Volume 62 — Kansas Reports

<p>Homestead and Exemptions—Judgment of Probate Court— Collateral Attack. The United States homestead law provides: “No land acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” (U. S. Rev. Stat. 1878, §2296.) Notwithstanding the exemption thus declared, a judgment of a probate court ordering a sale of land, the title to which was acquired under such law, for the payment of debts contracted prior to the issuance of the patent therefor, will be upheld as against a collateral attack, unless the fact that such debts antedate the patent appears upon the record of the probate court’s proceedings.</p>

<p>1. Dtjbess — Indirect Threats Sufficient to Sustain the Plea. It is not necessary, in order to sustain a plea of duress of fears excited by threats of arrest and prosecution for crime, and under the influence of which fears an instrument of writing was involuntarily executed, that the threats be directly made by the threatener to the one from whom the writing was extorted, or that they be communicated to him by an agent of the threatener authorized for that purpose. It is sufficient to sustain the plea if the threats be communicated by others, and the natural and reasonable consequence of making them be so to excite the fears of the one who does the act as to overcome his judgment and will.</p> <p>2. - Mortgage on Homestead — Testimony of Wife as to Threats. When a wife testifies upon direct examination without objection that she heard of the making of threats to arrest and imprison her husband, without stating from whom she heard them, and that in consequence she became so alarmed concerning him that she executed a mortgage on her homestead against her judgment and will, in order to insure his safety, her evidence, as to the bare fact of what she heard, is not rendered incompetent by a disclosure upon cross-examination that she heard it as a communication from her husband.</p> <p>3. - Third Person May Relate Communications between Husband and Wife. When a substantive litigated question in a case is whether a husband made a disclosure of certain information to his wife, a third person who overheard it made may testify to it. Such testimony is not objectionable as being hearsay in character, nor as an evasion of the statutory rule against the admission of the testimony of husband and wife as to communications with each other.</p> <p>4. Estoppel — Trust Property — Findings Construed. Findings of the jury examined, and held, that they show that a conveyance of land belonging to a bank, executed by its executive officers, was made upon a sufficient consideration, and was subsequently ratified by the board of directors, and also that the bank, by parting with the consideration received for the deed, is estopped to repudiate the transaction.</p>

<p>1. Action bob Death — Pleading—Verdict of Coroner's Jury. A petition alleged that plaintiff was damaged by the negligent adoption, by the board of county commissioners, of defective plans for the construction of a bridge, in consequence of which the plaintiff’s husband, while working under the same while it was building, was killed by the fall of the structure. The verdict of the coroner’s jury, returned after an inquest over the body of the deceased, was attached to the petition, in which the cause of the death was found to be an “accidental falling of a stone-arch bridge.” Held, that the finding of the coroner’s jury, made a part of the petition, did not narrow the alleged cause of the death so as to confine it to an unforeseen and fortuitous circumstance.</p> <p>2. -Defective Bridge — Notice to County. The board of county commissioners was notified, before the plans and specifications for the bridge were adopted by it, that a bridge built in accordance therewith would not stand, and there was testimony of competent engineers that the plans were inadequate. Held, that such information was sufficient notice to the chairman of the board within the requirements of the statute.</p> <p>3. -Relation of Contractor, The contractor being required to build a bridge upon a defective plan adopted by the county, for which reason it fell, the latter cannot avail itself of the defense that the negligent acts of an independent contractor caused the damages complained of.</p> <p>4. -Impeaching Testimony. It was sought to impeach a witness for plaintiff by showing that he made statements before the coroner’s jury contradicting his testimony given in this case. Held, that it was competent for plaintiff to prove that before the accident the witness made statements in harmony with his testimony at the trial. The State v. Petty, 21 Kan. 54, followed.</p> <p>5. -Instructions — Practice Disapproved. The practice of incorporating the entire opinion of this court into an instruction is disapproved; the trial court ought not to embody the language used by this court in an instruction, prefaced with a statement that this court is the authority from which it is derived.</p>

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

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam'l W,' McElroy, judges. STATEMENT. This action was based upon the breach of a written contract for the sale and conveyance of real estate. On March 12, 1894, Frank Roberts and wife executed and delivered to Marsellus Yaw their bond for a deed to certain land in Shawnee county.

Error from Reno district court; Matthew P. Simpson, judge. STATEMENT. In August, 1894, George W. Cook and Ms son Herbert Y. Cook, doing business under the name of Cook & Son, were indebted to Stacy, Adams & Co. in a sum exceeding $12,000, and to W. H. Stacy for the sum of $3000 for money borrowed, evidenced by a note for that amount.

<p>1. Personal Injuries — Measure of Damages — Loss of Time. Profits derived from a business speculative and uncertain in character are not provable, as a measure of damages, in an action to recover for injuries negligently inflicted upon the owner of the business, whereby he was prevented from giving it his personal attention, and earning from it such probable amount as its nature permitted; but they are provable to show the character and ex-ent of the business in which the injured person was engaged, the probable value to him of the time he lost on account of his injuries, and the probable loss he sustained by not being able to give to his business his accustomed oversight and attention; and this rule is not affected by the fact that the business in question was that of a partnership conducted by the injured man and another.</p> <p>2. - Gase Followed. The case of Railway Go. v. Posten, 59 Kan. 449, 53 Pac. 465, followed.</p>

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

<p>Error from Crawford district court; W. L. Simons, judge.</p>

<p>Like Insurance — Liability for Accident — Policy Construed. A contract of insurance with, a fraternal insurance company provided for the payment of a certain benefit whenever a member thereof, by reason of disease, accident, or otherwise, should become totally and permanently disabled from following his usual or regular business, occupation, or profession. A member who was a pharmacist and engaged in running a drug-store was accidentally shot in the left arm, and it was amputated at the shoulder-joint, and no other injury was alleged to have been sustained. In an action on the contract of insurance, it is held, that the loss of the left arm alone does not constitute a total disability, within the terms and meaning of the contract.</p>

Error from Lyon district court; Charles B. Graves, judge pro tem. STATEMENT. On October 10, 1887, Julia A. Smith and her husband, F. E. Smith, executed and delivered to the Farm Land Mortgage and Debenture Company a note for $2000, and secured the same by a mortgage on land in Lyon county. Default having been made in the payment of interest, a foreclosure suit was begun by the mortgagee on March 8, 1891, wherein F. E..

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

Error from Cherokee district court; A. H. Skid-more, judge. STATEMENT.

