Volume 5 — Kansas Reports

Error from Shawnee County. The facts of the case are sufficiently stated in the ^opinion of the court. 1. At the time of the conveyance, the land was unencumbered by taxes. This is all the grantor covenanted. The covenants of the deed cannot be construed as prospective. The grantee has not been disturbed. 2.

Frror from Shawnee County. The facts of the case, sufficient for the presentation of the points decided, appear in the subjoined opinion of the court. 1.

Error from Brown County. The subjoined opiuiou contains a sufficient statement of the facts of the case. 1. Under a general denial defendant may give in evidence any matter which shows or tends to show that plaintiffs below had no right to recover. Andrews v. Bond, 16 Barb., 633; Nash’s PL, 65-6-7; Voorhees’ Code,273. 2. The rejected evidence tended directly to disprove the fraud charged. 1.

Error from Douglas County. This was an action, brought on a promissory note of which a copy follows : “$1000. Lawrence, Kansas, Feb. 1st, 1867. Seven months from date we promise to pay Watt Bro’s, or order, one thousand dollars without interest, value received.

Error from Leavenworth County. The facts of the case sufficiently appear in the opinion of the court. 1. A father is not liable to third persons who furnish necessaries to his minor children. 17 Verm., 848; 1 Blackst. Com., 448; 4 East, 76; Bishop on Mar. and Liv., § 632; 3 Seam., 179; Chitty on Cord., 140; 10 Barb., 483; 13 Barb., 502; 9 Casey, 50; 1 Smith’s L. C., 227; 20 Eng. L. 2.

Error from Doniphan County. The facts of the case sufficiently appeal* in the subjoined opinion. 1. The only promise made by defendant below was in the note and mortgage, to pay one day after date. The obligation of the payees, extending the time to five years, does not bind the maker of the note. It is not his “ contract in writing,” but the voluntary act of the other party, without consideration, executed after the giving of the note. On statute of frauds, see Comp.

Error from Doniphan County. This action, oi’iginally brought by defendant in error before a justice of the peace for work and labor done, and tried by a jury, was appealed to the district court of Doniphan county, where a jury trial was again had and a verdict rendered in favor of plaintiff below, defendant in error, and judgment entered thereon; to reverse which, a petition in error was filed in this court, setting forth several grounds of error, each involving the…

Error from Bourbon County. The facts of the case, sufficient for presenting the points decided, appear in the subjoined opinion of the court. 1. That if the plaintiff’s cause of action accrued more than two years before the commencement of this suit, “ upon a legal liability incurred beyond the limits of this State,” [§§ 1, 2, Civil Code, Comp.

Mr or from Leavemoorth County. The body of the verdict of the jury in the case below was as follows: “We, the jury, find for plaintiff’ ten hundred and fifty dollars principal, and one hundred and thirty-nine dollars and forty-five cents interest, twenty-three months and seven days at seven per cent, per annum. John Grund’s stock in company, $1,500. William Schroeder’s stock in company, $1,250.

Error from Cherokee County. The facts of the case sufficiently appear in the opinion of the court. A brief was filed for plaintiff in error, doubtless involving the merits of the action, but as the court, in disposing of the case, base their determination upon a consideration of matters'preliminary, it is not deemed advisahie to insert the points made.

Error from, Shawnee County. The opinion hereto attached, contains a statement of the facts of the case sufficient for presenting the points decided. The court below erred in permitting plaintiff'below to introduce heresay evidence, objected to by defendant below. The evidence introduced was purely hearsay and afforded the only pretense for a verdict, on the part of the jury. It was therefore material to the issue.

Frror from Shawnee County. The petition in this ease was sworn to by P. McYicar, superintendent of public instruction of the state, and in that affidavit he also averred that as such officer he had charge of the school interest of the state, and that the action was instituted at his instance for the protection of said interest. ■ Other facts in the case are fully set forth in the opinion of the court. 1.

Frror from Bourbon County. The facts of the case sufficiently appear in the opinion. 1. The objection to the evidence of Hoover in the deposition was made for the first time on the trial. This was not in time. It should have been made at the time of the taking of the deposition, and noted therein. 2.

fflrror from Leavenworth County. The facts of the case not disclosed by the statement in the subjoined opinion are as follows: The plaintiff purchased of Jerome B. Chaffee certain premises, including No. 10 Delaware street, Leavenworth city, and received a deed therefor. Defendants acted as agents of Chaffee in the negotiation and completion of the purchase, and delivered the deed to the plaintiff.

