Volume 66 — Kansas Reports

<p>Error from Franklin district court; Samuel A. Riggs, judge.</p>

Error from Johnson district court; John T. Burris, judge. STATEMENT. On August 31, 1895, D. B. Park and S. R. Park leased, in writing, of Daniel Ensign 480 acres of land in Johnson county for one year, commencing March 1, 1896, and, at the same time, the lessees, as principals, and Thomas W. Park, W. H. Strother, and George B. Strother, as sureties, executed and delivered to the lessor certain promissory notes to secure the payment of the rent stipulated for in the lease.

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Motion for New Trial — Assumption from Record. Where a motion for a new trial is made in time and at the regular term of court at which the trial was had, and the court hears, considers and overrules the motion after the expiration of such regular term and at a time when, by statute, a term of court might be in session in another county in the district, and it does not appear that objections were made at the time that it was being considered in vacation, this court will not assume that it was heard and determined in vacation, but will assume that it was heard, considered and overruled at an adjourned day of tlie regular term.</p> <p>2. Insurance Policy — Waiver of Proof of Loss. Under an insurance policy which provides that proof of loss shall be made within thirty days after loss, and such proof is not made or waived within that time, the company does not waive a compliance with such condition on the part of the assured by denying all liability under the policy after the expiration of such thirty days.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. This action was brought by Jeroam E. Bancord, as administrator of the estate of John Bancord, deceased, against the Atchison, Topeka & Santa Fe Railway Company, to recover damages for the death of John Bancord, which, it is alleged, occurred by reason of the negligence and wrongful acts of defendant.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Amendment upon Appeal from Justice. Permission to amend an answer in an action appealed from a justice of the peace rests in the sound discretion of the judge of the district court. There was no abuse of this discretion in refusing to grant such permission in a case where more than seven months had elapsed from the time of the appeal, and where the application was not made until the case was called for trial, and no excuse for the delay shown.</p> <p>2. Insurance Policy — Forfeiture—Fraudulent Delivery of Deed. The delivery, procured by fraud, of a deed duly executed does not affect the title to real estate, and, hence, does not serve to create a forfeiture of a policy of insurance on such property by reason of a clause therein contained that the policy shall become void if the title to the insured property shall become other than the entire ownership.</p> <p>3. —--Attorney's Fees — Case Followed. The provision of section 3410 of the General Statutes of 1901, providing for the taxation as costs of a reasonable attorney’s fee in actions against insurance companies on a policy of insurance, is valid. The case of Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335, followed.</p>

<p>Error from Labette district court; Thomas J. Flannelly, judge.</p>

<p>Error from Jewell district court; R. M. Pickler, judge.</p>

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

<p>Error from Doniphan district court; William I. Stuart, judge.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT; This was an action brought by the defendant in error to recover from the railway company damages for her personal injuries. The plaintiff was about forty-three years of age. She was riding with her sister, a married woman some twelve years older than she, in a one-horse buggy.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Instructions. The trial court should fairly, fully and specifically state to the jury all issues of fact made by the pleadings and evidence. However, an issue made by the pleadings but not supported by the evidence should not be submittted to the jury by instructions.</p> <p>2. -- Personal Injuries — Instructions. In an action to recover damages for personal injuries the trial court should not particularize acts and inform the.jury that a non-performance thereof by the plaintiff would defeat a recovery. It is better and more in harmony with our system of practice to instruct the jury generally in the law of negligence applicable to the facts. Held, however, that no error was committed in this case by the instruction given.</p>

Error from Douglas district court; C. A. Smart, judge. STATEMENT. On August 30, 1898, the Modern Woodmen of America, a fraternal beneficiary society, incorporated under the laws of the state of Illinois and doing business in the states of Kansas and Missouri, issued to J. A. Keneaster a beneficiary certificate payable at his death to his children, Bessie, Fannie, and Harriet, all under the age of fourteen years.

