Volume 5 — Kansas Court of Appeals Reports

<p>Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.</p>

<p>Error from Johnson District Court. Hon. John T. Burris, Judge.</p>

<p>Fraudulent Conveyance — creditor must have been prejudiced by, before he can attach. Before a creditor will be permitted to attack the validity of a conveyance of real estate made by his debtor, it must be made to appear that his rights have been prejudiced by reason of such conveyance.</p>

<p>1. Rules oe Court oe Appeals — errors to be reviewed must be specifically assigned in briefs. The rules of this court were ■ adopted to be observed and followed, and counsel wishing errors considered must specifically assign the same in their briefs. This court cannot search for them.</p> <p>2. Evidence Examined — and findings sustained. The findings of the court in this case are supported by the evidence and warrant the judgment rendered.</p>

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. This was an action on an accident policy issued by The Employers’ Liability Assurance Corporation, Limited, the plaintiff in error, insuring Merrill D. Anderson for the benefit of his wife, the defendant in error. The jury returned a general verdict for the plaintiff below and answered a number of special questions.

<p>Error from Shawnee District Court. Hon. John Guthrie, Judge.</p>

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. The plaintiffs in error, as executors, alleged to have been appointed by the “Probate Court” of Erie County, New York, sued upon a judgment against the defendants in error, recovered in the Circuit Court of Franklin County, Illinois, by their testator's assignor. The petition contained proper averments as to the Illinois court's jurisdiction, and the judgment record was attached as an exhibit.

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. The defendant in error brought this action to enjoin the collection of taxes levied upon its property under the act providing for the improvement of county roads, (Co. v. Abbott, (52 Kan. 148,) the Supreme Court declared unconstitutional.

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. This action of replevin was begun by the plaintiff in error against the defendant in error before a justice of the peace, the plaintiff claiming under a chattel mortgage given by the defendant in error to secure a note for $175. The justice rendered judgment for the plaintiff, and the defendant appealed to the District Court.

<p>Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.</p>

<p>Error from Wyandotte District Court. Hon. Henry L. Alden, Judge.</p>

<p>1. Appellate Procedure — errors in impaneling jury not reviewable unless proceedings properly preserved in record. Before this court can examine alleged errors ocurring at the impaneling of the jury, the proceedings had at that time in the lower court must be preserved in the record.</p> <p>2. Evidence Examined — and held sufficient. The evidence in this case examined, and found to sustain the verdict.</p>

<p>Indian Grantor — if a citizen when deed made to Indian lands, estops himself and subsequent grantees by covenant of warranty. W., who had been a member of the Kickapoo Tribe of Indians, became a citizen of the United States, and thereafter executed a deed of conveyance, with general covenant of warranty, for certain Indian lands in which he had an interest but not the legal title, to one L., who was not an Indian and to whom a conveyance of such lands was, at the time, not authorized by law. Subsequently, the legal title to said lands becoming vested in W. with full power of conveyance, he executed another deed for the same to N. who took with notice of the prior deed. Held, that W. and his second grantee were estopped from setting up a title adverse to that attempted to be conveyed by the deed to L.</p>

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. This was an action on a fire insurance policy issued by the plaintiff in error to one E. J. Camp, on his dwelling-house in Kansas City, Kan., the loss, if any, to be payable to The English and American Mortgage Company, Limited, mortgagee, as its interest might appear.

<p>1. Maturity off Note — governed by condition of contemporaneous mortgage making note due if interest unpaid. A note, and a mortgage securing the same, when executed contemporaneously, are to be construed as constituting one contract; and the stipulations of the mortgage with reference to the maturity of the debt because of a failure to pay interest, when due, will be given effect so as to cause the note to become due and payable before the time expressed on its face.</p> <p>2. -changed by contract of maker and indorsee without indorser's consent, not binding on him. An indorser of a negotiable note is not bound by a contract, entered into, without his consent, between the maker and a subsequent indorsee, which changes the time when the note may mature ; and his liability as indorser must be determined and fixed in accordance with the original contract of indorsement.</p> <p><3. Judgment on Pleadings — erroneous, where material facts upon which based not admitted. It is error to render judgment on the pleadings, without evidence, when material facts, upon which such judgment is based, are not admitted by the unsuccessful party.</p>

<p>Error from Jackson District Court. Hon. L. A. Myers, Judge.</p>

Error from Brown District Court. Hon. J. F. Thompson, Judge. This was an action by the defendant in error to recover a sum which he claimed was due him from the plaintiff in error under a certain agreement in writing which is set out below. Prom the evidence it appears that, about May, 1888, Jordan, the defendant in error, exchanged with Jensen, the plaintiff in error, real estate for wheat in the stack and granary.

<p>Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.</p>

Error from Jackson District Court. Hon. Robert Crozier, Judge. This was an action in replevin brought by the defendants in error, as plaintiffs below, against the plaintiffs in error, as defendants below. The trial was had before the court and a jury, and resulted in a verdict in favor of the plaintiffs and against the defendants in the trial court.

Error from Jackson District Court. Hon. Robert Crozier, Judge. This was an action for an injunction to restrain the collection of personal property taxes in excess of an amount tendered and refused.

Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.

Error from Nemaha District Court. Hon. J. F. Thompson, Judge.

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. This was an action to foreclose a mortgage given by the plaintiff in error’s grantor, and to recover a personal judgment against the plaintiff in error upon a clause in the deed to her, recited in the opinion, which the defendant in error claimed gave rise to a personal liability.

Error from Brown District Court. Hon. J. F. Thompson, Judge. The plaintiff in error brought this action to enjoin the defendant in error Brown, as Sheriff of Brown County, from selling a certain quarter of an acre of land in that county under an execution issued at the instance of the defendant in error, Baker, upon a judgment obtained in the District Court of Brown County by one Susan B. Hill against Elizabeth and John Morris and assigned to him.

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. Every city of the second class has power 1 ‘ to provide a system of sewerage and drainage for the city, or any part thereof, and to build and construct sewers or drains by districts or otherwise ” as the mayor and council may designate ; the costs .and expenses to be assessed “ against all the lots or pieces of ground contained in the district ” in which the sewer is situated.

Error from Brown District Court. Hon. J. F. Thompson, Judge. This action was brought by plaintiff in error against defendants in error for partition and for the rents and profits of certain lands. Plaintiff and defendants claimed from a common source of title., Qua-is, a Kickapoo Indian woman, who was the allottee and patentee of the land. She had been married twice. Prior to 1888 she died a widow.

<p>1. Assignment for Benefit of Creditors — one claiming trust fund need not show identical fund or specific property representing it passed to assignee. To authorize plaintiff to recover from the assignee under a general assignment money collected by the assignor as her agent, it was not necessary for her to show that the very same fund, or property in which the fund was invested by the assignor, came into the hands of the assignee.</p> <p>2. --but sufficient if fund used by assignee without authority in ordinary course of his business. Where it appeared that the assignor, being a banker, collected, as her agent, the plaintiff’s note and mortgage, and.put the proceeds into his own bank, of another, and that the funds were not lost nor wasted by him, but, without the knowledge or authority of the owner, were used by him in the ordinary course of his business; held, that this was a sufficient showing that the funds came into the hands of the assignee to enable the claimant to recover from him.</p>

Error from Doniphan District Court. Hon. J. F. Thompson, Judge. ■ This was an action against the defendant in error, personally, for taxes alleged to be due from him as executor of the estate of L. S. Allen, deceased, who, at his death, was domiciled in Illinois.

Error from Douglas District Court. Hon. A. W. Benson, Judge. This was an action on a promissory note for one thousand dollars, the execution of which was put in issue. The defendant applied for a commission to take the deposition of certain witnesses in California, which was granted, and for an order requiring the plaintiff to permit the original note sued on to be attached to the commission, which was refused, and the defendants excepted.

<p>Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge.</p>

<p>Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.</p>

<p>Error from Brown District Court. Hon. J. F. Thompson, Judge.</p>

<p>Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge.</p>

Error from Shawnee District Court. Hon. John Guthrie, Judge. The plaintiff in error appealed from a judgment against him and in favor of the defendant in error, rendered by a justice of the peace. The transcript was filed in the District Court in January, 1890.

Error from Shawnee District Court. Hon. John Guthrie, Judge. This was an action by the plaintiff in error against the defendant in error as an indorser of a promissory note made payable to his order.

Error from Leavenworth District Court. Hon. Robert Crozier, Judge. This was an action for damages for injuries suffered by the defendant in error from contact with a broken electric-light wire belonging to the plant operated by the plaintiff in error in the city of Leavenworth.

<p>Public Highway — must be actually located by viewers and starting point fixed. Viewers appointed to view and locate a public highway met at the time and place designated, and, without the presence of surveyor, chain carrier, or marker, simply made a report that they so met and proceeded to view the route of the road petitioned for, that they were of the opinion that said route was practicable and of public utility, and recommended that it be granted as located and surveyed; but it does not appear that the road was located or surveyed, and no plat, field-notes, or survey appears to have been filed or made : Held, that such facts do not constitute a location, and no such road legally exists.</p>

<p>Error from Brown District Court. Hon. J. F. Thompson, Judge.</p>

<p>1. Occupation Tax — city has reasonable discretion what classes of business shall be subject to. The law authorizing cities to tax certain callings, trades, professions and occupations empowers the legislative body of a city to use reasonable discretion as to what kinds of business in the classes mentioned it will so tax.</p> <p>2. -under ordinance imposing, for business within city, business which does not begin and end in city not subject to. A city cannot collect a license tax from an express company that does no business that both begins and ends within its limits, under an ordinance providing that every express company, corporation, or agency, for business done exclusively within the city, shall pay the sum of seventy-five dollars per annum.</p>

Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge. The defendants in error brought this action to foreclose a mechanic’s lien on property of Hattie I. Dennis and J. H. Dennis, making the plaintiffs in error, B. L. Vineyard and C. I. Harvin parties defendant. The Atlantic Trust Company denied the validity of the mechanic’s lien and set up a mortgage on the same property.

