Volume 49 — Kansas Reports

Mtot from, Leavenworth District Court. The Leavenworth & Olathe Railroad Company, contemplating the building of a railroad from Leavenworth to Ola-the, Kas., was incorporated September 27, 1886. The Kansas City, Wyandotte & Northwestern Railway Company, contemplating the building of a railroad from Kansas City to the Nebraska state line, was incorporated November 24, 1885.

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

Error from Marshall District Court. The opinion states the case. The motion for a petition stating what -the land-owner claimed as damages should have been sustained. St. J. & D. C. Rld. Co. v. Orr, 8 Kas. 419, 422; Ellsworth &c. Rly. Co v. Maxwell, 39 id. 651. In this case the motion was a necessity because no transcript was filed. What the clerk filed was a mere certificate as to his opinion, which is not a record. The judgment is personal, and therefore erroneous.

Error from Harper District Court. The opinion states the case. The testimony of T. B. Marsh, taken by deposition and read in evidence, is, in all its material parts, hearsay and incompetent, and should have been excluded by the court from the consideration of the jury; but it was read in evidence over the objection of defendants.

Error from Osage District Court. The opinion contains a sufficient statement of the facts.

Error from Nemaha District Court. The opinion states the facts. 1. In view of the fact that no special damages were claimed or proven, and that Mrs. Wickens did not suffer any in her business or in the estimation of her neighbors, the damages awarded by the jury must be those following from the uttering of words per se actionable, and have been given by reason of express malice on the part of Mr. Walker.

<p>Deed op Land by Wipe — Non-joinder of Husband — Adverse Possession— Action, Barred. A married woman who owned land in her own right, which was not occupied as a homestead, oonveyed the same by warranty deed, but her husband did not join in the conveyance. It was the understanding and intention of both the wife and the husband that the grantee should be invested with an absolute fee-simple title, and the only reason why the husband did not sign the deed was because he was advised and understood that his signature was unnecessary to a perfect title. The grantee took and has held open, notorious and exclusive possession under his conveyance, claiming absolute title as against every one, and the husband of the grantor understood and acquiesced in that claim for more than 18 years. Sixteen years and two months after conveyance was made and pos. session taken, the wife died, leaving the husband, who, about two years afterward, for the first time, claimed that as he had not signed the deed he was not divested of his contingent interest in the land, and that, as the survivor of his wife, he was entitled to a one-half interest therein. Held, In an action by the grantee to quiet title, that the inchoate right of the husband in the land was effectually barred at the end of 15 years after the land was conveyed and the grantee placed in possession, and that the grantee had aoquired a perfect title to the land before the death of the wife.</p>

Error from Norton District Court. The case is stated in the opinion. The court erred in giving paragraph 2 of instructions given by the court on its own motion, which said paragraph is erroneous in this, that it does not properly lay down and explain the law of liability of agents iii such cases.

Error from Shawnee District Court. The material facts are stated in the opinion herein, filed June 11, 1892. 1. The proceedings in attachment were void. The affidavit alleging non-residence of defendants was sworn to 16 days before the petition was filed, and was filed one day before the petition. This was not a sufficient statement of facts upon which to base an attachment.

Mr or from Shawnee District Court. All the material facts are stated in the opinion. 1. Under the pleadings, no judgment could be taken against Kaczynski, and it was error to permit it to be done. The admitted and confessed allegations in Kaczynski’s answer, as-matter of law, prevented Carter & Suggs from obtaining any judgment whatever, as against Kepley.

Error from, Cowley District Court. The opinion states the case. The plaintiff in error claims material error in the rulings, proceedings and judgment of the court below in the trial of said case and in the overruling of plaintiff’s motion for a new trial, as well as the motion to open up the judgment, and therefore asks a reversal of the judgment rendered by the court below.

Error from Saline District Court. Action by Elizabeth, S. C. Kelley against W. EC. Gentry, as sheriff of Saline county, to recover damages for the conversion of certain merchandise. Verdict for plaintiff. New trial denied, and judgment entered at the March term, 1889. Defendant brings error. The court below erred in giving the sixth paragraph of its instructions to the jury. No instruction is proper that is not based upon evidence given upon the trial of the cause. Thomp.

jError from Shawnee District Court. Action by Gregg and others against Russell and others on a promissory note. Verdict for plaintiffs at the September term, 1888. New trial denied, and judgment entered for plaintiffs. The defendants bring the case here.

<p> Error from Reno District Court. </p> <p>The opinion states the case.</p> <p>1. The court below erred in overruling the demurrer of defendant below on the grounds, first, that the court had no jurisdiction to hear and determine the cause; and, second, that plaintiff’s petition failed to state a cause of action. Comp. Laws of 1885, ¶ 3848. When a court of general jurisdiction exercises statutory and extraordinary powers, it is governed by the same rules as courts of limited jurisdiction, which is that nothing shall be intended to be within the jurisdiction but that which is so expressly alleged. Haywood v. Collins, 60 111. 328; Gray v. Steamboat Reveille, 6 Wis. 59.</p> <p>2. The contracts sued upon and made a part of the petition provide that, in case the second party does not comply with the terms of the contracts and meet the deferred payments therein mentioned, that the contracts are forfeited and become null aud void, and second party forfeits all moneys paid. Under the terms of the contracts, the balance of the purchase-money cannot be recovered. This was evidently the construction put upon the contracts by both parties at the time of execution, and it is certainly the most equitable construction that can be put upon them now.</p> <p>3. The court erred in not sustaining the demurrer of defendant below to the evidence offered by plaintiff, because the plaintiff nowhere in said evidence proved the existence of either of the jurisdictional facts mentioned in ¶ 3848, Comp. Laws of 1885, which would give the court below jurisdiction; for whether it is necessary to plead them, or not, it is certainly necessary to prove them.</p> <p>The case-made in this cause is incomplete in not containing the instructions of the court, nor a statement that it contains all the evidence and testimony offered.</p> <p>This suit was brought on contracts for payment of money arising in the state of Kansas by a domestic corporation against a resident of Missouri. It was brought in Reno county, where said non-resident had lands, and the lands were taken in regular attachment proceedings at the commencement of the suit, in order that the amount of money claimed against said non-resident could be charged against said lands. It was brought under §§ 53 and 190 of the code. The suit was simply for the recovery of money. It is regular, as shown by case-made in every respect, and fully authorized by the code. It was brought in a court of general jurisdiction, and there is no prescription in the statute that it must be alleged in the petition in such a case that the defendant is a nonresident and has property or debts in the county where the suit is brought; but of course if there was a failure of the defendant to appear it would have been necessary to show service by publication and prove these facts, if the court did not take judicial notice by the attachment proceedings and affidavits of publication. No attack was made on the attachment, and the court rendered, in the usual and ordinary manner, on the verdict of the jury and the attachment proceedings, a personal judgment and judgment in attachment. The Illinois case cited by plaintiff in error is not for him, and the Wisconsin case is not applicable.</p> <p>The oitation of authority on our side is unnecessary, still we mention: Railroad Company v. Alters, 4 Kas. 470; George v. Hatton, 2 id. 333; 26 id. 102; 28 id. 364; 20 id. 660.</p> <p>If it were necessary to prove at the trial the facts which plaintiff in error deems “jurisdictional,” it will be presumed that that was done, for the case-made does not purport to contain all the evidence.</p> <p>The defendant in error had the right to sue on the promises made in the contracts for the payment of money as they fell due. A mere waiver of some rights conferred on second party by the contracts is not a rescission. Barrett v. Dean, 21 Iowa, 423; Sigler v. Wide, 45 id. 690; Blood v. Enos, 12 Vt. 625.</p> <p>Yet even if we concede that the contracts gave Bohart an option not to pay for the lots involved in this action, still there can be no reversal. All the evidence is not before the court and none of the instructions. How can this court determine what facts of assent, ratification, estoppel, as well as of contract, not disclosed by the case-made, may or may not have ■supported the verdict of the jury? That would be purely a matter of speculation. The presumptions in the face of an incomplete record are all in favor of the verdict of the jury and the judgment of the court.</p> <p>No tender of deed was necessary in this case, as the suit was simply for installments. Battey v. Beebe, 22 Kas. 81.</p>

