Volume 7 — Kansas Court of Appeals Reports

<p>Error from Nemaha district court; J. F. Thompson, judge.</p>

<p>Error from Brown district court; J. F. Thompson, judge.</p>

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

<p>1. Duress — Reneioal of Sale Note. R. purchased a piano of K. and executed a sale note for §230, a part of the price agreed to be paid in instalments of twelve dollars each month. After nearly three years K. demanded payment of the balance due on the sale note, and threatened if the amount was not paid to take the piano under said sale note, unless R. would execute a new sale note for the balance claimed. To prevent such taking and a sale thereunder, R. signed a renewal note and contract. Held, That this did not constitute such duress as to avoid sai4d renewal contract.</p> <p>2. Fraud — Waived, When. Although the original contract may have been procured by falsely representing that the piano was worth a sum greatly in excess of its actual value, yet the renewal having been made with a knowledge of that fact, such fraud was waived and cannot now be used to defeat the enforcement of the renewal contract.</p>

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

<p>1. Agency, Evidence of — Tort. Plaintiff below, defendant in error, charged the defendant below, plaintiff in error, with the conversion -of goods. For the purpose of charging it with the acts and declarations of a third person as its agent, the plaintiff proved that this person had at the time in his possession an account or statement of goods sold by the defendant to the plaintiff, and of which he was demanding payment. Held, That this was not sufficient proof of agency upon which to charge the defendant with tortious acts and declarations respecting the same.</p> <p>2.. - Ratification — Purchase by Principal. For the purpose of showing that the defendant ratified the acts of this person, the plaintiff proved that the defendant subsequently bought the goods in controversy at a sale made by a constable, and that this constable’s deputy took the goods at the instance of the person claimed to have been acting' as the agent of the defendant. Held, that this was not sufficient proof to establish a ratification of any tortious acts of such person.</p> <p>3. - Pleading — Allegation of Appointment. The petition alleged that “the defendant, the Swofford Brothers Dry Goods Company, carried away and converted to their own use” the goods in controversy, and “that after the wrongful and unlawful conversion of said property on the part of said Swofford Brothers Dry Goods Company, by and through their duly and legally authorized agents, plaintiff made a demand of said defendant for said goods,” etc. Held, That this was not such an allegation of appointment or authority as contemplated by section 108 of the code, and that these allegations did not require a verified answer to create an issue as to the unlawful taking or conversion of the goods.</p>

<p>Appellate Procedure — Necessary Parties — Joint Debtors. Where a party seeks by the judgment of the court of appeals to increase the burdens of one joint judgment debtor, and thereby relieve the burdens of another, a condition precedent is that he bring them both into court; and where all of such joint judgment debtors to be affected are not brought into court, the petition in error should be dismissed.</p>

<p>Minority, Not Disclosed — Guardian ad Litem — New Trial. Plaintiffs in error appeared in the case, employed counsel, and made their defense. They made no request for the appointment of a guardian ad litem. They were apparently adults. Their minority was not in any way disclosed to the court. Held, The failure to appoint a guardian ad litem was not, under the circumstances, a ground for a new trial, under the provisions of the code.</p>

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

Error from Atchison District Court; W. D. Webb, judge. This was an action to foreclose certain liens obtained under the mechanics’ lien law. The plaintiff in error, and others who were defendants below, set up judgments against the property owners, and showed that the judgments were rendered before the contract for the house was made.

<p>Error from Wyandotte court of common pleas; T. P. Anderson, judge:</p>

<p>1. Conversion—Defense not Available. Defendants, apparently having possession and control of the goods of the plaintiff and with full knowledge of all the facts in relation thereto, having refused upon demand of the plaintiffs to surrender the same or permit the plaintiff to take them, and asserting title and right of possession in themselves, cannot, in a subsequent suit by the plaintiff for conversion, assert as a defense that it was not in their power to deliver the goods and that their consent to a removal would not have availed the plaintiff in obtaining possession.</p> <p>2. Special Findings — Inconsistency not Fatal, When. An immaterial special finding of fact by the jury, upon a question not at issue in the case, inconsistent with all other findings of fact, will not constitute an obstacle to the court’s rendering such judgment as is warranted by the special findings of fact upon the issues joined.</p>

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

Error from Johnson district court; John T. Burris, judge. The plaintiffs in error brought a creditor’s suit to subject to their judgment against Catherine Cochran certain real estate in Olathe which had been conveyed to her son-in-law, the defendant in error.

Error from Wyandotte district court; Henry L. Auden, judge. The petition filed in the court below alleges the facts in this case to be about as follows : In October or November, 1885, Leonidas Doty recovered a judgment in the courts of Illinois against H. T. Joplin for the sum of $265, and at the same time Joplin had an action pending in the same court against Lawrence M. Jones, John L. Jones, and O. O. Ross.

<p>Public Policy — Void Contract.. . An answer which avers that W. entered into a fraudulent conspiracy with K. to defraud the government and incidentally to defraud H., and that W. then agreed with H., for a sum of money to be paid by H., to furnish the evidence of such fraudulent conspiracy in a land-contest trial, states a defense. The .contract to furnish the testimony in the contest case under such circumstances is against public policy, and a note given in consideration thereof is void.</p>

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

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

Error from Shawnee district court; Z. T. Hazen, judge. Error is brought from the ruling of the court below upon a motion to amerce the defendant in error, as sheriff, under paragraph 4570, General Statutes of 1889 (Gen. Stat. 1897, ch. 95, §478).

Error from Brown district court; J. F. Thompson, judge. The defendant, in error, as plaintiff below, brought an action in the district court of Brown county upon a promissory note executed by the plaintiff in error, payable to the order of Louis E. Parker, and indorsed by him to Arthur W. Dole, the defendant in error. The case was tried to a jury. The court instructed the jury to return a verdict for the plaintiff, which was done.

<p>Jurisdiction of District Courts — Enforcement of Trusts. When a district court has jurisdiction of the parties, it has jurisdiction to enforce trusts, although in so doing the title to land which does not lie within its territorial limits is incidentally affected.</p>

Original proceeding in habeas corpus. The petitioner, Dennis Dumford, alleges that he is unlawfully restrained of his liberty at the state penitentiary, at Lansing, by Harry Landis, warden of said penitentiary. The petition, as well as the return of the warden to the writ, discloses that the petitioner was charged by information in the district court of Shawnee county with the offense of grand larceny, and that he plead guilty.

<p>1. Remarks or Counsel — Not Reviewed, When. The remarks of counsel complained of are not sufficient to vitiate the verdict or require a new trial, in the absence of any objection or exception. It is the duty of an attorney at the trial to call the attention of the court, and request its interposition to objectionable remarks made by opposite counsel.</p> <p>2. Verdict Excessive — Two Causes of Action — New Trial. It is error for the trial court to overrule a motion for a new trial and' render judgment upon a verdict based on two causes of action, where the verdict is in excess of the amount recoverable On the first, and when the second does not state facts sufficient to constituse a cause of action.</p>

<p>Error from Atchison district court; W. D. Webb, .judge.</p>

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

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

<p>Error from Brown district court; R. M. Embry, judge.</p>

<p>1. Judge Peo Tem. — Jurisdiction of — Adjudging Tax Lien. A. judge pro tem. who is legally qualified to try an action for the recovery of real estate under a tax deed has jurisdiction, after declaring the tax deed void or voidable, to proceed under paragraph 6996, General Statutes of 1889, and adjudge the successful claimant to pay to the holder of said tax deed the amount provided for in said paragraph.</p> <p>2. Tax Deed — Computation of Interest — Law of 1893. In such proceedings, it is error to compute the interest on the sum due at the date of the tax deed and taxes subsequently paid at the rate of twenty per cent, per annum, where the tax deed was executed after said paragraph 6996 had been amended by chapter 110, Laws of 1893.</p>

<p>Error from the Shawnee circuit court; J. B. Johnson, judge.</p>

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

<p>Acceptance of Goods Sold — Bight to Besoind, Waived When. The defendant bought of the plaintiff a soda-fountain. Upon receipt of one tendered as performance of the contract, he discovered that it did not fill the description therein. He set it up and used it for four months, but refused payment, claiming the right to return the property for the reason that it was not the article purchased and that he held it subject to the plaintiff’s order. Held, That the continued use, after knowledge of the deficiency, was an acceptance, and was inconsistent with this claim, and the plaintiff was entitled to recover the contract price, less any damages occasioned by difference in value between the article sold and the one delivered.</p>

