Volume 61 — Kansas Reports

<p>Corporations — Promissory Note —1 ‘Business Manager ’ ’— Pleading. The statutes of this state do not know such officers of corporations as “business managers,” nor do the courts judicially know the usage of corporations to appoint them, nor that the authority rightfully exercised by them, when appointed, includes the execution of promissory notes in behalf of the corporation; hence, a petition on a promissory note, which note is signed in the name of the corporation by a person who describes himself as its “business manager,” but which petition makes no allegation • of authority in the person signing the note, does not state a cause of action.</p>

<p>1. Corporations — Promissory Note — “Business Manager-Pleading. A corporation was sued on certain promissory notes, executed in the corporate name by one signing himself as “business manager,” an officer of corporations unknown to the law, and of whose authority to execute notes for corporations the courts cannot know or presume anything, but the petition alleged that the notes “were made, executed and delivered by the corporation.’ ’ Held, that this was a sufficient allegation of authority in the one signing them as “business manager” of the corporation.</p> <p>2. -Promissory Note — Pleading—Burden of Proof . To a petition against a corporation on promissory notes the defendant filed a verified answer alleging that “none of the notes set out in plaintiff’s petition was ever authorized by said board of directors, nor by a majority of them, nor by a majority of a quorum of said directors.” Held, that it was a sufficient denial of the execution of the notes, and of the authority of the agent assuming to execute them for the corporation, and that it cast the burden of proof of their execution and the authority of the agent on the plaintiff, and that the court erred in rendering judgment against the defendant on the pleadings.</p>

<p>1. Constitutional Law — Oity Ordinance. The constitutional provision prohibiting any bill from containing more than one subject, which shall be expressed in the title, does not apply to city ordinances.</p> <p>2. Intoxicating Liquors — Oity Ordinance. An ordinance authorizing a police judge to issue a warrant against one maintaining a liquor nuisance “ upon the filing of a complaint ” is not repugnant to the statute prohibiting a police judge from issuing a warrant on a complaint that is not made on oath.</p> <p>3. Constitutional Law — Oity Ordinance. An ordinance providing that “all places where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage are common nuisances ” is not repugnant to the constitutional provision that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”</p>

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

<p>1. Will — Contest—Estoppel. The general rule is that one who receives and retains property and benefits under a will thereby recognizes its validity, and is estopped to deny or contest it; but this rule does not apply where such person acted in ignorance of the facts showing invalidity and of her rights in the premises.</p> <p>2. -r- Benefits Beturned. In such case, if, when a legatee learns the facts of invalidity as to her rights, she returns or offers to return what has been received under the will, she may institute a proceeding to set the will aside and assert her rights in the estate under the law.</p> <p>3. -Findings by Jury. In an action to set aside a will, the court may call a jury to aid it in determining disputed questions of fact, but it is optional with the court whether it will adopt the findings of the jury or ignore them and make findings of its own. When the court gives independent consideration to the evidence and makes its own findings of fact, on which judgment is rendered, errors committed by the jury become immaterial.</p> <p>4. - Hypothetical Questions. A hypothetical question may be based on any assumption of facts which the testimony tends to prove, and it is held that there was evidence to sustain the assumed facts in the questions asked.</p> <p>5. -Insane Delusion Defined. There may be an insane delusion, although the belief entertained is not in the nature of things a physical impossibility; but if such belief is entertained against all evidence and probability and after argument to the contrary, it affords grounds for inferring that the person entertaining it labors under an insane delusion.</p> <p>6. -Findings Conclusive. The credibility of witnesses and the probative force of the facts as to testamentary incapacity were for the determination of the trial court, and, it appearing that there was legal evidence to support the findings, these matters are not open for further consideration.</p>

<p>1. Will — Repugnant Provisions — Construction. In a will containing two items, the first read: “I hereby devise and bequeath unto my beloved wife, Lucinda Burke, subject to the payment of my debts, funeral expenses, and other expenses, all my estate, real and personal and mixed.” The second item contained a direction that whatever might remain of the estate at the death of the wife should be divided between three children and a grandson of the testator. PL"eld, that the terms of the first item created an uncontrolled power of disposition in the wife of all the real estate of the testator, vesting in her an estate in fee simple ; and that the second clause, containing a direction inconsistent with the absolute interest vested in her, is void.</p> <p>2. - Case Distinguished. The case of Williams v. McKinney, 34 Kan. 514, 9 Pac. 265, distinguished.</p>

W. Dennison, M. Schoonover, and B. E. Milton, judges. STATEMENT.

<p>1. Insurance — Payment of Premium, to Agent• — Contract Made and Accepted. When the general agent of an accident insurance company receives an application for a policy of insurance, accompanied by the required cash premium, and transmits the application without the premium to the secretary of the company, whose duty is to receive both and to approve or reject the application, and such secretary does not disapprove it but holds it to await a remittance of the premium from the general agent, and fails to notify the applicant of his reason for so doing, and the only reason for not formally accepting the application and issuing the policy is the secretary’s desire to delay until the general agents remits the premium, held, that the payment of the premium to the general agent is in law a payment to the company itself, and the retention of it and the application will be construed as an acceptance of the latter and the making thereby of the insurance contract.</p> <p>2. ---Delivery of Policy — Joinder of Causes of Action. When a contract of insurance has been agreed on the execution of a policy is not essential to its taking effect unless part of the contract be that it shall not take effect until the execution and delivery of that instrument; and, except in such cases, the insured may bring suit upon the agreement before the issuance of the policy, if a loss has occurred in the meantime, and may also join in the suit a cause of action in equity for a specific performance of the contract to issue a policy.</p> <p>3. -Statements by Agent — Company Estopped. When an insurance company receives, and in fact accepts, an application for insurance, but does not do so in the usual and formal way, and receives and retains the cash premium accompanying the application, but delays the issuance of a policy to the applicant until an accounting can be had with its agent in respect to the premium paid, and in the meantime another agent of the company, whose duty would be to receive the policy if issued and deliver it to the insured, or to receive back from the company the premium paid upon the application in case it were to be rejected and to return it to the applicant, informs him that his application has been accepted and that a policy will presently be issued to him, and such applicant relies on such statements and, for that reason, fails to take out other like insurance, the company will be held estopped, because of the statements so made, to deny the making of the insurance contract.</p>

Price, judge. STATEMENT. ■ The appellant was convicted of grand larceny. At the trial one George Dugan was called as a juror and examined under oath touching his qualifications to sit in the case.