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

Error from Reno district court; M. P. Simpson, judge. STATEMENT.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trusts and Trustees — Deed Construed — Case Followed. When land is conveyed to a trustee, his heirs and assigns, for the benefit of a third person named in the deed as beneficiary, but the conveyance contains no clause in restraint of alienation, the title of the trustee is not nominal only, but the trustee in such conveyance has the power of disposition, and the trust is not executed by the statute of uses. The case of Boyer v. Sims, 61 Kan. 593, 60 Pac. 309, followed.</p> <p>2. Corporations — Conveyance to Director — Collateral Attach. While the rule is that a conveyance of the corporate property of an insolvent corporation to a member of the board of its directors will be carefully examined and readily avoided in an appropriate action brought by the proper parties in interest for the purpose of setting it aside, yet such conveyance, based upon full consideration paid, in the absence of actual fraud, is not void, and will not be so declared in a collateral attachment proceeding brought by a creditor of the corporation to subject the property thus conveyed to the payment of a corporate debt.</p>

<p>Error, from Mitchell district court; E. M. Picklbr, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Contributory Negligence — Burden of Proof. In an action for personal injuries, based on the negligence of a defendant, the burden of proof is on the latter to show contributory negligence on the part of the plaintiff, unless the evidence introduced by the plaintiff to sustain his case tends to show that his want of care contributed to the injury.</p> <p>2. - Street-raihvay Crossing — Duty of Traveler. A traveler on a city street, who is about to cross the tracks of an electric street-car company, must exercise his faculties of sight and hearing, and, under special circumstances, must use other careful and prudent means to ascertain whether a car is approaching.</p> <p>3. --- Railroad Rule Applied. The prevailing rule respecting the care required of a traveler over steam-railway tracks applied to one crossing a street-railway.</p> <p>4. - Reciprocal Rights Considered. The reciprocal rights of the traveler and a street-car company considered.</p>

<p>Error from Graham district court; Charles "W. Smith, judge.</p>

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

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p> <p>202</p>

Error from Marshall district court; W. S. Glass, judge. STATEMENT. On January 17, 1893, a corporation known as the Blue Rapids Company was organized under the laws of the state of West Virginia, with an authorized capital stock of $500,000. Six days later a meeting of the incorporators was held which was attended by plaintiff in error and Messrs. Yurann, Braine, Fondey, and Lyman. At this meeting the amount of the capital stock was fixed at $250,000.

Error from Cowley district court; William T. McBride, judge. STATEMENT.

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

<p>Error from Chautauqua district court; 0. W. Shinn, judge.</p>

<p>Error from Cherokee district court; A. H. Skidmore, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Service of Case-made. Where it does not affirmatively appear in a proceeding in error that the case-made was made and served in time, there is a failure to show j urisdiction in this court and the same must be dismissed.</p>

<p>Error from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Cross-peiition in Error. Whenever the record in a proceeding in error in this court fully presents matters affecting the judgment to be reviewed which the defendant in error claims entitle him to affirmative relief, he will be required to assert his rights by means of a cross-petition in error in the pending proceeding, and a subsequent independent proceeding in error for that purpose will be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Liability of Stockholders. Under the statute imposing individual liability upon stockholders of a corporation for its debts, a cause of action accrues in favor of a creditor against a stockholder when the corporation is dissolved, whether its debts are mature or immature.</p> <p>2. - Action on Guaranty — Limitation of Action. A guaranty by a corporation that a debt of another not due will be paid according to the terms of an obligation is not then a debt of the corporation, and, unless such obligation becomes a debt of the corporation, the holder thereof is not deemed to be a creditor of the corporation, within the meaning of the statutes imposing individual liability upon stockholders for corporate debts.</p>

<p>Error from Leavenworth district court; J. H. Gillpatriok, judge.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Conveyance— Contract of Sale Construed. In the absence of an agreement to the contrary, it is presumed that the vendor of real estate is to receive payment at his place of residence, and where the purchaser requires the delivery of deed thereto, upon payment made, at a place other than the residence, the vendor may attach further conditions to the delivery of such deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Suspension of Business Defined. A corporation “has suspended business,” as that term was employed in section 1268, General Statutes of 1899, when it commences to wind up its affairs, ceases to hold meetings of its stockholders and board of directors, and also fails to prosecute the purposes, and transact the business, for which it was incorporated.</p> <p>2. -Limitation of Action against Stockholders' — Case Followed. The preservation and disposition of the corporate estate by the corporation, in the process of winding up its affairs, is not such a transaction of the business of the corporation, or such a prosecution of the purposes for which the corporation was created, as will prevent the running, or suspend the operation, of the statute of limitations as to the right of action of a corporate creditor to recover from the shareholders upon their individual liability. (Brigham v. Nathan, 62 Kan. 243, 62 Pac. 319.)</p>

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

<p>Error from Leavenworth district court; J. H. Gtllpatricic, judge.</p>

Error from Republic district court; Hugh Alexander, judge. STATEMENT. This was a bastardy proceeding, brought by Anna Yilek, an imbecile, against Jacob Jehlik, who was mentally unsound and under guardianship. Her name was attached to a complaint charging him with being the father of her bastard child, on which the warrant was issued. He was arrested and brought before the magistrate, where a hearing was had and a decision made that defendant was the father of the child.

