Volume 59 — Kansas Reports

<p>1. Will — bequest in, for celebration of mass, held a direct gift to priest, and not a trust void for want of a beneficiary in being. A bequest of a sum of money made in the will of a member of the Roman Catholic Church to a priest of such church, for the celebration of mass for the souls of the testator and another, will be construed as a gift direct to the donee, with an injunction to the performance of the ceremonial named, and not as made to him in trust for such purpose and, therefore, void because incapable of enforcement by beneficiaries in being.</p> <p>2. -English common law avoiding such bequests never part of the common law of this country. The English common law which avoided bequests of the kind above stated as being for superstitious uses, never became a part of the law of this country; and the validity of the gift for the purpose named is, therefore, upheld.</p>

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

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

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

<p>1. Administration — remaining administrators entitled to the estate’s funds in removed administrator’s hands, pending litigation on elaimpresented by him. J, E,andL, were jointadministrators of an estate. L, who had possession of all the funds, was removed from the administration by the probate court. Three claims presented by him against the estate having been' passed on by the probate court were appealed to the District Court. J and E, as the remaining administrators, brought this suit against him to recover the funds in his hands. The case was tried before the appeals were determined, and a judgment rendered against him for all the funds in his hands. Held, that the remaining administrators-were entitled to the .possession of the funds belonging to the estate pending the litigation on the other claims; and that, as neither party asked to have the contested claims determined in this action, the court committed no error in rendering judgment for the full amount of the assets in the hands of the defendants, leaving the contested claims to be determined in the separate actions pending on appeal.</p> <p>2. Appellate Procedure — pendency of motion for rehearing in-Court of Appeals does not extend period for discretionary order for review by Supreme Court. The pendency in the-Court of Appeals of a motion for a rehearing of a case decided in. that court, does not operate to extend the sixty days within which a discretionary order to certify a case to this court for review may be made, but the petition for such certification must,, under the rules of this court, be filed within forty days after the-judgment is first entered, unless a rehearing is, in fact, granted.</p>

<p>Error from Wilson District Court. L. Stillwell, Judge.</p>

<p>Life Insurance — death established, by absence without communication, since 1.883, petition alleging death in 1883, proofs furnished in 1884 too late, and, action barred. The plaintiffs in error, who are the beneficiaries of a certificate of membership of H, in a mutual benefit society, alleged and established the death of H in 1883, by evidence that he disappeared from all his friends and acquaintances at that time and that he had never since been heard from. Proof of his death, which by the terms of the certificate was a condition precedent to the liability of the society to pay, was not furnished until July 1894. Held, that this was an unreasonable delay, and that the Statute of Limitations barred the action.</p>

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

<p>Assignment for the Benefit of Creditors — assignee refusing to proceed for property wrongfully withheld, creditor cannot sue to subject it, but must ask order requiring assignee to act.- A creditor of an insolvent corporation which has made an assignment for the benefit of its creditors, cannot bring an action in his own name against a person who wrongfully withholds some of the assigned property from the assignee, to subject it to the payment of his claim, upon the ground that the assignee after demand and offer to indemnify, refuses to proceed for its recovery. His remedy in such case is by application to the court for an order upon the assignee to act.</p>

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

<p>Error fx*om Lyon District Court. W. A. Randolph, Judge.'</p>

<p>Constitution Abt. 3, §1 — as to sealing process, mandatory. Order of sede tuithout seal, void, and court no potuer to permit seal to be attached after sale. The provision contained in section 1, article 3, of the Constitution that “all courts of record shall have a seal to be used in the authentication of all process,” is mandatory, and an order of sale issued without the seal of the court is void; and the court has no power, after a sale made thereunder, to allow the process to be amended by attaching the seal. [Allen, J., dissenting.]</p>

<p>Error from Kingman District Court. W. O. Bashore, Judge.</p>

<p>1. Forfeiture of County Clerk’s Office — colluding in withdrawing of scalps for second presentation and paying bounties twice is ground for. The.action of a county clerk in permitting scalps of wild animals upon which bounties had been paid tobe taken out and presented a second time, and for which bounties were again knowingly allowed by the county clerk, who issued orders upon the county treasurer which were paid, and the proceeds of which were divided between the county clerk and those acting in collusion with him, is a ground of forfeiture for which the county clerk may be removed from office.</p> <p>2. --- No defense that object was to detect and expose those so colluding with him. The claim that these practices, which continued for some time and with a number of persons, were-for the purpose of detecting and exposing those who were acting in collusion with him, and that he intended to return the money received by himself, does not constitute a defense in the action for removal.</p> <p>3. --— return of money he had thus obtained after he is discovered, does not relieve from forfeiture. The fact that the county clerk returned the money wrongfully obtained from the county treasury after he learned that a disclosure had been made and proceedings were about to be taken against him does not mitigate his misconduct nor relieve him from the penalty of forfeiture which the law declares.</p> <p>i. -immaterial whether bounty law valid or not. Whether the bounty law is valid or invalid, the action of the county clerk in wrongfully assisting to draw money from the county is official misconduct and sufficient cause for removal from office.</p>

<p>Embezzlement by Agent — information for, must aver demand and refusal of amount due in excess of agent’s charges and compensation, and must negative permission to use. To charge embezzlement by an agent for failing or refusing to pay or deliver to his employer, on demand, money or property which comes into his possession by virtue of his employment, as defined in the latter part of section 88 of the Crimes Act, an averment of demand and refusal is essential; and, also, that the amount demanded is due, after deducting reasonable or lawful fees, charges, or commissions for the services of the agent; as well as one that his employer had not given the agent permission to use the money or property alleged to be unlawfully retained.</p>

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

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

<p>1. Hypothetical Question — must be based on evidence. Hypothetical questions to an expert witness should be based upon the evidence, and should not assume the existence of matters, material to the formation of a correct opinion, about which no testimony has been given.</p> <p>2. -must not assume unproved material fact. When the issue in a ease was what one, or more, of several injuries, including the inhalation of illuminating gas, caused or contributed to the death of a person, it was error to assume in a hypothetical question to a medical witness, that such person was found in “a semi-unconscious condition” as the result of breathing such gas, when upon the truth of such assumption the witness in great part founded his opinion, and when the only testimony upon the subject was that, upon entering the room where the person was asleep and arousing him, “he seemed just like a man waking up; seemed a little slow and hard to waken.”</p>

<p>1. Railway Receivers — petition against, and Company, for injury from negligence, not demurrable for defect of parties nor for inconsistency in charging receivers and company with same negligence. A petition alleging a cause of action against a railway company and certain persons named as receivers of its property, is not demurrable on the ground that it shows a defect of parties, nor on the ground that it fails to state a cause of action against either one because the other is charged also with the same liability.</p> <p>2. -but if receivers in exclusive control, recovery .can be only against them. A plaintiff having a just cause of action for injuries caused by the management of a locomotive engine, may prosecute his action against both the railway company and receivers appointed to take charge of its property, and may in one action establish his demand-against whichever is legally liable. But where the receivers are in entire and exclusive control of the property of a railway company, they alone are responsible for injuries occasioned by the negligent management of the property, and a joint judgment against both the receivers and the railway company for an injury so caused is erroneous so far as it imposes liability on the railway company.</p> <p>3. -and in such case, verdict for plaintiff not naming either defendant, construed a verdict against the receivers alone. In such a case where a verdict is rendered in favor of the plaintiff, without naming either of the defendants, it will be construed as a verdict against the receivers alone, and a judgment entered on such verdict against both the receivers and the railway company will be modified by vacating the judgment against the railway company.</p>

