Volume 58 — Kansas Reports

<p>1. Opinion Evidence — not competent as to safety of bridge. Where the claimed defects in a county bridge are described by witnesses who have knowledge of them, and the character and extent of such defects are comprehensible by the ordinary mind, the jury are the judges of the safety of the bridge for travel, and it is not competent for a witness, even though an expert, to give in evidence his opinion as to the safety of the bridge.</p> <p>2. Action Against County — for negligence, under ¶ 7134, Oen. Stat. 1889, information of defect in bridge must be brought homo to chairman of the county board. In actions under the statute (ch. 237, Laws 1887, ¶7131, Gen. Stat. 1889), to recover for injuries occasioned by a defective bridge, notice of the defect must be brought home to the chairman of the county board; and a presumption, that information of the defect possessed by another member of such board was communicated by him to the chairman, will not be indulged.</p> <p>3. Exception Unavailing — to refusing part of set of instructions constituting an inseparable whole. An instruction asked by a party should not be so connected in context with other instructions that it cannot be separated therefrom and given in the language in which requested, without revision by the court and without the repetition of other matter upon which the court has instructed or might wish to instruct; and where a party, having prepared a substantially full set of instructions covering the disputed law of the case and requested the giving of it as a whole, excepts to the court’s refusal to give it as a whole, a claim of error in refusing to give a portion of it will not be considered, where it is so connected and dependent upon other portions as to be inseparable therefrom as a unit or single proposition.</p> <p>4. Defective Bbidge— in discovering, and repair of', county . bound to only ordinary diligence. A county is bound to the exercise of only reasonable or ordinary care and diligence in the discovery and repair of defects in its bridges; and an instruction to the jury, implying that such bridges must be so kept as to guard against unusual and extraordinary danger to persons traveling thereon, is erroneous against the county, but not against the traveler, and constitutes, therefore, no ground of complaint by him.</p>

<p>1. Consolidated Railway Company — by ansivering to action as successor of original company, waives formal revivor. When, after the institution of suit against a railway company, its legal existence is terminated by consolidation with other like companies, aod the action, in consequence, abates, a new petition, which appears to be the commencement of a new action and not a continuation of the old one, is filed against the consolidated company as successor to the liabilities of the others, and a summons in the form of original process is issued against, and served upon, the consolidated company, and it demurs to such petition and moves to strike it from the files, but delays objection to the lack of forma^ revivor of such first action and its substitution^ thereto until its answer to such petition is filed, it will be deemed to have waived the lack of such revivor and substitution, and will be held as defendant to the suit.</p> <p>2. Evidence Held Sueeicient — of railway company's contract to procure plaintiff passes from another railway company. Evidence examined, and found to prove a valid contract, upon good consideration, by one railway company to procure passes for a person over the line of another railway company, full performance by such person, and a breach of the same by such first-mentioned company.</p> <p>3. Joint Contract — by two persons, compensation to each distinct, may be sued on separately by either. A contract entered into and performed jointly by two or more persons, the compensation for the performance of which is separate and distinct as to each of such persons, may be sued upon separately by each of them, to recover the amount due to him or the damages sustained by him.</p> <p>4. Railway Passes — issuing of, for valuable consideration not, prohibited by Interstate Commerce Act. The Interstate Commerce Act does not prohibit the issuing of railway passes upon a moneyed or other valuable consideration, but only prohibits free transportation.</p> <p>5. -contract to procure, for party annually during life, m.ay be sued on for breach any year. A contract to issue or to procure the issuing of railway passes, annually through the life of the promisee, is not an entire contract, but is divisible by-year ly renewals, and may be sued upon for each successive breach; and the measure of damages for the breach of the same is the value of the transportation to such promisee during the years the breach has occurred.</p>

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

Error from Atchison District Court. Hon. Robert M. Eaton, Judge pro tem. This was an action brought by the City of Atchison against James W. Parker and W. W. Guthrie to enjoin them from obstructing the channel of White Clay Creek and to compel them to remove certain obstructions which they had placed therein.

<p>Error from Barber District Court. Hon. G. W. McKay, Judge.</p>

Error from Neosho District Court. . Hon, L. Still-well, Judge. Three petitions in error, by Q,. A. Kellogg, as plaintiff in error, are attached to one record. Each of these has been given a separate number by the clerk. The defendants in error first named in the petitions, and Who are the only parties appearing in this court, are the Douglas County Bank, in number 9494; Latham, Alexander & Co., in number 9495, and the Chemical National Bank, of St. Louis, in number 9496.

<p>Chattel Mortgage — transactions with one not party to proceedings incompetent to show fraud in. In a controversy between mortgage and attachment creditors over a stock of goods,' where the mortgage was prior in point of time to the attachments, and where it was claimed that the mortgage was fraudulent, testimony of the transactions and business failure of the son of the , debtor years before, when engaged in business for himself and with' which the debtor had no connection, is incompetent; the son not being a party to the attachment proceedings nor to the action. between the mortgage and attachment creditors.</p>

<p>1. Statute oe Frauds — contract by one not agent to procure deed from third person, not binding on third person though he knew and approved. A contract entered into between a person desiring to purchase land and one who claims its ownership, which recites that title to such land is in a third person, and in which such claimant does not assume to act as agent for such third person, but only agrees to procure from him a deed, is not, under the Statute of Frauds, a contract of sale by such third person, even though he knew of, and assented to, the making of the same.</p> <p>2. Estoppel — claimant under contract admitting title in third person, estopped from disputing that^ title. One who founds his right to land upon an instrument which admits title in a certain person, and which does not purport to be executed by or on behalf of such person, is, in an action of ejectment brought by a grantee of such person, estopped to dispute his title and right of possession.</p>

<p>1. Wanton Negligence — on facts, court refuses to declare as matter of law motorneer not guilty of. The court will not declare, as a matter of law, that a motorneer in charge of a car on an electric street railway, who propels it at the rate of about twelve miles an hour over a street-crossing adjacent to a large public-school building, when the street is filled with children just leaving school, who fails to ring the bell nearer to the crossing than 150 feet, and who neglects to keep watch of the track ahead of him, is not guilty of gross and wanton negligence.</p> <p>2. Contributory Negligence — on facts, court refuses to declare ten-year old boy guilty of culpable. Nor will the court declare, as a matter of law, that a boy ten years old, who crosses a streetcar track in a crowd of school children just released from school, is culpably negligent because he fails to see a street ear, which, without the ringing of any bell, or other warning, is coming toward him at a high rate of speed.</p> <p>3. -for jury, on facts, to determine degree of care required by child. It is for the jury to determine, from all the evidence as to his capacity, and the facts of the case on trial, what degree of care and prudence may be reasonably exacted of a child of tender years.</p>

<p>1. Deposit on Contingency — cashier’s usual deposit-checkprima facie evidence of bank’s liability for. It is within the power of a bank in which a deposit of money has been made or otherwise provided for, to hold the same, and pay the money out upon the happening of a certain contingency agreed upon by the interested parties; and, where such an arrangement is made., a deposit-slip or receipt, issued by the cashier of the bank in the usual and ordinary course of business, is prima facie evidence of the liability of the bank.</p> <p>2. -that deposit not credited on books, immaterial. The fact that the money deposited or otherwise provided for is not credited upon the books of the bank, will not change the nature of the transaction nor relieve the bank from the liability which its managing officer assumes.</p> <p>3. Kansas National Bank v. Quinton (57 Kan. 750) followed.</p> <p>é. -evidence held sufficient to sustain verdict in action for. The testimony examined, and held to be sufficient to sustain the finding that the contract in question was made with the bank and not with its cashier as an individual, and that it was bound to deliver money, and not checks, when the conditions upon which the deposit was made had been complied with; and further, that it is sufficient to sustain the general verdict.</p>

<p>Statute oe Frauds — oral aooeptance and part performance of offer by letter to sell land on stated terms, valid contract under. An offer by letter to sell land upon terms therein stated, orally accepted by the proposed vendee and executed by him as to part of such terms, is a valid contract of sale as against the Statute of Frauds, and entitles the vendee, if in possession, to resist ejectment brought against him by the vendor, and to show, by oral evidence, his readiness and ability to complete the purchase according to such contract, and that his failure to do so is attributable to his vendor.</p>

<p>Original proceeding in mandamus.</p>

<p>Error from Shawnee District Court. Hon. Z. T. Hazen, Judge.</p>

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

Original proceedings in mandamus. This was a proceeding in mandamus, brought originally in this court, to compel the County Treasurer of Decatur County to accept interest payments due on a school-land purchase and issue receipts therefor, and to compel the County Clerk of the same county to countersign the receipts when issued. No return to the alternative writ was filed, but the case was heard and disposed of upon an agreed statement of facts.

