Volume 67 — Kansas Reports

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Tracks in Public Street — Injury to Pedestrians. Where railroad-tracks are laid in a public street and there is. room for one who wishes to travel along the street to walk in safety outside the tracks, and there is no reason resting in either neces sity or convenience for his going upon them, his walking along a track between the rails is such negligence on his part as to prevent recovery for being struck by a train, notwithstanding the negligence of the railroad company, unless the injury be intentionally and wantonly caused.</p>

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

Error from Montgomery district court; Thomas J. Flannelly, judge. STATEMENT. This was an action for damages arising from an alleged breach of contract. On February 18, 1899, an agreement in writing was made between H. A. Truskett and other persons, referred to hereafter as “the stockholders,” on the one part, and the Atchison, Topeka & Santa Fe Railway Company, mentioned below as the “Atchison company,” on the other.

Error from Woodson district court; L. Stillwell, judge. STATEMENT. Austin sought to foreclose a mortgage on land in Woodson county.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. County Attorney — Action on Official Bond. Sureties on the official bond of a county attorney are liable only for such sums of money as their principal may lawfully receive in the discharge of his official duties.</p> <p>2. - Sureties not Liable for Seed-wheat Collections. Such sureties are not liable for the default of the county attorney to pay over money by him collected on promissory notes given by needy farmers, under the provisions of chapter 242, Laws of 1895.</p>

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

<p>Error from Pawnee district court; Charles E. Lobdell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Principal and Agent— When Principal is Bound. The principal of a sales agent will be bound by the representations and acts of the agent within the apparent scope of his authority, where the person with whom such agent deals on behalf of his principal has no knowledge of any limitations upon the authority of the agent.</p> <p>1. -Authority to Make Warranty. A sales agent entrusted with samples of goods by his principal for the purpose of enabling him to make sales of such goods is thereby given apparent authority to warrant, on behalf of his principal, that the goods so sold shall be of a character and quality like the samples exhibited.</p> <p>3. Intoxicating Liquors — Recovery of Price. One cannot recover the price of intoxicating liquors illegally sold in Kansas.</p> <p>A Principal and Agent-i-Authority to Collect. An agent having power to sell is not thereby clothed with apparent power to collect the price of the thing sold.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Valid Judgment for Costs. A judgment for costs entered upon the journal, as follows: “Thereupon it is by the court ordered that the jury herein be discharged from a further consideration of this case; that the defendant do have and recover of and from the plaintiff judgment for costs herein, taxed at $-, to all of which judgment and ruling the plaintiff ' at the time duly excepted and excepts,” is not a nullity because the amount of costs taxed, as computed by the clerk, is not inserted therein, but such judgment will support an execution issued, and the levy thereof, to enforce payment of the costs of the action.</p>

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

<p>Error from Leavenworth district court; J. H. Gillpatrick, 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>SYLLABUS BY THE COURT.</p> <p>Injunction — Judgment of Justice — Right to Equitable Relief Not Shown. In an action on a money demand, pending before a justice of the peace, judgment was rendered against the defendants after an appearance by both parties. The same day plaintiff filed a motion for a new trial, which the justice set down for hearing fourteen days later, counsel for defendants having notice of the time when the motion would be disposed of. At the time set the motion was sustained, defendants not appearing. The trial was then adjourned to another date, four days thereafter, at which time judgment was rendered against one of the defendants for an amount in excess of the first judgment. Defendants were not present in person or by Oounsel when this judgment was entered against them. In a suit to enjoin the levy of an execution based on the judgment, the defendants (plaintiffs below) did not complain that the judgment was unjust or that the debt on which it was founded Was not a valid demand against them. Held, that the execution debtors had no right to equitable relief; apd held, further, that the entry of judgment without notice was at most a mere irregularity or erroneous act, which did not render the judgment void and subject it to collateral attack.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Demurrer. A demurrer does not admit the truth of the allegations of the pleading attacked except for the purpose of determining their legal effect.</p>

Error from Sbawnee district court; Z. T. Hazen, judge. STATEMENT. This was an action by Anna M. Higgins to quiet her title to certain real estate in Shawnee county and to compel the cancelation of a certain deed held by the plaintiffs in error, and a reconveyance of the title evidenced thereby. The issues were tried to the court. Its findings of faet and conclusions of law were as follows: “findings of fact. “1.