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. Mc-Eleoy, judges! STATEMENT. Held: and have a right to do so, as in this case, the minority, in the exercise of the same right', adhering to the original faith and doctrines taught when said property was procured by said congregation, neither party in this case violates the trust nor forfeits any rights to the common property. “6.

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

<p>Appeal from Franklin district court; S. A. Riggs, judge.</p>

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

<p>1. Constitutional Law — Presumptions from Enrolment and Approval. The history of a bill introduced into the legislature, as disclosed by the journals of the two houses, raised a doubt whether it was amended in the house after its passage by the senate, and whether or not the senate had concurred in the amendments so made. Held, that the bill having been duly enrolled, and approved by the governor, its validity cannot be impeached except by evidence of the clearest and most undoubted character.</p> <p>2. - City Court of Topelca. Chapter 129, Laws of 1899, being “An act creating a city court in the city of Topeka,” etc., is constitutional and valid.</p> <p>3. - Case Followed. The case of In re Greer, 58 Kan. 268, 48 Pac. 950, followed.</p>

<p>1. Banks and Banking — Existence Begins with Filing of Charter. Where several persons associate themselves together with a view of organizing a bank, and duly file a charter as a state banking corporation, the existence of the corporation dates from the filing of the charter; and if such bank is thereafter conducted under the supervision and control of the bank commissioner and is recognized and treated by him as one having authority, the mere omission or neglect of the commissioner formally to issue a written certificate of authority will not exempt the officers of the bank from an observance of the requirements of the banking law, or excuse them for violations of the same.</p> <p>2. - Officers Estopped from Denying Regularity of Organization. Where such a bank is duly chartered and holds itself out to the public as a banking institution, receiving money on deposit and otherwise transacting a banking business, and where the officers, having knowledge of the manner in which the bank is doing business, make reports to the bank commissioner on demand, showing the character of the business done, they cannot be heard to deny that the bank is duly organized and doing business under the laws of the state, and such officers become liable to punishment for a violation of any of the penal provisions of the banking law, the same as though a formal certificate of authority had been issued to it by the bank commissioner.</p> <p>3. -Jurisdiction of Offense by Officer. Where a false report or false statement of the condition of a bank is made, subscribed and sworn to by an officer of a bank in one county, and is then transmitted to and received by the bank commissioner in another county, in which his office is held, the jurisdiction of the offense in either county.</p> <p>4. -Intention of Offender. If the report or statement be false, and known to be such, and is made with intent to deceive the bank commissioner, or other persons; as to the financial condition of the bank, the person making it is guilty, although he he may not have intended to injure the bank or defraud its depositors.</p> <p>5. -Evidence Sufficient. The evidence examined, and held tobe sufficient to sustain the verdict and judgment.</p>

<p>1. Constitutional Law — Warrants in Vacation. The statute (Gen. Stat. 1897, ch. 102, §88; Gen. Stat. 1899, §5318) which authorizes clerks of the district court in vacation to issue warrants of arrest and to admit to bail in misdemeanor cases is not unconstitutional as conferring judicial power on a ministerial officer.</p> <p>2. Criminal Procedure — Surrender by Sureties. In case an accused person is let to bail his sureties may surrender him to the sheriff in the mode pointed out by statute; and upon the surrender the sheriff takes and detains the prisoner by virtue of the original process by which he was arrested.</p>

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

<p>Judge oe the District Court — Removal from Office. A judge of the district court cannot be removed from office on other grounds, or by other methods, than those prescribed by the constitution, namely, by impeachment for misdemeanor in office or by joint resolution of both houses of the legislature, two-thirds of the members of each house concurring, as prescribed by section 15 of article 3.</p>

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

<p>1. Fees and Salaries — Cleric of the Supreme Court — Statute Construed. Although section 1, chapter 40, Laws of 1869, which provides, among other things, that “the clerk (of the supreme court) shall receive in addition to the fees already prescribed such per diem during the term as may be allowed by said court,” repealed section 8, chapter 27, General Statutes of 1868, which provided that “his (the clerk’s) fees shall be the same as the clerks of the district courts,” yet the effect of such repeal was only to change the language, not the law, allowing fees to such officers. The act of 1869, by allowing to the clerk “the fees already prescribed,” that is, theretofore prescribed, continued the right to charge the fees allowed by the act of 1868, notwithstanding the repeal of that act.</p> <p>2. -Statutory Construction — Fees of Clerk of Supreme Court. In all cases of ambiguity of statutes, the contemporaneous construction of the legislative and executive departments, and of the officials whose duty it is to carry the laws into effect, will be allowed great and, oftentimes, determining weight. The legislature having by numerous acts impliedly recognized the right of the clerk of this court, under the act of 1869, to the same fees as the clerks of the district court, and the officers of the executive department having acted in the performance of their duties in accordance with the same view, held, therefore, aided by such interpretation of the other coordinate branches, that the clerk of this court is entitled to charge and collect the fees as stated.</p>