<p>SYLLABUS BY THE COURT.</p> <p>Fraud — Limitation of Action. One seeking to toll the statute of limitations by reason of a fraudulent concealment of the facts out of which his right of action springs must exercise reasonable diligence to discover the facts, and the statute will commence to run after the lapse of a reasonable time. A delay of twenty years without explanation is unreasonable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homesteads and Exemptions — Title of Wife — Road Notice. A wife occupying with her husband a homestead, the legal title to which is in the latter, is not an owner of the land, within the meaning of section 6019, General Statutes of 1901, relating to notice of proceedings in the establishment of a highway.</p>

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

<p>SYLLABUS BY THE COUBT.</p> <p>1. Oklahoma Convicts — Imprisonment in Kansas Held Legal. The petitioner was convicted of manslaughter in the district court of Noble county, Oklahoma, and sentenced to confinement in the territorial penitentiary at Lansing, Kan., where he is now imprisoned, for a term of twelve years. A statute of the United States, then and now in force, provides “that the legislative assemblies of the several territories of the United States may make such provision for the care and custody of such persons as may be convicted of crime under the laws of such territory as they shall deem proper, and for that purpose may authorize and contract for the care and custody of such convicts in any other territory or state, and provide that such person or persons may be sentenced to confinement accordingly in such other territory or state, and all existing legislative enactments of any of the territories for that purpose are hereby legalized.” Held, that this act of congress, which is the supreme law of the land, authorizes the prisoner’s detention in the Kansas penitentiary, and that he is legally held in custody by virtue thereof.</p> <p>2. - Act of Kansas Legislature not Necessary. The legislature of Oklahoma territory, acting under the power granted by the act of congress set out in the preceding paragraph, passed an act authorizing it sgovernor to contract, in the name of the territory,' with the proper authorities of some other state or territory for the care and custody of such persons as might be convicted of crimes punishable in the penitentiary by the laws of Oklahoma. . Under t this law a contract to that effect was made by such governor with the warden and directors of the Kansas penitentiary. The contract has been recognized by the officers of this state since it was made, including the governor in his message to the legislature, and payments have been received by. the state from Oklahoma for the maintenance of its prisoners. Held, that such official conduct and declarations amount to an acquiescence on the part of the state of Kansas in the validity of the contract, and the fact that the warden and directors of the penitentiary were not authorized by legislative act to enter into the agreement under which the petitioner is held cannot avail the prisoner and furnish grounds for his discharge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Habeas Corpus — Application after Conviction. Where a defendant has been convicted of a misdemeanor in justice’s court and no appeal has been had, and the time for an appeal has expired, he may challenge the constitutionality of the statute under which he was convicted in an application to this court for a writ of habeas corpus.</p> <p>2. -Pedler’s License Act Unconstitutional. Chapter 271, Laws of 1901 (Gen. Stat. 1901, §§3922-3929), so far as it exacts the payment of a license-tax by non-residents, from which certain residents of the state are exempted by the fact of their residence, is repugnant to the provision of the federal constitution that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attachment — Trespass. A seizure of property by an officer under a void attachment is nothing better than a naked trespass, as against a stranger who is in the rightful possession of such property.</p> <p>2. - Sale of Perishable Property — Owner not JSstovped by Purchase '. In a controversy as to the ownership and right of possession of attached property, the court, during the pendency of an action to recover the same from the attaching officer, ordered it to be sold because it was of a perishable nature, and at such sale the plaintiff became a bidder and purchased the property. Held, that the bid and purchase did not estop plaintiff from further asserting title and right of possession to the property.</p> <p>3. - Verdict Improperly Ordered by Court. Where the plaintiff makes a prima facie showing of ownership and right of possession of property attached by an officer as the property of another, and the attachment under which the officer justified is ' held to be void, a verdict in favor of the officer cannot be ordered by the court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>General Appearance — JSx Parte Order Permitting Withdrawal. The voluntary general appearance of a defendant is equivalent to personal service of a summons; and where such appearance has been made by a non-resident defendant, the action of the court in making an ex par.te order permitting him to withdraw his appearance and in refusing an application seasonably made by plaintiff tó vacate such order is prejudicial error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Nuisance—Improper Testimony. A party was charged by information with having, on or about the 16th day of May, 1901, maintained a common nuisance under the prohibitory liquor law of 1901, which went into effect on March 1 of that year (Gen. Stat. 1901, § 2193). The court permitted testimony to go to the jury tending to show that several years prior to March 1, 1901, persons who were boisterous and disorderly, and who used vulgar and obscene language, were accustomed to congregate on the defendant’s premises, to the disturbance of persons in the vicinity. Held, that such testimony was improperly admitted.</p>