<p>Bond bob Appearance—Deposit of Money Insufficient. Upon the postponement of a trial for misdemeanor, a justice of the peace may release the defendant from custody upon the execution of a sufficient recognizance for his appearance for trial at the appointed time, but the justice has no authority to accept a deposit of money in lieu of bail or as a substitute for a recognizance. Money so taken remains the property of the defendant and may be recovered by him.</p>

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

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

<p>Error from Hodgeman district court; J. E. Andrews, judge.</p>

<p>1. Taxation — Delinquent State Taxes — Liability of County. By the terms of section 182 of chapter 158, General Statutes of 1897 (Gen. Stat. 1899, §7296), in connection with chapter 199, Laws of 1885 (Gen. Stat. 1897, ch. 158, §§221-226; Gen. Stat. 1899, §§ 7361-7371), counties are liable to the state for uncollected state taxes levied on lands which, in default of payment, are sold at delinquent tax sale and bid in by the county; and by the last-mentioned act provision is made for the collection of such taxes by a special additional levy in the year succeeding the delinquency.</p> <p>2. - Case Followed. The case of Railway Co, v, Clark, 60 Kan. 831, 58 Pac. 561, followed.</p>

<p>1. Conditional Sale — Implied Contract. In cases of conditional sales of personal property, a reservation of title in the seller until the performance of the conditions by the buyer may be implied from the conduct of the parties and the facts and circumstances of the case, and need not be made in the form of an express agreement.</p> <p>2. -Error in Refusing Instructions. The facts of this case, as testified to by the seller of a stock of merchandise, tended to show an intention on his part to reserve, and on the part of the buyer to allow, a reservation of title in the seller; held, therefore, that it was error for the court to refuse to instruct the jury on the theory of a claim by the seller of an implied reservation of title.</p> <p>3. Replevin — Amendment of Petition. A plaintiff in replevin, who, in ignorance of the real value of property sought to be recovered, alleges its value at an excessive sum, is entitled, upon motion therefor, to amend his petition in such respect, notwithstanding he failed to amend when, as before answer, he could have done so without leave, and also failed to apply for leave as early as he might have done, if the amendment, when applied for, can be made without prejudice to the rights of the defendant, and if a denial of leave to make it will increase the liability of the plaintiff to the extent of a thousand dollars, or a fifth of the value of the property in dispute.</p>

<p>Error from Atchison district court ; W. T. Bland, judge.</p>

Error from Johnson district court; John T. Burris, judge. STATEMENT.

<p>Corporations — Bight of Intervention by Stockholders. The stockholders of a corporation who allege that their company hat. a valid defense to a suit brought against it, but which its managing officers wrongfully or fraudulently refuse to make, are entitled to intervene in the suit and defend for the company, upon their tender of an answer stating valid matters of defense to the action, and the making of a showing, by evidence, of reasonable grounds to believe that such defense can be finally proved upon a trial of the case, and that the officers whose duty is to make it are wrongfully or fraudulently refusing to do so.</p>

<p>1. Taxation—Equalization by State and County Boards. Whenever the valuation of taxable property in any county is changed by the state board of equalization, the board of county commissioners of such county are authorized to use the valuation so fixed by the state board as a basis for making their levies for all purposes, but are not bound so to do. .</p> <p>2, -Refusal to Adopt Equalization. Section 1 of article 11 of the constitution is not violated by the action of the local taxing authorities in refusing to adopt the valuations fixed by the state board in making their levy for the current expenses of the county, or for any purpose except state taxes.</p>

<p>1. Abstracters — Not Public Officers. Chapter 1, Laws of 1889, “An act for the protection of the records of the several counties of the state of Kansas, and regulating the business of abstracting in relation thereto,” does not create the business of abstracting into a public office, nor constitute the abstracter a public officer.</p> <p>2. - Title of the Act. The words “in relation thereto,” constituting the final clause in the title to the above-mentioned act, are meaningless. Their use was a legislative inadvertence, and they should be eliminated in reading and construing the title to the act.</p> <p>3. -Act Constitutional. The above-mentioned act does not contain more than one subject and the title to it, with the above-quoted meaningless clause eliminated, clearly expresses a single subject, and is therefore not repugnant to section 16 of article 2 of the constitution.</p> <p>4. -Findings Construed. Findings of the jury quoted in the opinion and held to show privity of contract between the parties.</p> <p>6. -Bond Construed — Sureties Estopped by Recitals. A bond required by statute for purposes of public indemnity was given by a partnership composed of two members, the style of which was, “The Boyden Abstract Company.” The body of the bond designated the partnership by such name and style, and it was signed in the same way. The partnership was also designated, both in the body of the bond and by its signature, as “principal.” One of the partners signed the firm name to the bond by himself as “president,” and the other attested it as “secretary.” Both signed their individual names to the bond, but in the body of it designated themselves as "sureties. ’ ’ Field, that such instrument purported upon its face to be the bond of a corporation, and not of a partnership; that the matters above mentioned are in the nature of recitals of the character of the obligation as a corporation bond; and that persons not members of the partnership, who signed themselves as sureties on the bond, are estopped to deny the truth of the recitals.</p> <p>6. -Extension of Time — Sureties not Released. Sureties liable on the bond of an abstracter of titles to a purchaser of land for the omission from the abstract of an outstanding mortgage on the land are not discharged by an extension of time granted by the vendee to the vendor to make good his covenants of warranty against encumbrances contained in his deed.</p>

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

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

Error from Wyandotte court of common pleas ; W. G. Holt, judge. STATEMENT. This was an action commenced in the court of common pleas of Wyandotte county by R. M. Gray and fourteen others, owners of property abutting on Ann ayenue, in Kansas City, Kan., against the city, the city clerk, county clerk, and county treasurer, to enjoin the collection of certain special assessments levied against their real estate for the purpose of paving Ann avenue from Sixth to Tenth streets.

<p>Cibcumstantiai. Evidence — Instruction. In a criminal prosecution, where the evidence of the defendant’s guilt is partly circumstantial, it is error to refuse an instruction to the jury tendered by the accused in the following language: “A few facts, or a multitude of facts proved, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show that the defendant committed the crime, but they must be inconsistent with any other rational conclusion.”</p>

<p>1. Coeam Nobis— Office of the Writ. The office oí the writ of error coram nobis is to bring to the attention of the court, for correction, an error of fact — one not appearing on the face of the record, unknown to the court or the party affected, and which, if known in season, would have prevented the rendition of the judgment challenged.</p> <p>2. —;- When not Available. The writ supplements, but does not supersede, the remedy provided in the code for the granting of new trials or the correction of errors. It is not available where the facts complained of were known before the trial, and where advantage could have been taken of the alleged error at the trial; nor does it lie to correct an adjudicated issue of fact.</p> <p>3. - False Testimony — Newly-discovered Evidence. The remedy cannot be invoked on the ground that an important witness testified falsely about a material issue in the case; nor can newly-discovered evidence, going to the merits of the case, be used as a basis for the writ.</p>

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

<p>1. Preliminary Examination — Proceedings Construed, as a Waiver, When a person charged with felony is afforded an opportunity for a preliminary examination, thereby given reasonable notice of the character of the offense charged against him, and thereupon enters a plea of guilty, averments that he did not understand the proceedings or know that what he said and did there would be construed as a waiver of a preliminary examination, do not state a sufficient ground for abatement of the prosecution.</p> <p>2. Murder — Information Held Sufficient. An information charging the defendant with an assault with intent to ravish a girl, and that then, with deliberation and premeditation, he choked and beat her, struck her head against a tree with great violence, and that afterward he threw her body into a well, all with intent to kill and murder her, and that the wounds and injuries so purposely and feloniously inflicted caused her death, is not obnoxious to a motion to quash on the ground of duplicity.</p> <p>3. Jury and Jurors — Service on Sunday — Examination. The fact that persons drawn as. jurors were served with process on Sunday, and were excluded from the court-room while other jurors were being examined as to their qualifications, does not disqualify them for jury service, nor operate to the prejudice of the defendant.</p> <p>4. -Fixed Opinions, not Mere Impressions. Fixed and positive opinions in regard to the issues involved in a criminal prosecution disqualify persons called as jurors, and not mere impressions obtained from rumor and newspaper reports, slight and fugitive in character, which do not indicate a condition of .mind that precludes a fair and impartial examination of the facts when presented in the testimony.</p> <p>5. Confession of Crime — Competency. An extrajudicial- confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of benefit, profit, or amelioration, it should be excluded; but mere advice or admonition to the defendant to speak the truth, which does not import a threat or benefit, will not render a confession then given incompetent.</p> <p>6. -Instruction not Erroneous. Where proof of confession by the defendant has been received, and also circumstantial evidence of the offense charged, an instruction by the court which assumes that both direct and circumstantial evidence have been submitted to the jury is not misleading or prejudicial.</p> <p>7. Murder — Instructions Properly Refused. The charge of the court should be applicable and limited to the facts in evidence, and where the testimony shows beyond question that the defendant was either guilty of murder in the first degree or innocent of any offense, it is unnecessary to charge the jury as to any degree of the offense other than murder in the first degree.</p> <p>8. - Convict under Sixteen — Sentence. Section 299 of the crimes act (Gen. Stat. 1897, ch. 100, § 367; Gen. Stat. 1899, § 2253), which provides that ‘ ‘ whenever any person under the age of sixteen years shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail not exceeding one year, instead of confinement and hard labor, as prescribed in the preceding provisions of this act,” does not apply to felonies for which the death penalty is imposed.</p>

