Volume 60 — Kansas Reports

<p>Error from Wabaunsee district court; William Thomson, judge.</p>

<p>1. Malicious Prosecution— Question of Law. Where there is no controversy as to the essential facts, the question of probable cause for a criminal prosecution is one of law.</p> <p>2. - Larceny from Railroad Company — Probable Cause for Prosecution. Numerous burglaries and larcenies were committed on the cars of the defendant railroad company on a portion of its line on which plaintiff was employed as engineer, and many of the stolen goods were found in the possession of a freight conductor whose train was sometimes hauled by an engine in charge of plaintiff. The conductor, being apprehended, charged the en-g-ineer and other trainmen with participation in the crime. The plaintiff was thereupon arrested and held for trial for tKe burglaries and larcenies, but was discharged without ever having been brought to trial. He was in fact innocent of the crime, but the defendant had no certain knowledge as to his guilt or innocence. Held, that the evidence does not show a want of probable cause.</p>

<p>Railroads — Injury to Passenger — Liability of Connecting Lines. Where one railroad company, owning most of the stock of another railroad company and being desirous of utilizing it as-a connecting line for through business, enters into a through-traffic agreement with it, by the terms of which a division of earnings on such traffic is stipulated, and matters pertaining to.through rates and. other like business are entrusted in great part to the Inanagement of the former company, which upon its part undertakes to guarantee the bonds and generally to finance the affairs of the latter company, but the latter company retains the entire management of its own train service and operating department, employs, controls and discharges its own employees, and pays the expenses of such department, held, that, as to a passenger riding over the line of the latter company, upon a through ticket sold by the other company, containing a clause limiting responsibility for injuries en route to those occurring on the line of such company, damages cannot be recovered from the selling company for injuries received upon the line of the other through the negligence of its employees.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Linn district court; Walter L. Simons, judge!</p>

<p>Error from Reno district court; F. L. Martin, judge.</p>

Error from Washington district court; E. W. Stukges, judge. STATEMENT. This action was brought by Susie E. Woodrum against the Washington National Bank.

<p>Error from Washington district court; F. W. Sturges, judge..</p>

<p>1. Suits Against the State — Express Waiver. The state, being a sovereign power, cannot be subjected to suits by its citizens in its own courts without an express statutory waiver of its right of exemption.</p> <p>2. -- Action for Nero Trial — Code 'Construed. The provisions of section 242 of the code of criminal procedure, and of section 320 of the code of civil procedure, General Statutes of 1897 (Gen. Stat. 1889, ¶¶4405, 5275), construed together, do not express the liability of the state to an action by a convicted defendant for the recovery of a new trial by petition and issuance of summons, as provided by the last-mentioned section, with sufficient clearness to constitute a waiver by the state of its sovereign right of exemption from suit.</p> <p>3. -Case Distinguished. The State v. Calhoun, 50 Kan. 523, 32 Pac. 38, distinguished.</p>

<p>1. Constructive Service — Insufficient Affidavit. In an affidavit for service by publication a mere statement of the character of the action is insufficient. It must state facts sufficient to show that the case is one of those mentioned in the code, and, in an action concerning real estate, it should give the location of the land.</p> <p>2. Service or Summons — Corporation. It was shown that while the secretary of the defendant corporation did not reside in the state an assistant secretary did. Held, that service of summons on the latter was good.</p>

<p>1. Practice, Supreme Court — Cross-petition in Error. The party named as defendant in error in a proceeding in error, and who is a party to the judgment sought to be reversed, may file a cross-petition in error and attach the same to the record filed by the plaintiff in error.</p> <p>2. - Parties. When a defendant in error voluntarily appears and files such cross-petition he thereby becomes a party to the proceeding.</p> <p>3. Promissory Note — Allegation of Ownership. An allegation that the plaintiff is duly incorporated and is the successor of a corporation somewhat differently designated which was named as payee in a promissory note upon which the action is brought, and, further, that the plaintiff is the owner and holder of the note, is sufficient to show that the plaintiff is the real party in interest and entitled to maintain the action.</p> <p>4. Note and Mortgage — Assignment. The assignment of a note ordinarily operates as an assignment of a mortgage made to secure the note, and where it so operates an irregular assignment of the mortgage is immaterial.</p> <p>5. -- Petition in Foreclosure. The averments of the petition examined, and held to be sufficient as against an objection to the introduction of any testimony because of the insufficiency of the facts pleaded.</p>

<p>1. Railroads — Injury to Employee — Rules of the Company. In an action against a railway company to recover damages for wrongfully causing the death of a brakeman by a sudden application of air-brakes, causing him to be thrown from the top of a car and killed, it is not reversible error to admit the printed rules of the railway company governing the management of its trains by its employees, even though not strictly applicable to the circumstances of the case, where the measure of care imposed by the rules read in evidence is not greater than that the law imposes under the facts of the case.</p> <p>2. -Injury from Negligent Application of Air-brakes. An engineer in charge of an engine hauling a freight-train, who, when approaching a work-train in plain view ahead of him, goes so near and at such a rate of speed that it is necessary to make a sudden and violent application of the air-brakes with which his train is equipped in order to prevent a collision with it, and who, under the circumstances, so applies the air-brakes as to cause his engine to break loose from the train and the cars to become suddenly stopped, is guilty of negligence, and the company is liable for the death of a brakeman thrown from the top of a freight-car by the sudden stoppage of it in such manner.</p>

<p>Ejectment — Evidence—Parties. In an action to recover real property it is competent to prove that an instrument of conveyance relied upon to show title in a third person as a defense to the suit was made with an intent to defraud creditors, or that it was made to secure a debt and not to pass a title, and in such action the non-joinder of the third person, whose rights may be thus collaterally assailed, constitutes no ground for an abatement of the suit.</p>

<p>1. In Equity — Findings of Jury. In a case of equitable cognizance it is competent for the court to take the advice of the jury upon disputed questions of fact. It may adopt or reject the findings of the jury on issues so submitted, as the evidence may require, and in the end must determine for itself every issue in the case.</p> <p>2. Marriage — Per Verba de Preesenti. Where there are no impediments existing, an agreement and present consent between the parties then to take each other as husband and wife, followed by cohabitation, is sufficient to constitute a valid common-law marriage in this state; and, upon an examination of the testimony, it is held to be sufficient to sustain the finding of marriage made herein.</p> <p>3. Will — Revocation—Statute Construed. The rule of the common law, that the will of an unmarried man which devises the whole or substantially all of his estate is revoked by the testator’s subsequent marriage and the birth of a child, unless provision has been made for the wife and child, is not abrogated by our statutory provisions regarding the revocation of wills. ,</p>

<p>Error from Morris District Court; O. L. Moore, judge.</p>

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

<p>1. Banks and Banking — Case Follmued. The case of In re Taylor, ante, p. 87, followed.</p> <p>2. -“Drafts ” and “Checks.” The word “draft,” as used in section 16, chapter 43, Laws of 1891, is a general term, and includes checks as well as other orders drawn for the payment of money.</p> <p>3. - Criminal Procedure — Joinder of Offenses. In a prosecution against an officer of a bank for knowingly accepting and receiving deposits when the bank is insolvent, the receipt of separate deposits from different depositors maybe charged in separate counts in one information, and a trial and conviction may be had and sentences imposed on such counts as the proof warrants, although each of the counts charges a separate and distinct felony. (The State v. Hodges, 45 Kan. 389, 26 Pac. 626.)</p> <p>4. - Actual Knoiuledge of Insolvency Necessary. Where the defendant is charged with having been the president of an incorporated bank which was insolvent, and having knowingly accepted and received deposits knowing the bank to be insolvent, in order to sustain a conviction the proof must show that the defendant had some direct personal connection with the receipt or acceptance of the deposit. The facts that he was president of the bank and in a back room at the time the deposit was received, and that he knew the bank was open for business, are insufficient to sustain a conviction under such charge.</p>