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

<p>1. Evidence — testimony in case-made not competent between strangers without other proof that such testimony was actually given. The testimony of witnesses, as recorded in a case-made may not be introduced in evidence on the trial of an action between strangers to the record, without proof by a competent witness that the testimony appearing in the case-made was actually given at the trial as therein recorded.</p> <p>2. -incompetent, not made competent by being set out in pleading of party offering it, though no motion made to strike it out. Incompetent testimony is not rendered competent at the trial because set up in the pleadings of the party seeking to introduce it, notwithstanding the fact that the opposing party has failed to ask that it be stricken out.</p> <p>3. Lease — does not estop tena,nt from disputing title unless his possession ivas taken or is held under it. In order that a lease shall operate to estop a party therein named as lessee, who. is in the possession of the land therein described, from denying the title of the lessor, it must appear that he has either obtained, or retained, possession under and by virtue of the lease.</p>

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

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

<p>1. Motion eor New Trial — court refitsing to hear argument on, and overruling, where ease tried by jury on conflicting oral evidence, judgment reversed without examination of merits. The parties to a law suit have an absolute right to be heard by counsel, not only at the trial of the issues of fact but also on motions involving the substantial rights of the parties; and where the trial court refuses to hear any argument on a motion for a new trial of a case tried to a jury on conflicting oral testimony, and overrules the motion and enters judgment on the verdict, the judgment will be reversed without inquiry by this court into its merits.</p> <p>2. Declaration oe Trainmen — not admissible against railroad company unless made at time of main fact and concerning discharge of declarants’ duties. In an action to recover damages from a railroad company for injuries to cattle caused by delay in the transportation of them, the declarations of the trainmen, as to matters in the line of their respective duties and relating to the cause of delay, made at the time and while they were charged with the duty of propelling the train, are admissible against the company ; but such statements must relate to their conduct or duty at the time. Narrations of past occurrences or of matters concerning which the employees making the statements had no knowledge, and which they did not make in the discharge of any duty, are inadmissible.</p> <p>3. Consignor — of cattle sold for distant delivery may sue railroad company hired by him to transport them, for delay in delivering. One who sells cattle to be delivered at a distant place and contracts with a railroad company to transport them to the place of delivery, has sufficient interest in the cattle to enable him to maintain an action against the railroad company to recover damages for delay in transporting them.</p>

Error from Crawford District Court. J. S. West, Judge. In a collision with a train on the St. Louis & San Francisco Railway, at a point where the two roads cross, C. F. Brantner, a locomotive engineer, while operating an engine on the Kansas City, Fort Scott and Memphis Railroad at Cherry vale, received injuries from which he afterward died.

<p>1. Assignment fob Benefit of Creditors — that assignors treated alleged collaterals as still their own, not admissible, in chief, for assignee, against creditor asserting pledge, unless such conduct was loith creditor’s knowledge. Where the issue between the assignee of an insolvent partnership and a person claiming some of its securities as collateral to a debt, was whether the partners had in good faith deposited the securities, for the benefit of the creditor, in a bank vault to which they had access, and the burden of proof of such issue was upon the assignee, it was error to allow him to prove, in the making of his case in chief, that some of the partners had handled and treated the securities as still belonging to the firm, without also proving knowledge of such acts by the creditor and lack of dissent by him, such evidence not having been drawn out on cross-examination of the partner nor offered in impeachment of his testimony.</p> <p>2. -- assignee's allowance of claim, conclusive upon him in a collateral proceeding. Under the assignment law (Gen. Stat. 1897, ch. Ill, § 28) the allowance of a claim by an assignee is binding upon him unless afterwards set aside for sufficient cause in a direct proceeding, and he cannot after such allowance litigate in a collateral proceeding the existence or amount of such claim.</p> <p>3. Delivery of Securities as Collateral — sufficient, where otherwise valid, though securities left in vault of pledgor hank. A valid delivery of promissory notes as pledges may be made by separating them from other like notes, placing them in a package with a memorandum of the terms of the pledge, pointing them out to the pledgee and securing her assent to the transaction, delivering them to her husband in her presence as her agent, although he was also one of the pledgors, and then placing them in the hands of an employee of the pledgors, with instructions as to their care assented to by the pledgee, one of which instructions was to keep them in a bank vault to which the pledgors had access.</p> <p>á. Various Errors — considered. Errors in the rejection of evidence, in certain instructions to the jury, in inconsistencies between special findings of the jury, and in findings by it contrary to the evidence pointed out and commented upon.</p>

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

<p>1. Appellate Procedure — to review question whether matter in supplemental answer permitted under %568 of Code ivas determined on hearing of same party's motion for new trial, previously overruled, and suspension of judgment therefore erroneous, record must contain all the proceedings. In a case in which verdict and judgment were rendered for the plaintiff, and the defendant’s motion for new trial was overruled, and after-wards upon proceedings instituted by him under section 568 of the Civil Code (section 601 of the Code as contained in the General Statutes of 1897), the judgment was temporarily vacated to allow the filing of a supplemental answer alleging facts which occurred prior to the order overruling the motion for- new trial, the question whether such new matter had been litigated and determined upon the hearing of the motion for new trial, and whether because thereof the order temporarily vacating the judgment had been erroneously made, can only be determined from the record of the whole case, including that of the interlocutory proceedings in which the judgment was vacated.</p> <p>2. Two Cases Tried at Same Time — one by a pro tern., the other by the regular judge, no objection, defeated party not prejudiced cannot complain; and trial by regular judge void if either is. While a district court is a single judicial body, and cannot be divided into two or more parts presided over by two or more judges, yet, where a case is tried before a judge pro tem., and at the same time the regular judge also holds court and tries cases, and the defeated party in the case before the judge pro tem. makes no objection to the division of the court into two tribunals, he will not afterwards be heard to complain without a showing that he was in fact prejudiced by such irregular proceeding ; and held further, that if in such case the proceedings of either court are void or erroneous they are those of the one presided over by the regular judge.</p> <p>3. Error Waived — by moving pro tem. judge for judgment on the special findings by jury, received by regular disqualified j udge an d corrected by jury made under his direction. Where the judge of the district court is disqualified to try a case, and it is tried before a judge pro tem. but in his absence the regular judge receives and announces the verdict and findings of the jury without objection, and upon the motion of the defeated party the regular judge causes the jury to correct their answers to some of the special questions, and afterwards upon the return to the bench of the judgepro tem. the defeated party moves for judgment upon the special findings, he will be held estopped from complaining of the action of the regular judge in receiving and announcing the verdict and findings of the jury.</p>

<p>1. Rights or Persons not Parties — not discussed by supreme court unless necessary to determination of rights of parties. Unless necessary to the determination of the rights of the parties before it, the court will not discuss questions affecting large interests of others who are not parties to the case.</p> <p>2. Forreiture or Charter — adjudged for corporation's disregard of §§ ¿¡3,43,44, ch. 06, Gen. Slat. 1897. A corporation created and organized under the laws of this state, which fails for more than six months to keep its general offices for the transaction of business within this state, as required by sections 42 and 43, and fails to keep the office of its treasurer and its moneys within this state, as provided in section 44, of chapter 66 of the General Statutes of 1897, forfeits its charter.</p>

<p>Error from Labette District Court. J. D. McCue, Judge.</p>

<p>Sheriee’s Return oe Order oe Sale — omitting to show due notice, though shown by printer’s affidavit, and price wholly inadequate, error to confirm sale. A return of a sheriff on an order for the sale of land, which fails to show that notice of the sale for the time and in the manner required by law was duly given, is irregular, and the irregularity is not entirely cured by an accompanying affidavit of the printer showing the essential facts omitted from the return. Where the sale was made at a wholly inadequate price, it is error to confirm it on such a defective return. [Johnston, J., dissenting.]</p>

