said quitclaim deed to said R. F. Smith, the question was raised as to the authority of said executors to sell and convey said real estate, and some correspondence followed; and on April 18,1881, said Courtlandt Palmer, Charles Phelps Palmer and Henry Draper filed, in the office of the surrogate’s court of said New York county and state of New York, a petition for the confirmation of said sale to R. F. Smith; and on May 23, 1881, said Charles W. Gould appeared in behalf of said petitioners in said court, and an order was thereupon made by said court purporting to sanction and confirm said sale.”</p> <p>The findings of fact, from the 7th to 14th, inclusive, have relation to the defendant’s claim of title and to two lots not now in controversy, and need not be given.</p> <p>“15. That, on June 24,1880, and until the delivery of the deed, in February, 1881, the property described as in the said four blocks, in said deed of date June 24, 1880, was worth from $10,000 to $12,000, and the incumbrance thereon, by reason of the tax sales herein described, then amounted to about the sum of from $300 to $500.”</p> <p>CONCLUSIONS OP LAW.</p> <p>“1. Said quitclaim deed, of date June 24,1880, did not convey to said R. F. Smith (under whom the plaintiff claims) any property of the estate of Courtlandt Palmer, deceased, and Charles Gould, deceased, nor of the grantors as executors and executrix of said estates respectively, and the decree of said surrogate’s court, of date May 23,1881, was of no validity as a decree, and was inoperative as a confirmation of said conveyance.</p> <p>“2. Said deed of June 24, 1880, and the receipt of. the consideration from the said R. F. Smith by the executors of said estates, was insufficient to convey to the said R. F. Smith the title, legal or equitable, of the said Courtlandt Palmer, Charles Phelps Palmer, Mary Anna Palmer Draper, the two children of said Richard S. Palmer, deceased, and Henrietta S. Gould in said premises.”</p> <p>The third and fourth conclusions of law have reference to the defendant’s title, and need not be given.</p> <p>“ 5. The plaintiff is entitled to recover the possession of said lots Nos. 23 and 24, in block 43, as described in the petition herein, upon the payment to the defendant of the sum of $31.91, and interest thereou, according to law, from April 21, 1880, being the amount of taxes, penalties and costs paid by said defendant. The plaintiff is also entitled to judgment for his costs herein.</p> <p>“6. That said defendant is entitled to judgment against plaintiff for all of the said described property other than lots 23 and 24, in block 43, L. C. Challiss’s addition.”</p> <p>The aforesaid quitclaim deed, dated June 24, 1880, and delivered in February, 1881, reads as follows:</p> <p>“This indenture, made this twenty-fourth day of June, in the year one thousand eight hundred and eighty, between Courtlandt Palmer, Charles P. Palmer, Henry Draper, executors of the estate of Courtlandt Palmer, deceased, and Henrietta S. Gould, executrix of the estate of Charles Gould, deceased, parties of the first part, and R. F. Smith, party oí the second part, witnesseth, that the said parties of the first part, for and in consideration of the sum of $225, lawful money of the United States of America, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have remised, released and quitclaimed, and by these presents do remise, release and quitclaim unto the said party of the second part, and to his heirs and assigns forever, all of block 29, being lots 1 to 26, inclusive; all of block 30, being lots 1 to 26, inclusive; all of block 43, being lots 1 to 30, inclusive; all of block 44, east of lots 10 and 11, being lots 1 to 20, inclusive, all of said property being in that part of the city of Atchison known as Challiss’s addition to the city of Atchison, and in the county of Atchison and state of Kansas, together with all and singular the tenements, hereditaments aud appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all of the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in equity, that the said parties of the first part have in or to the above-described premises, and every part and parcel thereof, with the appurtenances, to have and to hold, all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever.</p> <p>“ In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written.</p> <p>Courtl dt D. Palmer, Exr. [Seal.]</p> <p>Chas. P. Palmer, Exr. [Seal.-'</p> <p>Henry Draper, Exr. “Seal/</p> <p>Henrietta S. Gould, Executrix. [Seal/</p> <p>“Sealed and delivered in the presence of John J. Becker, witness as to the three executors; J. Thain Easton as t.o Henrietta S. Gould, executrix.</p> <p>“State op New York, City op New York, County op New York, ss. : On the 24th day of June, in the year one thousand eight hundred and eighty, before me personally came Courtlandt Palmer, Charles P. Palmer, and Henry Draper, known to me to be the executors of the last will and testament of Courtlandt Palmer, mentioned and described in the within conveyance, and they severally, each for himself, acknowledged before me that he executed the same as such executor as aforesaid.</p> <p>[Seal.] John J. Becker, Notary Public, 170, N.Y. C.</p> <p>“State of New York, City and County of New York, ss.: On this 25th day of June, in the year one thousand eight hundred and eighty, before me personally came Henrietta S. Gould, known to me to be the executrix of the last will and testament of Charles Gould, deceased, mentioned and described in the within conveyance, and she acknowledged before me that she executed the same as such executrix as aforesaid.</p> <p>[Seal.] J. Thain Easton, Notary Public, N. Y. C.”</p> <p>This deed was indorsed upon its back at the time of its execution, as follows: “Executors’ deed — From Courtlandt Palmer, Charles P. Palmer, Henry Draper, and Henrietta S. Gould, executors. To R. F. Smith.”</p> <p>Judgment for the defendant King, at the June term, 1887. The plaintiff Price brings the case to this court.</p>