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

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

<p>1. Corporations — Dissolution—Action against Stockholders. The cessation by a corporation of all the business for which it was organized, the only business transacted being such as is incidental and necessary to the final closing up of its affairs, is a suspension of business within the meaning of the statute (Gen. Stat. 1899, §1268), and, under such statute, for the purpose of suits by creditors against stockholders, such suspension, if continued for one year, is to be deemed a dissolution of the corporation.</p> <p>2. -Action against Stockholders — Limitation of Action. One who owns a matured obligation against a corporation which has suspended business, and who, with knowledge of such suspension, extends the time of payment, does not thereby extend the period of statutory limitation for beginning suit against the stockholders of the corporation, under sections 1268-1272 of the General Statutes of 1899; but, notwithstanding such agreement of extension of time, action against the stockholders may be brought, and must be brought, within the statutory period after the corporation suspended business.</p>

<p>1. Personal Injury — Negligence of Both Parties — Rule Stated. One who, with knowledge of the grossly negligent and reckless habit of another, voluntarily and unnecessarily places himself in the way of receiving injuries at his hands, is guilty of contributory negligence, and cannot excuse himself on the ground that the conduct of the other was wanton and wilful in character, unless such other had knowledge or apprehension that he was about to inflict injury and made no effort to avert it._</p> <p>2. Railroads — Inf wry to Employees — Contributory Negligence. A workman engaged in cleaning stock-cars standing on a railroadtraok, who has knowledge of the grossly negligent and wantonly reckless habit of the railway company to bump other cars against them without warning, and who is injured by such negligent conduct while he is endeavoring to cross the track by crawling under the cars, when there was a safer way to get across, and who might have heard or seen the approach of the moving ears had he looked or listened, is guilty of contributory negligence, and a recovery cannot be had for his injuries or death unless the railway company, before bumping the cars, had knowledge or apprehension of his perilous position and made no effort to avoid injuring him.</p>

<p>1. Stay Bond — Liability of Obligors — Will Contest. In a proceeding in error brought to reverse a judgment vacating a will, an order of stay was granted by the supreme court, effective upon the giving of a bond conditioned that the plaintiff in error would pay all damages sustained by reason of the order if the judgment should be affirmed. After the affirmance an action was brought on the bond. Held, that the obligors on the bond were liable for loss actually sustained by the successful parties by reason of their being prevented from taking possession and exercising acts of ownership over the real property to which they were entitled under the judgment.</p> <p>2. -Elements of Damage — Waste. The waste of the property by reason of neglect and decay while the stay was in force was properly included as an item of damages.</p> <p>3. -Depreciation in Value — Attorneys'1 Fees. In such case the shrinkage in value of the real estate from causes other than physical is not an element of damages recoverable on the bond, nor are the fees for the services of counsel rendered in securing an affirmance of the judgment in the supreme court.</p> <p>4. -Interest. The claim of plaintiff for interest on the damages for waste was properly disallowed by the trial court.</p>

<p>Evidence — Demurrer—Case Followed. In considering and deciding a demurrer to plaintiff’s evidence in a case tried to the court the same rule obtains as in cases tried to a jury. The court cannot weigh conflicting evidence nor regard the case as though submitted by the defendant upon the plaintiff’s showing, but must consider as true all portions of the evidence which tend to prove the allegations of the petition. (Wolf v. Washer, 32 Kan. 533, & j?ac. 1036.)</p>

<p>1. Criminal Practice — Evidence of Reputation. A defendant on trial for larceny introduced evidence tending to establish his good character for honesty. Witnesses on behalf of the state were permitted to testify in rebuttal that the accused, together with three other persons not on trial, sustained bad reputations in that respect. Seld, error.</p> <p>2.--Larceny — Insufficient Information. A person having the mere custody or temporary use of personal property in the capacity of servant of the owner, and who could not maintain an action for trespass as bailee for injury to the same, is not properly designated as the owner in an information for larceny.</p>

<p>1. Office and Officers — Justice of the Peace and Police Judge. A justice of the peace is not eligible to the office of police judge of a city of the second class; but if the police judge of such city be absent, sick, or disqualified from acting, a justice of the peace may temporarily act as police judge until such absence shall cease.</p> <p>2. -De Facto Officers — Collateral Attack. Where a person acting as police judge is, at least, a de facto officer and is holding a de facto court, the decisions made and judgments rendered by him are not void, and his title to office is not subject to collateral attack.</p> <p>3. Jurisdiction — Collateral Attack — Habeas Corpus. Where a final judgment of conviction is rendered by a court of competent jurisdiction, errors or irregularities in the proceedings or in the force and effect given to the testimony or any decision made by it on questions of law and fact within its jurisdiction cannot be reviewed collaterally or corrected by habeas corpus.</p>

<p>Appeal from Geary district court; O. L. Moore, judge.</p>

Original proceeding in mandamus. STATEMENT. Within the time prescribed by law M. G. Miller and E. W. Sponable each filed, in the office of the secretary of state, a certificate of nomination, in due form, for the office of senator of the sixth senatorial district, which is composed of the counties of Miami and Johnson. Each of said candidates filed his objection with the secretary of state against the placing of the name of the other on the official ballot.

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

<p>Eorbign Corporations — Service of Summons on Officer Casually Found in the State. A corporation of one state, not doing business in another state, is not subject to the jurisdiction of such other state by the casual appearance there of its president or other managing officer and the service of summons on him while there; but a mortgage loan company of a state which makes its securities payable at a designated agency in another state, and which pays them there, and which appoints a trustee resident in such other state to receive and hold its securities in trust for the payment of its obligations made payable there, and which deposits its securities with the trustee for such purpose, is doing business in such other state, and is amenable to suit there by the service of summons on its president or other managing officer casually found in the state.</p>

<p>County Treasurer—Liability for Misappropriation, by Another of World's Fair Funds. Money was appropriated by a county to aid an organization of citizens in making a state exhibit at the World’s Fair. Afterward the state appropriated money to reimburse that county, with others, for advancements. The county treasurer gave S. an order on an officer of the citizens’ organization to obtain the money due the county, if it was under his control. The money was not in his hands nor under his control, but was in the state treasury. Afterward S. presented a verified account in favor of himself and against the state, not for the money due the county, but for money “ subscribed by citizens of Morris county. ” The claim so made was audited for an amount equal to the sum due from the state to the county, and a warrant therefor was paid by the state treasurer to S., who appropriated the money to his own use. Held, in an action against the county treasurer and his bondsmen, that the state officers were not authorized to allow or pay the money due the county on the voucher presented by S., and that the county treasurer and his bondsmen are not liable for the money so misappropriated.</p>

Error from Leaven worth district court; Louis A. Myeks, judge. STATEMENT. The plaintiffs below, plaintiffs in error here, were the parents of Olaude D. Bess, a minor, who, at the time of his death, was fifteen years and ten months old. Between the place of residence of the deceased and the business part of the city of Leavenworth there were situated many railroad-tracks and switches owned by the defendant company, over which they operated their engines and cars.