Error from, Sherman District Court. Action brought by Swigart to quiet the title to real estate in Sherman county, against Walker, who claimed an adverse interest in the same. The case was tried at the July term, 1889, before the court, when the following findings of fact and of law were made: “1. Prior to May 14, 1886, the land in dispute was public land of the United States. “2.

Error from Pratt District Court. The case is stated in the opinion. The court erred in not sustaining the demurrer of plaintiffs in error to the evidence of defendants in error. The only allegation as to the transfer of said note to said H. H. Campbell by said Maggie Carter is, that it was sold and transferred on August 20, 1888, and that a copy is attached. There is no indorsement of any kind thereon.

Error from, Cowley District Court. A sufficient statement of the case is contained in the opinion. 1. The petition of plaintiffs below stated no cause of action and no right of recovery against defendants below.

Error from Harvey District Court. The opinion states the case. Appraisement was not waived in this case. Therefore, the lands had to be sold upon appraisement; and that such sale could not be made for less than two-thirds of the appraised value is too well known to need the citation of authorities. Ereeman on Executions, in § 284, says: “The appraisement laws are intended to prevent the sacrifice of the defendant’s property.

Error from, Atchison District Court. Injunction to restrain certain tax sales. Tbe opinion states the facts. 1. The order of the board of equalization increasing the assessments in question is ultra vires. The board exceeded its authority, and usurped the functions of the assessors. This order is not an act of equalization, but of assessment. Sections 73 and 74, chapter 107, Gen. Stat. of 1889, create and define the duties of the board of equalization.

Error from Osage District Court. Ejectment by W. D. Martin and D. M. Cooper against B. F. Garrett, Anna Garrett, and Louis Shutz and wife. On a judgment overruling plaintiffs’ demurrer to the answer, they bring error. Suppose all the defense to be well pleaded: then it is no ■defense to the petition, because the statute will not run unless the defendants have a good tax deed; but this deed is void on its face.

The opinion states the case. It is not contended by appellant in this case that the court below was without jurisdiction to try him for any offense of which the county attorney had actual knowledge… Held: in the case of The State v. Schweiler, 27 Kas. 499, such provision not to be in conflict with § 10 of the bill of rights. But, from a perusal of that opinion, it is evident that such conclusion could only have been arrived at with hesitation.

Error from Linn District Court. The case is sufficiently stated in the opinion. The motion to retax costs was filed on the 12th day of June,. 1889. This was one week and a day after the June term began. This was the seventh**day of the June term.

Error from Geary District Court. The opinion states the facts. A probate court has jurisdiction to pass upon the homestead question; Fudge v. Fudge, 23 Kas. 416; Johnson v. Cain, 15 id. 532; and it presumably did so in this case, and ordered the sale of the property; and if so, the order was not void, and therefore cannot be attacked except upon a direct proceeding for that purpose. The remedy by appeal was ample. Gen. Stat. of 1889, ¶ 2974.

Error from Sedgwick District Court. The opinion states the case. 1. The court erred in requiring plaintiff to proceed with the trial of the case upon its merits at the March term of said court, the cause having not been at issue 10 days before the first day of that term. Code, §315.

The opinion states the ease. We submit that, under the law and the facts of this case, the appellant not only had an interest in the rye in question, but that he was the sole and absolute owner thereof.

Error from Crawford District Court. The facts appear in the opinion. Judgment for the defendant Railway Company, at the .April term, 1889. The plaintiff, Nelson, comes to this court. 1. The several items of damage claimed by the plaintiff in his original bill of particulars constitute but one cause of action.

Motion for Rehearing. The case is sufficiently stated in the opinion herein, filed at the session of the court in June, 1892.

Error from Dickinson District Court. The opinion states the case. On the question of sufficiency of proof and laches, and ratification, we cite: Reynolds v. Fleming, 30 Kas. 106; Ryan v. Doyle, 31 Iowa, 53. That the court should not have made the judgment unconditional, we cite Freeman on Judgments, 3d ed., § 516, and cases therein cited.

Error from Republic District Court. The facts are fully stated in the opinion. Judgment for plaintiff, Munger, at the May term, 1889. The defendant Company comes to .this court. Munger testified as to Bell’s statements, as follows: “Mr. Bell told me it was not necessary; that he never had made proofs of any losses that he had had in town, and that none of the companies doing business here ever made proofs that he knew of.

<p>Sohooxi-Distbiot Bonds — Contest of Election. The term “municipal corporation,” as used in chapter 79 of the Laws of 1871, does not embrace school districts; and a sohool-district election to vote bonds cannot be contested at the instance of an aggrieved elector by any of the proceedings provided for in that act.</p>

The facts are stated in the opinion. The defendant, Lund, filed his motion to dismiss this action for the reason that the district court had no jurisdiction of this defendant, for the reason that the action had been originally begun before a justice of the peace, and that said justice, in the place of giving the defendant a trial, treated said hearing as a preliminary examination, and bound this defendant over to appear at the district court for trial. This is clearly error.

Error from Meade District Court. The opinion states the facts. 1. The introduction of any evidence in regard to the sale by one Mike O’Meara to Theo. C. Baxter of a small bay horse, which was not one of the horses in question, and which -is not shown to have had any connection with the case, is the first error complained of. The testimony of Theo.

Original Proceeding in Mandamus. On the 16th day of September, 1891, in accordance with a resolution of a majority of the board of directors of the Bank of Lyons, of Lyons, Rice county, the bank, through its president and secretary, executed and delivered to W. T. Nichols its general deed of assignment for the benefit of all its creditors. The deed of assignment was filed in the office of the register of deeds of Rice county.

The opinion states the facts. When this case was called for trial in the district court of Sumner county, Kansas, the defendant objected to going to trial, upon the ground that there was no original complaint and warrant in said district court, certified by the police judge to be the original.

Error from Cowley • District Court. Action by the Winfield Land & Trust Company against Burger, to enforce payment of certain subscriptions. On a judgment for defendant, at the September term, 1889, the plaintiff brings error.

The opinion states the material facts. From a conviction and sentence, at the January term, 1892, the defendant, Woods, appeals. 1. The court erred in requiring the defendant to enter a plea when there had been no preliminary examination had of the charges made against him. Section 5133, General Statutes of 1889, provides only for the filing of the information in the district coart in certain cases before complaint is made-before some magistrate and a preliminary hearing had.