<p>1. Cities oe First Class — Poll-tax—Invalid Statute. Chapter 64, Laws of 1893, entitled “An act to repeal subdivision thirty-four (34) of section eleven (11) of article three (3) of the charter of cities of the first class, published in the General Statutes of Kansas of 1889, relating to road districts, and authorizing and compelling persons between the ages of 21 and 45 years to work thereon,” is unconstitutional and invalid, and said subdivision 34 is still in force.</p> <p>2. - Might-hour Law — Invalid Ordinance. An ordinance of a city of’ the first class which requires male residents between the ages of twenty-one and forty-five years to perform two days’ work of ten hours a day on the public streets, or pay three dollars in lieu thereof, conflicts with chapter 114, Laws of 1891, and is therefore invalid. (Gen. Stat. 1897, ch. 73, § 12.)</p> <p>3. Eight-hodr Law — Applies to Poll-tax. A man working on the streets of a city under an ordinance requiring the performance of two days’ labor of ten hours per day, or the payment of three dollars as a poll-tax, is a laborer for the city within the meaning of chapter 114, Laws of 1891, known as the “eight-hour law.”</p>

<p>Easement — Finding Conclusive. A finding by a trial court upon conflicting testimony against the right of perpetual easement in an under-grade railroad crossing is not open to review.</p>

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

<p>1. Negligence — Petition—Amendment. A petition alleging negligence in general terms may be amended so as definitely to set forth the facts constituting such negligence, although the statutory period of limitation for the bringing of such an action has expired when the amendment is made.</p> <p>2. Revivor — Next-friend. Proceedings in revivor are not necessary in substituting a new next-friend for one who had previously acted in behalf of an infant.</p> <p>3. Negligence — Railroad Crossing — Inference. The fact that a man killed on a railroad crossing was careful and sober, and had previously exercised due care in passing over the same crossing, tends to repel any inference of negligence arising from the mere fact that he went upon the track when a train was approaching.</p> <p>4. -Fatal Injuries — Measure of Damages. In an action by the next of kin to recover damages for death caused by the wrongful act of the defendant, it is not essential to a recovery that any witness shall have testified to the pecuniary value of the deceased’s services, or the profits which he derived from his busi- ' ness, but ordinarily a sufficient basis for an award of damages may be found in the character, habits, capacity, business and condition of the deceased, as well as the age, sex, circumstances and condition in life of the next-of-kin.</p> <p>5. Special Questions- — Withdraival. The action of the court in permitting the withdrawal by plaintiffs of a list of special questions of fact after the same had been submitted to the jury will not be deemed prejudicial error where it does not appear that the special questions which were submitted in behalf of the defendant were framed with reference to those asked by the plaintiffs and allowed to be withdrawn, or that the defendant was in some way prejudicially affected by the withdrawal.</p> <p>6. Damages — Evidence Sufficient. The evidence examined and held to be sufficient to sustain the verdict and findings.</p>

<p>1. Taxation — Judgment against Giiy — Mandamus. The mayor and council of a city of the third class may be compelled by mandamus to levy taxes to pay a judgment rendered against the city, but the total levy of all city taxes cannot exceed four per cent.</p> <p>2. - Funding Bonds — Mandamus. While the statute permits a city to fund its indebtedness, if it refuse to exercise its option to do so, it then becomes the duty of the mayor and council to levy taxes for the payment of a judgment duly rendered against the city, and the performance of this duty may be compelled by mandamus.</p> <p>3. -Discretion in Awarding Writ of Mandamus. The court has some measure of discretion in awarding writs of mandamus, and in requiring levies of taxes they will not be so employed as to impose an unnecessarily oppressive burden at one time. In providing for the payment of a large judgment the whole amount may be apportioned and collected part at a time by successive levies.</p>

<p>Error from Coffey district court; W. A. Randolph, judge.</p>

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

<p>Practice, District Court— Statute of Limitations Defined. An answer setting up the statute of limitations as a defense to a petition for the foreclosure of a mortgage, followed by a prayer for the cancelation of the mortgage and the quieting of the defendant’s title to the mortgaged premises, is not a set-off or counter-claim, aiid, upon the dismissal of the plaintiff’s action, the defendant is not entitled to a trial of the issue presented, under section 394, chapter 95, General Statutes of 1897. (Gen. Stat. 1889, ¶4494.)</p>

<p>Error from Shawnee circuit court; D. R. Hite, judge pro tem.</p>

<p>Pleading and Practice— Action on Written Contract — Abuse of Discretion. Where an action is brought on a written contract not in the possession of the plaintiff, and the substance only is attempted to be set up in the petition, and the defendant by an unverified answer denies the averments of the petition, and the case is tried through on the theory that the terms of the contract are in issue, and where afterward, on a second trial, the plaintiff himself attaches a copy of the contract which was in fact executed io his deposition, and swears that his action is founded on such contract, it is an abuse of discretion for the court to refuse to permit the defendant to verify its answer, and to exclude proof of the contract in fact made and of facts tending to defeat the plaintiff’s cause of action under it.</p>

<p>1. Practice, Supreme Court— Parties — Receiver. A receiver appointed to take possession of property involved in the litigation during the pendency of the suit, who does not stand as the representative of any of the parties nor file any pleadings in the case, is a mere stakeholder, and is not a necessary or proper party in a proceeding in error brought to review the judgment of the trial court.</p> <p>2. Corporation — Right to Prefer Creditors. In the absence of charter or statutory restrictions, and in the absence of actual fraud, a corporation, though insolvent, and though it has ceased, or determined to cease, doing business, may prefer certain creditors over others, whenever a natural person could do so.</p>

<p>Railroads — Fellow-servant Act Construed. A stone-mason employed by a railroad company in setting curbing around a depot and office building, and who was injured by .the falling of a curbstone which was left standing in an insecure position by a co-employee, is not within the protection of the fellow-servant act (Laws of 1874, ch. 93, §1, Gen. Stat. 1897, ch. 70, §15, Gen. Stat. 1889, ¶1251), which makes railroad companies liable to their employees for damages resulting from the negligence of other employees</p>

