Volume 76 — Kansas Reports

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

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

Error from Riley district court; Sam Kimble, judge. STATEMENT. This is an action of replevin, commenced in the district court of Riley county by Henry F. Fosha, January 22, 1904, to recover the possession of a promissory note of which he was the maker. He claimed that the note was obtained by means of false and fraudulent representations, and without consideration. It had been sold, indorsed and delivered to W. E. Youle, who claimed to be an innocent holder thereof.

Error from Finney district court; William Easton Hutchison, judge. STATEMENT. On May 4, 1900, the defendant in error filed its petition in the district court of Finney county to quiet its title to a large amount of land, including the land in controversy. The title held by the land company was evidenced by tax deeds. Many of the defendants in that suit were non-reside'nts of that county, and some of them did not reside in the state.

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads —■ Injury by Fire — Contributory Negligenóe. Farmers through whose lands a railroad is operated may cultivate and use such lands in accordance with the methods customary among farmers, and are not required to take unusual precautions against loss from fire negligently set out by a railroad company.</p> <p>2. - Care Required of Owner of Land Adjacent to Right of Way. While an adjacent owner would not be warranted in needlessly placing combustible property close to a railroad in a place of known danger contrary to common usage, a farmer who permits dry grass or corn-stalks to remain in a field where they were grown, as farmers usually do, is not deemed to be negligent and should not be deprived of redress for loss of property burned through the negligence of the railroad company.</p>

Error from Pawnee district court; Charles E. Lobdell, judge. STATEMENT. This suit was brought in the district court of Pawnee county to have a triangular tract of land between the right of way of the Atchison, Topeka & Santa Fe Railway Company and Broadway in the city of Larned declared a public highway, and to have a certain obstruction therein, called the “hole-in-the-wall,” declared a nuisance and to abate and enjoin the defendants from maintaining the same.

Error from Montgomery district court; Thomas J. Flannelly, judge. STATEMENT. This suit was brought in the district court of Montgomery county to set aside an oil-and-gas lease executed by the Baileys to the brick company on 160 acres of land in that county. The case was tried upon the pleadings and an agreed statement of facts, and, the judgment being adverse to the brick company, it comes here for a review of the legal questions involved.

<p>Error from Reno district court; Peter J. Galle, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Sale — “Cost of Redemption.” The expression “cost of redemption,” as used in section 7649 of the General Statutes of 1901, means the amount the land sold for, with interest added, and does not include the fee of the county treasurer for the certificate of assignment nor his fee for a certificate of redemption.</p>

<p>Error from Cowley district court; Carroll L. Swarts, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Assumption of Risk. The ordinary rule of the non-liability of an employer for injury sustained by an adult employee of ordinary discretion through the voluntary use of a defective tool, when the facts and the danger were within the comprehension of any ordinarily intelligent and prudent man and were as completely within the knowledge and appreciation of the servant as of the master, is here applied to the case of a man who lost an eye by being struck by a sliver of steel from a “set,” or “snap,” used to receive the blows of the sledge in riveting I-beams.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Carriers — Transportation Contract — Waiver of Lien. A written contract for the transportation of goods by a common carrier will not be deemed to waive a lien upon them for the charges therefor unless it contains provisions inconsistent with the assertion of such lien or unless an intention to make such waiver is indicated expressly or by clear implication.</p> <p>2. - Waiver of Lien Not Shown. Such a waiver is not shown by recitals in such a contract that all prior agreements concerning the facilities for such shipment or concerning the transportation of .such goods or such shipment are merged in . the written contract, and that the written contract contains all the terms, agreements and provisions relating in any manner to the transportation of such goods.</p> <p>3. Criminal Law — Larceny by General Owner of Goods. The general owner of goods shipped by a common carrier may be guilty of larceny by fraudulently taking them from its possession with the intent of defeating its lien upon them for the transportation charges.</p> <p>4. -Arrest without a Warrant — Discharge—Legality of Detention — Good Faith. Where one guilty of a felony is lawfully arrested therefor by an officer without a warrant, and is discharged before his detention has become unlawful through an unreasonable delay to procure a warrant or to present him before a magistrate, such discharge does not operate to make the original arrest unlawful, nor does it afford conclusive proof in an action for false imprisonment that the prosecution was not begun in good faith.</p> <p>5. Damages — Action for False Imprisonment — Evidence. Where one who has committed grand larceny by fraudulently taking goods of which he is the general owner from the possession of a carrier having a lién thereon is arrested therefor, but released without having been brought before a magistrate, in an action for false imprisonment brought by him against the carrier evidence that the carrier’s agent in causing his arrest described his offense as running away without paying his bill and said that all the carrier wanted was its money, if accepted as true, does not establish his right to recover.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Non-resident Plaintiff — Residence and Post-office Address — Knowledge of Defendant. A failure to enforce chapter 327 of the Laws of 1905 by requiring a plaintiff who does not reside in the county where suit is commenced to state in the petition his or her place of residence and post-office address is error, but where it appears that the defendant is familiar with the facts not stated the error is harmless and immaterial.</p> <p>2. Husband and Wife — Alienation of Affections — Damages— Pleading. In an action by a wife for the alienation of the affections of her husband a statement in the petition of the ultimate facts of the alienation and separation is enough, without pleading the acts done and artifices used to accomplish the result.</p> <p>3. Evidence — Admissions. In such an action statements of the defendant, made after the parties have separated, are competent evidence when they amount to an admission of responsibility for the acts alleged in the petition.</p> <p>4. -Secondary — Contents of a Letter. The contents of a letter may be shown by secondary evidence when it appears that the original is not in the possession or under the control of the offering party, and is so situated that such party could not by the use of the legal means applicable to such cases have produced it, the same as when the original is shown to be destroyed.</p> <p>5. - Opinion. Where a witness is describing the manner and attitude of persons engaged in a conversation which he does not hear, it is not improper to permit the witness to characterize the action of one of the speakers as gesticulating “as though he was very angry” or standing with his head down “as though he was crying.”</p> <p>6. Husband and Wife — Alienation of Husband’s Affections— Evidence of Motive. In an action of the kind mentioned it is proper for the plaintiff to show as a motive on the part of the defendant to do the acts complained of that he entertained a feeling of hatred toward her, and for this purpose it would he competent to show that he had made improper overtures to her which resulted in disappointment to him.</p> <p>7. -Evidence of Defendants Financial Condition. In actions involving malice, and where exemplary damages may he properly awarded, the financial condition of the defendant may he shown.</p> <p>8. —:- Plaintiff’s Ante-nuptial Reputation for Chastity. In an action by a wife for the alienation of the affections of her husband her general reputation for chastity at the time of her marriage is immaterial, and constitutes no defense where it did not, to some extent, cause the separation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Limitation op Actions — Dismissal without Prejudice — New Action. A plaintiff who brings an action within the statutory-period of limitation and dismisses the same without prejudice after the limitation has expired may bring a new action within one year after such dismissal under section 23 of the civil code (Gen. Stat. 1901, § 4451), but where the new action is dismissed more than one year after the first dismissal that section is no authority for the bringing of another new action.</p>

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

Error from Dickinson district court; OSCAR L. MOORE, judge. STATEMENT. ON May 2, 1905, John W. Swisher was killed in New Mexico by the explosion of a locomotive engine, while he was engaged as fireman thereon for the Atchison, .Topeka & Santa Fe Railway Company. The deceased was twenty-four years of age, and unmarried.' His parents, who resided in Abilene, Dickinson county, Kansas, were his only surviving heirs at law and next of kin.

<p>SYLLABUS BY THE COURT.</p> <p>1. Instructions — Defective Request for a Proper Instruction. If a defective request for an instruction actually brings to the attention of the court an important principle of law which ought to be stated to the jury in order that they may render an intelligent verdict, it may be prejudicial error to disregard it; and if an attempt be made by an instruction given to submit to the jury the matter defectively covered by the request it should be sufficiently explicit and comprehensive to cover fairly the field of the request.</p> <p>2. Master and Servant — Assumption of Risk. It is the duty of a master to make the conditions of his servant’s work reasonably safe. One of the conditions is that the servant be furnished with reasonably careful coservants. But if the master fail in the performance of this duty the servant, with knowledge of the facts and appreciation of the danger, may voluntarily accept the situation, and if he does so without complaint or promise of change the risk is assumed to the same extent as if it had originally entered into the contract of employment.</p> <p>3. -- Same. If upon complaint to the master that the conditions of the work are unsafe he refuses to better them, and the servant, understanding the danger, continues to work, he assumes the risk.</p> <p>4. -Same. If under the circumstances just stated injury befall the servant as a result of the defective conditions the question of what a reasonably prudent man would have done upon the master’s declination to remedy them is immaterial. If the servant in fact voluntarily chose to assume the risk of appreciated danger the prudence of his conduct is not open to investigation.</p> <p>5. -Independent Contractor. It is. not essential that one who engages a contractor to produce a given result should reserve, or should interfere and take, complete or exclusive control over all features of the work to render him liable as master of the contractor’s servants; but the fact that he possesses a limited or partial control will not entail such a liability if the contractor is still left free to exercise his own will generally respecting the methods and means of accomplishing the result.</p> <p>6. - Same. If an employer in fact assumes the relation of master to the servants of one whom he has engaged to produce a given result the duties and the responsibilities which the law imposes upon such a relation attach.</p>

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

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

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. The plaintiff and defendant were married in Pennsylvania in 1867. In the spring of 1881 plaintiff came to Kansas with her children and bought an eighty-acre farm for $1150, of which she paid $600 cash and gave two notes for the remainder. She got some hay, corn and farm implements with'the farm, and also bought a team, wagon and harness, some hogs, and a cow, for which she paid about $300.

