Volume 68 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Suits against Foreign Corporations — Right to a Review. The statutory provision prohibiting a corporation which has not obtained a certificate from the secretary of state that certain statements have been made and filed by it from prosecuting an action in any of the courts of the state (Laws 1901, ch. 125, §3; Gen. Stat. 1901, § 1283) does not apply to corporations which have been summoned into court and made to defend against actions brought by other parties; nor does it prevent such corporations from obtaining a review and a reversal of judgments rendered against them in such .actions.</p> <p>2, Jtnsr and Jurors — Examination in Personal-injury Cases. In. the voir dire examination of jurors in personal-injury oases brought against corporations or others, it is error to permit counsel for the plaintiff to ask questions which unnecessarily suggest and bring to the attention of jurors the fact that the defendant is insured in an accident company which will pay the fees of the attorneys defending and also any judgments resulting from accidents to employees of defendant.</p> <p>3. - Latitudein Examination. Considerable latitude should be allowed in the examination of jurors to the end that all who have any bias or prejudice, or are otherwise disqualified, may be excluded from the panel, but the inquiry should, never extend so far as unnecessarily to introduce extraneous matter of a prejudicial character that may improperly influence the verdict.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Examination in Personal-injury Cases. In the voir dire examination of proposed jurors in personal-injury cases it is not necessarily error to allow counsel for plaintiff to draw attention to the fact of the-existence of insurance companies , which indemnify employers against loss or damage which may arise from injuries to their employees, and to conduct an inquiry, in good faith and within reasonable limits, concerning the questions whether such jurors have any connection with, or interest in, such insurance companies, and whether, in case such indemnity exists, it may affect their judgment or the verdict which they may give.</p> <p>2. - Sound Discretion of Trial Court. The extent of such examination must be left largely to the sound discretion of the trial court, and unless an abuse of it be clearly shown a reviewing court will not interfere.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT.

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injury to Infant — Liability of City and Owners of Property. In repairing a building, the owners removed a vault door weighing 1000 pounds to a public street of a city and leaned it against the wall of a building, where it remained for several days, to the knowledge of the city officers, and in doing so they left it so nearly upright and on a balance that a boy, by pushing his hand between the door and the wall to play with the locks, caused it to fall over and upon him. In an action to recover damages for the injury, testimony tending to prove the foregoing facts is sufficient evidence of negligence of the owners and of the city to take the case to the j ury.</p> <p>2. -' Contributory Negligence a Question for Jury. Whether the boy, who was ordinarily intelligent and about fourteen years and eight months old, was exercising the care and discretion required of one of his age, capacity and experience in playing with an object so placed, or was guilty of contributory negligence, could not be determined by the court as a matter of law, but should have been submitted to the jury with instructions as to the duties and rights of the respective parties.</p>

Error from Mitchell district court; R. M. Pickler, judge. STATEMENT. George H. Parmenter was the owner, by assignment, of two judgments rendered against Commodore P. Lomax and others in the district court of Lancaster county, Nebraska; The judgments were' rendered on. February 28, 1896, and March 16, 1896, respectively.

<p>SYLLABUS BY THE COURT.</p> <p>1. Landlord and Tenant — Attachment for Bent. Under section» 27 of the landlord-and-tenant act (Gen. Stat. 1901, §3871), a landlord is entitled to an attachment upon the crops raised by his-tenant where the rent is payable in a share of the crop, in case the tenant has disposed of an appreciable portion of such crop,, even though a sufficient portion is left for the landlord’s share,, and even though the time has not arrived when such share should-, be harvested and delivered.</p> <p>2. -Distribution of Proceeds of Sale. In case a landlord’s-attachment is maintainable, the rent being payable in a share of the crop, and the attached crop has by order of the court been-Sold and converted into money, it is the duty of the court to ascertain the value of the landlord’s share at the time it should,, under the contract or custom of the country, have been delivered, to him, and direct its payment out of the proceeds of the sale of the attached crop.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Mechanics' Lien Act — Amendment Provision Valid. Section 5121, General Statutes of 1901, being section 5 of the mechanics’ lien law, and providing as follows: “In case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed,” permits an amendment correcting the description of the property and the name of the owner, and does not thereby authorize the taking of property without due process of law.</p> <p>2. -Provision for Attorney's Fee Unconstitutional. Section '5125, General Statutes of 1901, being section 9 of the mechanics’ lien law, and providingas follows: “In any action brought by any artisan or day-laborer to enforce any lien under this act, where judgment be rendered for plaintiff, the plaintiff shall be entitled to recover a reasonable attorney’s fee to be fixed by the court, which shall be taxed as costs in the action,” denies to persons within the jurisdiction of this state the equal protection of the laws, and is, therefore, unconstitutional and void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors and Administrators — Attachment of. Assets by Creditor Invalid. When administration of the estate of a deceased person resident in this state has been granted and the administrator has qualified and taken possession of its assets and is proceeding to administer the same under the direction of the probate court, a judgment of a district court against such administrator, sustaining an attachment of the goods of the estate in the hands of the administrator, and directing their sale and the application of the proceeds to the payment of a debt found due from the estate to the plaintiff, is void for want of jurisdiction, and may be set aside at any time on motion.</p> <p>2. -Judgment May be Vacated Notwithstanding Proceeding in Error. The court rendering such judgment is not deprived of jurisdiction to consider such motion because a proceeding in error to reverse such judgment is pending in this court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Property is in Custodia Legis, Notwithstanding Redelivery Bond. Property taken from an officer under a writ of replevin and returned to him upon the giving of a redelivery bond is in custodia legis, and the sale of it upon an execution issued after it has been so taken, and during the pendency of the replevin proceedings, may be prevented by an action of injunction.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1, Orareis and OraicERS — Commissioners of Wyandotte County —Employment of Help. The board of county commissioners of Wyandotte county are authorized by chapter 117, Laws of 1899, to employ help in the office of the county clerk when in their judgment they deem the same necessary, and, in the absence of fraud or collusion, their conclusion cannot be reviewed by the courts. ' •</p> <p>2. -- Action for Salary by Assistant to County Clerk— Erroneous Instruction. In an action to recover upon a contract of employment entered into by the county commissioners of Wy-andotte county with the plaintiff, by which she was employed to perform services in the office of the county clerk of said county, where there is no fraud or collusion charged it is error for the court to instruct the jury substantially that, in determining the liability of the county, they should determine from the evidence whether the commissioners, in making the contract of employment, deemed the plaintiff’s services necessary, and whether they exercised a fair judgment as to the necessity for such clericaL help, or employed her from capricious motives.</p>