<p>SYLLABUS BY THE COURT.</p> <p>Case-made — Settlement after Expiration of Term of Judge. When no time is fixed for the settlement of a case for this court at the date of the expiration of the regular term of office of the trial judge who tried the case, such trial judge does not have jurisdiction thereafter to settle the case, although by appointment he becomes his own successor in office.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Qkstce and Oeeicers — City and Police Courts of Fort Scott. The act creating a city court in Fort Scott-(Laws 1899, ch. 127), and giving to it the greater part of the jurisdiction formerly exercised by the police judge, did not abolish the office of police judge of the city of Fort Scott, nor did it take from that officer his right to the prescribed compensation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Probate Court — Fraud—Jurisdiction of District Court. Where a fraudulent claim is presented to the probate court against the estate of a deceased person, and the administrator and claimant conspire together to secure its allowance, and land is sold to satisfy the demand and bid in by the claimant, the' sale approved, and the administrator discharged, the district court has jurisdiction of an action to set aside the proceedings and to annul the deed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Illicit Cohabitation — Statute Construed. The offense of lewdly and lasciviously abiding and cohabiting together of a man and woman, one or both of whom are married, and not to each other, as denounced in section 2221 of the General Statutes of 1901, is not shown by proving a single act, or even occasional acts, of sexual intercourse between the parties, but the commission of such act or acts must be shown under such circumstances as to indicate an abiding or cohabiting together, in a relationship like that of husband and wife.</p> <p>2. -Relation of Master and Servant Not Conclusive. The relationship of master and servant, or mistress and hired man, between the parties to such acts does not necessarily exclude the existence of the other relationship, which must be shown in order to create such offense. The parties may sustain both relations to each other at the same time.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Justice op the Peace — Appeal after Plea of Guilty. By the provisions of section 5826, General Statutes of 1901, a defendant who pleads guilty to a misdemeanor before a justice of the peace may prosecute an appeal to the district court from the judgment rendered against him, although such judgment is clearly within the authority of the justice.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and Oity Officers —Depot Regulations. A city of the second class has full authority to regulate railroad depots and depot grounds.</p> <p>2. --Hackmen — Ordinance Valid. A regulation of a city requiring hackmen and others who solicit passengers at railway depots to occupy certain places designated by the city marshal is not invalid.</p> <p>3. - Contract between Hackman and Passenger. The power of regulation is not limited or aifected by any contract which a haekman may make with a passenger to moet him at a place other than that designated by the city marshal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Bigamy — Marriage License in Evidence. An original marriage license issued in another state, identified as such by a witness who knows of the fact, is not rendered inadmissible because produced by one who is not its legal custodian and does not account for his possession of it.</p> <p>2. - Proof of First Marriage. In a prosecution for bigamy, the allegation of a first marriage may be proved by any competent evidence, direct or circumstantial, the same as any other fact.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Misconduct. A new trial for misconduct of the jury should be allowed where a juror of his own personal knowledge states to his associates, while deliberating on their verdict, facts prejudicial to the defendant which are not in the testimony, unless it be shown that the defendant suffered no prejudice from the misconduct.</p> <p>2. Larceny — Evidence of Intent. The defendant, who was charged with the larceny of property, and who claimed to have taken the same by mistake, may testify directly as to his intention in the taking of the property.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Judgment — Appeal Pending — Presumption of Law. In an action in this state on a judgment rendered in one of the circuit courts of Ohio, the defendant pleaded that he had given a supersedeas bond and appealed the case to the supreme court of Ohio, where it was still pending The Ohio statutes respecting the effect of such appeal were not introduced in evidence. Held, that it will be presumed that the laws of Ohio are like our own, and that the appeal stayed the execution only, and was not an obstacle in the way of an action on the judgment.</p> <p>2. Circuit Courts or Ohio — Jurisdiction. Circuit courts in Ohio are vested by the constitution of that state with judicial power. They are presumed to be courts of general jurisdiction.</p> <p>3. - Status of Trustee. A circuit court of Ohio rendered a judgment and ordered the defendant to pay the amount thereof to a trustee to be thereafter appointed by a designated insolvency court. Held, that the trustee so appointed will be regarded as a functionary of the circuit court, and an instrument of the latter . to give effect to its judgment.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. Henderson was a resident of Pittsburg, Pa., and was appointed administrator of the estate of Samantha Johnson, deceased, by the court there. As such administrator he had for collection two notes secured by mortgages in Topeka. He employed Harrison, who is an attorney residing in Topeka, for the purpose of collecting these notes by foreclosure.

<p>SYLLABUS BY THE COURT.</p> <p>1. Account Stated — Defined and Distinguished. An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determining the amount due from one to the other on account, and when such agreement is made, such account stated becomes a new obligation and takes the place of the one on the prior account.</p> <p>2. - Waiver. ' Where an action is brought and defended as on the original account, the account stated is waived, even if it had been theretofore agreed upon.</p> <p>3. -- Account Rendered is Rot an Account Stated. The mere furnishing by one party to another of a statement of an account, without a view to settling the claim and adjusting the amount due thereon, will not raise the implication of an account stated, although such account be retained without objection by the one to whom it was rendered.</p> <p>á. - Question of Fact. The rendition of an account, together with its retention without objection, is but one circumstance, to be submitted with all others to the trier of fact to determine whether there has been an account stated.</p>

<p>SYLLABUS BY THE GOUBT.</p> <p>1. Telegraph Companies — Acta of 1898 Construed. Chapter 38, Laws of 1898, extending the power, jurisdiction and control of the court of visitation over the telegraph companies and telegraphic service within the state, is in pari materia with chapter 28, Laws of 1898, which created the court of visitation and attempted to extend its power, jurisdiction and control over the railways of the state, and must be construed in connection with that act the same* as though the two chapters constituted but one act.</p> <p>2. Constitutional Law — Statutory Construction. When parts of a legislative act have been declared unconstitutional 'and void and the invalidity of the remaining parts is suggested, the general rule that all reasonable presumptions must be indulged in favor of the constitutionality of an act does not obtain. In such case it must be clear that it was the legislative intent that the remaining parts should stand as the law, independent of, and uncontrolled by, those provisions opposed to the constitution.</p> <p>3. -Telegraph Regulation — Act of 1898 Unconstitutional. Section 7, chapter 38, Laws of 1898, which provides a forfeiture for failure, neglect or refusal of a telegraph company to receive, transmit and deliver, without unnecessary delay, any telegraphic message tendered under the provisions of that act, considered, and held inoperative and void. ,</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Motion for New Trial. A motion for a new trial on the ground of newly-discovered evidence need not be verified, nor need it be sustained by any affidavit filed at the same time. It is a sufficient compliance with the statute in this regard that it is sustained by an affidavit presented at the hearing of the motion.</p>

Error from Doniphan district court; William I. Stuart, judge. STATEMENT. Fredericka Gallon was cited to appear in the probate court and show cause for withholding from probate the last will and testament of her husband, Henry Gallon. After a hearing at which witnesses were called and testified, the court found that Henry Gallon died in Doniphan county in 1897, leaving a will which, since his death, had been destroyed by his wife, Fredericka.

