Volume 78 — Kansas Reports

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Special Assessments for Improvements — Foreclosure of Tax Lien — Liability to Contractor for Proceeds of Tax Sale. Where special assessments were levied in 1886 upon abutting property to pay for the improvement of a street in a city of the first class, for which special-assessment bonds were issued by the city and were not paid when due, but remained delinquent for a number of years, and where a suit for the foreclosure of the tax liens against the property was brought under chapter 392 of the Laws of 1901 (Gen. Stat. 1901, §§ 7718-7724), under which the liens were foreclosed, the property sold, and the proportion of the proceeds of the sale paid over to the city treasurer, and where the city, upon demand, refused to pay such proceeds to the contractor, an action therefor against the city may be maintained.</p> <p>2. - Compromise of Delinquent Taxes by Request of the City — ■Liability to Contractor for the Amount of the Special Tax. After the special assessments, regularly made upon several lots to pay for the street improvement, and the special-assessment bonds issued by the city had been in default for a period of years the mayor and council of the city passed a resolution requesting the board of county commissioners to authorize the redemption of the lots upon the payment of a small sum and the erection of a certain building on the property. The board acted upon the request and ordered the re-' demption of the lots substantially on the conditions named in the resolution. In an action against the city to recover the amount of the assessments it is held that, as the board of county commissioners was vested with the power to order a compromise and redemption for such an amount as it deemed best, and as the board was not bound to heed the advice or request of the city officers, the action of the city officers in passing the resolution requesting the redemption did not affect the power or action of the board nor make the city liable to the contractor for the special assessments.</p> <p>3. - Purchase by the City of Lots Subject to Special Tax— Liability to Bondholders. Where the city purchased several of the lots which had been assessed for the improvement, to be used in connection with its fire department, and thereafter appropriated them to that public use, thus making it impossible to enforce the tax liens arising upon the special assessments and the special-assessment bonds issued by the city, it became absolutely liable to the contractor for the amount of the assessment bonds.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Conversion of. Municipal Warrant — Interest. Where the custodian .of a municipal warrant sells it without authority before funds have been raised by the municipality for its redemption, and thereby becomes liable for its conversion, the measure of damages to the payee does not necessarily include interest up to the time of its payment.</p> <p>2. Petition — Action'on State Treasurer’s Bond — Conversion of a Warrant — Nominal Damages. A petition which alleges that the state treasurer, having custody of a municipal warrant issued for an indebtedness due to the state, sold it without authority before it was reached for payment, for its face and interest to the time of such sale, turning the money into the treasury, does not show grounds for the recovery by the state of more than nominal damages against the treasurer, where there is no allegation that the warrant at the time of the sale was worth more than the amount then paid for it. The lack of such allegation is not supplied by an averment that some time after such sale the warrant was paid in full by the municipality issuing it, with interest to the date of payment.</p>

Error from Lyon district court; Fredeeick A. Meckel, judge. STATEMENT. A MORE detailed statement of the facts involved in this action will be found in Holderman v. Hood, 70 Kan. 267, 78 Pac. 838, Benson v. Battey, 70 Kan. 288, 78 Pac. 844, and Martindale v. Battey, 73 Kan. 92, 84 Pac. 527, the last two cases being separate appeals in the same action. In all of these cases the same facts were pleaded by this plaintiff in error and the sufficiency of such pleading was involved.

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Evidence Seeming to Justify a Larger Award. Where in an action to recover damages for an assault and battery the amount of recovery has been determined by the verdict of a jury, and the verdict'has been approved by the denial of a motion for a new trial, held, this court will not reverse the judgment for the reason only that the evidence may seem to justify the recovery of a larger sum.</p>

Error from Logan district court; James H. Reeder, judge. STATEMENT. ■ This is a suit to quiet title. Frank Tucker was in possession of the real estate in controversy,' claiming title thereto under a tax deed. On September 1, 1903, he commenced this suit in the district court of Logan county, making W. W. Drury, the original owner of the land, defendant. W. H. Wagner was the attorney for Tucker, and John B. Ennis represented the defendant.

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

Error from Shawnee district court; Alston W. Dana, judge. statement. The ¿Etna National Loan Company was incorporated in, 1891, under section 1426 of the General Statutes of 1889, for the purpose of accumulating and loaning funds, the erection of buildings and the purchase and sale of real estate for the mutual benefit of its members.