<p>Error from Shawnee circuit court; J. B. Johnson, judge.</p> <p>The Burdett Town Company sued Johnson and Frost for the specific performance of a contract for the purchase of town lots. This contract was made on May 30, 1886.' A small payment was made down on' the lots,- the' contract providing for two other payments, the last to become due May 30, 1887. The contract provided that upon making this final payment the company should deed the lots to the vendees. By express provision, time was made of the essence of the contract. .It was further stipulated that, upon a failure to perform, the vendees should forfeit all right in the premises and the contract should at once become null and void, without entry or other act of the vendor. Defendants below answered, admitting the execution of the contract and their failure to pay, and alleging that, upon such failure, in May, 1887, the company elected to take advantage of this stipulation of .forfeiture and annul the contract. The answer further alleged that the company was guilty of laches sufficient to deprive it of the right to specific performance.</p> <p>There was a trial to a.jury. The defendants were held to have the burden of proof. They testified in their own behalf, and called one witness, the manager of the plaintiff company. There was no contention that the delay in asserting the right to specific performance was on account of any suggestion of the defendants. This action was begun on May 22, 1893, nearly six years after the cause of action of the defendant in error had accrued, i. e., the time fixed for performance of the contract.</p> <p>The answer further alleged, that during the delay of the defendant in error the property had so decreased in value as to be practically worthless, and this contention was supported by the evidence. No tender of performance on the part of the vendor, either at the time designated therefor or afterward, was plead or proven, so that under the current weight of authority the vendees were never put in default. There was some conflict between the evidence of the defendants below and the witness Coats as to whether the company had in fact elected to treat the contract as forfeited, by so noting the same on its records. The vendees were never in possession of the property.</p> <p>The entire case was submitted to a jury for a general verdict, and also upon special questions of fact. On April 24, 1894, the jury returned a verdict for the defendants, with special findings supporting their verdict. The plaintiff moved to set aside the verdict and special findings, which was denied by the court. On motion of the defendants, judgment was entered for them on the verdict and special findings. In due time the plaintiff filed a motion for a new trial. On February 11, 1895, about ten months after the judgment was entered, the circuit court sustained the motion for a new trial. The defendants excepted, and the question now before this court is, whether the court abused its discretion and committed material error in sustaining the plaintiff’s motion for a new trial.</p>

<p>1. Change oe Vence — Affidavit. A change of venue should not be granted upon a mere suggestion, or upon an affidavit stating conclusions; such change should be granted only for cause true in fact and sufficient in law.</p> <p>2. Evidence — Competent, When. Evidence is competent which tends to prove a material issue upon the trial.</p> <p>3. -Demurrer — Amendment of Petition. Where there is some competent legal evidence tending to sustain the plaintiff’s right of action, it is not error for the court to overrule a demurrer to the evidence and allow the plaintiff to amend his petition to ■conform to the proof.</p> <p>4. Instructions — Properly Refused, When. It is not error for the court to refuse to give instructions as prepared by the party requesting the same, where the court gives in its general charge the substance of the instructions requested.</p> <p>5. Fraud — Reformation of Written Contract — Evidence. In an action to set aside and reform a written contract for fraud and ■ insert other provisions to conform to the alleged original agreement, the proof must be full, clear, and decisive. A mere preponderance of the evidence is not enough; such facts mi^st appear beyond reasonable controversy, and the court should so instruct the jury.</p>

<p>Duty or Master — Vice-Principal—Fellow Servant. It is the duty of a master to furnish his employees with a reasonably safe place in which to work, and if he delegates to another the duty of selecting material, or the building of a scaffold, such delegated person becomes a vice-principal, for whose acts he is responsible. A servant to whom the master entrusts the duty of selecting appliances for other servants to work with, is not their fellow servant so as to prevent liability of the master to them for injuries caused by the servant’s negligence in performing that duty.</p>

<p>Defective Bridge — Liability of County — Notice. S. sued a board of county commissioners, under the provisions of paragraph 7134, General Statutes of 1889 (Gen. Stat. 1897, ch. 42, § 48), to recover damages on account of injuries sustained by him from being thrown into a chasm in the highway occasioned by the removal of the superstructure of a county bridge. He alleged in his petition that the superstructure was removed by the direction of the board of commissioners, including its chairman, under a contract therefor signed by the chairman, more than five days before the injury complained of; but did not allege further notice of this defect to the chairman of the board. Held, That the chairman of the board would be presumed to know what was done by the board’s direction, and that the allegation was a sufficient averment of notice to entitle the plaintiff to recover; and further held, that the removal of the superstructure created a defect in the bridge, as contemplated by the provisions of said paragraph 7134.</p>

<p>Natural Watercourse—Unlawful Diversion—Repeal by Implication. That portion of section 1, chapter 161, Laws of 1886, which reads: “That it shall be unlawful to divert any natural watercourse from a well-defined channel,” is not, either by direct terms or by implication, repealed by chapter 20á, Laws of 1891.</p>

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

Error from Shawnee circuit court; J. B. Johnson, judge. J. B. Billard, one of the defendants in error, sued Joseph Reed, the plaintiff in error, in the justice’s court of F. M. Grover, a justice of the peace of the city of Topeka. Upon an application of Reed for a change of venue, Justice Grover transferred the case to the defendant in error, J. H. Marple, a justice of the peace of an adjoining township in Shawnee county, and the cause was docketed by Marple for trial.

<p>1. Practice — Not Duty of Court to Advise Counsel. At the beginning of the trial of this case, counsel for plaintiff asked the court’s advice as to whether the burden of proof was upon him. ■ The court declined to give the advice. Plaintiff then assumed the burden of proof in the case and offered his evidence in support of the allegations of his petition. Held, That the refusal of the court to advise counsel as to the burden of proof was not error.</p> <p>2. Promissory Note — Conditions in — Proof Necessary. The suit was upon a promissory note made payable in five years after date, with the following conditions: “This note is given for the endowment fund of Highland University, the interest only to be used for general expenses. If at the end of five years a second chair is not endowed in Highland University, this note is to be canceled and returned to me. This note is to be void unless the first $20,000 is secured by September 1, 1885; and if the school ever fails to go forward the principal reverts to the giver. ” Held, That, as a condition of recovery, it was necessary for the plaintiff to prove that a second chair had been endowed, and that the first endowment of $20,000 had been secured by September 1,1885.</p> <p>3. -- Procured by False Representations — Instructions. The defendant alleged in his answer that he was induced to give the note by the false and fraudulent representations of the agent of the plaintiff who solicited the subscription. One Johnson had proposed to subscribe $10,000 to the endowment of the chair in the university, upon condition that the citizens of Highland and vicinity would subscribe an equal amount therefor, and upon additional conditions the same as those inserted in the note given by the defendant. It was claimed by the plaintiff, and the evidence tended to prove, that Johnson had attached other and different additional conditions to his subscription which were not disclosed to the defendant, bu.t that the agent stated to the defendant that Johnson’s subscription was upon the same conditions as those contained in the note of the defendant. The court instructed the jury: “If you believe from thfe evidence that plaintiff, having knowledge of the conditions attached to the Johnson subscription and of his purpose to require them to be inserted in his final obligation, represented through its agent that he, Johnson, would deliver his note in like form and character to the one sued on herein, for the sum of ten thousand dollars, and if you believe further from the evidence that said defendant believed and relied upon said representations and was induced thereby te execute the note sued on, and that said representations were false, then the plaintiff cannot recover.” Held, That the giving of this instruction was not error.</p>

<p>1. Insurance, Live Stock — Notice of Sickness — Material Condition. The policy issued by the defendant in error upon the plaintiff’s horse contained the following provision: “And he shall in every case at once notify this company, at the home office in Des Moines, Iowa, by telegram, of the fact of such sickness or accident; otherwise this policy shall be void.” It is admitted that the notice was not given, although the horse was sick about nine days before it died. Held, That the condition was made a material one by insertion in the policy, and the failure to give the notice rendered the policy void.</p> <p>2.---Furnishing Blanks for Proofs, not Waiver of Notice. After the death of the horse, upon application of the plaintiff, the company furnished blanks upon which to make proof of loss, and in the letter transmitting them is this statement: “The company has no information upon the subject except your statement, nor has it any. information with reference to the other facts and circumstances attending the death of this horse.” Proofs of loss were then made out and forwarded to the company, upon receipt of which they disclaimed liability on account of not having received notice as required by the policy. Held, That furnishing blanks for proof of loss was not a waiver of the condition providing for notice.</p>

Error from Shawnee district court; Z. T. Hazen, judge. On the 17th day of February, 1891, John D. Knox and Mary D. Knox, his wife, who had been doing business as John D. Knox & Co., being in failing circumstances and insolvent, made a deed of the lots in controversy, belonging to said John D. Knox, in fraud of their creditors, to their minor son, John D. Knox, jr., and on the next day made a general assignment for the benefit of their creditors.

<p>1. Void Tax Deed- — Lien for Taxes Paid — Pendency of Appeal. Where the holder of a tax deed brought suit in the district court of the county in which the land was situated to recover possession thereof, and at the trial his deed was declared void, and said case was then taken by him to the court of appeals upon proceedings in error to reverse the judgment of the court below, but said court affirmed the same, held, that it was not error for the trial court, at the first term after said judgment had been affirmed, to adjudge the repayment of'the taxes, interest, and costs, as provided in paragraph 6996, General Statutes of 1889.</p> <p>2. -Computation of Interest. It was error in such a case ■ to tax interest on the amount of taxes paid at the rate of twenty per cent, per annum to the date of said order. After the rendition of the judgment declaring the tax deed void, interest should have been computed on the amount then due at the rate of six per cent, per annum.</p>

<p>Error from Clay district court; N. B. Spilman, judge.</p>

<p>1. Landlord’s Lien — Terms of Lease. The statutory lien of a landlord upon crops growing or made upon a rented farm is not divested by reason of the following clause inserted in a lease: “«To be paid at the time and from the proceeds of the first sale of the crop of broom-corn that may be raised on said land by said second party.”</p> <p>2. -'Waiver — Question for Court. The waiver of a landlord’s lien is usually a question of fact, but where all of the facts tending to establish the waiver are undisputed their legal sufficiency for that purpose should be determined by the court.</p> <p>3. -Advancements by Third Party — Possession. Where a bank, without «possession, makes advancements to pay for the harvesting of a crop, and secures the same by a chattel mortgage from the tenant, while the crop remains upon the leased premises, no lien is created thereby as against the statutory lien given the landlord.</p>

<p>Lire Insurance — Change of Beneficiary — Equity. Where a holder of a certificate in a mutual benefit society desires to change the beneficiary therein and does all that he is required to do by the laws of the society, and then dies before the change is completed, a court of equity will decree the payment of the money the same as if the desired change had been fully completed in the lifetime of the assured.</p>

<p>1. Contract eor Services — Compensation for Extra Services Rendered. A person employed as housekeeper at an agreed price per week cannot recover from the estate of such employer, who dies during the employment, compensation for services as nurse, in addition to her weekly wages as housekeeper, when it does not appear that any agreement was ever made to pay for such extra services, or that the employer had any knowledge that she expected to charge therefor.</p> <p>2. - Quantum Meruit — Erroneous Instruction. Where the undisputed evidence in the ease was that one of the items sued for was for services rendered upon an express contract, at an agreed rate per week, it was reversible error for the court to instruct the jury, as a matter of law, “that if'you find that the plaintiff did render services for J ames F. Gardner during this time, or any part of it, then she is entitled to recover from the defendant whatever her services, under the evidence, are shown to be fairly worth.”</p>

Error from Mitchell district court; Cyrus Heren, judge. This action was brought in the court below by the defendant in error as plaintiff, against the plaintiff in error and other parties, to recover possession of certain real estate in Mitchell county, as described in the plaintiff’s petition, and was in fact an action brought by the original owner of the land in question to test the validity of a tax deed thereon.