<p>1. Agreement t'o Devise Land — Specific Performance. A note or memorandum in writing oí an agreement to devise land, made upon sufficient consideration and signed by the person making it, may be enforced against his heirs or devisees by an action to compel a conveyance from them in specific performance of the promisor’s agreement.</p> <p>2. - Statute of Frauds. Facts stated in a petition held to be sufficient allegations of a note or memorandum in writing of an agreement'to devise real estate to satisfy the statute of frauds.</p>

<p>Mortgage and Lease—Clay in Bank—Invalid on Brick not Manufactured. The owners of a brick-yard leased it to another, and stipulated in the lease that they should retain and hold a mortgage lien on the clay in the bank and upon the brick manufactured therefrom as security for any unpaid rent. The clay intended to be covered by the mortgage was in its natural state, and not severed or set apart in any manner. Afterward the lessee manufactured brick and sold the same while a portion of the rent was unpaid, and an action for the value of the brick sold was brought against the purchaser. IIeld, that the mortgage contract did not create a lien on the brick not manufactured or in existence when the mortgage was executed.</p>

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

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

<p>1. False Imprisonment — Evidence of Motives. In an action for false imprisonment, the motives of the defendant are not material so far as establishing a right of action is concerned, and evidence of good faith or lack of malice is not competent to reduce actual damages, but may be received to avoid punitive or exemplary damages.</p> <p>2. -Arrest without Warrant — Officer and Private Person Eistinguished. An arrest by an officer of the law without warrant will not constitute false imprisonment if the officer arresting had reasonable grounds to believe that a felony had been committed ; but a private person arrests without a warrant at his peril, and it will be false imprisonment unless it can be shown that a felony has actually been committed.</p> <p>3. -Arrest to Compel Payment of Money Unjustifiable. The law contemplates that an arrest, either by an officer or a private person, with or without a warrant, is a step in a public prosecution, and it must be made with a view of taking the person arrested before a magistrate or judicial tribunal for examination or trial; and if the purpose of the arrest and detention is forcibly to compel the payment of money, and not to accomplish the prosecution and punishment of the prisoner by legal methods, the restraint is unjustifiable and illegal.</p>

<p>1. Railroads—Limited Ticket—Purchaser Bound by Acceptance'. A round-trip railroad ticket contained the following printed on its face: “In consideration of the reduced rate at which this ticket is sold, it is hereby agreed that it will not be good for going passage after midnight of the date named in attached coupon, nor for return passage after midnight of date punched in margin hereof.” The date referred to, indicated by punch marks, was May 5,1891. Plaintiff used the going portion of the ticket within the time limit. She started to return on May 27, 1891, twenty-two days after the time limit had expired, and was denied the right to travel on the ticket. Held, that the ticket was not ambiguous as to its terms, nor the conditions doubtful in their meaning, and that the acceptance of the same and its use constituted a contract between the carrier and passenger which, being in writing, could not be contradicted or varied by parol evidence.</p> <p>2. - Case Distinguished. The case of K. O. St. J. & G. B. Bid. Go. v. Bodebaugh, 38 Kan. 15, 15 Pac. 899, distinguished.</p>

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

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

<p>1. Practice, District Court — Juries in Equity Case. In an equity case the court may take the advice of different juries at different times as to the issues of fact involved, by submitting to them questions for their consideration and answer.</p> <p>2. Conveyance — Parent to Child for Services — Sufficient Consideration. A daughter remained for several years after attaining her majority in the family of her parents and performed services therein without an agreement for compensation, but finally the father agreed with her that if she would continue to remain and take charge of the household he would pay her not only for what services she might thereafter perform, but for what she had already performed, to which proposition she assented and with which she complied. Several years thereafter the father conveyed land to the daughter in fulfilment of the agreement. Eeld, that the conveyance was upon sufficient legal consideration and will be upheld, though prejudicial to the father’s other creditors.</p>

<p>Railroad — (Service of Summons Held Insufficient. A railroad, company was organized in Kansas, after which, it built a line of railroad in the state. When the road was built the company leased and surrendered possession of the same, together with all other property owned by it, to another company for a period of forty years. After the lease was executed, it never operated a railroad nor held any business relations in the state, except as lessor of the railroad. An action was brought against the company, and a certified copy of a summons was served by leaving a copy thereof at the depot of the leased line, which was in charge of an agent of the lessee company, who had no connection with the lessor company. Held, that the service was insufficient.</p>

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

<p>1. New Trial — Duty of Trial Court. Upon an application for a new trial because the evidence does not sustain the verdict, it is the duty of the trial court, though not of an appellate court, to weigh the evidence, although conflicting, and if the verdict is clearly against the weight of the evidence and does not meet the approval of the court, it should be set aside.</p> <p>2. - Duty of Supreme Court on Review. Where a new trial is granted upon a motion alleging several grounds, and the trial court does not state upon what particular ground the motion was sustained, the supreme court will sustain the order, if it can be sustained upon any one or more of the grounds assigned in the motion.</p>

Error from Doniphan district court; W. I. Stuart, judge. STATEMENT. This was an action in ejectment brought by Charles Peuker to recover from William and Ella Canter the possession of certain alluvial lands formed by the Missouri river, in the process of accretion, in front of a forty-acre tract owned by him. The tract in controversy contains about 124 acres.

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

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

Error from Cherokee district court; A. H. Skidmore, judge. STATEMENT. This was an action brought by James F. Cooper to subject certain real estate in Cherokee county belonging to the estate of Willard Ives, deceased, to the payment of an indebtedness arising out of the fact that the deceased was a stockholder in the Western Farm Mortgage Trust Company, an insolvent corporation, organized under the laws of the state.

<p>1. Judgments — Alternative or Conditional. A judgment against a corporation which orders the defendant to issue certificates of stock to the plaintiff, and place them in the hands of the clerk of the court within a certain time after it shall have been served with a copy of the order, and which finds the value of the stock to be a certain sum, and further directs that, in default of the defendant’s compliance with the order for the issuance and delivery of the certificates, the plaintiff have judgment for the value of the stock, is conditional in form and effect, and, as to the money award contained in it, should be vacated, and entered only upon proof of the defendant’s non-compliance with the main order.</p> <p>2. Pleading — Petition Construed. An allegation in a petition to recover the value of shares of stock in a corporation, that tbe corporation stock “is divided into 100,000 shares, of the par value of one dollar each,” does not tender an issue of fact as to the market value of the stock or any special value possessed by it.</p>

<p>1. Railroads — Right of Way — Judgment Lien. A judgment is a statutory lien, which, may be modified or abolished by the legislature before rights become vested under it; and such lien may be superseded by the statute authorizing the taking of land on condemnation proceedings for a right of way for a railroad, on payment of just compensation to the owner; and when proceedings are completed and the compensation paid the railroad company will acquire an easement free from all judgment liens.</p> <p>2. -Judgment Creditor not an “ Owner." A judgment creditor is not an owner, within the meaning of the statutes relating to condemnation proceedings.</p> <p>3. -Prepayment Waived — Owner Estopped. The condition of the prepayment of compensation which has been properly awarded may be waived by tho owner, and when it has been waived, and the railroad company, relying on the waiver, proceeds to complete its railroad and expends large sums of money on the land so appropriated, the owner will be estopped to reclaim the land or maintain ejectment for its recovery.</p>

