Volume 65 — Kansas Reports

<p>Error from Doniphan district court; H. M. Jackson, judge pro 'tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Material-man’s Lien —Parties in Foreclosure — Limitation of Action. When an action to foreclose a material-man’s lien ■ regularly brought against the owner of the premises within a year from the time of filing the statement, the contractor may be made a party thereto, upon the application of either party, after the expiration of a year. An action so commenced is not barred by the statute of limitations because such contractor is not made a party thereto before the expiration of the year.</p>

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

<p>Error from Harper district court; P. B. Cillett, judge.</p>

<p>Error from Kingman district court; P. B. Gillett, judge.</p>

<p>Error from Butler district court; G-. P. Aikman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Opifowfo Purchase Realty — Improvements Burned. An option contract to purchase is but a continuing offer to sell, and conveys no interest in the property. When such a contract is accepted, it takes effect from the date of acceptance, and binds the grantee only to a conveyance of the property in its present condition. If, intervening the offer and acceptance, the improvements thereon are destroyed by fire, equity will not decree a spe-, cific performance of the contract with the improvements restored or with an abatement in price equal to the value of the lost improvements.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Parties to the Action. In an action of partition brought by the grantee of one joint owner of the property against the other joint owners, wherein only a portion of the joint property is included, the defendants may, by answer in the nature of a cross-demand for affirmative relief, have the entire joint estate, and all parties in interest therein, brought before the court, partition made, and the rights of all parties in interest determined and protected by the decree.</p> <p>2. - Change of Venue — Jurisdiction. A court to which a cause is properly removed by change of venue acquires jurisdiction of the cause and subject-matter coextensive with that of the court from which the venue was removed, and may inquire into anything connected with the subject-matter of the action and render any judgment which might have been rendered by the court in which the case originated.</p> <p>3. -Proper Decree to he Rendered. A court, in rendering judgment in partition of joint property encumbered by many conflicting and overlapping specific and general liens, may make any order as to the.sale of the property in satisfaction of the liens and disbursements of the proceeds which the necessities of the case demand for the protection of the rights of the lien-holders and the joint owners of the property, to the end that the decree rendered shall be an effectual and complete termination of the controversy.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Correction of Verdict by Court. When the amount of a verdict is manifestly too small, and the deficiency can be ascertained and supplied by mathematical calculation, as by adding the agreed rate of interest on a promissory note, it is not error, as against the party in whose favor the verdict was returned, to refuse a new trial because of the jury’s mistake, and for the court itself to correct it by rendering judgment for the prpper amount in addition to the verdict.</p>

<p>Error from Barton district court; Ansel R. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fees and Salaries— County Attorney. County attorneys are not required by the provisions of chapter 111 of the Laws of 1899 (Gen. Stat. 1901, §§ 3023-3070), to account to the county for any fees collected by them under the provisions of the prohibitory law (Laws 1885, ch. 119, § 10; Gen. Stat. 1901, § 2175).</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Lien for Rent. A landlord has a lien upon the crops grown on his farm for the unpaid rent, and may recover from any one who purchases such crops, with notice of the lien, the value of the crop purchased to the extent of the rent due and damages.</p> <p>2. - Constructive Notice to Purchaser. The notice to the purchaser may be constructive as well as actual, and a knowledge of the facts which should put a purchaser upon inquiry as to the tenancy, the landlord’s lien and tbe non-payment of the rent is notice of whatever the inquiry would have disclosed.</p> <p>3. Special Findings — Presumption upon Review. If special findings submitted and returned do not cover all the questions involved in the action and the testimony is not preserved in the record, it will be presumed that the general verdict was sufficiently supported by the testimony produced at the trial.-</p>

<p>Error from Montgomery district court; F. J.Fritch, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Information under “Hurrel Law” — Case Followed. In a prosecution under section 2493, General Statutes of T901 (Laws 1901, oh. 232, § 1), it is not necessary to aver in the information that the place maintained by the defendant and alleged to be a nuisance is not a private dwelling-house not used in connection with a place of business. The State v. Thompson et al., 2 Kan. 432, cited and followed.</p>

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

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

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

Error from Sedgwick district court; D. M. Dale, judge. STATEMENT. This was an action to recover damages for breach of contract, brought by J. A. and D. W. Wylie against the Crystal Ice Company, a corporation, and E. R. Powell, its manager.

<p>Error from Kingman district court; P. B. Gillett, judge.</p>

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

<p>Error from Jackson district court; Marshall Gephart, judge.</p>

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

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

<p>Error from Kingman district court; P. B. Gillett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Cross-examination to Impair Credibility — Specific Discreditable Acts. For the purpose of impairing his credibility, a witness who gives material testimony may be cross-examined as to his past conduct and character, and as to specific acts which tend to discredit him.</p> <p>2. Criminal Law — Defense of Alibi — Misleading Instruction. Where the witnesses for the state undertake to fix the time of the commission of an offense, and are not entirely in accord in that respect and the accused makes the defense of alibi and introduces proof that he was elsewhere at the times fixed by the witnesses, an unqualified instruction that the time of the commission of the offense is not important, if it be shown to be within two years immediately preceding the prosecution, is misleading and erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Resisting defaeto Officer — Insufficient Ref ense. A deputy sheriff had been regularly appointed, taken the oath of office, entered upon and had been for several months engaged in the performance of the duties of such office, and was known to the defendant to be such deputy sheriff. Held, that one charged with the misdemeanor of resisting such officer in the service of process cannot justify on the ground that the appointment and oath of office were not filed with the county clerk as provided by section 1745, General Statutes of 1901.</p>