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

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

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

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

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

Error from Cowley District Court. Hon. A. M. Jackson, Judge. This is a controversy between attaching creditors of P. G. Van Vleet. The Lansing Wagon Works, a corporation, brought suit against Van Vleet on the fifth of February, 1892, to recover the sum of twenty-five hundred dollars for goods sold and delivered; which sum, it was alleged,- was then due and payable. An attachment was issued, and levied on the property of the defendant.

Error from Nemaha District Court. Hon. J. F. Thompson, Judge. This was an. action' brought by Ida M. Tracy, as plaintiff, against William. 0. Morris, Dallas Morris and Emma H. Morris, to partition certain lands belonging to the heirs of George W. Morris, deceased. The service was by publication.

<p>Eminent Domain — railway company taking title by, is protected ■ against secret equities equally as if purchaser. In condemning land for the right of way for a railroad, a railroad company has the same right to rely on the public records, in determining who is the owner of the land to be condemned, that any purchaser would have. Where a right of way is condemned over land in the possession of one holding a duly recorded tax deed thereto, and also a patent from the State based on such tax deed, under which the holder had paid the balance due the school fund on a certificate of purchase of such land as school land, a report of the commissioners making the condemnation, naming such patentee •as the owner, followed by a deposit of the condemnation money with the county treasurer to such patentee’s credit, and the subsequent payment thereof to him after the expiration of the time allowed by law for an appeal from such proceedings, passes a valid title as against the secret and undisclosed equities of the heirs of the holder of such certificate of purchase.</p>

<p>Original proceedings in quo warranto.</p>

<p>Committing Witness eor Contempt — act conferring power of, on notaries public, unconstitutional. A notary public has no power to commit for contempt a witness who, having been duly subpoenaed before him for that purpose, refuses to be sworn or to give his deposition; and the statute purporting to confer such power upon him is invalid. (Johnston, J., dissenting.)</p>

<p>Error from Leavenworth District Court. Hon. Robert Crozier, Judge.</p>

<p>1. Mechanic’s Lien — has priority over a szibsequent mortgage though purchase money of lot paid from proceeds. Where town lots are contracted for with the view, both by vendor and vendee, to the erection of buildings thereon, and under an agreement for a loan by the vendor to the vendee upon the completion of the buildings and the execution upon the property of a mortgage to secure such loan together with the purchase price of the lots, but such loan is not made by the vendor, and such mortgage is not executed to him but is executed to a stranger, who pays out of the proceeds the purchase price of the lots and a portion of the indebtedness contracted in the erection of the buildings, held, that the liens of the mechanics and material-men for the remainder of such indebtedness are superior to the lien of such mortgage.</p> <p>2. -may be asserted against mortgagee though one-year limitation has barred action against owner. In the case as above stated, the liens of the mechanics and material-men may be asserted against the mortgagee after the expiration of the one year for foreclosing them against the land owner.</p>

<p>Error from Coffey District Court. Hon. W. A. Randolph, Judge.</p>

<p>Ultra Vires- — cannot, after performance by the other party, be pleaded by guarantor of corporation’s contract. Persons who-guarantee to a railroad company the repayment of money to be expended by it for another railroad company under a contract between such companies, cannot, after such money has been expended, defend a suit upon their guaranty by alleging and showing a lack of power in such first-mentioned company to enter into-the contract with its obligee.</p>

Error from Riley District Court. Hon. R. B. Spilman, Judge. This was an action of ejectment brought by the plaintiffs in error in the District Court of Wabaunsee County to recover of the defendant in error eighty acres of land. A trial in September, 1883, resulted in a verdict for the plaintiffs. The court set aside the verdict and granted the defendant a new trial; and upon error this court affirmed that order. Murphy v. Hindman, 37 Kan. 267.

<p>Statute oe Frauds — letter to third person describing land and admitting payment of consideration, sufficient memorandum under. A note or memorandum of contract for the sale of real estate, in the form of a letter addressed to a third person, which describes the land to be conveyed and admits payment in full of the contract price, is sufficient under the Statute of Frauds, although the amount of such contract price and the kind of deed to be executed aré not stated; and, unless the contract evidenced by such note or memorandum is affected by fraud or other inequitable circumstance, the courts are bound to order its specific performance.</p>

<p>Recital oe Unrecorded Mortgage in Deed — is notice to grantee and subsequent purchasers and mortgagees. The recital in a recorded deed to land of a prior mortgage thereon, charges the grantee, and subsequent purchasers and mortgagees under him, with notice of such mortgage, although it has not been recorded.</p>

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

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

<p>Action Premature' — brought on day of maturity of note payable at bank, though after banking hours. The maker of a promissory note, payable at a bank, has the entire day of maturity in which to make payment; and an action begun thereon just after the close of banking hours of the day it falls due is prematurely brought.</p>

<p>1. Shawnee County Circuit Court — act creating, constitutional. Chapter 83 of the Laws of 1891, creating the Circuit Court of Shawnee County, is constitutional and valid.</p> <p>2. - had power after term to correct erroneous journal entry of judgment. The Circuit Court of Shawnee County, on due notice to the opposing party, had power to correct an erroneous journal entry of a judgment rendered by it, after the term at which the judgment was rendered, so as to make it conform to the judgment in fact rendered.</p> <p>3. Absence oe Seal — on original writ not presumed, in favor of plaintiff in error from mere fact of its omission from copy of writ in record,. Where the validity of process issued out of a court of record is challenged in this court on the ground of the absence of a seal, the record must affirmatively show that the seal was not on the writ; and the mere fact that there is no scroll, or word “seal,” on the copy, at the place where the seal is usually affixed, is insufficient to show the absence of the seal, when opposed to a recital in the writ itself^that the seal was affixed.</p>

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

Error from Sumner District Court. Hon. James A. Ray, Judge. This was an action brought by Henry Knowles against Cassander Williams, Henry B. Williams, her husband, and Francis M. Williams, her son, to recover a tract of land in Sumner County, consisting of about four hundred acres. Prior to December, 1886, the land was owned by the Williamses, but was heavily incumbered.