Error from Osborne District Court. Hon. Cyrus Heren, Judge. This was an action on a policy of insurance, issued by the plaintiff in error to the defendants in error as executors.

Error from Geary District Court. Hon. James Humphrey, Judge.

Error from Lincoln District Court. Hon. W. G. Eastland, Judge. J. B. Watkins commenced his action, before a justice of the peace, against the plaintiffs in error and caused an attachment to be issued and levied. On March 14, 1887, he recovered judgment. On April 5, 1887, an order for the officer to sell the attached property was issued. On April 2, 1892, an execution was issued on said judgment.

<p>Error from Marshall District Court. Hon. R. B. Spilman, Judge.</p>

Error from Jewell District Court. Hon. Cyrus Heren, Judge. This was an ordinary action to foreclose a mortgage. The judgment provided that the proceeds of the sale be applied, first, in satisfaction of the costs, second, “to the payment of all taxes and tax liens then due upon said premises,” and the balance to the discharge of the judgment.

Error from Marshall District Court. Hon. R. B. Spilman, Judge. Upon the confirmation of a sale of real estate sold under ordinary foreclosure proceedings, the court ordered the distribution of the proceeds of the sale according to the decree entered October 26, Í891. The decree of confirmation was entered October 13, 1892. The Lombard Investment Company, plaintiff in error, was a judgment creditor and its judgment has been declared a first lien.

<p>Error from Marshall District Court. Hon. R. B. Spilman, Judge.</p>

Error from Smith District Court. Hon. Cyrus Heren, Judge. This is an action brought in the District Court of Smith County by Asa Walker, guardian, to recover from Daniel S. Coates and Roxana D. Coates, his wife, the amount due on a promissory note executed by them in the principal sum of nine hundred dollars, bearing date April 23, 1889, payable to Willis G. Myers, and by him indorsed to the plaintiff; and also to foreclose a real-estate mortgage, in the form of a deed of…

Error from Geary District Court. Hon. James Humphrey, Judge. This was an action brought by the plaintiff in error on a promissory nóte — one of a series given in payment of a stallion purchased by the defendants in error. In the pleadings and upon the trial the execution and delivery of the notes were admitted. The defendants in error, defendants below; sought avoidance under a parol contract.

<p>Principles oe Review — omissions in oase-made cannot be supplied by reference to another record. A case-made must be full and complete in itself as to the errors assigned for review, and omissions therefrom cannot be supplied by a mere reference to the record in another case.</p>

Error from Smith District Court. Hon. Cyrus Heren, Judge. Afc a sheriff’s sale of real estate, made pursuant to a judgment of foreclosure of a mortgage in the District Court of Smith County, John Wolfert, the plaintiff in error, became the purchaser. Thereafter, on application of the judgment creditor, the sale was set aside. Of this order complaint is now made by Wolfert.

<p>Error from Marshall District Court, Hon. R. B, Spilman, Judge.</p> <p>This was an action brought in the District Court of Marshall County by J. B. Auld against T. F. Rhodes on an injunction bond executed by Rhodes as surety for James S. Warden, in an action in said court wherein Wax-den was plaintiff and Auld, and Haskin as sheriff, were' defendants.</p> <p>In March of 1877, Auld, the defendant in error, as plaintiff below, commenced an action in the District Court of Marshall County against Mary A. Jones and J. W. Jones, James S. Warden, and The First National Bank of Frankfort, Kan., to recover one thousand dollars, and caused an attachment to issue. Haskin, as sheriff, levied the attachment on certain personal property which was appraised at $1,154. Upon application, an order to sell the property was made, and the sale was set for May 9, 1887. To prevent the sale Warden commenced injunction proceedings against Auld and Sheriff Haskin. In this action Warden claimed the property as his own, and asked that Auld and Haskin be enjoined from selling it and that it be ordered delivered to him. A temporary injunction was issued upon condition that Warden give bond in the sum of two thousand dollars, which bond he gave, with Rhodes, the plaintiff in error, as a surety. The sale was, therefore, not made, and the sheriff retained the property in his possession.</p> <p>On May 21, 1887, Warden applied for, and was granted, an order of court directing the sheriff to turn over to him the attached property upon the execution by Warden of a bond to the sheriff in the sum of twenty-five hundred dollars for its return if the court should so order. On May 80, the bond with satisfactory sureties having been made, the sheriff delivered the property to Warden. The obligation in the injunction bond is that Warden shall pay “ all damages which J. B. Auld may sustain by reason of the issuing of said injunction and order of said court, if it should-be finally decided that the said injunction and order ought not to have been granted.”</p> <p>Trial was had and judgment rendered in the attachment suit May 21, 1890, and an order made for the sale of the attached property.</p> <p>In the injunction suit, final judgment was rendered February 23, 1892, in favor of the defendants, dissolving the temporary injunction and ordering a return, by Warden, of the property. The attached property was not forthcoming in either the attachment or injunction suits. It had been converted by James S. Warden to his own use. The judgment of Auld against Jones remaining unsatisfied, this action was commenced, January 2, 1893, on the injunction bond, the plaintiff claiming the right to recover thereon the value of the attached property which had been lost to him, together with the attorney’s fees expended by him in the injunction suit. The District Court found the value of the attached property to be $1,250, and a reasonable attorney’s fee in the injunction suit to be $150 ; and for such sums rendered judgment against the plaintiff in error, Rhodes.</p>

<p>Error from Cloud District Court. Hon. F. W. Sturges, Judge.</p>

<p>1. Criminal Pleading — name of person purchasing liquor need not be in complaint. In a complaint charging the violation of a city ordinance by an unlawful sale of intoxicating, or other liquors, it is not necessary to allege the name of the person or persons to whom such sale was made.</p> <p>2. --evidence must conform to allegation. When a complaint charges the unlawful sale of a beverage called “American Hop Ale,” the defendant cannot be convicted on proof of an unlawful sale of a different beverage, though of a similar kind.</p>

<p>Error from Mitchell District Court. Hon. Cyrus Heren, Judge.</p>

<p>Appellate Jurisdictioh- — none where amount in controversy less than one hundred dollars. The Court of Appeals has no jurisdiction to review a judgment rendered in a civil action wherein the amount in controversy is less than one hundred dollars.</p>

<p>Error from Cloud. District Court. Hon. F. W. Sturges, Judge.</p>

Error from Geary District Court. Hon. James Humphrey, Judge. In May, 1893, M. S. Baker, the defendant in error, was employed by the Railway Company, plaintiff in error, as a carpenter, and during said month worked twenty-one days at $2.50 per day, and was entitled to receive from the Company the sum of $52.50. During said month, and at all subsequent times hereinafter mentioned, he was a resident of the State of Kansas, and a married man.

Error from Osborne District Court. Hon. Cyrus Heren, Judge. On October 25, 1886, a certain contract in writing was entered into between Thos. Kane & Co., who are therein referred to as “party of the first part,” and E. it. Hahn, J. H. Murphy, and Wm. It. Ralston, who are designated “parties of the second part.” By the terms of the contract Kane & Co. sold to Hahn, Murphy and Ralston certain school furniture at the agreed price of one hundred dollars.

<p>Appeal from Lincoln District Court. Hon. W. G. Eastland, Judge.</p>

<p>1. Fees and Salaries — of register of deeds of Cloucl County cannot, under act of 1893, exceed eighteen hundred dollars. The salary of the register of deeds of Cloud County is fixed by the statute regulating the same at eighteen hundred dollars per annum, and cannot exceed that amount.</p> <p>2. Register oe Deeds — liability to county in sum of legal fees for acts shown in quarterly report. Upon making his quarterly report to the board of county commissioners, they must charge him with the legal fee for each and every act performed as shown therein, and the total amount thereof fixes his liability to the county.</p> <p>3. Filing Paper — officer can charge only one fee for, though, includes several acts. The filing, or placing on file, of a paper by a public officer may consist of only one, or be composed of several acts ; and where the statute provides for the payment of a fee for filing such paper, that amount constitutes the full fee for per- * forming all, each and every act necessary to be done in order to file the same, and no other or different amount can be claimed or charged; nor can any fee be charged for doing anything in connection with said paper not required by law to be done.</p> <p>4. Register oe Deeds — fee for filing renewal affidavit of chattel mortgage is five cents. The legal fee which may be charged by a register of deeds for filing a renewal affidavit to a chattel mortgage is five cents.</p>

<p>Error from Ellsworth District Court. Hon. W. G. Eastland, Judge.</p>

<p>1. Conveyance — recording, sufficient delivery to infant grantees, and title not divested by third person afterwards destroying. Causing a deed made by a father to his minor children to be recorded, is a sufficient delivery to pass the title to the infant grantees, and a subsequent destruction of the deed by a third person will not divest the title thus conveyed or reinvest it in the original grantor.</p> <p>2. -reasonable provision for future wife retained, not fraud on marital rights. The conveyance of two hundred acres of land by a father to his four minor children, and the retention of eighty acres in contemplation of a second marriage, especially where all the improvements are on the eighty acres retained, is not in itself a fraud upon the'marital rights of a second wif e.</p> <p>3. ■-in fee by life tenant does not work forfeiture. The making by a life tenant of a conveyance purporting to convey the fee, does not work a forfeiture of the life tenancy.</p> <p>4. Homestead — may attach to life estate, but cannot exceed title upon which based. A homestead right may be impressed upon lands held as an estate for life,'but such homestead right cannot be greater in extent than the title upon which it rests.</p> <p>5. Remaindeb-man — life tenant permitting tax sale of land, may have receiver appointed. As against the tenant for life who permits the estate to be sold for taxes, a remainder-man has a right to have a receiver appointed to receive rents and profits sufficient to redeem'the land from such tax sale; and such right is not a mere matter of discretion with the court, and it is error to refuse it.</p> <p>6. Landlord and Tenant — tenant repudiating landlord’s title, landlord may recover premises. If a tenant distinctly repudiates his landlord’s title and asserts one in himself, the tenant’s holding becomes adverse and wrongful, and such repudiation entitles the landlord to an action to recover the land.</p> <p>7. Dismissal Generally — of action, bar to subsequent action having same object. In an action to recover real estate and for partition thereof, where the title set up is controverted and, the making and delivery of a deed set out in the petition is denied under oath, a judgment of dismissal generally, is a bar'to a subsequent action having the same object in view.</p> <p>8. Conveyance — party cannot both deny execution and claim benefit under. The defendant in this suit cannot deny the exeeution and .delivery of the deed under which the plaintiffs assert title, and at the same time claim the benefit of the life estate created thereby in the husband.</p> <p>9. Civil Procedure — court’s refusal to determine issue as to validity/ of title, error in this case. Under the issue joined in this case upon the pleadings, the plaintiffs had the right to insist upon a determination by the court of the validity of the title under which they claimed the land, and it was error for the court to refuse to make such determination.</p>