<p>Error from Comanche district court; Francis C. Price, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>rKACTicE, District Court — Statement of Case by Counsel — Departure from Petition. Where, in an action brought to recover the value of wheat alleged to have been converted by' the defendant, the counsel for plaintiff in his oral statement to the court and jury, recites a condition of facts upon which he would be entitled to recover only for storage charges paid by him on said wheat under a mistake of facts induced by the fraud of defendant, and such statement is a departure from the facts alleged in his petition, it is prejudicial error for the court to overrule proper and timely objections made thereto and proceed to try the cause without either having the petition amended or striking out one or the other of such causes of action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Insurance — Agreement to 'Arbitrate Loss — Waiver of Option to Repair. An agreement made by. an insurance company whereby the actual cash loss and damage done to the property of the insured was submitted to arbitrators for decision and award is a waiver on the part of the company of an option to repair, reserved in the policy. ,</p>

<p>SYLLABUS BY THE COURT.</p> <p>Corporations — Stockholders’ Liability■ — Suit by Receiver— Parties. The mode of procedure provided in chapter 10, Laws of 1898, to collect from the stockholders a judgment previously obtained against the corporation, is in its nature an equitable proceeding, and all stockholders within the jurisdiction of the court must be brought into the action to the end that the entire debts of the corporation may be adjusted and assessments made against the stockholders to satisfy such debts, and that the court may also adjust these liabilities between the stockholders and award to each such relief as may appear just.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Insolvent Debtor — National Bankruptcy Act — Chattel Mortgage — Injunction. The national bankruptcy act of 1898 went into effect on July 1 of that year, but its operation was suspended so that involuntary proceedings against a debtor could not be commenced until November 1. In August, 1898, a failing merchant gave a chattel mortgage on his stock of goods to secure a debt owing to the mortgagee, and the latter took possession. A general unsecured creditor (the plaintiff) then brought suit to enjoin a removal of the goods or their- sale, alleging that the mortgage was executed in fraud of the bankrupt law, and praying that: the property be held in statu quo until November 1, when proceedings in bankruptcy, which plaintiff alleged it intended to file against its debtor, could be made available. Held, that no cause of action for equitable relief was stated in the petition, and that a decree granting an injunction must be reversed.</p>

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

<p>SYLLABUS BY THE COUBT.</p> <p>1. Criminal Procedure. — Fvidenee—Prejudice of Witness. In a prosecution for murder, it is competent for the accused to show by cross-examination oí a witness for the state that the latter with others formed a mob for the purpose of hanging the defendant.</p> <p>2. -Facts Shown by Record — Presumption. When it appears that a witness was called on behalf of the state at the trial, that his name was indorsed on the information, and that he was subpoenaed by and testified for the prosecution against the defendant at the preliminary examination, it will be presumed that he testified against the defendant, although the record does not contain his examination in chief.</p>

<p>Appeal from Pawnee district court y J. E. Andrews, judge.</p>

Error from Miami district court; John T. Bukkis, judge. STATEMENT. This was an action against, the Missouri, Kansas & Texas Railway Company for damages for the violation of contracts for the shipment of ■ corn from Kansas City, Mo., to Laredo, Tex.

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

Error from Franklin district court; Samuel A. Riggs, judge. STATEMENT.

Frror from Montgomery district court; Thos. J. Flannelly, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>Bight-hour Law — School District a “Municipality.” A school district is a “municipality,” within the meaning of chapter 114, Laws of 1891 (Gen. Stat. 1901, §§ 3827-3830). known as the eight-hour law.</p>

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

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

<p>Mortgages — Purchaser at Judicial Sale Held, not an Innocent Party. Several mortgages covering the same property were made to the same party at the same time, it being expressly provided in them that the one for $1000 was a first lien. The mortgagee assigned it and the second mortgage, which assignments were not recorded, and afterward foreclosed the third mortgage without making the holders of the other mortgages parties. At the foreclosure sale a third party bought the property for one-fourth of its value. The holder of the first mortgage instituted this foreclosure proceeding, and the court found that the purchaser at the previous foreclosure sale knew, at the time of the sale, that the mortgage for $1000 was prior to the one under which he bought, and knew that the mortgagee had sold and assigned it, and held that the purchaser bought the property subject to the mortgage for $1000. Held, not error.</p>

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

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

<p>Mortgages — Foreclosure—Second Suit on Same Instrument-. When, in the foreclosure of a mortgage, the holder of the legal title to the property is not made a party, a second suit in foreclosure may be maintained. The owner, not being bound by the. former decree, cannot use it for the purpose of defeating the mortgage, while holding his title in subservience to it.</p>

<p>1. Mortgage — Foreclosure—Pleading. Petition examined in a foreclosure proceeding and found sufficient as against a demurrer on the ground that it did not state the facts necessary to constitute a cause of action.</p> <p>2. - Separate Actions on Separate Mortgages. Where two promissory notes are secured by separate mortgages, and a third mortgage on other property is given “to secure any deficiencies there might remain on the aforesaid notes after the judicial sale of the properties and tracts described in the mortgages foreclosed,” the proper practice is to foreclose the first two mortgages, and then foreclose the third one in a separate action, if there be deficiency judgments after the judicial sales.</p>

