Volume 57 — Kansas Reports

Error from Wyandotte District Court, lion. O. Ij. Miller, Judge. STATEMENT BY THE COURT. This action was brought by John Plannon against the defendants in error to recover possession of the undivided half of a tract of 166.95 acres of land adjoining the city of Argentine, in Wyandotte county, in the possession of the defendants, and rents and profits thereof received by them. The defendants denied that the plaintiff had any • title thereto.

<p> Error from Pawnee District Court. </p> <p>Hon. ,S. TF. Vandivert, Judge.</p>

<p> Error from Geary District Court. </p> <p>/Ton. James Humphrey, Judge.</p>

Error from Harper District Court. Non. O. W. McKay, Judge. STATEMENT BY THE COURT. On December 15, 1891, the Anthony Salt Company filed its petition against J. R. Harris, as sheriff, to enjoin him from selling a quarter-section of land which had been advertised for sale to satisfy a judgment in favor of Mary H. and R. J. Simpson against W. PI.

Error from Mitchell District Court. Hon. Gyrus Heron, Judge. STATEMENT BY THE COURT. This was an application to the district court of Mitchell county by certain creditors to require W. T. Branch, as assignee of the Security Investment Company, to distribute funds of the assigned estate in his hands among them, and to exclude certain other creditors, whose claims had been allowed by the assignee, from participating in the distribution.

Error from Osage District Court, lion. William Thomson, Judge. STATEMENT BY THE COURT. Frank Love had been employed for about 2£ years as a brakeman by the defendant company. On August 1, 1891, he was employed as rear brakeman on a freight-train making a night run from Argentine to Emporia. He had been running on this line of road but a short time, this being his fifth trip going west, or, as the jury find, his ninth time over the road as his regular run.

Error from Butler District Court. Mon. C. W. Shinn, Judge. STATEMENT BY THE COURT. ' On December 1, 1890, John B. Finnegan, one of a gang of men employed by the plaintiff in error to relay its track with steel rails from a distance north of Augusta to that place, was seriously injured by falling off a derailed hand-car and being run over by another which was following it.

<p>1. Promissory Note — Liability of Surety. A surety who signs a note blank as to date, amount, and payee, and intrusts it to the principal, who fills out the blanks, and for a larger sum than the surety understood was to be inserted, and then delivers it to the payee, who takes it without notice, will generally be held liable for the note as the payee took it.</p> <p>2. -Extension— Surety Discharged. If a creditor, without the knowledge and consent of the surety, makes a valid agreement with the principal extending the time of payment of the debt for a definite period, the surety will be discharged.</p> <p>3. -Extension — Sufficient Consideration. The giving of a real-estate mortgage to secure the debt by the principal is a sufficient consideration for an agreement to extend the time of payment.</p> <p>4. - Collateral Security. The mere fact that the creditor takes a collateral security, maturing at a later date than the debt for which the surety is liable, does not necessarily imply an extension of the time of payment.</p> <p>5. -Agreement to Extend— Question for Jury. Where á mortgage is given by the principal to secure a past-due debt, without the knowledge or consent of the sureties, and it contains stipulations giving color to the claim of the sureties that it was the intention to tie the hands of the creditor and suspend all remedies on the note for a definite period of time, and there iff oral testimony to the like effect, the question whether such an agreement to extend the time of payment was made as would rer lease the sureties from liability should be submitted to the jury for its determination.</p>

Error from Leavenworth District Court. Hon. Robert Crozier, Judge. STATEMENT BY THE COURT. The plaintiff, Ella B. Hatch, a resident of Kansas City, was visiting the family of Mr. Vantuyl, in Leavenworth, in the last of July, 1891. . A portion of Fourth street in the city, which had been macadamized, was out of repair, and it became necessary for the city to place more broken stone in the places where it had become worn.

Error from Wyandotte District Court. Son. Senry L. Alden, Judge. STATEMENT BY THE COURT. Silas Armstrong, Joel Walker, W. Y. Roberts, Gaius Jenkins, John McAlpine, Thomas H. Swope, and Isaiah Walker, on December 9, 1856, entered into articles of association under the name and style of the Wyandotte City Association, for the purpose of purchasing a certain portion of land at the confluence of the Missouri and Kansas rivers, as a town site.

Error from Shawnee Circuit Court. Son. J. B. Johnson, Judge. STATEMENT BY THE COURT. Held: but the appraisers failed to agree. On the 3d day of January, 1891, a. notice, signed by the railroad company by A. A. Robinson, second vice-president and general manager, was addressed and delivered to Messrs.

Error from Brown District Court. Son. J. P. Thompson, Judge. STATEMENT BY THE COURT. The plaintiff commenced lier action against the defendants on January 16, 1890, to quiet her title to the west half of lot 89, on Oregon street, in Hiawatha.

<p>1. Guardian and Ward — Judicial Sale— Collateral Attack. A collateral attack upon a judicial proceeding in a probate court, under which, a sale of land was made by a guardian more than 15 years before, will not be favored.</p> <p>2. ----Judicial Sale —Notice Held Sufficient. In the matter of the sale of the land of minors upon the application of a guardian, it is competent for the probate court to determine from the evidence submitted whether due and legal notice has been given to the minors; and in the present case it is held that the notice was sufficient to confer jurisdiction upon the probate court, and that the proceedings are not void.</p> <p>3. --Judicial Sale —Immaterial Omission of Name. Where a sale of the land of minors was duly made by a guardian for the actual value of the same, the sale approved, the money paid and expended for the support and education of the minors, and the purchaser takes possession thereunder and holds the same for a long time, he acquires the full equitable title and is entitled to a conveyance of the legal title; and the mere fact that a deed which contains a full recital of the preliminary proceedings omits the name of one of the minors will not invalidate the sale, and in such case the purchaser or his grantee is entitled to have his estate, interest and possession in the land quieted as against the claims of any of the minors.</p>

<p>1. Insurance — Action on Policy — Pleading—Concurrent Insurance. In an action on a policy of insurance, by the terms of which concurrent insurance is allowed, and where it is provided in substance that in case there is concurrent insurance the loss shall be prorated between the companies issuing the different policies, and that the defendant company shall also be entitled to the benefits of limiting clauses in the policy issued by the other company, where the plaintiff in fact takes a policy from another company, it is not necessary that he should allege in his petition that he holds the other policy, or set up its provisions; it is for the defendant, by its answer, to avail itself of any defense it may have by reason of such co-insurance.</p> <p>2. -Arbitration — Inoperative Provisions in Policy. Provisions in a policy of insurance that, “in case of failure to agree, the damage shall be appraised on each article by disinterested appraisers mutually agreed upon,” and “that, in case differences shall arise touching the amount of any loss or damage, it shall be submitted to the judgment of arbitrators mutually chosen, whose award in writing shall be binding on the parties,” and that no action against the company shall be sustained unless an award, as provided, shall first have been returned, are inoperative when no arbitrators are agreed upon, and do not make arbitration a condition precedent to the plaintiff’s right of recovery, because they are indefinite, provide no means for determining the number of arbitrators, or mode of selecting them, and place it in the power of either party, by refusing to agree to any selection made by the other, to prevent an arbitration.</p> <p>3, -----------Proofs of Loss — Policy Construed. Where a policy of insurance makes the loss payable 60 days after proofs thereof are furnished, and provides fully what such proofs shall contain, and then requires the defendant to furnish duplicate bills of goods purchased, only if required by the insurer, such duplicate bills are not a part of the proofs of loss, and the 60 days begins to run from the time the original proofs are delivered to the company.</p>

Error from Greenwood District Court. Mon. C. W. Shinn, Judge. STATEMENT BY THE COURT. On December 19, 1891, T. E. B. Mason sold to Alexander McLeod the right to manufacture, sell and use a patent for an improvement in pruning-hooks in the undivided half of the state of Texas.

Error from Decatur District Court, Hon. G. Webb Bertram, Judge. STATEMENT BY THIS COURT.

Error from Barber District Court. Hon. Gr. W. McKay, Judge. STATEMENT BY THE COURT.

Error from Franklin District Court. Hon. A. W. Benson, Judge. STATICMICNT BY THE COURT. Action brought by Joseph Dicklow on February 24, 1892, against his daughter, Adelaide L. Dicklow, who was administratrix of the estate of her brother, F. M. Dicklow, and F. O. Pletrick, A. Willis, and E. M. Sheldon, who were sureties upon her bond as adminis.tratrix.