Error from Saline District Court. Hon. R. F. Thompson, Judge. This action was instituted by the plaintiffs in error and Drusilla Daily to recover for usurious interest paid by them to the defendant in error. The plaintiffs below had at three different times borrowed of the Bank sums, aggregating about three thousand dollars, and given their joint notes for the amounts. These notes matured from time to time, ninety days from date.

<p>1. “Thereupon” — defined. “Thereupon the defendant filed his motion for a new trial,” means immediately after, and upon the same day of, the occurrence last before cited.</p> <p>2. Contract against Public Policy — agreement to prevent competition at sheriff's sale is. A., B., C. and D. enter into an agreement to prevent competition at a sheriff’s sale of real estate, under which A. is to bid off the land at a price not to exceed four thousand dollars ; it is then to be decided by chance which of the four is to have the land at four thousand dollars, and the difference between the price it is bid in for and four thousand dollars is to be divided among the four. A. bid in the land at $3,510. The four then met and drew lots for the land. It fell to B. C. then offered B. forty-two hundred dollars for it, which was accepted, and C. paid B. $567.50, that sum being two hundred dollars bonus offered B. added to the difference between the sum the land was bid off for and four thousand dollars les3 C.’s share of said excess. B. immediately paid to A. and D. their share of said excess. The sale was set aside on account of such illegal combination. A. and B. refunded to C. the amounts of their profits in the transaction, but D. refusedjto do so, and C. brought a suit against B., setting up a parol purchase of the land, a payment of $567.50 thereon, the rescission of the contract of sale, and the failure to return $122.50 of said payment. Held, that such transactions were all connected, and grew immediately out of a contract that was illegal and contrary to public policy, and that no action can be founded thereon.</p>

Error from Jewell District Court. Hon. Cyrus Heren, Judge. The plaintiff in error as plaintiff below brought this action in the District Court of Jewell County, against the defendant in error, on a written lease of lands, setting up damages arising from a failure to cultivate the land properly, allowing it to become seeded to noxious weeds, the conversion of certain farm implements which under the lease plaintiff had furnished defendant, negligence which resulted in burning…

Error from Ellsworth District Court. Hon. W. G. Eastland, Judge. The plaintiff, Henry Fox, began this suit in the District Court of Ellsworth County, upon a note and mortgage given by the defendants, Frank Cipra and Anna Cipra, his wife. Henry Gay was made a party defendant upon the ground that he claimed a lien upon the mortgaged premises. The State Savings Association of Ellsworth, Kan., was made a party defendant, as guarantor of the note upon which suit was brought.

<p>Error from Saline District Court. Hon. R. F. Thompson, Judge.</p>

<p>1. Promissory Note — conditions in mortgage securing, made part of, by reference, not negotiable. Where a note, otherwise negotiable in form, contains the following clause: “ In case of the breach of any of the covenants or conditions in the mortgage deed securing this bond contained, to which said deed reference is hereby made and which is made a part of this contract, in either such case the said principal sum with all accrued interest shall at the election- of the legal holder or holders hereof at once become due and payable without further notice, and may be demanded and collected, anything herein contained to the contrary notwithstanding ; ” held, that this clause renders the note a non-negotiable instrument.</p> <p>2. -payment of non-negotiable, to original payee, without notice of assignment, satisfies. Where the maker of a non-1 negotiable instrument, in good faith pays the same to the payee named therein, without notice that the same has been assigned to other parties, and believing that the payee is entitled to collect the same, such payment is an extinguishment of the indebtedness.</p>

<p>1. Forcible Entry and Detainer — certified to district court, nature of action not changed. Where an action of forcible entry and detainer is, upon plea of title, certified to the district court, it is not changed to an action for the recovery of real property; the certification merely changes the forum, but does not change the action.</p> <p>2. Statute oe Limitations — two year, no application to tenancy till notice to quit. The two years’ Statute of Limitations does not commence to run in favor of a tenant from year to year until the service of notice to terminate the tenancy.</p>

<p>1. Antenuptial Contract — manner of executing determined by Statute of Frauds. The proper execution of an antenuptial contract is determined by the Statute of Frauds, and not by the statute governing the execution of wills.</p> <p>2.--in this case, sufficient to except property from statutory descent and authorize alienation without written consent of consort. An antenuptial agreement in the following language: “Articles of agreement made this eleventh day of March, A. D. 1881, by and between Richard Brown of Republic County, State of Kansas, of the first part, and Arietta Bachelor of aforesaid county and State, party of the second part, witnesseth : That the parties hereto, in view of a contemplated marriage between said parties, do hereby agree to and with each other : That the parties hereto agree and covenant, that the party of the second part shall hold and control in her own right all the real and personal property of what kind soever she now holds and possesses, the same to all intents and purposes as if she were sole and unmarried. And it is further agreed between the parties hereto that, shall said party of the first part during the continuation of the marriage relation between them, with his own money and labor put any permanent improvements upon the real estate of the said party of the second part, the said party of the first part shall have a lien upon the said real estate for the payment of the value thereof. And it is further agreed between the said parties hereto, that the party of the first part shall, in the event of such intermarriage as before set forth, retain and hold in his own sole right all the property of what kind soever he may be possessed of upon the occurrence of the intermarriage of said parties hereto, to all intents and purposes as if no such relation as that of marriage between them existed. In witness whereof the parties hereto have interchangeably set their hands this eighteenth day of March, A. D. 1881; ” is sufficient to constitute an agreement that the property of the parties thereto should be changed from the rules provided by the Statute of Descents and Distributions, and is sufficient to authorize the parties thereto, or either of them, to dispose of their property by deed or devise, without any additional consent in writing.</p>

<p>Error from Cloud District Court. Hon. F. W. Sturges, Judge.</p>

<p>1. Assignment — absolute on face, parol evidence admissible to show, made as security and that assigno?• still has interest. It is competent to show by parol evidence that an assignment of an account, which appears upon its face to be unconditional and entire, is in fact only an assignment by way of security for an amount much less than the claim assigned, and that the assignor still has a right therein.</p> <p>2. -of mechanic’s claim as security for lesser debt, assignor may still file mechanic’s lien. A mechanic who has erected upon real property a heating plant, the agreed price of which is thirteen hundred dollars, having made an assignment to a bank of such claim to secure a loan of two hundred dollars only, may under our statutes make and file a claim for a lien under the Mechanic’s Lien Law notwithstanding such assignment.</p> <p>3. -assignor may maintain action to foreclose lien, making assignee a party. A mechanic or material-man, having made an „ assignment of his claim by way of security for a loan for an amount much smaller than the claim for which he is entitled to a lien, may, as plaintiff, maintain an action to foreclose the same, making the assignee a party defendant thereto.</p> <p>4. -- and assignee’s recovery should be the amount of secured debt unpaid at trial. Upon the trial of such a case, the amount to be awarded to the assignee, in the determination of the respective rights of the assignee and the assignor, is the amount due at the time of the trial, giving credits for any payments that have been made after the action was begun.</p> <p>5. Mechanic’s Lien — purchaser in possession has sufficient ownership to support, although deed taken in another’s name who is ignorant thereof, and undelivered. One who buys land and pays therefor, getting the deeds therefor to be made in the name of another as trustee and in the name of his son, and who remains in possession and control of the property at all times thereafter until the completion of the improvements thereon made under a contract with him, has a sufficient ownership in such land to create a lien thereon for such improvements, as against his son to whom the deeds were never delivered, and who had no knowledge thereof until after such improvements were made.</p>

<p>1. Lease — stipulation to stand half loss of injured orop — value of estimated average crop too conjectural as measure of damages. Prospective profits, when, they are fairly within the contemplation of the parties, not too remote and conjectural, and susceptible of being ascertained with reasonable certainty, may constitute a proper measure of damages; but, held, in this case that, in a contract of lease and promise of the lessor “in case of loss of crops by hail or drought, to stand one-half of the loss,” one-half of the value of what is estimated to be an average crop, at the market price of such average crop in a year when crops are a failure, is too remote and conjectural, and is not susceptible of being ascertained with such reasonable certainty as to constitute a proper measure of damages.</p> <p>2. New Trial — newly discovered evidence as ground for, should be, what. A motion for a new trial on the ground of newly discovered evidence should be allowed where the showing discloses that the evidence was, in fact, discovered after the former trial, that due diligence was used to procure the evidence, that the evidence is material to the issue, goes to the merits of the case, is not cumulative, and ought to produce, on another trial, an opposite result upon the merits.</p>

Error from Osborne District Court. Hon. Cyrus Heren, Judge. This was an action brought in the court below by the Merchants Savings Bank against Israel Moore and Elizabeth Moore, husband and wife, and others, for the recovery of eight hundred dollars and interest on a promissory note, and for the recovery of $92.25 paid for taxes, and to foreclose a mortgage.

