Volume 48 — Kansas Reports

Prosecution for murder in the first degree. Verdict of guilty, and judgment thereon. Defendant, Davis, appeals.. The opinion states the facts.

Error from Franklin District Court. Action by B. H. Mott against the Cherryvale Water & Manufacturing Company, to recover damages sustained by fire through, defendant’s failure to furnish sufficient water to extinguish the fire. Verdict for plaintiff, and from an order granting defendant a new trial he brings error.

Error from Pratt District Court. The facts appear in the opinion. Judgment for defendants, Beard and others, at the January term, 1889. The plaintiffs, William Deering & Co., bring the case here.

<p>1. Mandamus — When Lies. A peremptory writ of mandamus will only be allowed when the right of the plaintiff thereto is olear.</p> <p>2. Rboobd —Evidence. The record in this case examined, and held, that it does not clearly show that the plaintiff is entitled to a peremptory writ.</p>

<p>Petition in Eekob — Jurisdiction—Amount in Controversy. Under ¶ 4642, General Statutes of 1889, the record brought to this court must affirmatively show that the court has jurisdiction, or the ease will be dismissed. Such jurisdiction can be shown by making the record show that the amount or value of the controversy exceeds $100, or by incorporating therein a certificate of the district judge showing that the case is within the exception of such statute.</p>

Error from Kingman District Court. The opinion states the facts. Judgment for the defendant Company, at the September term, 1888. The plaintiff, Long, comes to this court.

Error from Ness District Court. Replevin by Gray against Clouston, as sheriff of Ness county. Verdict and judgment for plaintiff. The defendant brings error. The material facts are stated in the opinion.

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

<p>Recognizance — Forfeiture — Revivor of Judgment. The state of Kansas recovered a judgment against R. and C. on a forfeited recognizance in Harper county. Subsequently an execution was issued upon the judgment to the sheriff of Reno county, for the purpose of levying upon the property of R. and O. They obtained an injunction in the district court of Reno county against the sheriff, perpetually enjoining him from levying or attempting to levy the execution, and also enjoining the sheriff and board of county commissioners of Harper county from attempting to collect the judgment by virtue of any process issued thereon. Neither the state of Kansas nor any officer of the state, nor the county treasurer of Harper county, nor any treasurer of the school districts of that county, was a defendant. The sheriff and his co-defendants at once commenced proceedings in the supreme court to review and reverse the judgment granting the injunction. While this case was pending in the supreme court, R. died, but the cases in Reno county and the supreme court were revived with consent of all the parties, in the name of the personal representative and sole heir of R., deceased. Within the year prescribed by the statute, the district court of Harper county, upon the application of the state of Kansas, entered an order of revivor on the judgment upon the forfeited recognizance. Held, That this order was necessary to keep the judgment from becoming dormant; that it was not an attempt to collect the same; and was not a violation of the injunction granted by the district court of Reno county.</p>

<p>1. EaixiBOád Company — Failure to Construct Cattle-Guards — Bill of Particulars. The plaintiffs’ bill of particulars in a justice’s court alleged in detail that the defendant railway company failed and refused to construct cattle-guards on its line of railroad where the same entered and left the plaintiffs’ fenced pasture land, and that the plaintiffs were compelled to herd their cattle to prevent them from straying from such pasture land. Held, That the bill of particulars is sufficient to withstand an objection made by the defendant-to the introduction of any evidence under it for the claimed reason that it did not state facts sufficient to constitute a cause of action.</p> <p>2. - Evidence. The court below did not err in permitting the-plaintiffs to show that it was necessary to herd their cattle, and in permitting them to show the value of such herding by a witness who-was not first shown to be an expert in such matters, where the only objection made to the evidence was that it was “incompetent, irrelevant, and immaterial.”</p> <p>3. Instbuopions — Damages. The court below did not err, as against-the railway company, in instructing the jury that the plaintiffs-might recover for the value of the herding up to the value, but only up to the value, of the things belonging to themselves and others-which might have been injured by the cattle if they had been permitted to run at large, and which things the plaintiffs had the right-to protect, or which they were under obligation to protect, from the-depredations of their own cattle.</p>

Error from Butler District Court. Suit to recover the value of certain grass destroyed by fire. Verdict and judgment for plaintiff, Jones, at the December term, 1888. The defendant Railway Company comes here.

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

Error from Franklin District Court. Action by Ring & Smith against Crane on an account for goods sold. Verdict and judgment for the plaintiffs, at the January term, 1889. The defendant brings error. The opinion states the facts.

<p>Saue — Partnership—Pleading and Proof — Variance. Under a complaint alleging that plaintiff sold goods to defendant, proof that he sold them to a firm of which defendant was a partner is not a material variance, where defendant, in his answer, admits the partnership, sinoe civil code, § 133, provides that no variance between the pleading and proof is material unless it actually misleads the adverse party to his prejudice.</p>

Error from Sedgwick Court of Common Pleas. This action was brought by Fritz Schnitzler against CharlesZeininger, to recover $517.45 and interest, upon a petition alleging that the plaintiff “was the owner of a certain stone foundation and brick wall on the division line between lots-Nos. 16 and 18, on Market street, in the city of Wichita, being the south wall of the brick building located on lot No. 18;” and that “the defendant erected a certain brick building on lot No.…

<p>1. Pleading — Variance. No variance between the allegations in a-pleading and the proof is material unless it has actually misled the adverse party to his prejudice.</p> <p>2. Pasty Wall — Competent Eoidenae. Where the owner of a stone-foundation and brick wall, which he alleges is built on the division line on certain lots in the city, brings an action to recover one-half of the cost thereof against the owner of the adjoining lot, who has permanently appropriated, in the construction of his own building,, one-half of such foundation and wall, it is competent upon the trial to show that the defendant was present when the division line was. designated by the city engineer, and made no objection to the construction of the foundation and wall while work was going on, and, also that he agreed to pay one-half of the expenses of such foundation and wall when he should use the same.</p>

<p> Original Proceeding in Mandamus. </p> <p>The opinion herein, filed February 6, 1892, states the material facts.</p>

Original Proceeding in Mandamus. Action brought in this court by the Columbus Water- Works Company, against the City of Columbus and its officers, to compel the levy of a tax to pay hydrant rental. All the material facts are stated in the opinion, filed February 6, 1892.

<p> Motion for Rehearing. </p> <p>The facts sufficiently appear in Griffin v. O’Neil, 47 Kas. 116, etseq,, and in the opinion herein, filed on March 5,1892.</p>

<p>Error front' Wyandotte District Court. . -</p> <p>Action to recover damages for personal injuries. Judgment for defendant, Ryus, on October 4,1888. Tbe plaintiff, Kelley, brings tbe case to this court. Tbe material facts are stated in the opinion.</p>

Error from Barber District Court. At the February term, 1889, The Bank of Hazelton recovered a judgment against W. C. Alfred and another, in a suit to foreclose a mortgage. Defendants moved to set aside a sale of the land, which motion was denied. They come to this court. The opinion states the facts.