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

Error from Cowley district court; James Lawrence, judge. STATEMENT. A judgment was rendered against the plaintiff in error in the district court of Barber county on May 23, 1893. On May 16, 1899, a motion was filed in that court to revive this judgment, it having become dormant after the expiration of five years from the date of its rendition.

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Pleading and Praetiee— Title and Ownership. PJaintiff sued on a note, claiming title as assignee of the-original payee. Defendant answered under oath that .the -note, had been assigned by the payee to one A., who had not reassigned it, and was still the owner. Plaintiff replied admitting the assign-** ment to A., but pleading an assignment by A. to the payee. Held, that, whether or not the answer contained a sufficiently ‘ verified denial of the execution of the assignment to plaintiff, these pleadings put the ownership of the note in issue; and the , error in refusing to permit defendant to introduce evidence under the answer was not cured by the fact that A. testified by deposition that he had no interest in the note.</p> <p>% Sale oe Realty — Oral Contract — Effect of Part Payment. Damages cannot be recovered for the breach of an oral contract for the purchase of real property, there being no special circumstances to take the case out of the statute of frauds. The mere ¡part payment of the purchase-price does not have that eSect.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Question of Mortgagee in Possession. A tenant of mortgaged land obtained a tax deed on the same, and thereafter denied the title of the mortgagor, his landlord. While in possession under the tax deed he' bought the mortgage on the property and the note secured by it, but not until after the right of recovery on the note and an action to foreclose the mortgage had been barred by the statute of limitations. The tax deed conveyed no title. Held, that the purchaser of the mortgage was not en- ' titled to the rights of a mortgagee in possession.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Mortgagee in Possession — Rule Stated. A mortgagee of real property in possession of the mortgaged premises after condition broken may not be dispossessed without the payment of the mortgage debt, unless his posssssion was acquired under such circumstances that he ought not in equity to be permitted to retain it. One who assumes possession of the property under color of foreclosure proceedings believed by him to be valid, however defective'they may be in fact, is within the protection of this rule.</p>

. Error from Cherokee district court; A. H. _Skid-more, judge. STATEMENT. ' This was an action of replevin to recover possession «of zinc ore of the alleged value of $1475.79, taken from :-a mine originally leased and operated by E. B. Shackel-vton and Richard Ward. While operating it they incurred, indebtedness which has not been paid.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Judicial Sale — Independent Aetion to Set Aside Deed. A. sheriff’s deed will not be set aside in an independent action for that'purpose upon the grounds of inadequacy of price paid and negligence of plaintiff’s attorney in guarding his interests, and especially so where those reasons for setting aside the sale were presented by written motion at the time the sale was confirmed and the deed ordered.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Highway — Liability of County for Damages from Defective Bridge. Where it is agrfeed in a contract of copartnership for operating a thrashing-machine that B. & E. shall furnish to the copartnership an engine of a certain kind and power, and an engine is furnished, and while moving the machinery over a bridge on a public highway, which by the negligence of the county commissioners has been permitted to become and remain in an unsafe ■condition for public travel, the engine falls through the bridge and is lost, and the copartnership thereby prevented from fulfilling certain thrashing .contracts at a profit, it is held, that one of the partners who was not the owner of the engine and who had no property interest therein cannot recover from the county his' lost profits on the thrashing contract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Malicious Trespass — Construction of the Word “ Malicious.” The word “malicious,” as used in section 107 of the crimes act (Gen. Stat. 1901, §2100), directed against the unlawful destruction of the property of another, in view of the provisions of section 112 (Gen. Stat. 1901, § 2105), is to receive the construction usually given it in criminal statutes, and in a prosecution thereunder it is no defense to show that the defendant was not actuated by any actual ill will toward the owner or any other person.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Accord and Satisfaction — A cceptance of Tender Held Payment in Full. Where a sum of money is tendered in satisfaction of a claim, the amount of which is in dispute, and the tender is accompanied with such acts and declarations as amount to a condition that if the money be accepted it will be accepted in satisfaction, and such that the person to whom it is offered is bound to understand therefrom that if he takes it he takes it subject to such condition, an acceptance of the money offered constitutes an accord and satisfaction: This is true although the debtor admits that the amount tendered is unconditionally and immediately due the creditor, and although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of the claim.</p> <p>2. -Letter of Remittance Construed — Acceptance of Cheek Held Payment. The amount of a claim being in dispute, the debtor mailed the creditor a statement of the account and a check, together with a letter in which he said that the check was in full satisfaction of the balance due on the account, adding: “Look it (the statement) over, and if there is any item you do not understand, if you will come to Leavenworth we will go through the original statements and I will explain it to you.” Held, that the debtor was bound to understand that if he accepted the check he took it subject to the condition that it should be in full settlement of his demand.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Dedication to Public Construed. A strip of land lying along the margin of a navigable stream was included in the plat of a city and dedicated to the public by the use of the word “levee” written thereon. Several streets opened upon this tract and many lots had no other means of ingress and egress except over and along it. Held, that its dedication included its use as a street as well as a landing-place for boats.</p> <p>2. -Abandonment Insufficient to Cause Reverter. Such strip of land is not abandoned by the public so as to cause a re-verter to the original dedicators or their, representatives because railroads have been permitted to lay their tracks and build depots upon it; nor because its use has been permitted for other unauthorized purposes; nor because river commerce has ceased and boats do not land upon it; nor because approach to the river margin has become difficult.</p> <p>3. - When Misuse or Non-use Causes Reverter. Land dedicated to a public use does not revert to the dedicators because of misuse or non-use, unless its use for the dedicated purpose has become impossible, or so highly improbable as to be practically impossible.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Certificate of Transcript. A certificate that a transcript of the record is full, true and correct is not impeached and overthrown by a statement in the record from which a mere inference may be drawn that- something has been omitted from it, nor unless the record on its face affirmatively and ' satisfactorily shows that it is incomplete and incorrect.</p> <p>2. Contract — Violation of Penal Statute. Where a statute expressly provides that a violation thereof shall be a misdemeanor, a contract made in direct violation of the same is illegal and there can be no recovery thereon, although such statute does not in express terms prohibit the contract or pronounce it void.</p> <p>3. Patent-right — Sale of Territory is Sale of Patent. A sale of the exclusive right to manufacture, use and sell for use a patented invention in a specified territory for a period of two years carries with it an interest in the patent-right itself, and constitutes a sale of a patent-right within the meaning of the “act relating to the registration and sale of patent-rights, and prescribing a penalty for the violation of the same.”</p> <p>4. -Promissory Notes Made Void by Violation of Penal Statute. The taking of a promissory note, the consideration of which is the sale of a patent-right, or what is claimed by the vendor to be a patent-right, without inserting therein the words, “given for a patent-right,” is, under our statute, a misdemeanor punishable by fine or imprisonment, and no recovery can be had thereon by one who violates the statute, or by a transferee of the note who has knowledge that the law was violated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Departure. A departure between pleadings and proof is not disclosed merely because the proof of essential allegations is not extended to cover unnecessary aver-ments made in connection with them.</p> <p>2. -Instruction Conclusive. When no exception is taken to an instruction to the jury it is conclusive upon the subject to which it relates.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. On June 27, 1899, W. G. Shaffer, plaintiff in error, by a lease in writing let to one J. T. Creamer eighty acres of farming land in Wyandotte county until March 1, 1901.