Error from Wyandotte County. Tbe petition in tbis action, commenced in a justice’s . court, is as follows: “Zane 1 Before John B. Scroggs, v. > Justice of tbe Peace, Wyandotte county. Zane. J Petition.

Error from Shawnee County. The body of the plaintiff’s petition in the court below is as follows: The said Andrew Stark, plaintiff, says that said defendant, Pleasant Chitwood, did, on or about the first day of December, A. D. 1860, cause to be issued an execution on a judgment against William H. Boyd and John W. Thompson, rendered by the district court sitting in and for Linn county, Kansas, at the fall term thereof, in an action therein pending, wherein Pleasant Chitwood…

Error from Bourbon County. The facts of the case are stated with sufficient fullness in the opinion. 1. The case turns upon the construetiop^iven to § 89, civil code, [ Comp. Laws.] This section fa similar to § 80 of the Ohio code, and to § 167 of the New York code. The section divides causes of action into classes, and provides for uniting several of the same class.

Frror from Wyandotte County. The facts of the case sufficiently appear in the opinion of the court. 1. To maintain the action plaintiff must show not only possession, but a lawful and legal one. 1 Gow., 546. 2. The plaintiff below did not show this. His chain of title was defective in this, that his deed was never approved by the Secretary of the Interior, as required by treaty with Wyandottes, January 31, 1855, article 4. See 1 Wheat, 257, 258. 3.

Error from Leavenworth County. The entry on the record in the court below was as follows: “And now comes the said plaintiff, by his attorney, James MeCahon, Esq., and the said defendant having been duly served with a summons herein, and he still failing to answer or demur to the petition of the plaintiff filed herein, and makes default.

Criminal Appeal from Leavenworth County. The opinion of the court hereto attached, contains a statement of the facts of the case sufficient for a fair presentation of the points raised and determined. 1. The appellant was entitled to a reasonable time in which to obtain the attendance of his witnesses. § 10, State Const. Bill of Bights; § 189, Crim. Proa. Comp. D., 264; 1 Chitty’s C. D., 491. 2.

Error from Wyandotte County. A statement of the facts of the case more full than that contained in the subjoined opinion is not deemed necessary for the elucidation of the points determined.

JEJrror from Jefferson County. The facts of this case are generally and pretty fully stated in the subjoined opinion of the court : 1. There is no law in the State of Kansas, or in the charter of plaintiff’s road, requiring the plaintiff to fence its track. See Charter, Statute of 1855, Fage 914. 2.

Error from Bourbon County. The opinion of the court contains a statement of the facts of the case to which reference is had.

Error from Leavenworth County. The facts of the case stated with sufficient fullness in the subjoined opinion, may be abstracted as follows: K. & Co., plaintiffs in error, and others, creditors of S., a defendant in error, obtained several judgments against him, and issued attachments and executions thereunder, and levied upon property in possession of H., who held by purchase from S., admitted in the record to have been fraudulent as to the creditors of S. H. replevied the…

Proceedings in Quo Warranto from Jefferson County. The following are the material allegations of the petition of the relator, with the exhibits omitted, and embody the principal facts of the case not' disclosed by the statement in the opinion hereto annexed : I. “ 1.

Mrror from Neosho County. Tliis action, commenced before a justice, went to judgment in that court, and following the taxation of costs is the following entry: “January 12, 1868. — Defendant presents an appeal bond, signed by his attorney, Joel Barnhart, which bond was deemed insufficient.” The next entry is of the issuing of an execution, January 15th; the next and last, the return of the execution, January 22d. The record also contains a bill of exceptions, settled, signed…

Error from Shawnee County. The facts of the case are: that the defendants were acting judges of an election, regularly held, at which a… Held: at which a county superintendent for Shawnee county and a superintendent of public instruction were legally to be elected, and the plaintiff in error, a woman, but otherwise possessing all the qualifications of an elector, went to the open polls and offered to vote, and tendered a ticket for a regular candidate, at such election, to…

JError from Leavenworth County. The facts of tke case are set _ forth in the opinion of the court. 1. All interest in tke property and in tke contract were in the parties to the action, and the court could well determine the equities. 2 Story Pq., § 775, note 2, §§ 776, 777, and cases cited. 2. The defendant, Young, was, at the time of the purchase, the tenant of Wilhite, and estopped from denying his title.