<p>Error from Harvey District Court. Hon. F. L. Martin, Judge.</p>

<p>Jurisdiction or Person — objection to, waived by motion to discharge attachment because affidavit insufficient. The defendants, upon whom there had been no valid service, appeared and attacked the jurisdiction of the court, and at the same time asked that an attachment, which had been levied upon their property, should be discharged, upon the ground that the affidavit of plaintiff, made to procure the attachment, was insufficient; held, that, having appeared for other purposes and presented other considerations than those of jurisdiction, they made a general appearance and gave the court general jurisdiction over them.</p>

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

<p>1. Killing by Mob — in action for, by next of hin, evidence of deceased’s reputation and conduct competent for defense. In an action against a city by the next of kin of one killed by a mob within the corporate limits, the reputation and conduct of the deceased may be given in evidence in mitigation of damages. Such testimony is not confined to the general reputation of the deceased, but any misconduct or crime, committed within a reasonable time prior to the killing, which may have influenced the mob or which would affect the value of his life to the next of kin, may be shown.</p> <p>2. -proof that deceased had pleaded guilty to criminal charge, rebuttal going only to circumstances of plea — not to innocence — immaterial. After the city had offered proof that the deceased had entered a plea of guilty upon a criminal charge, the plaintiff offered to show that when the plea of guilty was entered by the deceased he protested that he was innocent, and also that the plea was entered by him without the advice of counsel and through fear of a mob ; but the offer was refused : Meld, that there being no offer to show that the deceased was innocent of the charge, no material error waB committed in excluding the testimony.</p> <p>3. Exemplary Damages — allowed only where actual damages proved. Exemplary damages can never be recovered by one who has suffered no actual damage. Schippel v. Norton, 38 Kan. 567.</p>

Error from Sumner District Court. Hon. J. A. Burnette, Judge. In an action brought by Aultman, Miller & Co. against W. K. Ryland, a stock of hardware, kept in South Haven, Sumner County, was attached. M. L. Ryland brought suit against the Sheriff, the plaintiff in error, to recover the attached property, claiming to own it by purchase from his brother, W. K. Ryland.

<p>Error from Clark District Court. Hon. Francis C. Brice, Judge.</p>

Error from Edwards District Court. Hon. S. W. Yandivert, Judge.' This was an action by S. M. Heller against the City of Garden City to recover for trees planted in pursuance of a contract made with the City.

<p>City Courts or Kansas City — act creating, constitutional. The organization of new courts and limitations upon the jurisdiction of justices of the peace, are not two subjects, but are subdivisions of the same general subject; and chapter 107, Laws 1897, entitled “An act creating two city courts in Kansas City Township,Wyandotte County, Kansas, and defining the jurisdiction thereof, and the powers and duties of the officers thereof, and limiting the jurisdiction of the justices of the peace in said township,” is not, therefore, repugnant to that constitutional provision which ordains that no bill shall contain more than one subject; nor has this court the power to declare it unconstitutional because of its being an act special in its nature, the object of which might be attained by a law of a general nature and of uniform operation throughout the State; nor is it unconstitutional because it excludes justices of the peace from jurisdiction in criminal cases, and also limits their jurisdiction in civil cases to the nominal sum of one dollar.</p>

<p>1. Statute oe Limitations — irregularities in sheriff's deed cured by, if deed not void on Us face. A sheriff’s deed founded upon a mortgage-foreclosure judgment is not void upon its face unless defects sufficient to invalidate it appear in the instrument itself ; and a misrecital by it of the date of the judgment upon which it is founded, which is manifestly a clerical error, and a misdescription of the land ordered to be sold, where it is manifest that the tract conveyed is a portion of the one so ordered to be sold, and a misstatement of the capacity in which plaintiff recovered judgment, as executrix instead of in her own right, do not render such deed inadmissible in evidence ; and an instruction to the jury to find against the party claiming under it, because of such misrecital, misdescription and misstatement, is error.</p> <p>2. -recording of sheriff’s deed on satisfied judgment, does not start, in favor of purchaser with knowledge. A sheriff’s deed, founded upon a mortgage-foreclosure judgment which had been previously paid, is a nullity in the hands of the judgment creditor as purchaser ; and the recording of such deed does not start the running of the Statute of Limitations in his favor.</p>

<p>Fraternal Insurance — laws of society permitting, but not requiring, appeal to tribunal of order, action maintainable without appeal. The general laws of a mutual benefit society, which, by the use of only permissive words, allow an appeal from the decision of an officer of the order before whom the claimant of a death or disability benefit is required in the first instance to prosecute his claim, but which do not obligate him to appeal from an adverse decision as a condition precedent to an action upon his certificate or policy of insurance, do not, in the event of such decision, preclude the claimant from maintaining an action in the courts for the recovery of his loss, without having taken such appeal.</p>

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

<p>1. Garfield County — a defacto county until act was declared unconstitutional, and official acts valid as to public. From the time Garfield County was organized as such until the decision of this court in the case of The State, ex rel., v. The Commissioners of Garfield County, declaring the act creating the county unconstitutional, it was a county de facto, and the acts of its officers were the acts of de facto officers, binding as such, between the people of the county and third parties dealing with them as public officers.</p> <p>2. Funding Bonds — under ch. 50, Laws 1879, require no vote of the people. Chapter 50 of the Laws of 1879 authorized the board of county commissioners of a county to compromise matured and maturing indebtedness of every kind, and to issue bonds in payment for any sums so compromised; and gave to the board of county commissioners authority to compromise an indebtedness evidenced by valid county warrants and issue bonds in payment therefor, without a vote of the people.</p>

<p>1. Eminent Domain- — award and report by two commissioners after resignation of third and without opportunity for his successor to participate, void. The statute requires that the duties of commissioners appointed to condemn land for a railroad right of way and to award damages therefor, shall be performed by a full body of three members, or by two of them upon notice to the third and opportunity by him to participate therein ; and a condemnation and award made by two after the resignation of the third is not a valid proceeding. If such action of the two after the retirement of the third appears upon the face of the report, the instrument is void ; and the proceedings and report are likewise void if it appears therefrom that after the resignation of the one member an appointment to fill the vacancy was made, but that such appointee took no part in the proceedings and had no notice thereof nor opportunity to participate therein.</p> <p>2. Authority oe Majority oe Board — statutory rule as to, applies only where membership full. The statutory rule that, “ words giving a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority,” applies to boards and tribunals, the membership of which is full, and not to a board or tribunal whose membership has never been fully appointed, or if appointed, has become reduced in number, nor to one in whose proceedings the minority has been given no opportunity to participate.</p> <p>3. Eminent Domain — filing of report is condemnation and award, and must be act of the commissioners as a body. Until the report of commissioners appointed to condemn land for a railroad right of way and award damages therefor, has been filed, it is within the control of such commissioners, although written out and signed, and may be changed by a majority, or dissented from by a single member. The act of filing such report is, in law, the condemnation and award; and must be performed as the act of the full body, or the act of a majority of the members upon notice to the third.</p> <p>4. Erroneous Admission oe Evidence — does not necessarily compel a reversal, if in proof of only particular element of damage. A case is not of necessity to be reversed because of error in the admission of evidence in support of a claim for damages, but if such erroneous evidence consists of statements of amounts of damage sustained, the judgment may be modified to the extent of the highest estimate of such damages made by any of the witnesses.</p>

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

<p>1. Motion for New Trial — and motion for judgment on findings notwithstanding verdict may be filed at same time. A motion for judgment on special findings notwithstanding the general verdict, and one for a new trial, may be filed by the defendant at the same time; and the submission and decision of the former motion will not operate as a waiver of the latter.</p> <p>2. -- should be granted where findings show case not fairly and intelligently tried. Where special findings upon a material issue are contrary to the evidence and inconsisent with each other, indicating that the jury did not fairly and intelligently consider the case, the general verdict should be set aside and a new trial granted.</p>

<p>1. Appeal — notice of administrator’s, from allowance of claim must be given during term or within ten days. An administrator of the estate of a deceased person, who seeks to appeal from an allowance of a demand against the estate, must give notice of such appeal, either during the term at which the decision is made or within ten days after the date of the allowance.</p> <p>2. -error in overruling motion to dismiss not waived by moving party continuing litigation to final ¿judgment. Where a motion to dismiss an appeal is made in due time, erroneously overruled, and excepted to by the plaintiff, he does not confer jurisdiction on the court by thereafter litigating the demand in the district court; but may, after final judgment against him, take advantage of the error in the ruling on the motion by petition in error in this court.</p>

<p>Error from Shawnee District Court. Hon. A. H. Vance, Judge pro tem.</p>

<p>1. New Trial — duty of court to grant where verdict result op prejudice. A verdict which is the result of prejudice should never be the basis for a judgment, but it is the duty of the court to set it aside and award a new trial.</p> <p>2. Evidence — certificate should show copies are copies of original papers, not of transcript. Where certified copies of papers filed in a public office are offered in evidence, the certificate should show that they are copies of the original papers, and not of a transcript of them.</p> <p>3. Malicious Prosecution — vjhat is probable cause, for court; whether facts show, for, jury. In an action for a malicious prosecution, the question as to what constitutes probable cause for an arrest is one of law for the court; but the facts bearing on the question of probable cause are to be determined by the jury.</p>

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. This action was brought by James King and Nina King against the City of Kansas City to recover damages in the sum of $3,171 alleged to have been sustained by the discharge of sewage upon their property in that city. It is alleged that, in 1889, the City constructed sewers through the part of the city in which the plaintiffs’ land is situated.