<p>1. Contract op Sale — Estopped by Acceptance of Consideration. A contract in writing for the sale and delivery of cattle, made by two persons, as parties of the first part, with two others, as parties of the second part, contained this agreement: “Parties of the second part agree to pay four thousand dollars upon the signing by all parties of this contract.” The money was paid and accepted, but one of the first parties refused to sign the contract or fulfil its terms. ETeld, that the quoted stipulation was for the performance of an act by the second parties and not for the performance of one of substantive character by the first parties; and held further, that the first parties, having accepted the money of the second parties, were bound by the terms of the contract without each one having signed it.</p> <p>2. -Principal and Agent. A contract executed by an authorized agent in his own name, but in fact in behalf of his principal, is the contract of the principal, and suit may be brought against him to enforce its provisions.</p>

W. Dennison, M. Schoonover, and B. F. Milton, judges, STATEMENT.

<p>Error from Shawnee district court; Wm. Thomson, judge pro tem.</p>

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

<p>Error from Montgomery district court; A. H. Skidmoke, judge.</p>

Error from Lyon, district court; W. A. Randolph, judge. STATEMENT. On July 24, 1897, there was filed in the court below a petition as follows : “J. G. Hutchison, John H. Tennant, Willis C. Walker, Samuel Goodin, and William Stribling, partners as Tennant, Walker & Co., P. P. Argersinger and James P. Argersinger, partners as P. P. Argersinger & Co., Plaintiffs, v. “Edward P. Kimball, Wallace Hackett, and W. F. Thayer, and Dan.

<p>1. Case-made — Service. An order granting an extension of time in which to make a case implies that it may be served on the opposite party within the same time.</p> <p>2. Practice, Supreme Court. — Summons in Error. The justices of the supreme court are authorized to prescribe necessary rules for the taking, perfecting and filing of appeals and proceedings in error brought from the court of appeals to the supreme court, and in pursuance of that authority rule 10 was made, requiring that, after an order to certify is made, the summons in error shall be issued.</p> <p>3. -- Jurisdidion. Unless summons in error is issued and served on the defendants in error, or the issuance and service of the same waived, the supreme court acquires no jurisdiction over them.</p> <p>4. - Case Followed,. The case of Hartzell v. Magee, 60 Kan. 646, 57 Pac. 502, followed.</p>

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

Error from Sumner district court; W. T. McBride, judge. STATEMENT. The defendant in error recovered a judgment in the court below for personal injuries sustained while in the employ of plaintiffs in error in the capacity of bridge repairer. He was working in company with several others, under the direction of D. A. Bower-sock, foreman, who was superintending the repair of bridges.

<p>1. Title and Ownebship — Ejectment. An equitable title, if the paramount one to the land, is sufficient to maintain ejectment against the holder of the legal title, and proof of the equitable title under an allegation of ownership of a legal title is not a variance.</p> <p>2. -Evidence of Actual Notice. It is error to reject an offer of evidence tending to prove that the holder of a quitclaim deed from one who had received a warranty deed, and had then executed back to his grantor a bond for reconveyance, knew that the deed and bond were in fact given as security for money and not for a conveyance and reconveyance of the land.</p> <p>3. - “ Actual Notice" Defined. The words “actual notice” do not always mean in law what in metaphysical strictness they import. They more often mean knowledge of facts and circum- ,. stances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.</p> <p>4. - “Actual Notice” — Quitclaim, Deeds. Knowledge that a warranty deed was executed for $250, followed four days thereafter by a bond for reconveyance by the grantee back to the grantor upon the payment of the same sum, and knowledge of the record of the bond four days after the record of the deed, is actual notice, within the meaning of section 3, chapter 119, General Statutes of 1897 (Gen. Stat. 1899, § 4033), to one who holds by a quitclaim deed immediately from the grantee in the warranty deed that such deed and bond for deed were given as security for money and not as a conveyance and agreement for reconveyance of the land.</p>

<p>Error from Greenwood district court; C. W. Shinn, judge.</p>

<p>1. Title and Ownership —Dower. Before the death of the husband and while the right of dower is in the inchoate stage, it is subject to legislative control, and may be enlarged, diminished, altered, or abolished.</p> <p>2. - Conveyance without Wife's Consent — Dower Forfeited. In 1863 O. conveyed a tract of land, but his wife did not join in the conveyance. The following year he obtained a divorce from her on account of her fault and misconduct. In 1897, long after dower had been abolished and while her husband was still living, the divorced wife claimed a dower interest in the land conveyed in 1893. Held, that under the statute and decree of divorce her right of dower was forfeited and lost, and that she had no inchoate or other interest in the land conveyed.</p>

Error from Morris district court; O. L. Moore, judge. STATEMENT.

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

Original proceeding in habeas corpus. STATEMENT. The petitioner, J. T. Dalton, complains that he is unlawfully restrained of his liberty by the sheriff of Geary county, alleging that he is held in custody under a warrant issued by a justice of the peace in which he is charged with a violation of chapter 114, Laws of 1891.

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. McElroy, judges. STATEMENT. Held: or preliminary meetings were held at the hotel in Manhattan and afterwards were entered upon the books of the college ; that the records of the said college were so kept by the secretary, Thos.

<p>1. Corporations — Liability of Stockholders. The individual liability of a stockholder arises after a judgment has been rendered against the corporation and when an execution thereon has been returned nulla bona; and in the absence of fraud on the part of the officers, such return is conclusive, as against the stockholder, that the corporation property has been exhausted.</p> <p>2. -Insufficient Defenses by Stockholders. Informality in the notes evidencing the debt against the corporation, the absence of express authority from the directors to the president to execute notes given for money used in the business and for the benefit of the corporation, as well as an objection that the plaintiff in the judgment did not have a complete title to the notes, are not available to the stockholder as defenses, nor can the judgment be impeached except for fraud or want of jurisdiction.</p> <p>3. -Deposit by Guarantor not Payment. A deposit made by a guarantor of the notes intended as a security for the ultimate payment of the debt, and which, it was stipulated should not operate as a payment of the debt, cannot be regarded as a payment of the judgment.</p> <p>4. -Limitation of Action on Judgment. Where proceedings to enforce stockholders’ liabilities and obtain executions against them are brought before the judgment becomes dormant, and are diligently prosecuted, no statute of limitations will run against the judgment creditor pending the litigation, and his right to proceed to the end will not be barred because more than six years have elapsed since the last execution on the judgment was issued.</p>