Error from Leavenworth County. This action, brought by defendant in error in the court below against the plaintiff in error, was t'o recover damages for flour delivered on a contract between them.

Error from Shawnee County. Tbe subjoined opinion of tbe court contains a full statement of tbe facts of tbe case. 1. Tbe judgments rendered against tbe bnsband were liens upon tbe homestead at tbe time of tbe conveyance to Morris. [§ 438, Civ. Code, Comp. Laws, 194.] This section makes a judgment a lien against all the lands and tenements of the debtor within the county. 2. Section nine, article fifteen, constitution, merely exempts the homestead while occupied as such.

(Error from Allen County. The facts of the case are stated in the opinion of the court. 1. The judge could revoke the order appointing a receiver. Gen. Stat., 804, § 2. 2. This question of the motion to vacate the appointment, is reviewable here. Gen. Stat, 785, §§ 552-58. 3. Upon the question of error in the order of the judge, in appointing the receiver, it seems to us there can be no doubt.

JError from Jackson County. The opinion of the court contains a sufficient statement of the facts of the case: 1. The petition does not state facts sufficient to constitute a cause of action. The only action permissible in the nature of things would he assumpsit for money paid, and of course this action cannot be maintained until the money is paid. Sedgw. Dam., 348; 1 Wait, 376; 5 Bart., 398.

Error from Shawnee County. From the record in this case — very voluminous — the following, among other facts, appear: The plaintiff in error claimed to hold certain lots in the city of Topeka, under… Held: by virtue of “Wyandotte Float” No. 20, issued to Isaiah Walker, “laid” upon tbe town site. No patent bad issued for tbe land in question when tbe “drawings” of lots were made.

Error from Leavenworth County. Tbe opinion of tbe court contains a full statement of tbe facts of tbe case. 1.

The facts of the case appear in the opinion of the court. 1. A judgment of foreclosure is not within the intent of section 484 of the civil code of 1859, [Cbmp. i.,* 194.] This section only applies to judgments at law. This is evident by the preceding section providing when lands shall be bound for a judgment. In case of a decree or foreclosure of a mortgage, the land is bound from the delivery of the mortgage.

<p>1. New Trial : When the record of a case setting out the evidence, and without purporting to contain the whole of it, is brought before a reviewing court, such court will not attempt to consider the question, as to whether a judgment rendered in such a case is sustained by, or is contrary to the evidence.</p> <p>2. Trial: Admission of Evidence. — In this case the answer consisted of two counts, and testimony was offered tending to support the first which was seemingly contradictory to the second count. Held: That it was not error for the court to permit such testimony tobe presented.*</p>

Error from Doniphan County. The following is substantially the affidavit involved : The said Emeline Robinson, plaintiff, being first duly sworn, deposeth and saith that the said Emeline Robinson is a resident of Doniphan county, State of Kansas, and has commenced an action in said court against the said John W. Burton to recover the sum of $878, now due and payable to the said plaintiff from the said defendant, on the several following causes: First, On an account for board…

Error from .Doniphan County. This was an action brought by the plaintiff in error against the defendant in error in the court below, in which an attachment was issued on an affidavit, a copy of which is given in the statement of the case John W. Burton v. Emeline Bobinson, ante, p. 287.

Hrror from Leavenworth County. The record in this case, somewhat voluminous, rais'es several points not determined by the court. All the facts necessary for an understanding of the points that the court found necessary to determine in the disposal of the case are stated in the opinion of' the court, following. 1. Adding the name of a party as plaintiff is not such an amendment as requires' the filing of a new answer. 6 Pr.

Error from Shawnee. Comity. This action, originally brought in justice’s court, was determined in favor of the defendant in error, plaintiff below, and appealed to the district court. By stipulation the pleadings before the justice were made the pleadings in the district court.

JError from Leavenworth County. To understand tlie case so far as is necessary for an appreciation of the points determined, it will, in addition to the statement of the facts thereof in the opinion, only be necessary to insert here the findings of the court below substantially as follows: That on the 19th day of March, 3855, the firm of J. Kallman & Co., by Joseph Westenberger, one of the partners, executed a deed of assignment to the plaintiff, conveying to him all the…

Error from Jefferson County. The facts in the case sufficiently appear in the subjoined opinion: 1. The trial by the court, without a jury, was con-scribed by the statute. Civil Code, § 266, 289. A jury was not waived in the way pre- The New York rule is rigid in this respect. 1 Morrill’s Pr., 644; 3 Cow. E., 367; 1 Hill, 101; N. T. Civil Code, § 266,1 Code JR., 83. 2. A party claiming advantage by default of his adversafy must clearly show a complete default under the law.