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

<p>City — Violation of Ordinanee — Insufficient Complaint. A complaint filed in the police court, charging the defendant with a violation of a city ordinance, for willfully refusing, as the agent of a water company, to supply the complainant with water, a tender being made in actual money for that purpose, that does not state that the water company was under a legal obligation by ordinance to supply such water, and does not in express words or by fair implication allege that the tender was sufficient, or was the amount of the legal or contract price of the water supply desired, is bad, and it is error not to sustain a motion to quash it.</p>

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

<p>Judgment, Vacating — Meritorious Defense. Where a defendant applies, under § 77 of the code, to have a judgment rendered upon service by publication opened up, and asks to be let in to defend, he must bring himself clearly within the provisions of the statute. If the answer filed fails to show a meritorious defense, it is not error for the court to overrule such application.</p>

Error from Atohison District Court. The opinion states the nature of the action and the facts. Judgment for the plaintiff, Leu, at the October term, 1888. The defendant City brings the case to this court.

Error from Harvey District Court. Action by Maxwell against Betz to recover for rent. Judgment for plaintiff. The defendant brings the case here. The-opinion states the facts.

Prosecution for grand larceny. From a conviction at the October term, 1891, the defendant, Flack, appeals. The opinion states the facts.

Error from Graham District Court. Action to enforce a mechanic’s lien. Judgment for plaintiffs, Howell Bros., at the June term, 1888. The defendants, Wilson and another, bring the case to this court. The opinion states the facts.

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

Error from Sedgwiok Court of Common Pleas. Action to recover on a note. Judgment for plaintiff, Ferguson, at the May term, 1889. The defendants Glaze and others bring the case to this court. The opinion states the facts.

Error from Lyon District Court. J. W. Brigham & Co. recovered a judgment against Jones & Everetts, and garnished D. W. Eastman to recover certain property belonging to the defendants. From a judgment rendered April 29, 1889, discharging the garnishee, who claimed the property as trustee under a written instrument, the plaintiffs brought the case to this court.

Error from Kingman District Court. The facts sufficiently appear in the opinion. Judgment for defendants, Hutto and another, at the April term, 1889. The plaintiff Company brings the case here.

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

<p> Error from, Franklin District Court. </p> <p>The opinión states the case.</p>

Error from Johnson District Court. Action to quiet title. Judgment for the plaintiff, Wood-house, at the January term, 1889. The defendant, Sponable, comes to this court. The facts are stated in the opinion.

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

<p>1. Jtjstioe’s Cotjet — Bill of Particulars — Amendment on Appeal.. Where the plaintiffs’ bill of particulars in a justice’s court sets forth two causes of action, without separately stating or numbering them, and may also not be as definite and certain as a petition in the district court should generally be, and the case is tried upon such bill-of particulars in the justice’s court, and judgment is rendered, and-an appeal is taken to the district, court, and the defendant then files a motion asking the court to require the plaintiffs to separately state and number their several causes of action and to make their bill of' particulars more definite and certain, and the court overrules the motion, held, not error.</p> <p>2. - Judgment, Modified. Where the plaintiffs’ bill of particu- ■ lars in such case alleges that $20 is a reasonable attorney’s fee, and prays judgment for that amount, but in the district court judgment ' is rendered for $50 as an attorney’s fee, held, error, and that the.judgment must be so modified as to reduce the amount to $20.</p>

Error from Marion District Court. Action by the Badger Lumber Company against the Marion Water Supply, Electric Light and Power Company, to recover for certain poles sold, and to enforce a lien therefor. At the March term, 1889, the court awarded a personal judgment against defendant, but refused to enforce a lien. The plaintiff Company comes to this court.

The facts are sufficiently stated in Lumber Co v. Water Co., supra, and in the opinion herein, filed at the session of the court in June, 1892.

Error from Butler District Court. Action by Brown against the Kansas City & Southwestern Railroad Company and L. D. Latham & Co., to recover for damages caused by fire. Judgment for the plaintiff, at the March term,'1889. Defendants Latham & Co. bring the case to this court. The opinion states the facts.

Error from Cheyenne District Court. Action by Rich against the Cattle Company and others, to recover a certain school-land certificate. Judgment for defendants. The plaintiff comes to this court. The facts appear in the opinion.

Error from Wabaunsee District Court. Action to recover on a fire-insurance policy. Judgment for the defendant Company, at the May term, 1889. The facts are stated in the opinion.

Error from Coffey District Court. Action on an insurance policy. Judgment for plaintiff, Stoffels, at the November term, 1888.' The defendant Company comes to this court. The opinion states the material facts.

Error from Lyon District Court. Action by Dill and another against the Railroad Company, to recover for damages to a stallion. Judgment for plaintiffs, at the February term, 1889, for $800 damages. The defendant Company brings the case to this court. The opinion, states the facts.

Error from Miami District Court. Action by Moore against Bryan, to recover for goods sold. Judgment for plaintiff, at the February term, 1889. The defendant brings the case to this court. The facts appear in the opinion.

<p>1. Cobpobation — Eligibility of Directors. In all elections for directors of a corporation created by or existing under the laws of Kansas, at least three of those chosen by the stockholders must be citizens and residents of the stafe.</p> <p>2. Election — Non-Resident Candidates. At an annual meeting of stockholders of a Kansas corporation, 11 directors were to be chosen. Two factions of the stockholders were contending for the oontrol of the corporation. One faction divided its cumulative votes among six non-resident candidates, and the other cast its cumulative vote for five non-resident candidates, each party casting a few votes for three residents and citizens of Kansas. The result of the ballot was that 11 non-residents received a very large majority of the votes cast. The chairman of the meeting decided and declared that, as the law required three members of the board to be residents and citizens of the state, the three citizens of Kansas voted for were duly elected as directors, and that of the other gentlemen voted for, the eight who received the highest number of votes cast were elected.. The directors so declared elected duly qualified and entered upon the discharge of official duties. The three non-resident candidates who received a large majority of the votes cast, but had not been declared elected, brought a proceeding in quo warranto to obtain the possession of the offices held by the three resident directors. Held, That they could not maintain the proceeding, and were not entitled to the relief which they sought.</p>

Error from Dickinson District Court. Action to recover on a policy of insurance. Judgment for plaintiff, Ross, at the May term, 1889. The defendant Company comes to this court. The facts are stated in the opinion.

Error from Butler District Court. Action by the Home Insurance Company against Marshall and wife to foreclose a mortgage. From a judgment in its favor for only $103, the plaintiff brings error. The opinion states the facts.

Error from Miami District Court. Action to recover ou a policy of fire insurance. Judgment for plaintiff, Thorp, on February 6, 1889. The Company comes to this court. The opinion states the facts.

Error from Lyon District Court. Action by Schulein and another against Hainer to recover for goods sold. Verdict and judgment for defendant, at the February term, 1888. The plaintiff brings the case to this court. The facts appear in the opinion.