Error from Sharper District Court. Action by The State, on the relation of the county attorney of Harper county, against the City of Anthony, and others, to have certain bonds of the city declared void. Judgment for the plaintiff, at the October term, 1891. The defendants bring the case to this court. The facts appear in the opinion.

The opinion states the facts. The only error complained of by the defendants, and of which they will be able to avail themselves, is the remark of the county attorney in his closing speech to the jury, as follows : “ Why did these young men not explain to you, gentlemen, the circumstance of their having in their possession the silk?” (meaning the silk charged to have been stolen,) in direct violation of § 1, ch. 118, of Laws 1871, amending § 215, ch. 82, Gen. Stat. of 1868.

Error from Scott District Court. Action by Walton against Miexsell and others to foreclose a real-estate mortgage. Judgment for plaintiff. Defendants bring the case to this court. 1. The transfer from Horace Miexsell, plaintiff in error, to Walton, defendant in error, was a fraud concocted by Walton to hinder, delay and defraud Horace’s creditors, and was null and void, and conveyed no title to Walton. 2.

Error from Sedgwioh Common Pleas Court. The material facts are stated in the opinion. 1.

Error from Dickinson District Court. All the material facts are stated in the opinion. 1. Held: that the time the statute began to operate was from the first taking of the goods.” Ang. Lim. (5th ed.), § 304, and cases cited.

W. W. Arnold and about 75 other land-owners commenced this action to enjoin special taxes charged upon their respective lands for the improvement of the Southwest boulevard, a street in the city of Rosedale, under the authority of chapter 214, Laws of 1887. (Gen. Stat. of 1889, ¶¶ 5521-5531.) The case was tried in the court of common pleas of Wyandotte county, and by request of the parties the conclusions of fact found were stated separately from the conclusions of law.

<p> Error from Wyandotte Court of Common Pleas. </p> <p>This was an. action in the court below, brought by E. D. Browne against the Board of County Commissioners and other officials of Wyandotte county, to enjoin the collection of certain special assessments or taxes charged against his land for the improvement of the Quindaro boulevard, under the authority of chapter 214, Laws of 1887. (Gen. Stat. of 1889, ¶¶ 5521-5531.)</p> <p>The court stated in writing the conclusions of fact found separately from the conclusions of law.</p> <p>Among the conclusions of fact found were:</p> <p>“1. A short time prior to the 3d day of June, 1887, the plaintiff signed a petition for the improvement of the Quindaro road, a copy of which is annexed to plaintiff’s petition.</p> <p>“ 2. The petition was presented by Martin Stewart to the board of county commissioners of the county of Wyandotte, on the 3d day of June, 1887, and was recorded at length on its journal by the county clerk.</p> <p>“ 3. At the time the petition was signed by the plaintiff, and when the same was presented to the commissioners, there were 21 resident land-holders in the district extending one-half mile on both sides of the Quindaro road, and between the terminal points mentioned in the petition, but only five of those resident land-holders signed the petition; so that instead of containing a majority of the resident land-holders, as required by § 1 of the road-improvement law, it in fact contained less than one-fourth of them.</p> <p>“ 4. The plaintiff did not at the time he signed the petition, nor at any other time, authorize any person to present the same to the county commissioners before it had been first signed by a majority of the resident land-holders as required by the road-improvement law, and it was not the intention of plaintiff that the petition should be presented to the county commissioners until after it was signed by a majority of such resident landholders.</p> <p>“5. The plaintiff never saw the petition afterwards, and never knew that the petition had not been signed by such majority of resident land-holders until after the improvement of the road had been fully completed, as hereinafter stated.</p> <p>“6. After the petition had been presented to the board of county commissioners and recorded upon its journal, it was, without the knowledge or consent of plaintiff, altered by changing the word ‘two’ to ‘one/ so that it required the foundation for the pavement to be made of one-inch cypress boards instead of two-inch cypress boards.</p> <p>“ 7. That plaintiff never knew of the alteration and change in the petition until after the improvement of the road had been fully completed, as hereinafter stated.</p> <p>“8. The board of county commissioners, soou after the presentation of the petition, ordered the county surveyor of the county of Wyandotte to make an accurate survey of the Quindaro road, in the petition mentioned, with an estimate of the cost of the improvement, together with specifications for the improvement, and a map showing the several tracts of lauds within one-half mile on either side of the proposed improvement.</p> <p>“ 9. Pursuant to the order, the county surveyor did make a survey of the road and an estimate of the cost, and specifications for the improvement of the road, but such estimate and specifications provided for one-inch cypress boards for the foundation of the pavement. The surveyor also made a map and /profile, but the map omitted a tract of about 160 acres on the south side of the road and- within a half-mile thereof, which tract was subdivided into lots and partially improved, and of the value of at least $100,000, which omitted territory was within the limits of the city of Kansas City, Kas.; and the map also omitted another tract of about 15 acres, on the north side of the road, and within a half-mile thereof, which tract was subdivided into lots and partially improved, and of tbe value of not less than $50,000, and the last omitted tract was not within the limits of any city.</p> <p>“10. The plaintiff’ had no knowledge that the estimate and specifications provided for one-inch cypress boards as the foundation for the pavement, nor that the tracts of land were omitted from the map, until after the improvement of the road had been fully completed, as hereinafter stated.</p> <p>“11. On the 6th day of July, 1887, and after the surveyor' had made the survey, estimates, specifications, map, and profile, the board of county commissioners appointed three road commissioners to take charge of and conduct the improvement in accordance therewith. The commissioners were all properly qualified, except G. W. Bishop, one of them, who failed to take an oath of office, and who resigned before any considerable portion of the work of the improvement was begun, but after the contract was let.</p> <p>“ 12. Plaintiff had no knowledge, until after the road was fully completed, that Road Commissioner G. W. Bishop had not subscribed or taken oath.”</p> <p>“15. Plaintiff did not know, until after the improvement Avas fully completed, that the road commissioners had changed the grade and constructed the improvement upon a different grade than that established by the profile of the surveyor.”</p> <p>“20. The road commissioners in making the apportionment apportioned and charged upon the lands of plaintiff described in his petition the sum of $4,896 as special taxes for improvement of the road, as stated in the petition.</p> <p>“21. The special taxes were entered upon the tax-roll and delivered to the county treasurer for collection as other taxes, and each year the plaintiff has tendered to the county treasurer and offered to pay all the taxes of every nature charged against his lands except the special taxes for the improvement of the road, Avhich plaintiff has refused to pay; but the treasurer has refused to permit plaintiff to pay his other taxes unless he also paid the special taxes, and has sold plaintiff’s lands and issued tax certificates therefor, but no suit was commenced by plaintiff to restrain the collection of the special taxes until the commencement of this action, which was September 4, 1890.</p> <p>“22. The survey, estimate, specifications, map and profile made by the county surveyor, as hereinbefore stated, were 'not signed or authenticated by him in any manner.</p> <p>■ “ 23. The road commissioners in making the apportionment adopted the following method, namely: They valued each tract of land and the improvements thereon as the same were valued on the assessment rolls for the preceding year for general taxation, and levied upon all the lands a uniform percentage sufficient to pay the cost of the improvement, without taking into consideration the benefits and damage to each tract of land separately, and the road commissioners in making the apportionment did not take into consideration any benefits to personal property, and did not sign or authenticate their apportionment in any manner.”</p> <p>Thereon the court made the following conclusions of law:</p> <p>“1. By reason of no petition having been presented to the board of county commissioners signed by a majority of the resident land-holders within one-half mile on both sides of the Quindaro road, the proceedings for the improvement thereof were wholly without jurisdiction, and were and are wholly void.</p> <p>“2. By reason of the petition for the improvement being changed after it was signed' so as to require one-inch cypress boards as the foundation for the pavement, instead of two-inch cypress boards as intended by the plaintiff and others when they signed the petition, and by reason of the estimate and specifications of the surveyor providing for one-inch instead of two-inch cypress boards as such foundation, and by reason of the foundation being constructed of one-inch instead of two-inch cypress boards, the proceedings for the improvement of the road were rendered wholly void as to the plaintiff.</p> <p>“3. By reason of the county surveyor omitting from the map made by him many tracts of land within the half-mile limits, and by reason of the road commissioners omitting from consideration in making their apportionment the tracts of land and Woodlawn cemetery, and apportioning the entire cost of the improvement upon other tracts of land shown by the map, the proceedings for the improvement of the road were rendered wholly void as to the plaintiff.</p> <p>“4. By reason of the county surveyor failing to sign or authenticate in any manner his estimate, specifications, map, and profile, and the road commissioners failing to sign or authenticate in any manner their apportionment, the proceedings for the improvement of the road were rendered wholly void as to the plaintiff.</p> <p>“5. By reason of one of the commissioners not having taken any oath, the proceedings for the improvement of the road were rendered wholly void as to the plaintiff.</p> <p>“ 6. By reason of the road commissioners having changed the grade of the road, and constructed the improvement on a different grade, and contrary to the profile of the county surveyor, the proceedings for the improvement of the road were rendered wholly void as to the plaintiff.</p> <p>“ 7. By reason of the road commissioners apportioning the cost of the improvement of the road upon the various tracts of land according to the assessed value of each tract, instead of taking into consideration the benefits and damage to each tract, and apportioning the same according to the benefits to real and personal property within the limits shown by the surveyor’s map, the apportionment is wholly void as to the plaintiff.</p> <p>“8. By reason of the failure of the road commissioners to give plaintiff sufficient notice and an opportunity to be heard, and adjourning sine die before the time for appeal had expired, the apportionment is wholly void as to the plaintiff.</p> <p>“9. Plaintiff is not by reason of having signed the petition, or by any other acts of his shown by the evidence, estopped, but is entitled to a perpetual injunction to restrain the collection of the special taxes so assessed and charged against his lands described in the petition herein.”</p> <p>Judgment was rendered in favor of Browne against the board of county commissioners and the other officials. They excepted to the judgment, and bring the case here.</p>