<p>Jury and Jurors — Passion and Prejudice — New Trial. In an action for personal injuries, the jury awarded damages alleged to be grossly excessive and to have been given under the influence of passion and prejudice, and this was made a ground for a motion for a new trial. 'After the argument of the motion, and before a ruling thereon had been made, the plaintiff remitted one-half of the amount of the award, and the court thereupon gave judgment for the remainder of the award. The evidence, as well as the action of the plaintiff, showed that the verdict was excessive and that a fair and impartial trial had not been had. Held, that it was the duty of the trial court to set aside the verdict and to grant a new trial.</p>

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. McElroy, judges. STATEMENT. W. S. Roark brought an action in the district court of Geary county against L. M. Greeno to recover damages against the latter for alleged malpractice. The defendant below was a dentist. The amended petition in the cause stated, in substance : On the 14th day of March, 1896, defendant was engaged in the practice of dentistry.

<p>1. Homestead and Exemptions — Temporary Absence of Owner. An owner of property occupied as a homestead who has under consideration a change of residence, and who, with his wife, starts out in an effort to find a new home, but with the intention to return and continue to occupy the homestead if he cannot make a satisfactory exchange, and who leaves members of the family at the home, as well as household effects, stock, and other property, does not thereby forfeit his homestead right, nor will the property be divested of the homestead character until there is a permanent removal with an intention not to return to the same.</p> <p>2. - Case Followed. The case of Land Co. v. Gas Co., 43 Kan. 518, 23 Pac. 630, followed.</p>

Error from Miami district court; John T. Burris, judge. STATEMENT. This was an action of replevin brought by Gilmore, the plaintiff .in error, to recover the possession of a stock of dry-goods of the alleged value of over $6000. Gilmore had taken possession of the property by virtue of two chattel mortgages executed and delivered to him by S. A. Steele. The first mortgage was for the sum of $3438.85, and the second for $750.

<p>1. Railroads — Injury to Employee — Contributory Negligence. A locomotive fireman, whose duty under a rule of the company is to assist in the management of the engine in conformity to others of its rules, one of which requires that speed be slackened and train brought under control in approaching stations, but who merely fails to remonstrate to the engineer against his violation of the rule as to speed, cannot be said to be negligent because of such failure, when he is in no position of authority over the engineer, but when the latter is primarily charged with the duty of managing the engine, and is fully conscious of what he is doing, and possesses as full knowledge of the situation and its probable dangers as the fireman has or can acquire or impart. Nor is it negligence in the fireman to fail to report to the engineer the absence of a safety signal, when the latter can and does observe its absence as well as the former. In the order of casual connection or natural sequence, the failure of the fireman to remonstrate to the engineer or to report to him the lack of the signal are not producing causes of the latter’s negligence and of a consequently occurring accident.</p> <p>2. -Evidence of Permanent Disability. When the character and extent of injuries received by a man in a railroad accident are described by him and by physicians, and when the effect of the injuries in disabling him from manual labor are stated by him, the jury can judge whether and to what extent he will be permanently disabled, and the testimony of physicians as to the permanent impairment of his ability to labor is not of necessity required to enable him to recover for permanent disability.</p>

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

<p>Error from Greenwood district court; C. W. Shinn, judge.</p>

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

<p>1. Accident Insurance — Injury while Hunting. One insured as against accident as a barber and restaurant keeper was accidently shot and injured while hunting rabbits, but it appeared that hunting was only an incident to his daily life. Held, that the matter of hunting is not to be regarded as an occupation, and is not to be used as a basis of classification in determining the amount of indemnity payable to the insured.</p> <p>2. - Company Fstopped by Offer to Compromise. An offer by the insurance company of a sum smaller than that claimed by the insured, and an averment of the same in the answer of the insurance company, waived the defense that the insured was not entitled to anything because the injury resulted from exposure to unnecessary danger.</p> <p>3. -Proofs — Case Followed. In the matter of the reception of incomplete proofs of injury, and the request for further information from the insured by the insurance company, the decision of the case of Insurance Co. v. Paris, 59 Kan. 521, -53 Pac. 856, is followed.</p> <p>i. -Misstatement by Physician. A slight misstatement as to the cause of the injury, mistakenly made to the insurance company in behalf of the insured by the physician who attended him, will not prevent the insured from showing the actual facts.</p>

1. Ejectment — Administrator's Sale — Partnership Estate-Fraud — Estoppel. Held: that the allegations of the reply showed a lack of necessity for the sale of the property in controversy to pay partnership debts, and fraudulent concealment of facts, which avoided the estoppel pleaded in the answer. Error from Jackson district court; Louis A. Myers, judge. STATEMENT.

<p>Error from Saline district court; R. P. Thompson, judge.</p>

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

<p>Appeal from Franklin district court; S. A. Riggs, judge.</p>

<p>1. Practice, Supreme Court — Mandate. Upon the reversal of a judgment of the district court the supreme court may direct judgment to be entered only in cases where the facts are agreed to by the parties or found by the court below, and when it does not appear by exception, or otherwise, that such findings are against the evidence.</p> <p>2. -Directing Judgment. Where some of the material findings are held to be contrary to the evidence, and for that reason are set aside, the supreme court is not warranted in directing an entry of judgment on the remaining findings.</p>

Error from Sumner district court; J. A. Burnette, judge. STATEMENT. In March, 1886, Alexander Blackstone and wife executed to the Stock Exchange Bank a mortgage on a half-section of land to secure a note for about $4500, given to the bank by Charles Blackstone, Alexander Blackstone, and William Corzine. The mortgage was duly recorded.