<p>Error from Wyandotte court of common pleas ; W. G. Holt, judge.</p>

<p>Error from Shawnee district court; Z. T. PIazen, judge.</p>

<p>Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. McElroy, judges.</p>

<p>Error from Cowley district court; J. A. Burnette, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p> <p>STATEMENT.</p> <p>This is a controversy over the title to eighty acres of land and certain city lots in Topeka. Both parties claim to have derived title through judicial proceedings prosecuted by creditors of John D. Knox & Oo. The plaintiff in error, T. W. Harrison, who was also plaintiff below, claims title under a judgment and sale in an action prosecuted by Harvey Henderson, as executor of the estate of James L. Reed. The defendant, Margaret A. Shaffer, executrix, claims under judicial proceedings instituted and carried on by her testator and herself. It is conceded that on the 17th of February, 1891, Knox and wife, who composed the firm of John D. Knox & Co., were the owners of the property in controversy, and on' that day they conveyed the city lots to John D. Knox, jr., their minor son, and the eighty-acre tract of land to Martha P. Knox, their minor daughter. On the next day they made a general assignment to J. B. McAfee for the benefit of their-creditors. John D. Knox also made an individual assignment to the same party. On the 13th of March of the same year, Harvey Henderson, as executor, commenced an action against McAfee, as assignee, to recover the sum of $5616.50 claimed to be due him from John D. Knox & Oo. In the prayer of his petition he asked that the amount due him be declared a trust fund, and that the assignee be required to pay it as a preferred claim.</p> <p>In the body of the petition there were averments of divers fraudulent transfers of property by Knox and wife, and among others those of the tracts of land in controversy to John D. Knox, jr., and Martha P. Knox.§ On this petition a summons was issued and served on March 14 on McAfee and John D. Knox. On the 3d of April the plaintiff amended his petition so as to make John D. Knox, jr., and Martha P. Knox and some others parties to the-action, and a summons was thereupon issued and served on them. On the 10th of August, 1891, they appeared and filed a demurrer to the petition. On the 7th of March, 1892, a second amendment to the petition was filed making John D. Knox and Mary D. Knox parties defendant, and asking judgment against them for $5516.50, with interest. To the petition, as thus amended, Knox and wife entered their appearance on the 19th of August, 1892. On the 3d of January, 1893, the case was tried, and resulted in a judgment in favor of plaintiff against John D. Knox & Co., John D. Knox, and Mary D. Knox, for $6318.50 and costs. On this judgment execution was issued and returned wholly unsatisfied. On the 21st of January, 1893, a further amendment to plaintiff’s petition was filed, alleging the rendition of the judgment against Knox and wife, the issuance and return of the execution unsatisfied, and the insolvency of Knox and wife. On the- 8th of October, 1893, a judgment was entered setting aside and canceling the deeds to John D. Knox, jr., and Martha P. Knox and ordering the property to be sold by the sheriff to satisfy the plaintiff’s claim. On this judgment an order of sale was issued and the property sold to the plaintiff, Harrison, and after due confirmation of the sale a deed was executed to him by the sheriff. On the 15th of January, 1892, Martha P. Knox executed a deed purporting to convey the eighty-acre tract of land to Harvey Henderson, trustee, for an expressed consideration of $5500, andón the 31st of May, 1895, Henderson executed a deed for the same land to the plaintiff. The plaintiff obtained possession of the land, which he held at the time of the trial of this action.</p> <p>On the 14th of September, 1891, H. S. Shaffer brought an action in tlie circuit court of Shawnee county against John D. Knox & Co. to recover the sum of $3334 and interest, and caused an attachment to be issued in the action and a levy thereof, the validity of which is disputed, to be made on the property in controversy. On the 8th of March, 1892, the case came on for trial, both parties appearing by counsel, and judgment was entered in favor of the plaintiff against the defendants for $3326.42 and costs, and it was ordered that the attached property be sold to satisfy the judgment. Prior to the rendition of this judgment a motion had been made by Knox and by his wife to set aside the attachment for the reason that the grounds alleged for the attachment were not true, but this motion was overruled. On the 20th of June'the property was sold under an order of sale to the plaintiff, but this sale was irregular because there was no appraisement of the property. The- court, however, confirmed the sale and directed the sheriff to execute a deed for it to Shaffer, which was accordingly done. On the 23d of July, 1892, Shaffer began an action in the circuit court of Shawnee county against Martha P. Knox and others to remove the apparent title which had been conveyed to her and to have such title transferred and vested in him. The action was tried and resulted in a judgment in favor of the plaintiff, in pursuance of which a deed was made by the sheriff purporting to convey all the title of M. P. Knox to the land to Shaffer. A similar action was brought against John D. Knox, jr., which resulted in a like judgment and conveyance of the city lots. Subsequent proceedings were had which we do not deem it necessary to mention.</p> <p>The action now before the court for .consideration was brought on the 20th of February, 1895, by T. W. Harrison against Margaret A. Shaffer and D. N. Burdge, sheriff, to enjoin another attempted sale and to quiet plaintiff’s title to the property. Special findings of fact and conclusions of law were made by the court, on which judgment was entered in favor of the defendants.</p>

<p>Error from Lyon, district court; W. A. Randolph, judge.</p>

<p>Error from Reno district court; F. L. Martin, judge.</p>

<p>1. Note and Mortgage— Statute of Limitations Tolled by Payment of Taxes. Where a promissory note was given, by the terms of which the principal became due in five years from date, with interest payable semiannually, and' a real-estate mortgage securing it was given, which provided that upon default in payment of any of the interest when due and the taxes on the mortgaged premises when due the whole indebtedness should mature, and both such defaults occurred, and the statute of limitations thereupon commenced to run against the indebtedness, but the delinquent taxes were thereafter paid by the mortgage debtor, held, that the running of the statute in his favor was ended by his voluntary correction of the one default, and, although more than five years elapsed from the occurrence of the two defaults mentioned, the cause of action on the note and mortgage was not barred.</p> <p>2. -Parties — Tax Lien. When, in a suit to foreclose a real-estate mortgage, the board of county commissioners is made a party in respect to taxes claimed to have been illegally levied upon the mortgaged premises, it is proper to find the amount of legal taxes, and to adjudge them a first lien upon the land, and to order their payment out of the proceeds of the foreclosure sale.</p>

<p>1. Ordinances — Judicial Notice. In civil actions courts will not take judicial notice of a city ordinance. It must be pleaded by quoting its language or stating the substance of its provisions. A reference to the ordinance by title is not sufficient.</p> <p>2. Elections — Content—Pleading. A defendant who, in an action brought against him to determine the right to the office of councilman of a city of the second class, answers alleging fraud in the election, and prays for affirmative relief, must aver that he is qualified to hold the office.</p>

<p>1. Railroad — Injury at Crossing — Duty of Traveler. A. person who sees a railroad-track upon which trains may pass at any time is already warned of danger, and it is the imperative duty of one about to cross the tracks of a railroad at least to look and listen for approaching trains. If he fails to look, when by looking he could see a coming train, and there is no excuse for such failure, he will be deemed guilty of negligence per se, and not entitled to recover for injuries sustained in a collision with a train, although those in charge of the train failed to give any signals of its approach.</p> <p>2. - Contributory Negligence at Crossing. A person familiar with a railroad-crossing, where she was injured, and who knew a train was due, looked for a train when she was on a road 111 feet away from the crossing, and afterward drove the distance named on a road parallel with the track and upon the crossing without looking for a train, when, if she had looked at any point within 100 feet of the crossing, or when she was about to cross, she could have seen the coming train and 'averted the injury. Held, that she was guilty of contributory negligence.</p>

<p>1. Negligence — Dangerous Machinery — Minors. The maintenance of dangerous machinery on private grounds, unprotected from the visits of trespassing children, renders the owner thereof, who has knowledge that children and others are accustomed to frequent said grounds and climb upon the structures supporting-said dangerous appliances, liable in damages to the next-of-kin of a boy fourteen years of age who was caught in said exposed machinery and killed.</p> <p>2. - Question for Jury. In this case, the question whether the boy was of sufficient intelligence, natural capacity, foresight and judgment to be guilty of contributory negligence was for the jury.</p> <p>3. - Case Followed. The case of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, followed.</p>

<p>Error from Wyandotte court of common pleas ; W. G. Holt, judge.</p>

Error from Wyandotte district court; Henry L. Arden, judge. statement. Thrs is an action by Peter Milich against the Armour Packing Company to recover damages for the breach of an alleged contract of employment. Michael Milich, father of Peter, was injured while at work for the defendant, and shortly afterward the injury resulted in death.