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

<p> M'ror from Greenwood District Court. </p> <p>Replevin. The opinion states the case.</p>

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

<p>1. Answeb, Not Verified — Evidence Introduced — No Error. Where a petition, in an action on an account, is verified, and the defendant does not seek to deny the correctness of the account stated, but alleges in his answer that the account was not due when the suit was brought, it is not error for the court to permit the defendant to introduce evidence to show that the suit was prematurely brought, though the answer was not properly verified, or was not verified at all.</p> <p>2. Oedeb oe Abbest — Affidavit as Evidence. In an action in which an order of arrest has been obtained, it is not error for the court to refuse to allow the plaintiff to introduce, as evidence to support his case, his own affidavit, made to procure the order of arrest.</p>

<p>X. Railboad Companies — Liability—Statute, Construed. Chapter 93, Laws of 1874, entitled “An aot to define the liability of railroad companies in certain cases,” (Gen. Stat.of 1889, ¶1251,) applies to every railroad company organized in this state and to every railroad company doing business in this state; but its provisions do not include firms, partnerships or individuals having servants or employés engaged in work upon the road or trains of a railroad corporation.</p> <p>2. Pabtneeship, When not Within Statute. A firm or partnership composed of private persons, not being a railroad corporation or a de facto railroad corporation, having a sub-contract to construct a part of the road of a railroad corporation organized under the laws of this state, and operating cars and trains on the road in the prosecution of their work, and having servants and employés at work upon the road and in charge of their trains, are not within the terms of chapter 93, Laws of 1874. (Gen. Stat. of 1889, ¶ 1251.)</p>

<p>Railboad Company — Compliance with Contract — •Entitled to Township Bonds. Where the issuing of township bonds or warrants to a railroad company is dependent upon the condition that the company shall build, or cause to be built, and have in operation, with oars running thereon, by lease or otherwise, its railroad, from a certain city therein named, at or near the depot of another railroad company in the city, held, that the building of its road within lili feet of the limits of the city, and an arrangement by it with the other railroad company, whose road it interseots at that point, for the running of its trains over the road from its intersection to its depot within the city, and the operation of the road from the depot in the city over its entire line, will be regarded as a substantial compliance with the condition.</p>

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

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

<p> Error from Republic District Court. </p> <p>The opinion contains a sufficient statement of the case.</p>

<p>Case-Made — No Proper Authentication. A case-made signed by the trial judge, but not attested by the clerk of the court with his signature and the seal of the court, will not be reviewed by the supreme court for alleged errors when challenged for want of proper authentication.</p>

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

Trial at the April term, 1890, Hon. A. H. Vance, judge pro tern., presiding; verdict of guilty; sentenced to fifteen years in the penitentiary. The defendant Ready appeals.

<p>Jubob — Objection to Competency, too Late. Where an objection to the competency of a juror, namely, that he had served as a juror in the same court in another case within the preceding year, is first raised after verdict, and the party objecting fails to show that the ground of challenge was unknown to him and his counsel when the juror was accepted, or that he would have exercised his right of challenge if he had known that the cause therefor existed, or that he has suffered any prejudice by the retention of the juror, the objection will not be available for the purpose of obtaining a new trial.</p>