Error from Anderson County. The opinion of the court contains a full statement of the facts of the ease. 1. Administrators have no authority in relation to the sale of the real estate of decedents, which they can delegate to an agent by power of attorney or otherwise. 2. When an administrator in the State of Kansas becomes a non-resident, his authority as such is legally revoked. He can no longer use nor delegate any power. Comp. Daws, Ch. 91, § 54. 3.

Error from Marshall County. The petition contains a sufficient statement of the facts of the case. 1. “ That the facts stated in the petition do not constitute a cause of action in favor of the plaintiff and against the defendant,” is good cause for arresting a judgment and granting a new trial. Kelsey v. Weston, 2 Comst., 500, 506; Higgins v. Freeman, 2 JDuer, 650; Febble v. Cuphinger, 13 Ben. Monr., [Ü3/.,] 464; Belty v. Wilber, 14 id., 247; 19 Ohio, 289. 2.

Error from Miami County. The facts of the case sufficiently appear in the subjoined opinion, to present the point-decided by the court. Briefs of points, doubtless involved in the case, were filed by both parties, but as the decision is based upon a preliminary question, their insertion is not deemed important.

Error from Atchison County. The facts of the case, not appearing in the opinion following, are substantially as follows : The defendant in error was in possession of, and had improved certain lands, which he had purchased of the Central Branch Union Pacific Railroad Company, who held under treaty with the Kickapoos of 1862 [13 TI. 8. Stat., 623,] the same being a part of the Kickapoo Reserve, in Grasshopper township, Atchison county.

Error from Jefferson Gouniy. This action was brought by the plaintiffs in error against the defendant in error, and one Graham, upon a 'joint contract to construct a county building, Graham ' being a resident and the defendant in error a non-resident of the state. An affidavit was filed for an attachment against the non-resident, and under an attachment issued thereon, the joint property of the two was taken.