Error from Smith. District Court. Hon. Cyrus Heren, Judge. This action was brought in the District Court of Smith County by the defendant in error against the plaintiffs in error to recover on a bond which obligated the plaintiffs in error to pay defendant in error a certain sum of money.

Error from Saline District Court. Hon. R. F. Thompson, Judge.

Error from Saline District Court. Hon. R. F. Thompson, Judge. This action was begun in the District Court of Saline County by defendant in error against plaintiffs in error to vacate and set aside a deed and mortgage made by John S. Metzger to his co-defendant, Walter A. Metzger. It was alleged that the deed and mortgage were made with the fraudulent intent of avoiding the collection of a judgment which the defendant in error had recovered against John S. Metzger.

<p>Error from Dickinson District Court. Hon. James Humphrey, Judge.</p>

<p>1. Civil Procedure — allegation of agency traversed by unverified general denial, taken as true. Where the answer positively alleges the appointment and authority of an agent to collect money due upon the note and mortgage sued upon and a plea of payment to such agent, and the reply thereto is a general denial without any verification, the allegations of appointment and authority of the agent are taken to be true and no evidence in support thereof is necessary.</p>

<p>Error from Cloud District Court. Hon. F. W. Sturges, Judge.</p>

<p>Error from Mitchell District Court. Hon. Cyrus Heren, Judge.</p>

<p>1. Town Site — actual occupant of, entered under act of Congress approved May 23, 1844, cind chapter 12, Laws of 1851-8 •page 399, entitled to his portion of, regardless of acts of officials under such laws. An actual occupant of a town site upon Government lands entered by a probate judge under the act of Congress, approved May 23,1844, (U. S. Stat. at Large, vol. 5, p. 657,) for the relief of citizens of towns upon lands of the United States under certain circumstances; and an act to regulate the entries and disposal of town sites, (Laws 1857-8, ch. 72, p. 399,) is entitled to the possession of the portion thereof actually occupied by him, regardless of the report of the commissioners or the deed of the probate judge.</p> <p>2.--report of commissioners and deed of probate judge under such laws conclusive, when and as to what. Unless impeached for fraud or by some direct proceeding within a reasonable time, the report of the commissioners and the deed of the probate judge are conclusive and final, as to the disposition of unoccupied lots among the actual occupants of said town site or for then- general good.</p> <p>3.--corporation, through its members acting for it, may be sote occupant of. A corporate company may be, through its members acting for such corporation only and not-in their individual right, the sole and exclusive occupant of a town site; and under such circumstances the probate judge should convey such town site to such company.</p> <p>4. --issue as to whether deed conveyed title, circumstances and understanding under which executed proper subjects of inquiry. The principal question in this case being whether the deed from a probate judge conveyed any title to the grantees therein named, the understanding and circumstances under which said deed was made and accepted, and the actions of the grantees thereunder, were proper subjects of inquiry; and any competent evidence tending to establish the defendant’s claim in relation thereto was proper.</p> <p>5.--grantees in deed accepting as officers of town company and asserting title in corporation, estopped from claiming as individuals. If the grantees in said deed from the probate judge accepted the same as officers and members of a town company only, and afterwards for a great number of years held out to the world and asserted that said company was the exclusive owner of said property, and caused the people on said town site to believe, and act upon the belief, that such was the fact, they are now estopped from claiming the title to themselves thereunder.</p>

<p>Error from Republic District Court. Hon. F. W. Sturges, Judge.</p>

Error from Republic District Court. Hon. F. W. Sturges, Judge. The facts of this case are substantially these : E. H. Sturm worked for the Chicago, Rock Island & Pacific Railway Company, during the fall and winter of 1893, for which it was indebted to him. On December 13, 1893, E. H. Willard brought an action before a justice of the peace of Pottawatomie County, Iowa, against E. H. Sturm, and garnished the Railway Company.

Error from Saline District Court. Hon. R. F. Thompson, Judge. The facts of this case as they appear from the record are substantially as follows : - In February,. 1893, C. T. Hilton was appointed city assessor for the city of Salina, Kan., and was engaged personally in the duties of said office sixty-five days. His daughter, Daisy M. Hilton, assisted her father in making the assessment seventy days; and J. H. Hilton, his wife, assisted thirty-eight days.

<p>Civil Procedure — separate causes of action should be separately stated and numbered. Where two or more causes of action are stated in the same petition,.and not separately stated or numbered, it is error for the court to overrule a motion of the defendant to require the plaintiff to separately state and number the several causes of action stated in his petition.</p>

<p>Bight-Hour Law — does not apply to'work done under eontraet. Where a person contracts to do a certain amount of work for a certain sum of money he cannot recover a greater sum than that contracted for, under chapter 111, Laws of 1891.</p>

Error from Geary District Court. Hon. James Humphrey, Judge. The plaintiff in error brought this action against the defendants in error to recover four hundred dollars on a promissory note, made on February 23, 1891, and due three years after date, payable to the order of O. L. Thisler and James Spillman, and by them indorsed to the plaintiff Bank.

<p>Dbomissoby Note — payee's agent obtaining credit by unauthorized transfer of, assigned in blank, right of innocent holder extending credit paramount to payee's. Where a promissory note, assigned in blank, is deposited with a person to be sold by Mm for the benefit of the payee; and such person delivers it to a a third person, as a basis of credit which is extended in excess of the amount due on the note; and the third person had no reason to doubt that the bailee was the real owner thereof until after the credit had been extended; held, that the payee cannot recover the proceeds of the note, as against the holder.</p>

<p>Fraud — one in possession of facts to put him on inquiry is chargeable with. Where one is in possession of sufficient facts to put a reasonably prudent man upon inquiry, and such inquiry would lead to a knowledge of the fraud, such party is chargeable with fraud.</p>

<p>1. Appellate Practice — record in this case shoius that it contains all the evidence. Where the record shows the appearance of the parties, the waiver of a jury and an agreement to try the case before the court, and then “ Whereupon the following proceedings were had,” and this is followed by a recital of the agreements, stipulations, and evidence, concluding with, “ Whereupon both plaintiff and defendant rested their case,” and there is nothing in the record to indicate or suggest that anything has been omitted ; held, that said record shows that it contains all the evidence offered and heard upon the trial.</p> <p>2. -- — • case-made in this action held sufficient. Where the case-made shows that it was served within the time allowed therefor by the court, an agreement that it should be signed and settled on the first day of the March, 1895, term of said court, oías soon thereafter as the court could hear the same, and that it was settled and signed on March 6, 1895, by agreement of the parties, . and no attempt is made to impeach said record or certificate, said case-made upon its face will be sustained against a motion to dismiss the same.</p> <p>3. Promissory Note — transferred by delivery, payment of, by maker at place designated in, is defense. Where a negotiable promissory note is transferred by delivery only, and without indorsement, to a third party, and is paid at maturity by the maker to the payee at the place of payment therein named, without notice of its transfer until after said payment is made, said payment is a complete defense to an action on said note by the holder against the maker thereof.</p> <p>4. Burden oe Proof — on plaintiff to show defendant had notice of transfer. In such a case the burden is upon the plaintiff to show that the maker had notice of the transfer before he made the payment thereof.</p>

<p>1. Holiday — judicial proceedings on, vcdid. There is no statute in this State precluding the courts or judges of this State from discharging the duties of their offices upon Thanksgiving day.</p> <p>2. Revivor — notice of, in this case held sufficient. In a proceeding to revive a dormant judgment in the name of the executor of the deceased judgment creditor, a notice properly entitled in the ease, containing the matters required to be contained in a notice of an application of revivor, signed by the clerk of the court and attested by the seal of the court, and containing a command to the sheriff to serve the same upon the defendants therein named, is a sufficient notice and is sufficiently signed.</p> <p>3. Judgment — in proceedings to revive, cannot he attacked. In a proceeding to revive a dormant judgment in the name of the executor of a deceased judgment creditor, the defendants cannot attack the validity of the judgment by reason of any irregularity in the proceedings of the court rendering the same, it appearing that the court had jurisdiction of the parties defendant and the subject-matter.</p> <p>4. - clerk failing to record, may record at subsequent time ivithout notice to debtor. In an action upon a promissory note, tried to a jury, and in which the jury returns a verdict for the plaintiff for a certain amount, it is the duty of the clerk under the provisions of section 409 of the Civil Code to immediately enter judgment upon the journal of the court for the amount of the ver diet, unless otherwise directed by the court; and if he fails so to do, he may thereafter enter the same, the form thereof being approved by the court, without notice to the defendants, at any time before the rights or interests of third parties intervene which may be affected by such entry without notice.</p>

Error from Cloud District Court. Hon. F. W. Sturges, Judge. This was an action brought in the District Court of Cloud County on the sixteenth day of November, 1894, by the defendants in error against the plaintiffs in error, to set aside a certain deed conveying real estate in that county, made by Jane A. Murray, a widow, to James M. Murray, her son, dated September 1, 1893, and recorded in the office of the register of deeds for said county on December 12, 1893.

<p>Error from Geary District Court.</p>

Error from Trego District Court. Hon. S. J. Osborn, Judge. During the year 1888 Wallace County was attached to Trego County for judicial pux’poses and became a municipal township thereof. In that year the officials of Trego County levied a tax upon the property of the plaintiffs in error who were residents of Wallace County. Wallace County was organized and became a county of the State of Kansas January 5, 1889.

Error from Norton District Court. Hon. G. Webb Bertram, Judge. Plaintiffs in error, defendants below, had given their promissory note to the defendant in error, and a chattel mortgage upon certain stock to secure payment. The note not being paid at maturity, the defendant in error as plaintiff below began his action of replevin to secure possession of the mortgaged property.