<p>Fire Insurance — mortgage clause liberally construed. Where a policy of insurance is issued to a mortgagor, and at the same time a mortgage clause is attached by which it is stipulated that the loss, if any, shall be payable to a mortgagee therein named, or its assigns, that the insurance, as to the mortgagee, shall not be invalidated by any act or neglect of the owner, and that the provisions of the mortgage clause shall take precedence over the provisions of the policy, held: First, that the mortgage clause will be liberally construed; and that a breach of the terms of the original policy which have especial relation to the risk as between the mortgagor and the insurer will not invalidate the policy in a suit brought by the mortgagee unless the provision violated is consistent with the mortgage clause; second, that the commencement of a suit to foreclose the mortgage and the appointment of a receiver to take charge of the property is not such a breach as will avoid a policy containing a clause providing that the policy shall be avoided upon the commencement of proceedings of foreclosure, or any change in title or possession, whether by legal process or judicial decree; such a clause being inapplicable to the risk as between the insurer and the mortgagee, whose interest in the insured property is not impaired or diminished by such pro, ceedings.</p>

<p>Excessive Verdict — not from miscalculation but from jury’s unfairness, not curable by ordering remission of part. It is the duty of the trial court which finds that a verdict for damages' for bodily injuries negligently inflicted is excessive in amount, and that such excess is not due to inadvertence or errors in calculation, but is excessive in view of the character and extent of the injuries sustained, and does not express the real opinion of the jury as to the allowance justly to be made, to set such verdict aside and award a new trial of the cause ; and the error of its failure to do so cannot be cured by ordering a remission of a portion of the sum adjudged to be excessive.</p>

<p>Error from Shawnee District Court. Hon. William Thomson, Judge pro tern.</p>

<p>1. Execution — after revivor against executor, may, without application to probate court, issue against testator’s lands bound by judgment lien. After a judgment rendered against the debtor in his lifetime has been duly revived against his executors, who by the terms of his will hold the legal title to the lands belonging to his estate, execution may issue on the judgment against such lands as are bound by the lien of the judgment; and no resort to the probate court, either for a classification of the plaintiff’s demand or for an order for the sale of the property, is necessary.</p> <p>2. - but cannot be levied on personalty, nor on lands not subject to judgment lien. The execution on such a judgment can only be levied on the property bound by the lien of the judgment. It cannot be levied on personal property which passed into the hands of the executors, nor on lands to which the lien did not attach.</p> <p>3. -where application to district judge would be fruitless, Supreme Gourt may award mandamus compelling district clerk to issue. The clerk of the district court having custody of the record of such a judgment, may be compelled by mandamus to issue execution thereon, where it appears that an application to the judge of the district court of the county for an order for such execution would be fruitless.</p>

<p>Robbeky — information may allege ownership in true owner, though other than person robbed. Robbery in the first degree may be committed by taking property from the possession of a servant or agent of the owner as well as from the owner hinself; and, in the information, the ownership of the property may be alleged as in the person robbed, or in the true owner.</p>

Original proceedings in habeas corpus. At the last session of the Legislature, the following concurrent resolution was passed by both houses as senate concurrent resolution number 26 ; Whereas, Certain charges of bribery and the use of improper influence having been made from time to time for the purpose of influencing the members of the House of Representatives and Senators, to vote for or against certain measures, bills and resolutions pending in the Legislature for…

<p>Error from Neosho District Court. Hon. L. Still-well, Judge.</p>

<p>Malicious Prosecution — examining magistrate’s finding of malice and tuant of probable cause, not evidence for plaintiff in action against prosecuting witness. The finding of a justice of the peace, made upon the preliminary trial of a person charged with crime, that the complaint of the prosecuting witness against the accused was malicious and without probable cause, cannot, in a suit for malicious prosecution brought by the accused against the prosecuting witness, be received in evidence in support of the claim of lack of probable cause.</p>

<p>Stockholder’s Individual Liability — three-year limitation as to, runs from corporate dissolution and not from judgment against corporation. Under section 44, chapter 23, General Statutes of 1889, a right of action accrues in favor of the creditors of a corporation and against its stockholders upon the occurrence of its dissolution. The liability of such stockholders under this section, and also under section 32 of the same chapter, is one created by statute, the period for the enforcement of which is three years ; and the creditor cannot extend such period by proceeding under said section 32 to obtain judgment against the dissolved corporation or its trustees and execution against the stockholders, instead of proceeding by direct action against the latter.</p>

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

<p>1. Assignment ror Beneeit or Creditors — judgments and f’ore-closure in another court pending appeals from assignee's dis-allowance, will not terminate appeals, but duty of court where appeals pending to classify judgments, credit payments, and allow dividends on only remainder. An insolvent company made an assignment for the benefit of creditors. It had assumed an indorser’s liability on notes transferred to others which had been secured by mortgages. After the assignment, an action was brought in another county to recover upon the notes against the makers and the indorser, and also to foreclose the mortgages. Before judgment was rendered in that action, notice was given by the assignee requiring all creditors to present their claims on a certain day, and in response to the notice the holders of the notes presented their claims, but the assignee refused to allow them. Appeals were taken from the decision of the assignee to the district court. Thereafter, and before the appeals were heard, judgments were rendered upon the notes, in the foreclosure action, against the assignee and the estate. Held, that the rendition of the judgments did not terminate the appeals, but the pleadings having been amended so as to show that the claims had been merged into judgments, it was the duty of the court upon appeal to allow so much of the judgments as remained after crediting all payments made thereon, and also the amounts derived from the sale of mortgaged property. Held further, that the claims should be classified, and the holders of the same should be first compelled to resort to the fund derived from the special liens, and be allowed dividends upon only the amounts remaining unpaid after exhausting such fund.</p> <p>2. -judgment against a creditor seeking foreclosure, assignee a party, conclusive as to claim. The assignee having been a party in the foreclosure action, the judgment rendered therein against one of the claimants is a final adjudication as to the validity of the claim aud the liability of the company.</p>

<p>1. Note with Memorandum — making it subject to terms of letter, the letter a necessary part of plaintiff’s case. A promissory note, having a memorandum indorsed thereon that it is made in accordance with and subject to the terms of a certain letter, does not constitute the whole of the contract between the parties thereto. The letter referred to is an integral part of such contract, and its contents must be alleged and proved in order to a recovery upon the note.</p> <p>2. Ultra Vires — manufacturing and trading corporation cannot plead, as to note made by officers, owning all stock, to pay for a stockholder’s shares. A promissory note executed in behalf of a manufacturing and trading corporation by all of its directors, who are also all of its stockholders, in payment for the shares owned by one of such stockholders, purchased by and for the benefit of the others, cannot be repudiated by the corporation as an ultra vires transaction.</p>