<p> Mrror from Johnson County. </p> <p>This was an action in ejectment, brought by the defendant in error against the plaintiffs in error, to recover one-half of the'estate of F. M. McKinney, deceased, she beingthe mother, and they being brothers of the deceased. The cause was tried before the court, and judgment given for plaintiff below, defendant in error, and tbe case is brought here that the judgment may be reviewed. The opinion contains a fuller statement of the facts of the relationship of the parties.</p> <p>1. The estate of dower still exists by statute of Kansas, although by act concerning “ descents and distributions,” approved February 8th, 1859, [See Stat, ’62, 471, § 29,] abolished the estate by dower and courtesy. An act passed subsequent thereto, entitled “ an act relating to dower,” approved February 27th, 1860, [Id., 478, § 1 and following^ revives the estate of dower. Section two of this act gives the widow six months from the death of her husband to elect; to take under section one, one-third for life, or take under the act relating to “ descents and distributions,” or an act to “protect the rights of married women,” approved February 7th, 1859. By a subsequent act, entitled “ an act for the relief of widows,” approved May 21st, 1861, [id., 902,] it is provided: “If a widow fail to elect within six months, she shall be presumed to have elected to take under the act to ‘ protect the rights of married women.’ ” Construing all these acts together, the act concerning dower, passed over a year subsequent to the act of “ descents and distributions,” and the act to “ protect married women,” the estate of dower abolished by legislature, 1859, was revived in 1860, and the provisions allowed her by law, and which now- elects for her, is an estate in lieu of dower, and is characterised by all its qualities, conditions and incidents. This view is farther confirmed by the act “ concerning dower” [§ 6, same statutes, 479,] which provides that she may take dower as in section one, free of debts, or under section four, subject to debts. "Whatever the quantity or quality of the estate .may be, it is a dower, or a provision in lieu of it, and the conditions of its existence must depend upon “ marriage seizure, in fact or law, during coverture, and tlie death of the husband.” One of the essential incidents of the estate is, that the widow acquires no new freehold, but her seizure is a continuation of her husband’s. [1 Pick., 817.] She can only recover upon the strength of her husband’s title. • She must show a seizure in him during coverture. [15 Barb., 485.] The defendant in error claims one-half of the land in controversy as the widow of the decedent’s father. But he was never seized, in fact or in law, during coverture.</p> <p>2. But if the court should hold that the estate of dower, as such, does not exist by the law of Kansas, then we submit that the estate, or portion, going to a widow of a deceased husband by the fifth section of the law of “descents and distributions,” must have been one of which the husband had a legal or equitable estate at some time during the marriage.</p> <p>3. It is the duty of courts to construe every part of an act, and give application to each part so as to harmonize each part with every other part, if possible. We submit that sections nineteen and twenty of the act concerning “ descents and distributions ” is in harmony with section five of the same act, so as to give full force to the terms of section five.</p> <p>4. The obvious intent of section nineteen, fairly construed, is, that in failure of wife or children, the estate should follow the father’s line to the exclusion of the mother and her line. Can it be conceived that the legislature should in this section exclude the mother and her line, and confine it to the father and his line, when in many cases, and the one in controversy, if the rule contended for by defendant in error be correct, the first step it takes, it takes one-half the estate from the father and his line and casts it upon the mother and her line.</p> <p>5. The obvious intent is, on the failure of wife or children, to run the blocd of the father’s line of the last person who died seized of the estate. To give the interpretation claimed by the defendant in error, one-half the estate in a certain contingency would pass to a stranger to the blood of the deceased, and possibly all might go to a stranger to the blood of the person last seized.</p> <p>6. The language: “ If the father be previously dead, the portion which would have fallen to his share by the above rules [§ 18] shall be disposed of in the same manner as though he had outlived the intestate and died in the possession and ownership of the portion thus falling to his share,” is restrained by the remaining portion of the section.</p> <p>7. “ And so on through each ascending ancestor and his issue, unless heirs are sooner found.” The plain im•port of this language distributes the estate to the issue of any dead male ascending ancestor in whom it may vest as though in esse. Thus interpreted it gives all parts of the act full force, and harmonizes sections five and nineteen. »</p> <p>8. But further, section twenty fixes and interprets section nineteen: “If heirs are not found in the male line, the portion thus uninherited shall go to the mother of the intestate and to her heirs.” There is certainly but one meaning to this section. There must be a failure of issue in any one of the ascending ancestors of the male line of the decedent before the estate can be east upon the mother of the intestate and follow her line.</p> <p>9. The foregoing view of the law harmonizes all the acts bearing upon this question. But the view maintained by defendants in error makes section nineteen and twenty contradict section five of the act of “ descents and distributions,” and also renders inoperative and void sections two, six and seven of the dower act. [Comp. L., 478, 479.] Elections made by provisions of sections two must be made within six months husband, and section seven, witlin same time, the por from the death of her r is not as heir of the deceased husband who tion claimed by defendant in erre son who died seized, but of her had been dead over twenty years before the death of the son, who died seized of the estate in controversy.</p> <p>10. Subsequent legislation confirms the view submitted by plaintiffs in error. [Gen. Stat., ’68, 394.] The legislature makes the estate in the contingency stated in section nineteen [Stat., ’62,] by sections twenty and twenty-one of statute of 1868, go to the parents instead of father, as in statute of 1862.</p> <p>1. “ An act concerning descents and distributions,” approved February 8th, 1859, [Comp. L., 468-472,] is the law governing this case.</p> <p>It was the law in force at the time of F. M. McKinney’s death, and provides specially for this state of things, and must, therefore, control to the exclusion of all others.</p> <p>2. This law, when applied to the case, provides that Mrs. Stewart, defendant in error, on the death of her son, F. M. McKinney, was entitled, in fee simple, to the one-half interest in said estate, while plaintiff’s in error are entitled to a one-fourth each, for</p> <p>a) Section five of this act reads that on the decease of the intestate, the wife shall be entitled, in fee, to the “ one-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest,” etc.</p> <p>b) Section sixteen is to this effect: “ Subject to-the rights and charges hereinbefore contemplated; the remaining estate * * * shall descend in equal shares to his children.”</p> <p>e) And section eighteen is to this effect: “ If the intestate leaves no issue, the whole estate shall go to his wife, and if he leaves no wife nor issue, the whole shall go to his father.”</p> <p>d) And section nineteen: “ If his father be previously dead,” and that is the case here, “the portion which would have fallen to his share by the above rules,” andjvhat. is that portion but the whole? “shall be disposed of in the same manner as though he had outlived the intestate and died in the possession and ownership of the portion thus falling to his share, and so on through each ascending ancestor and his issue, unless heirs are sooner found.”</p> <p>e) Now compare the facts with this law, as above recited. Take section nineteen, using the prior sections in unfolding its meaning, and is there any doubt but that F. M. McKinney’s real estate is to be distributed in this wise : one-half to his mother, Cinderilla Stewart, and the remaining half, in equal shares, to the two brothers, William and John McKinney? The only question is: “How would the estate descend, ‘ by the above rules,’ were it really the estate of the father ?”</p> <p>3. It was contended that the last clause of section nineteen, shows an intention of the legislature to return to the old common law of decents. Suppose, then, it be the meaning of “and so on through each ascending ancestor and his issue, unless heirs are sooner found,” that the blood of the ancestor should be strictly followed up, and that this clause indicates a return to common law rules of descent, and you have made this subordinate, appended clause contradict and absolutely control the body of this (nineteenth) section, as well as the spirit of the entire act — for, says the main clause of section nineteen, that in the case of the previous death of the father, “ the portion which would have fallen to his share by the above rules shall be disposed of in the same manner as though he had outlived the intestate and died the owner,” etc. Besides several cardinal rules of interpretation are violated by this sort of construction.</p> <p>a) “ The whole statute must be taken together, and such an interpretation adopted as will make all consistent.” Vattel’s Rules-, Sedgw. Stat. and Const. Law, 237.</p> <p>b) “Whenever the intention can be discovered it ought to be followed, although such construction may seem, contrary to the letter.” Sedgw. Stat. and Const. Imw, 232; 4 Comst., [JV. Y. A.,] 140; 15 Johns. R., 358.</p> <p>c) Again: “Words are to be taken in their natural and most obvious import, without resorting to subtle or forced constructions.” Story J. in 1 Wheat., 326; Bronson J. in 20 Wend., 555; 1 Kent, 462; Sedgio. Stat. and Const. Law, 260.</p> <p>d) In arriving at the intention of the legislature we are to view the history of legislation on the subject, as well as look to acts in pari materia. \_Cok. Litt, 381; 1 Kent, 461.] Is it not seen in Kansas legislation that the object is to enlarge woman’s rights in real estate and bring her to a par with man in this regard ?</p> <p>Is it not absurd to so interpret this section (and that by means of a subordinate clause) as to deprive her of that which the legislature so assiduously strove to invest in her. But Mattel’s rule is that “ Every interpretation that leads to an absurdity ought to be rejected.” There is one rule applicable in this case, viz: “ That if the statute is plain and unambiguous, there is no room for construetion or interpretation.” Sedgio. Stat. and Const. Law, 231.</p> <p>4. The objection made below, “ that a wife cannot be an heir,” has no bearing in this case, if it were even true .in point of law. She can be an heir. Ah heir is simply “ one upon whom the law casts an estate immediately on the death of the ancestor.” 2 J^laekst., 201; “An Heir— One who inherits.” — Webster’s Speller and Dejiner.</p>