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. On March 25, 1905, J. W. Thomas commenced an action in the court of common pleas of Wyandotte county against the Kansas City Elevated Railway Company to recover damages sustained by him on account of injuries received while a passenger on such railway. On the trial, after the evidence for the plaintiff was introduced, the defendant demurred thereto, and the demurrer was overruled.

<p>Error from Logan district court; James H. Reeder, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Default—Enforcement—Misjoinder Not a Defense. Where a judgment by default is rendered against a defendant in a county other than that of his residence, summons having been served upon him at his' home, such proceeding being colorably justified only because the action against him is joined with one against another defendant residing in the county where the suit is brought, a subsequent action brought upon such default judgment' cannot be defeated by showing that the petition upon which it was rendered disclosed upon its face that the cause of action against the non-resident was one that could not properly be joined with that against the resident defendant.</p> <p>2. -Insufficient Defenses — Collateral Attack. Nor can it be shown in defense to an action upon such a judgment that it was rendered while a demurrer filed by the resident defendant was still pending; or that the joinder of the two defendants was collusive, for the purpose of enabling the plaintiff to sue the non-resident defendant outside of the county where he resided; or that after the judgment was rendered against the non-resident defendant the action was dismissed as to the resident defendant.</p> <p>3. Evidence — Judicial Record of Another State — Authentication. A copy of a judicial record of another state, not authenticated as required by the federal statute or by section 371 of the Kansas code (Gen. Stat. 1901, § 4819), which relates in terms to the proceedings of the courts of foreign countries, is not rendered admissible in evidence by being certified to in accordance with the requirements of section 372 of the code (Gen. Stat. 1901, § 4820), which provides for the admission in evidence of copies of records required by law to be kept in any public office, such section having reference only to records kept under authority of the laws of this state or of the United States.</p>

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

Error from Washington district court; William T. Dillon, judge. STATEMENT. On and prior to March 9, 1894, Eleanora Johnson owned and occupied eighty aches of land in the state of Nebraska. She was a widow, about sixty-eight years of age. At this date she had a son and a daughter, residing in Washington county, Kansas, who are the plaintiffs in error. Defendant in error John Nelson is her brother. The other defendants in error, except William White, are her grandchildren.

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. The plaintiff is a wholesale mercantile corporation of St. Louis, Mo., and the defendants were, prior to the great flood of 1908, copartners in a retail business in North Topeka, Kan.

<p>SYLLABUS BY THE COURT.</p> <p>Resulting Trust — -Agency—Concealment of Fraud — Constructive Notice — Limitation of Actions. In a suit by a widow against the heirs of her deceased husband to establish a resulting trust in her favor in lands purchased by the husband in his lifetime with her money, the title having been taken in his name without her knowledge or consent, the constructive notice imparted by the recording of the deed by the husband will not start the statute of limitations running against the wife, where it appears that during the transaction the husband acted as the agent of the wife and concealed from her the fact that the title was not taken in her name.</p>

Error from Jewell district court; Richard M. Pickler, judge. STATEMENT. On September 12, 1905, the defendant in error commenced this suit in the district court of Jewell county to enjoin the plaintiff in error from trespassing upon its premises. The real question involved is the ownership of the land occupied by the district as a site for its schoolhouse.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — License Tax — Penalties—Liability of Agents. A statutory provision empowering cities to impose license taxes upon merchants, and to enact ordinances for the regulation and enforcement of such taxes, authorizes city councils to impose penalties upon agents and employees of such merchants who assist in carrying on an unlicensed business.</p> <p>2. -Agent Required to Know whether Tax Has Been Paid. An ordinance prescribing such penalties devolves on the agent or employee the responsibility to inform himself whether the license tax has been paid and the business licensed.</p> <p>3. ■ — -Intent Not an Element of the Offense. As a specific intent was not made an essential element of the offense defined, it is immaterial that the defendant may not have intended to violate the ordinance. It is enough that he did the things prohibited by the ordinance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>JURISDICTION — Supreme Court — Injunction — Appointment of Receiver. This court has original jurisdiction in proceedings in quo warranto, mandamus and habeas corpus only. It has no original jurisdiction to issue injunctions or to appoint receivers. But in order to protect, preserve and render effectual its original jurisdiction the court may restrain the use and transfer of property and appoint a receiver for property owned and employed by a foreign brewing company unlawfully conducting its business in this state, pending proceedings in quo warranto to oust it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Insurance — Change of By-laws — Effect on Beneficiary — Waiver of Right to Enforce. The defendant in error was incorporated as a mutual life-insurance association, and issued a joint certificate to Boman and wife by the terms of which, and the by-laws which were made a part of the contract, the association agreed to pay the survivor, upon proof of the death of the other, an indemnity of $1000, subject to certain deductions provided for by a by-law then in force. Subsequently the association passed a new by-law, which, if applicable to this ■ certificate, would greatly reduce the indemnity. Neither Boman nor his wife- had any notice or knowledge of the new by-law during her lifetime, but they continued for many months after the new by-law was passed to pay the monthly assessments at the rate required at the time their certificate was issued, and the association received such payments without objecting to their sufficiency. The wife died, and Boman made proof of the death and demanded the indemnity. The association offered him the amount he would be entitled to under the new by-law, but less than one-third the amount to which he would be entitled under the former by-law. Held, although Boman and wife may have agreed in the acceptance of the certificate to be bound by . subsequently enacted by-laws, the association waived the enforcement of the new by-law and is estopped from, asserting it against Boman.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Implied Warranty as to Fitness. Where a known, described and specified article is sold by a dealer under a contract to be executed by delivery of the specified article, which is actually supplied to the buyer, there is no implied warranty that it shall answer the particular purpose intended by the buyer, although such purpose is communicated to the dealer beforehand.</p> <p>2. :-- Implied Warranty against Latent Defects. Where a dealer contracts to deliver to a purchaser at an agreed price a known, described and specified article, manufactured generally for the trade, there is no implied warranty against . latent defects of which the dealer has no knowledge.</p> <p>3. - Machinery — Warranty. /The defendant, owner of a flouring-mill, gave a written order to plaintiffs for the purchase at an agreed price of certain machines for use in his mill, described and known as “Wolf gyrators,” which order ■ was accepted in writing, and the machines were shipped direct from the manufacturers to defendant. Plaintiffs were not manufacturers of the machines, but dealers. They knew the particular purpose for which the machines were ordered, , but had no opportunity to inspect them until after delivery, and had no knowledge of latent defects. Held, that there was no implied warranty that the machines would answer the particular purpose for which they were purchased, and no implied warranty against latent defects in their construction.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Deed to Secure Purchase-money — Parol Evidence. A deed purporting to convey land to a husband and wife jointly, where the wife is named as a grantee to secure payment of a sum of money which she loans to her husband to make up the purchase-price of the land, is, as to the wife, no more than a mortgage; and when the loan is paid her interest terminates and his title becomes clear and complete, and the fact that the deed was intended to operate as a mortgage may be shown by parol evidence.</p> <p>2. Evidence — Declarations Explanatory of Possession and Ownership. In a controversy between the heirs of such grantees as to whether the deed was in fact a mortgage the declarations of the husband at the time of the purchase and while he was in possession of the land, explanatory of the possession and of the rights claimed in the land, are competent evidence.</p> <p>3.'- Declarations Made in Letters — Authenticity of the Documents. Declarations of that character included in letters shown to have been actually written while the declarant was in possession of the land may be received in evidence although they do not clearly show whether or when the letters were received by the one to whom they were addressed.</p>

Error from Clay district court; Sam Kimble, judge. STATEMENT.

Error from Montgomery district court; Thomas J. Flannelly, judge. STATEMENT. B. Prinz & Co. were engaged as partners in the mercantile business at St. Louis, Mo., and one L. H. Levison, who was engaged in the clothing business in Caney, Kan., became indebted to them in a large amount on account of clothing purchased. The account was settled by a note, which was secured by a chattel mortgage on the stock of goods for $2000.