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Husband • and Wire — Right of Inheritance not Affected by Antenuptial Contract. A woman entered into a written ante-nuptial contract with her intended husband, wherein it was stipulated that she should have, hold and keep all the real and personal property she then had or might acquire as her sole and exclusive property, for her separate use and benefit, free from all claims, rights and interests of her intended husband, with the right on her part to dispose of the same by gift, sale, devise or will to such persons as she might desire, her intended husband consenting to such disposition in all respects as if the same should be by will devised after the marriage and his consent indorsed in writing thereon. There was no issue of the marriage. Held, that on the death of the wife intestate, the husband inherited the separate property owned by her at that time.</p>

<p>Transportation to Shippers — Statute Construed. Chapter 167, Laws of 1897, Gen. Stat. 1897, ch. 70, §§ 67-69, purporting to require railroad companies to furnish free transportation to shippers of live stock in certain cases, and providing remedies and penalties for violations of its provisions, has no application to or effect upon interstate shipments.</p>

<p>Practice, Supreme Court — Error from Courts of Appeals— Constitutional Questions. Where proceedings in error are commenced in this court as a matter of right to review a decision of one of the courts of appeals, under a claim that the case is one involving the constitution of this state, or the constitution of the United States, as provided in section 31, chapter 84, General Statutes of 1897, this court will not assume or retain jurisdiction from the mere fact that the constitutional rights of a party are alleged to have been infringed, but will examine into the questions involved to ascertain whether there are any substantial reasons for the claim.</p>

<p>Appeal from Rush district court; J. E. Andrews, judge.</p>

<p>Practice, Probate Court — Appeal. An appeal will not lie from an order of the probate court appointing an administrator of the estate of a deceased person.</p>

<p>1. Chattel Mortgage — Title and Ownership — Accommodation Toper — Fraud. F. arranged with B. S. & R. for a loan of money to enable him to purchase a herd of cattle, agreeing to execute a bill of sale of them when purchased to V., and that V. should in turn execute notes and mortgages upon them to secure the money, and representing that he did not wish to execute the securities in his own name, because to do so might affect the credit of a bank of which he was president; the arrangement was carried out,' except that F. did not execute the bill of sale to Y. Held, that in the absence of a showing of fraudulent purpose upon the part of B. S. & R. the mortgage was not invalid as to third persons because of V.’s lack of property interest in the cattle.</p> <p>2. - Cattle in Herd — Description Sufficient. A chattel mortgage of 100 head of cattle, describing them, and being one-half of a total herd of 200 head of like description, is not void for uncertainty because of a lack of separation of the mortgaged portion out of the whole number. The mortgagee in such case has a right of selection of the 100 head, and the description is sufficiently definite, upon the ground that that is certain which can be made certain.</p>

<p>1. Practice, Justice or Peace — Garnishment—Final Order — - Review. Where a defendant, in an action brought against him before a justice of the peace, appears and files an affidavit under section 509, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶4589), claiming wages due him to be exempt which were garnished in the suit, and a hearing of the question of exemption is had by the justice, resulting adversely to the defendant, held, that the decision and order of the justice is a final order, whether made before or after judgment, and that proceedings in error will lie to the district court to review the same.</p> <p>2: -Action Against Garnishee — Bes Judicata. In such case, where no action is taken by the defendant to review the decision of the justice of the peace, the matter of the exemption of the wages garnished becomes res judicata, and the garnishee, when sued by the judgment creditor to recover the amount admitted in its answer to be owing the defendant, cannot relitigate the question whether the wages due were exempt or not.</p>

<p>1. Common-law Marriage — Wot Annulled by Failure to Comply ■ with the Statute. The matrimonial status of a man and woman living together as husband and wife under an agreement of consensual or common-law marriage is not annulled by the failure of such persons to comply with the terms of a statute declaring it to be their duty to appear before an officer and formally solemnize their marriage, and providing penalties for their neglect to do so, but which contains no provisions nullifying their relations to each other because of their violation of its requirements.</p> <p>2. - Contract Implied Jrorn Acts and Conduct. To constitute a marriage good at common law, an express agreement between the parties to take and live with each other as husband and wife is not necessary. The agreement to do so is implied from their acts and conduct in mutually recognizing and holding each other out as bound together in the matrimonial state, and proof of such acts and conduct is proof of the marriage agreement.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Jefferson district court; Louis A. Myers, judge.</p>

Error from Douglas district court; Samuel A. Riggs, judge. STATEMENT. This action was commenced in the district court of Douglas county on the 31st day of December, 1896. A demurrer to the original petition was filed by the defendant below, plaintiff in error here, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained.

<p>1. Corporations — Statements Must be Filed by all Corporations for Profit. The provisions of section 41, chapter 66, General Statutes of 1897, requiring the presidents and secretaries of corporations to file with the secretary of state annually a detailed statement of the condition of their companies, apply to all classes of corporations for profit, those conducting a purely private business, such as manufacturing, as well as those quasi public in character.</p> <p>2. - Statement Examined and Held Insufficient. A particular statement made to the secretary of state by the president and the secretary of a manufacturing corporation examined, and held not to comply with the requirements of the statute.</p>

<p>1. Partnership — Existence Presumed from Facts. Where several parties unite in the purchase of real estate, not as a permanent investment but as a speculation, and with a view of selling the same for profit, and there is community of ownership of the-property, community of power in carrying on the enterprise, and‘. • community of interest in the profits and losses arising from the same, it will ordinarily be treated as a partnership.</p> <p>2. -Fot Within Statute, of Frauds. In such a case the land will be regarded in equity as personal property, and the partnership agreement between the partners, although not in writing, will not be within the statute of frauds.</p> <p>3. -May Exist for a Single Undertaking. To constitute a partnership it is not necessary that there be a series of transactions between the parties, nor that the relation be continued fox: a long period of time. It may exist for a single transaction or undertaking.</p> <p>4. - Title to Land Immaterial. It is not material in such cases in whose name the purchase of the real estate is made or the title taken, as the property, whether standing in the name of a partner or of a trustee, will be deemed to be partnership property.</p> <p>5. -Assignee of Partner is Liable for Purchase-money. The defendant bought the share of one of the partners, and, knowing the character of the transaction, and that a part of the purchase-money remained unpaid, contributed regularly for a period of five years with the other partners to a fund for the payment of interest on the unpaid purchase-money, and also for the payment of the taxes and other incidental expenses, and during that time shared with the other partners in a fund derived from a sale of the land. Held, that he made himself liable as a partner fort the payment of the purchase-money remaining unpaid.</p>

<p>Practice, District Court— Motion for Neiv Trial Filed too Late. A general verdict together with answers to particular questions of fact was returned by a jury on the last day of the May term of the district court, 1897. Afterward, and on the same day, the defendant below filed a motion for judgment in his favor on the particular questions of fact answered by the jury. The hearing of this motion was continued over the term, and was overruled on October 26,1897, at the October term of the court. On the next day the defendant filed a motion for a new trial, which wás sustained. Held, that the motion was filed too late, and the court erred in sustaining the same.</p>

<p>Railroads — Width of Crossings — Knowledge of Requirements Presumed. Railroad companies must know the requirements of harvesting-machines in general use throughout the state as to the ■ width of highway-crossings necessary to enable persons to drive them safely over, and a failure to provide suitable crossings for such machines, whereby injuries occur, is negligence.</p>

<p>Error from Marshall district court; R. B. Sdilman, judge.</p>

<p>Error from Coffey district court; W. A. Randolph, judge.</p>

<p>1. Practice, District Court — Agreed Statement of Facts — Motion for New Trial Unnecessary. Where a case is tried on an agreed statement of facts no motion for a new trial is necessary, and therefore the filing of such motion does not extend the time beyond the three days from th,e judgment in which to make and serve case or apply for extension of time.</p> <p>2. Practice, Supreme Court — Defective Service of Case-made —Estoppel. Because a party appears and argues a case in the court of appeals he is not estopped from complaining in this court that the case was not served in time.</p>

Original proceedings in mandamus. STATEMENT. On February 2, 1899, the plaintiff, Hugh P. Farrelly, filed in this court his petition and affidavit praying for an alternative writ of mandamus against the defendant George E. Cole, auditor, alleging that attire regular general election in November, 1896, plaintiff was duly elected state senator for the thirteenth senatorial district of the state of Kansas, and duly qualified as such ; that as such state senator he attended and…

<p>Corporations —Bigfits of Storfcholders. The stockholders of a corporation are not entitled to maintain or to defend legal proceedings in its name to protect the corporate property without a showing that the directors or managing agents are wilfully or fraudulently neglectful of its interests.</p>

Error from Kingman district court; G. W. McKay, judge. STATEMENT.