JError from. Leavenworth County. In addition to the statement of facts contained in 'the opinion, it also appears by the record that the “answer day,” fixed in the summons, was June 27th, 1869, which was Sunday.

Error from Miami County. The facts of the case appear in the subjoined opinion of the court: 1. The authorities all agree that a contract in parol for the sale of real estate, with such part performance as the record shows in this case, can, and will be specifically-enforced by a court of equity. Fry on Spec.

Error from Jefferson County. The facts of the case, sufficient for an understanding of the points decided, appear in the opinion of the court. I. The lands not being taxable, the sale and certificates were void, and there was no lien on the land for taxes. The money paid by plaintiff below, therefore, was paid for the release of a claim that had no existence, and paid without consideration.

Error from Johnson County. The facts of the case sufficiently appeal’ in the subjoined opinion of the court. 1.

The facts of the case involved in the points decided and referred to in the opinion, are stated at some length, in the report' of the same case, ante, 312, et seq. In addition thereto, it may be well to add here: On the trial of the case a motion was made to dismiss the same on the ground that the petition fails to contain sufficient facts. The motion was overruled.

Error from Saline County. The facts in the case sufficiently appear in the opinion of the court: The defendant was in no wise to blame for the loss, and the court was clearly wrong in charging the law as applicable to cases of this kind. See Knight v. Abert, 6 Penn. S., 472; Bash v. Brainard, 1 Cow., 78. We, also, refer the. court to the case of Caulkins v. Mathews, decided by this court at the January term, A. D. 1869.