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

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

<p>1. Expert Comparison op Signatures — dispute as to signature of paper a collateral issue, letters not admissible for comparison unless genuineness conceded. Unnecessary collateral issues, calculated to divert the attention of the jury from the substantial issues in the case, should be avoided. In an action involving the validity of a chattel mortgage claimed by the defendants to be fraudulent, where a property statement, purporting to have been signed by the mortgagors and given to a commercial agency, is offered in evidence, and the signature to it is denied, it is error to enter into an inquiry into the genuineness of letters, also purporting to have been signed by the mortgagors, to be used as a basis of comparison by experts with the signature to the property statement, where the genuineness of the signatures to the letters is not conceded.</p> <p>2. Chatter Mortgage — near relationship of parties to, does not cast on mortgagee burden of proving good faith. For valid debt, not void because mortgagee knew mortgagor’s fraudulent intent as to other creditors. Mere excess of property over debt not badge of fraud. The burden of proving fraud rests on the party alleging it. Where a mortgage was given to the plaintiff by his son and son-in-law, who were partners, and it was claimed by the defendant that the mortgage was fraudulent, it is error to charge that the near relationship of the parties affords ground for suspicion and casts on the plaintiff the burden of proving the good faith of the transaction, or, that knowledge of, or notice to the creditor of, an intent on the part of the debtor to hinder or defraud his creditors will render the mortgage void, even if made in good faith to secure a valid debt, or that taking security on more property than is necessary to pay .the debt is a badge of fraud.</p> <p>3. Statute oe Frauds — requirement of section 3 as to change of possession does not apply to chattel mortgages. Instructions should be applicable to the facts of the case on trial. Where the question at issue was the validity of a mortgage under which the plaintiff claimed, it was error to give the jury the first part of the third section of the Statute of Frauds, which relates only to sales of personal property, and has no application to chattel mortgages.</p>

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

<p>1. Mistake in Judgment — as to description of lands affected, may be corrected, after term, by action brought for the purpose. A reformation or correction of material mistakes, in judgments and orders of court constituting evidences of land title, may be had by petition in equity, filed in the court in which such mistakes occurred, at a term succeeding the one at which they were committed.</p> <p>2. Rescission op Contract — decreed where one parly with full knowledge takes advantage of other party’s material mistake. When a person ignorant of his ownership of a valuable property right, sells it for an inadequate consideration, and transfers it by an instrument in which it is not specifically mentioned, and under which title to it passes only by construction of loose and general terms, and the purchaser has full knowledge of it, and of its value, and of the owner’s ignorance concerning it, equity will adjudge the rescission of the contract of sale as fraudulently obtained.</p> <p>3. -offer to restore all received under contract not necessary before suit, but sufficient if made in petition. As a general rule, where equity requires the restoration of what has been received under a contract as a condition to its rescission, it- is sufficient to make the offer of restoration in the petition, and not necessarily before the bringing of suit.</p>

<p>1. Case-Made — “ the substance of all the testimony ” deemed same as “all the testimony.” Where there is a statement in a case-made that it contains “the substance of all the testimony,” the evidence will be deemed to be before the court for the purposes of review.</p> <p>2. Fraud by Trustee — sale by fiduciary to third person to convey to him, is sale by fiduciary to himself. An administrator or guardian is prohibited from purchasing trust property at his own sale, and a sale by him to another who does not pay any consideration, and who immediately transfers the property to the administrator or guardian, is void, and as much a violation of the fiduciary relation and as great a fraud in the eye of the law as if the sale had been made directly to himself.</p> <p>3. -and final settlement of trust will not estop beneficiary from asserting title to such land as against the fiduciary, unless beneficiary knew the facts. Although a final settlement is made by the administrator or guardian, the owner of the land and beneficiary of the trust will ordinarily not be estopped from asserting title to land so wrongfully obtained by the trustee, unless the beneficiary had full knowledge of the wrongs practiced by the trustee and of the facts upon which the rights of the beneficiary are founded.</p> <p>4. -nor will the fads of improvements made, with beneficiary’s knowledge, during minority. Nor can the fact that the trustee made improvements on land so obtained during the infancy of the beneficiary, and with her knowledge, prevent her from claiming the land after she attains majority.</p> <p>5. Instructions Examined. — Instructions examined and some language pointed out which is deemed to be of a misleading character.</p>

<p>Error from Nemaha District Court. R. M. Emery, Judge.</p>

<p>1. Tax Lien under Void Tax Deed — not allowed, where description in tax proceedings so indefinite that particular tract or interest assessed cannot he 'determined. A tax deed to a city lot was held to be void, and the holder of the same claimed a lien for the taxes, penalties and costs. In the tax proceedings, the lot was assessed to two owners — a part of the lot to each. There was nothing to indicate what part of the lot was owned by or intended to be assessed to each owner, nor that both together were the owners of the whole of either lot, nor was there any testimony to show that either owner was in the actual possession of any particular parts of the lot, or that the same portions were not assessed or taxed for the same year by other description. Held, that the description was too indefinite and imperfect to warrant the allowance of a tax lien upon the lot or any*part thereof.</p> <p>2. - definite description in tax deed does not cure indefinite assessment. The fact that the tax deed issued purported to convey the whole of the lot did not operate to cure the indefinite assessment nor to supply the proof that the tax was actually levied against a specific and definite parcel.</p>

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

<p>1. Appellate Procedure — fact apparently assumed at trial, and impliedly admitted by testimony offered and instructions requested by plaintiff in error, judgment not reversed for want of formal proof of such fact. In an action by an employee against the receivers of a railway company to recover damages for injuries received in the course of his employment, where the appointment and qualification of the receivers are admitted by the answer filed by them, and other issues are presented as to the merits of the case, and the trial proceeds throughout without any question being brought to the attention of the court as to whether the receivers were in possession of the particular 'train causing the injury, and where the testimony offered and the instructions asked by the defendants impliedly admit that they were operating the train, this court will not reverse a judgment rendered against them, merely because of a want of formal proof that the train was operated by employees of the receivers.</p> <p>2. Fellow Servants — at common law, conductor, and brakeman subject to his orders, are not. At common law, a conductor having full chai-ge and control of a train of cars is not a fellow servant with a brakeman who acts under his orders. In such a case the conductor is the representative of the principal, and the latter is responsible to the brakeman for the conductor’s negligence.</p> <p>3. Province oe Jury — to determine whether brakeman injured through his own, or conductor’s negligence. Where a conductor of a railway train orders a brakeman to hurry up and examine the couplings and get the train in shape, and promises the brakeman that he will keep watch, and thereafter, without warning, and while the brakeman is engaged in removing a defective and unsuitable rod used in a coupling, signals the engineer to back other cars against the stationary ones, and thereby causes the brakeman to be run over and maimed, it is within the province of the jury to determine whether the injury is attributable to negligence on the part of the conductor, or of the brakeman; and a verdict finding the conductor guilty of negligence, and assessing damages against the receivers of the company in charge of the property, will not be disturbed by this court.</p>

<p>Error from Brown District Court. R. M. Emery, Judge.</p>

<p>1. Adverse Possession — must be such as to raise presumption that real owner knows it is adverse to his title. To constitute adverse possession of land, it is not absolutely necessary that there should be inclosure, buildings, or cultivation, but the acts done must be such as to give unequivocal notice of the claim to the land, adverse to the claims of all others, and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken.</p> <p>2. -payment of taxes does not constitute. The payment of taxes alone, while some evidence of ownership, does not constitute adverse possession.</p> <p>3. -- certain aets held not to establish, in particular case. The taking of a deed, the payment of taxes, and an occasional trip by the claimant to inspect wild, uninclosed prairie land, together with permission given by him in one instance for the cutting of grass thereon, is not deemed to be sufficient under the circumstances of this case to establish an adverse possession.</p>

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

<p>Appeal from Rooks District Court. Chas. W. Smith, Judge.</p>

<p>1. False Pretenses — selling void school orders, indorsement by accused no defense where pretenses, not indorsement, relied on by buyer. In a criminal prosecution for obtaining a check for money by false pretenses, where the transaction charged in the information and shown by the evidence is a sale of purported school-district orders which were invalid and without value, the mere fact that the defendant indorsed the warrants and thereby rendered himself liable as a guarantor for the amounts stated in them does not necessarily defeat a criminal prosecution. If the party defrauded parted with his money on the faith of the false pretenses, and did not rely on the personal responsibility of the defendant, a conviction may be had.</p> <p>2. -information for, charging obtaining check and getting money on check, State may elect to stand on obtaining check. In such a case, where the information charges the defendant with obtaining a check on a bank and afterwards obtaining money on the cheek from the bank, and the State, before the conclusion of the trial, elects to stand on the charge of obtaining the check, the statement of all these facts in the information affords no ground for a reversal of the judgment.</p> <p>3. Evidence Examined — and held sufficient. Testimony considered and held sufficient to sustain a conviction.</p>