<p>Error from Atchison district court; R. M. Emery, judge pro te to.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. This was an action brought in the court below by defendant in error, Frank L. Young, against Silas Rain to quiet his title to a tract of land in Shawnee county. Rain claimed title and based the same on a sheriff’s deed made pursuant to the following proceedings: On May 13, 1875, Morehead, Young & Oo. recovered judgment in the district court against J. N. Young, W. B. Young, and S. Rain.

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

<p>Railroads — Transportation to Shippers —Unconstitutional Law. Chapter 167, Laws of 1897 (Gen. Stat. 1897, ch. 70, §§ 67-69; Gen. Stat. 1899, §§5763-5765), being “An act to require rail;., road companies to furnish free transportation to shippers of stock in certain cases,” etc., is a deprivation of property without due process of law, and a denial of the equal protection of the laws, and is therefore unconstitutional and void under the fourteenth amendment to the federal constitution.</p>

Error from Saline district court; R. F. Thompson, judge. STATEMENT. This was an action for personal injuries brought by the plaintiff in error against the railway company. Particular questions of fact were submitted to the jury. They returned answers to the same, together with a general verdict, in favor of the defendant below.

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

Error from Kingman district court; P. B. Gillett, judge. STATEMENT. This is an action by tbe First National Bank of .Kingman, Kansas, for the delivery and cancelation of six certificates of deposit of $1000 each, payable to the order of John Byrnes, which, it was alleged, were fraudulently obtained, and were the proceeds of money embezzled from the bank by R. L. Hanscome while acting as cashier and teller of the same.

' Error from Wabaunsee district court; William Thomson, judge. STATEMENT.

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

Error from Wabaunsee district court; William Thomson, judge. statement. Action by Edmund Redgate to recover damages from Wyatt Roush, W. H. Goodwin, E. Parmiter and O. L. Wilkinson -for alleged libels written and published by them. Redgate was a member of the Church of Christ, had preached in different churches of that denomination, and, for three years prior to 1897, had preached for the congregation at Wilmington, Kan., of which organization the defendants were elders.

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

<p>1. Practice, Probate Court — Appeal from Order of Glassification. An order of the probate court classifying a demand allowed against the estate of a deceased person is a “ decision,” and a subsequent order vacating it and assigning the demand to a different class is likewise a “decision,” and may be appealed from by the aggrieved party under the statute regulating appeals from probate courts.</p> <p>2. -Limitation of Action. A proceeding in the probate court to vacate an order of classification of a demand against the estate of a deceased person is regulated by the civil code (Gen. Stat. 1897, ch. 95, §§¿01, 602, 611; Gen. Stat. 1899, §§4862, 4863, 4870), and must be brought within the appropriate period of limitation therein prescribed.</p>

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam'l W. McElroy, judges. STATEMENT.

<p>Appeal from Jackson district court; Charles F. Johnson, judge.</p>

Original proceeding in mandamus. STATEMENT. The facts in this case have been agreed to by the parties in writing, and are as follows: ‘ ‘ That the said George A. Hamilton, plaintiff, is now and has been a resident of the state of Iowa, and has never been a resident of the state of Kansas ; that on or about the 27th day of November, 1889, the said George A. Hamilton recovered a judgment on a certain note and mortgage held by said Hamilton and which had been sent to Ellsworth,…

<p>1. Sale oe Mortgaged Property — Accessary—Statutes Construed. An accessary before the fact, or principal in the second degree in the commission of a felony, need not be of the same class as the principal offender, or be legally capable of committing the main offense. Held, therefore, that one not a mortgagor of personal property may be convicted under section 360, chapter 100i General Statutes of 1897 ( en. Stat. 1899, §2241), of aiding and abetting the mortgagor of such property in the offense of feloniously selling and disposing of it, in violation of chapter 167, Laws of 1899 (Gen. Stat. 1899, §§4074, 4075).</p> <p>2. -Accessary — Statutes Construed. The general provisions of a statute upon a given general subject will be extended to new classes of like cases subsequently included within the same subject. Held, therefore, that the enactment of 1868, contained in section 360, chapter 100, General Statutes of 1897 (Gen. Stat. 1899, §2241), providing for the punishment of accessaries before the fact, or principals in the second degree in the commission of felonies, applies to one who aids or abets the mortgagor in the felonious offense of selling and disposing of mortgaged property, newly denounced by chapter 167, Laws of 1899 (Gen. Stat. 1899, §§ 4074, 4075).</p> <p>3. Usury — Mortgage Contract Construed. A mortgage of personal property which, stipulates for the highest rate of interest on the mortgage debt allowed by law, and an additional sum in the event that the mortgagor sells the mortgaged property before payment of the mortgage debt through the agency of another than the mortgagee, is not usurious as matter of law. The mortgagor can avoid the contingency, and, therefore, the payment of the claimed usury, by discharging the debt before selling the property. (Tholen v. Duffy, 7 Kan. 105.)</p>

Error from Barber district court; G. W. McKay, judge. STATEMENT. This was an action to recover upon a promissory note for $3000 and the interest coupons attached thereto, executed by Calvin J. Skeen, Sarah C. Skeen, Gar lie Lane, and Myron J. Lane, in favor of the Jarvis-Conklin Mortgage Trust Company, and to foreclose a mortgage on real estate in Barber county, given by the same parties to secure the payment of the note.