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Action against Non-resident — Effect of Presence of Defendant in the State. An action in attachment may be brought against a non-resident of the state in any county where he has property, although he is at the time personally present in another county of this state, and a summons may be issued to such other county, service of which there will give the court jurisdiction over him, at least to the extent of the attached property.</p>

<p>SYLLABUS BY THE COUKT.</p> <p>1. Fikb Insurance — ’Action for Damages by Insured against Third Party. Where an insurance company pays to the insured a loss occasioned by the wrong of a third party, and the value of the property destroyed exceeds the amount paid by the insurance company, the insured may bring an action in his own name against . the wrong-doer and may recover the full amount of the loss.</p> <p>2. Railroads — Property on Bight of Way — Liability of Railroad for Destroying Adjoining Property. A dealer in grain and lumber leased a portion of the right of way of a railroad company on which to build an elevator and warehouses, and it was stipulated that the railroad company should not be liable for the burning of property erected or stored on the rented premises. The lessee had other property connected with that on the leased premises, which was destroyed by fire negligently set out by the railroad company on the rented premises and which continued from there and burned property not on the right of way. Held, that the fact that the railroad company was exempt from liability for the burning of the property on the right of way, which first caught fire, will not relieve it from liability for the negligent burning of the connected property.</p> <p>3. -Acts of Lessee Held Not to Constitute Contributory . Negligence. The placing of structures on the right of way of a railroad company, which are permitted to remain there with the consent of the company until they are negligently set on fire by a passing locomotive, which fire extends to and burns other and adjoining property, does not constitute contributory negligence on the part of the owner, nor deprive him of the remedy given by law for the negligent burning of property not on the right of way,</p> <p>4. - Circumstantial Evidence — Case Followed. The fact that a fire which destroyed property originated in sparks from a passing locomotive may be shown by circumstantial evidence, following the rule of Eailroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876.</p> <p>5. -- Testimony of Engineman Concerning Spark-arrest-ers. A person who has been employed as a locomotive engineer for a long time and who is qualified by experience and observation to understand the operation and effect of spark-arresters in locomotives may give testimony concerning the question whether a spark-arrester in first-class condition would prevent the escape from a locomotive of sparks or fire sufficient to ignite and burn property on or near the right of way.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Chattel Mortgage — Petition against Wife on Debt Evidenced by Mortgage Only Held Sufficient. A petition to recover a personal judgment against a wife upon stipulations in a chattel mortgage given by her husband and herself to secure the payment of his note, to which she was not a party, that “ these presents are upon this express condition, that if said parties of the first part shall pay or cause to be paid unto the said party of the second part . . . the aforesaid sum of six thousand (6000) dollars, according to the terms of one certain promissory note . . . which note the said party of the first part hereby agrees to pay,” and also that “if from any cause said property shall fail to satisfy said debt and interest aforesaid said party of the first part hereby agrees to pay the deficiency,” states a cause of action against the wife, notwithstanding the absence from the petition of a statement that it was the contract or intention of the wife, or the expectation of the mortgagee, that she should become personally liable for the payment of the debt by signing the mortgage.</p>

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

<p>Error from Leavenworth district court; J. H. Gill-patrick, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Right to Private Switch — Effect of Foreclosure of Railroad — Purchasing Company Liable for Cost of Construction. A railroad company whose property was subject to a mortgage constructed upon its right of way a switch for the use of a patron who paid the cost of its construction and took possession of it under an agreement that if the railroad company, its successors or assigns, desired to abrogate the arrangement and take possession of the switch he should then be repaid the amount expended in its construction. Afterwards the mortgage was foreclosed and the property of the railroad was sold in a suit in a federal court to which the occupant of the switch was not a party. A receiver placed in charge of the road pending foreclosure and sale respected the occupant’s possession and exclusive claim to the switch. A grantee of the foreclosure purchaser ousted the occupant from the úse and possession of the switch and refused to reimburse him for the cost of its construction. Held, that he could recover the cost of constructing the switch from the company taking possession of it in an action brought in a court of competent jurisdiction of this state.</p>