<p>1. Embezzlement — officer of organization whose by-laws require him to collect and turn over money, is trustee of express trust. One who takes upon himself an office in a fraternal and benevolent organization, the duties of which office as set forth in the printed or written by-laws and regulations are to collect the moneys of such organization and pay them over to another of its officers, is the trustee of an express trust, within the meaning of section 95, chapter 100, General Statutes 1897, and is liable under such statute for the embezzlement of the money collected by him.</p> <p>2. Fraternal Organization — not a partnership. A fraternal and benevolent organization which exists for the mutual aid of its members and not for the making of profits in the conduct of business, is not a partnership; and one of its members who wrongfully converts its funds to his own use cannot be absolved from liability therefor upon the ground that such wrongful act is not embezzlement but is the conversion of partnership funds.</p>

<p>1. Departure in Pleading — petition in trover alleging general ownership, reply admitting special ownership, is. When, in an action for damages for the conversion of personal property, the petition alleges ownership generally, but the reply admits the ownership to be special, as that of a mortgagee, such change of allegations constitutes a departure in pleadings; and, inasmuch as a plaintiff can recover only upon the cause of action stated in his petition, an objection to evidence under the repugnant matter stated in the reply should have been sustained.</p> <p>2. Chattel Mortgage — residue of property after debt satisfied, subject to execution in mortgagee’s hands, regardless of agreement with mortgagor to sell and pay other creditors. When a mortgagee of personal property has sold enough of it to satisfy the mortgage debt and expenses of sale, the residue becomes subject to seizure upon execution against the mortgagor; and the mortgagee cannot withhold it from an officer with process of sale, upon the ground that he has agreed with the mortgagor to continue in possession of the property and to sell it, after satisfaction of his own debt, and out of the proceeds of the sale to pay orders drawn upon him in favor of the mortgagor’s creditors, and that in pursuance to such agreement he has, in writing, accepted and agreed to pay such orders.</p>

<p>Error from Anderson District Court. A. W. Benson, Judge.</p>

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

<p>1. Federal Court Receiver — state court action against, not affected by notice requiring presentation of claims to special master. While an action was pending in the State court against the receiver of a railroad, appointed by the Federal court, a notice was given requiring all persons having claims or demands against the receiver to present them to a special master within a given 'time. Held, that the notice did not preclude the prosecution of the pending action to final judgment in the State court.</p> <p>2. -- allegation that property and funds have passed beyond control of, no defense, when termination of receivership not averred. The liability of a receiver is official, and not personal, and a judgment rendered against him is payable out of the trust property and funds brought within the custody of the court; but when it does not appear that the receivership is terminated a mere averment that the property and funds have passed out of his possession and beyond his control will not constitute a good defense in an action against him for personal injuries alleged to have been negligently inflicted.</p> <p>3. Contributory Negligence — injured employee's general reputation for care and prudence not admissible to prove or rebut. On the question whether a trainman who was injured was exercising due care in a particular instance, his general reputation for care and prudence is not admissible for or against him.</p> <p>1. Opinions or Witnesses — not allowed as to ultima.te facts nor where not necessary. The general rule is, that the opinions of witnesses are only admissible upon grounds of necessity, but they cannot be given upon the ultimate facts which it is the duty of the jury to determine, nor by witnesses not qualified to speak upon the subject of inquiry.</p> <p>5. Lire Expectancy — life insurance agent cannot testify as to, from knowledge of mortality tables. Where recovery is sought in cases of death or permanent injury, standard life-tables may be introduced to show the probable duration of life of one injured or killed, but the statements of a witness who has no knowledge of the question, except such as he may have gained from consulting such tables, are not admissible.</p>

<p>Error from Atchison District Court. W. D. Webb, Judge.</p>

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

Error from Norton District Court. A. C. T. Geiger, Judge. Mattie J. Heaton brought an action against the Norton County State Bank, Thomas Burton and W. T. Shoemaker to recover $9600, the alleged value of ninety-six shares of the capital stock of The Norton County State Bank, which, it is alleged, were unlawfully obtained and converted by the defendants.

Error from Lyon District Court. W. A. Randolph, Judge. The plaintiff in error brought suit in the District Court of Chase County against the defendants in error, alleging that, while insolvent, the defendant George B. Carson, a merchant at Cottonwood Falls, executed an instrument in writing of which the following is a copy: “ This agreement, made this 6th day of June, 1895, by and between Geo.

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

<p>1. Declarations oe Engineer — made soon after, attributing accident to his negligence, are hearsay. The declarations of a railroad engineer, made two or three hours after an accident, tending to show himself to have been the negligent cause of the accident, when not offered in impeachment of his testimony, are inadmissible against the railroad company in a suit for damages for injuries or death resulting from the accident.</p> <p>2. Action by Widow eor Causing Husband’s Death — when deceased was resident of Kansas, not maintainable without allegation and proof of non-appointment of personal representative. The City of Eureka v. Merrifield, 53 Kan. 794, reaffirmed and followed.</p> <p>3. Amendment oe Petition — by supplying fatal omission, not allowed after verdict where exceptions have been preserved to trial errors in overruling objections based on such defect. When a petition omits an averment necessary to show a right of action in the plaintiff, and the defendant at every proper and available oppbrtunity throughout the trial objects to it and to the reception of evidence under it because of such omission, it is too late after verdict in plaintiff’s favor and the filing of a motion for new trial by defendant, to cure the defective petition and the error of receiving evidence under it, by amending it to conform to the facts proved.</p>

<p>1. Replevin' — proof of demand and refusal not required, in, where demand would have been unavailing. Where the defendant in a replevin action has never conceded the right of the plaintiff to the possession of the property replevined, but, on the contrary, has denied the claim and right of the plaintiff thereto, and has otherwise shown that a demand would be unavailing, proof of demand and refusal is unnecessary.</p> <p>2. Anti-Trust Act op 1889 — pleaunder §5 of, not pleadable where plaintiff is, but right or matter in controversy is not, connected with unlawful combination. Section 5, chapter 257, Laws of 1889, providing that, when actions are begun in this state, it shall be lawful in defense thereof to plead in bar or in abatement that the plaintiff, or any other person interested in the prosecution of the Case, is a member or agent of an unlawful combination or trust, applies to actions which will promote the purposes of the unlawful combination or trust, or which grow out of the same, ór some contract or business transaction thereof, but was not intended to deprive the plaintiff of th§ right to resort to the courts for the protection of property, rights and interests in no way connected with such combination or trust.</p> <p>3. Replevin — on fads, successful plaintiff in, recovering property under conditional sale, entitled to usable value pending action. Upon the facts of the ease, it is held, that the plaintiff who recovered possession of property was also entitled to recover the usable value thereof between the commencement of the action and the time of the trial.</p>

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

<p>1. Damage by Fire erom Locomotive — in action for, whether width of fire-guard sufficient is for jury, not for court. The question whether a fire-guard one hundred and forty feet wide along a railroad right of way is ordinarily sufficient to prevent the escape of fire from passing locomotives, is a question of fact for the jury and not of law for the court; and, as to' the Union Pacific Railway Company, whose right of way in most places was fixed by Congress at four hundred feet, such question cannot be determined as a matter of law from the fact that under the statutes of this State the maximum width of railroad rights of way has been fixed at one hundred feet.</p> <p>2. -particular petition held to allege accumulation of combustible material on right of way as cause of. The allegations of a petition for damages caused by the escape of fire from a locomotive, examined; and held, to be sufficient in respect to the particular charge of negligence upon which the verdict for plaintiff was returned. .</p>