<p> Error from Sedgwick District Court. </p> <p> Son. C. Beed, Judge. </p> <p>STATEMENT BY THE COURT.</p> <p>On the 25th day of November, 1891, F. Cannon and H. Kemper, partners under the name of F. Cannon & Co., brought suit in the district court of Sedgwick county against W. J. Corner and H. R. Farnum, partners as Corner & Farnum, to recover the sum of $1,116 for goods sold and delivered. At the same time an affidavit was filed for the purpose of having the Wichita National Bank and W. M. Levy summoned as garnishees. The bank, by Levy as its president, answered, denying that it held any property of or was indebted to Corner & Farnum. The plaintiffs thereupon gave notice that they elected to take issue on the answer of the garnishee. Afterward an amended answer -was filed by the bank, by leave of court, also denying any indebtedness to Corner and Farnum, but stating that it had money in its possession in excess of the amount that was due it on notes secured by chattel mortgage executed to the bank by Corner & Farnum, but that the money it so held was due to W. S. Corbett, as assignee, under an assignment made by Corner & Farnum to him on the 2d day of July, 1891. Afterward Corbett made application for leave to interplead, which was granted, and he thereupon filed an interplea, alleging that on July 2, 1891, W. J. Corner, PI. R. Farnum, and W. 13. Planscome, composing the firm of Corner & Farnum, made an assignment for the benefit of their creditors and conveyed all their property to him; that he was afterward duly chosen assignee by the creditors of Corner & Farnum, accepted the trust, and qualified according to law; that the bank had in its possession the sum of $5,511.93 belonging to him as such assignee, and asked an order that the bank pay said sum to him. A copy of the deed of assignment was attached to the interplea. It was executed by W. J. Corner and H. R. Farnum only. Cannon & Co. answered the interplea, denying that Corbett had any authority to act as assignee. The case was tried by the court without a jury.</p> <p>It appeared in evidence that on the 3d day of July, 1888, Corner, Farnum andHanscome formed a limited partnership to terminate January 1, 1889, with Corner and Farnum as the general partners, and Hanscome a special partner, contributing $10,000 to the stock. At the expiration of the time limited, the partnership was renewed for another year, and again on the 1st day of January, 1890, it was renewed until the 1st day of January, 1891. Due notice was published of each certificate. On the 1st day of January, 1891, a certificate again renewing the limited partnership for another year was made and acknowledged by all the partners, but no publication thereof was made as required by the statute. The assignment was executed by Corner and Earnum alone on the 2d day of July, 1891, acknowledged by them, and recorded in the office of register of deeds on the same day. A meeting of the creditors was held on the 81st day of July, 1891', at which Corbett was elected assignee. He thereupon accepted the trust and duly qualified. The court held the assignment invalid, and rendered judgment against the interpleader for costs. He alleges error and brings the case here for review.</p>

<p>1. Extradition — Waiver. A person against whom a warrant has been issued by a magistrate of the state, and who is outside of the limits of the state, may waive the issuance of extradition papers, and voluntarily sun'ender himself to the jurisdiction of the courts of the state.</p> <p>2. - Voluntary Surrender to Jurisdiction. Where such a warrant is placed in the hands of a sheriff of the state, who meets the person charged beyond the limits of the state and informs him that he has been charged with an offense and that he has a warrant for his arrest, which is distinctly read to him, and such person then accompanies the officer into the state without objection or resistance, and pleads to the charge, knowing full well when he starts with the officer that they are outside of the state of Kansas, that the sheriff is a Kansas officer, and that the warrant has been issued by a Kansas magistrate, the officer using no force and practicing no deception, the trial court does not err in holding that he came into the state voluntarily, and that the court acquired jurisdiction of his person.</p> <p>3. Triad— Statement to Jury. An oral statement made by the judge to the jury after the case had been submitted to them, in which he admonished them that it was important that they should agree upon a verdict, and directed their return to the jury-room to make another effort to that end, examined, and held not to constitute prejudicial error.</p>

Hon. Ansel B. Clark, Judge. STATEMENT BY THE COURT. A complaint was filed before J. IT. Jennison, a justice of the peace of Barton county, of which the following is a copy : “State of Kansas, Barton county, ss.

<p> Error from Jefferson District Court. </p> <p> Non. Robert Crazier, Judge. </p>

<p>Injury at Crossing — Contributory Negligence — Demurrer to Evidence. A one-horse buggy, driven by a lady, was struck by a train at a highway crossing, the horse killed, the buggy broken, and the lady injured. In an action against the railway company to recover damages for personal injuries sustained by her, she testified that she knew the train was about due, and, within a distance of 100 feet from the track, she looked and listened for it three or four times, and the last time stopped, looked, and listened ; that she looked along the track to the whistling-post, 80 rods distant, but saw nothing of the train, and did not see it until struck, although the buggy top was down. The court sustained a demurrer to the evidence. Held, that her testimony contradicts itself, for, if she looked along the track for the train, she must be chargeable with knowledge of its coming, for it was in plain view, and the court did not err.</p>

Error from Atchison District Court. Hon. Robert M. Eaton, Judge. STATEMENT BY THE COURT. This was an action by William H. Penfold, who was employed by the Atchison, Topeka & Santa Fe Railroad Company at Atchison as switchman, to recover damages for personal injuries suffered by him through the alleged negligence of the company. On April 9, 1889, while in the performance of his duties, he undertook to go down the ladder on the side of a Missouri Pacific car.

Error from Osage District Court. Hon. William Thomson, Judge. STATEMENT BY THE COURT. On June 23, 1891, Frank B. Henry, a locomotive engineer in the service of the Atchison, Topeka & Santa Fe Railroad Conrpany, came to his death in Ellsworth county by reason of a collision of his engine with, a Deering harvester-binder, which became fast upon the highway crossing on the section line between sections 31 and 32, in' township 17, range 8.

<p> Error from Kingman 'District Court. </p> <p> Son. S. W. Leslie, Judge. </p>

<p>1. Injury to Child — Evidence Insufficient. A child about three years old was injured by a freight-train which had been standing near the home of the child for some time prior to the injury, and brought an action against the railroad company to recover, for the injury, alleging that proper precautions were not taken to prevent the same. No one saw the injury inflicted, and the testimony did not show how the child came to be near the track or what its position was immediately prior to the injury. Held, that the evidence was insufficient to sustain the verdict.</p> <p>2. -: Negligence of Parents. In an action for negligent injury brought by an infant, too young to be charged with contributory negligence, for his own benefit, the negligence of the parents, if any, cannot be imputed to the infant.</p> <p>3. -Financial Condition of Parties. It is not proper for the court in charging the jury to call attention to the financial circumstances of the parties to the action where their condition has no bearing upon the care to be exercised and cannot affect the measure of recovery of the plaintiff.</p> <p>I. -Improper Instructions. It is improper to charge the jury upon grounds-of recovery, where the testimony does not support such grounds.</p>

<p> Error from, Wyandotte District Court. </p> <p> Son. B. JE Johnston, Judge pro iem. </p>

<p>1. Mortgage — grantee assuming, cannot deny validity of, or of note. A purchaser who, by the terms of a conveyance of land to him expressly assumes the payment of a mortgage on the property conveyed, is estopped from questioning the validity of the mortgage itself or the notes which it secures.</p> <p>2. Parol Evidence — not admissible to change settled meaning of words in writing. Parol evidence is generally inadmissible for the purpose of showing that words used in a written instrument, which have a clear and well settled meaning, were not intended to have the legal effect ordinarily following their use.</p>

<p>Agency, Estoppel — agent's authority, not deniable by principal retaining benefits of transaction. A principal cannot receive and retain tke benefits of a transaction and at the same time deny the authority of the agent by whom it was consummated.</p>

<p>1. Poverty Appidavit — statute applies to infant plaintiffs. The statute which dispenses with giving security for costs where the plaintiff, having a just cause of action, is shown by affidavit to be unable to give such security for costs, applies to infant plaintiffs as well as to adults.</p> <p>2. Statute op Limitations — two years as to personal injuries, no applieation to infants. A cause of action in favor of an infant for personal injuries sustained may be brought at any time during infancy, and will in no event be barred by the two-year limitation until one year after the disability of infancy has been removed.</p> <p>3. Pact Assumed on Trial — by court and parties, assumed on error. Where a case is tried throughout by the Court and the parties upon the theory that a certain thoroughfare is a public street or highway, it is too late to object in an appellate court that no specific proof was offered that it was regularly established as a highway.</p> <p>4. Parol Evidence — that conduct violated city ordinance, incompetent. The statements of a witness that the act of the Railroad Company in leaving its train standing across the street was a violation of a city ordinance was incompetent. The existence of the ordinance should have been shown by the records of the city.</p> <p>5. Evidence Insufficient — to show negligence. At a street crossing, a boy 11 years of age attempted to climb over the couplings between freight ears of a railroad train, standing across the street, to which a locomotive was attached, steamed up and ready to move; and while between the cars the train was started in such a way as to crush his foot, for which a recovery of damages is. sought. Upon an examination of the testimony it is held that it is insufficient to show that those in charge of the train had knowledge of • the peril of the boy or that he or any one else was then between the cars; and, further, that it is insufficient to show that the injury was willfully or wantonly inflicted.</p>

Error from Cowley District Court. ITon. M. Q. Troup, Judge. This action was brought by George P. Muret against the Union Park Land Company and L. E. Holcomb.