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

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

<p>Error from Jackson district court; Marshall Gep-hart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Usage or Custom — Notice of It. In order that it may behind- • ing, a custom or usage must be known to the party sought to .be charged, or must be so notorious that knowledge of it will be presumed.</p> <p>2. - Cannot Make a Contract. Usage or custom cannot make a contract when parties themselves have made none.</p> <p>3. - Office of Usage or Custom Stated. The proper office of usage or custom is' to explain technical terms in' contracts to which peculiar meanings attach; to make certain that which is indefinite, ambiguous or obscure; to supply necessary matters upon which the contract itself- is silent; and generally to elucidate the intention of the parties when the meaning of the contract . cannot be clearly ascertained from the language employed.</p> <p>4. Bailment — Storage of Grain — Duty of Warehouseman. In order to recover charges for the storage of grain a warehouseman must keep at the place of deposit, subject to delivery on demand Of the depositor, either the grain left for storage or an equal quantity of other grain of the same kind and quality; and this requirement is not satisfied by keeping a sufficient quantity of grain of the proper description in another warehouse at a different place from that in contemplation of the parties when the bailment was made.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Conveyance — Insane Grantor. A deed executed without consideration by a person who is in fact insane, although not judicially declared so, to a grantee who knows of his incapacity, is void, and may be set aside at the suit of one who is in possession of the property under a claim of ownership.</p>

<p>Error from Edwards district court; E. H. Madison, judge pro tem.</p>

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

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

<p>Appeal from McPherson district court; M. P. Simp-SON,judge.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>1. Statutory Rape — Evidence of Similar Acts Admissible. In a prosecution upon a charge of statutory rape, where it is claimed that the act relied on for conviction was a part of a course of illicit sexual commerce between the defendant and the complaining witness, it is not error to admit evidence of other acts similar to that so relied on, for the purpose of showing the relations existing between the parties.</p> <p>2. Practice,' District Court— Written Communication between Judge and Jury. The fact that written communication relating to the form of the verdict took place between the judge and the jury after the submission of the cause will not require a new trial where it can be said that no prejudice could have resulted to the defendant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Will Contest — Heirs Incompetent to Testify. In an action brought by the heirs at law against the devisee and executrix to contest a will, the heirs are not competent witnesses ■ to testify in their own behalf concerning communications had personally with the deceased testator.</p> <p>2. - Bight of Plaintiff to Dismissal as to Her. In an action by the heirs at law against the legatee and executrix to contest a will, before the case had been finally submitted' oneí.óf the plaintiffs filed a motion to dismiss as to her without prejudice. Held, that it was error for the court to refuse to sustain, the mption. ' " '</p> <p>3. Practice, District Court — Demurrer to ^Evidence. “In Considering and deciding a demurrer to plaintiff’s evidence inva case tried to the court, the same rule obtains as in cases tried to a jury. The court cannot weigh conflicting evidence, nor regard the case as though submitted by the defendant upon the plaintiff’s showing, but must consider as true all portions of the evidence1 which tend to prove the allegations of the petition.” (FarnswóHh v. Clarice, 62 Kan. 261, 62 Pac. 6o5: Wolf v. Washer, 32 id. 533, 4 Pac. 1036.) ' r .</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Demurrer to Evidence — Defendant Estopped. If, after a demurrer to plaintiff’s evidence lias been overruled, the defendant enter upon a trial of the very matters which he claims the plaintiff failed to prove, introduce evidence respecting them which the plaintiff rebuts with further evidence, and take the verdict of the jury upon them, the status of the proof at the close of the plaintiff’s case,is rendered immaterial.</p> <p>2. Frateral Insurance — Misconduct of Assistant Clerk — Lodge JElstopped. The by-laws of a fraternal beneficiary society provided that subordinate lodges, so desiring, might have an assistant clerk. For some two months, both in the presence and absence of its clerk, a member of a subordinate lodge habitually received and receipted for dues and beneficiary assessments in the name of the clerk, in regular meetings of the lodge, with its knowledge and acquiescence. During a period of almost a month, in the absence of the clerk, she performed the latter’s duties in taking down and recording the minutes of meetings, collecting assessments and dues, entering payments made by members on the books of the lodge, and making reports to the supreme clerk, all with the 'knowledge and acquiescence of the lodge. She assisted a new clerk, who subsequently took office, in making up her report and in performing other duties. Held, that such conduct was sufficient to constitute such person an assistant clerk, so that payments of dues and assessments to her by a member would bind the order, whether such payments finally reached the supreme body or not.</p> <p>3. Juey and Jurors — Immaterial Misconduct. The misconduct of a juror which does not affect the verdict is not ground for a new trial.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Bond for Deed — Recording is Not Notice of Mortgage Relation. A bond for a deed in the ordinary form is not an instrument of defeasance, within the meaning of section 4217, General Statutes of 1901. The recording of such bond for a deed does not impart notice to a purchaser of the land that the obligee in the bond stands in the relation of mortgagor to the person giving the bond, although that was the intention of the parties.</p>

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

<p>Error from Leavenworth district court; J. H. Gill-patrick, judge.</p>

<p>SYLLABDS BY THE COURT.</p> <p>Fire Insurance — Property of Minor — Limitation of Action. ■ A dwelling-house owned by a minor twelve years of age was insured in his name. In May, 1894, it was destroyed by fire. The policy contained a condition that no suit or action for the recovery of any loss should be maintainable unless commenced within twelve months after the fire. In 1902, when the insured reached his majority, he brought an action on the policy to recover the amount of his loss. Held, that the contract limitation controlled the general statute of limitations and that the action was barred.</p>