<p>Appellate Procedure — husband subsequently obtaining in foreign jurisdiction divorce decree barring wife of interest in his property, estopped from, further prosecuting error herefrom decree, in action by him., refusing divorce and dividing property. A husband brought an action in Kansas against his wife for the purpose of obtaining a divorce. In her answer and cross-petition the wife asked for a divorce and for alimony. The court refused to grant a divorce to either party, but made an equitable division of the property. To obtain a reversal of the judgment the husband instituted a proceeding in error in the Supreme Court. While the proceeding was pending, the husband established a residence in Oklahoma, and there brought an action in which he obtained a divorce from his wife, and the decree barred her from any interest in his property. Held, that he is now estopped to assert error or to further prosecute his proceeding in Kansas.</p>

<p>Appeal from Cowley District Court. J. A. Burnette, Judge.</p>

<p>General Denial in Trover&emdash;puts plaintiff’s title in issue. Under a general denial in an action for damages for the conversion of personal property, the defendant is not limited to evidence of controverting the conversion charged, but may impeach, as fraudulent or otherwise unfounded, the plaintiff's claim of title to the property.</p>

<p>1. Release oe One Alleged Wrongdoer — not in fact guilty, does not release another who was real wrongdoer'. The rule that a settlement by and discharge of one of two or more joint wrongdoers operates as a discharge of both has no application unless both are guilty of the wrongful act. A settlement with and discharge of one not in fact guilty will not affect the liability of the wrongdoer.</p> <p>2. Dismissal not a Bar — when order expressly states it is without prejudice. The dismissal of an action, by an order of the court which in terms provides that it shall be without prejudice, does not constitute a bar to a future action.</p> <p>3. Collateral Attack on Letters oe Administration — notpermitted for personal representative’s minority or subsequent removal from state. Letters of administration granted to a minor are not void, nor will the removal of the administratrix from the State operate ipso facto as a revocation of the letters. Neither the fact of her minority or of her removal will constitute a defense in an action prosecuted by her as administratrix.</p>

<p>1. Res Judicata — decision on motion is not, in same proceedings, as to execution levy. As a genei’al rule the doctrine of res adjudicóla is not applicable to motions; and the fact that, in a contest between attachment and execution creditors, it was assumed and held upon a motion that the execution had been leviéd upon the property, will not preclude a party from showing in a later stage of the same proceeding, that no levy was in fact made under the execution.</p> <p>2. Constructive Levy — receipt and indorsement of execution not a, upon property held by an officer under prior levy of attachment. An officer seized personal property under an order of attachment, and afterward, while the property was in his custody, an execution, based on a judgment against the same defendant, was placed in his hands, on which he indorsed the time of receiving the same. Later, he returned the-execution with an indorsement that he found no property liable to satisfy the judgment. Held, that the receipt of the execution and the indorsement made thereon did not operate as a constructive levy of the execution on the property already in the custody of the officer. (Johnston, J., dissenting.)</p> <p>3. Depositions — need'not be filed one day before hearing of motion. Depositions may be treated as affidavits and used in evidence in a hearing upon a motion, although they have not been on file one day before the time of such hearing.</p>

<p>Error from Montgomery District Court. A. H. Skid-more, Judge.</p>

<p>1. Estoppel — admission in agreed statement of facts upon which judgment has been rendered, cannot, by subsequent proceedings, be retracted to the prejudice of a party who has acted in reliance thereon. Where a plaintiff brought an action upon a note, whereon there had been interest coupons but which had been detached, and asked judgment upon the principal note without setting up or asking judgment on the coupons, but on the contrary solemnly declared in an agreed statement of facts presented to the court that all the coupons had been paid, and thereupon judgment was rendered and a mortgage given to secure the debt was foreclosed; other parties to the proceeding, who held liens on the mortgaged premises without actual knowledge to the contrary, had a right to presume and to act upon the presumption that the interest coupons had been paid.</p> <p>2. Court’s Control over its Judgments — during term, not exercised to permit negligence or misconduct of one party to work wrong to another. While the court has control of its judgments during the entire term at which they are rendered, the rule should not be construed or applied so as to enable a party to take advantage of his own negligence or misconduct to the injury of other parties who may be wronged thereby.</p> <p>3. Lis Pendens — a mere motion after judgment for leave to file a supplemental pleading is not constructive notice of matte')' to which it relates. After a judgment, Us pendens applies for the purpose of enabling the court to enforce the judgment or for other appropriate proceedings based upon the issues on which a judgment was rendered, but it cannot apply to new matters introduced by amended or supplemental pleadings until such pleadings have been filed. A mere motion for leave to file such pleadings does not impart constructive notice of the new issue to which it relates.</p> <p>4. Evidence Examined — and held sufficient. The testimony examined and held to be sufficient to sustain the findings and judgment of the court.</p>

<p>1. Parol Evidence Inadmissible — to prove order of court authorizing receiver to compromise claim. Parol evidence is inadmissible in a collateral action to prove the rendition of a judgment or the making of an order by a court of record.</p> <p>2. Transactions with Deceased — trustee receiving assets from receiver not assignee" within provision making party incompetent witness as to. When a receiver in obedience to an order of court turns over the residuary assets of the receivership to a trustee for the interested parties, such trustee does not become an assignee within the meaning of section 333 of the Civil Code, General Statutes of 1897; and the subsequent death of the receiver does not disqualify a.party from testifying as a witness in his own behalf, and against the trustee, as to transactions had personally with the receiver, during his lifetime, concerning the transferred assets.</p>

<p>Error from Douglas District Court. A. W. Benson, Judge.</p>

<p>1. Jury Trial — controversy over fund in court, held proper for. Where two opposing parties claim the legal title to a sum of money paid into court by a third, the action is properly triable by a jury.</p> <p>2. Proof of Fraud — proof of intent to commit is not. Proof of intent to perpetrate a fraud is not equivalent to proof of the perpetration of it.</p> <p>3. Undub Influence — not- inferable from act itself, unless such as one of sound mind would not be likely to do in free exercise of judgment. In an action involving the validity of an act of a person of enfeebled mind, which the plaintiff charges was procured by fraud and undue influence, in order that the nature of the act may be held sufficient of itself to justify the conclusion that the party performing it was unduly influenced, or overcome by fraud, it must be such as a person of sound mind in the free exercise of his judgment would not be likely to do. Where the act itself is entirely reasonable and proper under the circumstances, it furnishes no basis for an inference that it was procured by fraud or undue influence. .</p> <p>4. - honest advice of trusted friends, to one ill and infirm but capable of fully understanding nature of act, to do a reasonable and proper thing, is not. The acts of a person who is ill and infirm, but yet capable of understanding fully the nature of what he does, cannot be avoided merely because his near friends and relatives in whom he places especial confidence advise their performance, or fairly and honestly exert their influence to that end. In order to avoid such acts the influence must be unduly exerted for the purpose of obtaining that which the party influenced, if allowed to exercise his own free judgment, would not have granted.</p>

<p>Error from Ellsw'orth District Court. W. G. East-land, Judge.</p>

<p>Decree op Nullity op Marriage — because one party had husband or ivife living, may equitably divide jointly accumulated property. In an action wherein the marriage between two parties is found to be void because one of the parties had a husband or wife living at the time of the invalid marriage, and a decree of nullity is entered, the court, while it cannot grant alimony, as such, has authority to make an equitable division of property jointly accumulated by the parties while they lived together as husband and wife.</p>

<p>1. Cross-Examination — for purpose of affecting credibility, permissible as to specific collateral facts tending to disgrace or degrade. For the purpose of judging the character and credit of a witness, he may be cross-examined as to specific facts tending to disgrace or degrade him, although collateral to the main issue and touching on matters of record. (Doster, C. J., dissenting to the application to the facts.)</p> <p>2. - but only where honestly for this purpose and may further justice. Such an inquiry is only allowed where it is made for the purpose of honestly discrediting the witness and there is reason to believe that it will tend to the ends of justice.</p> <p>3. Exception Necessary — to reversal for admission of incompetent evidence. Ordinarily, the admission of incompetent testimony is not ground for reversal unless objection is made thereto and an exception taken to the ruling thereon.</p> <p>■&. Testimony oe Accomplice — instruction held to be correct statement of rule as to. In charging the jury as to the testimony of an accomplice the court said: “The degree of credit ■which ought to be given to the testimony of an accomplice is a ■■matter exclusively within the province of the jury; but great eau•,tion should be used in weighing such testimony, and the jury should not convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence in some material point in issue; but such corroboration need not be as to everything to which the accomplice testified.” Held, to be a correct statement of the rule applicable in such cases.</p> <p>5. Evidence Examined — and held sufficient. The testimony examined and held to be sufficient to sustain the conviction for feloniously receiving stolen goods, knowing them to have been stolen.</p>