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Negotiability. Embodied in a promissory note was the provision: “The makers and indorsers hereby severally waive protest, demand, and notice of protest and nonpayment, in case this note is not paid at maturity, and agree tc all extensions and partial payments before or after maturity without predjudiee to holder.” Held, that the note was not negotiable.</p> <p>2. Chattel Mortgage —Defense in Replevin. When suet note is secured by a mortgage on cattle and the note and mortgage are transferred by the payee to another, after which the cattle are sold by the mortgagor and the price thereof transmitted to, and received by, the original payee of the note, without notice to the purchaser of the transfer of the same, such purchaser can make the same defenses against an action of the transferee for the possession of the mortgaged cattle as he could have made if the action had been brought by the original payee and mortgagee.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Limitation oe Action — Action- to Set Aside Fraudulent Conveyance. An action by a creditor to set aside as fraudulent a deed made to his debtor’s wife, and to subject the property to the payment of his debt, is ordinarily barred in two years from the time the deed was recorded, where the creditor knew of the execution of the deed at the time it was made but supposed that it named his debtor as grantee. The fraud is deemed to have been discovered whenever in the exercise of reasonable diligence it might have been discovered, and in such a case reasonable diligence required an examination of the record, which would necessarily have disclosed the fraud alleged. While the action referred to could not be brought until the claim was reduced to judgment, the running of the statute of limitations could not be indefinitely postponed by the delay of the creditor to begin proceedings for that purpose, and such delay could in no event exceed two years without resulting in a complete bar to the action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Damages Too Demote. In a replevin action for the recovery of ten horses, the cost of caring for and feeding fifteen other horses belonging to plaintiffs, in another town, during the t me the ten were detained, cannot be recovered as damages, on the ground that the plaintiffs in the action intended to ship all of the horses to market in one car, and that all were necessary to make a car-load. Such damages are too remote and speculative.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Review of Evidence. If a judgment entered on a general verdict finds support in the evidence upon any theory of the law embraced within the issues made by the pleadings,.it will not be reversed because entirely unsupported by the testimony.</p> <p>2. Street-railway — Negligence of Motorman — Question for Jury. In an action against a street-railway company for damages in wrongfully causing the death of one on a public street, not a trespasser, although the evidence may show that the negligence of deceased in coming upon the track in a position of danger in the first instance contributed toward the collision, yet if there is evidence tending to show that the motorman in control of the car which caused the death saw deceased in the position of danger, or by the exercise of reasonable diligence should have seen him, in time to stop the car and avoid the death, the proximate cause of the death is one of fact for the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Opinion Evidence. The general rule is that opinion evidence may be received where it is the best that can be had, or where the situation, facts and events cannot be adequately reproduced or described to the jury; but such evidence can never be given on the ultimate facts which it is the duty of the jury to determine.</p> <p>2. -Damages from, Telephone Poles — Expert Testimony. In an action to recover for injuries resulting from alleged negligence in placing two telephone poles on the side of the highway in such a way as to frighten horses, where the location, condition, color and appearance of the poles, and all of the circumstances surrounding them, could have been easily described by witnesses, the opinions of experts as to whether the poles were calculated to freighten horses were not admissible.</p> <p>3.--Admission in Opening Statement. An oral admission of a material fact made by an attorney in his opening statement to the jury may be proved on a subsequent trial of the same cause, if it appears to have been distinctly and formally made and intended as a general admission of such fact.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyance — Insane Wife — Homestead. A deed to a homestead made by a husband aud the guardian of his insane wife is ineffectual as a muniment of title, and conveys nothing so long as the property remains a homestead.</p> <p>2. - Ratification of Void Deed — Hv.sba.nd JEstopped. A deed to a homestead, ineffectual at the time of its execution to convey title because not joined in by the wife, may become effectual for that purpose after the death of the wife by being recognized and adopted by the husband, or he may estop himself by his acts and conduct from claiming that such deed does not convey title.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Justice’s Court — Jurisdiction of Railway Company. A railway company that maintains o»ly a station for the accommodation of local business in a city where a city court has been created does not reside in such city within the meaning of that provision of section 5228, Genera! Statutes of 1901, which provides “that in any county in which a city court has been or shall be created, justices of the peace outside of the city wherein such court is located shall not' have jurisdiction of cases in which any defendant resides in such city.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>Watercourse — High-water Channel. A channel or other depression in the ground forming the bank of a river through'which water escapes and flows from the river only at times of high water does not constitute a natural watercourse, and obstructing the flow of water therein from the river, to the injury of another, is damnum absque injuria.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Limitation op Action — Pleading and Practice. Where the plaintiff, to avoid the effect of the statute of limitations, pleads the absence of the defendant from the state and the defendant’s answer includes a general denial, a demurrer to the evidence must be sustained if there is no testimony'that the defendant was personally out of the state, notwithstanding it may be shown that the defendant was at al) times a resident of another state.</p>

Error from Sedgwick district court; D. M. Dale, judge. STATEMENT. This was an action by Robert M. Piatt, administrator de bonis non of the estate of Henry H. Leonard, deceased, against the American Surety Company of New York, indemnitor of Samuel R. Leonard, the former administrator of the same estate. Henry H. Leonard died November 17, 1895, and Samuel R. Leonard was appointed administrator of his estate, and the bond was given by the surety company.

Error from Chase district court; Dennis Madden, judge. STATEMENT. In the year 1888 Harry E. Norton and wife executed their promissory note for $600 to W. F. Her-wick, and secured the payment of it by a mortgage on 160 acres of land. In 1889 suit was brought by Herwick in the district court and a decree of foreclosure entered against the Nortons on November 29, 1889.