<p>1. Contributory Negligence — question for jury whether crossing track, as people in habit of doing, in rear of train obstructing street crossing, is. Duty of employees, when such custom known, to move train with due caution. In the little town of R., which is located on both sides of the tracks of a railroad company, the company stopped its trains on a side-track so as to completely obstruct all travel from one part of the town to the other for about twenty-five minutes. It had been accustomed at intervals to so obstruct the streets, and the public were in the habit of climbing over, crawling under, and going around its trains. E. C., a boy thirteen years old, for the purpose of going to his home attempted to pass around the rear end of a freight train which was so blocking up the crossings, and was struck and killed by the rear end of a train which had just commenced to move backward. Held, first, that it was for the jury to say from the facts disclosed by the evidence whether, under the circumstances, license was given to the public to cross the tracks around the trains on the company’s right of way; and that the court will not declare, as a matter of law, that it was negligence which will bar a recovery for the boy to attempt to cross behind the rfear end of a freight train so obstructing the crossings; and second, that, under the conditions stated, it was the duty of the employees in charge of the train to move it with reference to the known custom of the people, and to take due precautions to avoid injury to any one who might attempt to cross behind the train.</p> <p>2. Error Cured — in overruling demurrer to evidence if defendant's evidence supplies the deficiency in plaintiff's ease. Where the evidence offered by the plaintiff is deficient and a demurrer thereto is overruled, if the defendant suppliés the deficiency by testimony offered in its behalf the error in overruling the demurrer is rendered immaterial, and this court will not reverse the judgment because of the insufficiency of the testimony offered by the plaintiff.</p> <p>3. Negligence Causing Death oe Minor Son — jury not restricted to value of services during minority. In an action brought by parents against a railraod company to recover damages for negligently causing the death of their minor son, the jury are not necessarily restricted to an allowance of the value of the son’s services during minority, but may take into consideration pecuniary benefits which the parents may reasonably be expected to receive from him after reaching his majority.</p>

<p>Ejectment by Vendee — long in possession, maintainable where vendor, during vendee’s non-oeoupanoy, re-enters for nonpayment of notes barred by Statute of Limitations ; contract not making non-payment ground of forfeiture. Where a contract to sell and convey land is made, a large part of the purchase price paid in cash, and promissory notes executed for the remainder, but the non-payment of such notes at maturity or otherwise is not made a ground of forfeiture or rescission of the contract; and the purchaser takes possession and makes substantial improvements on the land, which meanwhile increases in value ; and such possession is retained for nearly twenty years, and never agreed to be surrendered, but the purchase-money notes are never paid, and their collection is barred by the Statute of Limitations ; held, that the vendor cannot, during the non-occupancy of such land by the vendee, lawfully re-enter possession and hold it, merely because of the non-payment of the notes; and further held that, in the event he does so re-enter, ejectment by the vendee will lie to recover possession.</p>

Error from Lyon district court. Hon. W. A. Randolph, Judge. Error from Jackson district court. Hon. L. A. Myers, Judge. In August, 1864, Aaron Foster, who was the owner of land situated in Jackson, Shawnee and Lyon Counties, died at his home in Jackson County.

<p>1. Credibility oe Witness — record of conviction of person of same name competent to affect, without proving identity. For the purpose of affecting the credibility of a witness produced by the plaintiffs, it is competent for the defendants to introduce . an authenticated record showing a conviction for felony .of a person of the same name as the witness, without other proof that the person convicted was the same one who testified as a witness in the case.</p> <p>2. Identity oe Name — personal identity presumed from, in absence of proof to contrary. Ordinarily, identity of name is prima facie evidence of identity of person, and it devolves upon those who deny the identity to overcome the presumption by proof.</p> <p>3. Evidence Examined — and held sufficient. Evidence examined, and held to be sufficient to support the findings and judgment of the court.</p>

<p>1. Errors in Admitting Testimony — in particular case, held not ground for reversal. Claims of error in the admission of testimony considered, and held insufficient to warrant a reversal of the judgment.</p> <p>2. Attorney’s Eee Against Railroads — statute allowing, in actions for causing fire, constitutional. Section 2 of chapter 155 of the Laws of 1885, which authorizes the allowance of an attorney’s fee in actions against railroad companies to recover damages caused by fire in the operation of the railroads, does not violate the first and eighteenth sections of the Bill of Rights of the Constitution of this State, or section 1 of article 14 of the Constitution of the United States, but is a valid law.</p> <p>3. Fire erom Locomotive — that damage attributable to, may be proved by circumstantial evidence. In an action against a railroad company to recover damages for the destruction of an elevator by fire alleged to have been negligently caused by the company in the operation of its railroad, it is not indispensable to prove by direct evidence that the fire escaped from an engine on the defendant’s road; but if the circumstances shown are adequate to convince reasonable men that the fire was so caused, the jury may properly base a verdict thereon; and, held, that there was sufficient testimony in this case to uphold a verdict against the Company.</p> <p>4. New Trial — need not be granted in doubtful case where jury have acted fairly, though judge would have decided other way on the evidence. While it is the imperative duty of the trial court to sustain a motion for a new trial in all cases where there is an utter failure to prove any essential fact necessary to support the verdict, and also where the judge is of the opinion that the verdict is clearly opposed to the weight of the testimony, yet in cases of doubt, where there is sufficient testimony to support the verdict, if the court after a full consideration of it approves the verdict and enters judgment thereon, this court will not reverse that action merely because the judge states that he doubts the correctness of the verdict and would not have found as the jury did if the case had been submitted to him as a trier of the facts. In doubtful cases, where the jury have acted fairly and conscientiously on conflicting evidence, the trial court may properly defer to the judgment of the jury and approve a verdict, even though acting on its own judgment alone it would have reached the opposite result.</p>

Error from Saline District Court. Hon. R. F. Thompson, Judge. This was an action against Lalla C. Collins, as administratrix of the estate of A. F. Harsh, deceased, and also against W. M. Clark, E. W. Ober and J. B. Shellabarger, as sureties on her administration bond. March 14, 1890, Lalla C. Collins was removed as administratrix and Thomas H. Davis appointed in her stead.

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

<p>Officer of Corporation — taking advantage of stockholder’s ignorance of value of .jtock, selling at advance over stockholder’s price and concealing facts, liable to stockholder for all profit made. The stockholders of a corporation, being ignorant of the selling value of their stock, authorized the president of the company to find a purchaser and effect a sale of their shares at par; and such president, at and before such time, was in secret correspondence and negotiation for the sale of the stock, with a view to a large profit to himself, and by affirmative acts and misrepresentations concealed his transactions from the stockholders, and effected a sale of their stock for a sum largely in excess of par. Held, that he cannot retain such excess, but must account to the stockholders for the profits made; notwithstanding he had stated to them that he would retain for his services as agent any sum realized above that for which he was authorized to sell.</p>

<p>Injury Resulting in Death — action for, maintainable only for next of kin. Action begun by injured person who afterward dies from injury, does not survive to personal representative. Where the injured person dies from other causes, an action for personal injuries survives to the personal representatives, under section 420 of the Civil Code. If death result from the injuries, an action cannot be maintained by the personal representative of the deceased for the benefit of the estate, but may, under section 422 of the Civil Code, be brought for the benefit of the next of kin. McCarthy v. Railroad Co., 18 Kan. 46 ; Eureka v. Merrifield, 53 Kan. 794.</p>