<p>Error from Atchison district court; Z. T. Hazen, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Employee — Measure of Damages. In an action to recover damages for personal injuries, loss of ability to earn a livelihood and permanent injuries constitute one item of damages. Where, however, the defendants in such action, in their special questions submitted to the jury, divide such item and ask the jury, (1) “If you find for the plaintiff, how much do you allow him for the loss of ability to earn a livelihood ?” (2) “If you find for the plaintiff, how much do you allow for permanent injuries, exclusive of the amount, if any, allowed for loss of ability to earn a livelihood ?” and the jury, in response to such questions, state a given amount for each, they cannot thereafter be heard to say that, because the item was thus divided, the amount allowed in answer to one of such questions includes all the plaintiff was entitled to as damages for personal injuries, and loss of ability to earn a livelihood, and that the amount allowed in answer to the . other question is excessive.</p> <p>2. - Injury to Employee — Receivers. Where the property of a railway corporation is in the exclusive possession of receivers, who are operating the road, the corporation is not liable in an action for personal injuries sustained by an employee of such receivers.</p> <p>3. -Action against Company and Receivers — Practice. If an action is prosecuted jointly against a railway corporation in the hands of receivers, and the receivers, to recover damages for personal injuries sustained by an employee, and it shall be determined that the receivers were in the exclusive possession of and operating the road at the time of the injuries and that the corporation is not liable therefor, the action may be dismissed as to the corporation, or the judgment against the corporation set aside, without prejudice to the right of the plaintiff to have judgment against the receivers.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — New Trial — Discretion of Court. The discretion committed to a trial court to' set aside a verdict of a jury and grant a new trial is a legal and not an arbitrary one, and does not exist unless authorized by law or established precedent.</p> <p>2. - Uncontradicted Evidence — New Trial. The uncontradicted evidence in this case all points to but one rational conclusion of fact, the one found by the verdict of the jury. The motion for a new trial was based upon the ground that the verdict was not sustained by sufficient evidence. Held, that it was error for the trial court to set aside the verdict and grant a new trial.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>1. Limitation oe Action — Note and Mortgage — Insufficient Acknowledgment of Liability. A writing which mentions the fact that the writer had made a mortgage, and suggests to the holder ways in which he might escape loss by taking care of the property mortgaged, is not such “an acknowledgment of an existing liability, debt or claim” as will prevent the running, or remove the bar, of the statute of limitations on the note secured by such mortgage.</p> <p>2. -Requisites of Acknowledgment in Writing. While an acknowledgment, in order to be efficient for that purpose, need not be explicit and in exact words, it must amount to “ an unqualified and direct admission of a present subsisting debt on which the party is liable.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Girt inter Vivos — Requisites—Intention and Transfer. To constitute a valid gift inter vivos, there must be not only an intention gratuitously to give, but an absolute transfer of the property, which takes immediate effect.</p> <p>2. -Promissory Notes — Reservation of Interest Payments. A retention of the dominion and control of promissory notes propbsed to be donated, coupled with a declaration of the payee that interest payments thereon would be expected from the payor, does not evidence a purpose to make a gift inprcesenti, nor indicate such a delivery as is essential to an executed gift.</p>

<p>Error from Finney district court; Wm. Easton Hutchison, judge.</p>

<p>Error from Harper district court; P. B. Gillett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Estoppel. A party who, in the .cross-examination of a witness, calls for incompetent testimony cannot complain of its admission.</p> <p>2. Railroads — Trespassers—Authority of Braheman. Itiswithin the scope of the implied authority of a brakeman in charge of a freight-train to eject trespassers therefrom. (K. C. Ft. S. & G. Bid. Go. v. Kelly, 36 Kan. 655, 11 Pac. 172, 59 Am. Rep. 596.)</p> <p>3. -Injury to Trespasser — Discharge of Duty — Questions for Jury. It is peculiarly within the province of a jury to determine whether a brakeman who forcibly ejected a trespasser from a car did so in discharge of the duty he owed the railroad company to remove such persons, or for the purpose of extorting money from such trespasser, or out of resentment to him for his failure to pay a demand for money made by the brakeman.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Corporations — Powers of Officers and'Directors — Personal Debt of President. The officers or directors of a corporation have no power to pledge its notes to secure the payment of a personal debt of its president.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Creditor’s Bill —Prayer of Petition — Erroneous Money Judgment. In a creditor’s suit, where it was sought to subject to the payment of a judgment real estate allegod to have been fraudulently conveyed by the judgment debtor, there was no prayer in the petition for a second judgment. Held, that it was.error to render a money judgment against the defendant.</p>

<p>Appeal from Greenwood district court; G. P. Airman, judge.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Notes — Fraudulent Alteration. Where a negotiable instrument is delivered to a payee, complete in all of its • parts, the maker thereof is not liable thereon, even to an innocent holder, .after the same has been fraudulently altered so as to ex press a larger amount than was written therein at the time of its execution.</p> <p>2. -Duty of Maher. Such maker is not bound, at his peril,to guard against the commission of forgery by one into whose hands such instrument may come.</p>