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

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

<p>Error from Pawnee district court; Charles E. Lob-dell, judge.</p>

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

<p>SYLLABUS BY THE COUKT.</p> <p>Bills and Notes — Bank Check Held a BUI -of J$xehang°. A bank check is a bill of exchange within the meaning of section 548 of the General Statutes of 1901, providing that an acceptance of a bill of exchange written on paper other than the bill “shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, in faith thereof, shall have received the bill for a valuable consideration.”</p>

<p>Original proceeding in habeas corpus.</p> <p>STATEMENT.</p> <p>Gottfried Frohwerk was a judgment creditor of S. M. Lewis. Execution was issued and returned unsatisfied. Upon application of Frohwerk, the judge of the district court, in which court the judgment was rendered, issued an order at chambers requiring S. M. Lewis and Margaret Lewis to appear before him on July 29, 1902, to answer concerning the property of S. M. Lewis and also as to any indebtedness that might be due from Margaret Lewis to S. M. Lewis.</p> <p>After an appearance and hearing, the judge made the following finding:</p> <p>“That the said Margaret Lewis has the sum of $270 in money in her possession and under her control at her residence in Kansas City, Kan., which belongs to, and is the property of, the defendant, S. M. Lewis, and under the law is subject to be applied to the payment of the judgment heretofore rendered by this court in the above-entitled action. . . s . ■</p> <p>“Whereupon a motion was filed by the plaintiff for an order requiring the said Margaret Lewis to pay to the clerk of this court, out of said $270, a sufficient sum of money to pay and discharge the said judgment, interest, and costs, which motion was called up for hearing and was by me Sustained.”</p> <p>The formal entry on the journal of the court, under the title of the cause, recited: •</p> <p>“Now at this day, immediately after the close of the testimony, . . . ifiaintiff being present by T. P. Anderson, his attorney, the defendant, S. M. Lewis, and the said Margaret Lewis being present in person and by their attorney, L. W. Keplinger, and having duly considered said motion, examination, and the evidence heard by me by virtue of the order referred to in said motion, I find that the said Margaret Lewis has the sum of $270 in money in her possession and under her control at her residence in Kansas City, Kan., which belongs to, and is the property of the defendant, S. M. Lewis, and which under the law is subject to be applied to the payment of the,above-named judgment, interest, and costs.</p> <p>“It is therefore by me considered, ordered and adjudged that said motion be, and the same is, hereby sustained, and the said Margaret Lewis is hereby ordered to forthwith pay to the clerk of this court out of said $270 an amount sufficient to pay the said judgment with the interest accrued thereon, together with all costs which have accrued therein, both before and since the rendition of said judgment, including the costs of this proceeding.</p> <p>“Witness my hand at chambers, in Kansas City, Kan., this 30th day of July, 1902,</p> <p>E. L. Fischbb,,</p> <p>Judge of the District Court of Wyandotte County, Kansas.”</p> <p>Later a showing was made to the judge of the district court that the petitioner, Margaret Lewis, had failed to pay the amount ordered. An attachment issued, and she was cited to appear and answer for contempt. She appeared by counsel, and presented the following answer, verified:</p> <p>‘ 'First. She denies any intent on her part to show disrespect or contempt for the court or the judge, as alleged against her.</p> <p>“Second. Further answering, she says that the order made by the court, with the violation of which she is charged, was made in a case, to wit, the case of Gottfried Frohwerk v. S. M. Lewis, to which she was not a party, and in which no summons, or summons in garnishment, or writ of attachment had been served on her, and the court had no jurisdiction over her to make any order of any character affecting her individual property rights; that the money she was ordered by the court or judge to pay and apply on the judgment against the defendant in said case was and is claimed by her in good faith as her own money in her own right, and she has had no opportunity to be heard as to such claim; and said order, if enforced, would deprive her of her property rights without due process of law and without her day in court or any opportunity to defend her right of property.</p> <p>“Wherefore, she prays that this proceeding be dismissed, and that she be discharged from arrest and permitted to go hence without day.</p> <p>Makgaret Lewis.”</p> <p>A commitment was then issued in the name of the state, under the hand of the judge and clerk, attested with the seal, commanding the sheriff to confine the petitioner in the county jail until she purged herself of contempt by paying the amount ordered to the clerk of the court. She has sued out a writ of habeus corpus in this court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. License-Tax- — Interstate Commerce. A person who takes orders from samples for goods which he engages to deliver, and which are to be shipped into this state from another state, is not engaged in interstate commerce when such orders are not transmitted to such other state, or filled there, but are filled from goods not in the original package of importation, but from goods sent to him in bulk, C. O. D., from such other state.</p> <p>2. -A gent Required to Pay for Goods. A license-tax imposed upon pedlers by a city of this state does not burden the trade relations of a merchant in another state with a person who is required by such merchant to pay for goods purchased before they are delivered to him in this state.</p> <p>3. -Pedler Defined. A person who has no fixed place of business, but travels about from place to place, carrying with him articles of merchandise belonging to himself, which he offers to sell, which he sells at the time he offers them, and which he then and there delivers, is a pedler.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Insurance— Suspension of Member — Method of Redress. A member of a fraternal insurance association who is denied rights and benefits to which he claims to be entitled under its by-laws must avail himself of the right of appeal provided by the laws of the order for the redress of such grievances before he can- resort to the courts. A failure to seek such method of review by the holder of a benefit certificate, whose tender of monthly dues was refused by the secretary and who thereby became suspended from the order, will defeat an action brought against the association on such benefit certificate after the death of the holder.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Money Had and Received. If an agent of a loan company violate his instructions and misappropriate money sent him for the purpose of closing a loan, the money may be recovered in an action as for money had and received.</p> <p>2. -Limitation of Action. The statute of limitations does not begin to run against such an action until the principal has knowledge of the agent’s wrong.</p> <p>3. -Liability of Participant in Breach. One who actively participates in an agent’s breach of trust, with full knowledge of the agent’s duty, and thereby obtains possession of the principal’s money, which he misappropriates, incurs the same liability to the principal as does the agent.</p> <p>4. -Proof of Specific Direction to Agent. In an action by a principal against his agent for a breach of duty, an allegation of a specific direction to the agent is sufficiently established by showing that the agent’s duty in all cases covered the transaction in suit, and an instruction to the jury hypothesizing a specific direction in the particular case is warranted by such evidence.</p>