<p>Error from Shawnee district court; Z. T. ITazen, judge.</p>

<p>Error from Brown district court; R. M. Emery, judge.</p>

Error from Reno district court; Matthew P. Simpson, judge. STATEMENT. In October, 1886, a corporation known as the Bank of Burr ton was organized, with a capital stock of $50,-000, divided into 500 shares of the par value of $100 each. The plaintiff in error was one of the incorporators, and there were issued to him forty-five shares of stock. W. O. VanArsdale was also a stockholder, and was elected president of the bank.

Error from Miami district court; John T. Burris, judge. statement. The plaintiff in error seeks to reverse a judgment of the district court rendered against it in favor of the plaintiff below. The petition originally' contained eleven counts, but the tenth and eleventh were dismissed.

<p>Error from Wyandotte court of common pleas ; WG. Holt, judge.</p>

<p>Error from the court of appeals, northern department ; John JI. Mahan, Abltah Wells, and Sam’l W. McElroy, judges.</p>

<p>1. Trial Judge — Free, Disinterested, Impartial, and Independent. The purpose of the law is that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, and independent.</p> <p>2. -Incapacitated by Saving Been of Counsel — Revivor. A judge who had been of counsel in a case in which a judgment was obtained for his client is incapacitated to hear and determine the matter of the revivor of such judgment, and especially where he is seeking to enforce an attorney’s lien upon the judgment sought to be revived.</p>

<p>1. Witness — Sentenced to Reformatory — Infamous. A person convicted of grand larceny and sentenced to confinement in the state industrial reformatory is deemed to be infamous and incompetent to testify as a'witness in a criminal case unless the judgment of conviction has been reversed or a pardon granted. (Johnston, J., dissenting.)</p> <p>2. - Conviction of Infamous Crime is Presumption of Ineompetency. Witnesses produced in court are presumed to be competent, but when it is shown that a witness offered has been convicted of an infamous crime a presumption of incompetency arises, and it then devolves on the party offering the witness to overcome the presumption by showing that the judgment of conviction is without force.</p> <p>3. Accessory Before the Fact — Sufficient Information. While the person who counsels, aids and abets the commission of a crime may be charged as a principal, the accused has no cause to complain of an information which charged in detail the commission of an offense by the principal, including the time when, the place where and the manner in which it was committed, and then followed with appropriate averment that the accused counseled, aided, abetted and hired the principal to commit the felony.</p>

<p>1. County Attorney — Not Necessarily a Member of the Bar.. The office of county attorney may be held and the prescribed duties thereof performed by a lawyer whose license to practice has been revoked or by a person who has never been admitted to the bar.</p> <p>2. Forgery — Pi oof that Signature ivas Unauthorized is Necessary. Where it is shown that the defendant signed the name of another to a bank check which was cashed by the prosecuting witness, before a conviction can be had of the crime of forgery in the second degree under paragraph 2257 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 100, § 143), it devolves upon the state • to prove that the accused signed the same without authority from the person whose name he used.</p>

<p>1. Practice, District Court— Reply Examined, and Held not to be a Denial of the Instrument in Issue. A reply which does not in terms deny the execution of a release set up in the answer,, but which characterizes it as a “pretended release,” and avers; that “it was never executed for the purposes stated on its face,”' and that “plaintiff did not know that it had been signed as; claimed,” and that “if plaintiff ever signed it, he signed it in ig~ norance of its contents,” and that “ it was never read or explained to plaintiff,” coupled with allegations of fraud upon the part of defendant in procuring-plaintiff to execute the “alleged release,” although verified by the plaintiff, does not put in issue the execution of the release, but will be construed to be an admission of its execution and a plea of matter in avoidance of it; and such reply will not relieve plaintiff from the necessity of proving his matter of avoidance in the making of his case in chief.</p> <p>2. - Case Distinguished. De Lissa v. Coal Go., 59 Kan. 319, 52 Pac. 886, distinguished.</p>

<p>1. Corporations — Purposes. Under our statute a corporation may be organized for the transaction of any manufacturing, mechanical or mercantile business, either separately or all combined.</p> <p>2. -Charter Construed — Sugar Company. A corporation whose powers and purposes, as declared in its charter, were the manufacture of sugar, syrup, starch, and glucose, the erection and maintenance of a factory, and the purchase and sale of real estate and plantations therefor, the purchase, location and laying out of town sites and the sale and conveyance of the same in town lots, and “ for the transaction of manufacturing, mechanical and mercantile business,” is authorized to establish and carry on the business of manufacturing matches and wooden-ware, ijj addition to the manufacture of sugar, syrup, starch, and glucose.</p> <p>3. -Free from Fraud — Mortgages Held Valid. The testimony examined, and held sufficient to sustain the finding of the court that the action of the officers in establishing and carrying on the additional industry was free from fraud, and that the mortgages upon which money was obtained for the purposes named were executed in good faith and are binding obligations of the company.</p>

<p>Error from Wyandotte court of common pleas ; W. Gr. PIolt, judge.</p>

<p>Error from court of appeals, northern department, John H. Mahan, Abijah Wells, and Sam’l W. Mc-Elboy, judges.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>1. Pleadings — Amendment. While the courts are liberal in permitting parties to amend their pleadings, they are not warranted in allowing amendments which substantially change the claim or defense previously relied on.</p> <p>2. -Promissory Note — Implied Trust. The court did not commit error in refusing the amendment of an action upon a promissory note into an action upon an implied trust.</p>

<p>1. Pleadings — Amendment. Discretion exercised by a trial court in permitting amended pleadings to be filed will not be reviewed unless such discretion is clearly shown to have been abused.</p> <p>2. Principal and Agent — Chattel Mortgage — Malicious Prosecution for Perjury. A chattel mortgagee in possession of a stock of merchandise employed an agent to take charge of the same who had the usual power of selling the goods and accounting for the proceeds. Held, that the principal was not liable for the acts of the agent in causing the arrest of a person on the charge of perjury in making an attachment affidavit in an action wherein some of the goods were seized and taken from the possession of the agent.</p>

<p>1. Cities— Street Improvements— Conditions Precedent. Cities ■ of the first class have no power to contract for the pavement of . streets and to charge the cost of the improvement against the abutting property in the form of special assessments, and to is- '• sue bonds in payment of the contract price, unless a petition therefor has been presented to the mayor and city council signed by ' the resident owners of a majority of the front feet abutting on the street to be improved;’ nor do such cities have the power to con- " ' tract for the pavement of streets and to issue bonds therefor pay- • 1 able generally out of the taxes levied upon all the property within . 'the city, unless authorized by vote of the electors.</p> <p>2. - Unauthorized Bonds— County Attorney. The county . attorney of a county in which a city of the first class is situated may maintain an action in the name of the state to enjoin the unauthorized issuance of bonds by the officers of the city.</p>

<p>Error from Sumner district court; W. T. McBride, judge.</p>

<p>Appeal from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Error from Johnson district court; John T. Burris, judge.</p>

<p>Will — Estates Defined. A testator specifically devised to one of Ids children the entire estate in a certain tract of land, and to each of the remaining children a life-estate only in a particular tract, and then in a general residuary clause provided that the proceeds derived from the sale of all other property should be divided equally among his children. Held, that the residuary clause carried the fee simple of the lands in which only a life-estate was specifically devised.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. This was an action in ejectment commenced by Alice Belle Thompson in the court below for the recovery of the possession of 160 acres of land and for the value of its use and occupation. The case was tried upon an agreed statement of facts, supplemented by certain record evidence and oral testimony. The agreed facts are as follows : “ 1.