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

<p>1. Union Depot not a Nuisance — though it closes street, where constructed under valid ordinance so authorizing. The location of union depots and the closing and vacation of streets in cities are within legislative control; and where, in pursuance of legislative authority, a city of the first class provided for the location of a union depot over a public street, and at the same time closed and vacated that portion of the street upon which ■the union depot was to be constructed, stipulating and requiring that the union depot company should purchase a strip of ground a few feet away and dedicate it as a public street, as a substitute for the one closed and vacated, and the company then proceeded to perform the conditions, and to erect the union depot in accordance with the authority conferred and the requirements made, the union depot so erected upon and over the vacated street, cannot be regarded as a nuisance subject to be enjoined or abated at the suit of an owner of property situate in the vicinity of such union depot.</p> <p>2. Laches Shown by Petition — when sufficient to bar relief, may be reached by demurrer. Where it appears from the allegations of the plaintiff’s petition that the remedy sought is barred by lapse of time, or that by reason of his laches he is not entitled to relief, the defendant may by demurrer avail himself of the objection.</p>

<p>Error from Atchison District Court. W. D. Webb, Judge.</p>

<p>1. Equal Protection oe the Laws — denial of, by statute, cannot be complained of by one not of class discriminated against. One cannot be heard to complain that a statute which discriminates between classes of persons in the imposition of burdens of municipal control and taxation is unconstitutional as being a denial of the equal protection of the laws, unless he belongs to one of the classes discriminated against.</p> <p>2. -%15, eh. 3%, Gen. Stat. 1897, not unconstitutional as denying. The statute (section 15, chapter 32, General Statutes 1897), which provides for the extension of city boundaries over certain classes of adjoining lands, is not violative of the Fourteenth Amendment to the Constitution of the United States because it exempts agricultural lands from its provisions.</p>

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

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

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

<p>1. Exemption op Homestead Insurance Money — waived by order for payment of loss to creditor, though arawee refuses to accept. An order in writing, given upon sufficient consideration, addressed by one person to another, to pay to a third person money due to the first from a fourth one, which money the first and third persons expect will be presently paid by the fourth person, and which order contains a statement that the money in question has been “transferred” to the third person in satisfaction of an indebtedness due to him., but which order the second person refuses to accept in writing, but orally promises to pay the money when it comes into Ms hands, is a valid agreement, evidencing a transfer of the equitable title to the money, which the first person may not rescind; and, the money transferred being the proceeds of insurance policies on a homestead dwelling destroyed by fire, the agreement of transfer constitutes a waiver of the homestead exemption.</p> <p>2. - and creditor does not waive rights under such order by garnishing fund. In the case above stated, the agreement between the first and third persons being executory and not binding upon the fourth person, the transfer of the money due from him is equitable only; and garnishment by the creditor to divest the debtor’s legal title to the money will be allowed, and will not of itself be regarded as conclusive evidence of a waiver of his interest as a transferee of the fund garnished.</p> <p>3. Jurisdiction — question of, in garnishment proceedings, considered. Certain claims of lack of jurisdiction in garnishment proceedings examined and held to be unfounded.</p>

<p>1. Contract i-or Lighting City — not reserving right of rescission, cannot be terminated by repealing franchise ordinance, nor, where severable, for temporary non-performance for which party not to blame. A city granted á franchise and entered into 'a contract with a party “to construct, reconstruct, maintain, repair, and operate” an electric-light plant for furnishing light to the city for a period of eight years at a stipulated rate; the city to make monthly payments for the light furnished. The right to rescind the contract for non-performance was not reserved to the city in the contract itself. The plant was built and operated for a long time under the contract, and then, without the fault of the owner, it was partially destroyed by Are. The owner determined to rebuild the plant, and without unjustifiable delay proceeded to do so; and the city, although well aware of this fact, gave no notice of a purpose to terminate the contract, until the plant was practically rebuilt. Held, that the contract was severable in its nature; and that under the circumstances the city could not terminate the contract in that way, nor by the mere repeal of the ordinance granting the franchise.</p> <p>2. Rights to Rescind Contract — must be exercised within reasonable time. If a party has a right to rescind a contract, he must exercise the right within a reasonable time, and not wait until a rescission will work a great injury to the opposite party.</p> <p>3. -unreasonable delay waives. Unreasonable delay on the part of him to whom the right to rescind belongs is generally deemed to be a waiver thereof.</p>

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

<p>Statute oe Limitations — of three years, applies to action against bank officer for receiving deposit in insolvent bank. A civil action brought, under chapter 47, Laws of 1879 (General Statutes 1897, ch. 18, § 74), against bank officers, for the recovery of deposits received by them when the bank was insolvent or in a failing condition, is upon a liability created by statute, and is governed as to the time of bringing it by the three years’ limitation provided by the second subdivision of section 12, Civil Code, General Statutes 1897.</p>

<p>Calls in Land Description — in publication notice, giving ascertainable point of departure and return, will control as against incorrect bearings and distances, where judgment collaterally attacked. Errors in a publication notice, in a suit ■ to quiet title, of the metes and bounds description of a tract of land, by which distances and bearings of lines are incorrectly stated, but in which a correct and ascertainable point of beginning and return is given, will be disregarded as against a collateral attack on the judgment founded upon such notice, where, allowing the point of departure and return control over the errors of distance and bearing, the description embraces the tract in question between the parties to the collateral suit.</p>

<p>View by Appraisers — under judicial process, must not be perfunctory. Where lands sold at judicial sale are required to be appraised, the appraisement must be upon actual view; and this implies such a view as will enable the appraisers to judge fairly of the value of the land and improvements upon it. The mere entry on one corner of a tract of 240 acres, at a distance of a half-mile from the house and outbuildings, is not a substantial compliance with the law.</p>

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

<p>1. Newly-Discovered Evidence — new trial for,properly granted ■ tullere lost instrument of which surety denied execution was found after verdict for him. In an action upon a bond against an alleged surety his defense was that he had not signed it. At the time of the trial the bond was lost and could not be produced in evidence. Testimony was offered as to its existence, and witnesses, acquainted with the handwriting of the surety, who had seen the bond, testified that one of the names thereon was the signature of the surety, The verdict was in favor of the defendant; after which the bond was found, and on an application for a new trial the court held that the bond was newly-discovered evidence, that it was'material, and not cumulative, and granted a new trial. Held, not error.</p> <p>2. -whether cumulative, depends on its kind and character rather than its effect. The fact that the newly-discovered evidence may tend to prove the same issue upon which proof was offered on the trial does not necessarily make it cumulative; and whether or not it is cumulative is to be determined from its kind and character rather than from its effect.</p>

<p>Action on Replevin Bond — statute of limitation runs against, notwithstanding proceedings in error by replevin plaintiff, where no supersedeas bond given. A right of action accrues, on an undertaking given to obtain a writ of replevin, when the plaintiff fails to comply with the judgment rendered against him in the replevin action; and the fact that he institutes a proceeding in error to reverse the judgment, wherein no supersedeas bond is given, is no obstacle to the commencement of an action on the undertaking, nor will it prevent the running of the Statute of Limitations against such action.</p>