<p>1. Injunction Against Judgment — petition for, showing jurisdiction and judgment within issues, states no cause of action. Where, in an action to enjoin the salo of real estate ordered sold by decree in foreclosure, the petition filed in the injunction suit shows that the court in the foreclosure proceeding had jurisdiction of the subject-matter and of the persons, and that the decree was in accord with the issues in the case, such decree is not void; and where the petition shows that the other matters relied upon as grounds for the injunction were fully decided by the court in the foreclosure suit, such petition does not state facts sufficient to constitute a cause of action.</p> <p>2. --will not lie for error. If such decree was erroneous, the plaintiS had an' adequate remedy at law to reverse it by proceedings in error. The decree cannot be attacked collaterally, or in a separate action.</p> <p>3. Mortgagor’s Grantee — assuming mortgage, mortgagee not bound to accept as debtor. A mortgagee is not compelled to take a personal judgment against, nor to accept, the grantee who assumes the mortgage ; he can stand on the mortgage contract.</p>

Error from Russell District Court. Hon. W. G. Eastland, Judge. In 1890 the plaintiff in error employed the defendant in error, who was a bonded abstracter, to make for it an abstract .of the title to certain real estate upon which the owner, one A. C. Price, solicited a loan. The abstract, purporting to be complete and correct up to and including March 25, 1890, was accordingly prepared and, on that date, delivered ; and the loan was made upon the faith thereof.

<p>Error from Trego District Court. Hon. S. J. Osborn, Judge.</p>

<p>Error from Russell District Court. Hon. W. G. Eastland, Judge.</p>

<p>1. Surety — definite and binding extension of time to principal, not mere indulgence, necessary to release. Mere indulgence as to payment, given to the principal maker of a note, does not release a surety. To have that effect, there must be a valid agreement extending the time for payment, without' the surety’s consent, and the time of the extension must be definitely fixed.</p> <p>2.--talcing new demand note with added security, unless inpayment of prior debt, does not release. The mere taking of a new note payable on demand, with additional security, for a debt evidenced by a prior note, also payable on demand, does not release a surety on such prior note, unless it appears to have been the intention of the parties that the second note should be accepted in payment of the first.</p>

Error from Graham District Court. Hon. Charles W. Smith, Judge. This action was begun, June 15,1898, by the plaintiff in error as plaintiff below, to quiet his title to a certain tract of land, as against the claim of the defendant grounded upon a tax deed and upon the payment under it of certain taxes levied against the land. The defendant appeared and filed a general denial.

Error from Norton District Court. Hon. A. C. T. Geiger, Judge. This action was prosecuted in the court below by the defendant in error, as plaintiff, to recover from the plaintiffs in error, as defendants, the possession of certain real estate deeded to it by the defendants, and two hundred dollars as damages for the detention thereof. The consideration recited in the deed was twenty-five hundred dollars. The property was the homestead of the defendants.

<p>Error from Norton District Court. Hon. A. C. T. Geiger, Judge.</p>

<p>Error from Rawlins District Court. Hon. A. C. T. Geiger, Judge.</p>

Error from Russell District Court. Hon. W. G. East-land, Judge. A judgment in an action for the recovery of usurious interest exacted in violation of section 5198, Revised Statutes of the United States, 1878, was obtained by one Shafer against the defendant in error. The plaintiff in error acted as Shafer’s attorney in the case and received for his services an oral assignment of a part of the judgment.

<p>1. Intoxication Liquor — when compound of ingredients or mixture of liquors is. A compound of several ingredients, or a mixture of liquors, is an intoxicating liquor within the meaning of the Prohibitory Liquor Law, when such compound or mixture may be taken in sufficient quantity to produce intoxication, and when it is reasonable to presume that it may be used as a beverage and as a substitute for the ordinary drinks.</p> <p>2. Prohibitory Law — evidence of sales notinmind of proseeuting witness when information filed incompetent. Under an information charging an unlawful sale of intoxicating liquor, evidence should not be admitted to show other unlawful sales which were not in the mind of the prosecuting witness when the information was filed; nor should sales, other than that relied upon for conviction, be considered, merely for the purpose of making weight against the defendant.</p> <p>3. Instruction — irrelevant, properly refused. An instruction, although correct as an abstract proposition, is properly refused by the court when it is not within the issues being tried.</p>

<p>Error from Graham District Court. Hon. Charles W. Smith, Judge.</p>

Error from Phillips District Court. Hon. A. C. T. Geiger, Judge. In November, 1885, Timothy Gruwell and Priscilla Gruwell, his wife, through the agency of the Nebraska and Kansas Farm Loan Company, negotiated a loan for five hundred dollars. In accordance with a previous arrangement, the notes and mortgage were made payable to James PI. Tallman, a member of the firm of Moore & Co., of Hartford, Conn.

Error from Phillips District Court. Hon. A. C. T. Geiger, Judge. This was an action upon a promissory note and to foreclose the mortgage given to secure it, brought by the plaintiff in error, as plaintiff below, against the defendants in error.

Error from Russell District Court. Hon. W. G. Eastland, Judge. This was an action begun in the court below by the ■defendant in error, as plaintiff, to recover damages for the conversion of certain wheat. On the trial of the •case both parties waived a jury, but the trial court of its own motion impaneled a jury and submitted to them certain questions of fact, but did not require •■them to return a general verdict. The defendant also ¡submitted certain questions.

<p>I. Joinder oe Causes oe Action — .for refusal to levy attachment and for refusal to levy execution, proper. An action against a sheriff for failing and refusing to levy an attachment, and an action for failing and refusing in the same case to levy an execution after judgment is rendered, are not inconsistent actions and may be joined in the same petition.</p> <p>2. Sheriee — must Levy on properly even if in his possession under chattel mortgage. A sheriff cannot exonerate himself from the performance of his official duties in levying an attachment or execution upon personal property, by claiming to have possession of the same property under chattel mortgages.</p> <p>3. Judgment — not conclusive against person not party to proceeding. A judgment in an action of replevin between two mortgagees, respecting the ownership and right of possession of personal property, is not binding or conclusive upon an attaching creditor not a party thereto.</p> <p>4. Sheriee — not excused for not levying on property in hands of garnishees because their answer staled they had no property. In an action against a sheriff for refusing and neglecting to levy an attachment upon personal property, it is no defense that mortgagees claiming such property and the possession of it at the time the attachment is issued, made answer to a garnishment in the suit in which the attachment is issued, that they did not have any property of the mortgagor in their possession.</p>

<p>Appeal Bond — approved and defendant discharged, justice no jurisdiction to take new bond thereafter. Where a justice of the peace has once fixed the amount of bail in an undertaking in appeal in a criminal case, and a bond has been given by the appellant and approved by the justice, and the prisoner has been discharged from arrest thereunder, the jurisdiction of the justice has terminated and a recognizance taken eight days thereafter is void.</p>

<p>1. Instructions — held to fairly present the law. Instructions in this case considered and held to fairly present the law under the evidence.</p> <p>2. -mere omission to instruct on particular matter not error; must he refusal to instruct. As a general rule, where the court properly instructs the jury except that it omits some matter which might properly be given, no available error is committed unless the court has been properly requested to instruct in reference to such matter. The State v. Cox, 1 Kan. App. 447.</p>

Error from Neosho District Court. Hon. L. Stillyvell, Judge. This action was brought by plaintiffs below to enjoin the officers of Neosho County, • Kansas, and a school district, and Erie Township of that county, from levying a certain tax to be used in payment of a levee constructed in that county. The contractors who constructed the levee and to whom the money •was to be paid, were not made parties to the suit, and the injunction was denied.

Error from Neosbo District Court. Hon. L. Still-well, Judge. This action was brought in the District Court of Neosho County, by Elmina Downs, as plaintiff, against the Deceivers of the Missouri, Kansas & Texas Bail-way Company, as defendants, to recover the damages sustained by reason of the death of her minor son, Major W. Downs, who was killed in a railroad wreck While acting in the capacity of fireman in the employ of said Deceivers.

<p>1. Statutes or Another State — in absence of proof, presumed same as our own on same subject. Where the statutes of another state are not introduced in evidence, they will be presumed to be the same as the statutes of our own State upon the same subject.</p> <p>2. General Finding — evidence tending to prove assignment fraudulent, finding it was fraudulent conclusive on error. • Where the facts and circumstances surrounding an assignment, and the evidence of the parties to it, tend to show that the assignment was made with the intent, upon the part of the assignor, to hinder, delay, or defraud his creditors, and the trial court, upon the evidence introduced, finds that the assignment is void, we cannot disturb its findings.</p> <p>3. Replevin — special ownership found, judgment should be for return or value of special ownership, hot exceeding value of property. Where the plaintiff has secured the property in controversy in a replevin action in which the defendant is found to have a special ownership, the judgment should be for a return of the property, or, in case a return cannot be had, then for an amount equal to the value of the special ownership, not to exceed the value of the property.</p> <p>4. -- defendants sued as partners, no proof partnership had parted with property, judgment for partners though testimony of incorporation at time of trial. Where a company is sued as a partnership, in an action to replevin attached property, and there is nothing to show that, at the time the suit was brought, it was not a partnership, or that, at the time of the trial, it had ceased to own and retain the right to collect its accounts as such, held, that the court did not err in rendering judgment in favor of the members of the partnership, although one of the members testified at the trial that the company was then incorporated.</p> <p>5. -- finding against plaintiff, excluding evidence of plaintiff's expense in earing for property and defending title, not error. When the court finds against the plaintiff on the merits of the case, it is not material error to exclude testimony as to the expenses incurred by the plaintiff in caring for replevined property or in defending the title to it.</p> <p>6. Evidence Examined — and held, though objectionable, not to have unduly influenced court. The evidence objected to in this case has been carefully examined, and we think that the material rights of the plaintiff in error were not prejudiced by any undue influence the evidence complained of may have had upon the judge.</p>