<p>SYLLABUS BY 'THE COURT.</p> <p>1. Practice, District Court — Demurrer to Evidence. A ruling on a demurrer to the. evidence is a decision of law occurring at the trial, which is subject to reconsideration on a motion for a new trial.</p> <p>2. —-New Trial Improperly Granted for Overruling Demurrer to Evidence. Where a new trial is granted upon the sole ground that error was committed in overruling a demurrer to the evidence, after having denied the motion on other .grounds, including one that the findings and verdict were not sustained by sufficient evidence, the case is in the same situation and the court governed by the same rules in passing upon the evidence as when the demurrer was originally considered and decided; and if there was substantial evidence tending to sustain the cause of action stated in plaintiff’s petition, the granting of the motion for a new trial was erroneous.</p> <p>3. -Proper Consideration of Such Motion for New Trial. When considering that ground of the motion the court could not weigh the evidence for the purpose of settling conflicts in it, and could not allow the motion unless it was able to say that, admitting every fact proved which was favorable to plaintiff, and admitting everything which was fairly inferable from the evidence most favorable to the plaintiff, he has failed to make out some one or more of the material facts of his case.</p> <p>i. Master and Servant — Duty of Master — Assumption of Servant. The furnishing of a safe place to work and safe appliances with which to do the work is among the absolute duties of the master; and unless the servant’s attention is drawn to defects or • the dangerous condition of the place or the appliances furnished, or he should have known of them, he is not required to make an investigation, but may rest upon the assumption that the master has performed his duties in these respects.</p> <p>.5. -Facts do not Warrant Assumption of Negligence or its Absence. Under the facts of this case it cannot be said that the defendant was not negligent in the erection of the scaffold, the fall of which injured the plaintiff, nor can it be said that the ■defendant knew, or should have known, of the defects and dangers of the situation.</p>

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

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

<p>SYLLABUS .BY THE COUBT.</p> <p>T. Fbaud — Conditions Precedent to Relief. Relief on the ground of fraud will not be granted to one who does not seek it promptly after discovery of the fraud, and who, with knowledge of the fraud, retains the fruits of the transaction it induced.</p> <p>2. - False Representations. Relief will not be granted on account of false representations not shown to have been relied on as an inducement to conduct resulting in injury.</p> <p>3. Conveyance — Contract of Sale Without-Disclosing Title. A man having an interest in land, and having such control of its title that he may require a conveyance of it, may rightfully make . a contract in his own name to convey it by a warranty deed, without disclosing the actual state of the title to the purchaser.</p> <p>4. -Recovery of ConsiderationWithout Rescission. Money paid upon a contract induced by fraud cannot be recovered unless the contract may be rescinded; and a rescission will not be decreed to one who was himself in default at the time of the dereliction of which he complains.</p> <p>.5. New Trial — Not Granted Because Theories Presented Were Inconsistent. A party accepting all the issues tendered by the petition, and defending the case at the trial against all the theories presented, will not be granted a new trial because such theories are inconsistent with one another.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Oeeicers — Defective Viaduct — Contributory Negligence. A viaduct was in a condition that it was unsafe for teams and vehicles, but not for pedestrians. Its entrance was guarded by a barricade easily passed by pedestrians, and was passed by them in large numbers for a long time. Subsequently the viaduct became dangerous for the passage of persons on foot, but there was no additional warning of this changed condition given at the entrance. Held, that the court cannot say, as a matter of law, that the barricade was sufficient warning to charge with contributory negligence one who, without knowledge of the increased danger, went upon the viaduct and was injured.</p> <p>2. - Sufficiency of Warning a Question for the Jury. The sufficiency of the barricade as a warning of the dangerous condition of the viaduct was, under all the circumstances, a question of fact, and should have been submitted to the jury.</p>

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

<p>SYLLABUS BY THB COURT.</p> <p>1. Jury and Jurors — Misconduct of Prevailing Party — Verdict Set Aside. It is of the highest importance to the administration of justice and the good of society that the unquestioned purity and-unbiased character of the jury be preserved, and where it appears that the prevailing party has' for any ulterior or sinister motive attempted to tamper with or influence the jury, a verdict in his favor should be set aside, without a showing that such attempt has in any way influenced the jury.</p> <p>2. --— Improper Influence by Innocent Act Fatal to Ver-diet. A like result should follow where it appears that an innocent act of the prevailing party outside the issues of the case has had the effect improperly to influence the jury in his behalf.</p> <p>3. Practice, District Court — Conveyance of Jurors to View Premises. It became necessary in the trial of this case that the jury should be sent to view the premises in dispute. The judge announced in open court that this would be done, and that the plaintiff had carriages ready to convey the j ury. The carriages were hired from a livery-stable owned by one of the jury, of whom the plaintiff was a regular customer. These facts are not sufficient to require a verdict in favor of plaintiff to be set aside.</p>

<p>SYLLABUS BY THE COUKT.</p> <p>1. Constitutional Law — Homestead and Exemptions. The constitutional exemption of a homestead from forced sale under process of law may survive to the family of its owner after his death.</p> <p>2. - Family of Homestead Owner Defined — Right of Wife after Husband’s Death. If a husband and wife occupy a tract of land belonging to him as a homestead, she is the family of the owner within the meaning of the constitution, and his death does not deprive her of the right to continue to be so designated in order to maintain the homestead, to which she takes title and which she continues to occupy, free from forced sale under process of law for the payment of his debts.</p> <p>3. -Descents and Distributions — Purpose of Statute. The purpose of the statute of descents and distributions is to provide for the transmission of title at death in case of intestacy and to regulate the division of estates among heirs. It is not primarily an exemption or homestead law; and though it may enlarge the right to an exemption of real estate from appropriation to the payment of debts, it cannot restrict the constitutional guaranty.</p> <p>4. Wills — Election of Widow Does Not Destroy Homestead Right. Upon the death of her husband a wife may elect to take title under his will to their homestead, which she continues to occupy, without subjecting it to the payment of his debts.</p> <p>5. -Merely Formal Phrases will not Destroy Homestead Character of Devised Property. The use of merely formal phrases will not make a devise of a homestead subject to the payment of the testator’s debts; to do so, the language employed must be unequivocal and imperative.</p> <p>6. Tbust Deed — Not Testamentary. A trust deed examined and held not to be testamentary in character.</p> <p>7. Homestead and Exemptions — Member of the Family Defined. A minor child, who resides with her grandparents under such cir- ■ cumstances that she becomes in fact dependent upon them and they become morally responsible for her nurture, becomes a member of their family within the meaning of the homestead provision of the constitution, without formal adoption; and this is true even though her father, who is divorced from her mother, still lives, and has a decree of court awarding her custody to him.</p>