<p>1. Mechanics’ Liens — Priorities—Practice. In an action to recover for labor and material furnished and to enforce a mechanic’s lien, a jury trial was had; and after the verdict finding the amount of indebtedness was returned, the court, over objection, allowed the introduction of testimony to show the making and verification of the lien. Held, Not error; that the existence of a lien and the priorities of the lien-holders were questions for the court, and not for the jury.</p> <p>2. -Verification. The verification of the lien before a notary public who is an attorney, and who has been consulted by the claimant prior to the verification in regard to the matters in dispute between him and the owner, when there is no aotion or proceeding begun or pending between the parties, will not invalidate the lien.</p> <p>3. - Property Subject. Where work and material are furnished in the erection of five buildings upon a single lot under an entire contract with the owner, a lien attaches, to the lot and buildings for all the material and labor furnished, and the release of a part of suoh lot by the contractor from the lien, to enable the owner to secure a loan thereon, will not defeat the lien on the other, portion of the lot.</p> <p>4. Evidence — Findings—Verdict. The evidence examined, and held to be sufficient to sustain the findings and verdict; and further, that no material error was committed in its reception.</p>

Error from Franklin District Court. The opinion states the nature of the action and the material facts. Judgment for plaintiff, Elder, at the October term, 1888. The defendant, Crane, brings the case to this court.

<p>1. Tbial — Directing a Verdict. In the trial of a case by the court and a jury, the parties have the right to submit all questions of fact to the jury, and where there is evidence which fairly tends to establish the allegations of the defendant’s answer, it is error for the trial court to direct a verdiot for the plaintiff.</p> <p>2. Brim of Sabe — Warranty—Parol Evidence. Where a bill of sale has been given which contains a warranty of title, all oral statements made previous to the giving of such bill of sale concerning the transaction are inadmissible, the presumption of law being that the written instrument contained the entire contract, unless fraud is shown.</p>

Error from Chautauqua District Court. Action by the Company against McGuire and another on a certain check. Attachment was issued. Purcdl inter-pleaded, claiming an interest in the property attached. Verdict and judgment for the interpleader. The plaintiff comes to this court. The facts appear in the opinion.

Error from Marshall District Court. Ejectment by John Higgins, Mary Belle Perrin, and Edward Higgins, children of Patrick Higgins, deceased, against F. M. Reed, administrator of Henry, Boxell, deceased, and others. Judgment for defendants. Plaintiffs bring error.

<p>Case, Followed. The ease of St. L. & S. F. Bly. Co. v. Curtis, ante, p. 179, followed.</p>

Error from Cowley District Court. Action by Myton and another against Schuler, to recover on a certain subscription. Verdict and judgment for the plaintiffs, at the December term, 1889. The defendant brings the case to this court.

<p> Drror from Geary District Court. </p> <p>The opinion states the case.</p>

Error from Miami District Court. Ejectment by Smith against Rudd. Judgment for defendant, April 15, 1889. The plaintiff comes to this court. The opinion states the facts.

Error, from, Shawnee District Court. Ejectment. Judgment for plaintiff, Tefft, at the January term, 1889. The defendant, Redden, comes to this court. All the material facts are stated in the opinion.

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

Error from Butler District Court. This was an action brought by Edward Clark against The St. Louis & San Franeiseo Railway Company, to recover damages from tbe company for negligence in transporting a carload of stock from Andover station, in Butler county, to Kansas City, Mo.

<p>Case, Followed. The ease of St. L. & ,S. F. Bly. Co. v. Clark, just decided, followed.</p>

<p>1. Action, Not Maintained by Private Persons. An action to restrain the board of county commissioners of Barber county from purchasing certain bridges, under chapter 61, Laws of 1891, cannot be maintained by private persons having no other interest than one common to all the resident tax-payers of the county.</p> <p>2. County Boabd —No Grounds for Injunction. Before the board of county commissioners can be restrained by injunction from the performance of an act that is claimed to be unauthorized by law, and injurious to those seeking to prevent its performance, some steps must be taken by the commissioners, as a board, that are plainly indicative of their determination to do or perform the act complained of. Mere threats or declarations of intention to do or perform the act in question are not sufficient to constitute grounds for an injunction.</p> <p>3. Statute, Valid. Chapter 61 of the Laws of 1891 is not in violation of either $ 16 or § 17 of article 2 of the constitution of this state, or of $ 1 of article 11.</p>

<p>Reoobd on Appeal — Dismissal. Where the only record on appeal is an unauthenticated original bill of exceptions, the appeal will be dismissed. ( The State v. Hastie, 44 Kas. 427, followed.)</p>

Error from Reno District Court. Action by the Hardware Company against Raueneahn and others, to foreclose a mechanic’s lien. Action by McCullam & Co. against the above-named plaintiff and the defendants, and Mary E. Abbey, W. H. Smith, and Lewis Padrick, to enforce another mechanic’s lien against the same property. Actions consolidated and tried as one at the March term, 1889. From the judgment The Kansas Mortgage Company brings error.

Error from Shawnee Circuit Court. Ejectment by Cowee against the City. Judgment for plaintiff July 21, 1891. The defendant comes to this court. The opinion states the case.

<p> Original Proceeding in Mandamus. </p> <p>The case is fully stated in the opinion, filed April 9,1892.</p>

<p>City Oedinanoes — Publication. Chapter 156 of the Laws of 1891, relating to the printing of legal notioes and advertisements in newspapers of the county, has no application to the publication of city ordinances.</p>

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

<p>1. Conflicting Evidence — Assumption on Review. Where there is any conflict in the evidence, the supreme court, in reviewing a judgment, will assume that the evidence supporting the claim of the party for whom the lower court found is true, and that contrary evidence is untrue.</p> <p>2. Judgment Ceeditob — Liability. A judgment- creditor, as well as a constable, is liable for exempt property seized and sold on execution by the latter at the instance of the former.</p> <p>3. Replevin — Review. In replevin to recover a gray mare and a sorrel mare, the fact that the record reveals the word “gray” in one place instead of the word “sorrel,” will not invalidate the judgment, where the record recites that judgment was rendered for plaintiff for the return of a gray mare and a sorrel mare, or the value thereof.</p>

<p> Motion for Rehearing. </p> <p>The facts appear in the opinion herein, filed April 9,1892.</p>

<p> Original Proceeding in Mandamus. </p> <p>The facts are stated in Water-WorTcs Co. v. City of Columbus, ante, pp. 99, et seq.</p>

<p> Error from Bourbon District Court. </p> <p>Action by Beadle against the Railroad Company. From a judgment for defendant, on demurrer to the petition, January 6, 1889, plaintiff brings error.</p>

<p>Review— General Finding and Judgment, Not Disturbed. Where a ease is tried by the court, and a general finding is made in favor of the defendants, and no special findings are requested or made, the general finding includes every material fact necessary to sustain a judgment based upon such finding ; and where there is some evidence to support the general finding and judgment, they will not be disturbed by the supreme court.</p>

<p>Constitutional Question — Limits of Review. Where a case is brought to the supreme court upon the certificate of the district judge that there is a constitutional question involved in the action, and the amount sued for is less than $100, exclusive of costs, no other question can be considered than the one assigned in the certificate of the judge; and where such constitutional question has already been passed upon adversely to the plaintiff in error, the judgment must be affirmed.</p>

Error from, Brown District Court. Action by Louisa Brew, Margaret Miller, Anna Sprague, Mary Chandler, Nellie Dunn and William Clement against Frances A. Clement, John Schilling, her guardian, and Ira J. Lacoek, to recover part of the proceeds of a benefit certificate. From a judgment for defendants at the May term, 1890, plaintiffs bring error.