<p>Error from Labette district court; THOMAS J. FLANnelly, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Appeal from Justice of the Peace — Defective Bond. Where an undertaking on appeal from the judgment of a justice of the peace in forcible entry and detainer, defective because of the omission of the words “from the date of the undertaking until the delivery of the property” (Justice’s Civ. Code, § 132a), was accepted and approved by the justice, and the transcript on appeal was certified to, and filed in, the district court, jurisdiction of the action was conferred upon that court to take all proper prQceedings therein.</p> <p>2. Practice, District Court — Leave to File Sufficient Bond. The seasonable application of the appellant for leave to file a good and sufficient undertaking duly tendered in court ought to be allowed.</p> <p>3. - Dismissal — Appeal Bond. It is error to dismiss the appeal for want of jurisdiction after such application has been made and such undertaking tendered.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Estoppel — Claim to Property — Notice to Purchaser. One who,, having previously claimed to have a mortgage on personal property, notifies the buyer of it at a public sale that he claims a right to it is not estopped to assert full title thereto by the fact that in giving such notice he does not specify whether he claims as mortgagee or owner.</p>

Error from Lyon district court; Frederick A. Meckel, judge. STATEMENT. The case was tried without a jury, upon the following agreed statement of facts, from which the issues in the petition may fairly be inferred: “Plaintiff is the father of W. H. Lowe; the latter was, upon the 9th day of January, 1906, and for a long time prior thereto, employed by said, defendant as an express messenger.

<p>Error from Pottawatomie district court; Robert C. Heizer, judge.</p>

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

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

Error from Dickinson district court; Oscar L. Moore, judge. STATEMENT. This is an action to recover a commission for the sale of real estate. Plaintiff in error owned a farm in Dickinson county, which she desired to sell. She resided in Boston. She placed the property in the hands of the defendants in error, who were real-estate agents at Abilene, for sale.

<p>SYLLABUS BY THE COURT.</p> <p>1. Civil Rights — Suspension—Imprisonment. The suspension of the civil rights of a person sentenced to the penitentiary for a term less than life begins at the date of his imprisonment under the sentence.</p> <p>2. Deeds — Executed Pending a Stay of Execution of a Sentence of Imprisonment. A sentence to the penitentiary for a term of years does not make void a conveyance duly executed by the convict before he is imprisoned under the sentence and while execution of the judgment of conviction is stayed by proceedings upon appeal to the supreme court.</p> <p>3. -Delivery — Escrow. The manual deposit of a deed with a third party, to receive and hold for the grantee, with intent thereby to give it effect as a conveyance and to place it beyond the custody and control of the grantors, with a declared or manifest purpose of making a present transfer of title, is a sufficient delivery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Notice — Bona Fide Purchaser — Sufficient to Put u/pon Inquiry. A purchaser who gains information affecting an estate-from one instrument is ordinarily chargeable with notice of the contents of other instruments affecting the same estate to which an examination of the first instrument would naturally have led him.</p> <p>2. - Amount of a Note Referred to in a Mortgage. One-who buys lands subject to a mortgage the record of which does • not definitely show when the mortgage debt shall become due, nor the amount required to satisfy it, but does show that under certain contingencies the amount named in the mortgage may be increased by interest charges, and does refer to a note from which the extent of the debt and mortgage lien may be ascertained, is chargeable with notice of what might have been discovered by an examination of the note and of all facts that he could have obtained by diligent inquiry.</p> <p>3. Estoppel — Statements by Agent Holding Note for Collection. A statement, made to the purchaser by one who held the note and mortgage as a collection agent, which gives the original amount of the note and the payments indorsed thereon, but does not undertake to give all of the terms of the note or the amount remaining unpaid, does not estop the mortgagee from collecting the full amount of the debt as shown by the note.</p>