<p>Error from Rawlins district court; John R. PIam-ilton, judge.</p>

<p>Error from Rooks district court; Chas. W. Smith, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Special Findings — Irregular Judgment Set Aside. If the special findings are such as to require the entry of a judgment thereon, notwithstanding the general verdict, a judgment entered upon such general verdict is irregular and as such may be set aside at a subsequent term of court.</p> <p>2. General Verdict — When Overthrown by Special Findings. All the elements which go to make up a plaintiff’s right of recovery are found in his favor by a general verdict for him. And before special findings will avail to overthrow the general verdict they must have determined all those elements against his right of recovery.</p> <p>3. Master and Servant — Assumption of Kisk — Knowledge of Danger. Before it can be said that an employee has assumed the risks of an employment, it must be shown that he knew, or had reasonable opportunity of knowing, what those risks were; that is, he must not only know or have reasonable opportunity of knowing the dangerous conditions, but he must know or have reasonable opportunity of knowing the danger growing out of those conditions.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Tenants in Gommon — Petition Must Demand Possession. A joint tenant or tenant in common out of possession cannot maintain a suit for partition against his cotenants who hold adversely to him, without joining with the demand for partition a cause of action for possession of the land. {Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, 93 Am. St. Rep, 272, cited and reaffirmed.)</p> <p>2. Practice, District Court — Objections Waived — New Trial. In an action for partition of premises, where the petition avers that the parties are tenants in common, and it is not expressly averred that plaintiffs are in possession) and there is not joined with the demand for partition an action for the possession of premises; and where the defendant answered, claiming title and possession, asking that title be quieted as against the claims of plaintiffs; and the sufficiency of plaintiff’s petition was not chai-lenged in any manner by defendant in the trial court: Held,ih&t defendant thereby waived all objections to the sufficiency of said petition. Held, also, that defendant was not entitled to a new trial, as a matter of right, under section 5086, General Statutes of 1901.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Liability Limited in Case of Death while in Military Service. A policy of life insurance provided that the insured might serve in the military service of the United States in time of war by giving the insurance company notice and paying an extra premium for the war hazard; otherwise, in case of death, the company should be liable for the reserve on the policy only. The insured enlisted in the service of the United States and was killed on the island of Mindanao, one of the Philippines, in'May, 1900. No extra premium was paid. ' Held, that the company was not liable for more than the reserve on the policy.</p> <p>2. Judicial Notice — Treaty xoith Spain — Philippine Insurrection. Courts of this country take judicial notice that under the treaty of Paris, between the United States and the kingdom of Spain, signed December 10, 1898, the Philippine islands became a part of our territory, and that after that time the inhabitants of those islands were in a state of insurrection against the government. Judicial notice is taken also of the fact that in 1902 the insurrection had not ended in the island of Mindanao.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Amount in Controversy Insufficient for Review. In an action of replevin by the owner to recover possession of personal property of the value of $300, judgment was rendered for possession of the property in favor of the plaintiff owner and against the defendant lien claimant, who claimed the right of possession of the property to satisfy an agistor’s lien for $51.50 only. In proceedings brought to the supreme court by defendant lien claimant to review said judgment, held, that the amount in controversy is less than $100, and the supreme court has no jurisdiction to review the case.</p>

<p>Appeal from Marion district court; O. L. Moose, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Oeeicers — Subject of Ordinance. A city ordinance imposing a license-tax cannot be regarded as embracing two subjects because it operates to regulate a business as well as to provide public revenue.</p> <p>2. - Publication of Ordinances. Section 855, General Statutes of 1901, which provides that ordinances shall be published in a newspaper within the city, is the controlling statute as to the publication of ordinances in cities of the first class, and section 3893, General Statutes of 1901, regulating the printing of legal notices, does not apply.</p> <p>3. -- Newspaper Defined. A weekly publication, printed and circulated in a city, containing the current news and matters of general interest, as well as the local happenings, is a newspaper, within the meaning of the statute requiring the publication of city ordinances, although its circulation may be very limited.</p> <p>4. License— Tax on Hucksters and Hawkers Valid. An ordinance requiring hucksters or hawkers to pay a license of thirty-five dollars for each six months, and requiring a helper or assistant of such huckster or hawker to pay a license of fifteen dollars for the same time, is not so unjust or unreasonable in its operation as to be invalid.</p> <p>5. —-- Amount of License-tax a Question for the City. The expense of inspection and regulation, the amount of the city indebtedness and the necessary cost of carrying on the municipal government enter into the question as to whether a license-tax is reasonable and just, and these are considerations for the municipal authorities rather than for the courts.</p> <p>6. - Ordinance not Invalid Because of Exemption. A city ordinance imposing a license-tax on hucksters or hawkers is not invalid because it exempts from its operation those who are personally selling the products of their own or leased lands.</p>