<p>SYLLABUS pY THB COURT.</p> <p>I. County Printing — Allowance for Ballots. Under section 2708, General Statutes of 1901, one who furnishes ballots to a county for use at a general election in an even-numbered year is entitled to receive pay therefor at the rate of thirteen dollars per thousand or fraction thereof, when there are as many as six tickets on the ballot. In the whole bill against the county for ballots furnished there can be included a charge for but one fractional part of 1000 ballots supplied.</p> <p>2. -Excessive Allowance may be Recovered. An excessive allowance made to a party by a board of county commissioners for printing and supplying ballots may be recovered back by the county in an action in the name of the commissioners. The payment of ah illegal claim is not binding on the county.</p>

<p>SYLLABUS BY THE' COURT.</p> <p>1. Practice, District Court — Motion to Strike from Pleading. It is not error to refuse to strike from a pleading the statement of a legal conclusion, where the facts upon which such statement rests are fully set out.</p> <p>2. -Report of Referee — Exceptions. Exceptions to the report of a referee may, by order of court, be referred back to the referee, to be made, by the party making them, more clear and intelligible as to the ground of exception already contained therein.</p> <p>3. - Office of Referee. A referee is an officer of the court, and, as such, is under its lawful supervision for the purpose of the accomplishment of justice in the matter which has been referred to him.</p> <p>4. Replevin — Measure of Damages. The rule for the ascertainment of damages in replevin actions laid down in Yandle v. Kingsbury, 17 Kan. 195, 22 Am. Rep. 282, and Werner v. Qraley, 54 id. 383, 38 Pac. 482, approved and followed.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. Dependant in error L. T. Merrill, who was plaintiff in the court below, recovered a judgment against the Kansas City Suburban Belt Railroad Company and the Missouri, Kansas & Texas Railway Company for personal injuries sustained by him in attempting to pass from a flat or coal-car to a box car in the yards of the Chicago Great Western Railway Company in Kansas City, Kan.

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. Defendant in error is a fraternal beneficiary society, of which plaintiff in error was a member.

<p>SYLLABUS BY THE COURT.</p> <p>•Note and Mortgage — Maturity in Case of Default — Exercise of Option. When a promissory note and trust deed, given as security, contain an option authorizing the owner to declare the entire debt due upon default in the payment of interest, and the exercise of this option by an agent before the maturity of the paper is relied on to support a plea of the bar of the statute of limitations, it must be shown, to establish the defense, that the agent •was authorized to decjare the paper due before maturity, and proof that such agent received payments of interest, and wrote a letter attempting to declare the option, is not sufficient evidence of authority.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Contemporaneous Agreement — Oral Evidence. The express engagement to pay contained in a promissory note of the usual form constitutes such instrument a complete contract, importing on its face an absolute obligation as to which a reservation of right not to pay is contradictory. . Therefore, oral evidence of a contemporaneous agreement to surrender the note without payment, in rescission of the contract pursuant to which it was given, is inadmissible.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City and City Officers — Injuries from Electric Wire — Liability for Damages.' Assuming, but not deciding, that a city policeman is a mere peace officer of the state, and not an agent of the municipality, competent in the lack of statute or ordinance to charge the latter with responsibility for his negligence in failing properly to remove dangerous obstructions to street travel, or to guard the public against them, yet, if a city negligently allows a broken and suspended electric wire to remain upon the sidewalk after falling down, it will be liable for injuries following the negligent act of a policeman in so moving the wire as to constitute it a conductor of the electric current from above, and in failing to guard or warn passers-by against it, not because of the policeman’s negligent performance of a legally imposed duty, but because of its own negligence in allowing the wire to remain down, exposing the public to the hazard of its being so misplaced or meddled with as to do harm.</p>

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

<p>Error from Wyandotte district court; E. L. Fischer, judge.</p>

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

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

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

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

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

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

Error from Leavenworth district court; J.H. Gillpatrick, judge. STATEMENT. Plaintiff’s action was for damages done by the burning of her barn.

<p>SYLLABUS BY THE COURT.</p> <p>Title and Ownership' — Will Construed — Vested, not a Contingent, Interest Devised. A will provided for the payment of legacies to the testator’s children and grandchildren. It contained no words of gift or devise, but only a direction to pay, upon the sale of property after certain stated times, with a further direction that, in case of the death of any of the legatees without issue, • before distribution, payment should be made to the survivors. It was manifest from other provisions of the will that the postponement of the payment of the legacies was not to await the occurrence of any events qualifying the legatees to receive their distributive shares, but only to keep the estate intact and undistributed,'in order that the testator’s wife might be insured a comfortable support during life. Held, that upon the testator’s death the legatees acquired a vested, and not a contingent, interest in their undistributed shares.</p>