<p>1. Instructions — Boundary Line of Highviay. The issue in this case, tried by the court and a jury, was as to the true boundary line of a highway. Plaintiffs in error asked the court to instruct the jury that the immediate line over which the chain was carried is presumed to be the center of the highway. The court refused to so instruct the jury. Held, Not to be error.</p> <p>2. - Weight of Evidence — Testimony of Vietvers. Plaintiffs in error likewise asked the court to instruct the j ury that the testimony of the viewers as to the boundary of the highway should be given greater weight by them than the testimony of other witnesses who had knowledge of the facts. The court refused to so instruct. Held, Not to be error.</p> <p>3. - General Knoivl edge — Conduct, etc., of Parties., The court in part instructed the jury that they should take into consideration all the evidence, the conduct of the parties in relation to the facts at the time they occurred, their several claims and admissions, if any were made, and that they might likewise bring to their aid such knowledge and experience as they possessed in common with mankind in general. Held, Not to be error.</p> <p>4. Power oe Court— Withdrawal of Juror. A trial court has no authority in law to withdraw a juror during the progress of the trial and continue the trial with the remaining eleven jurors without the consent of all the parties.</p>

<p>Error from Ellsworth district court; W. G. East-land, judge.</p>

<p>1. Practice. — Demurrer Overruled, When. A demurrer to the evidence should never be sustained where there is substantial evidence to sustain every material allegation of the plaintiff’s claim.</p> <p>2. Evidence— Defective Sidewalk — Lapse of Time. Evidence that a visible defect has existed in a sidewalk of a principal street of a city for several months is sufficient to warrant a jury in finding the city negligent in relation thereto.</p> <p>3. Claim eor Damages — Presentment to City Council — Contents. In presenting a bill to a city council for damages occasioned by injuries received on account of a defect in a sidewalk, it is not necessary, to enable the claimant to recover costs in a subsequent action therefor, that such claim specify the various elements of damage; nor is such claimant limited in a subsequent action therefor against the city to the amount of such damage so presented in his claim to the city council.</p>

<p>1. Practice — Action to Enforce Landlord's Lien — Parties. In an action by a landlord to enforce bis rights under the statute giving him a lien on the crop for rent against a purchaser from the tenant, it is not error for the trial court to refuse to make the tenant a party defendant.</p> <p>2. -Application for Continuance — Absent Witness. Defendant asked for a continuance of the trial because of the absence of a witness living in another county, whom the application showed was sick and unable to attend. No effort had been made to procure the deposition of this witness until four days before the trial and after the case was assigned for trial. Held, That it was not error to refuse the continuance.</p> <p>3. -Irregularities During Trial — Not Ground for Reversal, When. A judgment will not necessarily be reversed by reason of an erroneous or irregular proceeding during the trial, where both parties participated therein and are equally at fault.</p> <p>A - Special Findings — Discrepancy in Amounts. Special findings control the general verdict. In one finding the jury found the several amounts of the items of counter-claim set up in the defendant’s answer, in another the aggregate amount allowed him thereon. This aggregate exceeded the sum of the items. The court, in rendering judgment on the special findings, gave the defendant the benefit of the larger amount. This discrepancy in the findings did not make a new tiial necessary on the defendant’s -motion, nor has he any-ground ifor, complaint by reason of this action of the court.</p>

<p>1. Fire Insurance — Forfeiture Clause — Sow Construed. Conditions for the forfeiture of indemnity under a contract of fire insurance, in cases where the insurer retains the premiums and seeks by such conditions to escape liability after a loss has occurred, should be strictly construed against the insurer.</p> <p>2. - Warranty in Application — Incendiarism—Concealment by Insured. In such cases, an answer which alleges that by the contract the insured warranted the truthfulness of his answers in his application as a condition upon which the policy was given, and that in said application the following question was asked: “ Incendiarism — have you any fears that your property is in danger from it ? ” which question plaintiff answered “ No,” and that said answer was false in this: that theretofore an attempt ■ had been made to burn said insured property, which fact was well known to the plaintiff; that because of.such attempt a policy then held by the plaintiff in the Farmers’ Insurance Company, insuring said property, had been taken up and canceled by said company, which facts were concealed from the defendant in making said application; and that by reason of said application and said false statement so contained in said concealment the policy of insurance so issued thereon was void, does not contain allegations sufficient to constitute a defense, and an objection to the introduction of evidence thereunder was rightfully sustained.</p>

<p>Fees and Salaries — Statute not Unconstitutional. Chapter 93 pf the Laws of 1893, entitled “ An act regulating the salaries of the county treasurer, county clerk, register of deeds, county attorney, probate judge, superintendent of public instruction and clerk of the district court of Washington county,” is constitutional.</p>

<p>Error from Cloud district court; F. W. Sturges, judge.</p>

<p>Error from Cloud district court; F. W. Sturges, judge.</p> <p>Plaintiff in error brought suit in the court below upon an undertaking in attachment given in a suit before F. M. Anderson, a justice of the peace, wherein Elias Johnson was plaintiff and J. H. Nixon et al. were defendants.</p> <p>The court made findings of fact and conclusions of law, from which it appears that in the proceedings before Anderson an attachment was issued, and levied upon certain property of the defendant J. H. Nixon. On September 14, 1895, Nixon filed his motion before said justice to discharge the attachment. On September 17 this motion was overruled. On September 18, the return-day of the summons, the case was continued by consent to September 21. On -September 19 the defendant Nixon filed a motion for a change of venue, which was granted, and the case was transferred to W. T. Ransdall, a justice of the peace of Elk township, on September 20, and set for trial before him on September 21, at ten o'clock a. m. On September 20 the defendant Nixon filed with said Ransdall, justice of the peace, a motion for rehearing of the motion to dissolve the attachment, which had been overruled by Anderson.</p> <p>On September 24 parties appeared, and plaintiff filed his objection to the jurisdiction of the justice to review the action of Anderson in overruling said motion. On-September 30 the motion for rehearing and the objections thereto were argued, the motion sustained, and a rehearing set for October 4. On October 4, on the application of the plaintiff, another change of venue was taken, this time to Ira Namsey, a justice of the.peace of Lawrence township, and trial set for October 11. On October 11 the case was again continued, to October 25, when the motion to discharge the attachment was sustained, and the property ordered returned to the person frpm whom it was taken, and the case on its merits continued to December 5, when judgment was entered for plaintiff against the defendant-for $190.85. On March 6, 1896, this action was commenced on the attachment undertaking. The court below held that the proceedings in rehearing the motion to dissolve the .attachment were void, and rendered judgment for the defendants for costs.</p>

<p>Error from Republic district court; F. W. Sturges,. judge.</p>

<p>Taxation— Unequal Assessment — Reme.di/ for. The collection of a tax will not be enjoined on the ground of a merely excessive or unequal assessment where no principle of law is violated in making the assessment and the complaint is of an error of judgment only. In such case the remedy is provided for by statute in the board of equalization.</p>

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

<p>1. Covenant oe Warranty — Restriction upon. A covenant of warranty in a deed of real estate is not restricted by an exception in a preceding covenant against incumbrances.</p> <p>2. Statute oe Limitations — Note and Mortgage. A mortgage given to secure the payment of a promissory note is a mere incident at all times. When the note is barred by the statute of limitations the mortgage is barred. There exists on such mortgage no cause of action independent of the indebtedness.</p>

<p>Garnishment — Chattel Mortgage — Excess Value of Goods. In a proceeding in garnishment by a judgment creditor against a mortgagee of personal property of the debtor, any excess of goods in the mortgagee’s possession over an amount adequate to secure the debt covered by the mortgage and expenses incident thereto may be required by the j udgment of the court to be applied to the payment of the judgment.</p>

<p>Error from Marshall district court; R. B. Spilman, judge.</p>

<p>Error from Republic district court; F. W. Sturges, judge.</p>

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

<p>1. Criminal Law — Violation of City Ordinance — Description of Offense. A complaint charging the violation of a city ordinance which describes the offense in the language of the ordinance is sufficiently definite and certain against a motion to quash.</p> <p>2. -Evidence — Demand, for Election, Premature When. A request made when a witness was called, before he had given any testimony, “ that the court require the prosecution to designate upon which count of the complaint the testimony of the witness is offered,” is prematurely made, and the court did not err in refusing the request.</p> <p>3. -Evidence Examined — Held. Properly Excluded. In a trial for the violation of a city ordinance, certain rejected testimony examined, and held that the court properly excluded the offered evidence.</p> <p>4. -Allowance of Attorney Fee, Held Unauthorized. L. was convicted upon a trial for the violation of ordinance No. 152 of Lincoln Center, a city of the second class. The court assessed as a part of the costs an attorney’s fee of twenty-five dollars for the prosecuting attorney. Held, That the court erred in assessing this fee as costs.</p>