<p>Appeal.from Montgomery district court; Thomas. J'JFlannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Common Nuisance. Section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2463), prescribing punishment for the owner or keeper of a common nuisance, was repealed by section 1, chapter 232, Laws of 1901 (Gen. Stat. 1901, § 2493), prescribing punishment for the person engaged in maintaining or assisting in maintaining a common nuisance.</p> <p>2. -Information Sufficient. On February 12, 1901, an information was filed against defendant, intended to charge him . with being the owner or keeper of a common nuisance under section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463). On April 22,1903, upon motion of the defendant, the information was quashed, as being indefinite in the crime charged and in the location of the place. The state was permitted to file an amended information under said section 4 of chapter 165. Defendant filed his motion to quash the amended information, and also filed a plea in abatement, averring, in substance, that said amended information was indefinite and charged no public offense; that it was a departure from the original information; that said section 4 of chapter 165 was repealed by said section 1 of chapter 232; that at the time said amended information was filed no legal proceeding had been commenced or was, pending against him. Held, that there was no error in the overruling of the motion to quash said amended information or in sustaining the demurrer of the state to said plea in abatement; that the averments of the original information were sufficient; that a proceeding was commenced and pending, within the meaning of section 7342, General Statutes of 1901, and that under said section 7342 the right survived to the state, under the order of the trial court, to amend the original information and prosecute the defendant under the information^ as amended, for a violation of section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2463).</p> <p>3. - Jury and Jurors — Challenge for Cause. In a prosecution for the violation of the prohibitory-liquor law, charging defendant with being the owner and keeper of a common nuisance, under section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), held, that it was error for the court to overrule defendant’s challenges to .jurors for cause, over his exception, and permit such jurors to swerve upon the trial, defendant having exhausted all his peremptory challenges in the impaneling of said jury; it having been shown by the answers of the jurors that each, from having heard of a “joint smashing,” entertained an opinion that “joints,” or places where intoxicating liquors were kept, sold and drank as a beverage, in violation of said act, were at the time destroyed; it having also been shown by the answers of said jurors that if, upon the trial, it should appear that defendant was the owner or keeper of a place at the time so destroyed, said jurors entertained an opinion that it would establish defendant as the owner or keeper- thereof.</p>

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

<p>SYLLABUS BY THE! COURT.</p> <p>Banks and Banking — Principal and Agent- — Deposit Applied ' on Overdraft. A bank which, receives from an agent for deposit ■ in his own name the money of his principal, without notice of the agency, is protected in applying it to a past due debt of the depositor to the same extent as in paymg it out upon his checks, whenever such application .is authorized by the agent, either expressly or by legal implication; and such authority ordinarily > arises from the' making of a deposit without other directions, . where the debt to which it is applied is an overdraft.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership' — Boundary Lines — Adverse Possession. Where parties by mutual agreement fix boundary lines and thereafter acquiesce in the lines so agreed upon, they must be considered as the true boundary lines between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.</p> <p>2. -Boundary Lines Established by Parol Agreement— Statute of Frauds. The owners of adjoining tracts-of land may., by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon,'will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds.</p>

Error from Ellis district court; Lee Monroe, judge. STATEMENT. This was- an action brought by Charles E. Gibson to recover on a promissory note for $600, executed by David Kennedy and wife in favor of L. N. Bessette, and to foreclose a mortgage given to secure its payment. The note and mortgage Were transferred to one Jenness and by him to Gibson.

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors and Administrators — Exceptions to Annual Settlement — Appeal■—Burden of Proof. Where exceptions have been taken to items in an annual settlement of an administrator’s account after they had been allowed by the probate judge, and the probate court adheres to its former ruling, and the party excepting appeals to the district court, the allowance of the probate court is prima facie correct, and the burden of showing its incorrectness is upon the party who appeals.</p> <p>2.- Purchase of Necessities for Minors Having no Guardian. An administrator who in good faith pays money for the purchase of necessities for the support of helpless minor children of the intestate at a time when they have no guardian, the purchases being such as a guardian would have made if one had been appointed, cannot be made to respond again in an action by a guardian thereafter appointed.</p> <p>3. -Liable to Heirs for Money or Property Lost to Estate. An administrator is liable to the heirs of the deceased for money or other property that came into his hands which, through his act or omission, has been lost to the estate.</p>

Error from Johnson district court; W. H. Sheldon,., judge. STATEMENT. In the month of February, 1900, Frank B. Houlette recovered a judgment against J. E. Redinger for the sum of $400 and costs. On October 11, 1900, an execution upon this judgment was issued to the sheriff of the proper county and levied upon certain corn in the shock, as the property of the judgment debtor.

<p>SYLLABUS BY THE COURT.</p> <p>Homestead and Exemptions — Rights of Family of Deceased— “ Family ” Defined. The owner and his wife occupied eighty acres of farming land as their homestead. The husband died and the widow continued to occupy the land as a homestead. Their children had all arrived at the age of majority and lived in homes of their own. Held, that the widow was “the family of the owner,” and as such was entitled to hold the homestead, exempt from the payment of the debts of her deceased husband as long as she continued so to occupy it.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. This was an action for personal injuries. Plaintiff below (plaintiff in error here) and three other men were taking down and removing machinery from an unused power-house of the street-railway company. They were common laborers. The work was done under the orders of Charles Voght, a division superintendent, and Richard DeGroff, a foreman.

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

<p>SYLLABUS BY THE COURT.</p> <p>MasteR and Seryant — Personal Injuries — Fellow Servants• Whenever coemployees under the control of one master are engaged in the discharge of duties directed to one common end, such duties being so closely related that each employee must know he is exposed to the risk of being injured by the negligence of another, they are fellow servants, and each assumes the risk to which he has thus exposed himself.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Principal and Agent- — Authority to Sell Heal Estate. An owner of real estate which had been leased until the following March for $50, payable October 1, wrote in September to his agent, authorizing a sale of the property for $1200, adding: “It is understood that this year’s rents will come to us.” Held, that this was, in effect, an instruction to sell subject to the lease, and did not authorize a sale for $1200 without a reservation of the rent.</p> <p>2. Damages — Agreementto SellRealEntate. Where, in the course of correspondence regarding the sale of a tract of land, an offer is made and accepted, but the buyer seeks to attach new conditions, and notifies the seller that unless these conditions are agreed to he will not buy, this, as to the buyer, is a reopening of the negotiations, permitting the seller also to impose new conditions, and the buyer cannot recover damages for the seller’s refusal to convey without showing a new agreement reached after such reopening.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mines and Mining —Petroleum and Gas are Minerals. Pe-. trolemn and gas are minerals. As long as they remain in the ground they are part of the realty. They belong to the owner of the land, and are a part of it as long as. they are on it, or in it, or subject to his control. \</p> <p>2. Executors — Not Authorized by Will to Make Oil and Gas Lease. A resident of Ohio owning a Kansas farm that had never been used for other than agricultural purposes executed a will, providing that the executor and trustee should take charge of the premises and “lease and maintain the same in repair and good condition, with a view to obtaining the best income therefrom, without permitting the same to deteriorate in value or quality.” Held, that the executor and trustee was not authorized by the will to execute an oil and gas lease, granting to the lessee all the oil and gas under said premises and binding the legatees thereby.</p> <p>4. Partition — Executor and Trustee Estopped. An executor and trustee, without having sufficient authority under the will to bind the legatees thereby, executed- an oil and gas lease on a farm that had never been used for other than agricultural purposes. Prior to the execution of the lease he had individually acquired the interest of one of the legatees in the premises. Soon thereafter he acquired the interest of another of the legatees. Held, that, in an action of partition, under the circumstances of this case, he is estopped from denying that the interest acquired by him was not subject to the lease.</p>