Mror from. Johnson County. This action was originally commenced in justice’s court.

Error from Johnson County. The facts of the case sufficiently appear in- the opinion of the court. 1. The action of the justice was clearly erroneous, as well as the action of the district court in affirming the proceedings of said justice, as their action was not justified by proof.

Mrror from Atchison County. The petition, demurred to, alleges substantially the following facts: That Taylor, on September 20th, 1865, owned and possessed a freighting ox train worth $12,000; that Taylor had it loaded at Atchison with freight for Colorado under contract with Butterfield, to be transported within a reasonable time, alleged to be ninety days; that Taylor, on the delivery of the freight, was to receive thereon $10,000, for the payment of which freight bills…

JEkror from Saline County. The affidavit sets forth substantially: That at the general election held November, 1868, Hamilton received a majority of the votes cast for. probate judge for the county of Saline; that the vote then cast was afterwards, at the proper time, duly canvassed and Hamilton declared duly elected probate judge for two years from January, 1869; a certificate of his election was properly issued to him by the county clerk; Hamilton then gave a bond as…

JEhror from Leavenworth County. The facts of the case are as follows: At the May term, 1869, of the district court, Leavenworth county, Kansas, this cause came on for a hearing on a demurrer to the petition filed herein in proceedings under the bastardy act, which demurrer was sustained and judgment entered for defendant, to which plaintiff excepted.

Hrror from Doniphan County. The facts of tbe case sufficiently appear in tbe subjoined opinion of tbe court. 1. Tbe instructing tbe jury to return tbe verdict prepared by tbe court was worse tban a non-suit; it prevented tbe jury from finding upon tbe merits of tbe case, in a jury trial. Tbe case was not a total failure of proof; nor was tbe instruction an attempt to instruct.

Error from Shaionee County. The facts of the case sufficiently appear in the opinion of the court. The plat and the certificate of survey are properly included in the item (complete report of survey $2,) which was allowed. Gen. Stat., 480, § 8.

Error from Atchison The opinion of the court contains a sufficient statement of the facts of the case. 1. The written obligation cannot be changed by parol. Fdio. on Bills, 814-15, and note 5; Chit., on Bills, 142; Sprig v. Birk, IQ Bet., 257, [Curt., 110;] Bond v. Siorr, 13 Conn., 412; Bullv. Allen, 19 Conn., 101; McClure v. White, 5 Minn., 178, 188; 9 Wise., 379. 2. The obligation is joint on its face; the purport of it is, that all the obligors are principals.

Error from Leavenworth County. This action was brought by defendant in error against the plaintiff in error, to recover the amount of a draft alleged to have been sent by him, through the agencies of the plaintiff in error for collection against an individual in Hartford, Conn.

<p>1. Tax Titles. — A tax deed mode in pursuance of a sale of land for certain taxes, levied upon the land at a time when tlie land was not subject to taxation, is absolutely void.</p> <p>2. Id: Stat. of Lim. — Such a deed, duly recorded, is not of itself sufficient to start the statute of limitations into operation, as against the original owner of the land, or his grantee*</p> <p>3. Id: Color of Title. — Such a deed, duly recorded for more than two years, for land which during tho said two years remainod vacant and unoccupied, giyes the holder of the tax deed no rights to the premises.*</p>

Krror from Jackson County. The facts of the case are stated in. the opinion of the court.

Error from Leavenworth County. The principal sections of ordinance, number ninety, referred to, relative to the sale of adjacent lots for taxes, are as follows : “ Section 13.

<p> Error from Leavenworth County. </p>

<p>1. Real Contract : Authority of Agent. — The authority of an agent to contract for the sale of the lauds of his principal may be established by parol evidence.</p> <p>2. Statute of Prauds. — Section oight of chapter twenty-two of the General Statutes [p. 18G] has no reference to the constituting of an agency with authority to make contracts for the sale of lands, in whom no estate is created.</p>

Error from Jackson County. The facts of the case sufficiently appear in the opinion of the court. 1. The amended petition contained but two causes of action, and they were separately stated as required by section 95, civil code of ’59. Comp. L., 139. As to what is a cause of action, see Swan’s Pleadings and Practice, 32. 2. The word “proceedings” in subdivision 5, section 382, civil code ’59, [Comp.