<p>SYLLABUS BY THE COURT.</p> <p>'Conveyances — Deed Recorded arnd Retained by Grantor — Constructive Delivery. Where a contract is made for the sale of land, the consideration being the assumption of an existing mortgage and the payment of a sum of money at a future date (no note for the deferred payment being contemplated), and the vendor files for record a deed from himself to the vendee, who thereupon goes into possession of the land and thereafter pays the taxes thereon and the interest on the mortgage as they accrue, this situation continuing for two years without objection by the grantor, these facts warrant an inference that he intended that the title should pass, and a finding that there was a constructive delivery of the deed, notwithstanding it was never manually delivered.</p>

Error from Trego district court; James H. Reeder, judge. STATEMENT. Dependants in error brought this action against. John W. Phares to recover $2000 damages for fraud and misrepresentation, claiming that he had acted as. their agent in the sale of a section of land and fraudulently misrepresented to them that he had sold it for the sum of $8000 when in fact he received the sum of' $9600, and had retained the difference as well as an agent’s commission.

<p>Error from Chautauqua district court; Granville P. Aikman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>.Evidence — Privileged Communications — Admissions. The bylaws of a fraternal beneficiary association required satisfactory proof of death before payment of a beneficiary certificate. It furnished blanks upon which such proof should Be made. The following printed note preceded the blank to be filled by the attending physician:</p> <p>“Note to attending physician: The purpose of the following statement is twofold. First, to establish proof of death and the cause. Second, to give such information concerning the personal, and family history of deceased, together with predisposing causes leading to last illness, as well as the various matters of importance necessary in tabulating vital statistics. Attending physicians are urged to give under general remarks any information which, in their judgment, tended to shorten the natural duration of life. You are assured that this statement will be used only for the purpose of gathering correct and accurate information, and will in no case be used as a basis for litigation.”</p> <p>A beneficiary submitted proof of death upon one of these blanks, in which the attending physician made statements beyond those necessary to establish death and which gave information obtained in a professional way concerning the state of the deceased’s health several months prior to. his death. Held, that such statements cannot be regarded as admissions of the beneficiary made in connection with his proof of death.</p>

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

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

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

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

<p>Error from Cherokee district court; William B. Glasse, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Construction of Public Works— Necessity Does Not Excuse Negligence. The fact that a work of municipal improvement being carried on by the municipality is of public benefit, or even a public necessity, does not exempt the municipality from liability for damages caused by negligence in the prosecution thereof.</p> <p>'2. - Alleys — -Construction of Sewers. A city of the second class has control of the alleys therein and has the right to extend sewer§ under such alleys.</p> <p>.3. - Injury to Building by Blasting — Burden of Proof. Where the owner of a building abutting upon an alley through which the city is causing a ditch to be blasted for a sewer claims damages to his building by reason thereof, it is incumbent upon him to allege and prove that his building was damaged by exploding unnecessarily powerful blasts — that his injury is the result of negligence and not incidental to a careful prosecution of the work done with due regard to the place and surroundings.</p>

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. This is an action to recover $2500 given by Edmund C.'Spinney to M. Ware for the alleged purpose of paying the necessary expenses incident to the convening of the board of directors of the National Aid Association, but which, it was alleged, was not used for that purpose and Ware had refused to account for or return upon demand. Ware’s answer was a general denial'.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgages — Executed, to Owner — Validity—Replevin by Assignee. Where the owner of personal property takes a mortgage thereon from one having no interest therein, securing an accommodation note between the same parties, and assigns the note and mortgage, the fact that the mortgagor never had any real interest in the property constitutes no defense to an action brought by the assignee to replevin the property under the mortgage, whether the defendant be a stranger to the transaction or a claimant under a party to it.</p> <p>2. -Inaccurate Description of the Property — Constructive Notice. In an action to recover the possession of personal property under a chattel mortgage in which it is inaccurately described, where the plaintiff relies upon the record as imparting constructive notice, such erroneous description is not fatal to a recovery if in spite thereof the instrument gives upon its face sufficient information from which by the aid of reasonable inquiry the property intended can be identified; and whether that is the case is ordinarily a question of fact, to be determined from all the circumstances of the case.</p>

Error from Pratt district court; Preston B. Gillett, judge. STATEMENT. John D. Carter brought this suit in the district court of Pratt county to recover a certain tract of land,admitting that he should first pay the amount which should be found to be due from him after an accounting, for which he prayed.

<p>SYLLABUS BY THE COURT.</p> <p>Husband and Wipe — Descents and Distributions — Antenuptial Agreement. An antenuptial agreement provided that the property -owned by either party should, after the marriage, remain the separate and distinct property of such owner, and neither should have or exercise any right, title or estate in the property of the other, and each might at his or her option dispose of such property by will or otherwise, except that the husband should not during the lifetime of the wife so dispose of his property as to jeopardize or render nugatory a subsequent provision for her benefit, by which he agreed to furnish her proper and comfortable support so long as they lived together as husband and wife, or, in ease she survived him,-so long as she remained his widow. After living together thirty years the husband died intestate. Held, that the agreement did not exclude the widow from her right of inheritance in the husband’s property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Parties—Taxpayers. Taxpayers who bring a suit under chapter 334 of the Laws of 1905 to enjoin a board of county commissioners from carrying out a contract for the building of a bridge and appropriating money to pay for the same do not sue in behalf of the public, or in any representative capacity, but only for the protection of their own interests.</p> <p>2. - Estoppel — Inequitable Conduct of Plaintiffs. The rule that equity will not aid those who have been guilty of inequitable conduct in the matter presented as a basis for equitable relief applies to such taxpayers the same as to ordinary suitors.-</p> <p>3. ■ — -—• Payment for a Bridge — Irregularities in Letting Contract — Laches of Plaintiffs. It would be inequitable to allow such taxpayers, who had a knowledge' of the letting of the contract and who stood silently by for’ months until the greater part of the work was done and the contractor had incurred great expense, to enjoin the board of county commissionexs from paying for the bridge when complete because of irregularities in the letting of the contract and a defective exercise of authority conferred by law upon such board. ’</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Verdict for Nominal Damages — Special Finding of Specific Damage. Where, in an action based upon a tort, the jury return a general verdict for nominal damages only, but in answer to a special question find that a substantial injury was sustained, for which they assess a stated compensation, a judgment rendered by the trial court for the sum of the two amounts so named will not be set aside on review at the instance of the plaintiff by reason of the apparent inconsistency between such verdict and finding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Foreign Corporations — “Doing Business in the State” — Parties. Under the agreed facts in this ease the plaintiff was a foreign corporation, and at the time of the rendition of the judgment in the court below was “doing business in the state of Kansas” and was not entitled to maintain any action in the courts thereof by reason of its failure to comply with the corporation la,ws of the state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Exemptions — Traction-engine and Sawmill — Tools and Implements. A traction-engine and the saws, belts, carrier, and other appliances commonly used in connection with such an engine for sawing logs and making lumber, are tools and implements within the meaning of subdivision 8 of section 3018, General Statutes of 1901, and are exempt to an owner who is a resident of the state and the head of a family, where they are necessary to, and are personally used by, him in carrying on the business of sawing logs and converting them into lumber.</p> <p>2. Chattel Mortgages — Exempt Property — Signature of Wife Required. A mortgage given upon such appliances by the owner, without the consent or signature of his wife, is in7 valid.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Appurtenances Acquired by Contract Made in Agent’s Name. An agent of a proprietor of a hotel, who constructs a drain or sewer to be used in connection with the hotel for and at the expense of the proprietor, does not become the owner of the appurtenance merely because the contracts for the privilege of laying the sewer in the streets of the city and over the land of another were made in the name of the agent instead of his principal.</p> <p>2. Demurrer- — Evidence. On a demurrer to plaintiff’s- evidence the court may not weigh conflicting testimony or disbelieve and disregard that offered in his behalf which tends to sustain his cause of action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Joinder op Causes op Action — ■Agent’s Commission — Sale of Real Estate. In an action for a commission a real-estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Attorneys — Fees—Lien on Fund Recovered in a Bastardy Proceeding. An attorney who is employed by the mother of an illegitimate child to assist in the prosecution of bastardy proceedings, under a contract by which he is to be paid an attorney’s fee out of the fund recovered, is entitled to a lien upon such fund for his fees.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Consideration of a Case on the Merits Pending a New Trial. Where a district court properly sets aside a verdict in favor of the defendant on the ground of misconduct of the jury and grants a new trial, this court, pending such new trial, cannot at the instance of the defendant reverse the decision of the district court and direct a judgment in favor of the defendant upon the merits of the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Schools — City of Wichita Governed by a Special Act • — Separate Schools. Chapter 227 of the Laws of 1889 is a special act, which by its terms makes full provision for the government of the public schools of the city of Wichita, a city of the first class. It renders all other provisions of the statute relating to public schools inapplicable to the public schools of Wichita, and it has not been amended or repealed and does not authorize the maintenance of separate schools for the education of white and colored children.</p> <p>2. - Authority of Board of Education — Exclusion of Colored Children. In the absence of statutory authority the board of education of the city of Wichita has no right to exclude a child, by reason only of its color, from any public school of the city.</p>