<p>1. Evidence — Witness Incompetent — Effect of Objection. Where the defendant challenges the competency of one of plaintiff’s witnesses upon the theory of the facts as alleged in the petition, this does not amount to such an admission of the truthfulness of the petition as to render proof unnecessary.</p> <p>2. Instruction Held Error — Foot in Issue — Absence of Evidence. It is error for the trial court to instruct the jury that an assignment was made, when that was one of the controverted questions raised by the pleadings, and no evidence was offered thereon.</p>

<p>Criminal Law — Nuisance—Information Verified by Non-resi-dent. Where an information is filed by the county attorney under the provisions of section 39, chapter 101, General Statutes of 1897, but verified by another, it is not error for the trial court to overrule a motion to quash such information because it does not show upon its face that the person who verified it is a citizen of the county.</p>

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

<p>1. Printer’s Pees — Election Law — LAability of County. A county is primarily liable to the printer for the publication of the list of nominations required to be published under the provisions of chapter 78, Laws of 1893, known as the Australian ballot law.</p> <p>2. -- Legal Rates, Properly Charged, When. In the absence of any agreement to the contrary, a printer is entitled to the legal rates for publishing the list of nominations required to be published by the Australian ballot law.</p>

<p>1. Koads and Highways — Petition for Road — Jurisdiction of Commissioners. A. petition for a highway under section 29, chapter 89, General Statutes of 1889, signed by the petitioner interested only, gives the board of county commissioners jurisdiction to act in the premises.</p> <p>2. -Viewers’ Report- — Practicability and Utility. In such case, before the board of county commissioners can approve the viewers’ report and direct the highway to be located and opened, it must appear therefrom that the road proposed is practicable and of public utility.</p> <p>3. -Expense and Costs — Petitioner’s Guarantee, Effect of. The mere fact that the petitioner in such a case has xiromised the board of county commissioners to save the county harmless' from the payment of any cost or damage in any event will not warrant the conclusion that the board intends to proceed in violation of law in the establishment of such highway.</p>

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

<p>1. Suretyship — Construction of Bond — Discharge of Surety. Armstrong, as surety for DeBray, signed a bond to the plaintiff in error, reciting, that plaintiff in error was a New Jersey corporation doing business in the state of Kansas, and that it had employed DeBray as its agent for the transaction of such business as it might entrust to him, and conditioned that he would faithfully perform his duties, account for, pay over and deliver all moneys, credits, notes, leases and other property belonging to it that-might be entrusted to him or come into his possession or control by virtue of that employment, whether under or in the absence of any present or future contract, agreement, or understanding, verbal or written, or any change thereafter therein, with or without notice to the obligors, and repay to it all expenses which it might incur in ascertaining the nature and extent of any default in such conditions. The plaintiff in error, without the knowledge of Armstrong, terminated this employment in Kansas, removed DeBray to Missouri, where he was reemployed under a new contract, and after a lapse of some years returned him to Kansas, employing him at the city of Lawrence therein. Held, That the termination of the contract of employment at Concordia, in the state of Kansas, and the removal of DeBray to the state of Missouri, discharged Armstrong from any obligation upon the bond on account of defaults occurring- thereafter.</p> <p>,2. - Provision for Attorney Fee, Void. A provision in such a bond for the payment of attorney’s fees violates the provisions of section 3896, General Statutes of 1889, and cannot be enforced.</p>

<p>1. Amount in Controversy — Attorney's Fee. The attorney’s fee allowed by a jury in an action against a railroad company for damages for killing stock is a part of the amount in controversy therein.</p> <p>2. Appellate Procedure — Extension of Time — Notice. The law does not require a notice to be served upon the opposite party of an application for an extension of time in which to make and serve a case for review in the appellate courts.</p> <p>3. Evidence — Market Value — Knowledge of Witness. It is error to allow a witness to testify to the value of an animal when it has not been shown that he was acquainted with the value of such animals in that vicinity.</p> <p>I. Instructions — Value—Common Knowledge of Jurors. It is error for a court to instruct a jury that in arriving at a verdict they may take into consideration such knowledge of the value of this class of property as is common to all of them.</p>

<p>Error from Russell district court; W. G. Eastland,. judge.</p>

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

<p>1. Pleading and Practice — Defeat of Parties — Demurrer. A demurrer on account of a “defect of parlies” plaintiff is given by law for a defect and not for an excess or misjoinder of parties. A misjoinder of parties plaintiff is not reached by a demurrer. The petition states a cause of action — but one cause of action; therefore the demurrer was properly overruled.</p> <p>2. - Demurrer Property Overruled, When. The demurrer to the evidence was properly overruled for the reason that the evidence fairly tended to prove all the allegations of the petition and made a prima facie case.</p> <p>3. -Instructions Refused, — Estoppel — Homestead. Instructions requested by plaintiff in error examined, and held, that the court properly refused to give the instructions asked, for the reason (1) that such instructions were not applicable to the facts in the case; (2) that there is no such rule of estoppel as contended for; (3) that the homestead comprises a part of the lands mentioned; the instruction is inapplicable to such portion, and was therefore properly refused.</p> <p>4. -Motion to Strike Out — Immaterial Evidence. The motion of plaintiff in error to strike out evidence should have been sustained; the evidence was immaterial; it could not in any manner affect the substantial interests of either party to the case. The refusal to strike out the same by the trial court does not constitute such error as to require a reversal of the case.</p> <p>5. -Exceptions Unavailable — Inquiry Immaterial. Exceptions will not be available to a party where both plaintiff and defendant participate in the introduction of evidence concerning a controversy which is wholly foreign to the triable issues in the case, and where the whole scope of such inquiry is immaterial, and therefore cannot affect the substantial rights of either party.</p> <p>6. -- - Failure to Designate Portion of Record. Exceptions to the refusal of the court to sustain an objection to evidence, or to strike out improper evidence, will not be considered by this court where the party objecting fails to designate and point out the portion of the record in which such evidence and exceptions can be found.</p> <p>7. -Evidence Examined, Held Sufficient. The evidence examined, and found to very satisfactorily establish that Knoll and his mortgagees are the owners and entitled to the possession of the property in controversy.</p>

<p>Warranty — Liability upon, to Third Person. T. & S. sold to C. a stallion, warranting him to be sound and a sure foal getter, receiving therefor certain promissory notes secured by a mortgage on the stallion sold. C. sold the stallion to K. upon a similar warranty, taking as part pay therefor certain promissory notes of K. payable at the same dates as those given by him to T. & S., and in sums exceeding those given by him. K.’s notes were deposited with T. & S. as collateral security for C.’s notes to them, and the mortgage on the stallion released, T. & S. taking the notes with full knowledge of the warranty under which they were made. Held, That T. & S. are not liable to K. for damages sustained by him under the contract of warranty with O.</p>

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

<p>Homestead Laws — Abandoment of Homestead — Seizure and Sale. Lands entered under the provisions of the United States homestead acts, after they have been abandoned as a homestead, are liable to seizure and sale under proper proceedings in attachment for the satisfaction of debts contracted, by the homestead claimant between the date of final proof and certificate and the issue of the patent.</p>

<p>Error from Elk district court; A. M. Jackson, judge.</p>

<p>1. Practice — Admission of Incompetent Evidence — Error Waived, When. Error in the admission of incompetent evidence-relating to an offer of compromise is waived where it appears that the party alleging such error thereafter voluntarily testified in his-own behalf concerning such offer of compromise.</p> <p>2. Evidence — Agency, Proof of — Instruction. Where the existence of an alleged agency depended upon a large number of facts, it was proper for the court to refuse an instruction to the effect that the relation of principal and agent could arise only out of an express agreement supported by a good and valuable consideration.</p> <p>3. Special Findings — Voluminous Facts — Discretion of Court. Some discretion necessarily rests with the trial judge in respect to the submission of particular questions of fact to a jury; and where it appears from the general nature of the questions refused that-to answer them a statement of numerous facts would be necessary,- and that substantially all of the facts called for by the questions refused were given in answer to other and more specific questions, held, that it was not error to refuse to submit such questions.</p>

<p>Mortgage Foreclosure — Bight of Possession — Rents and Profits. Where a party purchased real estate — a hotel property — ■ subject to a mortgage, and held possession of the property during the entire time of the pendency of the proceedings to foreclose the mortgage, held, that his right of possession was not divested by the sale of the property in such proceedings, but remained until the sale was confirmed and deed issued; and further held, that no right of action for the rentals for the time intervening between the foreclosure sale and the deeding of the property accrue^ to the party purchasing the same at the sheriff’s sale.</p>

<p>Error from Franklin district court; A. W. Benson, judge.</p>

<p>Injunction— General Creditor, Held not Entitled to. Under the allegations of Ms petition, plaintiff is held to have been a general creditor of the city of Cherryvale, and not entitled to a perpetual injunction against the payment of a certain warrant drawn by said city upon its treasurer.</p>

<p>Error from Crawford district court; J. S. West, judge.</p>

<p>Error from Montgomery district court; J. D. McCue, Judge.</p>

Error from Cherokee district court; J. D. McCue, judge. In this case the Geo. T. Webb Grocery Company sued James P. Archer and the Long-Bell Lumber Company to recover damages for the alleged conversion of per•sonal property. Other defendants were joined, under an allegation that they claimed some interest in the property converted and in the proceeds thereof.