<p>1. Title and Ownership—Way of Necessity. A grantor in a deed excepted from the land conveyed a hundred-foot strip through the same theretofore taken by a railway company under condemnation proceedings, by virtue of which the railway corporation obtained title in fee. Held, that the grantee was not entitled to a way of necessity from one part of her land to another divided by the strip so condemned.</p> <p>2. -Prescriptive Eight over Eight of Way. A railway company constructed a crossing over its track and ties and put gates in itB fences for the benefit of the owner of land so situated, by whom the same were used in passing from one part of her farm to the other for more than fifteen years. During that time the railway company maintained said crossing and gates. Held, that the landowner was a mere licensee, and could not, by use of the crossing for the time stated, obtain a prescriptive right to the same.</p>

<p>1. Reformatory — Sight to Transfer to Penitentiary. Under the authority conferred by section 14 of chapter 134, General Statutes of 1897, the'board of managers of the industrial reformatory, at Hutchinson, may lawfully transfer an incorrigible prisoner from that institution to the penitentiary.</p> <p>2. -Not a Judicial Act. The exercise of such power is not a judicial act.</p>

<p>1. Cities — Exclusion of Land from Corporate Boundaries. The statute, chapter 267, Laws of 1897 (Gen. Stat. 1897, ch. 11, §§1-8; Gen. Stat. 1899, §§7538-7515), which authorizes the exclusion of land from the corporate boundaries of cities, provides that matters of fact in controversy, and necessary to determine in order to ascertain the advisibility of making the exclusion, shall be submitted to a jury; held, that a finding by a jury that no private right would be injured or endangered by the exclusion of a tract from the city boundaries is controlling on the court, and that the latter cannot refuse the relief asked because in its judgment the rights of the city’s bondholders would be endangered.</p> <p>2.-Bonded Indebtedness. The statute above cited also declares that the terms “public loss and inconvenience” or “public right” shall not be construed to mean loss of taxes or right to taxes; held, therefore, that a refusal by a court to make an order of exclusion because “the ability of the city to sell and pay its bonds would be injured” was erroneous.</p>

<p>Error from Reno district court; M. P. Simpson, judge.</p> <p> In banc. </p>

<p>Appeal from Jefferson district court. Marshall Gephart, judge.</p> <p> In banc. </p>

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

<p>Trusts and Trustees — Corporation Stock. A person charged with the duty of selling corporation stock in order to raise a fund with which to pay encumbrances on the property of the corporation, who is himself the owner of one of the encumbrances junior in time to the others and acquired by him before he became obligated to sell the stock, is not a trustee as to the property of the corporation covered by the encumbrances, and forbidden to pro- ' tect his own interests in it by buying the prior liens on it, merely because he was under obligation to sell the corporation stock to raise a fund to discharge the corporation indebtedness.</p>

<p>1. Corporations — Disposition of Property — Discontinuance of Business. A strictly private corporation, owing no peculiar duties to the public, has the same dominion over and power to dispose of its property that an individual has; and, when the exigencies of its business render it necessary, it may, if done in good faith and with the assent of its stockholders, discontinue business and dispose of its entire assets and property, with a view of paying its debts and closing up the affairs of the corporation.</p> <p>2. - Consideration for Sale. For such purpose the acceptance of real estate by a mercantile company in part payment for a stock of merchandise will not condemn or defeat the sale.</p> <p>3. -Ratification by Stockholders. Informal or irregular action of the board of directors or agents of a corporation, which was within the corporate power, may be cured by the ratification of the stockholders.</p> <p>4. -Assumption that Records are Correct. Where, on the face of the records of a corporation, it appeared that the board of directors expressly authorized a sale of certain property, and it appeared to be regularly conferred, the purchaser, in the absence of knowledge or notice to the contrary, had a right to assume that the record correctly recited the facts, and that the authority was formally given at a meeting of the board.</p> <p>5. Replevin — Case Followed. The case of Carson, Sheriff, v. Golden, 36 Kan. 705, 14 Pac. 166, as to the measure of damages in replevin, followed.</p> <p>6. Practice — Requested Instruction. The refusal of a requested, instruction, not signed by the party asking it, as required by section 275 of the civil code (Gen. Stat. 1897, ch. 95, §285; Gen. Stat. 1899, § 4538), is not a ground of error.</p>

<p>'1. Larceny — Declarations of Party Possessing Stolen Prop- ' erty. The declarations of a person found in the possession of stolen goods as to how he came by them, made by him at once upon their being discovered in his keeping, are of the res gestee, because they are parts of the fact of either rightful or wrongful possession, and may be given in evidence upon a trial for the larceny of the goods, even though self-serving in character.</p> <p>2. -Mere Possession not Presumption of Quilt. The mere possession of goods recently stolen upon the occasion of a burglary is not, alone and of itself, as matter of law, evidence tending to show the possessor guilty of the larceny; nor is such possession in connection with other circumstances sufficient, as matter of law, to raise a presumption of guilt of either larceny or burglary; but such possession, in order to constitute evidence tending to show guilt of the larceny, or to be sufficient in connection with other criminating circumstances to raise a presumption of guilt of the burglary, must be unaccompanied by any reasonable explanation, made by the accused or arising from the evidence in the case, as to how he came by the goods.</p>

In banc. STATEMENT. Christ Stegman was prosecuted for forgery upon the following information: “ I, James T. Nolan, county attorney of the aforesaid county and state, in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed that on the 18th day of March, 1900, at the county of Ellis and state of Kansas, one Christ Stegman, a person then and there being, with the intent then and there to defraud,…

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

Original proceeding in mandamus. In banc. STATEMENT. This is an application for a writ of mandamus to require the superintendent of insurance to issue licenses to plaintiff's authorizing them to act as agents for insurance companies admitted to transact business in this state, and to compel the revocation by said superintendent of hn order heretofore made by him denying the right of plaintiffs to represent such companies.

<p>Personal Injury — Contributory Negligence — Question for Jury. Where a boy was killed by his clothes catching in an unprotected shaft exposed in a place where children were accustomed to play, whether the boy should have seen the projecting set-screw which caught his clothing, and have appreciated the danger, and whether the machinery was dangerous, and known to be such, because the place was frequented by children, and whether defendants were negligent in leaving it uncovered and unprotected, were questions for the jury.</p>

<p>'Refunding Bonds — Power of County Commissioners — Estoppel by Recital in Bonds. Boards of county commissioners are authorized to refund bonded indebtedness which has been outstanding for more than two years; and where a board issues refunding bonds under the refunding act (Laws of 1891, ch. 163; Gen. Stat. 1897, ch. 18, §§1, 3, 1; Gen. Stat. 1899, §§517, 519, 520), and recites on the face of the refunding bonds that the debt refunded is county bonds which actually existed when the act was passed, and which had been outstanding for more than two years, and that all prerequisite facts existed, and all conditions precedent to the issue of refunding bonds had been complied with, and at the same time makes a full report to the auditor of state of the steps taken and the proceedings had in the matter of refunding, as the refunding act requires, certifying that all acts, conditions and things required to be done precedent to the issue of the bonds had been properly done and performed, the defense that the debt refunded was not bonded indebtedness, nor bonds which had been outstanding for more than two years, is not available as against a bona fide holder; nor can the county, under the facts of this case, escape liability on the ground that the bonds issued exceeded in amount the limit prescribed by the refunding act.</p>