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

Error from Sherman District Court. Hon. Charles W. Smith, Judge. This was an action of replevin commenced by R. L. McDonald & Co. against W. B. Swisher, who was coroner, acting in the capacity of sheriff, to recover a stock of goods valued in the petition and in the affidavit at the sum of $5,500, in a building at Goodland.

<p>Homestead — exchanged for lands to be used in buying new homestead; title conveyed to another to avoid judgment liens —not fraud on judgment creditors. J., a judgment debtor, and the head of a family, owned and occupied a home at Eureka. Desiring to change his place of residence to Fort Scott or Wichita, he traded the home for 320 acres of land subject to an incumbrance of $2,000, not intending to occupy the land, but to effect a loan upon it to pay off the incumbrance and obtain sufficient means, together with the proceeds of the sale of the equity of redemption, to purchase another home. He applied to F., a loan company, whose officers were fully informed of the facts, and they advised him to have the deed to the land taken in the name of W., his son, so that the judgments would not appear to be liens upon the property, and a loan of $3,000 would be made to W., and .this was accordingly done. F. discharged the incumbrance, and paid the balance of the money to J. W. conveyed the equity of redemption. Held, in an action to subject the land to the payment of the judgments against J., that the transaction was not a fraud upon the judgment creditors, and that they had no right to complain as against F. and its assignees.</p>

<p>Homestead — entire parol agreement to exchange, and other property, wife refusing assent, void even as to chattels. Where a parol agreement is made to exchange real property of the plaintiff for the homestead and other real property of the defendant and a stock of merchandise, to which the defendant’s wife refuses to assent, the contract, being entire, is void not only as to the land but also as to the merchandise, and the plaintiff cannot maintain an action to recover the merchandise from the defendant.</p>

Error from Bourbon District Court. Hon. S. H. Allen, Judge. The original action was brought by B. F. Holmes and Una Holmes against Elizabeth E. Huffman and Matilda Gray for the partition of certain real estate of which Adam Huffman died seized, the same not being necessary for the payment of debts. Adam Huffman married Sophronia Gray, daughter of B. W. and Sarah Gray, in 1860. William H. Huffman ivas born in July, 1861, the only child of said marriage.

<p>1. Mechanic’s Lien — persons contracting directly with ownerr original contractors. Where a hotel was erected as a single-project, and the owner contracted with several persons for labor and material which were used in the construction of the building, such persons will be regarded as original contractors, and, under the Mechanic’s Lien Law of 1872, the time for filing their lien statements is reckoned from the completion of the building.</p> <p>2. - time for filing — law changed before prior law permitted filing, lienor has reasonable time after new law takes effect. Some time after the labor and material were furnished, but before the completion of the building, the Mechanic’s Lien Law of 1889, which took effect March 1 of that year, was enacted, and it provides that lien statements shall be filed within four months-after the date upon which the material was last furnished or labor last performed. Held, that, as the right to file the lien statements had not accrued when the law of 1889 went into operation,, the claimants were entitled to a reasonable time after the passage-of that law within which to file such statements ; and such reasonable time cannot be extended beyond the statutory limitation of four months.</p> <p>3. -promissory note in lieu of statement, law permissive only. The provision authorizing the filing of a promissory note taken by a lien claimant in lieu of an itemized statement is permissive rather than compulsory, and the filing of an itemized statement even where a note has been taken will be deemed to be a substantial compliance with the law.</p> <p>4. -statement filed prematurely under old law and before new law in force, ineffectual. One of the claimants filed a lien statement before the building was completed or the law of 1889 had taken effect. Held, that it was prematurely filed and was not sufficient to create a lien.</p> <p>5. -record clearly showing lien claimed on entire premises, finding that it was claimed on part only not controlling. A finding of the Court that one of the parties claimed a lien only upon two of the three lots upon which the building was erected will not be deemed to be controlling where it appears from the record, beyond any doubt, that a lien was claimed upon the entire premises.</p>

Error from Wyandotte District Court. Hon. Henry L. Alden, Judge. James M. Russell brought suit against the Western Union Telegraph Company, to recover damages, because of its failure to promptly deliver to him the following message: “Carrier Mills, III., October 13, 1889. “To J. M. Russell, Edgerton Place in Passfield Addition, Kansas City, Mo. : Don’t think mother will live till morning. Come at once.

Error from Court of Appeals, Southern Department. J. R. Griffith commenced this action in the District Court ofJESumner County, alleging in his petition that he was the legal and equitable owner in fee simple and in possession of 80 acres of land therein described ; that Albert A. Richards, the defendant, claimed the title thereto, under an instrument purporting to be a patent signed by the Governor of the State of Kansas, but that there was no authority for the issuance of…

<p> Original Proceeding in Mandamus. </p>

Son. Wm. Easton Sutehison, Judge. The information in this case contains two counts. The first charges the defendant with haying assaulted and stabbed R. P. Ross, with a deadly weapon, on purpose and of malice aforethought, with intent to kill him. The second count charges that he unlawfully and feloniously assaulted said Ross and stabbed him with a knife — a deadly weapon — whereby said Ross was wounded and received great bodily harm.

<p> Appeal from Kingman District Court. </p> <p> Son. Gr. W. MeSay, Judge. </p>

Error from Labette District Court. Hon. A. II. Skidmore, Judge. On June 15, 1893, Angelí Matthewson and F. H. Snyder, who were engaged in the business of banking and dealing in loans on real estate, as partners, made an assignment of their partnership and individual properties to Clinton L. Caldwell for the benefit of their creditors. Caldwell was afterward elected assignee by the creditors, and duly qualified and undertook the execution of the trust.

Error from Shawnee District Court. Hon. Z. T. Hazen, Judge. This was an action by the State on the relation of the Attorney General against the Board of County Commissioners of Shawnee County to enjoin the Board from issuing or selling the bonds of the County Amounting to $150,000, voted for the purpose of procuring funds to construct a bridge across the Kansas River in the city of Topeka.

<p>Motion to Vacate Void Judgment — fatally defective affidavit for constructive service, not error to refuse leave to file neiv. Where a divorce was granted to the husband by default, as upon service by publication, and the only affidavit ,on file was apparently intended to combine in one the facts required to be stated by sections 73 and 641, respectively, of the Civil Code, but was fatally defective as to section 73, and the appearance docket referred to one affidavit only, and there was no evidence that any other had ever been made or filed, the Court did hot err in refusing leave to file another affidavit upon the hearing of a motion to. vacate the decree, or in sustaining said motion, or in dismissing-the case, when regularly reached for trial, on the failure of the plaintiff to offer evidence in support of his petition.</p>

<p>Principal and Agent — ratification of unauthorized, purchase of land, ratifies mortgage given for purchase money. One who accepts the benefits of a contract, made without authority in his behalf, after being fully informed of all its terms, must also accept the burdens imposed on him by the contract; and where C. without authority purchases and has conveyed to M. a tract of land for which a part of the purchase price is paid in cash and a mortgage is executed for the unpaid balance in the name of M., by C. as his attorney in fact, if the grantee accepts the deed and retains the land, he must also accept the mortgage for the unpaid purchase money.</p>

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

<p>Pleading and Practice — petition alleging bond in certain sum, finding it was altered from different sum defeats recovery. In an action on a cost bond where the plaintiff alleges that the penalty of the bond as executed was $2,500 and asks a recovery of that sum, and it is shown on the trial and found by the jury that the bond, as originally executed, was in the penal sum of $1,500 only, no recovery can be had without an amendment of the pleadings, so as correctly to describe the instrument sued on as it was in fact executed. The fact that the alteration was by a stranger to the instrument, without the knowledge or consent of the plaintiff, does not relieve the plaintiff of the necessity of correctly describing in his petition the instrument on which he seeks-a recovery.</p>

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

Error from Wyandotte District Court. Ifon. Henry L. A Iden, Judge. In 1887, Thomas J. Payne commenced, and, in 1889, completed, the erection of a fine dwelling house at Argentine. On November 8, 1888, the plaintiff in error issued a policy of fire insurance thereon for the sum of $4,000, to run for three years. Policies were issued by three other companies aggregating $15,000. The house was destroyed by fire about 2 o’clock on Sunday morning, May 3, 1891.