<p>1. Tax Deed — containing untrue recital of material fact, void if attached before running of Statute of Limitations. The taxes on a city lot being delinquent, it was offered for sale by the treasurer, and the north four-tenths thereof sold for the whole amount of taxes levied on the lot. A tax deed issued on this sale recited that the north four-tenths was subject to taxation, and that it was sold for the amount of taxes levied on it; but the amount of taxes recited in the deed was the amount levied against the whole lot. Held, that when attacked before the Statute of Limitations has run, the deed is voidable and conveys no title.</p> <p>2. Eerob Waived — in judgment declaring taxes a lien, by paying amount into court. A judgment declaring the tax deed invalid, but requiring the defendant to pay a sum adjudged to be a lien on the land for taxes paid by the purchaser, having been rendered, and the defendant having paid the amount into court for the use of the plaintiff, he cannot thereafter prosecute a petition in error to reverse the judgment requiring the payment of such taxes.</p>

<p>Tax Deed — action under, barred in two years after original owner takes possession of vacant land, though five-year limitation has barred affirmative attach by him. A party who seeks to recover lands sold for taxes, claiming under a tax deed duly recorded, must bring his action within two years after his cause of action accrues; and where the land remains vacant for more than five years after the tax deed is recorded, and the holder of the original title then takes and holds possession thereof for more than two years before suit is brought by the holder of the tax title, the action of the latter is barred by the third subdivision of section 16 of the Code of1 Civil Procedure.</p>

<p>Homestead Exemption — may be claimed by selecting parts of several tracts contiguous to debtor's residence.and to each other; and notwithstanding erroneous claim made, the court on motion to set aside sale should permit debtor to select. A homestead claimant owning more than 160 acres of land, who attempts, under the statute (section 2, chapter 38 [ ¶ 2997 ], General Statutes of 1889), to select as his exemption 160 acres upon which he does not reside, but a portion of which is connected by contiguous tracts with the one upon which he does reside, is not to be denied an exemption in such portion as' is thus connected merely because he omits to claim it in connection with the tract upon which he lives; and, in such case, on a motion by him to vacate a sheriff’s sale of the land claimed as exempt, the court should put him to his election between such parts of the claimed land as can be so connected with the tract upon which his dwelling house is situated, and should sustain his motion to vacate as to the portion selected.</p>

<p>Error from Scott District Court. Hon. J. E. Andrews, Judge.</p>

<p>Appeal prom Probate Court — cannot be taken by railroad company from order refusing revocation of appointment of per- 1 sonal representative intending to prosecute personal-injury action. While a railroad company may suggest to the probate court the invalidity of the appointment of an executor or administrator who proposes to prosecute a claim against the company, it is not entitled to an appeal from the decision of the court refusing to revoke such appointment. . .</p>

<p>1. Preliminary Examination — transcript of, filed in district court may be amended at trial. After a justice of the peace has certified to the district court the record of a preliminary examination of an accused person held by him for trial upon a charge of crime, he may, upon such trial, by leave of the court, ' complete such record, in any respect in which it is deficient, by additional entries therein not inconsistent with the record as previously made and certified.</p> <p>2. Jury — may, in counties of over thirty thousand inhabitants 'as elseiohere, be completed by summoning bystanders. Under the statute relating to the selection, summoning and service of jurors in counties having over thirty thousand inhabitants (ch. 166, Laws 1887), the court may, as in like cases in other counties, complete a jury panel from among the bystanders, when there shall not be enough regular jurors present for service.</p>

<p>Appeal from Montgomery District Court. Hon. A. H. Skidmore, Judge.</p>

<p>' Tax Title — mortgagee not in possession not precluded from acquiring. Oae who stands in the mere relation of mortgagee is under no obligation to pay taxes on the mortgaged premises, nor is he precluded from acquiring a tax title thereto based on tax sales made before he went into possession of the premises.</p>

<p>1. Speculative Damages — hypothetical “ boom” value of town lots not allowed for breach of contract. Profits upon the sale of town lots at prices beyond their present market value, and which depend for their realization upon the working up of a “boom,’’ and upon the contingencies and uncertainties of the future, are speculative and conjectural in character, and cannot be allowed as damages for the breach of a contract.</p> <p>2. Written Agreement — plain and unambiguous, error to tell jury to consider what parties “ contemplated ” or “ expected.” In an action for, or an offset of, damages by a mortgage debtor against his creditor for the premature institution of a foreclosure suit, and for refusal to release parts of the property from the mortgage lien, where the mortgage contract together with other collateral and contemporaneous written agreements are plain and unambiguous in their terms, it is error to instruct that the jury may take into account what was “ contemplated ” or “ expected ” by the parties, as to the way and means by which the debtor was to realize money with which to discharge the mortgage debt.</p>

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

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

<p>Error from Shawnee District Court. Hon. Z. T, Hazen, Judge.</p>

Error from Leaven-worth District Court. Hon. Louis A. Myers, Judge. On the seventh day of August, 1891, Medora E. Lamsdale, while crossing the Atchison, Topeka & Santa Fe railroad in a spring wagon, at a crossing in Leavenworth County, was killed by a west-bound train. The team which hauled the wagon was driven by her husband, George E. Lamsdale. Ray and Sue Powers, brother and sister of the deceased, were also in the wagon at the time, and Miss Powers was also killed.

<p>1. Negligence — in ivater-works company not to guard against accidents to small boys permitted to resort to deep reservoir for amusement. A water-works company, which maintains upon its grounds deep reservoirs of water attractive to small boys, who to its knowledge and with its permission resort thereto for fishing and for play, and which takes no reasonable precautions to prevent accidents to them while engaged in such amusements, is liable in damages if one of them, without negligence upon his part, falls in and is drowned.</p> <p>2. -- whether intelligent boy guilty of, in resorting to sueh reservoir for amusement, question for jury. The question whether a bright, intelligent boy eleven years of age, who was drowned in venturing to a deep and dangerous reservoir for fishing and for play, was negligent in so venturing, is for the determination of the jury and not the court.</p> <p>3. -■ alleged in Only general terms, motion lies to make pleading more definite and certain. A pleading containing only a general allegation of negligence is subject to a motion to make more definite and certain.</p>

<p>Error from Woodson District Court. Hon. L. Still-well, Judge.</p>

Error from Shawnee District Court. Hon. Z. T. Hazen, Judge. This was an action to foreclose a mortgage. The defendants answered, and the plaintiff filed a general denial as a reply. On an agreed statement of facts, the substance of which is stated in the opinion, the court below rendered judgment in favor of the plaintiff. The defendants thereupon brought this proceeding in error.

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

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

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

<p>Error from Cowley District Court. Hon. A. M. Jackson, Judge.</p> <p> missed. </p>

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

<p>Divorce Denied — court may decree equitable division of prop-, erty, regardless of which party holds the title. In an action for divorce, the court found both parties guilty of wrongdoing and refused a divorce to either. It was also found that there was no probability that the parties would ever live together, and, further, that the wife held the title to all the real and personal property accumulated by the contributions and labor of both parties. The court, thereupon, under section 613 of the Civil Code, proceeded to make what appears from the facts to be an equitable division and disposition of the property, decreeing a tract of real estate to the husband. Held, that the law authorizes such division and ■ disposition of the property as was-made.</p>

<p>Original proceedings in quo warranto.</p>

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

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

<p>1. Township — abolished by transfer of all its territory to another county. When the territory included in a municipal township of one county is all transferred to, and included in, a new county, such township is thereby abolished, and the new county becomes its municipal successor.</p> <p>2. -- and townships organized from the territory, by county to which transferred, not liable on bonds as original township's successor. The township of L. in the county of F. issued bonds, under an act of the Legislature, without a vote of the people. Afterward, all the territory comprised in the township was included in the new county of K., by act of the Legislature. After the organization of K. county, the townships of H. and L. were established, taken entirely from territory formerly included in the old township of L., and the township of S. S., partly from such territory. Held, that these three townships were not, nor was either of them, the municipal successor of the old township of L.; and that, where no such liability has been imposed by the Legislature, they are not liable for the payment of its bonds so issued.</p>

<p>Error from Harvey District Court. Hon. F. L. Martin, Judge.</p>

<p>Demurrer to Evidence- — held improperly sustained in action for tiegligence. The evidence in this case is examined and held sufficient to require its submission to the jury, and nothing appears which the court can say as a matter of law defeats the plaintiff’s action.</p>

Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge. This was an action by Joab Mulvane against A. J. Tullock and W. M. D. Lee upon an injunction bond. No service was had upon Lee, and the case proceeded to trial and judgment against Tullock alone. The case was tried by the court without a jury, and when the plaintiff’s evidence was closed Tullock demurred thereto, and, without other testimony, the matter was submitted to the court.