<p>Action by County Treasurer against County Board and Sureties — Misjoinder. A cause of action against the board of county commissioners of a county in favor of one who had been treasurer thereof, for an accounting and settlement of his accounts as such treasurer, cannot be joined with a cause of action in his favor, against the sureties on his official bond, for wrongfully converting property deeded by him in trust for the protection of said sureties from loss, as sureties on said official bond.</p>

Error from Linn District Court. Action upon two fire insurance policies. Judgment for the plaintiff Bank, on June 7, 1889. The defendant Company comes to this court. The facts are stated in the opinion.

Error from Linn District Court. The opinion states the facts. Judgment for the plaintiff Bank, on June 10,1889. The defendant Company brings the case here.

<p> Error from Linn District Court. </p> <p>The opinion states'the material facts.</p>

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

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

Error from Wyandotte Court of Common Pleas. Action to restrain tbe collection of certain taxes. From a judgment for plaintiff, Hoag, November 30,1891, the defendant County Board and others bring error.

<p>Written Contract, Parol Evidence to Alter. Parol evidence of what was said or done before and at the time of making a written contract is not admissible to alter, vary or contradict the express terms of the written contract.</p>

<p>Lease, Not Within the Statute of Frauds. Where the lessee signed and the lessor accepted a written lease, which was subsequently carried into execution by both parties, it will be considered as a binding obligation, and not within the statute of frauds.</p>

<p>1. Mubdeb in Second Degree — Copy of Indictment. Where there is doubt as to whether the indictment in the case charges murder in the first or the second degree, the assumed errors, arising out of the arraignment of the defendant without a copy of the indictment haying been served on him, and from the limitation of the defendant, in the selection of the jury, to eight peremptory challenges, are not material, because the state insisted all the way through the trial that the indictment did not charge murder in the first degree, and the court instructed the jury that it did not charge murder in the first degree, and that they could not find the defendant guilty of murder in the first degree.</p> <p>2. -Peremptory Challenges. In homicide of any degree less than murder in the first degree, the defendant is entitled to but eight peremptory challenges, and the clerk of the district court is not required to deliver a copy of the indictment to the defendant, unless first demanded by him.</p> <p>3. -Continuance. Where, upon an application for a continuance, on account of the testimony of an absent witness, the state consents that the facts set up in the affidavit in support of the application shall be read in evidence, in behalf of the defendant, as the deposition of the absent witness, the defendant is not entitled to a continuance on that ground.</p> <p>4. Affidavit as Deposition — Absent Witness — Impeachment. When, on an application for a continuance to prooure the testimony of an absent witness, the facts set up in the affidavit in support of the application are, by consent, read in evidence, in behalf of the party making the application, as the deposition of the absent witness, it is error for the court to permit alleged statements of the witness, made out of court, to be introduced to impeach his evidence in his said deposition, his attention at no time having been called thereto, and he having had no opportunity to explain them.</p>

<p>Pabtitioíi — Erroneous Judgment — Exception—Review. A personal judgment rendered against a party in a partition action, which is not supported by the pleadings, cannot be sustained; and if the error of the court in rendering such a personal judgment is apparent in the transcript brought to this court, no exception is necessary to have the judgment of the district court reviewed and reversed.</p>

Error from MoPherson District Court. The opinion states the facts. Judgment for plaintiff, Nichols, at the September term, 1888. The defendant City brings the case to this court.

<p>Review — Assignment of Errors. To secure a review of a cause in the supreme court, the plaintiff in error should specifically call attention to the errors and grounds relied on for reversal.</p>

<p>1. City — Excavation in Street — Liability for Negligence. Where an excavation is made by the city authorities in the public street of a city, the end of whioh extends up to a narrow cross-walk at an intersecting street, and it is left over night uncovered and without guards or danger signals, and a woman, in crossing the street over the cross-walk, meets parties who do not see her or do not turn aside to let her pass, and she, to avoid collision, diverges from the cross-walk, and, without any knowledge of the excavation, falls therein and is hurt, she may recover from the city for the injury sustained ; and the fact that the strangers whom she met did not yield the cross-walk, and that they caused her to step aside and into the excavation, does not preclude such recovery.</p> <p>2. -Bights of Pedestrian. A pedestrian, is not confined to a cross-walk, but has a right to assume that all parts of the street intended for travel are reasonably safe; and, if he knows of no dangerous excavations or obstructions, he may cross the street at any point that suits his convenience without being liable to the imputation of negligence.</p>

<p>Whom Pbopebty, a Homestead. Where a debtor owns a bouse and three lots, containing less than one acre, within the limits of a city, upon which he resides with his family, and also had a carpenter shop which he afterward converted into rooms, which he rented to a family but did not lease any portion of the ground, but simply gave the tenant the right of ingress and egress to and from the premises, and reserved the basement to such building for his own use, as well as the lot upon which the building was situated, held, that the whole property is a homestead, and as such is exempt from forced sale upon execution.</p>

<p>Teiax. — Prejudicial Bemarks of the Judge. Where, during the progress ■ of a trial by the court, the judge informed the defendant, before he had introduced all of his evidence, that the court was ready to decide the case without further evidence, that he did not think additional testimony would affeot the decision, but would hear anything of a different nature from that already offered, held, that, under the facts and circumstances of this oase, where the evidence preponderated largely in favor of the defendant and the decision of the court was against him, the remarks of the court had a tendency to mislead the losing party, and prevent him from having a fair and impartial trial.</p>

Error from Sumner District Court. On the 6th day of August, 1888, the Westchester Fire Insurance Company, doing business in this state, issued its policy of insurance for $800 on a 2J-story frame building, on lot 5, block 67, in the city of Wellington, owned by W- T. Cover-dale.

Error from Franklin Eistriot Court. The opinion states tbe material facts. Judgment for plaintiff, Pavey, on November 10,1888. The Railway Company brings the case here.

Error from Franklin District Court. This was an appeal from an order of the board of county commissioners of Franklin county relating to the assessment and taxation of certain real estate of the Ottawa University. Prior to 1887, a portion of the land which had been granted to the Ottawa University was platted as an addition to the city of Ottawa, and some of the lots which were unsold were in 1887 placed on the tax-roll by the assessor of the city of Ottawa.