<p>Appeal from Lyon district court; W. A.- Randolph, judge.</p>

<p>Appeal from Sedgwick district court; D. M. Dale, judge.</p>

<p>Appeal from Cherokee district court; A. H. Skid-more, judge.</p>

<p>Will — Jury Trial — Demurrer Improperly Sustained. In an action to set aside a will, an order sustaining a demurrer to plaintiff’s evidence and discharging a jury that had been impaneled ■ is error, where there was evidence tending to sustain plaintiff’s • allegations, though the parties be not entitled to a jury trial in such case as a matter of right.</p>

<p>1. Will — Election by Acts in Eais. Although the statute provides for a formal election by the widow whether she will take under the will of her deceased husband, in lieu of the share which the law gives her, an election may be made by acts in pais, and hence the record is not the only proof of such election.</p> <p>2. -Nature of Proof of Election. The proof of an implied election must be clear and satisfactory, but a deliberate and intelligent choice is deemed to be as binding as though it were formally made.</p> <p>3. -Estopped by Acts to Eeny Election. If, after ascertaining her rights and learning what she could take under the will as well as by the law, she deliberately proceeds as though an election had been made, accepts the benefits of the will and actually takes under it, she will be concluded, and will not be heard to say that no election has been made.</p> <p>4. Illegitimate Child — Proof of Recognition. A question having arisen as to who was the father of a child through whom the mother claimed, proof tending to show general and notorious recognition of the child as his own by him was competent to establish the rule of inheritance.</p> <p>5. Evidence — Transactions with Deceased Persons. A party to an action may testify in respect to transactions or communications had by him with a deceased person, where the adverse party is not the executor, administrator, heir at law, next-of-kin, surviving partner or assignee of such deceased person, and where the title to the cause of action was not acquired immediately from him.</p>

<p>1. Tboveb — Chattel Mortgage — Petition Held Sufficient. A petition alleged that the plaintiff was the holder of a chattel mortgage given, to secure notes which were past due at the time of its execution. Copies of the mortgage and notes, with indorsements of certain payments on the latter, were attached as exhibits to the petition, with allegations that the mortgage created a just and valid lien upon the property described; that plaintiff was entitled to the immediate possession of the same; that no part of the indebtedness represented by the notes had been paid; and that the ' defendant sheriff, without right, took and carried away a portion of the mortgaged property and converted the same to his own use to the damage of plaintiff in an amount given. Held, that an objection to the introduction of any evidence under the petition, on the ground that no cause of action was stated therein, was properly overruled.</p> <p>2. -Attaching Creditors — Prior Mortgagee in Possession. The fact that a small amount is due from a mortgagor to the holder of a prior mortgage, who was in possession of the property, does not affect the subsequent mortgagee’s right to recover from attaching creditors.</p> <p>3. -No Demand Necessary. In the case stated no demand of the sheriff for the return of the property was necessary.</p>

Error from Wabaunsee district court; William Thomson, judge. STATEMENT. The facts necessary to be considered are as. follows : The Western Farm Mortgage Trust Company was, at the time this action was commenced, a corporation existing under the laws of the state of Kansas, and prior to February, 1892, had been engaged for several years in the business of making loans on real-estate security, and guaranteeing and selling bonds and mortgages.

<p>1. Street-railway — Duties to Passengers. A street-railway company is bound to the highest possible caution and prudence in letting off its passengers at its stopping-places, and its employees must not merely wait a reasonable time to enable the passengers to alight, without looking .to see whether such has been done, but they must see and know that the passengers are safely off before starting the car in motion again.</p> <p>2. -Negligence in Starting Car. When a street-railway car is negligently started in motion before a passenger endeavoring to leave it has safely alighted from it, and while it is so in motion the passenger is seized with an attack of dizziness which prevents him from holding on, and in consequence he falls off and is injured, the company is liable.</p> <p>3. -Liability for Damages from, Act of Intermeddler. A street-railway company is not responsible for injuries resulting from tbe act of an intermeddler in the running of its cars which its employees could not foresee and guard against; but when such act of intermeddling consists in giving the signal to start the car in motion, and the conductor in charge, without seeing and knowing that a passenger has safely alighted before the car started, does not stop it as soon as can be, but allows it to continue in motion in obedience to the unauthorized signal, he will be held to have ratified and adopted the act of the intermeddler, and the company will be liable for the consequent injury as caused by an act of its employee’s negligence.</p> <p>4. -Liability for Da,mages from Act of Employee off Duty. If by custom among street-railway employees, known and assented to by the company, those who are on duty are in the habit of calling for and receiving assistance from those who are not at the time on duty, and an employee off duty thus called upon undertakes to render the assistance asked, he will be regarded as in the employ of the company for such service, and if he negligently abandons the work before completing it, whereby injuries to a passenger occur, the company will be liable.</p> <p>5. -Liability when Employee on Duty Deputes One off Duty. If, however, such custom does not exist, or existing is not known and assented to by the company, but an employee on duty deputes the one off duty to assist him, and he undertakes to do so but negligently fails fully to perform it, whereby injury to a passenger occurs, the company is likewise liable, because of the negligent abandonment of duty by the employee directly chargeable with its performance.</p> <p>6. - Variance — Objection Too Late. When additional bodily injuries and damages resulting therefrom were not alleged in the plaintiff’s petition, but evidence of them was received upon the trial without objection by the defendant, and upon which evidence the defendant cross-examined the witnesses giving it, an objection to it cannot be made for the first time by a request to instruct the jury to disregard it in making up their verdict.</p>

<p>Error from Morris district court; O. L. Moore, judge.</p>

<p>Error from Miami district court; John T. Burris, judge.</p> <p>STATEMENT.</p> <p>The following written agreement was made :</p> <p>“ Paola, Kan., February 19, 1892.</p> <p>“Article of Agreement entered into by and between L. C. Gilmore, agent of Ephraim Gilmore, and A. Strausbaugh, of Miami county, Kansas, whereby said agent has sold to A. Strausbaugh one certain tract of land now owned by E. Gilmore and known as the southeast'quarter of section 31, township 17,■ range 23, situated in Miami county, Kansas, consisting of 160 acres, more or less, for the sum of $5250, of which $500 is to be cash in hand and the balance in notes for the following amounts, viz., four notes for $500 each, one note for $750, and two notes for $1000 each, respectively, said first note to be dated February 22, 1892, and to mature March 1, 1893, and one of said notes will mature on March 1 of each year thereafter, to be payable on or before said maturity at option of purchaser, and to draw eight per cent, interest from date ; said deed made for said land by E. Gilmore and wife to A. Strausbaugh to be held by the National Bank of Paola in escrow, together with said mortgage and notes executed by said Strausbaugh for said land, until said notes be reduced to a total of $3750, when said deed shall be delivered to said A. Strausbaugh; and said mortgage, which is also to be held by said bank, shall at the time of delivery of said deed be placed on record ; during which period said Strausbaugh shall not encumber said premises in any way or manner.</p> <p>L. C. Gilmore,</p> <p> Agent for E. Gilmore. </p> <p>A. Strausbaugh.”</p> <p>Pursuant to the contract, E. Gilmore and wife duly executed a deed conveying said land to Strausbaugh, and the latter and wife signed and executed the notes and mortgage provided for in the agreement, and all were deposited in escrow with the National Bank of Paola. The $500 cash payment was.made by Strausbaugh, and he went into possession of the land in March, 1892. He made no further payments except $165.38 on December 30, 1893, and $198.90 on January 4, 1894. E. Gilmore died intestate April 13, 1892, leaving several heirs, and Juliann Gilmore, his widow. John A Gilmore and E. E. Gilmore were administrators of said estate at the time this suit was begun. Juliann Gilmore died testate December 26, 1895: On June 7, 1895, she purchased from Strausbaugh and wife all the interest they had in the land, and other fractional interests from some of the heirs of her husband. Strausbaugh and wife deéded by quitclaim to Mrs. Gilmore, at once becoming her tenant under a lease to her, and paid her rent.</p> <p>The notes, mortgage and deed placed in escrow with the bank were never delivered. This suit was begun June 4, 1895. The amended petition sets up the contract, notes, mortgage, and deed, and prays judgment against Anthony Strausbaugh and wife for $4750 and interest, and that the same be decreed a first lien on the land. Judgment was rendered in the court below in accordance with the prayer of the petition.</p>