<p>1. Nuisance — city of second class may prevent, by fine and imprisonment. The council of a city of the second class has the power to prevent and remove nuisances by an ordinance which provides a punishment by fine or imprisonment or both.</p> <p>2. -city of second class may declare stock yards and hog-pens to be. The council of a city of the second class has power to declare those annoyances peculiar to stock yards and hogpens nuisances whenever they become offensive to the public.</p> <p>3. --what constitutes a public, and what a private. A nuisance which affects a place where the public has a legal right to go, and where the people congregate ; or, if its influence extends where they are likely to go, is a public nuisance. A nuisance which affects a single person or a determinate number of persons in the enjoyment of some private right not common to the public, is a private nuisance.</p> <p>i. - question as to public, is not number of persons annoyed, but possibility of annoyance to public. If the facts are sufficient to constitute a public nuisance it is not a question of the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.</p> <p>5. -public nuisance being proved, showing that hep>t as free as possible from objectionable attributes, no defense. If the facts show that the stench from hog-pens is a public nuisance, it is no defense to show that the pens are kept as clean as they could be under the circumstances.</p> <p>6. -must be objectionable to person of ordinary sensitiveness. The stench of a hogpen to be a nuisance must be offensive to a person of ordinary sensitiveness.</p> <p>7. -no defense that other, in same neighborhood. It is no defense to the charge of maintaining a nuisance that there are other nuisances in the same neighborhood.</p>

<p>1. Assignment — creditor must file claim with assignee within time prescribed by statute. Where the address of a creditor is known and he has been duly served with notice, as required by paragraph 362, General Statutes of 1889, and he fails to file his claim, or attend on the day appointed and lay before the assignee the nature and amount of his demand, and there has been no laches on the part of the assignee, he will be precluded from any benefit of said estate.</p> <p>2. -time given in which to file claims cannot be extended. The time given by paragraph 362, in which a creditor, after notice, may file his claim is sufficient for the careful and diligent, notwithstanding the accidents and mistakes which are liable to occur and cause delay, and cannot be extended.</p>

Error from Bourbon District Court. Hon. J. S. West, Judge. This proceeding in error is brought to reverse a judgment rendered by the District Court of Bourbon County, in September, 1892, in favor of M. D. Hartman and J. D. Mead, copartners under the firm name of M. D. Hartman & Co., and against the plaintiff in error. The action was brought by the latter to recover the sum of $357.68.

Error from Allen District Court. Hon. L. Stillwell, Judge. These proceedings in error were brought to reverse a judgment rendered in the District Court of Allen County, in favor of the defendants in error and against the plaintiffs in error, in the sum of $1,552.40, upon a bond executed by J. H. Hackett, as principal, and the other plaintiffs in error as sureties. Hackett and B. E. Dayton were partners as money lenders.

<p>Error from Miami District Court. Hon. John T. Bums, Judge.</p>

<p>1. Practice — no plea in abatement filed, objection that cause pending in Supreme Court not considered. Where an oral objection was made to proceeding with the trial of this action for the reason that the same was then pending in the Supreme Court on defendant’s appeal from the action of the district court of Bourbon County — where the case was first tried — in granting plaintiff a new trial, and no plea in abatement was filed and no evidence offered in support of such objection, the same was properly overruled.</p> <p>2. Demurrer to Evidence — evidence examined and, properly overruled in this case. Where, in an action for damages brought by an administrator, plaintiff’s intestate was killed by being crushed between the timbers of a railroad trestle above a public street, in a city of the first class, and the top of an omnibus on which the deceased was riding while engaged in his business as driver of the vehicle, on a bright moonlight night, and where the evidence shows that the deceased was familiar with the streets in question, and had frequently driven hacks and wagons under said trestle, but fails to show that he had ever driven an omnibus thereunder, or that his attention was ever called by any one to the risk of so doing: held, that the demurrer to plaintiff’s evidence on the ground that it proved such contributory negligence on the part of deceased as to prevent a recovery, was properly overruled.</p> <p>3. Evidence — examined and held sufficient. Where the evidence tended to. prove that a railroad trestle which passed over a public street in a city of the first class, was always so low that it necessarily impaired the usefulness of the street and that the city permitted such trestle to be built and maintained, and where the , evidence further tended to prove that the injury alleged in plaintiff’s petition resulted from the insufficiency of the height of such trestle above the street: held, that the whole question of the responsibility of the railroad company and of the city, and of their negligence in respect to the trestle and street, was properly left to the jury, and that their verdict upon conflicting evidence having been approved by the trial court will not be disturbed by this court.</p>

<p>Error from Crawford District Court. Hon. J. S. West, Judge.</p>

<p>Error from Butler District Court. Hon. C. A. Leland, Judge.</p>

Error from Harvey District Court. Hon. F. L. Martin, Judge. This was an action to enjoin the Sheriff of Harvey County from selling certain real estate. The petition alleges that the Sheriff is about to sell the lands and adds that if the Sheriff be permitted to sell them it will cast a cloud upon the plaintiff's title, and that plaintiff would suffer great damage thereby in the sum of one hundred dollars.

<p>1. Promissory Note — increased interest provided for oh default enforced. Where a promissory note is executed, July 1, 1885, due five years from the date thereof, secured by mortgage on real estate, with interest at seven per cent, per annum payable semiannually with semi-annual coupons attached, and containing a provision that the note is to draw interest from date at the rate of twelve per cent, per annum if either principal or interest remains unpaid ten days after due; and where the makers thereof, on the first day of June, 1891, paid one-half of the principal and all interest due to that date, and failed to pay the residue thereof ; held, that, when default is made in the payment of the principal and interest for more than ten days after the maturity of the note and for more than ten days after the time to which the interest is paid, the holder is entitled to recover the amount due as principal and twelve per cent, interest thereon from the first day of June, 1891.</p> <p>2. Chapter 109, Laws or 1893 — denied retroactive operation. Ghapter 109, Laws of 1893, concerning the sale and redemption of real estate, has no retroactive operation, and therefore does not apply to mortgage contracts existing at and before its passage. If the Legislature intended the act to apply to such contracts, it violates section 10 of article 1 of the Constitution of the United States. Watkins v. Glenn, 55 Kan. 117.</p>

<p>Error from Sumner District Court. Hon. James A. Ray, Judge.</p>

<p>Error from Butler District Court. Hon. C. A. Leland, Judge.</p>

Error from Reno District Court. Hon. L. Houk, Judge. This action was brought by the defendants in error against the plaintiff in error, in the District Court of Heno County, to recover money for which the plaintiffs claimed they had made and delivered their note and mortgage on real property in the city of Hutchinson.

<p>Attachment — error to dissolve, on account of wrong date in jurat of affidavit. Where the jurat to an affidavit for attachment is by mistake post-dated so that the same appears to have been sworn to subsequent to the issuance of the writ, it is error to refuse to permit an amendment to said affidavit, and to dissolve an attachment on account of such erroneous jurat.</p>

<p>Error from Cowley District Court. Hon. M. G. Troup, Judge.</p>

<p>Error from Butler District Court. Hon. C. W. Shinn, Judge.</p>

Error from Butler District Court. Hon. C. A. Leland, Judge. This action was brought in the District Court of Butler County by John Long as plaintiff against the Atchison, Topeka & Santa Fe Railroad Company as defendant.

<p>Error from Sedgwick District Court. Hon. C. Reed, Judge.</p> <p>In a foreclosure action, Powell and Smith each obtained a money judgment against York, and each obtained a decree of foreclosure of his mortgage. The plaintiff in error and defendant in error were both interested in the same fund in the hands of the clerk of the district court. The court ordered a distribution of the fund between them in proportion to the amount of their respective judgments. Plaintiff in error excepted to this order and filed proceedings to have the ruling of the trial court reviewed.</p> <p>Defendant in error moves to dismiss this case because the plaintiff in error, on the day the order of which' he complains was made, demanded and received of the clerk the portion of the fund awarded him in the order.</p>

<p>Appellate Jurisdiction — all parties affected by judgment must be made parties in Appellate Court. “All persons against whom, a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and a failure to join any of them, either as plaintiffs or defendants, is ground for a dismissal.” Manufacturing Go. v. Richardson, 57 Kan. 662, 47 Pac. Rep. 537.</p>

<p>1. Appellate Procedure — motion for new trial not necessary ivhen case tried on agreed statement of facts. Where a ease is submitted to the trial court upon the pleadings and an agreed statement of facts, no motion for a new trial is necessary to procure a determination'by this court of the correctness of the conclusions of law and the judgment rendered thereon in the court below.</p> <p>2. -agreed statement of fads eliminates everything hut issues of laiv. The agreed statement of facts eliminates all issues of fact from the case. It supersedes the averments of the pleadings, setting aside those which are untrue, and recites the facts upon which the issues of law must be based, and the court could err only in rendering judgment for the wrong party.</p> <p>3. -transcript cannot he attached and filed after one year. A transcript cannot be attached to, and filed with, the petition in error when more than one year has elapsed since the rendition of the judgment or order complained of.</p>