Error from Nemaha District Court. The material facts are stated in the opinion. Judgment for plaintiff, Henning, at the March term, 1889. The defendant Company brings the case to this court.

<p>Injunction to Restrain Collection of Taxes — Penalty. The penalty of 50 per cent., prescribed by ¶ 6975 of the General Statutes of 1889, in oases where the county treasurer or sheriff shall, by injunction, be restrained from the collection of taxes due upon personal property, and the injunction is dissolved, only applies to the taxes in dispute, and does not attach to taxes admitted to be due and tendered before the injunction suit is commenced.</p>

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

<p> Original Proceeding in Mandamus. </p> <p>The opinion states the case.</p>

<p>1. Appeal — Review of Conflicting Evidence. The pleadings, evidence and proceedings examined and held, that the petition of the plaintiff below clearly stated a cause of action, and the evidence tending to prove the plaintiff’s case clearly proved a cause of action; and that, after a trial, and a verdict and judgment in favor of the plaintiff, and after the case had been brought to the supreme court, the supreme court cannot Consider contradictory or conflicting evidence, as in such a case the questions as to what the evidence proved and what it disproved were questions solely for the jury and the trial court.</p> <p>2. Witness —Facts, Not Conclusions. The trial court did not err in refusing to permit the following question, propounded by the defendants to one of the defendants as a witness, to be answered, to wit: “Did you ever accept this proposition of his?” The defendants should have asked their own witness, who was also a party, only what was said and what was done, and then let the witness state the facts and not merely his conclusions.</p> <p>3. - No Error. Other matters considered, and held, that no material error was committed by the trial court.</p>

Error from Dickinson District Court. The opinion states the nature of the action and the material facts. Judgment for the plaintiff Bank at the May term, 1889. The defendant, Plumb, brings the case to this court.

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

<p>1. Reoobd on Review — Motion for New Trial. When, in the record of a case-made, the following recital appears immediately after the journal entry, “Whereupon the plaintiffs duly filed their motion to set aside the judgment and for a new trial,” such record sufficiently shows that the motion for a new trial was filed in time.</p> <p>2. Oontbaot — Time of the Essence of. At law, when the parties to a written contract have conditioned the payment of money upon the completion of certain work upon a building by a time fixed therein, time is of the essence of such contract. But if time is not held to be of the essence of the contract, and the parties have a reasonable ' time within which to perform, yet the question of a reasonable time being one of fact, if found against the plaintiffs on the trial, they are concluded by it, unless this court can say that such finding is not supported by the evidence.</p>

<p>1. Feaud — -.Proof. If a defendant alleges that there is fraud in the execution of a chattel mortgage, under which the plaintiff claims personal property, or the value thereof, it devolves upon him to prove the fraud.</p> <p>2. Geneeai. Avebment- — -No Issue for Trial. A mere general averment “ that a chattel mortgage was not executed in good faith, but for the purpose of hindering, delaying and defrauding creditors,” without stating any specific facts, presents no issue for trial. !</p> <p>3. Attachment — Judgment — Prior Chattel Mortgage. Where a creditor commenced an action against a debtor by attachment proceedings, and obtained a judgment therein and a sale of the property attached, such judgment is not binding upon another creditor, who has a prior and valid chattel mortgage, when such prior mortgagee is no party to the attachment action, or any of its proceedings.</p> <p>4. Mobtgagob, Agent for Mortgagee. Under a chattel mortgage, the mortgagee may place the mortgagor in possession of the mortgaged property as his agent, and make sale of the merchandise for his benefit, and such agent may receive compensation for his services. {Prankhouser v. Ellett, 22 Kas. 127; Bliss v. Couch, 46 id. 400.)</p>

M'ror from Lane District Court. The opinion states the facts. Judgment for plaintiff, Roche, at the May term, 1889. The defendant, Greenlees, brings the ease to this court.

<p> Error from Atchison District Court. </p> <p>Action by tbe city of Atchison and- George W. Howell, receiver, against Lewis C. Burnes and others. Action by the city of Atchison, the Chicago & Atchison Bridge Company, and George W. Howell, receiver, against W. H. Harris. Action by the city of Atchison and George W. Howell, receiver, and others against the Chicago & Atchison Bridge Company. Judgments for plaintiffs, at the September term, 1888. Defendants bring error.</p>

Error from Shawnee District Court. Action by Sells against the City to recover damages to lots 75 and 77 on Kansas avenue, in the city of Topeka, caused by changing the grade of the street. Judgment for tbe plaintiff, on December 15, 1888, for $1,200. The defendant brings error. The material facts are stated in the opinion.

<p> Error from Sedgwick Court of Common Pleas. </p> <p>The opinion states the material facts.</p>

Error from Pratt District Court. The opinion states the facts. Judgment for the defendant Railroad Company, on October 22,1889. The plaintiff, Fitzgerald, brings the case here.

Error from Brown District Court. At the general election held in Atchison county, in this state, in November, 1881, James A. Loper was elected to the office of county treasurer of that county for a period of two years, commencing on the second Tuesday of October, 1882.

Error from Douglas District Court. The material facts appear in the opinion. Judgment for the defendant Board, at the November term, 1888. The plaintiff, Menger, comes to this court.

<p> Error from Graham District Court. </p> <p>The material facts are stated in the opinion herein, filed April 9, 1892.</p>

Error from Stafford District Court. Action to recover certain taxes. At the October term, 1891, judgment for the defendant Bank. The plaintiff County Board brings the case to this court. The opinion states the material facts.

<p> Original Proceeding in Mandamus. </p> <p>The opinion herein, filed May 7,1892, contains a sufficient statement of the case.</p>

<p>Mobtgage— Foreclosure — Lease of Land — Crop Bent — Assignment. An owner of mortgaged land leased the same to another, and reserved as rent a share of the crop. He was in default in the pay" ment of the mortgage, and insolvent. After default was made, and after the leasing of the premises, but before the rent was due, he sold his share of the crop rent to one who had notice of the mortgage and of the default. After the crop had fully matured, but while it was standing upon the land, foreclosure proceedings were begun and a receiver of the land appointed, but the court refused to authorize the receiver to take possession of the crop. Held, That the order of refusal was not error.</p>

Fkror from Atchison District Court. Action to restrain the collection of certain taxes. The opinion herein, filed May 7, 1892, contains a sufficient statement of the facts.