<p>1. Appellate Jurisdiction — Statement in Record. A statement in a ease-made that “the amount involved herein in this suit and the matters in controversy exceeds the sum or value of §1000, exclusive of interest and costs,” is sufficient to confer jurisdiction.</p> <p>2. Void Tax Deed — Insufficient Description — Granting Clause. “A tax deed is void upon its face if -it fails to state, by description, acres, or otherwise, the property bid for at the tax sale, and the granting clause of the deed fails to cure or supply such defect. In such a case, the description of the land purporting to have been bid off at the tax sale and conveyed in a tax deed is not sufficiently specific or definite, and, therefore, is not designated with ‘ ordinary and reasonable certainty. ” ’ (McDonough v. Merten, 53 Kan. 120.)</p>

<p>1. Evidence — Examined. The evidence examined, and held to sustain the general verdict.</p> <p>2. Instructions — Defective—Immaterial Error, When. Where an instruction relating to the verdict in a replevin action is defective, but the Jury returns a correct verdict, the error is immaterial.</p>

<p>Criminal Law — Defective Complaint — Motion to Quash. A complaint which, is not sworn to positively is defectivo, and when the defendant refuses to plead or to voluntarily submit his person to the jurisdiction of the trial court, his motion to quash the complaint and set aside the warrant should be sustained.</p>

H. Skid-more, judge. In this action, W. H. Pierce, agent of one Reuben Gaston, was charged with unlawfully and feloniously neglecting and refusing to pay to his employer, Reuben Gaston, on demand, certain moneys and other things of value which came into his jiossession by virtue of such employment, after deducting his reasonable and stipulated charges and commissions for his services as such' agent. Pierce was convicted and appealed to this court.

<p>1. Criminal Law — Keeping Clubrooms — Valid Statute. Section 42, chapter 101, General Statutes of 1897, has been upheld by the sujireme court in The State v. Chandler, 31 Kan. 201, and by this court in The State v. Webb, post, and we again affirm the decision.</p> <p>2. - - Security /or Good Behavior — Bond. Where the trial court sentences a defendant to give security for good behavior, under section 42, chapter 101, General Statutes of 1897, it is proper to adjudge that he give a bond.</p> <p>3. - Conviction — Plea of Guilty. A defendant who pleads guilty to a charge is “ convicted” of said charge by his own plea.</p>

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

<p>Constitutional Law — Police Power — “ Screen Law” not Unconstitutional. Chapter 188, Laws of 1883, entitled “An act to regulate the weighing of coal at the mine,” held valid, and not in conflict with the constitution of the state or the United States.</p>

<p>1. Practice — Amendment—Trial Theory — Assignment and Subrogation. Where the plaintiff, while a motion to make the petition more definite and certain was pending, under leave of the court, struck out, voluntarily, from its petition an allegation as to subrogation, and where the case was thereafter tried as upon a direct written assignment of the cause of action, held, that the question as to the right of subrogation is eliminated and cannot be considered in this court.</p> <p>2. - Tort — Fire Damage — Non-Assignable Cause of Action,. “Under our statutes, a right of action against a party for negligently and wrongfully destroying property by fire is not assignable.” (/T. M. Fly. Co. v. Brehm, 51 Kan. 751.)</p>

<p>Evidence, Examined — Instruction Approved. The evidence examined; held, that the withdrawal of the same from the consideration of the jury was not error.</p>

<p>Dedication — Grants and Gifts — Doctrine of Cy-pres. The doctrine of cy-pres applications of grants and gifts, as recognized and made the basis of the decision in Com.m'rs of Miami Co. v. Wilgus, 42 Kan. 457, is followed in the present case, and it is held, that a dedication of a block of land in the city of Fort Scott, by the filing of a plat whereon the block was designated as “University Square,” in connection with other facts set forth in the record, vested the title of the land in the board of education of that city.</p>

<p>Void Deed oe Assignment— Unverified Schedule — Chattel Mortgage. Where a deed of assignment by an insolvent debtor for the benefit of his creditors was duly executed, delivered, and filed for record, and where at the same time a schedule of the assign- or’s liabilities was filed with the clerk of the district court, and such schedule was unverified and remained for sixty days thereafter unverified, held, that the deed of assignment was inoperative as against the holder of an unrecorded chattel mortgage who • began an action of replevin against the assignor and assignee jointly within three days after the filing of the deed.</p>

<p>Error from Anderson district court; A. W. Benson, judge.</p>

<p>Practice — Request for Written Instructions — Duty of Court. Where.there is no rule of court fixing the time, a request made for written instructions, when the evidence is concluded, is sufficient to require the trial court to instruct the jury in writing.</p>

<p>Homestead — Sale of Husband’s Interest in. A judgment against a husband only, rendered upon the foreclosure of a mechanic’s lien against the homestead, is not void as to the husband’s interest in said homestead.</p>

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

<p>Practice — Necessary Party — Voluntary Appearance. Where an action is regularly pending in the district court, and a necessary party to the full determination of the matters in controversy has been made a party defendant and has been duly served or enters his voluntary appearance in said action, the court errs in sustaining a motion to dismiss the action as to said defendant.</p>

<p>Error from Cherokee district court; J. D. McCue, judge.</p>

<p>1. Instructions — Law of the Case. When no objection is made to an instruction it must be taken as the law of the case.</p> <p>2. Burden oe Prooe — Absence of Employees. The burden of proof is upon the plaintiff to show that the employees were absent , from their place of duty.</p> <p>3. Contributory Negligence — Reasonable Use of Eyesight and Searing. When the jury find that if the deceased had made a reasonable use of his eyesight and hearing he could have seen the engine and car, and could have escaped injury had he discovered it in time, held, that this is such a finding of contributory negligence as precludes a recovery.</p>

<p>Error from Chautauqua district court; A. M. Jackson, judge.</p>

<p>1. Appeal — Final Order — Interplea. The judgment of a justice of the peace against an interpleader who claims a fund garnished is a final judgment against one of the parties to an action, and is appealable.</p> <p>2. Garnishment — Order of Court — Personal Judgment. When the record shows that a garnishee has paid money to the justice of the peace, and upon appeal the district court makes the following order: “That the $225 fund paid into the hands of C. L. Bobbins, justice of the peace, in this cause, be paid to the clerk of this court, and held by him during said sixty days, and then paid to said intervenor, unless the judgment herein be duly superseded, in which event he shall hold said fund until the further order of this court,” it is error for the court to render a personal judgment against the plaintiff for the garnished fund.</p>

<p>Appellate Procedure — Necessary Parties. Great Western Mfg. Co. v. Richardson, 57 Kan. 661, cited and followed. ■</p>

<p>1. Practice — Joint Plaintiffs — Insurer and Insured. An in-' surer may join with the insured as plaintiff to recover for the loss of property negligently destroyed by fire.</p> <p>2. - Subrogation, Extent of — Insurance. When an insurance company has paid a loss under a valid and binding policy, it can, in an action against the person who negligently destroyed such property, be subrogated to the rights of the insured in the judgment rendered against such person, but only to the amount which it has paid to the insured.</p> <p>3. -Assignment of Bight of Action for Tort. The cases of K. M. Bly. Co. v. Brehm, 54 Kan. 751, and A. T. & S. P. Bid. Co. v. Chenoioeth, 5 Kan. App. 810, cited and followed.</p>

<p>Indian Lands —Effect of Approval of Deed. When land held by a member of the Kaskaskia, Peoria, Piankeshaw and Wea tribes of Indians under a patent restricting his right to convey the same unless the conveyance is approved by the secretary of the interior, is by the jiatentee, with such approval, conveyed to another member of said tribes, such approved conveyance divests the title of the United States therein and places the title outside of the restrictions imposed upon the sale of Indian lands.</p>

Error from Osage district court; William Thomson, judge. This was an action for conversion begun in the district court of Osage county by the defendant in error,. Meyer Brothers Drug Company, against M. L. Campbell, the plaintiff in error. The plaintiff below set up two defenses : (1) A general denial; (2) estoppel. The court instructed the jury to find for the plaintiff.