<p> Error from Greenwood District Court. </p> <p> Hon. G. W. Shinn, Judge. </p>

Error from Cloud District Court, lion. F. W. Siurges, Judge. Ti-ixs action was brought by C. W. Van De Mark against Edward Marshall, Sheriff of Cloud County, and others to recover the value of a stock of merchandise, claimed by the plaintiff as assignee of Mottin Brothers, which had been taken from the plaintiff’s possession by the-Sheriff under divers writs of attachment issued against Mottin Brothers'.

Error from Osage District Court. IJon. William Thomson, Judge. On October 24, 1890, at about 1:42 p. m., the westbound passenger train of the plaintiff in error was derailed and wrecked a short distance before reaching the depot at Wakarusa in Shawnee County,— the road at that point running nearly north and south.

<p>1. Landlords Lien — on crops exists independently of seizure under process. The statutory lien given a landlord upon the crops grown or made upon a rented farm exists independently of a seizure upon attachment or other process.</p> <p>2. -neither recording of lease nor writing requisite to create. No writing is required to give force to a landlord’s lien, nor is the filing or recording of the contract of lease a prerequisite to the creation of such lien.</p> <p>3. -paramount to claim of purchaser from tenant, of crop still on rented land. Where a landlord’s lien upon a crop has not been waived, relinquished, lost, or otherwise divested, it is paramount to the claim of one who purchases the same while it is in the possession of the tenant upon the leased premises.</p>

<p> Appeal from Geary District Court. </p> <p> Hon. O. L. Moore, Judge. </p>

<p>1. General Conclusion oe Law — supported by findings, not controlled by independent specific conclusions. Where a case ' comes before a reviewing court on conclusions of fact and of law ' only, a conclusion of law properly deducible from conclusions of fact, although general in its nature, ought to be regarded notwithstanding there are other independent conclusions of law more specific in character.</p> <p>2. Tax Deed — voidable if printer’s fee included when affidavit not transmitted within If days after last publication. A tax deed including a fee for printing the sale notice is voidable if the printer’s affidavit of publication was not transmitted to the county treasurer within 14 days after the last publication, although it was transmitted to and filed in the office of the county clerk within that time.</p>

Original Proceeding in Mandamus. The following facts appear from the alternative writ of mandamus and the answer thereto : That at a National Convention of delegates of the People’s Party, held in July, 1896, William J. Bryan was nominated for President and Thomas E. Watson for Vice President; that, afterward; in August, 1896, a State Convention of said party, held at Abilene, indorsed said national nominations, and 10 candidates were nominated as electors for President and…

<p> Error from Bourbon District, Court. </p> <p> Son. J. S. West, Judge. </p>

<p>1. Mandamus — not issued where plain, adequate, ordinary remedy. Courts are not bound to award writs of mandamus where there is another plain and adequate remedy in the ordinary course of law.</p> <p>2. -not substitute for adequate statutory remedy. An owner against whose city property a special assessment was irregularly made for the grading of a street failed to avail himself of the statutory remedy provided for such cases, and made no objection for more than two years after an objection might have been made, nor until after a large part of the assessments had been paid, when he made a demand for a reapportionment of the entire cost of the improvement and asked for a mandamus to compel the same; held, that he was not entitled to the writ.</p>

Error from Sedgwick District Court. Hon. O. Reed, Judge. On and before June 6, 1890, Charles T. Champion was engaged in the wholesale and retail book and stationery business at Wichita.

<p>1. Fraud —finding of in chattel mortgage sustained. Held, that the evidence supports the findings in this case.</p> <p>2. - on issue of, mortgagor's contemporaneous fraudulent acts and declarations admissible though unknown to mortgagee. On the trial of the question as to the validity of a mortgage claimed to be fraudulent as to the creditors of the mortgagor, fraudulent acts and declarations of the mortgagor made contemporaneously with or prior to the execution of the mortgage may be shown. The fraudulent purpose of the mortgagor being shown by competent evidence, knowledge of or participation in his fraud by the mortgagee may then be proved by any competent evidence, and it is not necessary to show that the mortgagee had notice of each particular fraudulent act or attempt of the mortgagor.</p>

Error from Brown District Court. Hon. J. F. Thompson, Judge. On April 27, 1891, the plaintiff commenced her action against the defendant to recover damages for personal injuries alleged to have been sustained by her on December 6, 1890, at Leona, Kansas, in alighting from defendant’s train, the principal allegation of. negligence being that the train was started before she had time under the circumstances to get off.

Error from Rbley District Court. Hon. JR. B. Spilman, Judge. This action was brought by George Storch against A. B. Dewey to recover a balance claimed by him to be due on two promissory notes executed by the defendant. One of the notes reads as follows : — “$9,213.30.

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

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

Error from Franldin District Court. Hon. A. W. Benson, Judge. This was an action brought by L. Simon & Co. to subject certain lands in Eranklin County to the pay-merit of a judgment rendered in their favor against R. N. Shanks. The action was tried by the court, and the following special findings of fact were made : “1. On and for several years prior to May 1, 1891, the defendant, R. N. Shanks, was a retail merchant in business at Clarence, Missouri.

Error from the Gowrt of Appeals, Southern Department. The original action was commenced in the District Court of Franklin County by Rohrbaugh to recover damages for a breach of the covenant of warranty contained in a deed of real estate executed by George W. Hamblin and wife December 13, 1879. George W. Hamblin died testate leaving all his property to the defendants as his legatees.

<p>1. Circumstantial Evidence — of homicide examined and conviction sustained. The defendant was charged with the murder of his wife, whose body, with a bullet hole through the head and a pistol near the hand, was found in the cellar. The State mainly relied on circumstantial evidence, as no witness saw the wound inflicted. His relations with her had been unpleasant, and there is testimony that he held illicit relations with a daughter of the deceased by a former husband and wanted to be rid of his wife so that he might marry and live with the daughter. The wife had discovered the relations between her husband and daughter and was contemplating a prosecution. She was much troubled about the conduct of her family; and the theory of the defense was that she took her own life. The trial resulted in a conviction, and upon an examination of the testimony it is held to be sufficient to sustain the verdict.</p> <p>2. Firearms Expert — may testify results of experiments with weapon. The hair around the bullet hole was not singed, nor were there any powder marks on the flesh, and it is claimed that, if she had fired the pistol, it was necessarily close to her head and the hair would have been singed and the flesh powder-marked. A witness experienced in the use of firearms who had conducted experiments by shooting at human hair and a paper target with the pistol with which the deceased was killed and with cartridges similar to those found therein at distances ranging from 6 inches to 10 feet, was permitted to testify as to the effects resulting from the shooting upon the hair and also as to powder marks. Held, that the testimony was admissible.</p> <p>3. Medical Expert — may give opinion from appearance of wound as to distance whence shot fired. A medical expert, qualified by study and experience, who examined the body of the deceased shortly after the wound was received, may give his opinion as to whether it was produced by'a near shot or one fired from a distance.</p> <p>I. Instructions — improper remark in, jury not misled, not reversible error. An erroneous remark in an instruction inadvertently made by the court which evidently did not mislead the jury is not a ground of reversal.</p> <p>5. Indictment or Information — accused in custody when filed, triable same term. If the defendant appears or is in custody at the term at which an indictment or information is found, the case is triable at that term, unless continued for cause, although he may have been arrested and his preliminary examination had after the commencement of that term.</p> <p>6. Continuance — no reversal for refusing unless discretion abused. An application for a continuance of a cause rests largely in the discretion of the trial court, and unless there has been an abuse of discretion the refusal of a continuance will not ordinarily be ground for a reversal.</p> <p>7. Question to Witness — intended to elicit material facts, purpose not apparent nor disclosed, not error to sustain objection to. -As the manner of death of the deceased could not be established by direct evidence, and as some of the circumstances of the case were not inconsistent with suicide, the declarations of the deceased shortly before her death evincing an intention to commit suicide were admissible; but, as the question asked did not indicate that such evidence was desired and the court was not informed what was intended to be drawn out by the inquiry, overruling the same was not error.</p> <p>8. Declarations — accused cannot prove his oiun self-serving, to third person. A conversation between the defendant and another which is in the nature of a self-serving declaration, was properly excluded from the jury.</p> <p>9. Objection to Evidence — ground not stated, not error to overrule. Where evidence is admitted over the objection of a party, but the grounds of the objection are not stated, no error is committed in overruling it.</p>