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

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

Error from Cowley district court; W. T. McBride, judge. STATEMENT. The Kansas City & Southwestern Railroad Company constructed a line of railroad upon certain lands in Cowley county belonging to G. W. Yount, after having secured a right of way by proper condemnation proceedings and a deposit of money to cover the award of damages. Being dissatisfied with the amount of damages allowed, the owner appealed.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Incompetent Witness. One who is entirely ignorant of the meaning of the ceremony of administering an oath is not a competent witness.</p> <p>2, i- Demurrer to Evidence — Ruling Undisturbed. A ruling sustaining a demurrer to the. evidence will not be reversed notwithstanding sufficient, evidence was actually admitted by the trial court to make a prima facie case for plaintiff, where a part of the evidence essential for that purpose was incompetent and admitted over proper objection, although it was not formally stricken out and no notice was given plaintiff that it was to be disregarded.</p>

Error from Jackson district court; Marshall Gephart, judge. STATEMENT. Daisy E. Morris is the wife of the defendant in error. On the morning of December 4, 1895, she commenced to feel ill, having pain in her head and shoulders.

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Defense to Action on Verified Account. The fact that a verified account sued on and set out in the petition is not denied by a verified affidavit of the defendant does not preclude the latter from interposing any defense pleaded in the answer which does not involve a denial of the'reasonableness of the amounts charged in the verified account, or the correctness of the items. ' In such case, it may be shown in defense of the action that the plaintiff agreed to charge nothing for items of work done set out in the verified account, or that th'e account has been paid.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Probate Court — Authority to Appoint .a Guardian. The probate court is without authority to appoint a guardian of the person and estate of an adult, unless such person has been duly adjudged to be an idiot, a person of unsound mind, or an habitual drunkard, and incapable of managing his or her affairs.,</p>

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

<p>Error from Miami district court; W. H. Sheldon, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Testimony of Servant. Statements made by a servant in the absence of the master are inadmissible in evidence to show that a tortious act committed by the former was done while the servant was in the master’s employ and engaged in the transaction of business for him.</p>

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

<p>Error from Miami district court; W. H. Sheldon, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Notes — Subsequent Change in Application of Payment. A debtor owed a creditor on two promissory notes, one secured by mortgage on personal property, the other unsecured. The same debtor had given to another creditor a promissory note secured by a second mortgage on the same-property. The debtor made a payment to the first creditor, which was applied on his secured note. Five months later the debtor and the first creditor undertook, by mutual agreement, to change the application of the payment from the secured to the unsecured note. Held, that the change of application could not be made to the prejudice of the rights of the second creditor without his consent.</p>

Error from Reno district court; M. P. Simpson, judge. STATEMENT. This was an action brought by Mortimer and Annie Hamlin, parents of Reuben Hamlin, to recover damages by reason of the death of their son, who was struck by a locomotive of plaintiff in error and killed while in the employ of the company engaged in laying rails. The deceased was one of a company of thirty-five or forty men engaged in such w5rk on the line a few miles west of Hutchinson.

<p>SYLLABUS BY THE COURT.</p> <p>License — Stairway—Not Revocable. An oral license to the owner of a two-story building permitting access to his second story by a stairway of an adjoining owner and through a party wall, which was given for a valuable consideration and in reliance upon which the licensee has expended money or labor in altering his own premises to conform to this arrangement, is not revocable.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Building and Loan Associations— Usurious Loan,. Where-the controlling statute requires that directors of building and loan associations hold stated meetings at which loans of money shall be offered to all the members in open meeting, and that the shareholder who bids the highest for the preference or priority be entitled to receive the loan, any loans made without competitive sales as required, the premiums being fixed by arbitrary rule, are illegal, and the premiums, dues and charges in excess of legal interest will be deemed usurious.</p> <p>2. -Missouri Statute. In the absence of proof to the contrary, the statute of Missouri relating to usury will be presumed' to be similar to the statute of this state.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Conveyance — Fraud— Vacation of Judgment. A fraudulent grantee, whose title has been divested and restored to the grantor ■or a trustee appointed by the grantor, by a judgment of the district court on service by publication, who afterward applies and has the judgment tentatively opened that he may defend, and answers that the grantor conveyed the lands to him to defraud the creditors of the grantor, states no reasons for setting aside the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Cities and City Oeeicers — Obstruction of Street. If the disturbed condition of a city telephone and fire-alarm system indicates to the city officials that the fire-alarm wire may be broken and down in the street, it is their duty to investigate the cause of the disturbance to ascertain if the wire constitutes a dangerous obstruction to the use of the street; and notice of a disturbance of the system caused by the fire-alarm wire’s being broken and down will be notice of the obstruction of the street.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Judicial-sale Act of 1901 Constitutional. Chapter 392 of the Laws of 1901, authorizing the judicial sale of lands bid in by the county at tax sale and not redeemed or assigned for three and one-fourth yearB, is not unconstitutional by reason of its vesting in the board of commissioners discretion to determine what lands shall be offered for sale under it and when they shall be so offered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Estoppel. In an action of forcible detainer, the tenant is estopped to dispute the title of the landlord when he entered, but he may show, as a complete defense to a recovery, that the title which the landlord had when he entered has ceased to exist, either by the act of the landlord, the judgment of a court, or by operation of law.</p>