<p>Appeal from Allen district court; Oscar Foust, judge.</p>

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

Original proceeding in habeas corpus. STATEMENT. There is an agreed statement of facts, from which it appears that George Ellis, the petitioner, on the 27th day of September, 1905, was convicted in the district court of Wilson county of violating the prohibitory liquor law, upon an information containing fifty-two counts, and was sentenced by the court on each count to imprisonment in the county jail of Wilson county for the term of thirty days and to pay a fine of $100, and…

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Election of Offenses. Where, in a criminal prosecution based upon an information containing but one count, the evidence shows several acts committed by the defendant any one of which might be tfie basis of a conviction, and the state being required to elect between them designates a particular transaction as that upon which it will rely for that purpose, a defendant who at a subsequent trial files a motion to require another such election cannot complain that in pursuance of the order of the court sustaining such motion .the prosecutor elects to stand upon a different offense from that first indicated.</p> <p>2. - Change of Venue — Transcript of the Record. Where a change of venue is ordered’ in a criminal case the jurisdiction of the court to which the action is sent for trial does not depend upon the transmission of a complete transcript of the record. Any failure of the clerk to comply fully with the statute in that regard can be corrected upon order of such court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Probate Court — Final Settlement — Apportionment —Distribution. Due notice of a proposed final settlement of an estate having been given, the probate court has jurisdiction to make the settlement, apportion the residue of the estate among those entitled to share in it, and to order distribution.</p> <p>2. - Conclusiveness of Order of Distribution. Such order is binding and conclusive upon all having notice of the proceeding, unless vacated or set aside upon the grounds and by the methods prescribed by statute.</p> <p>3. Judgments — Correction after Expiration of the Term. An error in the judgment itself cannot be corrected after the term at which it was rendered under the code provision authorizing courts of record to modify or vacate their own judgments for “irregularity in obtaining a judgment or order.” (Gen. Stat. 1901, § 5054.)</p>

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

Error from Morris district court; Oscar L. Moore, judge. STATEMENT. The policy sued on in this case was, in consideration of $6, issued for a term of three years, first insuring $600 upon plaintiff’s dwelling-house, “situate on lot 14, in block 1, village of Helmick, Kan.” The insurance began April 1, 1903. For a further consideration of $7 other insurance ($700) was provided for the same term.

<p>Error from Sedgwick district court; William E. Stanley, judge pro tem.</p>

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

Flannelly, judge. statement. On December 16, 1904, in a suit then pending in the district court of Montgomery county in which the state of Kansas, on the relation of Anna F. Fruits, was plaintiff, and John Hebrank, Fay Lovejoy, Ed Heck-man and Harry Robinson were defendants, a judgment was rendered perpetually enjoining the defendants, “their agents, employees, successors and assigns, and all persons associating, combining and conspiring with them, and all other persons…

<p>Appeal from Allen district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Procedure — Failure to Admonish Jury — Discharge —Acquittal. Where the court sustains defendant’s objection to proceeding further with a criminal trial in which testimony ' has been taken because of the failure of the court to admonish ' the jury before a separation, and discharges the jury, such discharge will be deemed to have been made with the defendant’s consent and will not operate as an acquittal nor bar a further prosecution.</p> <p>2. Larceny — Evidence—Possession of Property Recently Stolen. The possession of property recently stolen does not warrant the inference that the person in whose possession such property is found is guilty of larceny. It is the unexplained possession which constitutes prima facie evidence of the offense.</p> <p>3. -Proof Inadequate to Sustain a Conviction. The evidence examined and held to be insufficient to sustain a conviction.</p>

<p>Appeal from Allen district court; Oscar Foust, judge.</p>

<p>Error from Sumner district court; Carroll L. Swarts, judge.</p>

<p>Appeals from Cowley, Shawnee and Miami district courts; Carroll L. Swarts, Alston W. Dana, and Winfield H. Sheldon, respectively, judges.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition- — Demurrer—Prayer for Relief. A petition which otherwise states a cause of action is not subject-to a demurrer for the reason that it seeks to recover more or different relief than that to which plaintiff is entitled'.</p> <p>2. Injunction — Execution — - Dormant Judgment. Injunction will lie to enjoin an execution upon a dormant judgment. The plaintiff in such a suit does not thereby seek to use the statute of limitations as a sword, but as a shield to protect something which the law has already given him — the right not to have his’property taken upon void process.</p> <p>3. Judgments — Dormancy—Death of Judgment Creditor— Nominal Party. A judgment becomes dormant upon the death of the judgment creditor, although the action was prosecuted by one having no beneficial interest therein, and the judgment belongs, in fact, to another; and under such circumstances, where 'no proceedings to revive the judgment have been taken within one year after the death of plaintiff in the action, an execution issued upon the judgment is void and may be enjoined".</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Act Creating Board, of Railroad Commissioners — Separation of Governmental Departments. The statute creating a board of railroad commissioners (Laws 1901, ch. 286; Gen. Stat. 1901, ch. 84, art. 3) and the acts supplementary and amendatory thereto (Laws 1903, ch. 391; Laws 1905, ch. 340) are not in violation of the constitutional requirement that the legislative, executive and judicial departments of government shall be kept separate.</p> <p>2. - Delegation of Legislative Powers. The act does not delegate to the board of railroad commissioners legislative powers. The legislature in the exercise of its power to regulate and control public corporations, such as common carriers, may delegate to a board of railroad commissioners certain functions administrative in character which cannot well be performed by the legislature itself.</p> <p>3. --Delegation of Executive or Judicial Powers. The act does not confer upon the board executive or judicial powers, although the board is required to exercise judgment and dis- . cretion and to make orders for the regulation and control of railroads and other common carriers.</p> <p>4. —-Legislative Jurisdiction — Creation of Board of Railroad Commissioners. The act is not invalid because the constitution 'does not specifically provide for the creation of a board of railroad commissioners. The subjects upon which the legislature may enact laws are not enumerated in the constitution. ,</p> <p>5. -— Power of the Legislature to Regulate and Control Railroads. The legislature has the power to regulate and control the opération of railroads. The question of the extent of the control and regulation must be left to the legislature to determine, subject always to the constitutional guaranties for the protection of property.</p> <p>6. -Commerce — Regulation. The act creating such board applies solely to the business of railroads within the state, and is not designed to affect, and does not apply to or regulate, interstate commerce.</p> <p>7. -Due Process of Law. Nor is the act in question unconstitutional upon the ground that it provides for taking ' the property of person^ or corporations without due process of law.</p> <p>8. -Notice — Appearance—Due Process of Law. Defendant having been notified of a hearing before the board of railroad commissioners upon a complaint filed with .such board, and having appeared before the board and participated in such hearing, cannot claim that an order issued by the board after such hearing is not due process of law.</p> <p>9. - Jurisdiction of the Supreme Court — Mandamus — Delegation of Powers. This court has jurisdiction of original proceedings in mandamus to compel obedience to an order made by the board of railroad commissioners. The power which the act confers upon the court is not a legislative or non-judicial power. It is a judicial power simply. In such a proceeding the only question to be determined by this court is whether such order is reasonable.</p> <p>10. Railroads — Order of Board of Railroad Commissioners— Conclusiveness. The provisions of section 11 of chapter 340, , Laws of 1905, making certain orders of the board conclusive after the lapse of thirty days from the time such orders shall have been made is a rule of evidence and not a limitation upon the right of a defendant railroad company to offer evidence in defense of an action in mandamus to compel obedience to an order of the board. Defendant is not estopped in this action from offering evidence to show that the order of the board is unreasonable by the failure to avail itself of the right to commence an action to vacate such order within thirty days.</p> <p>11. - Separate Passenger Service — Reasonableness of Order. The order of the board requiring defendant to operate separate passenger-trains is not unreasonable upon its face.</p> <p>12. Mandamus — Order of Railroad, Commissioners — Reasonableness — Burden of Proof. In mandamus proceedings in this court to compel obedience to an order of the board of railroad commissioners the order of the board is prima facie reasonable, and the burden of proof is upon defendant to establish its unreasonableness.</p> <p>13. - Evidence Insufficient to Overcome Presumption of Reasonableness. Defendant failed to produce sufficient evidence to overcome the prima facie presumption that such order is reasonable.</p> <p>14. Constitutional Law — Interstate Commerce — Separate Passenger Service. The order of the board requiring defendant to operate separate passenger service within the state is in the exercise of its police power to enforce local regulations necessary for the convenience, safety and comfort of the public, and is not an attempt to regulate interstate commerce, nor does it directly cast a burden upon such commerce.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>.1. Fraternal Insurance — Payment of Dues and Assessments— Forfeiture — Construction of By-laws. Where there is inconsistency in the provisions of the by-laws of a benefit society as to the payment of dues and assessments by its members, and a question arises whether there has been a forfeiture of benefits because of the non-payment of dues and assessments, the court will, where interpretation is possible, construe the by-laws so as to give the insured the benefit of the provisions favorable to him.</p> <p>2. - Waiver of a Forfeiture. The receipt and retention of money paid to the benefit society by one of its members on an overdue assessment ’ is ordinarily sufficient to waive a forfeiture arising from the failure to pay the assessment when due.</p> <p>3. -Same. The demand, receipt and retention by the benefit society of an assessment on which the member is not in default with one which was overdue waives the forfeiture growing out of the delay of non-payment.</p>