<p>1. Master and Servant — Limitation of Action for Wages. If there is a single hiring, and the term of service of the employee and, also, the time when his compensation shall become due are not fixed by agreement or understanding, and the hiring and service continue without interruption or payment until the death of the employer, the employment, in the absence of evidence of a general custom or usage, may be deemed continuous, and the statute of limitations will uot begin to run against a claim for compensation until the services are ended.</p> <p>2. -Nature of Contract — Question for Jury. When the facts as to the nature of the employment and as to when the compensation become payable are doubtful and disputed, they should be left to the determination of the jury; and in such case the court properly refused an instruction that, where a person was employed by another and no time was fixed for the termination of the employment or for the payment of compensation, and the employee remained continuously in service for about seven years, the law would deem it an employment from year to year, and that-compensation would become due at the end of each year, at which time the statute of limitations would begin to run thereon.</p> <p>3. -Action for• Wages. A cause of action upon an entire and continuous contract for service does not accrue until it is terminated.</p> <p>á. -Testimony Sufficient. Testimony examined, and held to be sufficient to sustain the verdict and judgment.</p>

<p>1. Railroads — Consolidation of Companies — Pleading and Practice. Pending an action against a railway company it was consolidated with another corporation. Under the articles of consolidation the new company assumed all the obligations and liabilities of the old. An amended petition was filed by the plaintiff setting out the agreement of consolidation, making the new corporation a party defendant, and charging it with liability for the default of the old. (There was no reference in the amended petition to the pendency of the action against the old company, but in the answer the defendant averred that the action purported to be a continuation of the original suit. Meld, that, as revivor may be had by action, the allegations of the amended petition will be construed as having that purpose, and, being so understood by the defendant, the substitution of parties will not render a deposition taken while the action was pending against the old company, on notice to it alone, incompetent to be read against the new.</p> <p>% - Contract for Passes — Measure of Damages. In estimating damages for the breach of a contract to issue passes to plaintiff annually during his life, a recovery must be confined to the actual loss sustained, and such loss is compensated for by the payment of the amounts expended by the promisee for railroad fare.</p>

Original proceeding in quo warranto. STATEMENT. The facts in the case necessary to be considered are as follows : On September 5, 1881, the city of Topeka passed an ordinance, No. 400, which took effect September 7, entitled “An ordinance for the erection, construction and maintenance of water-works in the city of Topeka, Kansas, and to regulate the same.” The material sections of the ordinance are as follows : “ Section 1.

<p>1. Corporations — Liability of Stockholders. The constitutional provision, article 12, section 2, that “dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law, ” is not self-executing but requires legislative action to give it effect.</p> <p>2. - Statutory Provisions Construed — Procedure. The legislation required by the above clause of the constitution was had by sections 49 and 50, chapter 66, General Statutes of 1897, which provides for separate proceedings by each creditor in his own right. JLeld, therefore, that the creditor’s remedy can be pursued only under the conditions prescribed and in the modes authorized by such statutes, and that a petition by one of the creditors in behalf of himself and others to enforce the liability of the stockholders and to distribute the amounts collected cannot be maintained.</p> <p>3. -Relation between Creditors and Stockholders Contractual. The effect of the statutes which obligate the stockholders of a corporation to pay its indebtedness to an amount equal to the stock owned by them, and which authorize the institution and maintenance of proceedings by the creditors to enforce the liability, is to make the relation between the creditors and stockholders contractual in its nature, and such relation, being contractual, is therefore within the protection of the clause of the federal constitution which forbids the states from passing laws impairing the obligation of contracts.</p> <p>4. -Act of 1897 — -Right of Receiver. Section 55, chapter 47, Laws of 1897 (Gen. Stat. 1897, ch. 18, §51; Gen. Stat. 1899, § 461), which authorizes receivers of insolvent banks to institute actions for the enforcement of the statutory liability of the stockholders of the bank for equal distribution among its creditors, and which suspends the creditor’s right, previously given, to proceed for himself against the stockholders, for one year, to await the action of the receiver, cannot be allowed to apply between those who were creditors and stockholders before the time of its taking effect.</p>

Error from Harvey district court; F. L. Martin, judge. STATEMENT.

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

<p>Marriage and Divorce — Common-laiv Marriage. A man and woman were formally married when one of them was under disability because a decree of divorce previously granted had not become effective. Both intended in good faith to assume the marital relation, and after the disability was removed they decided and did continue to live together as husband and wife without the performance of another marriage ceremony. Meld, that the facts stated were sufficient to establish a common-law marriage and to make them husband and wife after the disability was removed.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT.

<p>Descents and Distributions — Aliens. Because of the prohibition of the alien land act of this state (Gen. Stat. 1897, ch. 51, §1; Gen. Stat. 1899, §1191), the lands of a deceased resident citizen, dying intestate, cannot be acquired under the statute of descents (Gen. Stat. 1897, ch. 109, §§ 19,20; Gen. Stat. 1899, §§2159, 2160) by a collateral kinsman, although a resident citizen, when the ancestor through whom the claim of inheritance is made was, at the time of his death, a non-resident alien.</p>

Error from McPherson district court; Matthew P. Simpson, judge. STATEMENT. On January 2, 1896, the stockholders of the First National Bank of McPherson voted to go into voluntary liquidation at the close of business on the day following. The First State Bank of McPherson was organized about that time, under the laws of this state. The president and cashier of the latter were the same persons who held like positions in the First. National Bank.

<p>1. Judicial Sale — Alias Execution. Lands levied on under one execution, and advertised for sale for a time beyond the return day of the writ, may be sold; as advertised, under a second or alias writ, issued under circumstances and containing recitals which show that it was procured under the authority of section 468, chapter 95, General Statutes of 1897 (Gen. Stat. 1899, §4724), for the purpose of authorizing the sale under the previous levy and advertisement.</p> <p>2. - Gases Distinguished and Followed. The case of Shultz v. Smith, 17 Kan. 306, distinguished, and the cases of Ritchie v. Higginbotham, 26 id. 645, axARain v. Young, ante, p. 428, 59 Pac. 1068, followed.</p>

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

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

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

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

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

<p>Case-made —Settlement by Judge pro tern. Where the term of office of a judge pro tern, had expired before a case-made was settled by him, he had lost jurisdiction to make the settlement.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

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

<p>Promissory Note — Effect of Verified General Denial. A petition set out copies of three promissory notes and contained an averment that they were executed and delivered by the defendant to the plaintiff. The defendant, for answer, filed a general denial stating that he denied each and every allegation contained in the petition. This answer had attached thereto a verification which stated “that he (defendant) is acquainted with the facts set forth in the foregoing answer, and that the facts therein stated are true.” Held, that the answer so verified did not put in issue the execution of the notes sued on.</p>