<p>1. Appeal — from police court, bond running to city instead of state, valid. A recognizance given upon appeal from a conviction in the police court in a city of the first class for the violation of a municipal regulation may be executed to the city.</p> <p>2. - bond referring to sufficient complaint, not void for not definitely describing offense. Such recognizance is not absolutely void because it fails to definitely designate the offense for which a conviction was had, where it refers to the complaint which was transmitted with the recognizance and sufficiently describes the offense.</p> <p>3. Pawnbrokers — eity of first elass may require to keep, and furnish to police, record of purchases Under the provisions . of ¶ 555, Gen. Stat. 1889, a city of the first class has authority to enact ordinances for the regulation o£ the business of pawnbrokers; and to that end may require them to keep and furnish to the police department a record of property purchased or received by them as pawnbrokers, as well as a description of the persons from whom the property was purchased or received.</p> <p>4. Proviso — not part of definition of offense, complaint need not negative. In a clause of such an ordinance distinct from the one defining the offense there was a proviso to the effect that it is unnecessary to furnish a description of property purchased from manufacturers or wholesale dealers who have an established place of business, or which has been purchased at an open sale. Held that, the proviso being in a subsequent clause and not incorporated in the definition of the offense, it was unnecessary to negative it in the complaint.</p>

<p>1. Taxation — location of property in specific taxing district essential. As the amount of taxes chargeable against personal property depends to a great extent upon the city, township or school district in which it is assessed for taxation, it is essential that such property be entered upon the proper roll and that a location as well as a valuation of the same shall be made.</p> <p>2. -entering omitted property for, without notice to the tax-payer, void. Personal property not returned by the assessor was entered for taxation by the County Clerk on the tax-rolls under the provisions of § 70 of the tax law, but notice to the taxpayer was not given as § 70 requires. Held, that the tax is illegal and that the collection of the same may be enjoined.</p>

Son. F. L. Martin, Judge. The defendant was charged with murder in the first degree by shooting and killing Thomas Mullen on December 5, 1895, at Hutchinson, in Reno county. He was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for the term of 20 years ; and he appeals to this court because of alleged errors upon the trial.

<p>Covenant oe Warranty — holder of life estate by estoppel under, cannot assert tax-title nor adverse possession against owner of fee. The defendant went into possession of a piece of land under a deed from S. S. derived title under a warranty deed from M. At the time of the execution of this deed M. had no title, but subsequently, and before the execution of the deed to the defendant, acquired • a life estate, which the defendant enjoyed for . the full term of it. Held, that whether the legal title to the life estate passed to the defendant by virtue of the covenant of warranty, or merely inured to his benefit by way of equitable estoppel, is unimportant in this case, and that, under either view, the defendant could not acquire a title as against the owners of the • fee, either by adverse possession or under a sale for taxes which accrued during the continuance of the life estate.</p>

<p>Jurisdiction — of criminal case; that accused brought illegally from, another county does not affect. A district court of a county where a felony has been committed has jurisdiction to try the alleged offender, duly bound over on regular process, although he was originally arrested in another county without warrant and forcibly brought into the county where the crime was committed.</p>

<p>Perjury — accused as ivitness guilty of, in falsely answering question affecting credibility. The false answer of a defendant, who became a witness in his own behalf in a criminal prosecution, that he had never been convicted of a certain felony, was material in that it affected his credibility, and perjury can be predicated thereon.</p>

Henry L. Alden, Judge. A complaint was filed in the Police Court of Kansas City the body of which reads as follows : W. Reynolds complains of George Smith, and being duly sworn, on oath says, that the said George Smith at and in the city of Kansas City, County of Wyandotte, and State of Kansas, and on the 27th day of October, 1895, did unlawfully keep and maintain a place where persons were permitted to resort, and to which persons there and then did resort, for the purpose…

<p>City Ordinance — statute so authorizing, may prohibit acts made penal by State law. It is no objection to the validity of a city ordinance that it prohibits acts and omissions made penal by the laws of the State, provided the Legislature has expressly authorized such municipal legislation; and, while the ordinance keeps within the limits of the State law, it may be valid notwithstanding it does not cover the whole ground occupied by the statute.</p>

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

<p>Motion to Quash — information charging felony, accused must be present,. The hearing of a motion to quash the information in a prosecution for a felony is a part of the trial; and the defendant must be personally present in court at such hearing.</p>

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

Error from Russell District Court. Hon. W. O. Eastland, Judge. On October 23, 1890, a contract was made by which Frederick Willig exchanged 480 acres of land in Russell County, subject to a $600 mortgage, together with the personal property thereon, consisting of cattle, horses, mules, implements, etc., with W. S. Ferguson and H. H. Housley for a large number of lots in the city of Wyandotte.

Error from Wyandotte Court of Common Pleas. Son. T. P. Anderson, Judge. The original action was commenced by the Arkansas City Bank against Swift & Company, December 13, 1890, to recover the sum of $6,000 as damages for the wrongful conversion of 229 head of cattle. On October 12, 1892, the Court, having heard the evidence on behalf of the plaintiff, sustained a demurrer thereto- and rendered judgment in favor of the defendant.

<p>Party on Error — receiver a necessary, as to judgment against bank before appointment. A receiver of an insolvent bank, duly appointed to take charge of the assets under the banking law, is a necessary party to a proceeding in error in this Court to reverse a Judgment rendered in favor of the bank prior to his appointment.</p>

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

<p> Error from Sumner District Court. </p> <p> Son. L. Sebeker, Judge pro tem. </p>

Error from Chautauqua District Court. Hon. M. Q. Troup, Judge. The evidence tended to show that E. S. Latsbaugb, who was engaged in trade in his own building at Sedan, became indebted to the Sedan National Bank upon promissory notes amounting to $3,300, to secure which, on November 20, 1891, he executed a chattel mortgage on his entire stock of goods ; but this mortgage was not filed for record until January 20, 1892.

<p> Error from Marion District Court. </p> <p> Son. Luden Liarle, Judge. </p>

<p>1. Negligence — not, to leave push-oar blocked ordinary way safe distance from tracks. An ordinary push-car was carried by the employes of a railroad company a safe distance from the track, and there blocked in the ordinary way to prevent it from drifting toward the track. Afterward six or eight boys, not connected with the railroad company, took it from the position in which it was left and attempted to put it upon the track, but before doing so they were interrupted and ran away, leaving it dangerously close to the track. Shortly afterward a switch-engine, upon which a yard-clerk was riding, came along and collided with the push-car and injured the yard-clerk. In an action to recover for the injury, it is held that the company was not negligent in leaving the push-car as it did and without other locks or guards.</p> <p>2. -for engineer and switchman on switch-engine not to keep lookout for obstructions. Upon the evidence in the case it is held that there is testimony tending to show that those in charge of the switch-engine failed to exercise due care in keeping a lookout along the track for obstructions, and in controlling the engine so as to prevent the collision and injury.</p> <p>3. - employe not guilty of contributory, in disregarding rule long habitually disregarded with approval of managing officers. Ordinarily, the wilful disobedience of a rule which is operative should be held as negligence on the part of an employe of a railroad company, but where the rule is habitually disregarded and a different practice has long been followed by the employes with the knowledge and approval of the managing ofli- . cers of the company, the rule must be regarded as inoperative.</p>

<p>Case Made — everything intended to be in, should precede judge’s signature. Everything intended to be incorporated in a case-made for the consideration of this Court should precede the signature of the judge who settles it; and held, that on the record presented in this case a general finding of the trial court in favor of the defendants must be affirmed.</p>

<p>Service by Publication — notice stating material matter only inferentially or insufficiently, not entirely omitting it, good against collateral attack. In obtaining service by publication if there is a total failure to state in the notice any material matter required by section 74 of the Civil Code, the service is void and subject to a collateral attack; but where there is not such an entire omission of a material matter from the notice and it is inferentially or insufficiently set forth therein, the service is merely voidable and can be successfully attacked only in a direct pro ceeding.</p>

<p>1. License Tax — city may require larger of itinerant than of resident. A city of the second class may impose a license tax on photographers; and the fact that a larger tax is required from a traveling or non-resident photographer than from a resident regularly engaged in the business does not render the ordinance invalid.</p> <p>2. Cities — not liable for acts of officers under invalid ordinance. Cities are not liable in an action for false imprisonment for the acts of their officers while enforcing invalid ordinances or for other illegal or unauthorized acts.</p> <p>3. -nor in-enforcing police regulation. Nor is a city liable for the manner in which its officers exercise their powers and perform their duties in the enforcement of a police regulation.</p>

Error from Crawford District Court. Hon. J. S. West, Judge. This was an action brought by Thomas F. Kelly against the Pittsburg Electric Railway Company to recover damages for injuries sustained by him while working as an employee of the Vitrified Brick Company, which was engaged in paving Broadway, in the city of Pittsburg.