<p>Error from Kingman district court; P. B. Gillett, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Bonds — Action by Sheriff on Indemnifying Bond. Where, by the terms of a bood of indemnity given to a sheriff by plaintiffs in an attachment case, it is apparent that the obligors intended to save such officer harmless as against all persons making claim to the property seized, and where, in an action on such undertaking brought by the sheriff, it is alleged that, in a suit brought against him by one who claimed to own a part of the property “attached as aforesaid,” a judgment was rendered against said officer which he has been compelled to pay, the petition will be sustained as against a general demurrer, although some of its averments may be informal and indefinite.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cemeteries — Public Corporations. An association organized and incorporated for the purpose of purchasing and holding lands, surveying, platting and selling lots therein for sepulture, and otherwise maintaining a cemetery, is a public, and not a private, corporation.</p> <p>2. --Lotowners are Members of the Corporation. Public cemeteries are not authorized to issue and sell stock. The owners of the lots are members of the corporation and are entitled to vote in the election of its officers and on all other matters, to the same extent as stockholders in other corporations.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Title and- Ownership — Insufficient Defense by Mortgagee. In an action to quiet his title brought by a senior mortgagee who had obtained a sheriff’s deed and possession of the premises under a foreclosure of his mortgage against the mortgagors without joining a second mortgagee as a party, the answer of the second mortgagee, claiming the right to redeem, disclosed the fact that his right to recover against the mortgagors was barred by the statute of limitations. Held, that the answer stated neither a cause of action for redemption nor a ground of defense to the plaintiff’s suit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Cities and City Qeetcers — Vacations of Additions — Hutchinson Act of 1896 Unconstitutional. By section 1 of chapter 301, Laws of 1895, the legislature sought to vacate the lots, blocks, streets and alleys in G. C. Millar’s north addition to the city of Hutchinson. In section 5 of the act it is provided that the land so vacated shall remain within the city and be a part thereof, notwithstanding any law to the contrary. At the time said act was passed, chapter 66 of the Laws of 1893 (Gen. Stat. 1901, §§ 635, 636) was in force, providing that an act of vaeátion by the legislature should, ipso facto, detach the vacated land from the city, and that it should no longer remain a part thereof. Held, that the legislative intention to keep the vacated addition within the corporate limits of the city is made clear by the language of section 5 of chapter 301, Laws of 1895, and that said section being void by reason of its conflict with section 5 of article 12 of the constitution, which has been construed to prohibit the enlarging or contracting of the limits of a city except by general law, the whole act in which section 5 is found must fall. It cannot be held that the lawmakers would have enacted the other sections of the act with section 5 omitted.</p>

Error from Ottawa district court; R. F. Thompson, judge. STATEMENT. One Christian Nelson died in Ottawa county, Kansas, on the 17th day of September, 1897, leaving quite an estate, consisting of both real and personal property. A portion of this property passed to Emma C. Davis, a married daughter. The- plaintiff in error, John H. Nelson, a son, and one Binns, a son-in-law, were appointed executors of the will of.said Christian Nelson and qualified as such.

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyance — Fraud—Burden of Proof . In an action to subject property to the payment of debts, which it is alleged had been sold or conveyed with the fraudulent intent to hinder, delay and defraud creditors, the burden of proving the existence of fraud is on him who asserts it. He must not only show that such was the intent of the vendor, but also show that the purchaser had knowledge thereof or had knowledge of facts that would arouse the suspicions of an ordinarily prudent man.</p> <p>2. Practice, District Court — Objections to Special Questions. Where objections are made to all the special questions requested by one party, and no specific objection is made to any separate question, and some of such questions are proper and should be > submitted, held, that it is not error to overrule such objections.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Alienation of Affections and Seduction. In an action by a husband for damages for alienating the affections of his wife and for her seduction, he is a competent witness except as to transactions or communications had by him with his wife.</p> <p>2. -Declarations of Wife to Third Persons. In an action by a husband for damages fór alienating the affections of his wife __and for her seduction, it is error to reject evidence of the 'wife’s declarations made to third persons prior to the alleged seduction, tending to disclose the state of her feelings toward her husband and toward the alleged seducer.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Live Insurance — Reference in the Policy to the Application — • Warranty of Assured. When, in a contract of insurance, the application of the insured is made the basis for, and a part of, the contract between the parties, and in the contract so made it is stipulated and warranted that the answers of the insured to questions propounded in the application are literally true, and it is also stipulated that if any such answer be found tobe not literally true the contract shall become absolutely null and void, the validity of the contract depends on the truthfulness of the answers, and not on the materiality of the answers to the risk assumed. The contract of the parties having made the answers of the insured material, the same is avoided if such answers be found untrue.</p>

<p>SYLLABUS BY THE- COURT.</p> <p>Practice, District Court— Tort Pleaded and Contract Proved. Where the pleading of the plaintiff states a cause of action in tort and entirely fails to state any facts sounding in contract, and the evidence of the plaintiff wholly fails to prove the alleged tort, but does tend to prove a right of action on contract, the court should sustain a demurrer to the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Assault—Self-defense. A person unlawfully attacked by another is not compelled to yield or retreat, no matter what the character of the attack may be. He is justified in standing his ground and repelling force by such reasonable force as may, under all the circumstances of the case, appear necessary successfully to resist the attack made.</p> <p>2. -Defense from Great Bodily Harm. One unlawfully assailed has the same right of self-defense, and the right of self-defense to the same extent in defending his person from great bodily harm that he has in defending his life.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Hoard of Equalization — Record of County Clerk Construed. When descriptive words used in a record compiled by a clerk, who is not required to employ any particular form of expression, are susceptible of application to two bodies composed of the same individuals, but with separate functions, they will be given such meaning as will sustain the proceeding in which they occur, rather than a meaning which would nullify such proceeding. Hence, the words “the board” and “the board of commissioners” will be held to apply to the county board of equalization when used in a record of proceedings involving, the equalization of the valuation of real estate for purposes of taxation.</p> <p>2. -Methods and Powers of Board of Equalisation. In equalizing the valuation of tracts of real estate, the county board-of equalization is not required to examine witnesses, or to resort to any particular class of evidence. It is its own judge of what it will rely on in making its orders, and its conduct will not be controlled by the courts unless it acts corruptly, or in a manner so oppressive, arbitrary or capricious as to amount to fraud.</p>