<p>1. Pleading and Pbactice — Elements of Damage, Sufficiently Stated. The petition set forth, and held, that it is sufficient, as against a motion to require the pleader to fully state all the elements of damage which he expected to clairfi..</p> <p>2. -Condemnation Proceedings — Appeal—Discretion of Court. Where condemnation proceedings are regular, and appealed by the landowner to the district court, the filing of pleadings rests wholly within the judicial discretion of the trial court.</p> <p>3. - Specific Facts — Liberal Construction. The rule of law requiring the specific facts constituting the fraud, cruelty or the negligence to be stated should be liberally construed when applied to pleadings filed on appeal in condemnation proceedings.</p> <p>4. - Special Findings Examined. The special findings examined, and held, to be in harmony with the general verdict.</p>

<p>Condemnation Proceedings — Computation of Damages — Remission of Improper Items. Where it appears that certain specific items of damages are inadvertently included in a general verdict, and where, from the evidence and findings, the trial court can, from mathematical computation, arrive at a just award, it is not error for the trial court, with the consent of the plaintiff, to order a remission of the excess in the amount of the items erroneously included in the general verdict.</p>

<p>1. Corporations — Payment of Wages of Employees. Chapter 145, Laws of 1897, entitled “An act to secure to laborers and others the payment of their wages, and prescribing a penalty for the violation of this act, and repealing sections 2441, 2442 and 2443 of the General Statutes of 1889 and all acts and parts of acts in conflict herewith,” is held to apply only to corporations and trusts that severally employ ten or more persons.</p> <p>2. Constitutional Law — Title of Aet — One Subject. The title of said act is held not to be in conflict with the first clause of section 16, article 2, of the state constitution, which provides that no bill shall contain more than one subject, which shall be clearly expressed in its title.</p> <p>3. -Laws of General Nature — -Uniform Operation. Said act is not in conflict with section 17, article 2, of the state constitution, which reads: “All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable no special law shall be enacted.”</p> <p>4. -Due Process of Law — Natural Sights. Said act is held not to be repugnant to the provisions of section 1 of the fourteenth amendment to the constitution of the United States, nor to those of section 1 of the bill of rights of the state constitution.</p> <p>5. -- Corporate Charters — Legislative Authority to Amend. Said act is held constitutional as a valid exercise of legislative authority to alter and amend corporate charters.</p>

<p>Action por Conversion — Record Examined — No Material Error. No material error prejudicial to the substantial rights of the plaintiff in error is shown by the record to have been committed in this action.</p>

<p>Error from Sedgwick court of common pleas ; Jacob M. Balderston, judge.</p>

<p>Error from Sedgwick district court; C. Reed, judge.</p>

<p>Error from Harper district court; G. W. McKay, judge.</p>

<p>1. Practice — Consolidation of Cases — Discretion of Court. A trial court has some discretion in the matter of consolidating cases under section 145 of the civil code, and its action in overruling a motion to consolidate will not be reversed in the absence of a clear showing of abuse of discretion.</p> <p>2. -Expert Testimony — Immaterial Error. Where, over the objection of defendant, expert evidence was received on behalf . of plaintiff as to a matter concerning which no direct testimony : was offered, and where the special findings of the jury show that their verdict was not affected by such expert evidence, the error is immaterial.</p> <p>¿5. Railroads — Killing of Stock — Written Demand. The written demand required by paragraph 1253 of the General Statutes ■' of 1889 (Gen. Stat., 1897, ch. 70, § 24) to be given to a railroad company prior to commencing an action against it for the killing of stock need not specify the particular breach of statutory duty on the part of such company which might be relied on as fixing its liability.</p>

<p>Error from Kingman district court; W. O. Bashore, judge.</p>

<p>1. Special Findings, Examined. The special findings set forth; held, consistent with the general verdict.</p> <p>2. Negligence — Infant, not Trespasser. Negligence cannot 'be attributed to a child of the age of two years and four months; neither is a child of this age, in going upon a railroad track, such a trespasser as to forfeit redress from injury resulting from the negligence of the railroad company.</p> <p>3. -Railroad — Duty of Engineer. The duty of an engineer in charge of a passenger-train,-when he discovers an object upon the track, the nature of which he does not understand, is, if possible, to bring his train under control, until the nature of the object is known, that he-may be able to stop, if necessary, to prevent injury. . , ,</p>

<p>Error from McPherson district court; Lucien Earle, judge.</p>

Error from Cowley district court; M. G. Troup, judge. In October, 1889, Warren & Irby were the owners of 1225 head of cattle located upon Beach & Feagins’ ranch in' the Kaw reservation, I. T., and were offering them for sale. Beach & Feagins wanted to buy them but did not have the money.

Error from Kingman district court; -W. O. Bash ore, judge. At a sheriff’s sale on April 18, 1892, Condon, the plaintiff in error and mortgagee, purchased the mortgaged land for $100, subject to a first, mortgage of $1500, the amount due at that date on his judgment being $167.50, and Ms mortgage being a second lien on the premises.

<p>Appellate Practice — Presumption as to Instructions. Where the instructions of the trial court are not contained in the record, it will be presumed that the jury was properly instructed upon all matters necessary for their determination.</p>

<p>Error from Kingman district court; S. W. Leslie, judge.</p>

Error from Lvon district court; Charles B. Graves, judge. Petition for injunction to restrain the defendants from constructing and opening a proposed outlet for the' sewerage system of the city of Empória. A demurrer thereto,, on the ground that it failed to state a cause of action, having been sustained, the plaintiff brings proceedings in error.

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

<p>1. Contributory Negligence — Refusal to Instruct. Where, in an action for damages occasioned by the alleged negligence of the employees of a railroad company in causipg an engine to collide with a team and wagon at a crossing, the defense .was the contributory negligence of the driver of the team in failing to use due precaution in looking and listening before going upon the railroad ; and where the evidence showed that the crossing was peculiarly dangerous, under the circumstances of the case, and that the driver did not know the engine was approaching until he was within less than fifteen feet of the crossing: Held, Error to refuse an instruction to the effect that it was the duty .of the driver to exercise such precaution before going upon the crossing.</p> <p>2. -- Proximate Cause of Injury — Erroneous Instruction. Where the negligence, if any, of the driver of the team proximately contributed to the injury complained of, held, error for the court to conclude an instruction as to contributory negligence of the driver with the language, “ unless you further find that the negligence of the plaintiff or his employee was slight and did not contribute directly to the injury complained of, in which event your verdict should be for the plaintiff.” (C. K. & W. Rld. Co. v. Prouty, 55 Kan. 504.)</p>

Error from Lyon district court; Charles R. Graves, judge. Attachment action in the district court of Lyon county by William Donifelser, as executor of the es-' tate of Frederick Donifelser, deceased, against Catharine C. Heyl, as executrix of the estate of Michael Heyl, deceased, upon a promissory note executed by decedent and defendant. Service by publication, both parties being residents of the state of Illinois.

<p>Error from Kingman district court; W. O. Bashore, judge.</p>

Error from Reno district court; F. L. Martin, judge. This replevin action was commenced on November 28, 1890, by Nannie J. Johnson against J. W. Jones, as sheriff of Reno county, to recover the possession of 600 bushels of corn, which the sheriff had seized ten days previously under three executions, upon judgments rendered against the firm of Constant & Johnson, Johnson being the husband of plaintiff.

Error from Lyon district court-; W. A. Randolph, judge. The plaintiffs in error consist of the board of education of the city of Emporia, the individual members thereof, and its clerk and treasurer.

<p>Replevin — Possession of Property — Estoppel by Execution of Redelivery. Bond. “By executing a redelivery bond in a replevin action and procuring a return of the property thereunder, the defendant is estopped from denying his possession of the property at the commencement of the action.” (Jordan v. Johnson, 1 Kan. App. 657.)</p>

<p>1. Practice — Demurrer to Evidence — Duty of Court. “Upon a demurrer to evidence, the court cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer. ” (Wolf v. Washer, 32 Kan. 533.)</p> <p>2. - Admission of Incompetent Testimony — Error Cured by Instructions. The incompetent evidence admitted and the instructions of the court relating thereto examined. Held, That the admission of the testimony was not prejudicial to the rights of plaintiff in error.</p> <p>3. - Verdict Supported by Competent Evidence not Disturbed. Where there is competent evidence which, fairly and reasonably considered, supports the verdict, it will not be disturbed.</p>

<p>,1. Agency— Conflicting Evidence — Finding of Jury. Where the substantial issue in an action for the recovery of a commission for a sale of real estate was as to the existence of an agency to list and place the land with a real-estate broker for saje at a net price to the owner, and where the evidence was conflicting concerning such issue, held, that the question was for the jury, and that its general verdict in favor of the party having the affirmative of the issue was a sufficient finding that such agency did in fact exist.</p> <p>2.'- Commission on Sale of Beal Estate — Priority of Bight. Where the same land was listed for sale with two real-estate firms, the one which first entered into a written contract for the sale of the property and received part payment of the purchase price from a party financially responsible was entitled to compensation for making such sale, notwithstanding the other firm first procured a conveyance from the owner in compliance with a verbal agreement made by such firm with the grantee in such conveyance.</p>

<p>Oase-jiade — Defective Certificate. In a certificate appended to a case-made it was stated that the ease-made was presented to the judge for settlement, and that it was considered by him, but it failed affirmatively to state or show that he had settled it. Ifeld, That the certificate is insufficient and the case-made invalid. (¿fudge v. National Bank, 56 Kan. 353.)</p>

<p>Appellate Jurisdiction — Amount in Controversy. Where it affirmatively appears from an examination of the record that the amount or value in controversy, exclusive of costs, and for which judgment could have been legally rendered in the court below, does not exceed 8100, the case will be dismissed.</p>

<p>1. Chattel Mortgage — Insufficient Description of Property. A description in a chattel mortgage that fails to state where the mortgagor or mortgagee reside, in what state or county the property is located, or in what county the mortgage is recorded, is of itself insufficient.</p> <p>2. -Bequisites of Good Description. The property mortgaged should be described with such particularity that a third • party could, aided by the description, together with such inquiries as the mortgage itself suggests, identify it.</p> <p>3. -Actual Notice by Subsequent Mortgagee. Where a description in a .chattel mortgage is insufficient, proof that a subsequent mortgagee had actual notice is material.</p>

<p>Error from Butler district court; C. W. Si-iinn, judge.</p>

<p>Promissory Note — Negotiability not Affected. The negotiability of a promissory note is held not to have been destroyed by the addition of the following statement: “This note is given for certain labor and goods and material furnished in the erection of an improvement upon my real property, in the nature of a windmill and attachments, by the payee, pursuant to previous written order in that behalf; and the execution, delivery and acceptance of this note shall not in any way or manner be deemed a waiver of any lien the Phelps & Bigelow Windmill Company may have, therefor upon said real property in said written order described.</p>