Error from Douglas District Court. Hon. A. W. Benson, Judge. On October 8, 1887, Rilla C. Pavey commenced an action against the Southern Kansas Railway Company in the District Court of Franklin County to recover a judgment for damages for personal injuries alleged to have been sustained by reason of the negligence of the Railway Company. She recovered a judgment in that Court for $6,000 and costs, and the judgment was brought to this Court for review.

<p>Taxation — of judgments owned by non-resident, not authorized by statute. The statutes of this State do not provide for, nor authorize, the assessment and taxation of judgments rendered by the courts of this State in favor of and owned by citizens of other States.</p>

<p> Appeal from Sedgwick District Court. </p> <p> Hon. C. Reed, Judge. </p>

Son. Cyrus Seren, Judge. The appellant was arrested and taken before a justice of the peace under a warrant which thus described the offense : “That on the 26th day of September, 1894, in Jewell' County, and State of Kansas, one J. H. Baker did then and there unlawfully, feloniously, intentionally, designedly by false pretense with intent to cheat and’ defraud one H. H. Huntsinger, obtain from H. H. Huntsinger by means of said false pretenses 33 cases of eggs of the value of…

<p>Negligence — evidence in action for, held sufficient as against demurrer. An employe, who was at work about 10 feet from a railroad track, ditching it, -was struck on the head and severely injured by a chunk of coal which fell from the tender of a passing engine. He alleged that it was the result of the negligence of the Company, and in an action recovered damages. Held, that the testimony tends to show that the tender was overloaded and that the injury was due to the negligence of the Railroad Company.</p>

Original Proceeding in Mandamus. An alternative writ of mandamus was issued in this. case, on the application of John T. Sims, who claims to have been nominated at a Republican county convention of Wyandotte County, for the office of Probate Judge of that county, and other persons plaintiffs, claiming to have been also nominated at the same convention for various other county' offices, and representatives of the several legislative districts in that county, and also H. T.…

<p>Stockholder’s Liability — notice cannot include several judgments though owned by same creditor. In a summary proceeding to enforce the individual liability of stockholders under ¶ 1192 of Gen. Stat. of 1889, a creditor who held several separate judgments against the insolvent corporation undertook to include all of them in one notice, copies of which were served upon all of the stockholders. Held, that the notice was insufficient.</p>

Error from Neosho District Court. Hon. L. Stillwell, Judge. On February 19, 1892, M. A. Winfield filed her petition against the Rockford Insurance Company to recover $2,000 and interest on a policy of insurance dated December 4, 1891, alleging the loss of the insured property by fire January 28, 1892.

<p>Contributory Negligence — on facts as to, disclosed by record, judgment on general verdict for railroad company affirmed. In case of a personal injury by a collision with a locomotive engine and train at a highway crossing, where the answers of the jury to particular questions of fact show contributory negligence on the part of the plaintiff, and the general verdict is for the defendant, and only a part of the evidence is preserved, and no material error appears in the instructions, and the court overrules the plaintiff’s motion for a new trial and renders judgment on the verdict, held that such judgment should be affirmed although the defendant may not have been free from fault.</p>

<p>1. Special Questions — in answering, jury need not folloiv any witness but may deduce truth from entire testimony. In answering special questions, the jury need not necessarily accept the testimony of any single witness, but may deduce the truth from the statements of all the witnesses; and on the circumstances related by all of them, may sometimes properly find that all the facts have not been accurately stated by any one witness.</p> <p>2. -above rule applied in this case and judgment affirmed. G. was engaged as an employe of the defendant in an ash-pit cleaning an engine. When the engine was moved off, his head was caught and crushed between a bolt-head protruding from the heel of the pilot and a plate on the end wall of the pit. One witness for the plaintiff testified that he was first struck by the shaker-bar, and another, by the linns under the engine. The jury found that he was first struck by the ash-pan, though no witness so testified in terms. It was shown by other testimony that the shaker-bar on this particular engine was inside the ash-pan, though on some other engines the shaker-bars were outside. Held, that the jury were warranted on consideration of all the testimony in the case, in finding that the ash-pan was the first thing that struck G., and knocked him against the wall of the pit.</p>

Error from Saline District Court. If on. R. F. Thompson, Judge. This was an action by the New England Loan & Trust Company to foreclose a mortgage given by Aaron Zeiner and wife on a tract of land in Saline County to secure the payment of a debt of $7,000.

<p> Error from Wyandotte District Court. </p> <p> Non. Nenry L. Alelen, Judge. </p>

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

Error from; Patvnee District Court. Son. S. W. Vandivert, Judge. This action was brought by O. F. and E. R. Nor-wood, partners, against the Commercial Union Assurance Company, Limited, of London, England, on a $2,500 policy of insurance on a stock of merchandise in Lamed, Kansas.

<p>Levy on Personalty — requires such actual and exclusive possession as property will permit. It is a requirement of a valid levy upon personalty that the officer take such actual and exclusive possession as the nature of the property will permit. Constructive possession of a species of property admitting of actual and exclusive possession, is insufficient as against a chattel mortgagee of such property who obtains such possession without committing a trespass or a fraud.</p>

<p> Error from Coioley District Court. </p> <p>Hon.-. A. M. Jackson, Judge. ,</p>

<p> Error from Reno District Court. </p> <p> Son. F. L. Martin, Judge. </p>

<p>City or Second Class — may contract to pay for sidewalks from general fund. A city of the second class entered into an agreement with a contractor for the building of sidewalks to be paid for out of the proceeds of an assessment to be levied on the abutting property benefited by the improvement, stipulating that if the fund so provided was not sufficient or available at a specified time payment should be made out of any unappropriated moneys in the city treasury. At the time mentioned the funds derived from the assessment were insufficient to meet the warrants issued to the contractor for the improvement. Weld, that the contract was valid, and that the city became absolutely liable on the warrants remaining unpaid after the time stated.</p>

Error from Crawford District Court. Hon. J. S. West, Judge. The petition in this case, filed in the Court below by Belle Lycan, as plaintiff, alleged that the defendant was a corporation operating a line of railroad in Crawford County, and, second : “That this plaintiff, on the 18th day of October,. 1891, and for a long time prior thereto, was the owner of, and possessed of the following described lands, to wit: The southeast quarter and the east half of the southwest…

<p>1. Fraternal Insurance — beneficiary may resort to courts after claim rejected by society’s tribunal. It is competent for a fraternal organization, which provides for the payment of benefits, to make reasonable rules or laws requiring those claiming benefits to submit their claims to designated officers or tribunals of the organization for investigation and allowance before the claims are made the subject of litigation in the courts; but a requirement of this kind does not abridge the right of members to resort to the courts when their claims have been submitted to, and finally rejected by, such officers and tribunals.</p> <p>2. - to preclude resort to courts rule must be explicit. Doubtful whether such rule would be valid. The right of resort to the courts will not be deemed to have been taken away by mere inference; and, if it can be done at all, it will only be where the restriction is stated in the clearest and most explicit terms.</p>

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

<p>Embezzlement — local agent of express company is an “agent” within statute concerning. A person employed by an express company to take charge of its business at a local office, who receives and consigns express matter, collects charges thereon, keeps an account of the business of the office, makes reports thereof, and transmits balances of moneys received to the company for a commission on the receipts of the office, and is not bound to devote his whole or any particular portion of his time to ' the business of his employer, is an agent within the meaning of the second clause of § 88 of the Act Regulating Crimes and Punishments, and may be charged with, and convicted of, embezzlement thereunder.</p>

<p> Error from the Court of Appeals, Southern Department. </p>

Error from the Court of Appeals, Southern Department. On May 29, 1891, L. A. Brake obtained a judgment against L. Bolinger and Rosa Bolinger, husband and wife, in the District Court of Bourbon County for the sum of $529.62 as damages for a partial breach of the covenant of seizin in a deed for certain lots in Mapleton in said county. The judgment was affirmed by the Court of Appeals, July 31, 1896. 4 Kan. App. 180.