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

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

<p>Appeal from Chautauqua district court; G. P. Aikman, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Note and Mortgage — Effect of Fraudulent Alteration. The fraudulent alteration of a promissory note in a material respect destroys the note as a cause of action and will defeat a recovery on the original consideration, and if the note is secured by a mortgage such alteration operates to discharge the mortgage.</p>

<p>Error from Nemaha district court; William I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Levees — Bight of Eminent Domain. The construction of a levee along the bank of a river is a public use, in aid of which the power of eminent domain may be invoked and local assessments may be levied.</p> <p>2. --Constitutionality of the Act of 1893. Chapter 101, Laws of 1893 (Gen. Stat. 1901, §§3905-3919), relating to the construction of levees, is not unconstitutional either on the ground that it delegates legislative power to the petitioners, or on the ground that there is a discrimination against railroad companies in its method of providing for the cost of the improvements.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Supersedeas Bond — Sureties Held — Bond Construed. After a judgment directing the payment of money had been rendered against a defendant, it gave a supersedeas bond, reciting that its purpose was to secure a stay of execution until the final determination of proceedings in error. The bond did not conform to the statute prescribing the conditions of an undertaking to stay the execution of a money judgment. The condition of the obligation was that plaintiff in error would “abide the judgment, if the same shall be affirmed, and pay the costs.” The judgment was affirmed in the court of appeals. Held, that non-payment of the judgment constituted a breach of the conditions of the bond.</p> <p>2. -— Case Distinguished. The case of MeGarry v. The State, 37 Kan. 9, 14 Pac. 491, distinguished.</p>

Error from Johnson district court; John T. Burris, judge. STATEMENT. Defendant in error, desiring to go from Olathe to Hillsdale, a station about twenty miles south, on the railroad of plaintiff in error, inquired of the ticket agent in charge of the station at Olathe at what time he could obtain a train, and was told that there would be a freight-train leaving that point at 6:35 p. m. This was train No. 27.

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

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Assignment of Lease — Exemptions. When a tenant occupying premises under a written lease, containing a waiver- of the benefit of statutory exemptions for the payment of rent, with the knowledge and consent of his landlord, sells and assigns his unexpired term to another, who receives the written lease, enters into possession thereunder, and pays rent in accordance with its terms for many months, the lease becomes a contract in writing between the landlord and the assignee of the unexpired term, and will operate as a waiver, in writing, of the . benefit of exemptions for the payment of rent on the part of the assignee, under section 3874, General Statutes of 1901.</p>

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

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. This was an action to recover on a written guaranty of payment by Edwin Knowles of a promissory note of $1500, made June 7,1888, and, also, a like guaranty of three certificates of deposit issued by the State Bank of Brookville, Kansas, dated October 19,1893, payable four months after date. The defendant was the father of E. C. Knowles, who was vice-president of that bank.

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Publication of Sale Notice. A tax-sale notice published once in each week for four consecutive weeks prior to the day of sale complies with the requirements of section 7639, General Statutes of 1901, although the first publication was made twenty-five days only before the sale.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note and Mortgage — -Payment to Assignee of Record, Sufficient. Where a promissory note, together with the mortgage securing the same, has been assigned by the payee and delivered, and the assignment placed of record, the maker of such note may safely pay it to the assignee claiming in good faith the right to collect, and receive the note and a cancelation of his mortgage, although the maker may at the time know that another claims in good faith the right to collect such note; and in such case an action by the other claimant to reinstate the discharged mortgage and foreclose the same for the payment of the note cannot be maintained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Taxation— Certificates Held by Non-residents. Tax-sale certificates issued by a county treasurer of this state on sales of real estate for delinquent taxes, owned by a non-resident of the state, are not subject to taxation in this state.</p>

Error from Wyandotte district court; E. L. Fischer, judge. statement. This was a suit brought by the state to enjoin defendants in error from maintaining a nuisance under the prohibitory liquor law. The proceedings were based on the authority of section 4, chapter 165, Laws of 1887. A general demurrer to the petition was sustained in the court below on the ground that the injunction clause contained in said section was repealed by chapter 232, Laws of 1901..