Error from Dickinson District Court. The material facts are stated in the opinion. The case was heard on May 5, 1892, and at the session of the court in July following it was decided, and there was filed herein an opinion (syllabus and opinion by Simpson, C.), recommending that the judgment of the court below be reversed. By the court, it was so ordered — all the justices concurring.

Error from Greenwood District Court. Action by Tower against Green to recover money. Judgment for the plaintiff, at the January term, 1889. The defendant comes to this court. The opinion, handed down July 8, 1892, states the material facts. 1. The plaintiff in error complains of the introduction of the judgment in evidence, pretending to show a judgment in favor of H. C. Jackson, and against Henry Tower and S. B. Green.

Error from, Atohison District Court. The opinion states the case. The principal question in this case is the question of tender. This claimed tender was insufficient — 1. Because it was conditional, and depending upon whether the court on the final trial found the defendants to be liable in any sum; and upon condition that plaintiff would execute a deed of release, “clear and free from all incumbrances,” up to one month after the same was conveyed to Mills.

<p> Error from Butler District Court. </p> <p>Action by Johnson against MacRitehie and others on two negotiable notes. Judgment for plaintiff, at the October term, 1889. The defendants come to this court. The opinion states the facts.</p> <p>The issues before the trial court were, Did John P. Johnson purchase the notes before maturity? and, if so, did the defendants ever execute and deliver the notes to Kniffin & White? There was some evidence before the jury. The court erred in handing one of the jurors a paper to sign, which he signed and returned as the verdict of the jury, when it was not in any sense whatever. Defendants had a right at least to have the amount due ascertained by the jury, which was not done. The right of a trial by jury will not be disputed. A judgment by the court not founded on a verdict is error. 6 Kas. 153. It was a mere farce to hand a juror a paper and tell him to sign it, he not knowing what he was signing and no juror joining him. This judgment was rendered without a verdict-, and the defendants objected to the discharge of the jury until they rendered a verdict. In support of our right to trial by jury, see 31 Kas. 665; 30 id. 760. See, also, 13 id. 33.</p> <p>The court erred in sustaining an objection to the fifth question, and the further offers of the defendants and each of them. There cannot be an objection to the fifth question. How did the court know but that defendant Squier would have said, “Why, Mr. John P. Johnson and Mr. Kniffin came to me and procured my signature by a promise that the horse was of excellent quality, well bred,” etc.; or, “'that the notes were signed by some of the parties who were to sign; and then Mr. John P. Johnson was present in Beaumont and saw Kniffin steal the notes out of a show-case and take them away; that he knew they were not delivered.” Such answers would have sustained the issues. In support-of our right to inquire into the circumstances of the execution of the notes, see 38 Kas. 533, and 31 id. 480,481, where evidence of the circumstances, as well as the talk before signing, were admitted.</p> <p>The signing is not enough; it must be delivered as well, or there is no property right in it, and no legal or valid transfer can be made. One of the defenses in this case is, that the notes were never delivered to Kniffin; hence they had no legal existence — were in no sense contracts — one essential feature being absent: delivery. No title could first pass, and no subsequent purchaser could obtain more than Kniffin. See 16 Wis. 571; 19 id. 297; 29 id. 196; 20 Mich. 429; 21 id. 415; 1 Dan. Neg. Inst., § 776; 1 Par. N. & B., pp. 48, 51, 275, 278, 856; 46 Iowa, 515, 550; 45 111. 285; 38 Wis. 43-52.</p> <p>The issues in the case were fairly joined on the questions as to whether the notes were signed by all the parties who were to sign them, and then whether or not Kniffin did not steal the notes and obtain the possession in that way. The exclusion of the evidence offered was error.</p> <p>Where fraud in the inception of a note is pleaded in an action thereon, and the plea is supported by evidence, the burden of proof is upon the plaintiff t-o show that he gave value for it, and that he is a bona fide purchaser before maturity. Woodward v. Rogers, 31 Iowa, 342; Lane v. Krekle, 22 id. 399; Smith v. Sao County, 11 Wall, 139; National Bank v. Nelson, 41 Iowa, 563; Clapp v. Cedar County, 3 id. 15.</p> <p>But the court below on the trial of this case held, that fraud having been pleaded by the defendants, it was necessary for the plaintiff to show, in the first instance and prior to the introduction of any testimony in support of the allegations in the answer, that he was a bona fide purchaser of the notes sued upon for a valuable consideration and before maturity, and by reason of this ruling of the court below the plaintiff opened the case to the jury without objection or exception on the part of the defendants to that order of introducing the •evidence. And even if the court’s ruling was not correct in •that respect and in accordance with the authorities, the plaintiffs in error cannot now complain in this court, because they •made no objection in the court below, and, as we understand their position, are not now objecting to that order of introducing testimony. In obedience to that ruling of the court, plaintiff offered the testimony in his own behalf, thereby •establishing that he was a bona fide purchaser for a valuable •consideration of the notes before'their maturity.</p> <p>Under the law as laid down in this court, it would not have been sufficient for the defendants in their answers to have stated simply that the notes were fraudulently obtained from them, or were never delivered to the payees, which would ■have been a good defense as to Kniffin & White if they had brought this action, but would not be a good defense against the plaintiff, who was a bona fide purchaser of the notes; and, if the defendants had not gone further in their answers, and made the additional allegations that the plaintiff was not a ■bona fide holder of the notes, and was in collusion with Kniffin & White in procuring the same from the defendants, their answers would have been subject to demurrer and the •court would have sustained a demurrer thereto. But they saw fit to make these additional allegations, charging want ■of good faith on the part of the plaintiff, collusion with Kniffin & White; so that if they had proved the.allegations of their answers they would undoubtedly have presented a complete defense to the jury, who would have been compelled under the law to return a verdict in favor of the defendants. Having made these allegations, it was incumbent upon them to prove their defense as alleged.