<p>Action por Death — Conflict of Laws. The Missouri statute giving a right of recovery for death caused by the neglect or wrong of another is so far penal in its nature, and so dissimilar in its provisions to the Kansas statute authorizing a recovery for death by wrongful act, that it is not enforceable in the courts of Kansas.</p>

Error from Wyandotte court of common pleas; W. G. Holt, judge. STATEMENT. This was an action to recover damages for personal injuries, brought by L. T. Merrill. Briefly stated, the facts are as follows : At the time of the injury he was in the employ of the Chicago Great Western Railway Company in the capacity of switchman. A coal-car was loaded with iron pipe by the Missouri, Kansas & Texas Railway Company in St. Louis for shipment to St. Joseph, Mo.

Error from Marion district court; O. L. Moore, judge. STATEMENT. This is a proceeding involving the validity of conveyances and encumbrances of land formerly owned by Martha Bartel, and for a partition of the land among those claiming to inherit it. Prior to February 25, 1893, John J. Bartel and Martha Bartel were married, and had lived together as husband and wife.

<p>1. Execution — Amendment after Return. An execution for the sale of property, authenticated with the seal of the court but lacking the signature of the„clerk issuing it, may be amended after its return by order of court upon the clerk to sign it, if' necessary to validate proceedings under it.</p> <p>2. -Cases Distinguished. The cases of Dexter v. Cochran, 17 Kan. 117; Lindsay v. Comm'rs of Kearny Co., 56 id. 630, 11 Pac. 603, and Gordon o. Rod-well, 59 id. 51, 51 Pac. 906, distinguished.</p>

<p>Judicial Sale — Redemption—Erroneous Judgment — Collateral Attach. A judgment of a court having jurisdiction of parties and subject-matter foreclosing a mortgage on real estate executed after the passage of the redemption act of 1893 (Laws 1893, ch. 109; Gen. Stat. 1897, ch. 95, §§471, 472, 521-524; Gen. Stat. 1899, §§4742-4769), which erroneously orders a sale and conveyance of the property without providing for redemption, is not a nullity, and cannot be successfully assailed by a collateral attack.</p>

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

<p>1. Landlord and Tenant — Liability of County for Negligence. A county which, lacking^a court-house, rents a building from a private individual for county purposes, impliedly obligates itself to the lessor for carefulness and prudence in the use of it, and may enter into a written agreement of lease containing the ordinary covenants against waste, etc., and if, through the negligence of the officers charged with the duty of caring for the premises, the building is destroyed by fire, the county is responsible in damages for its value.</p> <p>2. - Cases Distinguished. The cases of Comm’rs of Marion Co. v. Riggs, 24 Kan. 255, and Lumber Co. v. JSlliott, 59 id. 42, 51 Pac. 894, distinguished.</p>

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

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

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

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

<p>Appeal from Montgomery district court; A. H. Skidmoke, judge.</p>

<p>Railroads — Injury at Crossing. The case of Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472, followed.</p>

<p>Suspension op Civil Rights — Sentence to Reformatory. The statute providing that “a sentence of confinement and hard labor for a term less than life suspends all civil rights during the term thereof” is not applicable to convicts sentenced to the state industrial reformatory.</p>

<p>Appeal from Saline district court; R. F. Thompson, judge.</p>

<p>1. Usury — Defense by A ssigneefor Benefit of Creditors. Where an assignment is made for the benefit of creditors and an obligation of the debtor which is illegal by reason of usury is presented against the estate, the assignee may set up the defense of usury and resist the payment of such illegal claim.</p> <p>2. - Tender Unnecessary. Where a creditor undertakes to enforce an usurious and illegal contract, the defense of usury is available without paying or tendering the amount of the debt.</p>

<p>■ Error from Montgomery district court; A. H. Skid-more, judge.</p>

<p>1. Juey and Jurors — Trial by Eleven. The assent of a defendant upon trial on a charge of felony to the discharge of one of the jurors, with an agreement to submit to a verdict by the remaining number, is ineffectual to bind him, and in such case, in the event of an adverse verdict, he is entitled to a retrial, notwithstanding his agreement.</p> <p>2. - Special Venire — Case Distinguished. When there are not enough jurors of the regular panel present in court to constitute a jury, and either party to a case called for trial requests that the necessary additional number be drawn in the manner prescribed by chapter 121, Laws of 1899 (Gen. Stat. 1899, §3700), it becomes the duty of the judge to cause the drawing to be made, and not to fill the panel with talesmen from among the bystanders. The case of Trembly v. The State, 20 Kan. 116, distinguished.</p>

<p>1. Railroads — Injury to Passenger — Fraudulent Representations — Estoppel. If a passenger negligently injured in a railroad wreck and at once treated -by a physician of the railroad com- . pany is again visited by the physician and a claim agent of the company a few hours after the injury, and while nervous, weak, and sick, and, by false and fraudulent representations of the physician that his injuries are slight and temporary, is induced to execute a release of all claims for damages for a trifling amount, he will not be bound by such release. On the other hand, if the release is fairly obtained and understandingly executed, it will constitute an effectual bar to a recovery for the injuries.</p> <p>2. -Action to Cancel Release Unnecessary — Tender. Where personal injuries have beeh suffered for which a liability exists, and a release therefor has been fraudulently procured, an action for damages may be maintained without first obtaining a decree to rescind or to cancel the release, and the plaintiff is not precluded from attacking a release so obtained, when it is set up as a defense, because he has not restored or tendered back the amount received by him at the time the release was obtained.</p> <p>3. - Testimony Insufficient. To sustain a claim that plaintiff was induced to execute the release by false and fraudulent representations, it must appear that he relied and acted on such representations, and, upon an examination of the testimony herein, it is held insufficient to support a finding that he “believed such representations to be true and in executing such release relied and acted thereon.”</p>