<p>Error from Cloud district court; Hugh Alexander, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>.1. Practice, District Court — Judgment on Pleadings. Where an action is brought on an alleged contract, and, after the defendants plead denying the contract, the parties stipulate that whatever contract was made is contained in letters attached to the stipulation, and the defendants move the court for judgment on the pleadings and stipulation, it is the duty of the court, if the letters do not establish a contract, to sustain the motion.</p> <p>2. Agency — Sale of Realty — Fraud—Forfeiture of Commission. It is the duty of one acting for another in the sale of real estate, whether for compensation or otherwise, faithfully and truthfully to make known to his principal all matters pertaining to the transaction, and, if he violates this duty and fraudulently misrepresents the facts concerning his transactions, and undertakes to derive an advantage therefrom to himself, he forfeits any compensation that would otherwise be due him, and all gain made thereby belongs to his principal.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Notes — Interest after Maturity. An agreement by the makers of a promissory note to pay interest at six per cent, per annum from its date until maturity, and ten per cent, after that time, is not unlawful as to the excess over six per cent, agreed to be paid after the note should become due.</p> <p>2. - Statute Considered. The provisions of section 3594, General Statutes of 1901, considered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>l. Pleading — Amendment—New Party Plaintiff. The amendment of a petition, in an action for damages, by the addition of the name of a party plaintiff, does not change substantially the claim or defense.</p> <p>2. - Limitation of Action. Such an amendment, made more than two years after the cause of action accrued, relates back to the date of the commencement of the action, and the cause of action is not, for that reason, barred by the statute of limitations.</p>

<p>Appeal from Cloud district court; Hugh Alexander, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Gluts — Causa Mortis — Requisites. To constitute a gift causa mortis, the gift must be made in contemplation of the near approach of death, to take effect absolutely only upon the death of the donor and before that of the donee. There must be a delivery of the property to the donee or some one for him. Subject to the right of recall in case he does not die, or in case the donee dies first, the donor must part with all dominion over the donated thing.</p> <p>2. -Inter Vivos — Requisites. To constitute a gift inter vivos, there must be a gift absolute and irrevocable, taking effect immediately, the donor delivering the property to the donee or some one for him, and parting with all future dominion over it.</p> <p>3. -Inter Vivos — Control may be Surrendered. If, upon the delivery of the property in a gift inter vivos, the donor retains some control over it, the gift being thereby rendered incomplete, the donor need not, in order to complete it, retake the property into his possession and again deliver it with the restrictions removed, but may make the gift complete by surrendering the control he had retained.</p> <p>1. - Promissory Notes — Gift Through Trustee. A delivery of the promissory notes of another by the donor to a trustee, with direction to collect, and, when collected, to distribute the proceeds among named eestuis qxie trust, is a good gift inter vivos.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Inadmissible Evidence. In a prosecution for keeping a place where intoxicating liquors were sold in violation of a city ordinance, evidence relating to the condition of the place five days after the date of the offense, and three days after the filing of the complaint, was inadmissible to prove that the defendant was the keeper of the place.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pickpockets — Title of Act Sufficient. Section 1 of chapter 105, Laws of 1886 (Gen. Stat. 1901, §2373), providing that whoever shall unlawfully pick the pockets of another, or unlawfully take from the person of another any personal property, with intent to steal the same, shall upon conviction thereof be deemed guilty of felony, contains but one subject, viz., depredations against personal property in corporal possession of another, without violence or putting in fear, which subject is expressed with sufficient clearness by the title, “An act to punish pickpockets.”</p> <p>2. -Extradited for Bobbery — Bobbery Includes PocleetpicMng. One who has been brought from another state into the jurisdiction of a district court of this state under a charge of robbery by force and violence to the person may be tried and convicted under an information charging larceny from the person and pocket, without first being given time and opportunity to return to such other state, since the latter crime is included in the former.</p> <p>3. -Docket Entry of Justice of the Peace. In a docket. entry of a justice of the peace relating to the preliminary examination of a person charged with crime, which recites that the-offense of “pocket-picking or larceny from the person ” had been, committed, the word “or” is not used disjunctively, but indicates the synonymy of the terms preceding and following it.</p> <p>i. ■- Information — Duplicity. Section 1 of the act relating-to pickpockets describes but one offense, committable by acts, which may extend to the pocket in one instance and to other portions of the person in another, and an information under it, charging a defendant with larceny from the person and pocket of another in a single transaction, discloses but a single violation of law and is not bad for duplicity.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Pleading—Burden of Proof. In an action against the maker of a promissory note, where the petition alleges the execution of the note, its indorsement in blank and transfer to plaintiff, and the answer consists of a verified general denial united with various affirmative defenses, and includes the allegation that the note was transferred to plaintiff by payee without consideration, and to defraud defendant, the execution of the note being admitted and the reply being a general denial, the burden of proof is on the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Service of Case-made. On the 9th day of May plaintiff in error was allowed until June 20 to make and serve a case for this court. It was served on June 20. Held, that the time granted had expired.</p>