<p>SYLLABUS BY THE, COURT.</p> <p>1. Voluntary Associations — Expulsion of a Member — Conditions. An unincorporated voluntary association, not organized for profit, may lawfully expel a member, notwithstanding it may own property and membership therein may have a pecuniary value, if these conditions exist: That he is •charged with conduct for which his expulsion is a proper penalty if he be guilty; that he has reasonable notice of the charge and opportunity to defend himself; that he is given a fair hearing; that a decision is rendered against him in good faith; and that he is not denied the benefit of any special rule that may exist relating to the matter.</p> <p>2. -Procedure — Notice—Accusation—Evidence—Tribunal. It is not fatal to the validity of an order of expulsion made in such a case that the accused is not given written notice of a hearing, where he appears in response to an oral notice; or that the accusation against him is not reduced to writing, where he is fully and explicitly informed of its nature; or that information against him is received, by the body conducting an investigation of the charges, coming from persons who have no personal knowledge of his connection with the matter and whom he has no opportunity to cross-examine, where he is not denied the right to present anything he may desire on his own behalf and when he himself is the only witness examined at the hearing and his own testimony and conduct can be construed^ as evidence of his guilt; or that the members who started the investigation which resulted in the proceedings against him participated in rendering,' the decisión against him, where no bad faith is shown; or that the order of expulsion is made by a committee, when its action is afterward ratified by the association.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Service by Publication — Sufficiency of Affidavit. An affidavit for service by publication as required by section 73 of the civil code (Gen. Stat. 1901, § 4507) which reads —</p> <p>“Hattie Roberts, of lawful age, being first duly sworn, on her oath says: That she is the plaintiff in the above-entitled action; that on the 30th day of April, 1902, said plaintiff filed a petition in the district court of the above-named county and state, against said defendant, W. N. Roberts; that said action is an action to obtain a divorce; that said defendant is a non-resident of the state of Kansas, and that personal service of summons cannot be had upon said defendant within the state of Kansas; and that plaintiff wishes to obtain service upon said defendant by publication,”</p> <p>is sufficient, and due publication of notice in pursuance of such affidavit will confer jurisdiction on the district court to' grant a divorce.</p> <p>2. - Property Rights. When parties have been divorced by a court having jurisdiction, and no proceedings have been taken to vacate or modify the decree by appeal until the statutory time therefor has expired, all the rights which either had to the property of the other by reason of the marriage relation will be extinguished by such decree.</p> <p>3. - Affidavit for Service by Publication — Residence of Plaintiff. The statute does not require the residence of the plaintiff to be stated in the affidavit for service by publication, and therefore such a statement therein is unnecessary.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Establishment of Sewer Districts-—Apportionment of the Cost. The provision of the statute regarding the establishment of sewer districts' that- “where any property has paid its full proportion for general sewers and drains in one district it shall not be transferred to any other and made liable for the construction of sewers or drains therein” (Laws 1903, ch. 122, § 149) is intended to prevent charging property which has already contributed to the cost of one sewerage system with a part of the cost of another which as to such property may be regarded as a substitute for the first; it does not forbid the creation of a minor division or subdistrict out of a part of the territory of a principal district and charging the property therein with the cost of a lateral or tributary sewer which is constructed for the special benefit of such property, nor the further creation of a yet smaller district within such subdistrict and charging it with’the cost of subsidiary sewerage designed for its especial benefit.</p> <p>2. - Compliance with the Statute — Evidence. The evidence in this case examined and held not to show any violation of the statute referred to.</p> <p>3. -Special Benefits — Conelusiveness of Legislative Determination. The determination of a legislative body that a certain tract of land is specially benefited by a proposed local improvement is conclusive upon a court in any case admitting of substantial difference of opinion. If the owner seeks to enjoin the enforcement of an assessment upon the ground that his land receives no benefit he assumes the burden of showing conclusively that no such benefit is possible, and a failure on his part to produce evidence regarding conditions by which the matter might be affected is fatal to his success.</p> <p>4. -Evidence Insufficient to Negative Possibility of Benefit. Where a tract of land in front of which a sewer has already been constructed is charged with a part of the cost of an extension along the same street, proof that it is not at the present time drained into-such extension does not conclusively establish that it cannot possibly receive a benefit therefrom.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Amendment. In their original petition plaintiffs alleged that defendants engaged to sell plaintiffs’ land at a price of $4000 for a 'commission of $125, but that if only $3900 could be obtained for the land the commission would be $100; that the land was in fact sold for $4000 but that defendants fraudulently represented that only $3900 was obtained for it; that under this deception plaintiffs accepted the $3900 and paid the defendants a commission of $100; that defendants fraudulently collected and converted to their own use $100 of the price paid for the land. They then asked for judgment of $75. Later, upon application, plaintiffs were permitted to' amend their petition by alleging that defendants, through their fraudulent conduct, had forfeited all right to any commission for the sale of the land, and asking for a recovery of $200, which included the remainder of the price of the land and the commission which they were ■ fraudulently induced to pay. Held, that no error was committed in allowing the "amendment.</p> <p>2. Fraud — Real-estate Broker — Forfeiture of Commission. Where a real-estate broker falsely states the facts and deceives the owner as to the price paid for the latter’s land, and fraudulently retains a part of the selling price, the broker is liable not only for so much of the consideration as he retained but he will also forfeit all claim to any compensation for procuring a buyer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Employee — Contributory Negligence. An employee, while employed by a railway company, was injured. Soon thereafter he made and delivered to his employer a sworn statement detailing the circumstances under which the injuries were received. Afterward he commenced an action against the railway company to recover damages caused by such injury. In such action he attached to his petition, as an exhibit, the sworn statement before mentioned, and made it a part of the pleading. It then clearly appeared from the face of the petition that the plaintiff was guilty of contributory negligence at the time he received the injury of which he complained.' Held, that the pleading was insufficient and would not sustain a recovery.</p> <p>2. Jury and Jurors — Instructions—Law of the Case. Where in such an action the court, without objection, instructed the jury to accept the statements of the exhibit attached to the petition as true, such instruction became the law of the case, and it was the duty of the jury to follow and obey the direction given. A verdict returned in violation of such instruction does not .furnish a legal basis for a judgment.</p>

Error from Johnson district court; Winfield H. Sheldon, judge. STATEMENT. This suit was commenced by the defendant in error in the district court of Johnson county, July 20, 1904, for the purpose of establishing a trust upon certain real estate, and to compel conveyance thereof in compliance with such trust.

<p>Error from Republic district court; William T. Dillon, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Duty to Furnish Safe Place to Work— Assumption of Risk — Fellow Servants.. The decision in the - case of Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856, to the effect that a master’s duty requires him to make and carry out regulations to render the work of his employees reasonably safe, that an employee does not impliedly assume the risk of injury from dangers against which the master has expressly undertaken to protect him, and that the fellow- ■ servant rule has no application when ■ the negligent employee is charged .with a duty which the master is bound to fulfil, ■ applied to a personal-injury case growing out of the operation of a , stone-quarry.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Apportionment by State Board of Equalization — ■ Duty of County Clerk. Where the state board of equalization duly apportions the tax for state purposes among the several counties of the state, and determines that the assessed value of all taxable property other than railroad property in any county shall be increased a given per cent, in order to produce the amount of state taxes so apportioned to such county, and this action of the board is duly certified to the county, clerk of the county, then it becomes the duty of such county clerk either to increase the assessed value of the property as directed or to increase the existing rate thereon so that the tax for state purposes produced from the taxable property of such county other than railroad property at the increased value or. rate, as the case may be, will, together with that produced from the railroad property in such county at the existing rate, equal the amount of state tax as apportioned to such county.</p> <p>2. - Rate Increased by County Clerk — Railroad Property Included — Illegal Tax. Where a county clerk, in such a case, instead of doing as above stated, increased the existing rate sufficiently to carry out the intent of the board of equalization, as above indicated, but such increased rate was applied to all the taxable property in the county, including railroad property, then the tax produced from railroad property by reason of the increase of the rate thereon is excessive and illegal.</p> <p>3. -Recovery of Illegal Tax Paid under Protest. Where a railroad company is required, under circumstances as stated in paragraph 2, to pay such excessive and illegal taxes, the same may be recovered.</p> <p>• 4. Petition — Recovery of Illegal Taxes — Demurrer. The petition in this case examined and found to state a cause of action, and the demurrer thereto should have been overruled.</p>

Error from Atchison district court; Benjamin F. Hudson, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds — Contiguous Irregular Tracts — Presumption. Where a tax deed has been recorded more than five years it will be presumed that several subdivisions of land described therein, appearing to be contiguous, comprise one entire tract. This presumption will prevail although the boundaries of such lands are irregular or unusual.</p> <p>2. - Evidence that Distinct Tracts Were Conveyed. As against the grantee of such a tax deed, in possession, it is not error to reject testimony offered to show that such a body of land was patented, owned and conveyed in three distinct tracts.</p>