<p>1. Feeohy — Gonvietion—Appeal—Stay of Sentence. Where a defendant is convicted for a felony, bailable under the statute, and he takes an appeal from his conviction within thirty days after the judgment is rendered against him, and files the transcript of such conviction with the clerk of the supreme court, and makes his application to the supreme court, or any justice thereof, within ninety days after his appeal is taken, the execution of the judgment will be stayed by the order of the supreme court, or any justice thereof, upon the appellant giving bond in such sum as the court or justice shall prescribe; the bond to be approved by the court, or any justice thereof.</p> <p>2. Bond — Default in Giving — Custody. In default of giving the bond prescribed by the court, or a justice thereof, the appellant will remain in the custody of the sheriff of the county where he is convicted, during the pendency of the appeal, until the further order of the supreme court.</p>

<p> Error from Barton District Court. </p> <p>A sufficient statement of the case is contained in the opinion,</p>

<p>1. Chattel Mobtgage — Sale on Execution — Distribution of Surplus. Where mortgaged personal property is sold on execution, and the mortgagee, who is not the defendant in the execution, or his legal representative, purchases the same, the court from which the execution was issued may, in any proper proceeding with all the interested parties before it, make an order that any surplus moneys remaining after the satisfaction of the execution with interest and costs shall be paid to the party or parties having the paramount right thereto; and if it be shown that the mortgagee has the paramount right thereto, the court should order that the surplus moneys should be paid to him.</p> <p>2. Sttepltjs Moneys — Paramount Bight — Mortgagee and Creditors of Defendant. And in such a case where there is no lien upon the property sold, except the execution lien and the mortgage lien, the mortgagee will have the paramount right to the surplus moneys, although the officer selling the property may, after the sale and prior to the payment of the purchase-price, accept orders from the defendant in the execution to pay such surplus moneys to certain creditors of the defendant in the execution.</p>

Mtot from, Marion District Court. The opinion states the ease. Judgment for defendant Whittridge, at the March term, 1888. The plaintiff Pracht comes to this court.

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

<p>1. Laeoeny — Evidence, Rejected. At the trial of two persons charged with the larceny of a load of wheat, it is not error for the trial court to reject evidence tending to show that the father of one of the persons charged tried to hire other persons to haul the wheat to town, and declared that he had hired the prisoners to do so.</p> <p>2. Collates al Crimes — Gross-examination—Practice. It is never permitted the state to attempt to prove collateral crimes, either by the cross-examination of a defendant or by evidence offered in chief; but a mere passing reference to other orimes, in the course of a cross-examination, is not considered prejudicial error in a case where, on the whole record, there is no room for doubt as to the guilt of the defendants.</p>

<p>'Taxation — Farming Land — Case Followed. Farming land adjacent to a city of the second class, which has been platted into blocks and lots, may by ordinance be annexed to such city. (City of Emporia v. Smith, 42 Kas. 433, followed.)</p>

<p>Intoxicating Liquobs— Original Packages — Sale—“Wilson Bill.” Under the decision of the supreme court of the United States in the oase of Leisy v. Sardin, 135 U. S. 100, an importer of intoxicating liquors into any state from any other state or country, could, by himself or agent, prior to the passage of the “Wilson bill,” sell such liquors so long as they remained in the unbroken packages in which they existed during their transportation, without regard to the laws of the state into which such liquors were imported, and without regard to the size of the packages.</p>

Error from Wilson District Court. Action to recover on a fire insurance policy. Judgment for plaintiff Gray, on November 3, 1887, for $488.62 and costs. The Company comes to this court. The opinion states the facts.

<p>Ejectment — Good Title Acquired by Statute of Limitations. Where an owner of real estate consisting qf three lots composing one tract, sells a portion of the same to B., pointing out and designating that portion of the tract which he claims and believes he is selling, and and puts B. into the possession thereof, and B. immediately builds a dwelling-house thereon and resides upon the property, claiming to own the same, for more than fifteen years, he has obtained a good title thereto under the fifteen-years statute of limitations, (Civil Code, § 16, subdiv. I,) as against subsequent purchasers of the property, although in fact it was supposed by both the parties to the purchase and sale at the time of the sale and afterward, that it was the north lot that was being sold, while in fact it was a part of the middle and south lots that was pointed out and designated and into the possession of which the purchaser was placed, and although the deed from the vendor designated the north lot, and the purchaser paid the taxes on that lot, and the vendor and his subsequent grantees paid the taxes on the other property.</p>

<p>Instruction — Evidence—Defective Record. In the absence of the evidence, or any statement of its purport, it cannot be said that an instruction requested by one of the parties, however correct as an abstract statement of the law, was applicable to the case, or that its refusal was material error.</p>