<p>Highway — Grossing Railroad Traok — Compensation. Where a highway is established across a railroad company’s right-of-way, it is entitled to compensation for all necessary expenditures in constructing cattle-guards, and such other things as it is required by statute to construct on account of the highway.</p>

<p>1. Receives — Appointment—Discretion of the Court. The appointment of a receiver in an action like this is a matter resting so largely in the discretion of the trial court that the order refusing one -will not be changed unless it is evident that reasonable discretion has been abused.</p> <p>2. - No Ground to Appoint. Dissatisfaction by a minority of the stockholders of a corporation with its management by the majority, in the absence of fraud or insolvency, is not sufficient to authorize the court to appoint a receiver at the instance of the minority.</p>

<p>Replevin — Dismissal of Suit — Action for Damages. Where a party commences an action in replevin, obtains possession of the property in dispute, and then voluntarily dismisses his suit without prejudice, but still retains the property secured under the order of delivery, the defendant may maintain an action upon the replevin bond, if the title to such property be in him, and recover damages for the value of the property so taken.</p>

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

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

<p>Error from Ottawa District Gou/rt.</p> <p>The opinion states the case.»</p>

Error from Garfield District Court. At the September term, 1889, the court sustained the general demurrer filed by defendants Moore and another, to the petition of plaintiffs, Rice, Brown & Go. They complain of this ruling, which they bring to this court for review.

Error from Shawnee District Court. The opinion states the material facts. Judgment for the defendant Companies, at the April term, 1889. The plaintiff, Hawley, brings the case to this court.

<p> Error from Saline District Court. </p> <p>The opinion herein, filed May 7, 1892, states the facts.</p>

Error from Johnson District Court. Action for malicious prosecution. Judgment for plaintiff, Morse, at the January term, 1889, for $400. The defendant, Bell, brings the case to this court.

<p>Homestead — Extent—Judgment Lien. Where a debtor owns a house and two town lots, each 25 feet front and 150 feet deep, and on the rear of two said lots is a building 20 feet wide and 50 feet’long, used by other persons than the owner of said lots as a carpenter shop, and the owner occupies said house and lots with her family, the whole of said lots is a homestead, and no part of the same is subject to forced sale on a judgment rendered against the owner. (The case of Layson v. Grange, ante, p. 440, cited and followed.)</p>

<p>1. Chattel Moetgage in Another State — Removal—Evidence. In an action to recover personal property -which has been mortgaged in another state, when rightfully in possession of the mortgagor and afterward brought into this state and sold, it is not error to receive in evidence the statutes concerning chattel mortgages of the state where the mortgage was executed, if properly pleaded.</p> <p>2. - Copy of Mortgage — Evidence. Where the execution of a chattel mortgage is properly alleged in a petition and its execution is not denied under oath, it is not material error for the court to admit a copy of such mortgage in evidence, if not duly authenticated.</p> <p>3. - Record in Another State — Notice. Where a mortgagor removes property from another state into this state, which has been incumbered by a mortgage duly recorded and valid under the laws of the former state, such removal does not invalidate the recording of such mortgage, nor necessitate the recording of it again in the county in this state to which the mortgagor has removed with the-property. The constructive notice imparted by the recording of such mortgage, by the law-of comity between the different states, is not confined to the county or state .where the mortgage was executed and the property then was, but covers the property wherever-it is removed.</p>

Error from Greenwood District Court. The opinion states the facts. Judgment for defendant, Brookover, at the May term, 1891. The plaintiff, Hardwick, brings the case to this court.

Error from Barton District Court. Action by the Great Bend Gas & Fuel Company against A. Y. McCormick to recover on a subscription for stock. On a judgment for plaintiff, at the June term, 1889, defendant brings error.

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

Error from Greenwood District Court. Action by James Sheehan against the Township of Quincy, Greenwood county, Kansas, to recover damages for the loss of property resulting from the alleged negligence of the township in maintaining a highway.

<p> Error from Brown District Court. </p> <p>Action by Theodore F. Sullivan and others against School District No. 39, Brown county, to recover for lumber furnished for a school-house. On a judgment for plaintiffs, at the November term, 1888, defendant brings error.</p>

Error from Sedgwick Court of Common Pleas. Action by P. J. Lenhard against George C. Richardson, Herman Simon, and E. M. Billings, to recover a sum due on a settlement for a car load of apples. At the September term, 1889, there was a general verdict for plaintiff, and special findings. Defendants moved for judgment on the findings, notwithstanding the general verdict, and, the motion being denied, they bring error.

<p>1. Gabnishment Proceedings — What Bound by. Garnishment proceedings bind only such property, money, and credits, not exempt from attachment and garnishment, as belong to the defendant, in the possession of the garnishee, or owing by him to the defendant, at the time of the service of the process upon the garnishee.</p> <p>2. Liens, When — When not. The garnishee process of the plaintiffs and of the State Bank, having been served upon C. & F. several days before the Mumford draft came into their possession, did not become liens on the proceeds of said draft in their hands. But the process in behalf of C. & V., having been served upon C. & E. after said draft came into their possession and before the proceeds thereof were paid over to Mumford, became a lien on said draft, and they were entitled to the money arising therefrom to the extent of their claims against Mumford.</p>

Error from Anderson District Court. The opinion states the material facts. Judgment for the defendants, on September 4, 1888. The plaintiff, Clarinda Chapman, brings the case to this court.

<p>Taxation — Enjoining Collection — Estoppel. A certain county road in Wyandotte county was improved, in attempted compliance with chapter 214 of the Laws of 1887. The plaintiff, who was the owner of real estate abutting upon such road, by her agent and attorney in fact, signed the petition for the improvement. She also had knowledge of the improvement as the work progressed, knew under what law the improvement was made, how it was to be paid for, and that her land would be taxed therefor; and she at no time made any objection to the improvement. After the improvement was made her land was taxed to assist'in the payment therefor. Her land was greatly benefited by the improvement, and its value enhanced to an amount far in excess of the tax which was levied upon the land to aid in the payment for the improvement. Held, That she cannot now maintain an action to perpetually enjoin the county officers from collecting such tax. She is not entitled to the equitable remedy of injunction to protect her from the natural consequences of her own acts, or from consequences which she at least invited, encouraged and contributed to by her own conduct.</p>

Error from, Sedgwick District Court. Action by Christiana Sehroeder and others against the German Fire Insurance Company on a contract of insurance. Verdict and judgment for plaintiffs, June 19,1889. Defendant brings error.

<p> Error from Jackson District Court. </p> <p>The opinion states the material facts. Judgment for defendants, Greene and another, at the November term, 1889. The plaintiff, Fleming, brings the case to this court.</p>

Error from Ellsworth District Court. The opinion states the facts. Judgment for plaintiff, Hunter, at the November term, 1888. The defendant, George, brings the case here.

Error from Cloud District Court. On March 22, 1887, Caroline Clark, as administratrix of the estate of William D. Clark, deceased, commenced her action in the district court of Cloud county, to recover $10,-000 as damages by the reason of the death of William D. Clark.

Error from, Sedgwick Court of Common Pleas. Action by Kate Griesser and Peter Getto, guardian of the minor heirs of Severin Griesser, deceased, against the Chicago} Kansas & Nebraska Railway Company, to recover for damages by defendant in constructing its road through the land of such heirs. Verdict aud judgment for plaintiffs, on July 6, 1889. Defendant brings error.

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

Error from Brown Bistriet Court. Action on a note. Judgment for defendant, Beeler, at tbe November term, 1888. The plaintiff, Smith, brings the case to this court.