<p>Error from Clark district court; Francis C. Price, judge.</p> <p> In banc. </p>

<p>Error from Greenwood district court; O. W. Shinn, judge.</p> <p> In banc. </p>

<p>Error from Marion district court; O. L. Moobe, judge.</p> <p> In banc. </p>

<p>Error from Butler district court; C. W. Shinn, judge.</p> <p> In banc. </p>

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

<p>Mechanic’s Lien — Sale without Appraisement under Act of. 1898. A contract for an improvement upon real estate was made, upon which a mechanic’s lien arose. The lien was perfected and foreclosed, and the equity of redemption of each of the defendants was barred by the judgment. An order of sale was issued and the property legally appraised at $1500, but for lack of bidders no sale was made. Afterward the appraisement law was repealed and the redemption law of 1893 enacted. (Gen. Stat. 1897, ch. 95, §§521-544; Gen. Stat. 1899, §§4742-4769.) Another order of sale was issued and the property was sold for $300, without appraisement or any regard to the one which had been made. Held, in an action involving the validity of the sale, that the debtor or owner of the land upon which the lien rested had no vested right in the remedies or collection laws in force when the contract was made which would prevent legislative interference with them, and that the repeal of the appraisement law, and the sale of his property without appraisement, did not impair the obligation of the contract as to the debtor.</p>

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

<p>Descents and Distributions — Effect of Sentence for Life. Section 5583 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 102, §311), which provides that when a person shall be imprisoned under a sentence of imprisonment for life, his estate, property and effects shall be administered and disposed of in all respects as if he were naturally dead, does not cast the descent of his property on his heirs by the fact of such sentence and imprisonment.</p>

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

Error from Atcbison district court; W. T. Bland, judge. In banc. STATEMENT. In November, 1895, an action was commenced by the defendant in error against Wm. H. Risk, as executor of the last will of George Manley, deceased. The action was founded on certain debentures issued by the Kansas Trust and Banking Company, of which the decedent was a stockholder.

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

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

Error from Saline district court: R. F. Thompson, judge. In banc. STATEMENT. This action was brought in March, 1899, by King-man & Company, a corporation, to foreclose a mortgage on lands, executed by Freeman Kingman and wife to one E. E. Sharp, in January, 1886, and afterward assigned to said corporation. The note secured by the mortgage was credited with a payment made in June, 1891.

Error from Osage district court; William' Thomson, judge. In banc. STATEMENT. This action was brought to quiet title. The plaintiffs below were the widow and son, and defendant below a brother, of one A. K. Burditt, deceased. In 1870 the said A. K. Burditt purchased the improvements upon the property in controversy from the occupant thereof and settled upon the claim with the intent and believing that he had the right to make homestead entry thereof.

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

<p>1. Fraudulent Conveyance — Administrator's Duty — Creditor’s Right. Where the estate of a decedent is insufficient for the payment of his debts, and it appears that before his death he conveyed real estate with intent to defraud his creditors, and that the administrator occupies a position antagonistic to the interests of creditors, and refuses, upon their request, to institute a proceeding to reach the property fraudulently transferred, a creditor beneficially interested may bring an action to set aside the fraudulent conveyance, making the administator and others interested defendants.</p> <p>2. -Jurisdiction of District Court. The probate court, by reason of.its limited powers and jurisdiction, could not afford such creditor an adequate remedy, and, as there were equitable grounds of jurisdiction, the action was properly brought in the district court.</p>

<p>1. Forcible Entry and Detainer — Certification. Section 5042 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 103, §26), providing that, when it appears to the satisfaction of a justice of the peace that the title or boundary of land is in dispute in any action, he shall certify the case to the district court for trial, has no application to actions of forcible entry and detainer.</p> <p>2. Practice, Supreme Court — Jurisdiction. When a district court, without jurisdiction of the subject-matter of an action, renders a judgment therein, this court will not entertain proceedings in error to reverse.such judgment.</p>

<p>1. Criminal Procedure—Change of Venue—Prejudice of Judge not Shown. A defendant in a criminal case is not entitled to a change of venue on account of the prejudice of the judge against him, because he is himself prejudiced in feeling toward the judge, had violently opposed him in a political campaign for his office, had published during and subsequently to such campaign vituperative and libelous newspaper articles against him, calculated to arouse him to feelings of resentment and prejudice, and, by testimony which the judge asserted to be false, had endeavored to secure his removal from office for violations of the act to prohibit corrupt practices at elections, when the judge, notwithstanding all such unfriendly conduct, by statement filed in court, disavowed all feelings of prejudice against the defendant, and when there was nothing proved against the judge on the hearing of the motion for change of venue showing bias or prejudice on his part toward the defendant.</p> <p>2. Libel—Averments in Information. ■ An information for the offense of publishing a libel, not defamatory per se, or injurious on its face, is fatally defective unless it avers that the publication tended to produce some of the consequences mentioned in section 2224 of the General Statutes of 1899 (Gen. Stat. 1897, ch. 100, § 349), such as provocation to wrath, exposure to public hatred, deprivation of public confidence, etc.</p> <p>3. -Averments of Inducement and Innuendo. While in the case of informations for publications of matter not libelous per se or defamatory on their face, matters of inducement and innuendo are required, they need not be separated in statement from one another, but may be alleged together in the same part of the information, and, together, may be allowed to help out one another’s averments.</p> <p>4. -Erroneous Instruction—Burden of Proof. The following instruction to the jury in a case of criminal prosecution for libel, “It is ineumbent on him (the defendant) to satisfy you that it (the libel) was not published with his knowledge or authority, and unless he has so satisfied you, you should return a verdict of guilty,” is erroneous, because throwing upon the defendant the burden of proof of a material matter, and contrary to the rule of the reasonable doubt of an accused person’s guilt, requiring him to satisfy the jury of his non-complicity in the crime charged.</p>

H. Madison, judge. In banc. STATEMENT. In this case the defendant was tried and convicted of the embezzlement of a gelding in Clark county.

In banc. STATEMENT. This case was here last year upon questions reserved by the state upon an order of the district court sustaining a motion to quash the information. At that time, the information being held to be sufficient, the judgment of the court below was reversed, and the case remanded for further proceedings.

<p>Burglary — Instruments as Evidence. Instruments not exclusively used for criminal purposes, but of the kind adapted to the commission of a crime with which the defendant stands charged, may be shown to have been in his possession several months before the time of the offense, and may be admitted in evidence on the trial. The facts that such instruments may be used for lawful purposes, and that they were not recently in defendant’s possession, go to the weight, and not to the admissibility, of the evidence.</p>

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

<p>1. Cities — Water-supply Companies — Beports to City Clerk. Section 5 of chapter 82, Laws of 1897 (Gen. Stat. 1897, ch. 39, § 13 r Gen. Stat. 1899, §657), which requires water-supply companies to file itemized statements of income and expense accounts with city-clerks, applies to companies existing at the time of its passage, and is not unconstitutional because containing a subject not expressed in its title, nor because allowing an unjustifiable scrutiny into private affairs.</p> <p>2. Mandamus — Pleadings — Cross-action. The only pleadings allowed in an action of mandamus are the plaintiff’s writ and the defendant’s answer. The defendant cannot, therefore, by cross-action in the same suit, have a writ to compel the performance of some act by the plaintiff.</p>

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

<p>Error from Labette district court; A. H. Skidmore, judge. Rehearing.</p> <p> In bane. </p>

Error from Wabaunsee district court; William Thomson, judge. In banc. STATEMENT. The plaintiff in error commenced this action in replevin in the district court of Wabaunsee county on the 1st day of December, 1898, to recover the possession of 200 head of steers (or their value, thirty dollars each), then in the possession of E. J. Buckingham, defendant in error.