<p>1. Practice, District Court — Action on Mandate from Supreme Court. A judgment based upon conclusions of fact and law found by the district court was reversed by this court and the cause remanded for further proceedings in accordance with the views expressed in the opinion. The decision here was to the effect that the trial court erred in its conclusion of law adjudging invalid a chattel mortgage held by the plaintiffs in error. Held, that the refusal of the trial court to ent#r judgment upon the the mandate was not error, especially so since the application for such action was not made until after continuances of the cause over two terms of court, the taking of depositions by both parties, and the discovery of important evidence after the receipt of the mandate, compelling a second trial on a new and different theory from the first.</p> <p>2. Chattel Mortgage — Lien Destroyed by Fraudulent Contract. M. & Co., chattel mortgagees, having a bona fide lien subject to-two prior mortgages which were fraudulently made to hinder and delay creditors of the mortgagor, entered into an agreement with the holders of the prior mortgages by which the property included in each was to be replevied by M. & Co. from an officer then in possession and turned over to said first two mortgagees, who were to sell the same, first paying M. & Co.’s mortgage, and then apply the surplus in satisfaction of their own liens. Held, that this arrangement and its execution discharged the lien of M. & Co. on the property and its proceeds under their mortgage as against creditors of the mortgagor, M. & Co. having such notice of the fraudulent character of the prior conveyances as is mentioned in the next paragraph.</p> <p>3. -Notice of Fraudulent Conveyances. The agreement referred to having been made after M. & Co. had been told that the two prior mortgages were fraudulent, and after the coroner was in possession of the mortgaged property under writs of attachment against the debtor in suits where the petitions charged that the said mortgages were given without consideration and for the purpose of hindering, delaying and defrauding creditors, notice sufficient was conveyed to M. & Co. concerning the good faith of the prior mortgages to put them upon inquiry, thus imposing a duty which they could not neglect to perform without being chargeable with full knowledge of the fraudulent nature of said conveyances.</p>

<p>Error from Reno district court; Matthew P. Simpson, judge.-'</p>

<p>1. Insurance — Stenographer’s Notes as Testimony — Irregularity Cured. Plaintiff read from stenographer’s notes of the evidence on a former trial what the agent of defendant had testified to concerning his prior acts and statements in dealing with persons from whom he received an application for insurance. The evidence was objected to for the reason that the statements were not part of the res gestee, having been made long after the transaction to which they related, and hence not binding on the principal. The objection being overruled, defendant asked leave of the court, and was permitted to read all of the testimony of the witness at said former trial as cross-examination. After plaintiff had rested its case, defendant put the witness upon the stand, and he was fully examined by both parties. Held, that if any error was committed in the admission of said statements of the agent, the same was cured by subsequent action of the defendant.</p> <p>2. - Contents of Application — Deception of Agent. An agent, in receiving a written application for fire insurance on a mill, required the applicant to answer this question: “Do you agree to keep a watchman on the premises at all times when not in operation?” The answer was written down by the agent, and there was evidence that the insured instructed him to write “no” after the question. The answer was written “yes.” Held, that the court did not err in refusing to instruct the jury that no recovery could be had on the policy if the insured, at the time he signed the application, or after he received the policy, might, by the exercise of ordinary care and prudence, have known the contents of the same.</p>

<p>Forcible Entry and Detainer — Jurisdiction of Supreme Court. An action of forcible detainer, or forcible entry and detainer, is possessory merely, and does not involve the title to the real estate except as title may be incidentally offered in evidence to support the claim of right of possession, and therefore the supreme court does not have jurisdiction in a proceeding in error from a judgment in such kind of action when the value of the right of ■possession does not exceed $2000, although the value of the real estate may exceed that sum.</p>

<p>Original proceedings in quo wa/rranto.'</p>

<p>Error from court of appeals, southern department; A. W. Dennison, B. F. Milton, and M. Schoonover, judges.</p>

<p>1. Attorney at Law — Disbarment—Proceedings for Review. Section 16, chapter 90, General Statutes of 1897 (Gen. Stat. 1889, ¶ 101), provides that upon the trial of an accusation against an attorney at law, made to secure an order revoking his license to practice, the evidence upon the hearing shall be “ reduced to writing, filed, and preserved” ; and section 18provid.es that an appeal from an order of revocation shall be made upon “the original papers together with a transcript of the docket entries. ” Held, that a copy of the stenographer’s notes taken upon the trial, not incorporated in a bill of exceptions or case-made settled and allowed by the judge, is not an “original paper,” and errors claimed to be shown by such notes of evidence cannot be considered by this COUl't.</p> <p>2. --- Case Followed. In re Fleharty, 59 Kan. 776, 53 Pac. 129, explained and followed.</p> <p>3. - Previous Conviction Unnecessary — County Attorney —Jury Trial. In the trial of an accusation against an attorney at law made to secure an order revoking his license to practice, which accusation charges offenses committed by him in his professional character as an attorney, and which likewise constitute offenses against the criminal laws, a previous conviction on indictment or information is not necessary to give the court jurisdiction to hear the accusation and revoke the license; nor does the fact that the acts charged against the accused were committed by him in his capacity as county attorney exempt him from trial upon the accusation; nor is he entitled upon such trial to a hearing by a jury-</p>

<p>Criminal Procedure — Time to Require Election of Offenses. A defendant prosecuted by indictment containing a single count charging a single offense, but upon the trial of which evidence of two or more separate offenses is introduced by the state, may de- . lay the making of a motion to compel an election as to the offense upon which a conviction will be asked until the conclusion of all the evidence in the case.</p>

<p>Appeal from Pawnee district court; J. E. Andrew’s, judge.</p>

<p>1. City Ordinance — Effect of Reenactment of Statute. The reenactment of a statute authorizing the passage of an ordinance providing for the determination of an election contest does not abrogate such an ordinance passed in pursuance of the earlier statute.</p> <p>2. -Contest Court — Not Repugnant to Statute. The provisions of an ordinance providing for deciding such contests examined, and held not to be so repugnant to the “Australian-ballot law” and other provisions governing elections as to effect an implied repeal of the ordinance.</p> <p>3. Mayor — Contest Court — Duties—Mandamus. It is the duty of the mayor, as presiding officer of the city council sitting as a contest court, to administer oaths to witnesses whose testimony is desired in the contest, and to submit to the decision of the court motions made by members thereof pertaining to the contest, and if he refuse, mandamus is a proper remedy to compel the performance of such duties.</p>

<p>Errors from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Wyandotte court of common pleas ; W. G. Holt, judge.</p>

<p>Error from Clay district court; R. B. Spilman, judge.</p>

<p>Error from Osage district court; William Thomson, judge.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p>

<p>1. Foreclosure — Amount Necessary to Redeem. A mortgagor who seeks to redeem must pay the entire amount of the mortgage debt. The tender of an amount for which the property was sold under a decree of foreclosure, less than the sum of the mortgage debt and interest, is insufficient.</p> <p>2. - Purchaser not a Party — Bffect of no Supersedeas Bond. A sale of real estate was had under a decree foreclosing a mortgage. The sale was confirmed and a deed ordered to be delivered to the purchaser, who was not a party to the suit. The defendants in the judgment then prosecuted proceedings in error to this court, but gave no supersedeas bond. The purchaser sold the property to K. and C. Afterward the order confirming the sale was reversed by this court. Held, that an action thereafter brought by the mortgagors to redeem could not be maintained against the last-named purchasers.</p>