<p>Error from Norton district court; A. C. T. Geiger, judge.</p> <p>STATEMENT.</p> <p>The defendant in error Koch purchased a quarter-section of land, agreeing to pay $560 therefor. Of this he paid $60 cash and the owner mortgaged the land for $500 and thus obtained the balance. With Koch’s consent the land was then conveyed to Zellmer, who was to hold the legal title until Koch should pay off this mortgage. This, it seems, was done with the thought that the seller would thereby be the better protected against the note for $500 which he had executed. Koch took possession under this sale and has held open and notorious possession under claim of ownership ever since.</p> <p>Koch paid to Zellmer, as his agent, the interest upon the mortgage as it accrued and the principal in full, but Zellmer failed to transmit all of this money to the mortgagee. Finally, when the mortgage fell due, in order to obtain the money to discharge it' Zellmer executed a mortgage upon the land to one Ambler to secure a note of $300, which money was; used in discharging the balance of the $500 mortgage,, Zellmer having theretofore paid $200 out of the money given him by Koch. Ambler trusted to. the title as. shown by the records and made no inquiry of Koch,, who was in possession of the land, as to his rights.. The Ambler mortgage was assigned to the plaintiff in error, and this action was one to foreclose it. She had personal judgment against Zellmer, but foreclosure was refused as against Koch.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — New Trial — Misconduct of Jury. When a motion for a new trial, based upon the misconduct of the jury, is heard upon both affidavits and oral testimony, and over-' ruled, and the misconduct relied on to impeach the verdict consists of statements of matters not in evidence, made by the jurors in the jury-room while considering their verdict, to warrant a reversal it must be shown that such prejudicial statements so made were of positive facts within the knowledge, or asserted to be within the knowledge, of the juror making them, and such as the jury might receive as evidence of the fact asserted, and not as the mere expression of opinion of the juror.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce and Alimony — Lien on Homestead. The amount allowed a divorced wife as permanent alimony may be decreed a lien on the homestead of the divorced husband.</p> <p>2. - Provision for Payment of Joint Judgment. A requirement in such decree, that the wife shall pay an unsecured judgment, rendered jointly against herself and divorced husband, out of the alimony so secured to her, does not violate the husband.’s right of homestead exemption.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. This was an action in ejectment, brought by the Midland National Bank against Chantland and others to recover the possession of two pieces of real estate, one a tract of farming land of about fifty-five acres, hereafter designated as the “farm,” and the other known as the “opera-house” property, within the limits of Kansas City, Kan.

<p>SYLLABUS BY THE COUBT.</p> <p>1. Estoppel— Laches Imputed, to an Indian. The fact that a litigant is a member of an Indian tribe does not release him from all obligation to be diligent in asserting his rights. While it is one of the matters to be considered with the other circumstances of a case in determining the effect of delay, it is not a complete bar to the defense of laches.</p> <p>2. - Shawnee Indian Held Estopped. Where the land of a Shawnee Indian is sold while he is a minor, by a guardian appointed by a probate court, and the Indian, after coming of age, delays for more than twenty-one years to question the validity of the deed, and the property has in the meantime greatly increased in value and passed into the hands of different owners, no fraud or concealment or other exceptional circumstances tending to excuse the delay being shown, he cannot afterward be permitted to attack the deed on the ground that the proceedings upon which it was based were void for want of jurisdiction.</p>

Error from Greenwood district court; G. P. Aikman, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Water-works Owned by Oity Exempt, A water-works plant owned and operated by a city is exempt from taxation; and the fact that water is furnished by the city to citizens and other consumers at prescribed rentals does not affect the exemption.</p>