Error from Brown district court; William I. Stuart, judge. STATEMENT. Prior to September 4, 1888, J. J. Figley was the owner of 360 acres of land in Brown county. On that date his wife, Sarah M. Figley, was adjudged to be insane, and Samuel Huston was appointed her guardian.

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Innocent Purchaser — Presumptioii. A presumption that the owner of negotiable paper is an innocent purchaser does not arise until he has proved the indorsement by the original payee, where such indorsement is denied under oath.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Payment to Minor for Personal Services is Full Satisfaction. A contract with a minor, under which he performed personal services for an employer, is not to be regarded as inoperative or void merely because of minority, or because the consent of his parents was not first obtained. Payment to the minor is a full satisfaction for such services, and the parents or guardian cannot recover therefor.</p>

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

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

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

<p>SYUIABUS BY THE COURT.</p> <p>1. PROMISSORY Note — Sufficient Consideration Between Husband and Wife. If a wife place in circulation her note, secured by a mortgage on her land, for the purpose of procuring the satisfaction of her husband’s debt, which object is attained, the advantage he derives from the transaction is a consideration to her.</p> <p>2. _ Satisfaction of Debt by Transfer of Note and Mortgage no Diversion of Funds. If, in such a case, the note and mortgage are given for the purpose of proofing funds to be paid by the mortgagee to the creditor in satisfaction of the debt, it will not constitute a diversion of the securities from their original purpose if the creditor takes them by indorsement and assignment from the mortgagee in lieu of the funds themselves.</p> <p>3. Corporations — Foreign Corporations May Sue. Isolated, independent transactions in this state, incidentally necessary to the business of a foreign corporation conducted at its domicile, fully completed before action commenced, will not prevent recovery in the courts of this state by such corporation under section 1283, General Statutes of 1901, when no repetition of such acts is in contemplation and the territory of the state is not being made the basis of operations for the conduct of any part of the corporation’s business at the time the suit is begun.</p>

<p>SYLLABUS BY THE COURT.</p> <p>County Warrants — Limitation of Action — Fraudulent Concealment. One who buys a county warrant which is invalid because issued to the payee to cover the discount to which such warrants were subject on the market ordinarily has an immediate right of action against the vendor for the amount paid. In the absence of any actual intention to conceal the nature of the transaction, the fact that the warrant purports on its face to have beenissued for a valid consideration, and that it was issued upon a verified account, the corresponding item of which was fair on its face, the overcharge, however, being manifest upon a consideration of the entire account, does not constitute such a fraudulent concealment as to suspend the operation of the statute of limitations until the discovery of the invalidity of the warrant by its holder.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Employment — Preference to Soldiers and Sailors. To obtain the preference given by chapter 186, Laws of 1901 (Gen. Stat. 1901, §§6509-6512), to soldiers and sailors who served in the war of the rebellion, for appointment to public position or employment, it must appear on investigation that they possess equal qualifications for the position or employment with other available applicants.</p> <p>2. -Authority to Make Appointments. Where the legislature places the authority of making appointments upon officers and boards, and vests them with a discretion and judgment to determine who is best qualified to serve the public, the courts cannot supervise the exercise of such authority, nor control the discretion and judgment so vested.</p> <p>3. “Veterans’ Preference Law ’’— Character and Extent of In- - vestigation. The character and extent of the investigation under the “veterans’ preference law” is not prescribed by the legislature, but the appointing power is expected to investigate in good ' faith, fairly to oonsider the qualifications of the applicants, and honestly to determine who is best fitted to perform the duties of the place sought.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — “Veterans’ JPreferenee Law” Valid. Section 1, chapter 186, Laws of 1901 (Gen. Stat. 1901, §6509), which provides that those who have served in the army and navy of the United States in the war óf the rebéllion, and have been honorably discharged therefrom, shall be preferred for appoint- . ment to office in every public department, and upon all public works of the state, and of the cities and towns thereof, is constitutional.</p>

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

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

Original proceeding in habeas corpus. STATEMENT. At the November, 1908, term of the district court of Clay county, a grand jury was impaneled, charged, and sworn. It entered upon the performance of its duties, and was investigating the conduct of one.

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

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

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

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

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

<p>Error from Wyandotte court of common pleas; William1 G-. Holt, judge.</p>

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

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

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

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

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

<p>Error from Jefferson district court; Marshall Gep-hart, judge.</p>

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

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

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

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

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

<p>Error from Miami district court; George Kingsley,. judge pro tern.</p>

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

<p>Error from Rawlins district John R. judge.</p>

<p>Error from Leavenworth district court; J. H. Gillpat-riok, judge.</p>

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

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

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

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

<p>Error from Montgomery district court; Thomas J. Flan-nelly, judge.</p>

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

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

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

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

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

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

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

<p>Error from Leavenworth district court; J. H. Gillpat-riok, judge.</p>

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