Error from Marion district court; O. L. Moore, judge. In banc. STATEMENT. This action was brought on November 4, 1898, by Hattie E. Brown, widow of Van Voorhis Brown, deceased, and Karl Power Brown, an infant son of said Van Voorhis Brown and the plaintiff Hattie E. Brown, to set aside and cancel a warranty deed made by Van Voorhis Brown and wife to Samuel Brown on May 17, 1894. Van Voorhis Brown was the son of Joseph and Em aline Brown, who, in 1884, lived in Pennsylvania.

Error from Marion district court; O. L. Moore, ;judge. In banc. STATEMENT. This was an action brought by defendant in error, Wheeler, as administrator of the estate of one Yan Voorhis Brown, deceased, against plaintiff in error and one Samuel Brown, to recover damages for the conversion of personal property. Plaintiff in error is the father of Samuel and Van Voorhis Brown.

<p>Error from Chase district court; W. A. Randolph, judge.</p> <p> In banc. </p>

<p>Promissory Note — Attorney in Fact not Personally Liable. One who signs a promissory note in the name of another, by himself as attorney in fact, but who, to the knowledge of the payee and a subsequent indorsee, has no authority to use the other’s name, and who refuses their solicitation to sign his own name and bind himself personally, is not liable on the note as his contract, notwithstanding the fact that it is given in a transaction of his own, and that he is generally using the name signed to the note as a trade name.</p>

<p>Railroads — Bight of Way — Injunction. Where a railway company is seeking, by building a new and permanent bridge or making a permanent and safe road-bed, to make its track safe for public travel, it will not be prohibited from so doing at the instance of one injured thereby, when such injury is comparatively small and may be easily ascertained and compensated for in money.</p>

<p>Error from Decatur district court; Chas. W. Smith, judge.</p> <p> In banc. </p>

<p>1. Taxation — Cities of First Class. Section 1, chapter 260, Laws of 1895 (¡Gen. Stat. 1897, ch. 32, §§ 75, 79; Gen. Stat. 1899, § 842), repeals so much of paragraph 6940 of the General Statutes of 1889 as provided that penalties accruing upon taxes levied in a city of the first class, for city purposes, “ should be credited to the county fund.”</p> <p>2. -Penalties and Interest. As the law of this state now stands, cities of the first class are entitled to receive from the county treasurer of the counties in which such cities are located their “proportion of penalties and interest” accruing upon delinquent taxes.</p> <p>3. -Board of Education. As to taxes levied in such city for school purposes, the penalties charged thereon, if they become delinquent, must “be credited to the county fund,” while the interest must be paid over to the board of education.</p>

Error from Shawnee-district court; Z. T. TIazen, judge. In banc. .STATEMENT. This action was brought by the plaintiff in error to recover damages for injuries which she claims she sustained at a railroad-crossing by reason of the negligence of the defendant in error. The facts are substantially as follows : The plaintiff, a young lady, was invited by W. A. C. Bowhay to ride with him on the evening of August 16, 1899.

Error from Wyandotte district court; E. L. Fischeb,, judge. In banc. STATEMENT. This action was commenced on the 20 th of February, 1900, by William R. Smiley, to enjoin the city of Kansas City from building a sewer.

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

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

<p>Error from Rice district court; Ansel R. Clark, judge.</p> <p> In banc. </p>

Error from Atchison district court; W. T. Bland, judge. In banc. STATEMENT. On July 10, 1890, John M. Price was indebted to defendant in error in the sum of $10,000. On that date he and his wife executed their two notes for $5000 each, due in the future. They also executed to one David Auld a deed to certain real estate in the city of Atchison and vicinity, in Atchison county, Kansas, in trust as security for the payment of said indebtedness, with a defeasance.

Error from Atchison district court; W. T. Bland, judge. In bam. STATEMENT.

Error from Saline district court; R. F. Thompson, judge. In banc. STATEMENT. This action was brought by W. F. Anderson, a minor, by his next friend, to recover damages for personal injury, from W. F. and T. A. Pierce and the city of Salina. The injury sustained was occasioned by the falling of a vault door which had been removed from a building in the process of improvement and placed on edge on the sidewalk in the defendant city.

<p>Conveyance—Breach of Warranty. To constitute a breach of the covenant for quiet enjoyment, the eviction of the covenantee must have been under a lawful and paramount title, which existed and was outstanding when the conveyance by the covenantor was made.</p>

<p>Garmtshment — Plaintiff as (Jarnishee. The plaintiff in an action can neither summon nor charge himself as garnishee therein.</p>

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

Error from Neosho district court; L. Stillwell, judge. In banc. STATEMENT. This action was brought by defendant in error against plaintiff in error in the district court of Neosho county to recover damages for personal injuries, alleged to have been sustained while in the employment of the plaintiff in error as a common laborer on the section, by reason of the negligence of the plaintiff in error. He pleaded two causes of action.