<p>Error from Reno district court; M. P. Simpson, '■^¡udge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment— Collateral Attack — Presumption of Appearance. The answer of a defendant to an action in the district court averred that one not then a party to the suit had an interest in the subject of the litigation, setting forth the nature of the interest. The journal entry of judgment recited an appearance by such outside person and the making of an order as to his interest responsive to the allegations of the answer mentioned. The record did not show any pleadings filed by him in the case, or that he was named as a party in any of the pleadings filed by others, or that he was admitted or ordered to be made a party, or that notice or process of any kind was served on him. Held, under the rule of presumptions in favor of the rightfulness of proceedings of courts of general jurisdiction, that, as against a collateral attack on the judgment, a voluntary appearance by the party will be presumed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Jurisdiction—Removal of Cause. When a federal court, by dismissal without prejudice, and without a determination of the merits, relinquishes its jurisdiction oyer the parties to, and subject-matter of, an action removed to such court from a state court, plaintiff therein may again invoke the jurisdiction of the state court; and that court may properly proceed to a determination of the controversy irrespective of, and unaffected by, the former removal to, and jurisdiction in, the federal court.</p> <p>2. Limitation oe Actions — Death by Wrongful Act. Section 422 of the civil code (Gen. Stat. 1901, §4871) creates a right of action for damages for death by wrongful act which did not exist at common law and which does not obtain in the absence of such act. The limitation of two years prescribed in the act in which such action must be commenced is a condition imposed upon the exercise of the right of action granted, and this time is not extended by the pendency and dismissal of a former action, as provided in section 23 of the code (Gen. Stat. 1901, §4451).</p>

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

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

<p>SYLLABUS BY THE, COURT.</p> <p>1, Promissory-Notes — Contemporaneous Agreements. A commercial indorsement by the payee on a negotiable promissory note and a contemporaneous written agreement limiting the effect of such indorsement are to be construed as parts of one instrument.</p> <p>2. -Indorser an Improper Party Defendant. When the payee of a negotiable promissory note transfers it to another under a written contract whereby the holder stipulates to collect the note for the mutual advantage of himself and the payee from the maker, the payee is improperly joined as a defendant in a suit on the note by the holder against the maker, for the reason that the interest of the payee in the controversy is not adverse to the plaintiff.</p> <p>■ 3. Practice, District Court — Jurisdiction. The commencement of an action against an adventitious defendant in one county, and service of process on him there, will not give the court jurisdiction of the real defendant, who is served with summons in another county.</p>

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

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

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

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

<p>Appeal from Montgomery district court; Thos. J. Flannelly, judge.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. At a special session of the legislature, held in 1898, the following act was passed (Laws 1898, ch. 25; Gen. Stat. 1901, §§ 3585-3588 ) : “An Act to provide for the taxation of insurance, guaranty and accident companies not organized under the laws of the state of Kansas. “Ae it enacted by the Legislature of the State of Kansas : “Section 1.

<p>■SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Punishment without Abatement of Nuisance^ In a criminal action brought within the period of the statute of limitations for keeping and maintaining a nuisance under section 2463, General Statutes of 1901, the defendant may be punished personally by fine and imprisonment irrespective of the abatement of the place; and it is not necessary to charge the nuisance to be in existence at the time the information is filed.</p>

<p>SYLLABUS BY THE COURT;</p> <p>1. Criminal Procedure — Appeal in Misdemeanor Case. The defendant, in a misdemeanor case appealed from a justice of the peace, cannot be arraigned and required to plead, nor can the jury be impaneled and sworn and the trial commenced, until the eom- . plaint sent up by the j ustice has been certified by him; and a certification made after the trial has begun and over the defendant’s objection will not have relation back as of the time it should have been made.</p> <p>2. - Certificate to Complaint by Justice. A justice of the peace, whose duty is to certify and send to the district court, upon appeal, the complaint on which a defendant has been tried and convicted before him, cannot make such certification outside the township within and for which he holds his office.</p> <p>3. - Case Followed. The case of The State v. Medley, 51 Kan. 627, 39 Pac. 227, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Misc.nduof. When , a Juror in a capital case makes a statement to his fellow members about material matters outside the evidence, and of a prejudicial character, based on his personal knowledge, it will vitiate the verdict, unless a clear showing be made that the defendant suffered no prejudice from the misconduct.</p> <p>2. -When it is the Duty of Court to Keep Jurors Together. While the law allows a separation of the jury, with the permission and under proper admonition of the court, until a final submission of the case, yet, if it appears that enemies or friends of the accused will endeavor to influence the jury, or that jurors, in commingling with the public during the trial, will be exposed to improper extraneous influences, or be affected by the passions or prejudices existing outside the court-room, it is within the province and duty of the court to keep the jury together during the trial, under the restraining supervision of an officer.</p>