<p>Liability op Township — Defeat in Highway. The petition examined, and held to state a cause of action.</p>

<p>Practtce — Excessive Verdict — Duty of Court. Where the trial court finds that the verdict is excessive and not sustained by the evidence, and that such excess is not due to inadvertence, error of law, misapprehension of the facts, or error in computation by the jury, the verdict should be set aside and a new trial granted.</p>

<p>Practice — Revivor— Condemnation Proceedings. When an appellant in a condemnation proceeding dies while the action is pending in the district court and the action is revived in the name of a person, such person must allege and prove that he is the proper person to maintain or defend the action.</p>

<p>1. Practice — Case-made—By Whom tobe Settled. A case-made must be settled by the judge who tried the cause.</p> <p>2. -Demurrer to Evidence — Succeeding J-udge. A judge who succeeds the judge who tried a cause is competent to pass upon a demurrer to the evidence introduced in said cause when requested to do so by the parties, and when furnished with what is agreed by the parties to be a correct copy of the evidence.</p>

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

<p>Error from Marion district 'court; Lucien Earle, judge.</p>

<p>Appellate Practice — Defective Decord. .The record contains no ruling upon the motion for a new trial and no copy of the journal entry of judgment, and we cannot'pass upon the errors set out in the petition in error.</p>

<p>Error from Sedgwick district Gourt; C. Reed, judge.</p>

<p>Practice — Sheriff’s Sale — Revivor Unnecessary, When. Where an order of sale has been issued upon a judgment and the real estate sold thereunder by the sheriff prior to the death of one of the judgment debtors, it is unnecessary to revive the action or the judgment before the confirmation of the sheriff’s sale or the execution of the sheriff’s deed.</p>

<p>Agency — Commission on Sale of Real Estate — Evidence Insufficient. The evidence examined. Held, That the employment between the parties on which defendants in error base their right to relief is not shown; and further held, that the plaintiff in error did not knowingly accept the fruits of their labor.</p>

<p>Error from Harvey district court; F. L. Martin, judge.</p>

<p>Error from Barber district court; G. W. McKay, judge.</p>

<p>1. Evidence — Injury by Defective Sidewalk — No Error. The incompetent testimony set forth: Held, That the refusal of the trial court to strike it out, all the testimony of the witness con- ■ sidered, is not such error as to require a reversal of the case.</p> <p>2. '•-- Expense for Medical Service — Implied Promise to Pay. The actual, reasonable and necessary expense incurred for medical services is a proper item of damage, in a suit against a city to recover ior personal injury. The law implies a promise to pay the same and it may be recovered, even though actual payment thereof was not made prior to the commencement of the action.</p> <p>13. - Sufficient — Demurrer Properly Overruled. The record examined; the petition states a cause of action. There is some competent testimony tending to prove the essential facts necessary to a recovery under'the petition. Held, That the overruling of the demurrer to plaintiff’s evidence was not error.</p> <p>4. Action against City — Presentment of Claim — Costs. Where a person presents a claim to a city for damages resulting from its negligence, for $250, and no action is taken by the city council, and afterwards suit is commenced to recover $10,000 by the same person for the same items of damage included in the bill, held, that it is no violation of section 67, chapter 37, General Statutes of 1897, for the trial court to render judgment against the city for costs.</p>

<p>1. Practice — Remittitur—Separable Pa?'ts of Controversy. Where an instruction was unquestionably correct, and in obeying it the jury were bound to return and did return a verdict in plaintiff’s favor as to one of two separable parts of the matter in controversy, it was reversible error for the trial court to set aside the Verdict as a whole, on account of the refusal of the plaintiff to remit that part of the verdict not affected by such instruction.</p> <p>2. Erroneous Instructions — Presumption Concerning, by Appellate Court. Where an issue of fraud and collusion between the execution debtor and the execution creditor was not raised by the pleadings but was submitted to the jury by the court in its instructions, the appellate court will presume, in support of the action of the trial court in requiring plaintiff to remit the portion of the verdict which was based upon such instructions, that the court’s action resulted from its recognition of the error in such instructions.</p>

<p>Habeas Corpus — Plea of Former Jeopardy. The question of former jeopardy on the part of the petitioner cannot be inquired into in habeas eorpus proceedings, but such plea must be presented and tried in the court having jurisdiction to try the petitioner on the charge for which hé stands committed.</p>

<p>Error from Pratt district court; W. O. Bashore, judge.</p>

<p>Error from Hamilton district court; A. J. Abbott, judge.</p>

<p>Error from Kiowa district court; W. O. Bashore, judge.</p>

<p>Chattel Mortgage — A uthorizcd Sale of Property by Mortgagor — Application of Proceeds. The holder of a first chattel mortgage, which entitles him to possession, may sell or authorize the mortgagor to sell the property mortgaged, or a part of same, and vest title thereto in the purchaser; but the law will, as against a second mortgagee, apply the proceeds of such sale to the payment of the first mortgage.</p>

<p>1. Pleading and Practice — Demurrer, How Considered. A demurrer to the evidence must be viewed in the light most favorable to the plaintiff and all reasonable inferences must be allowed in his favor, and unless all the testimony offered fails to establish his case or some material fact in issue, the demurrer should be overruled. (Croll v. Railroad Co., 57 Kan. 548.) ■</p> <p>2. -Injuries from Defective Highway — Contributory Negligence — Burden of Proof. “The plaintiff, in an action to recover damages under this statute (Gen. Stat. 1897, ch. 42, §48), must allege and prove that the injuries were sustained without contributory negligence on his part, and if the defendant deny the allegations of the petition, the burden of proof [of the absence] of contributory negligence is on the plaintiff; but where the defendant in its answer denies all the allegations of the petition, and then pleads contributory negligence on the part of the plaintiff, and sets out certain particular acts of the plaintiff, and alleges that by reason of such acts the plaintiff was injured, the burden of proving such fact is thrown upon the defendant. (Falls Township v. Stewart, 3 Kan. App. 403.)</p> <p>3. -Instructions Considered. The instructions contained in the record considered, together with the instructions complained of; and held, that they fully state the law applicable to ■ the issue and the material facts to be determined by the jury.</p>

<p>1. Practice — Contesting Judgment — General Appear anee. “A general appearance to contest a judgment on account of irregularities will, if the grounds therefor are not sustained, conclude the parties as to any further questioning of the judgment.” (Burdette v. Corgan, 26 Kan. 102.)</p> <p>2. - Voluntary Appear anee — Waiver of Err or. Whereby-the court’s order one is made a party to an action, and no proper summons is served upon him, his voluntary appearance in such action waives any error in the order making him a party and all objection to the summons.</p> <p>3. -In Appellate Court — Lack of Authority to Appear Where the record fails to show that the plaintiff in error, which had for itself disclaimed any interest in the action, was legally authorized to appear for an administrator of the estate, who was alleged to be the real party interested, the petition in error should be dismissed.</p>

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

<p>Taxation — Statute of Limitations — Erroneous Tax Certificates. Where tax certificates are so erroneous or irregular on their face as to be absolutely void, or where the tax proceedings in the public offices show clearly that the tax certificates, on account of fatal errors or irregularities in the tax proceedings, are void, in order to obtain a return of the taxes, interest, etc., the purchaser of such certificates must present them to the board of county commissioners within three years after the date of their issuance; but where such certificates are so presented and payment is refused within the time stated, the right to recover thereon is not barred where the action therefor was commenced less than four years after the date of such certificates.</p>

<p>Error from Ness district court; J. E. Andrews, judge.</p> <p>This action was commenced by the defendant in error as plaintiff, to recover the sum of $861.30 and an equal amount as a penalty under section 1658, General Statutes of 1889, it being alleged that the defendant, Merrill, had unlawfully received that sum from the treasury of Ness county. Merrill’s claim upon which the payment had been made originated in connection with refunding the outstanding warrants of Ness county and the issuing of bonds to the amount of $30,000 in exchange therefor, he having acted as the agent of the commissioners and of the county in the transaction. The claim consisted of several items, one being for commission based' upon the sale of the bonds. A warrant for $909.25 ivas issued to Merrill and was paid a year later, it having been presented for payment by the Ness County Bank. On the trial the plaintiff withdrew its claim as to certain items) and the court instructed the jury to return a verdict for plaintiff for $750. Upon this verdict a judgment for $750, and for a like amount as a penalty, was rendered. '</p> <p>The answer contained several grounds of defense, one being the statute of limitations and another a plea of res adjudicata. The evidence in support of this latter ground consisted of the files of case No. 1105 of the district'court of Ness county, in which the board of county commissioners was plaintiff and Merrill and the Ness County Bank were defendants. The cause of action in that case was the same as in this case. The defendants'demurred to that petition upon these grounds : Failure to state a cause of action; misjoinder of parties defendant; misjoinder of causes of action, and defect of parties defendant. At the May, 1891, term this demurrer was sustained, the journal entry reciting:</p> <p>“And now, to wit, on this-day of May, 1891, comes the above-entitled action to be heard on demurrer filed herein, upon the grounds : (1) That the petition does not state a cause of action ; (2) that there is a misjoinder of. parties defendant; (3) that there is a misjoinder of causes of action by the defendants (plaintiffs) herein. And the court, being duly advised in the premises by the argument of counsel thereon, doth find the grounds of said demurrer of said defendants to be true and doth sustain the same ; and thereupon the plaintiff asks leave of court to file an amended petition herein.</p> <p>“It is therefore ordei'ed, considered and adjudged by the court that said demurrer be and the saxxxe is hereby sxxstained, and that plaintiff have sixty days in which to file an amended petition herein.”</p> <p>A jourxial entry of the September, 1891, tex-m of court is as follows :</p> <p>“Now on this 22nd day of September, 1891, being the day of the regular September, 1891, term of said court, comes said above-entitled action to be heard on motion of defendant, N. O. Merrill, for judgment for costs. . . . And if appearing to the court that the plaintiff failed to file an amended petition in said action as to defendant, N. C. Merrill, under decree of court heretofore granted, and that his demurrer to the original petition has been sustained :</p> <p>“It is therefore ordered, considered and adjudged that defendant, N. O. Merrill, have and recover of and from said plaintiff herein his separate costs herein, taxed at-, and that said defendant go hence without day.”</p> <p>The plaintiff filed an amended petition, and a second amended petition against the Ness County Bank alone, the allegations of both of the latter being practically identical with those of the original petition. The bank filed its answer to the second amended petition, and on February 4, 1892, at the January term of court, a jury was impaneled to try the issues thus joined. After the introduction of evidence had commenced, the plaintiff, with leave of the court, dismissed the action without prejudice. This suit was begun on February 20, 1892.</p>