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

<p>Error from Crawford district court; Arthur Fuller, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Limitation of Action — Beginning of Prosecution. A prosecution by information for a felony is commenced on the date the warrant which is executed is placed in the hands of the officer for service, and not on the date the information is filed; and upon the hearing of a motion to quash an information which states an offense the prosecution of which is apparently barred the court may examine the prior proceedings to ascertain the time when the action was in fact begun.</p> <p>2. -Complaint and Warrant — Waiver of Defects. If upon his arrest for a felony the party charged consents to a con- ■ tinuance, and without objection to the complaint or warrant gives bond to appear at a later date' and answer, he waives all defects in the complaint and warrant and thereafter cannot be heard to say they were insufficient to begin a criminal action against him and arrest the running of the statute of limitations.</p> <p>3. -- Detention for Preliminary Examination — Sufficiency of Complaint and Warrant. A complaint and warrant for a felony which state the date of the offense as “the blank day” or “the-day” of a month and year named are.sufficient to authorize the detention of the party charged until a preliminary examination can be held; and this is true although the prosecution apparently is barred by the statute of limitations.</p> <p>4. Larceny — Property Brought into this State — -Conflict of Laws. In a prosecution under section 285 of the crimes act (Gen. Stat. 1901, § 2286), providing that every person who shall steal or obtain by robbery the property of another in any other state, territory or country, and shall bring the same into this state, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken within this state, the question whether the property brought into the state was stolen is to be determined by the law of this state.</p> <p>5. - Changing Brands on Cattle. If a person in another state mark or brand, or alter the mark or brand of, any animal the subject of larceny and the property of another, with intent to steal it or to convert it to his own use, so that if the marking, branding or alteration were done in this state he would be guilty of the larceny defined by section 83 of the crimes act (Gen. Stat. 1901, §2076), and then brings such animal into this state, he may be convicted of the offense denounced by section 285 of the crimes act.</p> <p>6. -Information, In a case of the character just described the offense may be charged in the information as simple larceny.</p> <p>7. — -- Instructions — Recent and Unexplained Possession of Stolen Property. An instruction regarding the incriminating effect of the recent and unexplained possession of stolen property modeled after the fifth paragraph of the syllabus of the case of The State v. Cassady, 12 Kan. 550, criticised but not condemned.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Malicious Destruction of Property — Abatement of a Nuisance. In a prosecution upon a charge of the ma- . licious destruction of property, based upon the act of the defendant in cutting down a telephone pole erected in a public street in front of a lot owned by him, where there is evidence tending to show that the pole was without necessity or reason so placed as to hamper him in the use of his property, and that this inconvenience could have been easily remedied by moving the pole a.few feet to a position where it would serve its purpose equally well, it is material error for the court to instruct the jury that no one has a right to destroy the property of another under the claim that it is a nuisance unless it has been declared to be such by some competent authority or by a judicial determination.</p>

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

Original proceeding in mandamus. STATEMENT. This is an original action in. mandamus, brought by Bernard Hiekert, the assignee of school-land certificates issued in 1885 to the south half of section 16, township 3, range 38 west, in Cheyenne county, Kansas, to compel the county treasurer and the county clerk to receive plaintiff’s tender of delinquent interest and taxes on the land which have been in default since 1894, and to issue to plaintiff renewal certificates of…

<p>Appeal from Shawnee district court; Alston W. Dana, judge.</p> <p>STATEMENT.</p> <p>Allen Hansford was prosecuted on a charge of statutory rape. Issue was joined by a plea of not guilty and the case brought on for trial. A jury was duly impaneled, its members' having satisfactorily answered all questions touching their qualifications as jurors. The trial was entered upon, witnesses were sworn and examined, and the case proceeded until adjournment at the end of the day. On the following morning when the court convened the trial judge said:</p> <p>“Gentlemen, the court is informed that one of the jurors has a statement that he wants to make, and [addressing the juror], Mr. Landis, you may now have an opportunity to make such a statement as you have.”</p> <p>The juror, S. C. Landis, arose in the jury-box and said:</p> <p>“If the court please, after hearing the plaintiff’s testimony yesterday there was refreshed in my mind a circumstance similar to the one that we are trying, or have been trying here, and it has put my mind in such a shape that I am not sure whether I could give both the state and the defendant the same trial, and I ask to be excused.”</p> <p>Mr. Waters, one of the attorneys for the state, then questioned the juror and the juror answered as follows :</p> <p>“Ques. I understand, Mr. Landis, that this was an affair that occurred in your own family. Ans. In my father’s family.</p> <p>. “Q. In your father’s family? A, Yes, sir.</p> <p>“Q. As I understand it, the relation of this testimony here as given by the witness has not only refreshed your recollection but has arrayed in you some sort of prejudice and bitterness against a person charged with that sort of crime? A. No, it is the other way. I am afraid I cannot give the state a fair trial.</p> <p>“Q. You have a prejudice?”</p> <p>Here the court said, addressing the juror:</p> <p>“I may remark here, Mr. Landis, that it is not necessary and not proper either for you to state on which side your prejudice is; it does not make any difference. We are as much concerned here that the defendant should have a fair trial as the state, and that the state should have a fair trial as the defendant, without any prejudice on either side.”</p> <p>Mr. Waters then further questioned the juror, and the juror answered as follows:</p> <p>“Ques. I understand it has revived recollections in your mind by which your prejudices have been aroused? Ans. Yes, sir.'</p> <p>“Q. And to such an extent that in your mind you believe that you cannot sit as an impartial juror and hear this case? A. Yes, sir.</p> <p>“Q. And you think you are doing your duty to arise in court and make that statement? A. Yes, sir.</p> <p>“Q. At this early in these proceedings ? A. Yes, sir.</p> <p>“Q. And you are confident of the situation in your own mind? A. Yes, sir.</p> <p>“Q. And it would be largely prejudicial to one side or the other if you were to continue in this trial? A. Yes, sir.</p> <p>“Q. That the testimony that might come would be colored and prejudiced by your present ideas and opinions? A. Yes, sir.</p> <p>“Q. And wholly revive the revival of that incident that you have spoken of? A. Yes, sir.</p> <p>“Q. And that you think it would be to the interest of common and ordinary justice that you should not continue in this case any longer? A. I do.</p> <p>“Q. And as an honest man you have made that statement to the court? A. Yes, sir.”</p> <p>Mr. Waters then addressed the court and said: “I cannot see but that your honor has got but one duty to perform.” The court, addressing the juror, asked and the juror answered the following question:</p> <p>“Ques. And this condition of your mind has come about, as the court understands it, since you took your oath to sit as a juror in this case? Ans. It has. Yes, sir.”</p> <p>Thereupon the court said:</p> <p>“I think there is only one thing for the court to do under the circumstances, which is in the interest of common ordinary justice, and that is that this juror should be excused and this case Continued until the next term of the court; and the court finds a mistrial, and that the excusing of juror Landis is absolutely necessary for the purposes of justice; and the defendant has an exception to the ruling and decision of the court. Therefore the jury is discharged from further service upon this case, and this case is continued for the term. And the court fixes the amount of bond for the defendant’s appearance at the next term of court at $1000.”</p> <p>The defendant objected to the rulings and order of the court, and also excepted thereto. Later the case was again brought on for trial, when the defendant filed a plea of former jeopardy, alleging the former proceedings, including the discharge of the jury over his objection' and exception, and asking that he go hence without day. A demurrer to this plea was filed by the state, which the court sustained. From this ruling the defendant appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Delegation of Powers — Assessment of Taxes — Appeal to the District Court. The assessment of property for purposes of taxation is not a judicial function, and chapter 3 of the Laws of 1905, providing for an appeal from the county board of equalization to the district court, is unconstitutional and void.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Office and Officers — Veterans’ Preference Law — Constitutionality. Section 1 of chapter 374 of the Laws of 1907, known as the veterans’ preference law, is not unconstitutional.</p> <p>'2. -Appointment — Qualifications—Evidence. Under such law it is the duty of the appointing power to determine whether or not an applicant for appointment has the qualifications required, and such determination, if made fairly and in good faith, is final.</p> <p>:3. - Competency — Requirements. An applicant for appointment under such law, to be competent, must possess the qualifications which are essential to the prompt, efficient and honest performance of the duties pertaining to the office for which application is made.</p> <p>4. -Rights of Qualified Applicant. If the applicant has these qualifications he is entitled to the office.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Delegation of Powers — County Drainage Act. The provision of the county drainage act (Gen. Stat. 1901, §§ 2551-2566) which allows an appeal from the order of the county commissioners requiring a drain to be constructed by the landowners benefited, in consequence of which appeal the final determination of the amount of labor to be performed by each person interested — -in effect the estimate of benefits as a basis for special assessments — is submitted to a jury selected by the probate judge, is not void as an attempt to devolve legislative functions upon a judicial tribunal.</p> <p>2. -Appeal Is in Effect to a Commission Appointed by the Court. Although the proceeding referred to is described in the statute as an appeal to the probate court, and is there spoken of as a “case,” and although the judge is required to make a record of the proceedings of the jury and to make an order in accordance with their report, nevertheless such proceeding is in effect an appeal to a commission to be appointed by the probate judge, and not to the court itself, inasmuch as the court is given no control over the jury’s investigation or decision.</p> <p>3. Appeal Bond — Amount—Validity. Where the statute relating to an appeal bond is silent as to its amount such a bond is not void because the liability thereon is limited to a fixed sum. .</p> <p>4. Notice — Appeal in Drainage Proceedings. Under a statute requiring a written notice of appeal to be given to the county clerk, a notice, otherwise sufficient, which is delivered to the clerk is not rendered void by the fact that it is addressed to the commissioners.</p>