<p>1. Water Company — flushing mains, must not negligently imperil persons using streets for travel. The fact that a municipality confers upon a water company the right to place its hydrants in the streets and to open them for the purpose of flushing its mains, gives the company no license or right to flush at such times and in such a manner as to unnecessarily impede travel or imperil the safety of those passing and repassing over the street.</p> <p>2. -permission to flush imposes obligation to use reasonable eare. The license to flush carried with it the obligation to do so with reasonable care and a due regard for the rights of others.</p> <p>3. - open hydrant calculated to frighten horses. The testimony examined, and held that it tends to show that an open hydrant, from which water was thrown about ten feet into the street with considerable noise and spray, is calculated to frighten ordinarily gentle horses.</p> <p>4. - and company bound, for that reason, to take precautions for safety of people traveling streets. In view of this fact, it was the duty of the water company, in flushing its mains, to adopt such precautions, and exercise such care, for the protection and safety of those traveling upon the streets, as an ordinarily discreet and prudent person would, under like circumstances, adopt and exercise.</p> <p>5. -whether precautions taken, sufficient, question for jury. Ordinarily it is a question of fact, in each case, whether the precautions taken and the care exercised are sufficient to warn and protect travelers who are using ordinary care.</p> <p>6. Streets — persons using, not bound to keep eyes on pavement watching for dangers. Persons using a street which is in constant use, and when their attention has not been called to any obstructions or perils thereon, have a right to presume that the street is reasonably safe for ordinary travel. While they must act with reasonable care, they are not required to keep their eyes upon the pavement continuously, watching for obstructions or pitfalls.</p> <p>7. - and finding that person injured by horse becoming frightened, was using due care, conclusive. Upon examination of the testimony, it is held that the question whether the plaintiff below was in the exercise of due care when her horse was frightened and the injury inflicted, was fairly a question for the jury, and that the finding in her favor upon the question is conclusive.</p>

<p>Legislative Journals — leaving it doubtful whether constitutional majority voted for bill, enrolled bill conclusive of constitutional passage. Chapter 111 of the Laws of 1891, relating to descents and distributions, was duly authenticated by the legislative officers, approved and signed by the Governor, deposited with the Secretary of State, and published as a valid enactment. Its validity being challenged on the ground that the required affirmative votes were not cast in favor of the bill, the journal was examined, and the entries therein respecting the passage of the act were found to be ambiguous and conflicting. Some of the recitals and entries indicated that a constitutional majority had voted for the bill, while others indicated the contrary. As the enrolled statute is strong evidence of the regularity of the passage of the act and of its validity, and conclusive evidence of such regularity and validity unless the journal shows clearly, conclusively, and beyond all doubt, that the act was not passed regularly and legally, it is held that the act in question is not impeached or overthrown by the entries in the journal.</p>

<p>1. Amendment oe Petition — introducing new cause of action to conform pleading to facts proved, not permissible at trial. An amendment of a petition, introducing a new and distinct cause of action, after the issues have been joined and the trial begun, is not permissible for the purpose of conforming the pleadings to the facts proved, as it would “ change substantially” the claim of the plaintiff. Civil Code, § 139.</p> <p>2. -record held not to show all parties treated petition as amended. An examination of the proceedings does not warrant the assumption that all the parties and the court treated the pleadings as amended and as bringing in issue a cause of action not mentioned in the pleadings.</p> <p>3. County-Tkeasuby Examination — not competent evidence as to condition of treasury at time. The verified report of the examination of the county treasurer’s office, made by the probate judge and two examiners appointed to assist him, under the provisions of sections 1708-9 of the General Statutes of 1889, is not competent evidence as to the condition of the treasury when the examination was made.</p>

<p>Error from Wyandotte District Court. Hon. T. P. Anderson, Judge.</p>

<p>Error from Reno District Court. Hon. M. P. Simpson, Judge.</p>

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

<p>Injunction Pending Quo Warranto — will not be granted to prevent payment of fees and salary to incumbent, though insolvent. A claimant to a public office, suing for its possession, is not entitled to an injunction restraining the payment to the incumbent of the fees and salary of the office pending the determination of the contest, although such incumbent may be insolvent.</p>

<p>1. Taking Girl eor Immoral Purposes — information for, charging in one count prostitution as purpose, in another count, concubinage, held, under circumstances, refusal to require State to elect not error. The defendant was prosecuted for taking from her father and mother, without their consent, a girl under eighteen years of age, for the purposes of prostitution and concubinage. The information was in two counts: the first, that the taking was for the purpose of prostitution, and the second, that it was for the purpose of concubinage. The court refused the request of the defendant that the State be compelled to elect on which charge it would rely for a conviction; but, after a verdict finding defendant guilty on both counts, the State entered a nolle prosequi as to the first count, and judgment was given upon the second. Held, that as the charges arose out of the same transaction, and the proof as to the taking was necessarily the same as to both charges, and the evidence offered was entirely pertinent to the charge upon which the conviction rests, the refusal to require an election was not prejudicial to the substantial rights of the defendant.</p> <p>2. -■ the taking away need, not be physical; inducements sufficient, though not immediately acted upon. As to what constitutes a taking, under section 35 of the Crimes Act, the court charged the jury as follows: “In order to constitute a taking by the defendant, under the law, it is not necessary that the defendant should have used any force or have exercised any physical control over the girl in taking her away, or have been personally with her at the time of her leaving, or have gone in person with her; it is sufficient if he procured or caused her to go away, by any persuasion, enticement or inducment, offered, exercised or held out by him to the girl, or by furnishing her the means or money with which to go away. ” “It is not necessary that the persuasion, enticement, or inducement should have been made or offered, or the money or means furnished, at the time of the girl’s leaving; but, if the defendant, for the purposes charged, persuaded, or enticed, or offered inducements to, the girl to leave her father and mother, and furnished her means with which to go away, and she did not go away at that time, but went away at a subsequent time, and such going away was caused by, and was the result of, the persuasion, enticement or inducements offered, or money or means furnished, by the defendant, such facts would show a taking within the meaning of the law.” Held, that the instructions are not erroneous.</p> <p>3. - offense complete when, by enticement or otherwise, girl removed, for the illicit purpose, beyond, the control of parents, without their consent. The important element of the offense charged is the taking of the female from her parents, without their consent, for the illicit purpose; and this may be accomplished by the persuasion, enticement, device, or other active influence of the defendant; and when she is thereby removed beyond the control of her parents, or others having her in charge, the offense is complete.</p> <p>4. -where the parties agree to live as man and wife indefinitely, offense of concubinage complete when illicit relation begins. A long-continued illicit intercourse is not necessary to constitute the relation of concubinage; but where a single woman and a man agree to cohabit with each other generally, as though the marriage relation existed between them, without fixing any limit as to the duration of the relation, she becomes his concubine as soon as such cohabitation begins.</p> <p>5. - consent of girl to go, or her previous solicitation of others to take her, no defense. The fact that the female may have consented to go with the defendant, or that she may have solicited others to take her on another occasion, will not excuse the criminal act of the defendant.</p> <p>6. Qualification of J ubob — as to impartiality, determined from his entire examination. The condition of a juror’s mind is to be determined from the whole of his examination; and the single remark that he once had an opinion in the case, based on a newspaper statement, is not conclusive of a disqualification, where it appears he had in fact no opinion as to the guilt or innocence of the defendant and that he was free from any bias or prejudice in the case.</p> <p>7. Reopening Case — after testimony closed, largely in court's discretion. The matter of reopening a case upon the application of a party after the testimony has been closed and the witnesses of the opposing side discharged, is largely within the discretion of the court.</p> <p>8. Admonishing Juey — not required at each adjournment where jury kept together throughout trial. Where the jury are kept together throughout the trial, under charge of a sworn officer of the court, it is not necessary that the statutory admonition provided for in section 235 of the Criminal Code should be given at each adjournment of the court.</p> <p>9. Evidence Examined — and held sufficient. The testimony examined, and held to be sufficient to sustain the conviction and judgment.</p>