<p>Tenancy erom Year to Year — no notice from tenant necessary to terminate. The method of terminating a tenancy from year to year is regulated by statute; and in order to determine such a tenancy the tenant is not required to give notice to the landlord of his intention to sever the relation and to quit the premises.</p>

<p>1. Preliminary Examination — sufficient basis for information if warrant give reasonable notice of general character and outline of offense. Where the preliminary examination had upon a criminal charge affords the defendant reasonable notice of the general character and outlines of the offense alleged in the information, it will be deemed sufficient to authorize a trial, although the offense was not set forth in the warrant of arrest with the fullness and precision necessary in an information.</p> <p>2. Collusive Prosecution — and conviction no harto bona fide prosecution. Where a person who has assaulted and seriously wounded another fraudulently procures himself to be prosecuted and convicted before a justice of the peace, who imposes an insignificant penalty, and it is done for the purpose of avoiding a real prosecution and punishment for the offense committed by him, such conviction is not a bar to a prosecution brought in good faith where the State is a party in fact as well as in name.</p> <p>3. Accused as Witness — may be cross-examined as to previous admission inconsistent with his testimony. .The defendant having become a witness in his own behalf and testified that he had acted in self-defense, it was competent to inquire of him upon cross-examination whether he had not voluntarily gone before the justice of the peace and admitted that he had assaulted the prosecuting witness.</p> <p>4. Information — charging offense under § 88 of crimes act includes offense described in § 42. Pacts averred in the infórmation constituted an offense under § 38 of the act relating to Crimes and Punishments, and the offense defined in § 42 of the Crimes Act was fairly included in that charged in the information.</p>

<p>1. Payment into Coubt — order for against plaintiff not warranted because petition credits on claim defendant’s funds in plaintiff’s hands. The petition in this case considered, and held, that it does not admit any indebtedness from the plaintiff to the defendant.</p> <p>2. -in absence of fraud failure to obey order for, not a contempt. It is error for a district court to punish a party to an action as for a contempt because of his failure to pay money into court where there is no showing of fraud in the case; and especially so where, as in this case, there is no proof, nor admission of a liability for any sum resting on the party ordered to make the payment.</p> <p>3. Contempt — error to deny party participation in trial of his action because wrongly adjudged guilty of. It is error to deny the plaintiff in an action the right to be heard because he has failed to comply with an unwarranted and erroneous order to pay money into court, and has been wrongly adjudged guilty of a contempt for failing to do so.</p>

<p>1. Vacated Street — on original public land town-site plat, reverts equally to adjoining lots though lots on one side not embraced in toivn-site. In order to entitle the owner of the lots on one side of a public street to more than one-half of the street, on its vacation, it must appear that the street, or some part thereof, was at some time taken from such lots and appropriated to public use. Where a street, designated on the original plat of a town-site, located on public lands of the United States, and entered and platted by the probate judge for the benefit of the occupants, so that the title to the streets passed from the government of the United States through the probate judge to the county, is afterward vacated, the title to the land included in the street vests in the lot owners on each side in equal parts, and this in a case where the vacated street is all included within the original town-site, and the lots on one side are in a different quarter-section of land afterward platted as an addition.</p> <p>2. Judgment on Verdict — cannot include interest on verdict computed by court ivithout verdict data. It is error for the court to compute interest on the amount of a verdict for a period prior to the date of its rendition and render judgment therefor, when the verdict neither includes such interest, nor affords definite data for its computation.</p>

<p> Error from Doniphan District Gov/rt. </p> <p> Son. J. F. Thompson, Judge. </p>

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

<p>Appellate Procedure — obtaining allowance of set-off against money judgment, bars error to reverse it. A party against whom a money judgment has been recovered, who procures an order of court for its partial satisfaction by setting off against it a like judgment in his own favor for a smaller amount, will be held to have recognized thereby the validity and justice of such judgment against himself, and to have waived his right to prosecute error therefrom.</p>

<p> Appeal from Bourbon District Court. </p> <p> Hon. Walter L. Simons, Judge. </p>

Son. Louis A. Myers, Judge. Samuel F. Newman was charged with the murder of Charles Hoover on the evening of October 17, 1895. At the trial he was found guilty of manslaughter in the second degree, and the punishment adjudged was imprisonment at hard labor for a term of three years.

<p> Error from Lyon District Goiort. </p> <p> Hon. W. A. Randolph, Judge. </p>

<p>1. Compiled Laws, 1862 — lands entered between March 1 and meeting of county board'of equalization, taxable same year. Under the Compiled Laws of 1862, lands entered in 1863 at the United States Land Office, with military bounty land warrants, at any time prior to the first day’s session of the county board of equalization, which was on the third Tuesday of August, were taxable for such year.</p> <p>2. Tax Deed — good on face and recorded jive, years, defects in proceedings anterior to not available against, though land unoccupied. Defects in tax proceedings anterior to the execution of a tax deed good upon its face, which has been of record five years, cannot, in an action to quiet title brought by the tax-deed claimant, be shown by the defendant thereto for the purpose of basing thereon a claim of recovery, as in ejectment, and for rents and profits.</p>

<p>1. Negligence — not presumed from defect in track, and injury ; must be proof company knew, or should have known, of defect. In an action by an employe to recover damages from a railroad company for personal injuries alleged to have resulted from a defect in the railroad track, negligence will not be presumed, but must be proved. Testimony that there was a defect in the track, and that an injury occurred, is not enough to warrant a recovery. It is necessary to prove that the company knew of the defect, or that it was of such a nature or had existed for such a length of time that, in the exercise of ordinary care, it should have been discovered by the company. [Dostek, C. J., dissenting, as to the application to the facts of the case.]</p> <p>2. Recklessness oe Employe — in voluntarily preferring dangerous to safe position, precludes recovery for consequent injury. If such employe voluntarily and needlessly places himself in a highly dangerous position, when there is a reasonably safe one provided for him, and he has time to exercise his judgment and choose a safer place, and injury occurs to him by reason of his choice, he ordinarily cannot recover for such injury.</p> <p>3. Negligence — evidence of held insufficient in action by employe. The testimony examined, and held to be insufficient to sustain the verdict and judgment.</p>

<p> Error from Osage District Court. </p> <p> Hon. William Thomson,' Judge. </p>

Error from Pratt District Court. Hon. W. O. Bashore, Judge. This action was commenced by W. J. Quinn against the Kingman, Pratt & Western Railroad Company to recover damages for a malicious arrest unlawfully made. The plaintiff was in the possession of a half-section of land in Richland. Township, Pratt County, the title to one quarter-section of which was in the name of his wife, and the other in his own name.

Error from Bourbon District Court. Hon. J. S. West, Judge. On May 2, 1884, J. D. Hill executed and delivered to W. C. Gunn, E. D. Marr, Isaac Stadden, V. A. Wallace and B. P. Hepler his negotiable promissory note for $4,563, due May 2, 1885, and to secure the payment of the same he and his wife executed a mortgage upon 64 lots in the city of Fort Scott, including lots 2 and 3 in block No. 2 which are in controversy in this action.

<p>1. Cashier or Bank — has power to receive deposit to be paid third person on contingency. The discounting of commercial paper by a bank, and the receipt of the proceeds on deposit to disburse to a certain person when a certain service is performed, are included within the powers of a bank, and are incidental to the ordinary banking business; and such power may be exercised by the cashier or managing officer of the bank.</p> <p>2. General Denial — under, to a count for money had and received, evidence of payment otherwise than by or for defendant, inadmissible. In an action for money had and received, where the only answer is a general denial, proof of payment by another than the defendant, and not for him or on his account, is not admissible.</p> <p>3. Findings or Jury — conclusive on error if sustained by any competent evidence. Evidence examined and found to be sufficient to support the verdict and judgment.</p>

<p>Coonter-claiM' — for damages from wrongfully bringing action cannot be made in that action. A cause of action accruing to a defendant, for damages resulting from a conspiracy between the plaintiff and another to bring an unjustifiable suit against him, and the bringing of such suit in pursuance of such conspiracy, cannot be set up by him in the case when brought, as a counterclaim in answer to the plaintiff’s demand.</p>

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

<p>1. Negligence — damages not natural and probable result of injury must be specially pleaded. Loss of memory and impaired mental constitution are not the natural or probable results of mere bodily injuries negligently inflicted by one person upon another^ and before recovery therefor, as items of damage resulting from such injuries, can be had, they must be specially pleaded.</p> <p>2. -whether permitting obstruction of view at highway-crossing is, question for jury. The allowance by a railroad company of a hedge and grove of trees upon its right of way at a country highway-crossing, of sufficient height and density to obstruct the view and prevent the hearing of trains by travelers upon such highway, whereby injuries result to them from such trains at such crossing, cannot, as matter of law, be charged as negligence, but such question of negligence must be left to the jury for determination as a question of fact. [Doster, C. J., dissenting.]</p>