</p> <p>As to the manner the witness Squier might have answered that question, counsel for plaintiffs in error have evidently forgotten his prior testimony. While his testimony was brief, yet he was permitted by the court, without any objection from the plaintiff, to answer several questions, which he did, as follows:</p> <p>“Q,. State your name please? A. Clinton Squier.</p> <p>“Q. You may state if you are one of the defendants in this case? A. Yes, sir.</p> <p>“ Q. Are you acquainted with the plaintiff in this case? A. I am not. I never saw him until here to-day.”</p> <p>Now if this witness, who was one of the defendants in the case, had never seen the plaintiff, Johnson, until the day this case was tried in the court below, it would have been utterly impossible for him to have truthfully answered question 5 in the manner imagined and suggested by counsel for plaintiffs in error.</p> <p>We have made an examination of the points decided and the law as laid down in each of the authorities cited in brief of plaintiffs in error, and, while we shall not claim in this court that the decisions are not good law in their respective states as applicable to the cases in which they were decided, yet we shall claim and urge to this court that they have no application whatever, in our judgment, to the case at bar. And for that reason we claim that the Wisconsin cases on this subject are not authority in this state, as this is not a new question in Kansas. See McCormick v. Holmes, 41 Kas. 265; Draper v. Cowles, 27 id. 484. See, also, Walker v. Evert, 29 Wis. 199; McDonald v. Muscatine Bank, 27 Iowa, 319; Anderson v. Starkweather, 28 id. 409; Douglas v. Matting, 29 id. 498; Murray v. Graham, 29 id. 520; Loomis v. Metcalf, 30 id. 382; Veach v. Thompson, 15 id. 380; Robinson v. Lair, 31 id. 9; Sully v. Goldsmith, 32 id. 397.</p> <p>Why should not the court below, under all the evidence that had been offered, and the failure by defendants to show any defense whatever to the notes as against Johnson, the bona fide holder thereof for value before maturity, have done just as the court did in this particular case? What substantial rights of the plaintiffs in error were affected by the court below directing the jury to bring in a verdict for the plaintiff? MgCormiek v. Holmes, 41 Kas. 265, 268.</p>

Error from Sedgwick Common Pleas Court. Action by Campbell and three others, partners as Mason, Campbell & Co., against Wilson & Fox, on an account for goods sold. Verdict and judgment for plaintiffs, at the November term, 1889. Defendants bring error. When a demurrer is properly sustained, it is the duty of the court to submit the question of damages to the jury, under proper instructions.

Error from Leavenworth District Court. Action by Slater against Howie and wife for specific performance of a contract to convey certain land. On a judgment for defendants, February 2, 1889, plaintiff brings error. The three telegrams and letter admitted to have been written by Mrs. Howie constituted a contract of sale between these parties for this property.

Error from Cherokee District Court. The opinion states the material facts. The defendants below contended that, as the contract between the plaintiff and defendant Darby was made in the state of Missouri, and the material was delivered there to defendant Darby, on .board the cars, and afterward shipped by Darby to Columbus, the right to a lien did not and does not exist in this state.

<p> Error from Marshall District Court. </p> <p>The opiuiou states the case.</p> <p>The record presents the sole question of practice, whether or not it was necessary for the plaintiff bank, under the condition of the pleadings and the cause of action stated in its petition, in making a prima facie case, to offer evidence tending to show that it was the owner and holder of the cause of action set forth as it alleged in its petition. The note was payable to order of the payee therein named, and no indorsement had been made, or claimed to have been made, to the plaintiff. We submit that such proof was necessary and required under the well-settled rules of pleading. Gen. Stat. of 1889, ¶¶ 4177,4211; 2Kas.325; lid. 103; 5 id. 34; 17 id. 275.</p> <p>In the court below, no personal judgment was rendered against plaintiffs in error; they sought no relief against plaintiff below; they could not recover against the plaintiff below, in any event, as there was no privity of interest between them. Plaintiff below was in possession of the note and mortgage, and produced them at the trial, and offered and introduced them in evidence. Where there is an indorsement, it is a written instrument upon which issue is joined by a verified denial, while in a case of transfer, or assignment without indorsement, a general denial puts the transfer in issue. The plaintiff proves his ownership prima facie by the production of the note, as the holder of a negotiable note is presumed to be the owner of it as against every person, except the payee,, when the payee denies such ownership. 35 Kas. 494, and 36 id. 441.</p> <p>Until plaintiff in error overcame such prima facie proof, it stood, and plaintiffs below were entitled to judgment. 3 Kas. 295; 5 Minn. 352; 11 Ohio St. 362; Kniffinv. McConnell, 30 N. Y.; 25 id. 270; 27 id. 266; 33 id. 443; 75 id. 444; 27 Cal. 367; 22 Wis. 359.</p>

Error from, Sumner District Court. The opinion states the material facts.

Prosecution against Smith and two others for cutting down certain wheat. The defendants were acquitted, and The State appeals. Held: in Smith v. Hague, 25 Kas. 246, and in Life Insurance Co. v. Kiehl, 25 id. 390, and in Beckman v. Sikes, 35 id. 120, and cases there cited, that it is the settled law of this state that growing crops pass to the purchaser, where there is no reservation.

Error from Wyandotte District Court. Action by Long and another against Froman and another, on an account for goods sold and delivered. From an order discharging an attachment entered therein, plaintiffs bring error. 1.

Error from, Lyon District Court. Action by O’Neill against the Railroad Company, to recover for personal injuries. Verdict and judgment for plaintiff, at the December term, 1889. New trial denied. Defendant brings error. 1. The plaintiff in error was and is entitled to a judgment in its behalf against the defendant in error, and for costs of ■ the case, notwithstanding the general verdict, upon the special findings of fact returned by the jury in this case.