<p>Errsr from Dickinson District Court. Hon. 0. L. Moore, Judge.</p>

<p>Error from Crawford District Court. Hon. Walter L. Simons, Judge.</p>

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

<p>Original proceeding in habeas corpus.</p>

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

<p>Lease op Indian Lands — made in violation of act of Congress, no action ynaintainable for rent. A lease of lands in the Cherokee Outlet was made by the Cherokee Nation to the defendants in violation of section 2116 of the Revised Statutes of the United States. Possession was taken under the lease, and, the defendants failing to pay a part of the stipulated rent an action was brought in behalf of the Cherokee Nation to recover the same. Held,, that as the lease was prohibited by law and illegal, no action can be maintained thereon. [Allen, J., dissenting.]</p>

<p>1. Proceedings in Aid oe Execution — jurisdiction under order for examination in, not ousted by subsequent wrongful arrest. The defendant, against whom a judgment had been rendered and execution issued and returned, was ordered by the judge of the District Court to appear and answer concerning her property. At the time fixed she appeared by attorney, and the matter was, by consent, continued from time to time. Before submitting to any examination she left the county of her residence and went to Thomas County. Thereupon an order for her arrest was issued by the district judge. She was arrested by the sheriff in Thomas County and brought back to Dickinson County, where the proceeding was pending. On the hearing she was discharged from arrest. By consent, the examination with reference to her property was again continued from time to time, and afterward, on a hearing, an order was made appointing a receiver, and directing the application of certain property to the payment of the judgment. Held, that whether the arrest was legal or not, it did not deprive the court of the jurisdiction before acquired to examine the defendant with reference to her property, and make an order for its application to the payment of the judgment.</p> <p>2. -sheriff appointed receiver has same power as any other so appointed. A sheriff appointed receiver of the property of a judgment debtor has the same authority that any other person so appointed would have, and difficulties he is likely to encounter in gaining possession of the debtor’s property furnish no grounds for reversal of the order of appointment.</p> <p>3. Taxation oe Costs — not review able unless motion to re-tax ruled on below. Errors in the taxation of costs must be brought to the attention of the trial court, by motion to re-tax, before they can be reviewed on proceedings in error.</p>

<p>1. Federal-Court Receiver — judgment by state court against, conclusive on Federal court, except as to time and manner of payment. Under sections 2 and 3 of the act of Congress of August 13, 1888, amendatory of the Federal Judiciary Act, receivers over property, appointed by the United States courts, are required to manage or operate the trust property according to the laws of the state in which it is situated, and may be sued, in respect to its management or operation, in the courts of such state, without the previous leave of the court appointing them. In such cases, a judgment rendered in the state court is conclusive upon the Federal court as to the existence and amount of the plaintiff’s claim; but the time and manner of its payment are to be controlled by the court under whose orders the receiver acts.</p> <p>2. Private Nuisance — injured abutting lot owner may sue to abate as a, railroad company’s ditch encroaching by erosion on street. A railroad company has no right to dig a ditch on its right of way, for the drainage of surface water, so near to the line of a street in a town as to encroach upon the street by the erosion of the soil of its banks; and if it does so, the owner of lots abutting upon the opposite side of the street, who keeps a hotel upon them, and whose use of them for such purpose is materially interfered with by the widening of the ditch into the street, may maintain an action for the abatement of the ditch as a private nuisance and for damages caused by it.</p>

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

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

<p>1. Judgment by Default — as conclusive as if on trial. A judgment by default based upon personal service of summons on one of the defendants, is as conclusive against such defendant, upon every matter admitted by the default, as any other kind of judgment.</p> <p>2. -after term, can only be set aside as other judgments may be. Such a judgment, having been duly rendered and entered of record, and the term at which it was rendered having passed, can only be vacated or set aside at the times and in the manner provided by law.</p> <p>3. - answer cannot be filed nor issues be retried while judgment stands. So long as the judgment stands, the defendant has no right to file answers raising issues finally determined by the judgment, and the court has no power to retry them.</p>

<p>Error from Montgomery District Court. Hon. J. D. McOue, Judge.</p>

<p>Indian Lands — after restriction on alienation removed, title by prescription may be acquired in. After restrictions on the alienation of lands patented to incompetent Wyandotte Indians were removed by the treaty of 1867, title thereto might be gained by occupancy under claim of ownership; and where, at the time the treaty took effect, the defendants were in the actual possession of such lands, under void deeds from an incompetent Indian, and continued without interruption to hold such possession, openly, adversely, and under claim of title, until 1891, held, that the Statute of Limitations is a complete bar to an action brought by the heirs of the incompetent Indian to recover the land.</p>

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. This was an action of ejectment. The jury returned a verdict for the defendants, and the plaintiff’s motion for a new trial having been overruled, she brought this proceeding in error. The material facts are stated in the opinion.

<p>1. Witness to Quantity or Value — cannot give another’s estimate or conclusion. In showing the quantity and value of wheat alleged to have been destroyed by fire, a witness should be confined to his individual knowledge and judgment, and not be permitted to give the estimate or conclusion of another, who also made-an examination as to quantity and value.</p> <p>2. Damage by Fire — action for, caused by particular engine and engineer, evidence not admissible as to another engine or engineer. When it is claimed that a certain engine,- in charge of a particular engineer, was defective, and was so negligently managed as to unnecessarily throw out fire, from which damage resulted, testimony of the condition of another engine or of the careless conduct of other engineers is ordinarily not admissible.</p> <p>3. - declarations of section foreman and depot agent, made after fire and explaining its cause, mere hearsay as to company. The declarations of the section foreman and the depot agent of the railroad company, made after the fire occurred, in regard to the condition and management of the engine, and which had no connection with the business committed to them, are mere hearsay.</p>

Error from the Court of Appeals, Northern Department. The plaintiff in error brought in the District Court of Marshall County an action of ejectment, against Wilhelm Hollé and F. Anton Kienlen and wife, to recover lots 6, 7, and 8, in block 23, in the original town of Palmetto, included in the City of Marysville. The defendants denied the plaintiff’s title and right to recover. The case was tried with a jury.

<p>Error from Reno District Court. Hon. M. P. Simpson, Judge.</p>

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

<p>Original proceeding in mandamus.</p>

Error from Shawnee District Court. Hon. T. F. Garver, Judge pro teto. This was a prosecution for embezzlement.

<p>Error from Anderson District Court. Hon. Samuel A. Higgs, Judge.</p>

<p>1. Imprisonment eor Contempt — power to impose, must be clearly conferred. The power of a police judge to imprison for contempt cannot rest on mere implication or inference, but must be clearly expressed in the statute.</p> <p>2. - by police judge cannot be authorized by city ordinance under general-welfare clause of charter. The general-welfare clause, which authorizes a city council to enact such ordinances as may be deemed expedient for maintaining the peace, good government and welfare of the city and its trade and commerce, does not authorize the city council to confer power upon the police judge to adjudge a person guilty of contempt and to imprison him therefor.</p>