<p>Error from Butler District Court. Hon. C. A. Leland, Judge.</p>

<p>Error from Greenwood District Court. Hon. C. W. Shinn, Judge.</p> <p>This action was brought by the plaintiff in error against the defendant in error, in the District Court of Greenwood County, to recover a deposit of five hundred dollars made by the Eureka Railway and Light Company with the mayor of Eureka, to secure the construction within a given time of a street railway in the city of Eureka. Crawford had been granted a franchise upon condition that a certain amount of work on the railway should be done and a certain amount of the construction completed within a given time. Under the grant to Crawford the work was to be begun in ninety days, but after sixty days the Street Railway Company, having become the successor of Crawford, appeared before the city council and asked an extension of the time in which to begin. The meeting, having been called at the urgent request of the railway company, was held February 6, 1891. The agents and representatives of the railway company were present and presented to the council an ordinance prepared by the attorney of the railway com■pany, granting an extension of time in which to begin the work. A part of this ordinance is as follows :</p> <p>"An ordinance extending the time for commencing the work on the street railway in the City of Eureka as provided in ordinance No. 290.</p> <p>"Whereas, owing to the condition of the weather and other circumstances, the assigns of Robert J. Crawford have been unable to commence work on said railway, and, whereas, the assigns of the said Robert J. Crawford have deposited with the mayor of the City of Eureka a certified check for five hundred dollars, to be forfeited to the City of Eureka in the event of the failure of the said Robert J. Crawford or his assigns to complete said railway according to the terms of the franchise as granted in ordinance No. 290; therefore :</p> <p>"Section 1. Be it ordained by the mayor and council of the City of Eureka, that the time for commencing work on the said street railway in the City of Eureka according to the terms of the franchise for that, purpose granted, be and the same is hereby extended until the first day of June, 1890.”</p> <p>Before making the extension the council demanded the deposit by the railway company of five hundred dollars as a forfeit in case the terms of the ordinance granting the extension should not then be complied with. This demand was acceded to, the ordinance was passed and deposit made. On June 6, 1891, the railway company assigned the deposit to the plaintiff in error. Trial was had by jury and verdict rendered for the defendant. Defendant in error moves to dismiss this action for the reason that the corporation is dissolved.</p>

<p>Error from Sedgwick Court of Common Pleas. Hon. Jacob M. Balderston, Judge.</p>

<p>1. Telephone — message over, is competent evidence. While a witness may ordinarily testify to a conversation had by him through a telephone with a person, though he is not able to identify the voice of the person responding, yet where it is sought to charge an indorser of a promissory note with liability by a notice of dishonor thus communicated, it must clearly appear that the person responding was the indorser himself; and where the only evidence of the giving of such notice was the testimony of a witness that he called up the office of the indorser and did not know whether or not it was the indorser or his bookkeeper, or either of them, that responded, it is not error to sustain a demurrer to this testimony as furnishing no evidence that notice of dishonor was given.</p> <p>2. Promissory Note — notice to indorser of, must be personal. Where the indorser of a promissory note resides in the same city or town with the party who is to give the notice of dishonor of the note, the rule is that the notice must be given to the indorser personally, or by leaving it at his domicile, or his place of business; and a notice of protest which was sent by mail by the notary public who protested the note, furnishes no evidence as to such personal service. Hume v. Watt, 5 Kan. 34; Curtis v. Buckley, 14 Kan. 449.</p>

Error from Cowley District Court. Hod.. M. G. Troup, Judge. This actiou was brought by plaiutiff iu error agaiust defeudaut iu error to recover ou a check which defeudaut had giveu ou the plaiutiff aud which plaiutiff had certified aud had paid. The electors iu a certaiu towuship iu Cowley Couuty were about to vote upou a proposition to issue bonds in aid of the construction of a railroad.

<p>1. Jurisdiction — over minor children in divorce proceedings is continuing. The jurisdiction of district courts over the guardianship, custody, support and education of minor children in divorce cases is a continuing jurisdiction.</p> <p>2. -district court has, to modify or change former decree affecting minors in divorce proceedings. The district court granting a divorce may, on proper motion and notice, modify or change any order originally made, providing for the custody, support and education of the minor children, whenever circumstances render such change proper.</p> <p>3. Decree — modification of, should commence to operate at date of modification. When an original order in a divorce case is modified, and certain monthly payments required for the support and education of the minor children, such payments should commence at the date of the modification and not from the date of the original decree.</p>

<p>Error from Greenwood District Court. Hon. C. A. Leland, Judge.</p>

Error from Butler District Court. Hon. C. W. Shinn, Judge. These proceedings in error were brought to reverse a ruling of the District Court of Butler County, vacating an order of attachment which had been obtained by plaintiff in error at the commencement of its action against the defendant, F. S. Weeks. , Plaintiff’s petition, which was filed January 31, 1891, alleges : “ That it is now, and at all times hereinafter mentioned was, a banking corporation duly organized and…

Error from Barber District Court. Hon. G. W. McKay, Judge. John P. Snedeger, plaintiff in the lower court, in his petition filed in the District Court of Barber County, claimed that on the tenth day of October, 1889, while employed by the Railroad Company as a section hand, and while engaged in shoveling dirt on its side track‘at Kiowa, Kan., he was injured and damaged by the negligence of the Atchison, Topeka & Santa Fe Railroad Company, its servants, agents, and his…

<p>1. Appellate Jurisdiction — case belonging to excepted classes must be so certified. That the amount or value in controversy exclusive of costs exceeds one hundred dollars, is a jurisdictional question and cannot be inferred ; it must affirmatively appear in the record presented to this court, or the judge trying the case must certify that it is one belonging to the excepted classes.</p> <p>2. Case-made — certificate cannot be withdrawn and neu* certificate made. When a case-made has been allowed, certified, signed, attested and filed as a case-made for the Supreme Court, the judge trying the case cannot of his own motion, without notice, withdraw the case, and add thereto another and different certificate, although the time allowed by the court for the settlement of the case has not expired.</p> <p>3. -settled, signed and certified, district judge has lost control of. When a case-made has been settled, signed and certified by the district judge trying the case, and the same attested and filed as a case-made for the Supreme Court, it has passed beyond his control, and cannot thereafter be amended, altered or changed by any order he may make. Leivis v. Linscott, 37 Kan. 379.</p> <p>4. - certificate must be incorporated in record. The certificate of the judge of the district court, required by section 542a of the Code where the amount involved is less than one hundred dollars, to confer jurisdiction, must be incorporated in the record presented to this court.</p> <p>5. -judge’s certificate confers appellate jurisdiction. Where a case is brought to this court upon the certificate of the judge trying the case that it is one belonging to the excepted classes, the certificate confers jurisdiction, and evidence aliunde the record is not admissible to prove that the amount or value in controversy, exclusive of costs, exceeds one hundred dollars.</p>

<p>1. Pleading — petition indefinite, error to overrule motion to amend. When the allegations of a petition are so indefinite and uncertain that the precise nature of the charge is not apparent, and the defendant is likely to be embarrassed in his defense by reason of the character of such allegations, it is error for the court to overrule a motion of defendant to require the pleadings to be amended.</p> <p>2. Replevin — petition and affidavit in, should specifically describe property. The action of replevin is for the recovery of specific personal property, and the petition and affidavit in replevin should specifically describe the property sought to be replevined.</p>

<p>Error from Comanche District Court. Hon. Francis C. Price, Judge.</p>

Error from Haskell District Court. Hon. Wm. Easton Hutchison, Judge. This action was begun in the District Court of Haskell County to recover on a promissory note and to foreclose a mortgage on real estate securing the same. The note was given by Marshall, plaintiff in error, to Millard, and by him transferred to Murphy. Marshall erected a flouring mill at Santa Fe, Haskell County.

Error from Ford District Court. Hon. A. J. Abbott, Judge. This action was instituted in the District Court of Ford County to recover on a promissory note and for the foreclosure of a real-estate mortgage. The defendants were personally served with summons in Wichita County, Kansas. The summons did not have indorsed on it the amount for which the plaintiff would take judgment if the defendants failed to answer.

<p>Contract — for purchase of land construed and held to be entire. Where G. makes a bond for the sale and conveyance of real property to S. and H. jointly, and thereby binds himself to convey the land to S. and H. on the payment of the purchase money ; held, that a specific performance of the contract cannot be enforced for a conveyance of an undivided one-half of the land, on the payment by one of said parties of the one-half of the purchase price; that the contract is an entirety and is not capable of err forcement until the entire purchase price has been fully paid.</p>

<p>1. Appellate Pkocedube — specification of error must show substance and importance of evidence admitted or rejected. When the error complained of consists in the admission or rejection of evidence, the specification must state the full substance of the evidence admitted or rejected, and such other portions of the record as show its importance, before this^ court will consider the same.</p> <p>2. -no exception saved to instructions, objection thereto waived. Where no exception is taken to the instructions given by the trial court, any objection thereto is waived.</p> <p>3. Evidence Examined — and held to sustain verdict, and that special findings agree tvith verdict. The special findings of the jury in this case are not in conflict with the general verdict and there is'evidence to sustain the general verdict.</p>

<p>Error from Stafford District Court. Hon. J. H. Bailey, Judge.</p>

<p>Error from Finney District Court. Hon. A. J. Abbott, Judge.</p>

<p>1. Appellate Procedure — parties necessary in error, only such as will be prejudicially affected. It is not necessary to a review of a judgment of a district court that all persons who were named as parties in the original action be brought into this court; it is only necessary to bring into this court such parties as will be prejudicially affected by a reversal or modification of the judgment.</p> <p>2. Personal Judgment — on publication notice, void and defendant not necessary party in error. Where the court below renders a personal judgment against a party who was not served with' summons and made no appearance to the action, and the only notice to him was by publication in a newspaper, such judgment is a nullity; and the party against whom such judgment is rendered is not a necessary party in a proceeding in error for a review of the proceedings of the district court.</p> <p>3. Mortgage — description of, in deed indefinite, grantee’s assumption of, not binding. Where W. and wife, being the owners of certain lots in the city of D., executed a mortgage thereon; and afterwards one of said lots, together with other real property in the city of D., is conveyed by Y. and wife, whom the record does not show were grantees of W. and wife or had title by mesne conveyances from them through other persons down to Y. and wife; and there is a clause in the deed from Y. and wife to M. that the property is subject to a mortgage of $625 which the grantee assumes, without specifying what portion of the property is subject to the mortgage, or stating by whom the mortgage is given, or giving any other description of the mortgage, and not showing that the mortgage given by W. and wife is the only mortgage on said property, or what part of the property is subject to such mortgage: held, that the receiving of such deed by M. with such provisions is so indefinite and uncertain as not to make M. liable to pay the mortgage, or subject to a judgment in a suit to foreclose the same.</p>

<p>1. Homestead — record not showing whether ivife’s removal from, ivas temporary or permanent, land remains. Where H. entered a piece of land under the homestead law of the United States, in 1874, and acquired title by patent under such entry and resided thereon continuously with his wife, his two sons and daughter-in-law until 1885, and his wife then removed to another place in the same county, the record not disclosing whether such removal was temporary or permanent, the land still remains the homestead of H. and cannot be alienated without the joint consent of H. and his wife. '</p> <p>2. Mortgage — liability of grantee assuming, depends upon that of his immediate grantor. The liability of a grantee who assumes the payment of a mortgage on land conveyed to him, depends upon the personal liability of his immediate grantor. If the grantor is not so liable, the mortgagee cannot claim any deficiency from such grantee.</p>

Error from Barton District Court. Hon. J. W. Bailey, Judge. This was an action in replevin, brought by Dodge, first mortgagee, against Doolittle Brothers, subsequent mortgagees, bo recover possession of a stock of hardware. The Owings Hardware Company had purchased the property in controversy from Dodge, and given its mortgage to secure the payment of the purchase money.