Error from Sumner District Court. Action to recover damages for personal injuries. Judgment for plaintiff, Michaels, at the November term, 1888. The defendant Railway Company brings the case here. The material facts appear in the opinion. 1. The railroad company was not negligent in placing the switch stand where it did, and its position being obvious to the plaintiff, he assumed the risk of danger incident thereto.

Original Proceeding in Mandamus. All the material facts of this case appear in the opinion herein, handed down July 8, 1892. Held: in that case, that the road must be completed in accordance with such plans and specifications in order to earn the bonds.

<p>Pboceedings in Aid oe Execution — Examination of Debtoi--General Finding — Imprisonment. In proceedings in aid of execution, the court made a general finding that the judgment debtor had money and property in his possession and under his control which he unjustly refused to apply to the payment of his debts, and ordered his imprisonment until he make full satisfaction of the judgment. Held, On habeas corpus, that it was necessary that the order state the amount of money and describe the property under his oontrol; otherwise it would not appear that he had wherewith to satisfy the judgment; and that the order should first direct payment, and only after refusal should the commitment be made.</p>

The facts sufficiently appear in the opinion herein, filed at the session of the court in July, 1892. ' It was the province of the jury, in the light of all the surrounding circumstances, to determine whether Guthrie signed and caused his name to be signed to, and inserted in, the said various instruments, with intent to authenticate the same and show his connection with the transaction. Drury v. Young, 42 Am. Rep. 347; Johnson v. Dodgson, 2 M. & W. 650; Wood, Frauds, §416.

Error from Sumner District Court. The opinion states the material facts. How did First street revert when it was vacated, on April 20,1887? This question turns upon the construction of §’ 55 of the act concerning cities of the second class. See Comp. Laws of 1885, ¶ 858; Gen. Stat. of 1889, ¶ 811.

Error from Elk District Court. Action by the Company against Baker and three others, to enforce a mechanic’s lien. On a judgment for defendants, at the October term, 1889, the plaintiff company brings error. There are but two questions in controversy in this action: First, does § 630 of the code (Comp.

Error from Osage District Court. Action by Gill against the Railway Company, to recover for injuries to a mare on defendant’s right-of-way. Verdict and judgment for plaintiffj on May 2, 1889. Defendant brings error. The record does not show any statutory liability. It does not appear that any legal demand was made upon the company 30 days before the suit was brought.

Error from Butler District Court. Action by Nancy Swenson against the Association, to recover on a benefit certificate. Judgment for plaintiff, at the March term, 1889. New trial denied. Defendant brings error. 1. The court had no jurisdiction over the plaintiff in error, and erred in overruling the motion to set aside the service of the summons.

Error from, Shawnee District Court. Action by Fisher against the Railroad Company to recover damages for bodily injuries. Judgment for plaintiff, July 8, 1889. Held: as a matter of law, to be guilty of contributory negligence, and cannot recover, even though the defendant may have been negligent.

Error from Shawnee Circuit Court. This action was commenced on the 29 th. day of April, 1892, by the attorney general, on behalf of the state of Kansas, against the board of county commissioners of the county of Shawnee, the city of Topeka, and George H. Evans and J. J. Cox, partners under the firm-name and style of George H. Evans & Co., to perpetually enjoin the board of county commissioners and the other defendants from entering into a contract for the purpose of…

Error from Wyandotte District Court. Action by Garrett and another against Bowling, as sheriff, and the Badger Dumber Company, to enjoin defendants from selling certain land on execution. Judgment for plaintiffs, at the December term, 1889. The defendants bring the case to this court. The facts are stated in the opinion.

<p>1. Depositions — Illegal Service of Notice — “Process.” Theserviceof a notice to take depositions upon a station agent of a railway company, who had no authority in or connection with the cause in which the deposition was proposed to be taken, is not a legal nor sufficient notice. Nor is a notice to take depositions “ process,’’ within the meaning of chapter 123 of the Laws of 1871.</p> <p>2. Opinion Evidence — -Error. It is error to receive the opinion of a witness upon a matter requiring special skill or experience, over an objection, unless it is shown that the witness is qualified to give an opinion.</p>

The facts are sufficiently stated in the opinion. To make the information good, it must allege: 1st, that there was a violation or violations of law, stating with reasonable certainty facts necessary to establish such violations; 2d, that the accused had notice or knowledge of the fact constituting such violation; 3d, that he failed to notify the county attorney of the fact of such violation, or to furnish him the names of any witnesses, etc. If there was no county attorney,…

Woodbury was found guilty of disturbing the peace, and adjudged to pay a fine of $5, and costs. He appeals. The evidence in this case, as introduced by the state, fails to show that any offense had been or was committed by the defendant, H. B. Woodbury, or by any one in his employ, or by any one at his instance or request.

Error from Osborne District Court. Judgment for plaintiff, Benedict, at the May term, 1892. Defendants, Catherine Hutchinson and another, come to this court. The opinion states the facts. Held: on the question being directly presented, Richardson v. Campbell, 43 N. W. Eep. 405, that where a note provided for 12 per cent, interest after due, and the legal rate in the meantime was reduced to 10 per cent., that no more than 10 per cent, was recoverable.

Error from Kingman District Court. Action by Black against Schilling, constable, and Van Eassen and Faught, sureties, for a breach of Schilling’s official bond. Judgment for plaintiff. Defendants bring error. The sureties in this case were brought in and joined, improperly we think, with the constable, on a claimed'condition broken in said bond, before it had been determined that there was any breach of said conditions.

Prosecution for refusal to surrender the records of a certain school district. From a conviction before a justice of the peace, the defendant, Dean, appealed to the district court. At the January ferm, 1892, the action was dismissed and the defendant discharged. The State appeals. The opinion states the facts.

Error from Ness District Court. Action by Rinard against Gardner to recover $1,000, as liquidated damages for breach of contract to convey certain land free from incumbrances. At the January term, 1889, a demurrer to plaintiff’s evidence was sustained. He comes to this court. The facts sufficiently appear in the opinion. It was not necessary to a recovery that plaintiff should prove a tender.

The opinion states the case. Paragraph 6771 of the General Statutes of 1889 is very plain as to the driving of cattle into this state; no provision whatever being made for the driving of Texas cattle for any purpose within the line prescribed by law. It is admitted that the cattle in question were capable of communicating and imparting Texas or splenic fever, and that defendant knew it at the time; so we will not argue that point.

The case is sufficiently stated in the opinion. Section 18 of chapter 108, Laws of 1874, declares each person shall be liable each year to perform two days’ work, and we do not find any section that specifies any particular time in which the work shall be done, as we understand the law. Section 16 of said act of 1874 limits the time in which road work shall be done in cities of more than 600 inhabitants, and which are incorporated and by law made a separate road district.

Lund was convicted of unlawfully selling intoxicating liquors. He appeals. The court erred in setting this case down for trial on March 30, 1892, over the objections of Lund. The information was filed in this case on the 21st day of March, 1892. The warrant was served on the defendant on the 23d day of the same month. This was during a regular term of the district court; court having convened on the 7th day of March for this term of the court.