<p>Error from .Osage district court. J. T. Pringle, judge pro tern.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Jury and Jurors — SpeeialVenire. Thirty days before the time fixed by law for the commencement of a regular term of court the judge made an order directing that twelve additional jurors.be drawn to serve at the ensuing term, under the authority of section 3813, General Statutes Of 1901. The order was filed with the county clerk, and the jurors drawn and summoned. After court convened, and on the second day of the term, another order was made, under section 3815, General Statutes of 1901, requiring twelve additional jurors to be drawn, for the reason that the number theretofore drawn was insufficient, which order was complied with. Held, that the last order was lawfully made.</p> <p>2. - Separate Trials in Misdemeanors. Ia a prosecution for a misdemeanor, the granting of separate trials to defendants jointly charged is within the discretion of the court.</p> <p>3. Intoxicating Liquors — Testimony in Mind of County Attorney. In a prosecution for maintaining a common nuisance under the prohibitory liquor law, the fact that the testimony given by witnesses in support of the charge was not in the mind of the county attorney when the information was filed is immaterial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Sill of ExcejMons. By section 4753 of the General Statutes of 1901 (Laws 1901, ch. 275, §1), authority was given trial judges to extend the time for settling a bill of exceptions beyond the term at which the trial was had. This act had only the effect to authorize the extending of the-time and did not change the procedure. A bill of exception» must be settled and signed within the time given by the statute or as extended by the court, in order to give it validity; its service-upon the opposite party within such time is not enough.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — False Pretenses — Venue. The delivery of goods to a common carrier in one county to be carried and delivered to the consignee in another is a sufficient delivery to the consignee to consummate the crime of obtaining goods under false pretenses. The venue of such offense is properly laid in the county where such delivery was made.</p>

<p>Original proceeding in quo warranto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Illicit Intercourse — Subsequent Marriage Not a Bar, The subsequent marriage of the defendant to the injured female is not a bar to a prosecution under section 36 of the crimes act (Gen. Stat. 1901, § 2021), providing a penalty for obtaining illicit connection, under promise of marriage, with any female of good repute under twenty-one years of age.</p>

Error from Lyon district court; Dennis Madden, judge. STATEMENT. The Atchison, Topeka & Santa Fe Railway Company commenced an action against the Kansas City,. Mexico & Orient Railway Company to enjoin the latter from appropriating for right-of-way purposes a part of the Santa Fe company’s real estate.

<p>Error from Sumner district court; Jambs Lawrence, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Flee Insurance— Mistake in Name of Assured — Rights of Mortgagee. Notwithstanding the provisions of a mortgage clause attached to an insurance policy are made applicable, by a literal construction of terms, to changes in ownership of the property after execution and delivery of the policy, yet, where the indemnity is procured and paid for by the mortgagee, and an action for loss by fire is founded upon the contract made by the mortgage clause, the terms of which are expressly made to supersede the conditions of the policy itself, and by mistake, innocently and unintentionally made, a wrong name is inserted in the policy such mistake is not so material as to avoid the contract made between the parties to the mortgage clause.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Sight to Second Trial. Where the principal object of an action is the recovery of real property, the party against vhom judgment is rendered may at any time during the term at which the j udgment is rendered demand another trial as of right; and this is so although there is joined with such principal object, and as incidental thereto, a prayer for partition of the premises in controversy and for rents and profits.</p> <p>2. Descents and Distributions — Non-resident Wife — “Or” Should Sead “And," The pro viso which limits the gen eral right of a wife to inherit the real estate of her husband, as given in section 8 of the act concerning descents and distributions (Gen. Stat. 1901, §2510), reads as follows: “Provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state.” Held, that the word “or” in the last clause should be read “and,” with the effect that a wife who had once been a resident of this state is entitled to the benefits of the act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Murder — Competent Circumstantial Evidence. Upon the trial of an action for murder, circumstantial evidence tending to prove that a person other than the defendant participated in the crime, and involving the conduct of such person exhibited immediately after its commission and under its apparent stimulus, may be introduced if it tends to prove the character of the homicide and the motive with which it was committed, and does not in itself show the defendant’s connection therewith.</p> <p>2. - Technical Error in Exclusion of Testimony. A technical error committed by the trial court in refusing to permit a question to be answered as not cross-examination will not be sufficient to cause a reversal of a judgment entered upon a verdict of murder in the second degree, when from an examination of the’ record it appears that the substantial rights of the defendant were not prejudiced.</p> <p>3. -Instructions as to Second Degree. If, upon the trial of a defendant informed against for murder in the first degree, circumstantial evidence relied on for conviction be susceptible of interpretation in such manner as to exclude deliberation and premeditation, an instruction upon the law of murder in the second degree should be given.</p>

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

<p>Appeal from Harvey district court; M. P. Simpson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law —Laws of a General Nature. The first clause of section 17, article 2, of the constitution, which is, “All laws of a general nature shall have a uniform operation throughout the state,” is mandatory upon the legislature.</p> <p>2. - Uniform, Operation of General Law. A law of a general nature which does not have uniform operation throughout the state is unconstitutional and void.</p> <p>3. - When Either a General or a Special Law May he En acted. If the object to be accomplished by a law is in its nature special, either a general or a special law may be enacted, as the legislature may decide.</p> <p>4. -Whether Generator Special, a Question for the Courts. Whether a law is general or special in its nature is a question for the courts, and not for the legislature.</p> <p>5. - General Law Defined — Class Legislation. An act, to have,a uniform operation throughout the state, need not affect every individual, every class, or every community alike. It is competent for the legislature to classify and adapt a law general-in its nature to a class, but such classification must be a natural and not an arbitrary or fictitious one, and the operation of such-general law must be as general throughout the state as are the genera therein provided for.</p> <p>6. - Criminal Appeals — Act of 1903 Void. Chapter 390, Laws of 1903, entitled “An act concerning criminal appeals in counties containing more than 65,000 inhabitants, in certain cases,” is general in its nature, and as it does not have a uniform operation throughout the state it is unconstitutional and void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Elections — Members of Soldiers’ Some at Leavenworth. A member of the Western Branch of the National Home for Disabled Volunteer Soldiers, while maintained therein at public expense, is not deprived of the right to acquire a residence there for voting purposes by section 3 of article 5 of the constitution of Kansas.</p> <p>- Gase Overruled. The case of Lawrence v. Leidigh, 58 Kan. 591, 50 Pac. 600, 62 Am. St. Rep. 631, overruled.</p> <p>3. -Pleadings in Contest Court. A contestee who holds a certificate to the office, regularly issued to him by the canvassing board, and who asks no affirmative relief, his answer going only to defeat the allegations made by the contestor, is not required by section 2659, General Statutes of 1901, to plead that he is an elector of the county.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Beeorm School — Jurisdiction of Justice. No power is conferred on a justice of the peace by the provisions of chapter 129 of the Laws of 1881 (Gen. Stat. 1901, §§7118-7136) to commit a boy to the reform school.</p>