Error from Douglas District Court. Action by Martin L. Sargent against the Kansas Midland Railroad Company and others to enforce a claim for certain stock. On a judgment for defendants, plaintiff brought error. He subsequently died, and his administrator, John A. Sargent, was substituted as plaintiff. The facts fully appear in the opinion herein, filed May 7, 1892.

Error from Reno District Court. Action by Smedley Darlington against John D. Caswell, Sarah J. Caswell, his wife, and the Union Stove & Machine Works, on a note and real-estate mortgage. The defendant company claimed a judgment lien on the mortgaged lands. On the latter claim there was a verdict and judgment for the Caswells, and the defendant company brings error.

<p> Error from Wyandotte District Court. </p> <p>Action brought by Margaret A. Hackett against Louis Hammerslough to recover damages for a breach of the covenants of seizin and of right to convey, contained in a conveyance executed by Hammerslough to Hackett on January 10, 1879. The petition sets forth that at the time last mentioned,, in consideration of $2,000, Hammerslough and wife made a conveyance of 280 acres of lánd in Coffey county, and covenanted that they were “ lawfully seized of an indefeasible estate in fee-simple in said premises, and that they had good" right to convey the same.” But in fact they had no estate therein nor any right to convey said premises at the time said conveyance was made. Judgment was asked for $2,000, with interest from January 10, 1879. Hammerslough answered, admitting the making of the deed and covenants, but denying that the consideration was as,alleged in the petition. He averred that on October 6, 1866, G. W. Campbell was the owner of the land and then mortgaged it to Levison & Co.;, that this mortgage was foreclosed and a sale made to Levison- •& Co., who thereby acquired the title in fee-simple; that on October 5,1874, the partners of Levison & Co. conveyed the land to Hammerslough, but that the deed of conveyance, which was sent to the register of deeds’ office for record, was lost; that he entered upon the land, paid taxes thereon, and re- ■ deemed the same from tax sale and retained title thereto until he conveyed the land to Hackett; that on October 25, 1874, •he conveyed the land to Julius Hammerslough by a deed absolute in form, but which was in fact a mortgage to secure a •debt which he owed to Julius Hammerslough; that this debt was discharged before he conveyed the land to Hackett, and that Julius Hammerslough, on May 24,1880, réconveyed the land to Louis Hammerslough; that in 1881, having learned that the original deed of Levison & Co. to himself had been ■lost, he procured a new deed from them to himself, the original of which he tendered to Hackett or her assigns. He alleged that G. W. Campbell had died about three years before that time, and that since the institution of this action ■he had acquired all the title which the widow and heirs of said Campbell might have in the lands, and tendered a copy of their conveyance. He further alleged that about February 27, 1879, Margaret A. Hackett and her husband mortgaged the land to secure a note which they had given; that the note was not paid, and it and the mortgage were assigned to' Lathrop & Smith, who brought a foreclosure proceeding in the district court of Coffey county, where they obtained a decree of foreclosure, under which a sale was made conveying all the right, title and interest of the Hacketts in the premises. He further averred that the deed declared on by Hackett contained, in addition to the covenants of seizin and right to convey, a further covenant warranting and defending the title to her and her heirs and assigns, and that therefore the title ■ conveyed to and acquired by Hammerslough had inured to and was vested in Lathrop & Smith, and that they and their . assigns had never been disturbed in their possession.</p> <p>At the July term, 1889, a trial was had before the court, N. Cree, judge pro tern,, presiding, and the following findings of fact and law were made:</p> <p>“findings of fact.</p> <p>“1. On the 10th day of January, 1879, the defendant executed a deed of conveyance of the following described premises to the plaintiff, to wit: The south half and the northeast quarter of northwest quarter of section number 2, and the southwest quarter of section number 11, both in township number 21, of range 16, and containing 280 acres, more or less, in Coffey county, state of Kansas.</p> <p>“2. In the said deed of conveyance there was contained the following covenants, to wit: ‘The said Louis Hammer-slough and Rachel Hammerslough, his wife, hereby covenanting that they are lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that they have good right to convey the same; that the said premises are free and clear of any incumbrance done or suffered by them or those under whom they claim; and that Louis Hammerslough will warrant and defend the title to the said premises uuto the said party of the second part, and unto her heirs and assigns forever, against the lawful claim and claims of all persons-whomsoever.7</p> <p>“3. The consideration received by defendant for the said deed was a conveyance by plaintiff and her husband, ThomasHackett, to the defendant, of a certain house and lot in Kansas City, Mo., the title to which was in said Thomas Hackett at the time of the execution by them of the said deed to Louis Hámmerslough; the said house and lot in Kansas City, Mo., was incumbered with a mortgage at the time of the conveyance thereof to defendant, but the value of the interest of said Thomas Hackett in the same, after deducting the said mortgage incumbrance, was $2,000 at the time it was conveyed to defendant. The said lands in Coffey county, state-of Kansas, were on the 10th day of January, 1879, deeded to plaintiff in exchange for the said house and lot, by agreement between the defendant and said Thomas Hackett, and the deed to the said lands in Coffey county, state of Kansas, was delivered to and received by plaintiff.</p> <p>“4. In June, 1868, one L. Levison & Co. commenced an action in the district court of the state of Kansas for Miami county, to foreclose a mortgage upon the said lands in Coffey county, state of Kansas,-and also upon certain other lands in Miami county, state of Kansas, it being averred in their petition in said suit that said mortgage upon said lands had theretofore, in 1866, been executed to them by one G. W. Campbell; and on the 29th day of September, 1873, in pursuance of a judgment and further proceedings in said cause against said Campbell, the sheriif of Coifey county, state of Kansas, executed and delivered to said L. Levison & Co. a deed to all the-said lands in Coifey county, state of Kansas.</p> <p>“5. In March, 1874, the said L. Levison & Co. executed a conveyance of all the said lands in Coffey county, Kansas, to defendant Louis Hammerslougb, who afterwards, and on the 25th day of March, 1874, executed a deed of conveyance with, covenants of warranty of all of said lands to one Julius Hammerslough.</p> <p>“6 On the 14th day of May, 1877, the county clerk of Coffey county, state of Kansas, executed to one Austin Corbin a tax deed to the south one-half and the northeast quarter of the northwest quarter of section 2, township 21, range 16 east,. Coffey county, state of Kansas.</p> <p>“7. The tract of land last described was patented to J. W. McDonald, and by him conveyed to George W. Campbell, in October, 1858.</p> <p>“8. The southwest quarter of section 11, township 21, range 16 E., Coffey county, state of Kansas, was patented to. one Wm. R. Campbell in 1856.</p> <p>“9. Wm. R. Campbell died in 1858, leaving a widow and eight children, of whom G. W. Campbell was one.</p> <p>“10. On the 27th day of February, 1879, the plaintiff and her husband executed a mortgage of the lands conveyed by-defendant to plaintiff on the 10th day of January, 1879, which mortgage was afterwards assigned to Lathrop & Smith, and by them afterwards foreclosed in Coffey county, Kansas, and on the 29th day of July, 1881, a sheriff’s deed to the said lands was executed by the sheriff of Coffey county, state of Kansas, to the said Lathrop & Smith, who on the 4th day of May, 1883, conveyed said lands to George E. Manchester by a deed of quit-claim for the consideration of $950, and on the-18th day of May, 1883, the said Manchester, by a deed with covenants of warranty, and for an expressed consideration of $1,025, conveyed the said lands to D. V. Mott, who, on the 31 st day of July, 1883, by a deed with covenants of warranty, and for an expressed consideration of $1,200, conveyed 160 acres of said lands to one T. J. Studebaker, who on the same day executed a mortgage of the same lands back to said Mott.</p> <p>“11. At the time the said lands in Coffey county, Kansas, were conveyed to plaintiff by defendant, they were vacant and unoccupied, and the plaintiff never took possession of the same.”</p> <p>“conclusions op law.</p> <p>“1. The said Austin Corbin was, on the 10th day of January, 1879, the owner of the south half and the northeast quarter of the northwest quarter of section 2, township 21, range 16 E., Coffey county, state of Kansas, containing 120 • acres.</p> <p>“2. On the 10th day of January, 1879, the said Julius Hammerslough was the owner of only an undivided one-sixteenth interest in the southwest quarter of section 11, township 21, range 16 E., in Coffey county, state óf Kansas, that being the entire interest that passed to him by virtue of the deed from the sheriff of Coffey county, Kansas, September 29, 1873, to L. Levison & Co., the deed by the latter to defend- ■ ant in March, 1874, and the deed by defendant to said Julius Hammerslough in 1874.</p> <p>“3. The conveyance by defendant to plaintiff, made January 10, 1879, contained a covenant that defendant was lawfully seized of an indefeasible estate in fee in the premises described in said deed of conveyance, and had good right to convey the same, the said covenant being one of seizin, and at the time said covenant in said conveyance was made by defendant to plaintiff he owned no estate or interest in the lands described in said deed and had no title to the same or to any part thereof, and the said covenant was thereby immediately broken.</p> <p>“4. The defendant is not entitled to any abatement or mitigation of damages on account of the mortgage of the lands described in the said deed of January, 1879, and made by plaintiff and her husband to Foreman & Freidlander and by them assigned to Smith & Lathrop and foreclosed by the latter, nor on account of such foreclosure and the sheriff’s deed thereunder to said Lathrop & Smith.</p> <p>“ 5. The plaintiff ought to recover of and from the defend- - ant the sum of $2,000, with interest thereon at the rate of 7 per cent, per annum from the 10th day of January, 1879.”</p> <p>Exceptions to the findings of fact and conclusions of law were taken and overruled, and judgment was entered against ’ the defendant for $3,478.18. Hammerslough brings the case -• here for review.</p>