<p>Error from Marion district court; O. L. Moore, judge.</p> <p> In banc. </p> <p>STATEMENT.</p> <p>This action was brought by the plaintiff in error against the defendant to recover on four promissory notes, copies of which were filed as exhibits to the respective counts of the petition. Three of these notes, marked “exhibit A,” “exhibit B,” and “exhibit D,” purported to have been executed by Atkinson & Gar-lick. The action upon the three notes constituted the first, second and fourth counts in the petition, and it was alleged that the defendant John H. Atkinson and one T. J. Garlick were copartners, and as such executed and delivered these notes respectively to the Shetter Foundry and Machine Company, which company afterward, and before maturity, indorsed the same to the plaintiff, etc.</p> <p>The answer of the defendant, which was duly verified, denied the execution and delivery of the notes by the defendant, and denied that he was a member of the firm of Atkinson & Garlick, that there was any such firm, or that he was a partner of T. J. Garlick at the time the notes were executed and delivered.</p> <p>The fourth note, marked “exhibit 0,” which constituted the basis of plaintiff’s third cause of action, read as follows :</p> <p>“$1000.00. New Cumberland, W. Va., May 18, 1898.</p> <p>“Four months after date, we promise to pay to the order of Silver Cliff T. B. Co. one thousand and no hundredths dollars, at Commercial Nat’l Bank, Steubenville, Ohio. Value received.</p> <p>T. J. Garlick &. Co."</p> <p>It was indorsed as follows :</p> <p>“Silver Cliff Towboat Co., by T. J. Garlick. J. H. Atkinson. Shetter Foundry and Machine Co., by A. McFlanegin, Treas.”</p> <p>As to-said note, it was alleged in plaintiff’s amended petition:</p> <p>“That on the 13th day of May, 1898, the defendant J. H. Atkinson, together with T. J. Garlick & Co., a partnership composed of T. J. Garlick and J. H. Atkinson, defendant herein, and the Shetter Foundry and Machine Company, jointly executed and delivered to the Silver Cliff T. B. Company their certain promissory note of that date in writing, whereby they promised to pay to the order of the said Silver Cliff T. B. Company, the sum of one thousand dollars, in four months from the date thereof. . . . There-</p> <p>after, and before maturity thereof, the said Silver Cliff T. B. Company sold, transferred and indorsed, the said note to this plaintiff, who is now the owner,” etc.</p> <p>It also contained the usual averments ot non-payment, and set forth that a copy was annexed as an exhibit.</p> <p>In plaintiff’s original petition as to this note, after alleging that it had been executed and delivered in the same manner, it was averred:</p> <p>“Thereafter, before maturity, for a valuable consideration, the said Silver Cliff T. B. Company sold, transferred and indorsed the said note to the defendant, J. H. Atkinson. He afterwards indorsed the same to the Shetter Foundry and Machine Company, who afterwards transferred the same, by indorsement, to this plaintiff,” etc.</p> <p>To the original petition the defendant answered, fully denying the execution of the note and the partnership , and asserting that he never waived protest on the note, but that after the note was due he received a request from the plaintiff bank to waive protest.</p> <p>After the amended petition was filed, the defendant filed a general denial to the third cause of action as amended, except that he admitted the corporate existence of the plaintiff. This answer to the third cause of action was verified, as follows :</p> <p>“W. H. Carpenter, being first duly sworn, says on his oath that he is the agent and attorney for the defendant in the above-entitled action; that he has read the foregoing answer, and that the same is true in substance and fact.”</p> <p>Before the trial motions to suppress depositions were filed by counsel for each party, and on motion of defendant’s counsel the court did suppress certain depositions taken on behalf of the plaintiff, to which order of the court the plaintiff duly excepted.</p> <p>The court refused to suppress certain depositions which had been taken on behalf of the defendant, the grounds for suppressing the same being that the depositions ‘‘had not been transmitted and sealed as is required by law, nor did the same remain under seal, as is required by law.” Upon the question of suppressing these depositions the testimony of several witnesses was taken. It appeared that the package had been received in bad condition at the post-office at Marion, so that the contents could be seen, but the postmaster testified that he did not believe any of the papers had been taken out, and that it looked as though nothing had been taken out. Both the postmaster and the district clerk testified that it appeared to have been broken open in the mail, and it is agreed •that there was nothing to show that any of the papers had ever been taken out of the envelope when the •clerk received it. It was admitted that the package had been properly sealed up and addressed by the notary. To the failure of the court to suppress such •depositions the plaintiff duly excepted, but after depositions taken by the plaintiff had been suppressed, •as aforesaid, the latter made no application for continuance, and the case was tried to a jury.</p> <p>After the plaintiff had introduced his evidence, and rested, the defendant demurred to the evidence, and the court sustained the demurrer as to the third count of the petition, but overruled it as to the other three. The plaintiff excepted to the sustaining of such demurrer, and at the trial the defendant recovered a judgment on the other three counts. The plaintiff was denied a new trial, and brings the case here for review.</p>

Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. McElroy, judges. In banc. STATEMENT. This action, in the nature of ejectment, was commenced on the 28th day of March, 1888, by defendant in error Daisy Wood, against defendants in error Anderson, Saunders, and Bell. Service of summons was made on Saunders. Defendant in error Douglass appeared, and by consent filed an answer and cross-petition.

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

Error from Shawnee district court.; Z. T. Hazen, judge. In banc. STATEMENT. The plaintiff in error was the owner of a drug-store in Topeka, Kan. The defendant in error had been engaged in the drug business at Muscotah, Kan., with one R. J. McQueen., under the firm name of McQueen & Kunz, and this firm held a permit to sell intoxicating liquors, issued to R. J. McQueen and W. F. Kunz.

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

<p>Cities and Cits’ Oottcebs — Appeals hy City in Criminal Actions. Where a defendant is convicted in the police court under an ordinance of a city of the first class, and appeals to the district court, and the district court quashes the complaint, dismisses the prosecution, and discharges the defendant, chapter 75 of the Laws of 1891 (Gen. Stat. 1897, ch. 32, §150; Gen. Stat. 1899, §785) does not confer upon the city the right of appeal to this court.</p>

<p>Findings—Gonelusiveness■—Remittance by Letter. Wliere the question in issue was whether a certain letter enclosing a draft was addressed to Chicago or to Seattle, and the jury found that it was addressed to Chicago, it was the determination of a disputed fact, and is conclusive.</p>

<p>1. Cities and Citt Officers—Water-supply—Act Construed— Unconstitutional Provision. The title of chapter 82, Laws of 1897 (Gen. Stat. 1899, §§ 653-665; Gen. Stat. 1897, ch. 39, §§ 9-27), so far as it relates to municipal acquisition and ownership of' water-works property, reads as follows: “An act authorizing and empowering cities ... to obtain . . . water ... by purchasing or constructing, owning and operating . . . waterworks . . . by such cities.” Held, that the word “purchasing,” in such title, was used in its popular but restricted sense of acquisition of property by voluntary agreement, for a valuable consideration, and not in its technical but enlarged sense of acquisition by all means other than descent by operation of law; therefore, held further, that, being used in such popular sense, the title of the act does not express the subject of the acquisition of water-works property by condemnation proceedings, and in consequence, section 12, which purports to authorize such proceedings, is unconstitutional and void.</p> <p>2. Pleading and Practice—Election of Remedies. A plaintiff who elects to pursue one of two statutory remedies, which differ from each other in certain forms of procedure, and who avers in his petition that he has elected the remedy of such particular statute, and who, upon the hearing of his claims under it, is de-' feated because of its constitutional invalidity, cannot, upon error to this court, elect to treat his petition as filed under the other statute.</p> <p>3. Cities and Cray Officers—Water-supply—Query. Whether, if section 12 of the act of 1897 were constitutional, it would authorize the condemnation of any other property than that of a private corporation, or authorize, the condemnation of anything less than the whole of a water-works property, is a query.</p>

<p>Error from Clay district court; W. S. Glass, judge.</p>

Error from Saline district court; R. F. Thompson, judge. STATEMENT. In July, 1893, a petition was presented to the board of county commissioners of Wallace county, requesting them to make an order placing a bounty of one dollar each on the scalps of wolves and coyotes, and five cents each on the scalps of rabbits and gophers.

<p>Cities and City Oeeicers — Vacation of Street — Reversion. A street of a city was vacated and it reverted to the owners of abutting property. An owner of eleven lots adjoining the vacated street mortgaged the same by definitely describing the lots, but no mention was made of the adjoining strip acquired by reversion. Held, that the mortgage did not create a lien on the strip.</p>

<p>Error from Atchison, district court; W. T. Bland, judge.</p>

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

<p>1. Contract — Optional and Unilateral — Specific Performance. An optional agreement to sell and convey land, signed by the owner alone, although unilateral at its inception, becomes absolute and mutually binding on both parties if the option be accepted by the vendee within the time and on the terms specified; and such an agreement will be specifically enforced, if fairly made and for a sufficient consideration.</p> <p>2. --Immaterial Objections. Objections to the form of a deed prepared by the vendee for execution by the vendor are immaterial where the vendor refuses absolutely to accept the purchase-price or to execute any deed or conveyance.</p>

<p>1. Parties to Actions — Substitution. In an action brought to recover on a note and to foreclose a mortgage, the district court has power to substitute the real owner of the note and mortgage as plaintiff in place of the payee of the paper, in whose name the action had been brought by mistake, and who had transferred the paper before the action was brought.</p> <p>2. -Effect of Amendment — Limitation of Action. The substitution of parties did not change the claim or cause of action nor the object for which the proceeding was brought, and, as the amendment related back to the commencement of the action, the statute of limitations did not thereafter run in favor of the defendants.</p> <p>3. Practice, Supreme Court — Immaterial Errors. Immaterial errors furnish no grounds for the reversal of a judgment.</p>