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

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

<p>Error from Johnson district court; C. A. Smart, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Authority upon Review. In a proceeding in error from a district court, this court has no authority to make findings of fact or to canvass the evidence for that purpose. Its function is to review alleged errors.</p> <p>2. Findings op Fact — Duty of Trial Court. Upon the trial of a question of fact by the district court, it is its duty, upon request, to find the material facts established by the evidence, so that exceptions may be taken to its views of the law involved in the trial. Error in this respect will not be presumed, but must be affirmatively shown.</p> <p>3. -Request and Refused — New Trial. If, upon the trial of a question of fact by the district court, material facts have been proved but not found, the district court should be requested, before any motion for a new trial, to modify the findings made to include the additional facts, or to make further findings covering such facts; and only in the event of a refusal of the court to make the correction or to 'supply the omission does ground for a new trial exist.</p> <p>4. -Presumption upon Review. If, upon the trial of a</p> <p>question of fact by the district court, findings of facts are made, and such findings are not assailed in the .district court as incomplete or incomprehensive, it will be presumed by this court that they embrace all the facts of the controvesy established by the proof.</p> <p>5. -Assignments of Error. Assignments of error involving radical assumptions of fact not embraced in the special findings of fact made by the trial court will not be considered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyance — Fraud — Limitation of Action. An action to set aside a deed because of fraud in obtaining it, the grantor supposing the instrument executed to have been a power of attorney, is ordinarily barred in two years after the filing of such deed for record in the office of the register of deeds of the county where the real estate is situate. Such filing amounts, as a matter of law, to a discovery of the fraud by the grantor.</p> <p>2.- Trust Not a Gift. A deed conveying property to be held in trust for a third party until the death of the grantor, and not made in contemplation of the near approach of death, is neither a gift inter vivos nor one causa mortis.</p> <p>3.-Fraudulent Trust. . Where such a trust is in parol it is void under the statute of frauds, and cannot be enforced against the grantee.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Necessary Parties. The general creditors of the estate of a deceased person are not proper parties to an action between the heirs of the decedent for the partition of real estate left by him, and only under exceptional states of fact should his administrator be joined.</p> <p>2. Conveyance — Insane Grantor — Offer of Restitution of Consideration. In an action to set aside a deed claimed to have been executed without sufficient mental capacity on the part of the grantor to convey, it is not necessary to make an offer to return the consideration of the deed, or to reimburse the grantee for outlays by way of such consideration, when the payment and furnishing of such consideration are denied by the parties assailing the transfer, and the good faith of the grantee in procuring the deed is impugned.</p> <p>3. Attorney and Client — Privileged Communication. The payment of a retainer or fee is not indispensible to the formation of the relation of attorney and client within the meaning of the statute concerning the competency of witnesses to testify; and if a person consults an attorney at law for the purpose of obtaining legal advice and assistance upon matters he deems ©f importance, and such attorney permits the consultation to proceed and accepts confidences relating to such matters, and obtains information regarding them, the relation of attorney and client is thereby established between the parties, the communication so made and the advice given thereon are privileged, and the attorney is incompetent to testify to them without his client’s consent.</p> <p>4. - Insane Client. The rule announced in paragraph 3 above prohibits an attorney from disclosing privileged matter as a basis for an opinion that the client was of unsound mind at the time of the consultation.</p> <p>5. - When Attorney may Testify. An attorney may express his opinion regarding the sanity of his client' from observations made in common with others in a non-professional capacity, or from facts which did not come to his peculiar knowledge because his professional guidance had been sought or extended.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Consideration for Forbearance of Action. A promise to do an act which one is not otherwise legally bound to perform is a sufficient consideration for a contract to forbear action, notwithstanding the act is one apparently more to the interest of the promisor than of the promisee, and notwithstanding it may be difficult to ascribe a motive to the latter for wishing it done.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Lien Merged in Decree. A mortgage lien is merged into a decree foreclosing it. After that an action cannot be maintained on the indebtedness secured by the mortgage or for a foreclosure of the mortgage a second time.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Telegraph Company — Delivery of Message. In the absence of an understanding, agreement or custom that a telegraph company shall deliver a message at a place several miles beyond the town to which it is addressed, the extent of the contract of the company is the prompt transmission and a diligent effort to deliver the message in the town to which it is addressed.'</p> <p>2. -Nbt a Question for Jury. The submission of the question to the jury as to the duty of the telegraph company in certain cases to deliver messages beyond the free-delivery limits of the city wherein no such limits exist, and where the point to which it was contended the message should have been delivered was two miles beyond the place to which it was addressed, was misleading and erroneous.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment— Vacation of Judgment Against the Garnishee. A judgment rendered against a garnishee under the statute, that he pay money into court to be applied in payment of a judgment held by the plaintiff against the principal defendant, is enforceable like any other money judgment, and can be set aside only as other judgments are.</p> <p>2. -Duty of Garnishee in Answering — Negotiable Notes. It is the duty of the garnishee to disclose in his answer all the facts and circumstances necessary to a complete understanding of the indebtedness which the answer shows is due from him to the principal defendant; and where it shows an indebtedness on a promissory note, and does not show that such note is negotiable, a judgment rendered against the garnishee is not void.</p>

Error from Douglas district court; C. A. Smart, judge. STATEMENT. In a foreclosure proceeding the following findings of fact and conclusions of law were made : FINDINGS OF FACT. “1.