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

<p>1. Attachment — Discharge—Review. An order of the district court discharging an order of attachment is reviewable in this court before there is a final disposition of the case in the court below. (Suavely v. Buggy Go., 36 Kas. 106, followed.)</p> <p>2. Aeeidavits — Limits as to Evidence. Affidavits in support of, or in opposition to, a motion to discharge an order of attachment, ought to to be confined to the truth or falsity of the causes set forth in the affidavit for attachment. The material facts involving the merits of the action are rarely, if ever, involved in an inquiry as to whether or not the order of attachment was wrongfully issued.</p>

<p> Error from, Geary District Court. </p> <p>On the 9th day of July, 1887, Thomas Dever commenced his action against George A. Clark to recover damages for the publication of two alleged libels. The first publication was as follows:</p> <p>“A raid was made on the Clay Center joint last Tuesday, and 97 cases of beer and 12 jugs of bug-juice seized. Tom Keefe was arrested, but Tom says he does not own the place, and that it has been closed since May 1. The beer and juice was transferred to the police court room. His honor now has more cases before him than ever, but it is a matter of some doubt whether each case contains $2.50 for a certain limb of the law or not. Keefe says the authorities left the place open, and that about 4,000 cigars were stolen Tuesday night. Of course, here is cause for action for damages. But so long as the city is represented by such ponderous brain and legal talent, the community will not suffer defeat in the courts. We understand a telegram was received Wednesday to the effect that the beer belonged to outside parties, and was only stored here for a time. This must be true, for we have noticed an unusual number of Clay Center people about the depot during the past two weeks. Between Tom Dever and Clay Center, Junction City’s reputation is bound to go to the wall if some action in self-defense is not soon taken.”</p> <p>The second publication was as follows :</p> <p>“The party organ seems to be very bitter against the city attorney for pulling the beer. What is the matter? It is rumored on the street that the attornoy has a libel suit in soak.” — Union.</p> <p>“The ‘party organ’ is ‘bitter’ against no one. So long as a person works for the interests of the city the Republican will heartily indorse anything they may do, but when it comes to throwing the city into costs just for the sake of letting a certain limb of the law make $2.50 per case, whether he wins the case or not, is getting rather gauzy. The individual in controversy has no more right to the claim of being an attorney than the devil has to a seat in heaven. The Republican has no ax to grind in this matter, further than it does not intend to remain silent and see the city filched without some return.</p> <p>“The position which this paper has always taken on the prohibition question is too well known to require space in this article. It is very different from the course pursued by the Union. The Republican has stood up for the temperance cause when the editor of the Union winked at aud illegally licensed the sale and barter of whisky and beer. While the Union has heaped all manner of abuse on the W. C. T. U., the Republican had defended these ladies in their efforts to suppress the sale of the damnable stuff. And now that victory has been won it does not intend to remain quiet and see a jack-legged lawyer prostitute the noble cause, and run the city into hundreds of dollars in costs for the sake of a paltry $2.50 fee. A lawyer who has no more sense than to appeal a city case from the police court to the district court, is legally too transparent tor an intelligent community to tolerate. This same lawyer (?) — according to the last statement of the city clerk — stuck the city for costs to the amount of $46.10 in city cases which he appealed to the district court, and which were thrown out of said court.</p> <p>“Upon a close examination of the clerk’s statement we find $18.50 is the amount collected in the police court during the past quarter. During the same time the city paid its city attorney $54.10. And for what? Was it for the cases he lost before the police court ? We recapitulate:</p> <p>Cost in district court because of an incompetent city attorney, $46 70</p> <p>Paid same attorney during quarter......................... 54 10</p> <p>$100 80</p> <p>Received from police court................................. 18 50</p> <p>$82 30</p> <p>“We find that the city is loser to the tune of $82.30 for taking the advice of one who knows nothing about law. Of course the tax-payers will have to stand this. The citizens of Junction City can stand legitimate expenses, but when it comes to paying for the blunders of an incompetent individual it is time to raise a kick, and the Republican is not afraid to head that kick. If it is necessary for the city to employ a lawyer, it will be cheaper to get one who has brains and ability enough to represent it intelligently and protect its interests. We like to see.a man busy, but not at the expense of the community.</p> <p>“ The Republican has no war to make on any officials so long as they perform the duties of their offices intelligently and faithfully and protect the interests of the people, but it does not intend to remain quiet and see the city systematically filched and run into debt by a shyster who knows more about sawing wood than he does about the rudiments and the practice of law. If Mr. Dever has a libel suit in soak we would suggest that he remove it and substitute his head. If necessary, a very interesting chapter, backed by affidavits, can be furnished next week.”