Error from Miami County. The following is a copy of the obligation entered into by the defendant in the criminal case in the court below: “Be it remembered, that on the 1st day of April, A. D, 1869, Badcliffe Morrow personally appeared before me, a clerk of the district court in and for Miami county, and State of Kansas, and acknowledged himself to owe the State of Kansas the sum of $800, to be levied of his goods and chatties, lands and tenements and hereditaments if…

Frror from Douglas County. The opinion contains a sufficient statement of the facts of the ease. 1. It was error for the court to render judgment on the note for more than twelve per cent per annum interest. 2. It was error for the court to allow the judgment to draw twelve per cent interest, the contract on which the judgment was rendered having no provision fqr interest at that rate. 1.

Error from Douglas County. In addition to the statement of facts contained in the opinion, it may be mentioned that the referee found that the plaintiff* was guilty of “ entering upon the premises of the plaintiff, and of wrongfully cutting down and car - rying away a certain quantity of trees and timber, the property of the plaintiff, and of the value,” etc.; but the record does not disclose any finding that the trees so cut down and carried away were “ placed or growing…

Error from Franklin County. The petition in this case in the court below, substantially alleged: that plaintiff is a half-breed of the Sac and Fox tribe of Indians as mentioned in the tenth (10th) article of the treaty between the United States and the Sae and Fox tribe of Indians, as ratified by the Senate of the United States, July 9th, A. D. 1869.

Error from Franklin County. The body of the petition, the sufficiency of which is involved in this case, is as follows: “ The plaintiff, Mary Thorp Monroe, complains of the defendants, William Pennock, C. B. Parkinson, Jonathan Parkinson and William Bleak, and states to the court that she is the owner in fee simple of the east half of section twelve (12), township seventeen (17), and range seventeen (17), containing three hundred and twenty acres, situate in said county of…

Error from Shaionee Gounty. This action was brought in the'district court of Shawnee county by the plaintiff in error, a constable of a township of Shawnee county, against the commissioners thereof to recover his fees for services as such constable, rendered in an examination before a justice, of a person charged with crime, in which proceeding the person so charged was discharged “ for want of evidence to convict or hind over.” It appears that neither the prosecuting…

Error from Wyandotte County. The opinion following, contains a sufficient statement of the facts of the case. 1. The constitution and statutes of Kansas exempt a homestead to the extent' of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner. Gen. Stat., 58, 59, 473. 2.

Error from, Shawnee County. The opinion of the court in this case contains a sufficient statement of the facts thereof. 1. ■ The husband was a proper party, having an interest in the subject of the suit.- Civ. Code, ’59, § 42; Comp. L., 130,181, §§ 47, 48. 2. • The mortgage was void for every purpose, absolutely; a sale under a decree foreclosing tire same would be set aside. Cusic v. Douglas, 3 Kas., 123; Iioot v. McGrow, id., 216. 3.

Error from Ejon County. The body of the petition in this case below is substantially as follows: 1. “ The plaintiff gays he is the owner of a tract of land consisting of (description) situate in Lyon county, Kansas, and has been such owner ever since the 7th day of September, A. D. 1865. 2. “ The defendant, Isaac Wright, on the 1st day of February, 1867, and at divers other times between the said 1st day of February and the filing of this petition, did unlawfully cut down…

Error from Wyandotte County. The facts of the case fully appear in the subjoined opinion of the court. 1. Courts favor the validity of the law which is in question, and where courts are called upon to pass on a law that has been duly framed by the legislature, they will never decide that it is invalid unless this is proved beyond a reasonable doubt, and a statute will in no case be deemed absolutely void.

Error from Leavenworth County. The record shows substantially that defendant in error brought suit against the plaintiff in error to recover compensation for selling lands belonging to the plaintiff in error.

Error from Douglas County. This action was brought by the railroad company to restrain the collection of taxes, levied for the years 1866 and 1867, on a quarter section of the 100,000 acres of land specified in the treaties with the Delaware tribe of Indians of May 80th, 1860, and of July 2d, 1861. [12 Stat. at L., 1177.] The patent granted, pursuant to the provisions of these treaties and the amendments, was not issued by the government until 1868.

' 11. That one Henry B. Burgess, under the name and style of H, B, Burgess, on the 4th day of January, 1855, became a member of the said Topeka Association by a vote of said association, and by subscribing the constitution and by-laws, and thereby, and by reason of the consi deration^ paid and agreed to be .paid to said association, the said Burgess became the owner of city interest to share No. 29 of the said Topeka Association, and the owner of all the title the said…