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyance — Not an Equitable Mortgage. A warranty deed and a contract given back by the grantee to the grantor, by the terms of which the latter was given three years to redeem the land, examined, and held to be a sale with the right to repurchase, and not a mortgage.</p> <p>2. Landlord and Tenant — Liability of Tenant by Sufferance. The common-law rule that a tenant by sufferance is not liable for rents and profits has been abrogated by statute in this state. (Gen. Stat. 1901, §3861.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Conveyance—Time Not Specified, a contract for the conveyance of real estate in which the time of performance is optional with the grantee is not for this reason lacking in mutuality, if otherwise formal and specific. Either party may within a reasonable time perform or tender performance and thereupon a right of action will accrue against the defaulting party.</p> <p>2. - Want of Mutuality Not a Defense. The want of mu- ■ tuality is not a defense to an action for specific performance, where the party seeking the relief has fully fulfilled all the conditions of the contract.</p> <p>3. - Limitation of Action. The statute of limitations will not commence to run against a cause of action on an executory contract to enforce specific performance while the grantor is receivr ing from the grantee payments on the contract as part perform-; anee thereof.</p> <p>4. - Statute of Frauds — Possession and Improvements, The statute of frauds will not defeat an action to enforce specific performance of an oral contract to convey real estate where the grantee, with the knowledge and consent of the grantor, went into the actual and exclusive possession of the land under the contract and made permanent improvements thereon exc§eding m value the contract price of the land.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Contribution Among Stockholders — Not a Question for Jury. An action for contribution by a stockholder of an insolvent corporation against all of the other resident, solvent stockholders, in which it is claimed that certain of the stockholders are insolvent and others are non-residents of the state, asking for an apportionment of the liabilities of the resident, solvent stockholders and a personal judgment against each for his porportionahS share of such liabilities, is an equitable action, and the defendant stockholders are not, as a matter of right, entitled to a jury.</p> <p>2. - Only Solvent, Resident Stockholders to be Counted. In determining the liability of the defendant stockholders in an action for contribution by a stockholder of an insolvent corporation, all insolvent and non-resident stockholders should be ascertained and excluded, and the computation made only between the solvent, resident stockholders.</p> <p>3. - Consideration for Stock Not Material. Where an action for contribution is brought by one who has paid more than his share of the debts of an insolvent corporation, the fact that the stockholder who sues for contribution turned into the corporation lands at a price greatly in excess of their real value and received in payment therefor stock of the corporation is not material, especially when it is not claimed that the transaction was in bad faith or fraudulent.</p> <p>4. - Payments by Stockholder to Creditors — Proper Credit. Where a stockholder of an insolvent corporation, under an agreement with the creditors of the corporation, pays a certain amount upon each share of his stock and obtains from such creditors a full release of his liabilities as a stockholder, such release is a defense in an action for contribution only to the extent of the amount actually credited on the j udgment by reason of such payment.</p>

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

<p>Error from Franklin district court; W. H. Sheldon, judge pro tein.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Press Copies of Way-bills. Press copies of way-bills issued by a railroad company, the originals of which are not shown to be lost or destroyed or incapable of production, are not admissible in evidence in an action between third parties, where the person who issued the way-bills and made the copies is not shown to be dead.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Homicide — Self-defense—Improper Instruction. In a prosecution for homicide, where the defendant relies upon a claim of self-defense, and testifies that he shot the deceased because he believed'himself in danger of receiving great bodily harm, it is error to charge that to sustain this plea the accused must have believed that he was in danger of his life, although in another paragraph of the same instruction it is said that, “if one is pursued or assaulted in such a way as to induce in him a reasonable and well-grounded belief that he is in actual danger of losing his life, or receiving great bodily harm, under the influence of such apprehension he will be justified in defending himself, whether the danger be real or only apparent.”</p>

<p>Appeal from Clay district court; Sam Kimble, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Procedure — Information—Duplicity. An information that charges two separate and distinct offenses in one count is bad for duplicity, and a motion to quash, for this reason should be sustained.</p>

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

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

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

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

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

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

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

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

<p>' Error from Olay district court; W. B. Glasse, 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 Shawnee district court; Z. T. Hazen, judge.</p>

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

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

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

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

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

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

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

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

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

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

<p>Original proceeding in quo warranto.</p>

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

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

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

<p>Error from Miami district court; W. H. Sheldon, judge.</p>

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

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

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

<p>Error from Franklin district court; O. A. Smart, judge.</p>

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

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

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

<p>Appeal from Coffey district court; Dennis Madden, judge.</p>

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

<p>Appeal from Coffey district court; Dennis Madden, judge.</p>

<p>Error from Decatur district court; John R. Hamilton, judge.</p>

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

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

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

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

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

<p>Error from Ness district court; Chas. E. Lobdell, judge.</p>

<p>Error from Johnson district court; C. A. Smart, judge pro tern.</p>

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

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

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

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

<p>Error from Olay district court; Sam Kimble, judge.</p>

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

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

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

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

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

<p>Appeal from Kingman district court; P. B. GIillett, judge.</p>

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

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

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