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

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

<p>1; Keeunding Bonds — in action on, by bona fide holder, where county claims no bonds existed to be refunded, certificate of county cleric to secure registration by state auditor admissible for plaintiff. In an action to collect interest coupons on negotiable refunding bonds of a county, brought by a party claiming to be an innocent purchaser for value before maturity, in which the right of the county officers to issue the bonds is denied on the ground, among others, that at the time they were issued there were no outstanding county bonds to be refunded, a certificate signed by the county clerk of the county filed with the Auditor of State showing the facts required by section 13, chapter 46, of the General Statutes of 1897 is admissible in evidence.</p> <p>2. -injunction obtained by tax payers against, county officers forbidding issue of bonds purporting to have been refunded, inadmissible as evidence against bona fide holder. As against a bona fide holder, for value before maturity, of negotiable refunding bonds regular in form, the record of a judgment, in a suit brought by tax payers against the officers who issued the bonds, enjoining them from issuing railroad bonds in exchange for which the refunding bonds purport to have been issued, is inadmissible either to prove the illegality of such railroad bonds, the fact that no such railroad bonds were outstanding, or a want of power in the county officers to issue the refunding bonds, where the holder is not chargeable with notice of such judgment.</p> <p>3. Lis Pendens — bona fide purchaser of commercial paper, not affected by doctrine of. The doctrine of lis pendens does not apply to commercial paper so as to charge bona fide holders of it with notice of suits between third parties by which its execution or transfer is sought to be restrained.</p>

<p>1. Insurance Policy — clause in, construed as to when cause of action accrued. An insurance policy contained a provision that “legal proceedings for recovery hereunder shall not be brought until after three months from the date of filing proof at the company’s home office, or brought at all unless begun within six months from the time when the right of action shall accrue.” In an action upon the policy, held, that the right to bring an action did not accrue until three months after the time of filing • proofs, and that the period of limitation prescribed did not begin to run until the right to bring an action had accrued.</p> <p>2. Appellate Procedure — improper answer to proper question, not assignable as error; must be ruling on motion to strike out. Error cannot be successfully assigned on an objectionable answer to a proper question unless a motion is made to strike out the answer, or the attention of the court is otherwise brought to the fact that the answer is not responsive to the question.</p> <p>3. Insurance Agent^ — untruly filling out application, though truth told him by insured, company estopped to assert falsity of representations. Where the agent of 'an insurance company who fills out an application for insurance is duly informed by the insured as to the facts and fails to state them in the application or to state them correctly as given, the company will ordinarily be held to have waived them, and will be estopped to insist that the representations of the insured were untrue, or that there has been a breach of the warranty.</p> <p>4. Notice oe Loss — held waived in particular case. A condition requiring the giving of notice to the insurance company within a specific time will be deemed to be waived where notice of the injury or death is subsequently given together with proofs of loss, and the company retains the same without objection, and subsequently calls for and receives additional information and proof respecting the injury and death of the insured.</p> <p>5. Appellate Procedure — general exception to entire charge unobjectionable in part, not available. A general exception to a charge of the court containing a great many distinct instructions, some of which are unobjectionable, is not available as error.</p>

<p>Error from Atchison District Court. W. D. Webb, Judge.</p>

<p>1. Consideration — for corporation’s note and mortgage, held sufficient in particular case. The. surrender of certain notes and securities in which a corporation was interested and which operated as a benefit to it and as a disadvantage to the creditors, is a sufficient consideration to support a promissory note and mortgage given by the corporation upon the authority of a resolution duly passed by the board of directors for that purpose.</p> <p>2. Evidence Examined — =-and held sufficient. The testimony and findings examined, and held to be sufficient to authorize a judgment in favor of the plaintiff for the amount of the notes sued on, and also foreclosing the mortgage given to secure their payment.</p>

<p>1. Judicial Sale — death of purchaser before confirmation does not avoid, nor affect proceedings. The death of a purchaser at a sheriff’s sale before confirmation thereof, does not avoid the sale, but it may be confirmed by the court and a deed ordered, on the motion of any party interested, as if such death had not occurred.</p> <p>2. - sale of tivo adjoining tracts on single bid, one tract debtor's homestead, presumed proper till contrary shown. A sale of two adjoining quarter-sections of land, one of which is the defendant’s homestead, on a' single bid under a mortgage foreclosure, is not necessarily invalid. The officer will be presumed to have proceeded regularly and properly, in the absence of any showing to the contrary.</p>

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

<p>1. Administration cot Partnership Estate — under agreement between surviving partner and administratrix, approved by probate court in proper proceeding, title to real estate passes without, formal conveyance. The case of Sternberg v. Larkin (58 Kan. 201), approved and followed.</p> <p>2. Action by Administratrix — need not be in official capacity, on notes taken in her individual name for money due estate. An administratrix who takes notes in her individual name for property belonging to the estate, may maintain an action on the notes without describing herself as administratrix, and the fact that the money, when collected, will be assets of the estate in her hands, constitutes no defense to the action.</p>

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

<p>1. Corporation Ceasing Business eor more than One Year— not deemed dissolved, except for purpose of enforcing individual liability of stockholders. A corporation which, ceases to do business for more than one year is deemed to be dissolved, for the purpose of enabling creditors to enforce the individual liability of stockholders; but such cessation of business does not operate as a legal and complete dissolution of the corporation for any purpose other than the one named.</p> <p>2. Stockholders’ Individual Liability — enforcement of, not precluded because of assets in hands of corporation’s assignee. A creditor of an insolvent corporation may enforce the individual liability of stockholders, under the provisions of section 50, chapter 66, General Statutes of 1897, when there is no property subject to be taken on execution, notwithstanding there may at the time be assets of the corporation in the hands of an assignee to be ultimately applied in payment of corporate debts.</p>

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

<p>1. Injuries from Defective Highway — to recover from township for, caused by alleged insufficiency of barriers along river bank some distance from traveled way, plaintiff must show trustee’s actual knowledge of insufficiency. In an action under section 18, chapter 12, of the General Statutes of 1897, to recover damages from a township for the death of a person, claimed to have resulted from the want of a sufficient barrier along the bank of a river, where no notice of the insufficiency of the barrier is shown to have been given to the township trustee, but it is claimed that he knew the dangers of the place and the condition of the fence around it, it is incumbent on the plaintiff not merely to prove that the township trustee knew these facts, but also that he knew that the fence was an insufficient barrier. In a case of doubt as to the sufficiency of the protection afforded by the fence under ordinary circumstances, it is incumbent on the plaintiff to show that the attention of the township trustee was directly challenged to its insufficiency.</p> <p>2. -stricter proof of knowledge required of dangers outside, than of defects within the traveled way. In an action against a township for injuries encountered outside of the traveled way, more strictness of proof of knowledge of dangers to be . apprehended will be required than where caused by a defect in the traveled way itself.</p>

<p>1. Interest — tvhere time for payment not fixed in eontraef, becomes due'with principal. Where a contract for the payment of money contains no specific promise for the payment of interest at a time different from that fixed for the payment of principal, the principal and interest both become due and payable at the same time.</p> <p>2. -not payable annually because of phrase “per annum” and stipulation for interest on if “not paid annually.” The use of the words “per annum” in fixing the rate of interest in a promissory note, and the provision therein — “If interest be not paid annually to become as principal and bear the same rate of interest,” cannot be regarded as a promise to pay interest annually.</p>

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

<p>Appeal from Douglas District Court. Samuel A. Riggs, Judge.</p>

<p>Appeal from Sedgwick District Court. D.M.Dale, Judge.</p>

<p>Appeal from Franklin District Court. Samuel A. Riggs, Judge.</p>

<p>Executory Unilateral Contract — not basis for action for damages against non-promising party. In order to the enforcement of executory contracts they must be mutually binding upon both parties to them. Hence, an engagement by one person to perform services for another, in consideration of certain payments to be made and with certain funds and other assistance to be furnished by the other, but without a corresponding agreement with such other to accept the services and furnish the funds and assistance, is not enforceable by the promisor, by way of action for dam- ■ ages for non-employment, until its execution has been mutually entered upon and partially performed.</p>