Error from Neosho District Court. Action by E. C. Robinson and Owen McNulty, doing business as 8. A. Brown & Co., against School District No. 84, Neosho county, to foreclose a material-man’s lien for the erection of a school-house. On a judgment for defendant, on demurrer to the petition, plaintiff's bring error.

Error from Butler District Court. Action by A. B. Symns & Co. agaiust the Exchange National Bank, of El Dorado, Kas., on a draft. Verdict and judgment for defendant, at the March term, 1889. The plaintiffs complain and come to this court.

Error from Franklin District Court. The Modern Woodmen of America is a mutual life insurance company, incorporated under the laws of Illinois, and doing business in the state of Kansas. July 24, 1888, said company executed and delivered to S. W. Jameson, husband of the defendant herein, a benefit certificate, by the terms of ■ which it agreed, upon certain conditions, to pay to said Mary J. Jameson the sum of $2,000, upon the death of her said husband.

Prosecution for arson in the first degree. From a conviction, at the April term, 1891, the defendant, Nolan, appeals. The opinion states the facts.*

<p>1. Monets, When Gity Funds. Moneys paid to the city treasurer under the provisions of §189 of the first-class-city act are city funds; or, in other words, funds belonging to the city.</p> <p>2.---Designation of Depository. And for the purpose of designating a bank as a depository for them, they are under the control of the mayor and council; but, when they are deposited in the bank designated by the mayor and council, they are still subject to the order of the board of police commissioners to the same extent as they were when they were held by the city treasurer.</p> <p>3. -Valid Statute. Section 87 of the first-class-city act, which provides for the mayor and council designating a bank as a depository for the public money of the city, is not unconstitutional or void.</p> <p>i. --• Interest on Deposits. A national bank may be a depository for such funds, and may lawfully agree to pay interest on the deposits and to give a bond for their security.</p>

Error from Cowley District Court. Action by Schermerhorn against McMullen for an accounting between them as principal and agent. Judgment for plaintiff. New trial denied. Defendant brings the case to this court. The facts are stated in the opinion.

Error from Comanche District Court. The opinion states the material facts. Judgment for plaintiffs, Chenoweth Bros., at the November term, 1888. The defendants, Veatch and another, bring the case to this court.

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

The material facts are stated in the opinion. From a conviction and sentence, at the November term, 1891, the defendant, Geer, appeals.

Error from Ellsworth District Court. 4 CTION by Wellington and another against Allen, as principal, and McLennan and another, as sureties, on a certain bond. Judgment for plaintiffs, September 30, 1889. The defendant sureties allege error, and bring the case to this court.

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

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

Error from Labette District Court. Action by Jones against Wilson to enforce a mechanic’s lien. Judgment for plaintiff, at the February term, 1889. The defendant comes to this court.

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

Error from Cowley District Court. Action by L. D. Latham & Co. against S. B. Fleming and others to recover a balance due on a certain note. Verdict and judgment for plaintiffs. New trial denied. Defendants bring error.

Error from Anderson District Court. This action was originally commenced by the Gibbs & Starrett Manufacturing Company against A. L. Serene, J. H. Serene, and H. K. Winans, before a justice of the peace.

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

<p>1. Special Questions- — Irresponsive Answers. Where special questions of fact are submitted to a jury, and are not fully and intelligently answered, it is the duty of the trial court, upon application of either party, to require the jury to return full and responsive answers to them.</p> <p>2. Replevin by Mortgagee of Chattel — Estoppel. Where the plaintiff brings an action in replevin to recover property covered by a chattel mortgage, obtains possession of such property and sells the same at chattel-mortgage sale, and immediately thereafter plaintiff and defendant have an accounting, and the plaintiff pays to the defendant the surplus of the proceeds of the sale after deducting the amount due him on the note and mortgage, together with the costs attending the taking and selling the property, as well as the court costs, and delivers to the defendant the note secured by the mortgage, and cancels such mortgage, held, that where such facts are pleaded by a supplemental reply, and the jury so find, the defendant is estopped from questioning the fact that the mortgage note was not due, or that the sale was invalid.</p>