<p>Appeal from Phillips district court; John R. Hamilton, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Burglary — Chicken-house an “Other Building.'1'1 .A frame chicken-house, having doors and a board roof, is comprehended by the words “other building,” used in the second subdivision of section 2059, General Statutes of 1901. The case of The State v. Rogers, 54 Kan. 683, 39 Pac. 219, followed.</p> <p>2. - What the Building must Contain — Instruction Necessary. To constitute burglary in the second degree, under section 2059, General Statutes of 1901, the building broken into and ' entered must at the time contain some human being, or have goods, warés, merchandise or other valuable thing kept or deposited therein. It is the duty of the court to instruct the jury that these essential elements of the crime must be found before the accused can be convicted.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Proceedings to Condemn and Destroy Liquors ,and Paraphernalia. Where intoxicating liquors or other property kept and used in maintaining a place where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of law, are seized under a warrant issued against the keeper of such place upon an indictment, information, or complaint, proceedings to condemn and destroy such property may be had before the trial or conviction of the person so charged.</p> <p>2. -Act of 1901 Held Constitutional. Chapter 232, Laws of 1901 (Gen. Stat. 1901, § § 2193-2500), which declares ‘ ‘ all places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place,” to be common nuisances, is constitutional, and the provisions therein for condemning and publicly destroying such property are ample and fully protect the owner in his property rights, and are also constitutional.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Action to Recover Second Judgment — EoEeeessity for Execution or Revivor. An action can be commenced and maintained on a domostic judgment to recover a second judgment thereon, if such action is begun before the judgment upon which the action is brought becomes dormant. While such action is pending, there is no necessity for the issuance of an execution on the judgment, or for obtaining a revivor of the judgment, in the method prescribed by the statute, to preserve the cause of action. The pendency of the action preserves the vitality of the judgment as a cause of action.</p> <p>2. Homesteads and Exemptions — Judgment for Value of Exempt Property. A judgment obtained for the value of exempt personal property, seized and sold on execution, takes the place of the exempt property and is exempt. A set-off against such exempt judgment in the hands of the original judgment creditor will not be permitted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Insufficient Case-made. Where a case-made shows that material items of evidence were considered by the trial court which are not embodied therein, and which may . be material in the decision of the questions presented by the petition in error, the case must be affirmed, as this court cannot review the judgment of the trial court on such questions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Probate Court — Allowance of Claims— Set-off. One who is a creditor of an insolvent estate, and also its debtor, may have his claim against the estate set off against the claim of the estate upon him, if such claims accrued in the lifetime of the deceased, and are of such nature as would constitute proper subjects of set-off in an action by or against the deceased, if living.</p>

Error from Geary district court; O. L. Moore, judge. STATEMENT. J. U. G. Caster commenced an action in the district court of Geary county against Thomas Dixon, jr.,. to recover for instalments of rent claimed to be due him on a written lease for two years of real and personal property.

<p>SYLLABUS BY THE COURT.</p> <p>Chattel Mortgages — Failure to Record. A failure to deposit and file a chattel mortgage with the register of deeds does not ■ render the instrument void as to on'e who merely takes the mortgaged property under the mistaken belief of his own ownership of it. It is void only as to creditors of the mortgagor and subsequent purchasers and mortgagees. (Gen. Stat. 1901, § 1211.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Employee — Ante-mortem Statement. A railway switchman, in attempting to uncouple two freight-cars while they were in motion, fell between them, receiving injuries which resulted in death soon thereafter. After he was removed from under the cars he told the foreman in charge of the train to call some one; that he wanted to make a statement. The foreman signaled the engineer, who moved his engine toward the place where the switchman was lying, got down, and arrived at his side about five minutes after the accident. In response to a question as to what the switchman wanted, the latter narrated briefly how the accident happened. Held, that the declarations were not a part of the res gestae, and inadmissible.</p> <p>2. - Statements-Included within the Res Gestae. A spontaneous utterance, an ejaculation, an intuitive explanation of a hurt, generated by pain or excitement, are properly included within the res gestee ; but a statement made after apparent delay, showing calculation, and a reflective, thoughtful purpose to postpone the making of it until witnesses are present to attest the words spoken, removes the narrative to the category of a self-serving declaration, and renders it inadmissible in evidence.</p>

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

Error from Allen district court; L. Stillwell, judge. STATEMENT. Robert B. Moore commenced an action in the district court of Allen county against the Iola Portland Cement Company to recover damages for personal injuries. The cement company, was the owner and operator of a plant for the manufacture of cement near the city of Iola.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Case-made. It is the duty of counsel for plaintiff in error, under rule 9 of this court, to number and index the pages of the record, showing the pleadings, testimony, instructions, verdict, findings, and 'all other material parts of the record, before the clerk shall receive or file it.</p> <p>2. -Record must be Paged and Indexed. In a proceeding in error, where the alleged errors are numerous, a determination of which will require an examination of all the proceedings had in the court below, and the record is not paged and indexed, this court will not enter upon an examination thereof. For such neglect the cause will be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Banks and Banking — A.etion on Deposit — Pleading. A bank is liable in. damages resulting from a non-fulfilment of-its contract to pay the money of its depositor upon demand to the same extent and for the same reason that other persons are liable for the non-fulfilment of contracts. The measure of its liability depends on the circumstances of each individual case. A petition, therefore, which states that a bank, in which the plaintiff had money on deposit, neglected or refused to honor his check or pay it upon demand, states a cause of action.</p>