<p>Errors from Coffey District Court. Charles B. Graves, Judge.</p>

<p>1. Consensual Marriage — valid in Kansas. Under the laws of Kansas, there may be a valid consensual marriage between persons, capable of assuming the marriage relation, who, in pursuance of an agreement, live together, in good faith, as husband and wife.</p> <p>2. Antenuptial Contract — favorably viewed and liberally interpreted. The courts look with favor upon antenuptial 'agreements in marriage settlements, and generally hold that they are to be liberally interpreted, so as to carry out the purposes of those engaging in them.</p> <p>3. -:-particular, held reasonable and just. The marriage settlement in question examined; and it is held that, considering the circumstances of the parties and of the case, its provisions are reasonable and just, and should be enforced.</p> <p>1. Husband’s Homestead Interest — where legal title in wife, not an estate. Where the complete legal title to the homestead is in the wife, the contingent interest of the husband does not rise to the rank of an estate; his interest is a right of occupancy, with a restriction on the wife’s power to alienate the same without consent.</p> <p>5. Homestead — consent to alienation by the one not vested with the legal title, need not be in writing. While there must be a joint consent of the husband and wife to the alienation of the homestead, the written consent of the one not vested with the legal title is not absolutely essential.</p> <p>6. -evidence held sufficient to show joint consent to alienation of part. The testimony examined, and it is held sufficient to show that there was a valid joint consent of the husband and wife to the alienation of that portion of the homestead upon which the dwelling house and other buildings stood.</p> <p>7. -when part occupied as, sold, remainder loses homesteadcharacter. By the sale and severance of the part occupied ’ as a homestead, the part not so occupied was no longer impressed with the homestead character; and it therefore became^subject to and was controlled by the provisions of the marriage settlement.</p>

<p>Error from Ottawa District Court. R. E. Thompson, Judge.</p>

<p>Cold-Storage Warehouseman' — not liable .for injury through unfitness of warehouse, where customer has equal opportunities for knowing condition. Damages are not recoverable from, a warehouseman, a bailee for hire, because of injury to the goods stored through the unfitness of the warehouse as a place of storage, where the bailor has equal opportunities with the bailee of knowing whether his goods are liable to injury by storage in an unsuitable place.</p>

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

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

Error from Reno District Court. E. L. Martin, Judge. This action was brought by Cordelia Price Stevenson to recover judgment on a promissory note, executed by J. P. Davies and Rees R. Price to John R. Price, for two thousand dollars, payable in one year with eight per cent, interest. The plaintiff claimed to own the note by a purchase made long after maturity of the paper.

<p>Stockholder’s Individual Liability — may be discharged by bona fide voluntary payment to judgment creditor of insolvent corporation, though no execution issued. A stockholder in an insolvent corporation, against which a judgment has been rendered, may voluntarily discharge his statutory liability to its creditors, by making payment to one of them, without awaiting the issue and return of an execution nulla bona and the making of an order to enforce his liability; and if such voluntary payment is made in good faith it will operate as a bar to proceedings by other creditors to compel payment a second time.</p>

<p>Res Judicata — judgment for plaintiff on balance confessed on mutual accounts, bars action by defendant on separate item.. An action was brought by R. to recover a balance upon an unsettled account with B. B. confessed judgment for the amount asked by R. in a sworn statement which contained the debits and ■credits of an account between them, and which-extended over a long period of time. Long after judgment had been rendered, B. brought an action upon an item, which if correct, constituted a part of the unsettled account upon which judgment had been previously confessed in favor of R. Held, that the doctrine of res adjudícala applies, and that the judgment in favor of R. is a complete bar to a recovery of the claim of B.</p>

<p>Waiver oe Exemption by Tenant — does not require consent of wife, notwithstanding %8, ch. WO, Oen.-Stat. 1897. Chapter 176 of the Laws of 1889 (§3, ch. 120, Gen. Stat. 1897), which requires the joint consent of husband and wife to a mortgage of personal property, does not repeal nor in any manner affect section 5 of chapter 121, General Statutes of 1897, known as the Landlords and Tenants Act; and a tenant may still waive, in writing, the benefit of the exemption laws of this State for debts contracted for rent, without the joint consent of his wife.</p>

<p>Rape oe Female under Eighteen — subsequent marriage of parties no defense to proscution for. In a prosecution for ravishing a female who was under eighteen years, the fact that she has forgiven the accused, or has subsequently entered into the marriage relation with him, will not constitute a defense, nor relieve him from the consequences of the crime.</p>

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

<p>Set-oit — default judgment for conversion of property, rendered against an assignor on cross-petition by maker, in action by assignee on notes, not a set-off against notes. In an action by an assignee of promissory notes transferred after maturity, against the makers, the assignor, on application of the makers, was made a defendant. Thereupon the makers set up a cause of action against the assignor for the conversion of property, and obtained judgment by default on their cross-petition against such assignor. Held, that the judgment so entered does not affect the plaintiff’s rights in the action, and is not admissible as proof of the maker’s right to set-off his cause of action against the assignor as a deiense to the plaintiff’s cause of action on the notes.</p>

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

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

<p>1. Administrator — ivho is also sole heir, erroneously electing to maintain action as heir, held on facts to recover as administrator. While, as a general rule, a plaintiff can recover only in the capacity in which he sues, where an action brought by a landowner in his lifetime, against a railroad company for the appropriation of his land for a right of way, is revived after his death in the name of both his administrator and his heir, and afterward on the death of the heir the administrator obtains a revivor in his individual name, as successor in interest of the heir, and on being required by the court to elect whether he will prosecute in his individual or official capacity, erroneously elects to prosecute in his individual name, and where after a full trial of all disputed questions in the case it is agreed by the parties that the- plaintiff is at the time of the trial sole administrator of the estate of the land owner; held, that the plaintiff may recover, notwithstanding such erroneous election, but that the recovery should be as administrator.</p> <p>2. Statute oe Limitations — does not run between order of revivor after plaintiff's death and filing of amended petition showing death and succession. Where an action is revived in due time after the death of the plaintiff in the name of his administrator and heir, but the petition is not amended so as to show the death of the plaintiff and the succession of the administrator and heir to his rights for more than five years thereafter, held, that the amendment does not state a new and different cause of action, and that the Statute of Limitations does not run during the interval between the revivor of the action and the filing of the amended petition.</p>

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

<p>Error from Doniphan District Court. R. M. Emery, Judge.</p>

<p>Contributory Negligence — question of, for jury notwithstanding contradictions as to, in plaintiff’s personal testimony. Where the plaintiff in an action to recover for personal injuries is a witness in his own behalf, and his statements as to whether he was in the exercise of due care when the injury was suffered were somewhat contradictory, the matter of contributory negligence is a question for the jury; and in such case a ruling of the court at the close of plaintiff’s testimony and before he had rested, directing a verdict for defendant, is erroneous.</p>

<p>Error from Smith. District Court. Cyrus Pleren, Judge.</p>

<p>Error from Kearny District Court. W. E. Hutchison, Judge.</p>

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

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

<p>Appeals from Leavenworth District Court. • Louis A. Myers, Judge.</p>

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

Error from the Court of Appeals, Northern Department. Action by John G. Miller & Co', against Wolfe & Son, A. H. Vance, D. A. Harvey, J. T. Clark, the Bank of Topeka and the Central National Bank of Topeka, to recover two lots of merchandise alleged to have been converted by the defendants.

<p>Grand Larceny — conviction under information for, proper on-proof of larceny from person. An information filed under section 82 of the Crimes and Punishments Act, charging in general terms the larceny of money and property exceeding twenty dollars in value, will uphold a conviction based upon evidence showing a larceny from the person, as defined by section 81 of the act, of money and property of such excess value.</p>

<p>Appeal from Cowley District Court. W. T. McBride, Judge.</p>

<p>School Board Tax Levy — in city of second class, subject to intelligent, not merely formal, approval of council. Before a levy of taxes for the support of schools by a board of education in a city of the second class becomes effective it must have the approval of the city council — not a mere perfunctory approval, but the intelligent assent and concurrence of that body. .</p>