At the February term, 1890, McBeth was convicted of malicious destruction of property. He appeals. The opinion states the facts. Held: under a similar statute, that it is a fatal variance, under an allegation that the fence injured was the property of one Erwin, to prove that Erwin was the owner of the fee, while the property was by him leased to one Wetsel, who was in actual possession.

Error from Sumner District Court. On the application of the Railway Company, commissioners were appointed to assess the damages for taking certain land. They awarded Davidson $3,808. He appealed to the district court, where he recovered judgment for $6,000. The defendant company comes to this court. The material facts are stated in the opinion. 1. The court erred in overruling the motion of the plaintiff in error to strike out the evidence of the witness C. E. Davis.

Error from Sedgwick Common Pleas Court. Action by Mary E. Dyer against John Fisher, as sheriff, to enjoin the sale of certain land to satisfy a judgment against her husband.

Error from Clay District Covert. Judgment for plaintiff, Stoneback, at the January term, 1889. The defendant, Schwab, comes to this court. The opinion states the nature of the action and the material facts. Was the alleged survey made by the county surveyor a legal survey, and was it binding upon the plaintiff in error ?

Error from Cowley District Court. Action by Moore against the Railway Company to recover for damages for bodily injuries. Judgment for the plaintiff for $824, February 25, 1889. The defendant Company brings the case here. The facts appear in the opinion. 1. The plaintiff voluntarily and without objection undertook to perform the work in the manner it was done, with full knowledge of the danger and risk. He therefore assumed the risk of danger.

Error from Greenwood District Court. Action to recover damages for killing stock. Judgment for plaintiff, Kinman, at the May term, 1889. The defendant Railway Company brings the case here. The opinion states the facts.

<p>Deed — Covenant against Incumbrances, Action On — Measure of Damages —Purchase of Outstanding Title. In an action on the covenant against incumbrances, where the plaintiff has purchased an outstanding title or incumbranoe from a second mortgagee, who was not made a party in the foreclosure suit through which the former obtained his title, the measure of damage is not what was actually paid to extinguish the incumbrance, but what was fairly and necessarily paid. Where the person holding such incumbrance states that the price given is the least sum that he would take for his interest, and there is no other evidence establishing the reasonableness of such interest, held, that the findings and judgment of the court that the price paid was fair and reasonable are not supported by the evidence.</p>

Error from Sedgwick District Court. This was an action brought, at some time not shown, in the district court of Sedgwick county, by Gettie Fechheimer against the Wichita & Western Railroad Company. After judgment in that court in favor of the plaintiff and against the railroad company for $1,400, the case was brought by the railroad company to the supreme court, in which court the judgment of the district court was reversed, and the case remanded for another trial.

Conviction for unlawfully selling intoxicating liquors. The defendant, Dmd, appeals. The opinion states the material facts. The court erred in refusing to compel the state to make its pretended election more definite and certain. See The State v. Schweiter, 27 Kas. 512; The State v. Crimmins, 31 id. 376; The State v. O'Connell, 31 id. 383; The State v. Cutler, 34 id. 582; The State v. Lund, 30 Pac. Rep. 518 [ante, p. 209].

Error from Pottawatomie District Court. Action by Shelley against the Raihoay Company, to recover the value of two horses alleged to have been killed by the defendant. Judgment for the plaintiff, at the September term, 1889. The defendant brings the case here. The opinion states the facts. The statute requires that demand of payment for the loss be made of the railroad company at least 30 days before suit is commenced. Such demand was not made in this case.

Error from Jackson District Court. Action by Pearson Carmean, Charles Broderick, Case Broderick, Mary D. Smith, John Q,. Myers and Emmet Rafter against John C. Douglass, to quiet title to certain land. Judgment for plaintiffs, at the June term, 1889. Defendant brings error. The chief defect in the form of the deed is in the certificate of acknowledgment.

<p>Mutual Benefit Insurance — Restoration of Suspended Member. Where a member of a mutual-benefit insurance company is suspended for non-payment of assessments, and neglects during his lifetime to Beoure his reinstatement in accordance with the terms of his certificate and the provisions of the order, his restoration to membership cannot be effected after his death by payment of the sum due from him to the company at the time of his death, though the period within which, if alive, he could have secured his reinstatement, has not yet expired. Modern Woodmen v. Jameson, 18 Kas. 718, affirmed.</p>

Conviction for a violation of the prohibitory liquor law. The defendant, Plum, appeals. The opinion states the facts. Held: “that the defendant cannot be convicted of any offense of which the complaining witness, at the time he verified the information, had no knowledge or notice and concerning which he had never had a thought.” See The State v. Whisner, 35 Kas. 271.

Error from Meade District Court. Action by McDaniel against O’Meara and another, for breach of certain covenants in a deed. Judgment for plaintiff, at the September term, 1889. Defendants brings the case to this court.

Error from Miami District Court. Action to quiet title to certain land. Judgment for plaintiff, Lauver, at the February term, 1889. The defendant, Stafford, brings the case to this court. This tax deed is absolutely void on its face because no law was in force September 2, 1862, authorizing a sale of lands for taxes at the alleged time of sale mentioned.

Error from, Kingman District Court. The opinion, filed November 5, 1892, contains a sufficient statement oí the case. 1. The court erred in sustaining the demurrer of defendant to the plaintiffs’ evidence, for the reason that the demurrer “admits every fact and every conclusion which the most favorable construction of the plaintiffs’ evidence tends to prove.” Mo. Pac. Ply. Co. v. Goodrich, 38 Kas. 224, and cases cited; Christie v. Barnes, 33 id. 317. 2.

Error from Marshall District Court. This proceeding was brought by M. M. Sheffield, to ascertain the interest of the plaintiffs in error and others in a tract of laud in Marshall county, and subject the interest of Alexander Bras to the alleged liens of certain judgments which had been awarded against him. At the trial, the court stated separately, in writing, its conclusions of fact and law, as follows: “ CONCLUSIONS OF FACT. “1.

<p>1. Ceiminal Complaint — Several Counts — Verdict. In a criminal prosecution before a justice of the peace, a verdiot of guilty on one count of the complaint, saying nothing as to the other counts, is equivalent to a verdict of not guilty as to such other counts.</p> <p>2. Appeal — Trial in District Court. And in such a case, where the defendant after verdict and sentence appeals to the district court, he oan be tried in the district court only for the offense charged in the count on which he was found guilty in the justice’s court.</p> <p>3. - Construction of Proceedings. And in such a case, where a construction has been given by the justice of the peace to his own proceedings, the same construction, if reasonably possible, should be given to such proceedings by the appellate court; and generally an appellate court should give to the proceedings of the lower court such a construction, if reasonably possible, as will harmonize and uphold them.</p> <p>4. Intoxicants — Illegal Sale — Evidence. In a criminal prosecution before a justice of the peace, where the defendant is charged with selling intoxicating liquor in violation of law, and the complaint is verified by both the county attorney and a private person, it is not error to permit evidence to be introduced on the trial showing sales of intoxicating liquors other than those of which the private person had knowledge.</p> <p>5. Witnesses — Indorsement of Names on Complaint. In a criminal prosecution commenced before a justice of the peace, it is not necessary that the names of the witnesses should be indorsed upon the complaint when filed, nor even in the district court on appeal, unless the distriot court should so order.</p>

Error from Rawlins District Court. On the 30th day of July, 1886, Townsend & Allen entered into a written contract with R. T. Harper, L. Adams Smith, S. Diízell, and R. S. Hendricks, as trustees of the First Congregational Church of the city of Atwood, for the erectiou of a certain church building for $2,235, and on the conditions specified in the articles of agreement. Townsend & Allen constructed the church building, and the same was afterwards accepted.