<p>Error from Finney district court; William Easton Huchison, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Capital Stock of Corporations. The capital stock of a corporation is subject to taxation only in the state of its domicile. It .cannot be taxed in another state, notwithstanding its principal business is conducted in such other state. Only its tangible property situated in the state where such business is conducted is subject to taxation therein.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Joint Tort-eeasors — Contribution. Section 480 of the code of civil procedure (Gen. Stat. 1901, §4926) authorizes contribution between joint judgment debtors, even where the judgment was rendered in an action founded upon a tort.</p> <p>2. - Statutory Notice Unnecessary in Independent Action. The notice required by such section to be filed by one of several judgment debtors who has paid more than his due proportion of the judgment, in order to give him the benefit of the judgment in enforcing contribution, need not be given where he seeks reimbursement by an independent action.</p> <p>3. - Statutory Provision Constitutional. Such section is not open to the objection that it deprives one of property without due process of law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Circumstantial — Question for Jury. In the solution of questions of fact dependent upon circumstantial evidence, the jury must be left to decide which of two equally plausible conclusions, deducible from such circumstances, shall be adopted.</p> <p>2. - Civil Case — Degree of Certainty. Circumstantial evidence in a civil case, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>' Promissory Note — Petition Construed and Upheld. A petition on a promissory note executed by one defendant which alleges the deposit of corporation stock as collateral security by another defendant, a sale of the stock and application of the proceeds to the note, anda dispute as to the validity of the sale, and asks judgment against the maker of the note for the balance due thereon, and against both defendants barring them from any claim to the stock, states but one cause of action.</p>

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

<p>Error from Anderson district court; C. A. Smart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Guardian and Ward — Estate not Settled. A ward may, upon attaining his majority, encumber by mortgage his interest in any real estate held in the name of his guardian for his benefit, and such mortgage will be upheld and enforced as a lien on any interest such ward may be found to possess upon a settlement of the estate, as against a subsequent purchaser of the real estate from all the wards with notice of the mortgage.</p>

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

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. P. J. M. Burkett, who owned a stock of drugs, organized the Topeka Drug Company and conducted the business for a time in Topeka. About November 12, 1894, he sold the stock to W. J. Kelehner and R. J. Mackey.

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Will — Notice to Purchaser from Heir. Where a foreign will has made disposition of real estate in this state in a manner different from what the law would have made, a purchaser from an heir of the foreign testator, in order to be protected as against one claiming under such will, must show that he procured his title from such heir in good faith and without knowledge of the existence of the will.</p> <p>2. -- Other Notice than Record. Knowledge of the existence of such will may be acquired by other means than the evidence of a properly certified copy thereof, or a duly entered order of admission to record or probate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Practice — Amended Information. An information may be amended in matter of form at the trial, and when so amended it need not be reverified, nor is the defendant entitled to a rearraignment.</p> <p>2. ■- Burglary — Description of Building. A building may be within the curtilage of a dwelling and not form 'a part thereof, although neither is enclosed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Separate Schools for White and Colored Children — -Act of 1879. Chapter 81, Laws of 1879 (Gen. Stat. 1901, §§6290-6296), providing that boards of education in cities of the first class shall have power to organize and maintain separate schools for the education of white and colored children, except in the high school, is not invalidated by the fact that it purports to amend a former statute which had previously been repealed by implication.</p> <p>2. - Subject Clearly Expressed in Title. The act referred to is not violative of section 16 of article 2 of the constitution, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title.</p> <p>3. - System is Uniform. Such act does not violate section 2 of article 6 of the constitution, providing for the establishing of a uniform system of common schools.</p> <p>4. -Not Violative of Fourteenth Amendment. Such act does not violate the fourteenth amendment to the constitution of the United States, prohibiting any state from denying to any person within its jurisdiction the equal protection of the laws.</p>