<p>Appeal from Chase district court; Frederick A. Meckel, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Double Liability of Stockholders — Judgment for a Tort. The statute (Gen. Stat. 1901, §§ 1302, 1315) which declared the double liability of stockholders to be an asset of an insolvent corporation, and authorized the appointment of a receiver to enforce it for the benefit of corporate creditors, protected the owner of a judgment founded on tort' as well as claimants whose demands originated in contract.</p> <p>2. -Repeal of a Statute after Rights Have Accrued. In virtue of the general saving clause (Gen. Stat. 1901, § 7342, subdiv. 1) which provides that the repeal of a statute shall not affect any right which accrued under it, the holder of a judgment rendered against a Kansas corporation in an action founded on tort, upon which an execution had been issued and returned nulla bona before the repeal of the act (Gen. Stat. 1901, § 1302) providing that under such circumstances the liability of stockholders might be enforced for the benefit of creditors by means of a receiver to be appointed for that purpose, may have such remedy notwithstanding such repeal.</p> <p>3. - Remedies of a Judgment Creditor. The statute (Gen. Stat. 1889, §§ 1200, 1204) which authorized ah action to be brought on a corporate debt directly against the stockholder of a corporation that had ceased business for a year conferred no right of action upon one having a claim founded on tort against a corporation whose operations ended January 15, 1899, for the reason that such, statute was repealed January 11, 1899, and after its repeal no remedy against stockholders remained to such a claimant excepting that by the appointment of a receiver.</p> <p>4. -Appointment of a Receiver — Limitation of Actions. Under the statute (Gen. Stat. 1901, § 1302) which authorized the appointment of a receiver of an insolvent corporation to enforce the personal liability of stockholders for the benefit of corporate creditors whenever an execution on a judgment against the corporation should be returned nulla bona, in the absence of special circumstances demonstrating insolvency in some other manner, the statute of limitations did not begin to run against a creditor who wished to invoke that remedy until the rendition of a judgment and the issuance and return of an execution, provided he showed reasonable diligence in causing these steps to be taken; where the court at the time of giving judgment stayed execution for five months, pending the making of a case for review, the fact that the plaintiff consented to such stay will not be deemed to show a want of diligence; and an action was begun in time if brought within three years from the expiration of such stay.</p> <p>5. - Transfer of Stock — Failure to File Statement with the Secretary of State. The statute (Gen. Stat. 1901, § 1283) providing that as soon as a transfer of stock is shown upon the books of a corporation the president and secretary shall file with the secretary of state a statement of such change, and that no transfer of stock shall be legal or binding until such statement is so made, imposed upon those who at the time of its enactment owned corporate' stock, and thereafter sold it, the duty, in order to relieve themselves of liability for debts of the company, of procuring a record thereof to be made in the office of the secretary of state; and although one who sold stock caused a transfer thereof to be duly entered on the books of the company, thereby charging the corporate officers with a duty under the statute to cause the public record to be made, unless he took some further step to secure the performance of such duty he remained chargeable with the corporate debts.</p> <p>6. Constitutional Law — Obligation of Contract. So interpreted, the statute did not so impair the obligation of the stockholder’s contract resulting from his ownership of the stock as to render it obnoxious to the federal constitution.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Liability of Stockholders — ‘‘Dues.” In the provision of the Kansas constitution (Art. 12, § 2; Gen. Stat. 1901, § 211, repealed in 1906) that “dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder” the word “dues” was used in a sense broad enough to cover a judgment rendered against a corporation in an action founded upon tort.</p> <p>2. -Rights of Creditors — Unsatisfied Execution — Judgment for Tort. In view of such interpretation of the constitutional provision referred to, section 1192 of the General Statutes of 1889 (repealed by chapter 10, Laws of 1898), authorizing the owner of a judgment against a corporation upon which an execution had been returned unsatisfied to proceed against any of the stockholders and hold them liable thereon to the extent of the amount of their stock, applied to judgments founded on tort as well as upon contract, notwithstanding that elsewhere in the sainé act the person to whom the right is given is described as a creditor of the corporation and the claim against it as a debt.</p> <p>3. -Liability of Stockholders. Said section imposed upon the stockholder a liability for the payment of corporate obligations, including those founded upon tort, to the extent of the stock owned.</p> <p>4. Constitutional Law — Appointment of Receiver for a Corporation — Obligation of Contract. Section 1302 of the General Statutes of 1901 (repealed by chapter 152, Laws of 1903), which substituted for all other methods of enforcing the individual liability of stockholders an action to be brought by a receiver, was available against stockholders who became such prior to its enactment. Its application- to them did not constitute an impairment of the obligation of the contract arising out of their membership in the corporation, even although the new remedy might be more efficient than the old and might incidentally under some circumstances prove somewhat more burdensome, so long as it involved no actual increase in their liability.</p>

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. This was an action to recover damages for the killing of four head of cattle at a highway crossing by the defendant company.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds — Recorded Five Years — Statutory Form Not Literally Followed. In this case it is held that a tax deed which had been of record more than five years before any suit was commenced attacking it is not void on its face because it omits the word “publicly” from the clause in the statutory form reading “at . . . the sale begun and publicly held” etc.; or because it substitutes the words “no person bid” for the words “said property could not be sold” in stating the necessity for a sale to the county; or because, instead of using the statutory language relating to the assignment of the tax-sale certificate and all the right,, title and interest of the county in the property, it merely states that the county clerk duly assigned all the right, title and interest of the county in the property. The case of Bowman, et al., v. Cockrill, 6 Kan. 311 (1870), and numerous subsequent cases decided by this court, cited and followed.</p>

Error from Geary district court; Oscar L. Moore, judge. STATEMENT. Held: that the contract amounted to a sale of pianos by plaintiff to Shillito with the not unusual reservation of title as security for the purchase-price. A great deal of evidence, both oral and written, was introduced by both the plaintiff and the defendants, the transcript of which covers seventy-eight pages of the record.

<p>SYLLABUS BY THE COURT.</p> <p>Mechanic’s Lien — Interest of Lessee under a Mineral Lease. The case of Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048, followed, and held, that a mechanic’s lien will not attach to the interest acquired in lands by the lessee under an ordinary oil or gas lease notwithstanding oil or gas is discovered.</p>

Error from Chautauqua district court; Granville P. Aikman, judge. STATEMENT. ON August 18, 1903, S. W. Pennel executed and delivered a gas lease to S. Breckenridge, which was subsequently assigned to, and is now the property of, the Bellevue Gas and Oil Company.

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. The National Live Stock Commission Company, hereinafter -referred to as the National company, is a corporation doing business in Chicago and St. Louis. J. A. Rudolph is a farmer and agistor residing in Cowley county.

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Burden of Proof. The rule announced in the case of McCormick v. Holmes, 41 Kan. 265, 21 Pac. 108, that it becomes immaterial upon whom the burden of proof rests when all the evidence concerning the transaction inquired into is introduced, applied in an action by a landowner to quiet title against a forfeited oil lease.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Evidence—Separate Actions by Husband and Wife. “Where a husband and wife bring separate and successive actions against the same defendant for damages for personal injuries sustained by the wife, the judgment in one action is not evidence in the other.” (23 Cyc. 1263.)</p>

Error from Bourbon district court; Walter L. Simons, judge. STATEMENT. Henry Morrison brought this action in the district court of Allen county against the United Zinc & Chemical Company and H. Hobart, sheriff, to recover damages for the wrongful attachment of property. The cause was tried before the Honorable Travis Morse, judge pro tern., and a jury, and, on September 26, 1903, the jury returned a verdict in favor of plaintiff for the sum of $330.