Action by I/ydia A.'Andele against The Kansas Farmers’ :Mutual Fire Insurance Company, in the district court of Franklin county, on a fire-insurance policy. Judgment for plaintiff was affirmed (37 Kas. 73), and the district court ordered the appointment of a receiver, in aid of execution.

<p> Appeal from Wyandotte District Court. </p> <p>Prosecution for obtaining illicit intercourse, under promise of marriage, with a woman of good repute, under the age of 21 years. From a judgment of conviction, the defendant, McClain, appeals.</p> <p>The trial court erred in refusing to grant defendant’s motion for a continuance. The information was filed March 5, 1892, on which day the preliminary examination was had. The age of the prosecutrix was one of the material facts to be established. The affidavit shows that the facts set forth were material and competent, and, if established, acquitted the defendant. Considering the time when the case was commenced and the time of the trial, we think the court grossly abused its discretion in denying the motion.</p> <p>The evidence should have been limited to the first sexual act, as subsequent acts of intercourse cannot be given in evidence. 33 Mich. 112.</p> <p>The rule in proving the age of a person is, that where that age is material it should first be shown that the father and mother and attending physician are dead or out of the jurisdiction of the court, and also that there is no family record. In this case the evidence shows that there was a family record, and it should have been introduced as the best evidence. We submit that it is very flimsy evidence on which to lock a man up three years at hard labor on the testimony of a witness who cannot tell in what year she was born, when the question of age is so material as it is in this case. The age of prosecutrix should be shown by clear and distinct testimony. 1 Russ. Cr., p. 693.</p> <p>If the promise of marriage was made and a release had therefrom prior to the offense charged, then defendant was not guilty. If after the alleged offense the prosecutrix failed and refused to perform her part of the contract by refusing to consummate the promise by having the marriage ceremony performed, and the defendant was ready at all times to perform his promise, then defendant is not guilty. It seems to us that the mere statement of the question is sufficient to show that it was proper cross-examination. The reputation of the prosecutrix must be proven to be good by affirmative testimony. 39 Am. Rep. 612; 27 Minn. 52.</p> <p>The verdict is not sustained by the evidence. There is not to be found in the entire record any evidence that a promise of marriage existed at the time of the intercourse; The good repute of prosecutrix was not proven by affirmative testimony; neither is it established that prosecutrix was under 21 years of age; nor that the offense was committed within two years prior to the filing of the information.</p> <p>The county attorney, in his speech to the jury, referred to-the fact that the defendant did not testify in his own behalf, and so often referred to it that the question must have immediately arisen in the minds of the jurors: “Why did not Joe McClain go on the witness stand and deny it? He had the right to do so. Why did he not avail himself of his right so to do?” This court has passed on this question so often that it seems almost unnecessary to refer to the authority of The State v. Mosley, 31 Kas. 355; The State v. Batch, 31 id. 465; City of Topeka v. Myers, 34 id. 501; same case, 35 id. 554; The State v. Tennison, 42 id. 330.</p>

Error from Osborne District Court. Replevin. Judgment for defendants, Berry and others, at the May term, 1889. The plaintiff, Rathbun, brings the case to this court. The important facts are stated in the opinion. This note being still due and unpaid, the plaintiff, both by his mortgage and by virtue of taking possession of the goods, had acquired a valid and subsisting lien upon the entire stock of merchandise turned over to him by Mrs. Andrews, as agent for her husband.

Error from Franklin District Court. Proceeding by the City against the County Board to collect a claim for the improvement of a street in front of a court-house square. The district court allowed the claim. The defendant Board comes to this court. The material facts are stated in the opinion. 1.

Prosecution for rape. From a verdict of guilty, at the March term, 1892, and a sentence to the penitentiary for a term of seven years, the defendant, Bonsor, appeals. The only witness on behalf of the state who pretended to know anything of importance about the real facts of the case was Annabel Duncan, the prosecuting witness.

Error from Chautauqua District Court. Proceedings to locate a highway over the right-of-way of the Chicago, Kansas & Western Railroad Company. The company took an appeal from an award of the county commissioners. The appeal was dismissed, and it brings error. The district court dismissed the appeal, upon the ground that under the laws of this state the railroad company was not entitled to compensation for the laying out of a public highway over its right-of-way.

Error from Linn District Court. The opinion states the case. Did the plaintiffs obtain a valid attachment upon the property before the interpleader got his deed ? The record shows that Mrs. Frog was served with process on May 19, 1888. This gave her knowledge of the pendency of the suit. She was then living in Carroll county, Arkansas. The inter-pleader was living in Kingman county, Kansas.

Error from Edwards District Court. Action by Sarah J. Hobbs and others against H. F. Spencer and another for partition of real estate, on which defendants claimed to have a mechanic’s lien. Judgment for defendants, at the May term, 1889. Plaintiffs come to this court. * The court erred in receiving any evidence under the cross-petition of Spencer & Shatzer, for the reason that the action was not commenced within one year after the filing of the lien.

Error from Sumner District Court. The case is stated in the opinion. The rule that the parties are bound by the pleadings, and that the admission of evidence is controlled by the issues made by them, is so just, wholesome, and well-settled in all the states, that it needs no general citation of authorities to support it. Stone v. Yowng, 4 Kas. 27; Bell v. Wright, 31 id. 237; Weyhrioh v. Harris, 31 id. 93, 94; MoGormieh v. Roberts, 32 id. 72.

Error from Barton District Court. The opinion states the facts. From a review of the testimony, it appears that the trial court cut off all inquiry, respecting what both the plaintiff and her father had said as to the means they intended to employ to defeat McBride’s claim.

Error from Miami District Court. This case is stated in the opinion. The rulings and instructions of the court show that it disposed of this case solely upon the belief that it was parallel with and the same kind of case as Thimes v. Shmpff, 33 Kas. 53. But an examination of that case discloses the error in .making this case-abide-the same’result.

Error from Shawnee District Court. The opinion states the facts. 1.

Error from Sharper District Court. Action by Johnson against Spawr, to recover a strip of land. Judgment for plaintiff. Defendant comes to this court. The opinion states the facts. When the plaintiff in error purchased this farm, certain lines and corners marked the boundaries to the land he was buying. These he recognized, and conformed his improvements thereto.

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

Error from Butler District Court. The case is stated in the opinion. 1. The facts in the case do not authorize a recovery, under the statute of 1874, relating to the killing and injuring of stock in the operation of railroads.

Error from, Greenwood District Gowrt. Judgment for defendant, Hobbs, at the January term, 1889. Plaintiff, Smith, brings the case here. The opinion states the facts. The provisions of the statutes of Iowa prescribing notice of expiration of time for redemption, that the tax deed shall be evidence, and the limitation of action, are very similar to the provisions of the Kansas statutes. Iowa Stat., 1882, §§894, 897, 902; Slyfield v. Healy, 32 Fed.