<p>Chattel Mortgage — rule that it passes with indorsement of negotiable note, may be changed by contract. The indorsement of a negotiable promissory note ordinarily carries with it a chattel mortgage securing it. In this case, a general arrangement existed between the plaintiff, a corporation, and T., one of its directors, under which it was agreed that T. should from time to time loan money to plaintiff on notes of third parties, to be transferred to him; that plaintiff should have the right to take up such notes at any time, and should be absolutely liable to T. for their payment ; that plaintiff should retain all chattel mortgages taken to secure any such notes, look after the mortgaged property for its own security, and that T. should have nothing to do with any such mortgages. A note given by C. to plaintiff for money loaned, secured by mortgage on a herd of cattle, was indorsed and transferred to T. under this arrangement. While the note was in the hands of T. the defendants seized the cattle under an execution against C. for the payment of a judgment in favor of K. Held, that the special agreement with reference to the retention of the mortgage by the plaintiff was valid, and that the plaintiff might maintain replevin against the sheriff and those acting with him, to recover the possession of the cattle; and further held, that the plaintiff, having taken up the note while the action was pending, might recover the full value of the special interest under the mortgage in the cattle which had been sold and converted into money by the sheriff.</p>

<p>1. Statute oe Limitations — of three years, applies to claim for trust fund in hands of assignee under general assignment, though fund received by assignor under written contract. A claim, against the assignee of an insolvent firm for a trust fund, which came into his hands along with the assigned estate, is barred by the three-years Statute of Limitations, even though the contract with reference thereto between the claimant and the assignor was in writing. In such a case, the liability of the assignee to account as trustee for the claimant is founded, not on the contract, but on his receipt of funds which in equity belong to the claimant.</p> <p>2. Assignee — under general assignment chargeable .as trustee of fund only where received as such or where it increased assets received. To render an assignee liable to account to a party who had placed money in the hands of his assignor as for a trust fund, it must appear either that the fund actually came into the hands of the assignee, or that it went to swell the estate of the assignor, which he in fact received.</p> <p>3. -claim against for trust fund waived by proving as general claim. A person who has placed in the hands of an insolvent debtor a fund for a specific purpose cannot present the claim to the debtor’s assignee in insolvency as a general claim against the estate, and thereafter pursue the fund in the hands of the assignee as a trust.</p>

<p>1. Appellate Procedure — special findings simply showing defendant not liable, refusal of judgment for defendant notwithstanding verdict not an order independently reviewable. An order of court overruling the motion of a defendant for judgment in his favor upon the special findings of the jury, notwithstanding the general verdict, where such findings simply show non-liability to the plaintiff upon his part, is not a final order, and is reviewable only in the event of a judgment against him upon such general verdict in favor of the plaintiff.</p> <p>2. Malicious Prosecution — corporation liable for only when agent acts within scope of authority. A corporation is only liable to an action for malicious prosecution where the commencement or carrying on of such prosecution is within the line of employment or scope of authority of the agent instituting or conducting it.</p> <p>3. - all facts known, and by diligence knoivable, not communicated, advice of counsel not a defense. The advice of legal counsel, as to the institution of a criminal proceeding, sought and acted upon in good faith, will absolve one from damages for malicious prosecution; but only where all the facts known to the informant, and all which can be learned by a diligent effort to acquire information, have been laid before such counsel.</p>

<p>1. Appellate Procedure — error without prejudice no ground for reversal. Mere formal errors, which evidently do not materially prejudice the defeated party, do not afford sufficient ground for a reversal of a judgment.</p> <p>2. Indian Lands — one in possession of, with consent of Indians, may recover for pasturing cattle on. In an action by one in possession of a tract of land in what is known as the Cherokee Outlet, to recover as upon a quantum meruit for pasturing and caring for cattle delivered to him for that purpose by the defendant, where there is no showing that he was in possession of the land without the consent of the Indians, he may recover the reasonable value of the service rendered. The question whether his lease from the Cherokees, if he had one, was valid as against the Indians, or the government of the United States, is not controlling. If his possession was with the consent of the Indians, it was lawful, so long as that consent continued and the government of the United States acquiesced in it; and a party employing him to graze cattle must pay for the pasturage.</p>

<p>1. Contributory Negligence — of husband, as driver, not imputable to wife when husband not under her control at time. The negligence of a husband in driving with his wife in a vehicle over a defective highway, whereby injury occurs to the wife, cannot be imputed to her in bar of an action for damages against the township permitting such defects, where it is not shown that the husband was under the direction and control of the wife at the time.</p> <p>2. -rule as topleading and proving not changed by ¶ 7184, Gen. Stat. 1889. The statute, (section 1, chapter 237, Laws 1887, ¶7134, Gen. Stat. 1889,) giving a right of action against counties and townships in favor of persons who, without contributory negligence, sustain damages by reason of defective bridges or highways, changes the burden of neither pleading nor proof, so as to require a plaintiff suing for damages for injuries caused by such defects to allege or prove non-negligence on his part.</p> <p>3. “Defective Highway” — within \7134, Gen. Stat. 1889, need not have been once improved. In order to constitute a public road a “defective highway,” within the meaning of the statute above cited, it is not necessary that it shall first be improved and put in condition for travel, and then allowed to become defective through lack of repair.</p> <p>4. -verdict held not excessive for injuries from. The evidence in this case does not show the damages allowed ($5,165) to-be excessive.</p>

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

<p> Error from Jefferson District Court. </p> <p> Hon. Louis A. Myers, Judge. </p>

<p>1. Dismissal without Prejudice — plaintiff’s right of, absolute. The right of the plaintiff to dismiss his action without prejudice, at any time before the final submission of it, is absolute, and the denial of his application to so dismiss is prejudicial error.</p> <p>2. Revivor oe Action' — if time for has expired', and consent to is refused, court should dismiss without prejudice. Where a court finds that a party to an action has been dead for a period so long that the action cannot be revived without the consent of parties, which is not given, the action abates and should be dismissed at the costs of plaintiff. In such a case a judgment barring and canceling the cause of action is erroneous.</p>

<p> Error from Ellis District Court, </p> <p> lion. Lee Monroe, Judge. </p>

Error from the Court of Appeals, Southern Department. On November 7, 1887, one Harnley and wife executed to James Hill two promissory notes for $650 each, together with a mortgage on certain real estate securing them. Hill indorsed the note to James Phillips. The notes were not paid at maturity, and proper steps were taken to charge Hill as indorser on one of them, but not on the other.

<p> Error from Sumner District Court. </p> <p> Hon. J. A. Burnette, Judge. </p>

<p>1. Challenge fob Cause — in prosecution for receiving deposits when bank insolvent, juror’s fixed opinion as to bank’s insolvency, ground for. On the trial of a criminal prosecution against a defendant charged with having received deposits as an officer of a bank, when the bank was insolvent and he knew its insolvency, a challenge to a juror who has a fixed opinion as to the solvency or insolvency of the bank at the time the deposits were received should be sustained; it appearing that the questions as to the solvency of the bank and the knowledge the defendant had as to its condition were among the principal ones to be tried.</p> <p>2. Right to Confront Witnesses — violated by allowing State to read, over objection, deposition taken, but not read, by accused. A defendant on trial, charged with a felony, has the right guaranteed to him by the Constitution to meet the witnesses produced by. the State, -face to face, and it is error to admit, over his objection, the .Imposition'of a witness, taken out of the state when he was not mrsona.lly present, containing important testimony, notwhastanding lit fact that' the deposition was taken on the application of the defendant on inteirogatories prepared by his counsel and eross-n . ogatories prepared by counsel for the State. By causing the ^position to be taken the defendant did not irrevocably consent to introduction in evidence.</p> <p>3. Receiving Deposits in Insolvent Ban:, -accused not guilty unless he knew insolvency: that he y.ld have known, not enough. A person charged with having received deposits as an officer of a bank when it was insolvent is not guilty of a crime under section 16 of chapter 43 of the Laws of 1891 merely because, through his negligence, he did not know its condition; but it must be shown that, when he received the deposit, he knew the bank to be insolvent. But his relation to the bank, and his duty to examine into the condition of its affairs and know whether it is solvent or insolvent, may be taken into consideration by the jury ’in determining whether he had actual knowledge of its condition.</p>