</p> <p>On July 26, 1887, the defendant filed his answer as follows, omitting caption:</p> <p>“1. In answer to plaintiff’s first cause of action the defendant says he admits tire publication of the matter alleged, but he denies that the matters therein contained mean, or were intended to convey the meaning represented and set forth by the-plaintiff in his petition; and for further answer, defendant avers that the matters and things contained in said publication are and were true, and were published of and concerning the official conduct of the plaintiff as a public officer.</p> <p>“2. In answer to the second cause of action of the plaintiff, defendant says that he admits the publication of the matter alleged to contain the supposed libel, but he denies that the matters and things contained therein mean, or were intended to convey the meaning attributed to them as alleged in said petition. The defendant further says that the matters and things contained in said publication were true, and the same were published of and' concerning the official conduct of the plaintiff as a public officer.</p> <p>“3. Except so far as hereinbefore admitted, defendant denies each and every allegation contained in plaintiff’s petition.”</p> <p>On August 20, 1887, the plaintiff filed the following motion, omitting caption:</p> <p>“Comes now said plaintiff and asks the court to require said defendant to file with and attach to his answer filed herein, a bill of particulars, specifically setting out the matters and things contained in the articles published by said defendant, and which said defendant justifies in his said answer by plea that said matters and things are and were true.</p> <p>On the 21st of September, 1887, this motion was heard, and the court made the following order thereon:</p> <p>“ That said answer specifically set up all matters pleaded as true in justification or mitigation; and further, that each of said matters be specifically set out by a statement of the facts in relation thereto, and also that said defendant separately state and number each of his several defenses. The defendant asks and is by the court given 90 days from the rising of the court to file amended answer, and the plaintiff is allowed 30 days thereafter to plead thereto. And case continued until the next term of this court.”</p> <p>On the 24th of December, 1887, the defendant filed the following amended answer or bill of particulars, omitting caption:</p> <p>“That in the following statement, cited in plaintiff’s petition (the second cause of action thereof), and contained in Exhibit B, attached to said petition, to wit: ‘A lawyer who has no more sense than to appeal a city case from the police court to the district court, is legally too transparent for an intelligent community to tolerate,’ reference was made by the defendant to the case of The City of Junction City against "\V. D. Grant, and the two cases of Junction City, plaintiff, v. Ida C. Blue, defendant, attempted to be taken by said plaintiff, as attorney of said city, from the police court of said city to the district court of Davis [now Geary] county, Kansas, filed in the office of the clerk of said court and there numbered respectively, 1750, 1748, and 1749.</p> <p>“And defendant further says that the other matters published by defendant and complained of in said petition of plaintiff, do not in their nature admit of particularization, further than appears in the context of said publication.”</p> <p>On December 30,1887, the plaintiff filed the following motion, omitting caption: “Comes now said plaintiff and asks the court to strike out and render for naught the amended answer of the defendant herein filed, for the reason that said answer is not in accordance with the order of this court heretofore made in this cause.” In which order said defendant was required and ordered “to make his answer more definite and certain in that, to wit: that said answer specifically set up all matters pleaded as true in justification or mitigation ; and, further, that each of said matters be specifically set out by a statement of the facts in relation thereto.” Arid also the further order, “that said defendant separately state and number each of his several defenses.”</p> <p>On the 29th of March, 1888, the court overruled the motion to strike out the amended answer, and plaintiff excepted. The case then came on in its regular order for trial, and the plaintiff' objected to going to trial, upon the ground that a sufficient amended answer or bill of particulars had not been filed. This was overruled by the court. The plaintiff also objected to going to trial upon the merits and the pleadings as made up, which objection was overruled by the trial court, aud the plaintiff excepted. The case was heard before the court with a jury, and the jury returned a verdict in favor of the defendant and against the plaintiff. Subsequently the plaintiff filed his motion for a new trial, which was overruled. Judgment was rendered in favor of the defendant and against the plaintiff, and for costs. The plaintiff excepted, and brings the case here.</p>

<p>Delinquent Taxes — Chapter 39, Laws of 1877, Construed. Chapter 39, Laws of 1877, relating to the collection of delinquent taxes on real estate bid off by counties and cities at tax sales, is to be understood as referring to real estate where “taxes are due and unpaid,” and not as including real estate belonging to the United States, and therefore not liable to taxation.</p>

<p> Error from, Morris Distriet Court. </p> <p>The opinion states the facts.</p>

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

Error from Cloud District Court. The facts appear in the opinion. At the October term, 1887, judgment for costs against plaintiff Linney, who comes here.