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Gift Inter Vivos. The unconditional delivery of personal property by the owner to another, with intent that such other shall immediately and permanently become the owner thereof, and the acceptance of the same by such other, constitute a gift inter vivos.</p> <p>2. - Delivery to a Third Person for Donee’s Benefit. Where the donee is absent or unable to take the gift personally, delivery as above stated to a third person for the benefit of such donee will make the gift complete and valid as if accepted by the donee in person.</p> <p>3. - Trust Created. A gift made to a third person for the benefit of another creates a trust which will be administered and controlled like other ordinary trusts.</p>

<p>Error from Lyon district court; Frederick A. Meckel, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Personal Property — Evidences of Debt Kept in a Foreign State. Promissory notes belonging to a resident of Kansas, given by residents of Missouri and secured by trust deeds of real estate in Missouri, which never have been brought into Kansas but which are left for safe-keeping only in the vault, of a bank in Missouri, constitute personal property in this state which has its location in the county, township and school district of the residence of its owner within the meaning of the act relating to the assessment and collection of taxes.</p> <p>2. -Proceeding to List Property Not Returned — Correction of Assessor’s Return. If by proceedings instituted and conducted under section 7599 of the General Statutes of 1901, authorizing the correction of false tax statements, it be discovered that an owner who appears and resists the inquiry omitted to list specific items of taxable personal property in the statement which he gave to the-assessor, and such property is duly valued and the proper amount of taxes thereon is charged against the owner on the tax-roll,-an omission of the county clerk formally to correct the assessor’s return is a mere irregularity which does not vitiate the tax.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Husband and Wipe — Descents and Distributions — Wills-—-Election. The statute (Gen. Stat. 1901, § 7979) requiring a widow to elect whether to accept the provisions of her deceased husband’s will or to take what she is entitled to under the law of descents and distributions applies also to a husband for whom provision is made by the will of his deceased wife. In view of its origin and its intimate connection with the act relating to descents and distributions it must be deemed to be affected by the language of section 28 thereof (Gen. Stat. 1901, § 2529), that provisions of that act in relation to the ' widow of a deceased husband shall be applicable to the husband of a deceased wife.</p>

Error from Graham district court; Charles W. Smith, judge. STATEMENT. This was an attachment proceeding on a claim before it was due. The claim consists of two promissory notes, one of which is dated February 24, 1906, for $70, and became due .one year after date ; the other is dated March 1, 190.6, for $43.50, and also matured one year after date. The defendants in error are the makers of the notes, and the plaintiff in error the owner and holder thereof.

<p>SYLLABUS BY THE COURT.</p> <p>1. RAILROADS' — Injury to Employee — -Defective Appliances. Where the rules of a railroad company require the employees, in case of danger to the company’s property, to unite to protect it, and where, in. a case of apparent danger to such property, a conductor orders his brakeman to stop a moving car from which such danger by an impending collision with a pile-driver may be fairly anticipated, the brakeman, if he has no knowledge or notice to the contrary, may act upon the assumption that such car is furnished with the ordinary and proper appliances for the safety of employees in performing their duties.</p> <p>2. Master and Servant — Contributory Negligence — Assumption of Bisk. Where a master orders a servant into a situation of danger, and in obeying the command the servant is injured, he will not be charged with contributory negligence, or with an assumption of the risk, unless the danger was so glaring that no prudent man would have encountered it, even under such orders, provided he acts with reasonable prudence in executing such orders.</p> <p>.3. -Negligence a Question for the Jury. Whether the hazard is so great that a reasonably prudent man would not undertake the service required, and whether, when undertaken, the employee proceeded with reasonable care, are, where the evidence is conflicting, as in this case, questions of fact for a jury; and the finding of a jury thereon, where proper instructions were given, must be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Death — Presumption—Unexplained Absence — Inquiry. Following Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 2 L. R. A., n. s., 809, it is held that the inference of death to be derived from the unexplained absence of a person from his home for a period of seven years is, at best, only a presumption, and it cannot arise unless the absence remains unexplained after diligent inquiry is made of the persons and at the places where tidings of the absentee, if living, would most probably be had.</p> <p>2. -Mere Absence Will Not Raise the Presumption. .The removal of a person to another part of the country, or his mere absence from a former home, where he has been unheard of for seven years, does not create the presumption of death.</p> <p>3. - Diligent Inquiry Indispensable. If the absentee left without intending to return and there is a change of domicil the fact that he has not communicated with, or is unheard of by, those remaining at his former home will not raise the presumption of death. That presumption does not arise until due inquiry has been made at his last known domicil and of the persons likely to know of his whereabouts, if living.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Executor’s Sale — Jurisdiction■ — Estoppel. Whether or not, upon an application by an executor for an order to sell real estate to pay debts, a probate court has jurisdiction to determine a question of adverse title, a creditor of the estate who with full knowledge of all the facts accepts payment of his claim out of the proceeds of such a sale cannot be heard to deny the purchaser’s title upon the ground that the testator before his death had conveyed the land to such claimant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Words and Phrases — Cause of Action — “Arisen” and “Accrued” are Synonymous. The words “where the cause of action has arisen in another state,” as used in the statute of limitations (Code, § 22; Gen. Stat. 1901, § 4450), mean when the cause of action has accrued in a foreign state, or, in other words, when the plaintiff has the right to sue the defendant in the courts of such foreign state; and they have no reference to the origin of the transaction out of which the cause of action arose.</p> <p>2. Limitation of Actions — Conflict of Laws. An action on a promissory note cannot be maintained here under section 22 of the code of civil procedure where both the plaintiff and the defendant were non-residents of Kansas when the cause of action accrued and the defendant resided in a foreign state until the cause of action was barred by the laws of that state.</p>

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraud — Misrepresentations in the Sale of Personalty — Question for a Jury. In an action where a party seeks to recoup for deceit practised in the sale of unhusked corn, where there is testimony that the vendor had knowledge and experience which enabled him to determine the quantity of corn in the field, and that the vendee; who was without knowledge or experience in that respect, relied oh representations and assurances of the vendor, fraudulently made, that there was a certain quantity of corn in the field, and the sale was made on that basis for a certain price per bushel, and it turned out upon measurement that there was less than one-third of the stated quantity, held, that the representations of of the vendor were more than mere expressions of opinion and belief, and whether théy constituted a fraud on the vendee was a question of fact for the jury.</p> <p>2. -Promissory Note — Bona Fide Purchaser — Burden of Proof. Where it is shown that a note has its inception in fraud the burden of proof is shifted to the indorsee, or holder, to show that he acquired it for a valuable consideration and without notice of defenses or of circumstances which should have put him upon inquiry.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sale of Personalty ■ — Rescission. An oil-tank for the storage of oil, as between buyer and seller, is a chattel, and the contract of purchase may be rescinded by the purchaser for failure to furnish one of the kind and quality agreed upon, the same as in the sale of other chattels.</p> <p>2. -Restoring the Status Quo. In such a case the right to rescind, when otherwise existing, will not be denied on the ground that the parties cannot be placed in statu quo, when the purchaser has not received and accepted the tank and the seller has parted with nothing by reason of the sale except the waste of material incident to putting the previously manufactured parts together and the cost of labor in so doing.</p> <p>3. - Same. The rule that upon the rescission of a contract for the purchase of a chattel the parties must be placed in statu quo does not require, in all cases, that an absolute and literal restoration of the parties to their former condition shall be had, but it will be sufficient if such restoration be made as is reasonably possible, and such as the merits of the case demand.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Notice — Lis Pendens. The rule of lis pendens has no application to independent titles, not derived from any of the parties to the action nor from any one in privity with them.</p> <p>'2. Title and Ownership — Possession Acquired Pendente Lite —Presumption. All persons entering upon the possession of premises after the commencement of an action for the recovery thereof are, in the absence of evidence to the contrary, presumed to have so entered under the defendant therein.</p> <p>:3. Ejectment — Execution and Return of Writ — Presumption as to Regularity. Where the sheriff, under a writ of possession, returns that he has executed the writ, and has put out a person, naming him, who was not a party to the action, and has put the plaintiff in the writ in possession, it will be presumed, in the absence of evidence to the contrary, that he has performed his duty properly, and that the person so removed held under a party or some one in privity with a party to the action, and was therefore bound by the judgment.</p> <p>4. -Successful Party Entitled to Emblements. Crops immature and growing on real estate when the successful party in an action of ejectment is placed in possession of the premises are part of the real estate, and in the absence of proof' showing any right of severance belong to such successful party.</p>

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

<p>Error from Wallace district court; James H. Reeder, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Foreign Corporations — Parties—Plea in Bar — AlUgatioris and Proof. In order that a defendant sued by a foreign corporation may avail himself of the bar provided in section 1283 of the General Statutes of 1901 it must be pleaded and must appear from the evidence: (1) That the plaintiff is a foreign corporation; (2) that it is doing business in this state; (3) that it has not obtained a certificate of the secretary of state that statements provided for in that section of the statute have been properly made.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — Delivery of Official Records — Parties. Where the title to the office of county treasurer has been determined by the district court on proceedings in error from a contest court, and the execution of such judgment is not stayed, the state may, upon the relation of the county attorney, maintain mandamus to compel the delivery of the money, books and records of the office to the person so adjudged to be elected, although the defeated party in the contest is prosecuting proceedings in error in this court from such judgment.</p>