Error from Chase district court; J. Jay Buck, judge pro tern. STATEMENT. This is an action of ejectment tried by the court below without the'intervention of a jury. Separate findings of fact and conclusions of law therefrom were made by the court. These findings sufficiently disclose the nature of, and the facts involved in, the case, and the only questions of law we are called on to determine arise on the findings. They are as follows r “1.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries- — “Attractive Nuisance” — Liability of Owners. It is the law of this state that one who maintains on his premises what is called an “attractive nuisance,” that is, a place which, though patently dangerous to those of ordinary knowledge and prudence, is so enticing to others excusably lacking in intelligence and caution as to induce them to venture to it, is liable for resulting injuries to the latter; and the same rule applies to one who maintains in his own premises a dangerous instrumentality not in itself attractive, but placed in such immediate proximity to an attractive situation on the premises of another as to form with it a dangerous whole, notwithstanding the attractive situation on the other premises may not be of itself dangerous.</p> <p>2. -JSlectric-light Company — Defective Wires. An electric company laid its wires on the viaduct of a city street, outside but close to the traveled way, between which wires and way was a railing or balustrade over which small boys were in the habit of climbing and getting close to the wires. The- wires were defectively insulated, of which fact and of the habit of the boys the company had knowledge. One of the boys, when in the act of climbing, was killed by coming in contact with the uninsulated wires. Held, that the company is liable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Public Lands. The act of Congress of 1866, giving the right of way for the construction of highways over public lands not reserved for public use (U. S. Rev. Stat. §2477) is a present grant, and, if accepted by the legislature or the public, in an effectual manner, while the land is a part of the public domain, a highway is established.'</p> <p>2. -Act of Congress of 1866. The act of Congress, operating with a statute of the state declaring section lines in a county containing public lands to be highways, constituted a dedication and acceptance of public land for a highway, so that when it passed into private ownership it was taken subject to the easement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Action on Bond — Estoppel. A bank was plaintiff in a replevin action. No summons was issued until the day following that on whioh it obtained possession of the property under the writ. It then dismissed the action without prejudice. Held, that, when sued on the replevin bond, the bank and its sureties were estopped from asserting that there was no action pending at the time the property was taken.</p> <p>2. Chattel Mortgage — Immaterial Variance. An immaterial variance between a copy of a chattel mortgage filed with the register of deeds and the original will not destroy the mortgage lien.</p> <p>3. -Priority of Agister's Lien. A lien created by contract between the mortgagor of live stock and an agister will not prevail over a prior chattel mortgage. To give such priority, the lien given by section 3931, General Statutes of 1901, must exist.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Knowledge of Danger. One who, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, freely and voluntarily continues therein, cannot recover damages for injuries he may suffer.’</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Correction of Judgment. Where the findings made in a replevin aotion entitle the plaintiff to a judgment in the alternative, but through neglect or omission a judgment not in the alternative form is entered, it may be corrected thereafter, upon motion of the plaintiff.</p> <p>2. - Correction at Subsequent Term. Such motion may be filed and the judgment corrected beyond the term at which it is entered, and at any time within three years after the rendition of , such judgment.</p>

<p>Error from Clark district court; E. H. Madison, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice,' District Court — Instructions. Instructions to the jury on questions of law should be confined to the issues made in the pleadings, and it is error to give an instruction correct as an abstract statement which, .as applied to the issues in, and the theory of, the case, is wrong and inapplicable, and which might easily mislead the jury in their application of the evidence to the .ssue.</p>

<p>Error from Greenwood district court; G. P. Airman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Specific Performance — Venue. An action to compel tlie specific performance of an agreement to convey land, if the defendant’s obligation is in contract merely, without any element of trust, is an action in personam, and must be brought in the county where the defendant resides, and not of necessity in the county where the land is situated.</p>

<p>Error from Harper district court; P. B. Gillett, judge.</p>

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

<p>Error from Barber district court; P. B. Gillett, judge.</p>

<p>1. Corporations — Aet of 1898 Construed. Section 2 of chapter 10, Laws of 1898 (Gen. Stat. 1901, §1260), does not discriminate, in its requirements, between foreign corporations which had theretofore been doing business in this state and those which might thereafter apply to do business.</p> <p>2. - Corporations Engaged in Interstate Trade. Foreign corporations engaged in interstate trade are subject to the regulations of chapter 10, Laws of 1898 (Gen. Stat. 1901, § 1259 et seq.) While it may be that such corporations cannot be excluded from doing interstate business in this state, yet they fian be laid under such reasonable conditions as the filing of their charters, the payment of charter fees, the making of reports and furnishing of information concerning their business, the appointment' of agents to receive, service of process, etc. These are not burdens on the company — they are measures of justice and protection to the people of the state.</p> <p>3. Practice, Supreme Court — Jurisdiction — Quo Warranto. The grant of jurisdiction to this court in quo warranto does not authorize the joinder to a cause of action for ouster of another one for the annulment of a contract merely because the subject-matter of the latter possesses incidental connection with the subject-matter of the former.</p>

<p>Intoxicating Liquors — Salesman for a Wholesale Liquor House. It transpired in the course'of business conducted by a traveling salesman for a wholesale liquor house located-in Missouri that persons ordering would fail to pay the purchase-price and receive the goods ordered, in which event the liquors would remain stored at the depot where received until another order, corresponding in amount and character of goods shipped, could be obtained by the salesman, when he would procure another bill of lading from the house and the liquors so stored would be turned over to such person, upon payment of the purchase-price. Held, that the transaction was in violation of law.</p>

<p>Error from Pratt district court; P. B. Gillett, judge.</p>

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