<p>New Trial — special findings in conflict with evidence, ground for. Where the special findings of the jury are directly in conflict with all the evidence in the case, and are not supported by any evidence, it is the duty of the trial court to set the verdict aside and grant a new trial.</p>

<p>Error from Pratt District Court. Hon. W. O. Ba-shore, Judge.</p>

Error from Kearny District Court. Hon. A. J. Abbott, Judge. This was an action begun by the defendant in error on October 7, 1889, in the District Court of Kearny County, and on the same day summons was issued. On October 9, 1889, the summons was returned not served. On December 27, 1889, the clerk issued another' summons. On the same day it was served and the sheriff made the proper return.

<p>School-district Officers —guaranteeing written instrument, personally liable on: Defendants signed a written instrument, which reads as follows :</p> <p>“ State of Kansas, County of Ford, Twp. of Grandview, Dis. No. 16. Treasurer of School District No. 16, in said Co. and State 15th Jan., 1890, will pay to the Education Aid Association or bearer, the sum of thirty-three and one-third dollars, with interest at ten per cent., out of any money belonging to said district. For 1 Learning to do by Doing.’ Dictionary of Arithmetical Business Methods and Bookkeeping Forms Illustrated, with Cabinet Easel Lock Case. Business Methods and Bookkeeping. Issued by authority of officers of said District and payment guaranteed by, Bert Merbill,</p> <p>W. F. Petillon,</p> <p>“ Officers’ P. O. address, Dodge City. School Officers."</p> <p>Held, to create a personal obligation upon defendants, and that the trial court did not err in sustaining a motion to strike the answer of defendants from the files, where such answer sets up a defense contrary to the express terms of said written instrument.</p>

Original proceeding in habeas corpus. The petitioners, Charles Hess and Reuben Orr, made an application in due form to Hon. B. F. Milton, one of the judges of the Kansas Court of Appeals of the Southern Department, for a writ of habeas corpus.

Error from Stafford District Court. Hon. J. H. Bailey, - Judge. This action was begun by plaintiff in error, in the District Court of Edwards County, and was transferred to Stafford County for trial. Its object was to recover on a note and to foreclose a mortgage on real estate. The defendants in error were not the makers of the note and mortgage, but were made parties because they claimed an interest in the land.

<p>Error from Finney District Court. Hon. A. J. Abbott, Judge.</p>

<p>Error from Ford District Court. Hon. A. J. Abbott, Judge.</p> <p>This is an action upon a forfeited recognizance, brought in the District Court of Ford County, Kan-! sas. ' Walter Hart was arrested, having been charged with the violation of the prohibitory law. The. clerk fixed the amount of his bond at five hundred dollars. . While in the custody of the sheriff he executed a bond in the sum of five hiindred dollars, with himself'as principal and plaintiff in error, R. J. Hardesty, as surety. Upon the delivery of the bond to the sheriff of Ford County, he was released from custody. The conditions of the bond were :</p> <p>“That said defendant shall be and appear before the Judge of the District Court of Ford County, in the twenty-seventh judicial district of the State of Kansas, on the first day of the next term thereof, to answer the State of Kansas on said charge, for said offense, and abide the judgment of said court and not depart the same without leave.”</p> <p>The case was submitted to the court upon an agreed statement of facts, the substance of which is, that Hart appeared on the first day of the term as provided in the bond; his case was set for the next day; he did not appear, and the forfeiture of the bond was taken; on the night of the first day of the term, Hart was served with a subpena to appear forthwith before the United States Court at Wichita, to testify as a witness in a criminal case there pending; he obeyed the subpena, but without asking leave of the District Court of Ford County; when he arrived at Wichita, he immediately applied to the United States Court to be excused from attending there, and gave as his reason that he was under bond to appear iu Ford County, and that the Ford County court was in session; this request was refused and he was detained ; as soon as he was released he returned to Ford County, pleaded to the complaint, was convicted and abided the judgment of the court.</p> <p>Judgment was for the State and defendant below brings the case here.</p>

<p>1. Statement oe Case — demurrer to, should he overruled, when merely insufficient. Where an objection is made to plaintiff’s opening statement of his case to the court and jury on the ground that the same does not state facts sufficient to constitute a cause of action, such objection should not be sustained because of the incompleteness of the statement, but only where it clearly appears that it admits facts which absolutely preclude a recovery; and where an objection of this kind is made to the statement of a case which does not make admissions of the character referred to, and whose lack of fullness is supplied by the allegations of a good petition, such objections should be overruled.</p> <p>2. Case-made — evidence not in record immaterial in this case. Where the court sustained a demurrer to plaintiff’s statement of his case to the jury, and refused to permit plaintiff to introduce any testimony whatever under his petition, this court will consider the petition in error and case-made notwithstanding the latter does not contain the evidence thus offered and rejected.</p>

<p>Error from Pratt District Court. Hon. W. A. Ba-shore, Judge.</p>

Error from Ford District Court. Hon. A. J. Abbott, Judge. This action was brought by the plaintiff in error to recover for publishing in his paper certain legal notices for Ford County, Kansas. His paper had been by the authorities designated as the official paper of the county.

<p>Error from Finney District Court. Hon. A. J. Abbott, Judge.</p>

<p>Criminal Practice — attorney should not refer to faet that defendant did not testify. Where a prosecuting attorney in his closing argument to the jury said, “ If the defendant did not make these sales, why did he not go upon the stand and deny it? ” held, that for such irregularity the defendant, on his motion, should be granted a new trial, and such irregularity on the part of the prosecuting officer cannot be remedied or cured by instructions from the court.</p>

<p>Error from Kearny District Court. Hon. A. J. Abbott, Judge.</p>

<p>Error from Hamilton District Court. Hon. A. J. Abbot, Judge.</p>

<p>1. Demurrer to Evidence — should be overruled where some evidence sustaining every material allegation of petition. Where there is some evidence introduced tending to sustain each material allegation of the petition, a demurrer to the evidence should be overruled, and such evidence is properly submitted to the jury.</p> <p>2. Assignment — cause of action for tort, not assignable even to one already interested. A cause of action arising in tort is not assignable, and the fact that the attempted assignment is made to one who is already interested in the loss, does not take it out of the rule.</p>

<p>1. Railroad Passenger — in this ease not bound upon eviction to go to nearest station. Where a person gets upon a railroad train at a station eight or nine miles distant from his home, and is unlawfully evicted from such train about a mile and a half from said station and about seven miles from his home, at about ten o’clock on a dark, stormy night, with but three cents in his pocket, it is not error for the court to refuse to instruct the jury that said passenger should have returned to the station at which he boarded the train, instead of continuing his journey home.</p> <p>2. Exemplary Damages — not ivarranted in this ease. Where a person whose duty it is to sell railway tickets is temporarily absent from the ticket office, and such office is not open in the manner required by the statutes, so as to permit the charge of excess fare under the statutes then in force, and where the passenger, by reason thereof, has failed to procure a ticket, and is evicted from the train by the conductor upon his refusal to pay the excess fare, which eviction is done in a gentlemanly manner and without any acts of abuse or violence and in the absence of any wanton mistake or malicious motive; held, that there is no such showing of ..gross negligence or of wanton disregard of the rights of the passenger as will entitle him to recover exemplary damages.</p> <p>3. Province op Jury — to decide what facts have been proved. It is the province of a jury to decide upon what facts have been proven, but not to decide upon what an admitted fact tends to prove.</p> <p>4. Damages, Practice — certain elements of damage not necessarily subdivided. Where a person is entitled to recover for physical pain and for such mental pain and suffering as grow immediately out of, or result directly from, the physical pain he endured, there is no good reason for requiring these elements of damage to be divided into minor subdivisions; but where they have been so divided in answer to questions propounded by the plaintiff in error, the court commits no error in refusing to eliminate from the judgment the award made for mental suffering, the result of physical pain.</p>

<p>1. Statute oe Limitations — must be pleaded. The question of statutory bars is a matter of defense, and, unless the pleadings show upon their face that the cause of action cannot be maintained, they must be specially pleaded.</p> <p>2. Pleading — pleader bound by allegations most strongly against him. Where allegations in the answer are inconsistent with each other, the defendant is bound by those against him. Bierer v. Fretz, 32 Kan. 329.</p> <p>3. -filing amended answer in discretion of the court. Permission to file an amended answer ,is a matter largely in the discretion of the trial court, and there is no abuse of discretion in this case.</p>