<p>1. Change oe Venue — Objection too Late. Upon an application for a change of venue the papers and files of the case were transmitted to the district court of another county, where both parties appeared and proceeded to trial without objection. After judgment had been rendered and the same reversed upon a proceeding in error, objection to the jurisdiction was made because no formal order changing the venue had been made and entered. Held, that the objection came too late, and that any irregularity in transferring the case had been waived.</p> <p>2. Practice, Supreme Court — Assignment of Error. In assigning error upon the admission of testimony, that which is challenged should be particularly pointed out and the objection fully stated. It is not sufficient merely to call attention to testimony beginning at a certain page, or which may be found between certain designated pages of the record.</p> <p>3. Evidence — Memoranda. Where certain voluminous memoranda as to the number and kinds of trees planted under a contract with a city have been made by witnesses who at the trial have no independent recollection of the facts, but can testify that they knew of the truth and accuracy of the statements in the memoranda when they were written, and that they were correctly written, both the testimony of the witnesses and the memoranda may be received in evidence.</p> <p>I. Contract — Tree-contract Construed. The contract for the planting of trees not having specified the particular method or manner in which they should be planted and maintained, but having provided that the city should only pay for such trees as were in a thrifty and prosperous condition at the end of a stated time, the manner of planting was not of the essence of the contract, and the exclusion of testimony pertaining to the same was not error.</p> <p>5. -Intention of the Parties. The intention of the parties is the controlling consideration in the interpretation of a contract, and if from the whole contract the mutual understanding of the parties appears, their intention should be given effect, notwithstanding there may be slight inconsistency or clerical mistakes in the provisions of the contract.</p>

<p>1. Title and Ownership — Estopped by Execution Levy. One who causes an execution to be levied on land as the property of another necessarily affirms that such other has a'salable interest in the land, and will not be heard to deny such interest and title when the owner sets up a claim that the property levied on is a homestead and exempt from sale upon execution.</p> <p>2. Homestead — Selection. A debtor who owns and occupies 240 acres of land lying in a body, from whatever source obtained or by whatever title or tenure it is held, is entitled to select 160 acres of the same as his homestead from any of the subdivisions thereof which are contiguous and will include the one upon which he resides.</p> <p>3. -Injunction before Sale. Unless he has already made a selection, he may make one when the execution is levied by the officer, or at any time before the sale of the property levied on, and the bringing of a proceeding against the officer to enjoin the sale as soon as the levy is made, in which he sets up his claim of homestead, and the causing of a summons to be served on the officer, are sufficient notice to such officer of his homestead selection and claim.</p>

<p>Police Judge — Appointed in Gities of the First Glass. The office of police judge in cities of the first class has been appointive since the enactment of chapter 123 of the Laws of1 1895. (Gen. Stat. 1897, ch. 32, §§24, 25; Gen. Stat. 1899, §808.)</p>

<p>1. Action by County- — Name—Estoppel. When a board of county commissioners prosecutes an action for the recovery of money belonging to the county, first, in the name of the state, on the relation of the county attorney, and second, in the name of the county treasurer, and in such action causes the issuance and levy of an attachment on the debtor’s property, and through the county attorney and the county treasurer defends the attachment as against an execution creditor, it cannot finally defend against a motion by the execution creditor for an order to deliver up the property to the sheriff for sale under the creditor’s execution, on the ground that it had not been by name formally made a party to the case.</p> <p>2. Election oe Remedies — Assignment and Delivery, or Attachment. When a debtor assigns and delivers property to his creditor in payment of the debt, and the creditor, instead of holding the property and applying it on the debt, causes the issuance and levy of an attachment on it as the property of the debtor, and as against the execution creditor of their common debtor litigates their adverse rights thus to levy on the property and apply it, through, judicial proceedings, on their debts, he cannot, when defeated in the litigation, set up his claim on the property by reason of the assignment and delivery which had been made to him, but will be held to have waived his rights under the assignment and delivery and to have elected the remedy by suit and attachment.</p>

<p>Appeal from Ellis district court; Lee Monroe, judge.</p>

<p>1. County High School — Sumner County — Statute Construed. An act of the legislature provided that the question of the continuance of the Sumner county high school should be submitted to the electors of that county at the general election in 1899, and that if a majority of the voters voting at said election should vote “No” the school should be disestablished. Held, that the meaning of the statute is plain, and that, a majority of all the voters voting at said election having failed to vote in the negative, the school was not discontinued.</p> <p>2. -Poll-books as Evidence. The names of the voters appearing on the poll-books furnish the best evidence of the total number of votes cast.</p> <p>3. - Canvass of Votes — Improper Action of Commissioners — Mandamus. The board of county commissioners met as a board of canvassers on November 10 and 11, after the general election, and made an abstract of the votes cast, which showed that the total number of voters voting at said election was 5324, of which 2648 voted “No” and 2100 voted “Yes” on the high-school proposition; but said board of commissioners made no declaration of the result. Later, and in December following, a meeting of the board was called, and arguments heard regarding the construction of the statute authorizing the vote. A majority of the board then decided “that according to the votes of the November election the right to maintain the high school was lost.” Held, that the action taken at the December meeting was a nullity ; that a complete canvass of the votes was made on November 10 and 11, and the work of the canvassing board completed, with the exception of declaring the result, which it was the duty of the board to do, and the performance of such duty may be enforced by mandamus.</p>

Original proceeding in mandamus. STATEMENT. On the 8th day of February, 1900, the state solicitor filed with the clerk of the court of visitation an information based on the affidavit of J. W. Robison, praying said court of visitation to inquire into and find what are reasonable rates or charges for the shipment of cattle in this state between the several stations on the lines of road operated by the Atchison, Topeka & Santa Fe Railway Company, and especially between El…