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

<p>1. County and School-District Warrants — Priority of Payment. Chapter 50, General Statutes of 1897, is constitutional and controlling as to the priority of payment of county and school-district warrants by county treasurer.</p> <p>2. - Payment of Taxes with. Receiving a warrant in payment of taxes is payment of the warrant, within the meaning of said statutes.</p>

<p>Error from Barton district court; J. PI. Bailey, judge.</p>

<p>Error from Edwards district court'; S. W. Yandivert, judge.</p>

<p>1. 'Pleading and Practice — Verification of Denial. Each, of the reasons given in section 114 of the code is sufficient within itself to authorize an agent or attorney to verify the denial provided for by section 108 of the code, and is entirely independent of any of the other reasons given in said section 114.</p> <p>2. - -Non-residence of Party — Affidavit of Agent or A ttorney. An affidavit which states that the affiant is attorney for a defendant who is a non-resident or absent from the county, and that affiant is informed and believes that the allegations of the answer are true, is sufficiently verified to meet the requirements of sections 108, 111 and 114 of the code.</p>

<p>1. Pleading and Practice — Issue Raised by Petition — Burden of Proof. When the plaintiff raises an issue of negligence in the petition he must establish the issue by proof, although the issue be properly a matter of defense.</p> <p>2. Railroad — Pire Damage —Negligence of Employees. Where the employees of a railroad company, on a very windy day, set out a fire fifty feet toward the wind from a plowed guard three or four feet wide, the court cannot say as a matter of law that they are not guilty of negligence.</p> <p>3.--Distance of Property from Railroad — Conduct of Plaintiff. It is not negligence per se for the plaintiff to shock his wheat in the field where it is cut nor to fail to make fireguards around such field which is one and a half miles from the railroad. It is not negligence per se for the plaintiff to stack his grain upon his premises two -and a half miles from the railroad nor to fail to make a fire-guard around the stacks the next day after they are completed.</p>

<p>1. Pleading — Mandamus — Levy of Tax at Maximum Mate. Where a peremptory writ of mandamus commanding a board of county commissioners to make a special tax levy for the payment of a judgment obtained against the county upon its registered warrants was sought, and where the alternative writ and the appli. cation therefor did not aver that the defendants had at any time failed, or would fail, to make a levy for current county expenses at the maximum rate allowed by law, such writ and application are fatally defective.</p> <p>2. Judgment against County — Continuing Obligation — One Tax Levy Insufficient. The obligation of a county to pay a judgment duly recovered against it upon its unpaid warrants is a continuing obligation, and is not satisfied by a tax levy which, if all paid, would be sufficient to discharge the judgment, where it appears that less than one-half of such judgment has been actually paid from the proceeds of such levy.</p> <p>3. -Tux Levy — Process of Collection. A tax levy cannot properly be regarded as in process of collection after the sale of real property for the taxes delinquent under such levy has taken place and the funds received from such sale have been distributed according to law.</p> <p>4. -Special Levy Impracticable — Order of Payment. Notwithstanding a judgment has been recovered against a county upon its registered warrants, the amounts due thereon are properly payable in the same order as if such warrants had not been reduced to a judgment out of county funds available for the payment of registered warrants, where it appears that a special levy cannot be legally made for the payment of such judgment.</p>

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

<p>Pleading and Practice — Separate Bailments — Misjoinder of Parties. Where the evidence on behalf of plaintiffs, who sought to recovera joint judgment for conversion of wheatstoredby them, severally, in an elevator, tended to prove separate bailments only and not sales of the grain, it was error to overrule a demurrer to such evidence on the ground of misjoinder of parties plaintiff and of causes of action.</p>

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

<p>Pleading and Practice — Compulsory Reference. The issues raised by the pleadings in this ease do not come within the provisions of section 292 of the code, authorizing a compulsory reference.</p>

<p>Error from Finney district court; A. J. Abbott, judge.</p>

<p>Joint Toet^eeasoes — Question of Fact — Finding of Jury Conclusive. Where a recovery was sought against two parties jointly for damages resulting from a fire which originated from the act of one of the parties while they were together engaged in unlawfully hunting, held., that the question of their codperation in the immediate act which caused the fire was properly submitted to the jury for its determination, and that its verdict, being supported by some evidence and approved by the trial court, is conclusive in this court.</p>

<p>County Commissioners — Lease of Building for Court-house— Invalid Warrants. Under the facts in this case, it is held that the acts of a board of county commissioners in entering into a thirty-year lease of a building to be used as.a court-house and in . issuing county warrants in payment of the rental thereof in advance were invalid and the lease and warrants void.</p>

<p>Mortgage Foreclosure — Tax-certificate Solder — Effect of Judgment. Where the owner and holder of a mortgage and tax-sale certificate is made defendant in a foreclosure proceeding and he files an answer and cross-petition setting up his mortgage, but makes no claim for taxes, he cannot, after a judgment in foreclosure has been rendered, maintain an action in ejectment, based upon a tax deed, to recover the possession of the land sold under foreclosure proceedings.</p>

<p>Error from Pratt district court; W. O. Bashore, judge.</p>

<p>1. Jurisdiction of District CouH — Appeal from Decision of Assignee. Upon an appeal to the district court from the decision of an assignee, the jurisdiction of the district court is appellate only.</p> <p>2. Assignee — Powers of — Statutory Officer. An assignee is a statutory officer, having no powers except such as are expressly derived from the statutes.</p> <p>3. -Allowance of Claims — Frauds between Creditors. An assignee has no power to disallow a valid claim against the assignor for the reason that the owner of the claim has committed a fraud upon another creditor. Neither has he the power to allow the claim and pay to the defrauded creditor the sum demanded by him. He has no equitable jurisdiction.</p>

<p>Error from Kearny district court; A. J. Abbott, judge.</p> <p>Affirmed.</p>

<p>1. National Banks — Powers of, under Certain Conditions. Conditions may arise under which national banks may purchase wheat.</p> <p>2. 'Appellate Practice — Contents of Record — Demurrer to Evidence. We cannot pass upon a demurrer to evidence unless the evidence is all contained in the record. We can only pass upon matters contained in the record.</p> <p>3. Bill op Particulars, Examined. The allegations of the bill of particulars in this case do not sustain the amount of the judg ment or the rate of interest inserted therein.</p>

<p>1. Statute oe Frauds — Parol Lease Exceeding One Year. The-evidence complained of setforth: Held, That its introduction was not error.</p> <p>2. -Lasting Improvements by Tenant. The special findings complained of set forth: Held, That the overruling of plaintiff’s motion for judgment thereon was not error.</p>

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

<p>Agency Coupled with Intebest — Derivation from Same Source. To constitute an agency coupled with an interest, both agency and interest must be derived from the same source.</p>

<p>1. School Districts — Poivers of Officers — Purchase of Supplies. Where the officers of a school district purchase school furniture and goods and issue a warrant in payment therefor, the owner of the warrant is not required to allege that the furniture and goods were such as the board was authorized to purchase. If the board were not authorized to purchase the articles, this would be a good defense against the warrant, but the burden of alleging and proving the fact is upon the defendant.</p> <p>2. - -Issuance of Warrants■ — Time of Payment. A municipal corporation has the power, in the absence of statutory inhibition, to issue any ordinary evidence of indebtedness payable either instantly or at any time in the future, and to provide that such evidence of indebtedness shall bear interest.</p> <p>3. - Warrants — Statute of Limitations. An action upon a municipal warrant is- ordinarily barred in five years after its maturity.</p>

<p>Pleading and Practice — Fire Damage by Operation of Bail-road — Allegations of Petition — Burden of Proof. Under the facts of this case as stated in the opinion, it is held, that notwithstanding the petition contained specific allegations as to the negligence of the defendants respecting a railroad engine and its operation, whereby a fire, resulting in damage to the plaintiff, was caused, it was not necessary to prove such allegations, and that an instruction that such proof was not required was not erroneous; and further held, that the burden was upon the defendants to disprove their negligence in respect to the engine and its operation.</p>

<p>Conduct or Jury — Dictation of Special Findings. Where the answers to special questions are dictated by less than the whole number of jurors, to which dictation the remainder have promised to agree before they knew what it would be, there has not been such a cool, deliberate judgment exercised by all the jurors as the law requires.</p>