<p>Eyror from Cowley district court; W. T. McBride, judge.</p>

<p>1. Corporations — Stockholder's Liability — Limitation of Action. When a corporation suspends business for more than a year, it is deemed to be dissolved so far as to enable creditors to enforce the individual liability of stockholders. The right of action in favor of the creditors accrues and the statute of limitations in favor of the stockholder begins to run immediately after the suspension for a year, and not after such suspension is shown or determined in a judicial proceeding.</p> <p>2. •-• Limitation of Action — Condition Precedent. A creditor cannot postpone the statute of limitations by failing to take affirmative action, which rests wholly with hims'elf, to perfect his right against stockholders upon their individual liability. As soon as reasonable time and opportunity for that purpose have been afforded him, the statute of limitations begins to run in favor of the stockholder.</p>

<p>Errors from Shawnee district court; Z. T. Hazen, judge.</p>

<p>-Contract or Sale — Parol Evidence of Consideration. Parol evidence of an agreement consisting of mere oral promises made previously or concurrently with the execution of a written contract of sale of land is inadmissible to charge the vendee with the payment of more than the expressed consideration, when the amount to be paid plainly appears from the face of the instrument.</p>

<p>Error from Wyandotte district court; Henry L. Alden, judge.</p>

<p>Intoxicating Liquors — Action for Price — Sale in Missouri. The agent for a firm of wholesale liquor merchants in Missouri took an order from a customer in Leavenworth, Kan., for a barrel of whisky. The order was conditional on its acceptance by the sellers in Missouri. On its receipt there it was accepted, and the liquor delivered to a common carrier, addressed to the • purchaser at Leavenworth, who paid the freight, and received it at the latter place. The purchaser intended to sell the liquor in violation of the laws of Kansas. Held, that, while the agent was amenable to the penalties of section 32, chapter 101, General Statutes of 1897 (Gen. Stat. 1889, ¶2550), for taking the order, the sale having been actually made in Missouri, the case is within the rule in Feineman v. Sachs, 33 Kan. 621, 7 Pac. 222, and Distilling Go. v. JSTutt, 31 Kan. 721, 10 Pac. 163, and a recovery for the purchase-price of the whisky may be had in our courts.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Appeal from Kingman district court; G. W. McKay, judge.</p>

<p>Error from court of appeals, northern department; John H. Mahan, Abijah Wells and Sam’l W. Mc-Elkoy, judges.</p>

M. Dale, judge. STATEMENT. On January 6, 1898, an information was filed in the district court of Sedgwick county charging Patrick O’Shea with an assault on James Dawson with intent to kill him. A trial of the charge resulted in a conviction and a sentence to the penitentiary for a term of eight years.

<p>1. Criminal Procedure— Contents of Warrant. A warrant issued by an examining magistrate for the arrest of a person charged with felony is sufficient if it designate the crime by name. Technical averments are not required.</p> <p>2. - Warrant — Limitation of Action. The accused is informed of the criminal charge not only by the words of the warrant but also by the evidence introduced at the preliminary examination by the state in support thereof. Hence an objection that the warrant shows on its face that the offense is barred by limitation is unavailable.</p> <p>3. - Case Folloived. The State v. Bailey, 32 Kan. 83, 3 Pac. 769, followed.</p>

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

<p>1. Constitutional Law — Conflict in Statute. A legislative enactment incapable of interpretation and enforcement because of irreconcilable conflict of meaning between its principal provisions will be held inoperative and void.</p> <p>2. Douglas County Court — Invalid Act. Chapter 124, Laws of 1899, being an act to create a county court in Douglas county and to limit the jurisdiction of justices of the peace in the city of Lawrence, is such an enactment.</p>

<p>1. Evidence — Declarations of Infant Party. When an infant becomes a party to an action the same species of evidence is received against him as though he were an adult; and the mere fact that the court rules that he does not understand the nature of an oath will not authorize the rejection of the declarations of an infant plaintiff against his interest. His declarations are to be cautiously received, but the value and the force of the same are necessarily left to the determination of the jury.</p> <p>2. Railroads — Injury to Infant — Proof of Mental Attributes. There being an issue as to the contributory negligence of the infant plaintiff, who was injured by the defendant, the brightness and intelligence of such infant was an important consideration, and it is held that the court should not have stricken out proof of that character, previously received on cross-examination without objection.</p>

Error from Marion district court; O. L. Moore, judge. STATEMENT. This action was commenced in the court below on September 21, 1897, against Henry Bergthold and wife, E. M. Donaldson, J. L. Hosmer, The Iowa Cattle Company, R. L. King, and others, to foreclose a mortgage executed July 1, 1886, by Bergthold and wife to the Jarvis-Conklin Mortgage Trust Company to secure a note for $2200, due five years from date, with interest at seven per’cent, per annum.

<p>Railroads — Injury at Crossing — Duty of Traveler. When a traveler on a country highway comes tó a railway-crossing with, which he is familiar, knowing that a train is about due at that point and liable to pass at any time, it becomes his duty as an act of ordinary prudence to look and listen for its approach; and if the sense of sight be unavailing because of obstructions to the view, and the sense of hearing unavailing because of preventing noises, it becomes his duty, as a further act of ordinary prudence, to stop in order better to enable him to look and listen before entering upon the crossing; and in such case, if by stopping he can see or hear the approaching train, but fails to do so, his negligence in such respect should be declared as a matter of law, and not left to the determination of the jury as a question of fact.</p>

<p>Taxation — Fire-tax Law Invalid. Chapter 263, Laws of 1895 (Gen. Stat. 1897, eh. 170), providing for the levy of a fire tax, and which excludes the property of railroad companies on which such tax is levied from the benefit and protection which the law should afford, is invalid.</p>

<p>1. Delinquent State Tax — Valid Statute. The provision in section 224, chapter 158, General Statutes of 1897, providing for an additional levy of one-half mill to pay the delinquent state tax in all counties where there is a deficiency, is constitutional.</p> <p>2. Fire Tax — Case Followed. The case of Railway Co. v. Clark, immediately preceding, followed.</p>

<p>Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Samuel W. McEleoy, judges.</p>

<p>1. Perjury— Immaterial Averments. The fact that an information charging perjury contains some statements on which perjury is assigned that are immaterial is not a fatal defect.</p> <p>2. -Effect of A cquiital in Previous Action. ■ In a prosecution for perjury the judgment of acquittal in the cause in which the perjury was committed is not admissible to prove the defendant’s innocence, nor is it necessarily a bar to a prosecution for perjury. ^</p> <p>3. - Averment of Authority of Officer Administering the Oath. Strictness of proof is required in all matters which constitute the essence of a public offense, but such proof is not required as to immaterial averments and those which are not descriptive of the offense; and held, that, whether the officer before whom the oath was administered on which perjury was assigned, and who was alleged to have authority, was elected or appointed, is not an essential feature of the offense, and a variance between the information and proof with respect thereto is not material.</p>

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

<p>1. Contempt 0¶ Covut — Judge at Chambers. Chapter 106, Laws of 1897 (Gen. Stat. 1897, ch. 85, §§ 10-15), has deprived judges at chambers of power to punish for contempt.</p> <p>2. - Arrest — Bond — AuthorHy in Court, not in Judge. Since the passage of said act a district judge at chambers has had no authority to cause a person charged with contempt to be brought before him to answer therefor, nor power to require a person so arrested to enter into a recognizance for his future appearance. Such orders can only be made by the court.</p>