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

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

<p>Appeal from Brown district court; William I. Stuart, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Physicians and Surgeons — State Board Not a Judicial Tribunal — Findings Conclusive. The state, in the exercise of its police power in the interest of the health, good government, general welfare and morals of the people, may prescribe the qualifications of persons desiring to practice medicine, and may create a board whose duty it shall be to hear and determine any complaint made against any person holding a physician’s license, and revoke such license for any cause provided for in the statute. Such board, while so acting, is not a judicial tribunal and is not governed by the technical rules applicable to law courts. In the absence of fraud, corruption, or oppression, the findings of the board are conclusive upon this court.</p> <p>2. - Cancelation Not a Punishment — Law Not Fx Post Facto. Where the statute prescribes the qualifications of a physician, and proscribes the grossly immoral, and authorizes the cancelation of any certificate issued to such persons, the application of this law to one whose habits were grossly immoral before the passage of the law is not in the nature of a punishment; and, therefore, the statute is not ex post faoto, but has in view only the qualifications of the physician and the protection of public morals.</p> <p>3. -Law NotViolaiive of Federal Constitution. Theclause in the fourteenth amendment to the constitution of the United States, “nor shall any state deprive any person of life, liberty, or property, without due process of .law,” is not a limitation upon the police power of the state to pass and enforce such laws as in its judgment will inure to the health, morals and general welfare of its people.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Robbery — No Variance. The information in this case charged ■' robbery in the first degree in the taking from the person of another, by force and violence, a lady’s gold watch and chain. The proof showed the watch to be a lady’s gold-filled-case watch. Held, no variance.</p> <p>2. - Extent of Injuries Admissible. The evidence relied on to sustain the charge of robbery was circumstantial. It was not error to show the extent of the injuries inflicted on the person robbed for the purpose of showing that force and violence were used in the commission of the robbery.</p> <p>3. Criminal Practice — Disagreement of Jury — Former Jeopardy. The record of a former trial reads: “The said jury by order of the court were brought into open court, and it appearing to the court that the said jury are unable to agree upon a verdict, and that there is no reasonable probability of their being . able to agree upon a verdict, they are discharged from further consideration of this case.” This record sufficiently shows a disagreement of the jury, and a plea of former jeopardy based thereon was properly overruled.</p>

<p>Error from Haskell district court; William Easton Hutchison, judge.</p>

<p>Error from Washington district court; Hugh Alexander, judge.</p>

<p>Practice, District Court — Correction of Mistake in Sheriff’s Deed. Where the court has jurisdiction of the parties and subject-matter, it may, under section 139 of the code (Gen. Stat. 1901, §4573), in furtherance of justice, amend any process or proceeding by correcting any mistake, or conform the proceedings to the facts proved. Where a mistake has been made in the . recitals of a sheriff’s deed the court may order its correction by the execution of a new deed.</p>

<p>Error from Labette district court; Thomas J. Flannelly, judge.</p>

<p>Promissory Note — Assignment after Judgment. The assignment of a promissory note to one who knew that it had passed into judgment, indorsed “assigned with recourse,” does not make the assignor a guarantor of the payment of the note.</p>

<p>Error from Rawlins district court; A. C. T. Geiger, judge,</p>

<p>Appeal from Cowley district court; James Lawrence, judge.</p>

<p>Insurance Policy — Proof of Loss Unneoessary. Where an adjuster appears and actually adjusts a loss, determining the amount and time of payment with one of the parties interested in the contract, the necessity of making proof of loss is thereby obviated.</p>

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

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

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

<p>Error from Reno district court-, M. P. Simpson, judge.</p>

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

<p>Error from McPherson district court; M. P. Simpson, judge.</p>

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

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

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

<p>Error from Douglas district court; C. A. Smart, judge.</p>

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

<p>Error from Graham district court; Charles W. Smith, judge.</p>

<p>Error from Graham district court; Charles W. Smith, judge.</p>

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

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

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

<p>Error from Brown district court; William I. Stuart, judge.</p>

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

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

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

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

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

<p>Error from Cloud district court; Hugh Alexander, judge.</p>

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

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

<p>Error from'Wyandotte district court; E. L. Eischer judge.</p>

<p>Error from Jackson district court; Marshall G-ephart, judge.</p>

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

<p>Error from Decatur district court; A. C. T. Geiger, judge.</p>

<p>Error from Douglas district court; C. A. Smart, judge.</p>

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

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

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

<p>Error from Cherokee district court; A, H. Skidmore, judge.</p>

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

<p>Error from Lyon district court; Dennis Madden, judge.</p>

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

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

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

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

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

<p>Error from Decatur district court; A. C. T. Geiger judge.</p>

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

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

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

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

<p>Error from Nemaha district court; William I. Stuart, judge.</p>

<p>Error from Lyon district court; O. L. Moose, judge pro term.</p>

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

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

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

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

<p>Error from Doniphan district court; William I. Stuart, judge.</p>

<p>Error from Labette district court; Thomas J. Flannelly, judge.</p>

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

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

<p>Error from Cloud district court; Hugh Alexander, judge.</p>

<p>Error from Chase district court; Dennis Madden, judge,</p>

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

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

<p>Error from Leavenworth district court; J. H. Gtllpatrick, judge.</p>

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

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