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

<p>syllabus BY THE COURT.</p> <p>1. Evidence — Mutuality of a Marriage Contract — Self-serving Declarations. Where in an action for damages for breach of promise to marry the defendant has introduced evidence intended to prove that the plaintiff, during the time the engagement is claimed to have existed, declared to others that she would not marry the defendant, it is not error to permit the plaintiff to give evidence of her declarations during that period of her being engaged to marry him, for the purpose of showing the mutuality of the contract.</p> <p>2. - Same. In such a case declarations of the plaintiff to other persons with regard to the conduct of the defendant with respect to his agreement to marry her are not admissible.</p> <p>3. -Objection to Incompetent Question Overruled — Exception Not Waived. When an incompetent question has been objected to, and an exception has been taken to the overruling of it, it is not necessary for the objecting party, in order to have the benefit of the exception, to renew his objection where in response to a suggestion from the witness as to the manner of his answer the examiner tells him to proceed in his own way.</p> <p>4. Marriage Contract — Consideration. The evidence examined and held not to show conclusively that the contract relied upon by the plaintiff was based upon an unlawful consideration.</p> <p>5. -Promise Made before Divorce Becomes Absolute. Notwithstanding the language of the statute (Gen. Stat. 1901, § 5142) that every decree of divorce shall recite that it does not become absolute and take effect until the expiration of six months from its date, a party to a divorce proceeding may within six months from the time a decree is rendered make a valid contract to marry after the lapse of that interval, the provision referred to having been interpreted as a mere restriction upon marriage within that time.</p> <p>6. -Denial of Promise — Action for Breach before Divorce Becomes Absolute. Where in an action for damages for breach of promise of marriage the principal contention of the defendant is that he never made such a promise, and the evidence conclusively shows that if an engagement to marry - ever existed it had been utterly repudiated by the defendant, he is not in a position to claim that the action was prematurely brought by reason of its having been begun within six months from the time a divorce had been granted to him.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Form of Objections — Self-serving Declarations. Where a witness is asked what a party, in whose behalf he is called and examined, had said about the subject-matter of the litigation, an objection to the question on the ground that a self-serving declaration is thereby called for is sufficiently indicated by the use of the term “incompetent”; and the addition of the words “irrelevant and immaterial” do not so far detract from its force as to render it unavailing' on review.</p> <p>2. -General Objection, on Oral Examination, to Testimony yn Part Admissible. The rule that a general objection to ■ evidence will not avail when any portion thereof is admissible does not apply without modification to an objection, made in the course of the oral examination of a witness, to a question which includes several different propositions, a part of which are not subject to the objection. Ordinarily it is incumbent upon the examiner to frame his-question so that in its entirety it is free from the objection made; otherwise the objection should be sustained.</p>

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

Holt, Judge. statement. James Smith was charged with murder in the first degree, and was convicted of murder in the second degree on March 2, 1907, in the court of common pleas of Wyandotte county. The homicide was committed in a joint, where the deceased, Mike Gilpin, was a bartender. The appellant is a colored man. He went into, the joint, upon invitation of a white man by the name of McCarty, to get a drink.

<p>Appeal from McPherson district court; Peter J. Galle, judge.</p>

<p>Appeal from Bourbon district courtWalter L. Simons, judge.</p>

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

<p>Original proceeding in mandamus. ■</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Repeal of a Statute — Penalty for a Crime — General Saving Clause. Where, upon the repeal and amendment of a section of the statute which prescribes a penalty for a crime, no saving clause is embodied in the amendment, the general saving clause in section 7342 of the General Statutes of 1901 applies.</p> <p>2. Words and Phrases — “Penalty Incurred.” The words “penalty incurred” in section 7342 of the General Statutes of 1901 are used in their primary and ordinary meaning, which is, a punishment brought upon one’s self, and therein are especially, if not solely, applicable to criminal cases.</p> <p>3. Criminal Law — Murder—Bail. A person charged with the crime of murder in the first degree, at a time when the statute prescribed the penalty of death for the offense, is not, where the proof is evident or the presumption great, entitled to bail, although the prosecution for the offense may have been commenced after the repeal of that penalty and the enactment of an amendment imposing the penalty of imprisonment for life.</p>

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

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

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

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

<p>Sales — Notice of Fraud — Innocent Purchaser. One who bought land with sufficient notice of the purpose of his vendors to defraud their creditors to put a reasonably prudent person upon inquiry was not an innocent purchaser.</p>

<p>Tax Deeds — Assignment of County’s Interest — Consideration. A tax deed held void on its face because it showed that the interest of the county was assigned for less than the amount necessary to redeem.</p>

<p>Mandamus — Change of Venue. It was said that if an error was committed in denying a motion for a change of venue it could be corrected in a proceeding in error, and mandamus could not be employed to compel the trial court to allow the motion.</p>

<p>Error from Woodson district court; Oscar Foust, judge.</p>

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

Error from Anderson district court; Charles A. Smart, judge. STATEMENT. SARAH and Jennie Dalton are sisters. At the time of the transaction out of which this action arose Sarah resided near Fontana, in Miami county, with her father; Jennie was then living with a sister at Moline. Sarah was twenty-four years of age and Jennie twenty. On August 27, 1899, they met by appointment at Kansas City.

Error from Reno district court; Peter J. Galle, judge. STATEMENT. R. F. Fleming cultivated wheat on lands rented under an agreement to deliver to the owner one-third of the wheat, when harvested and thrashed, for the use of the land. Late in the fall of 1904, after the wheat was sown, Fleming removed from the farm to a place twelve miles distant, • leaving the farm vacant.

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation .of Actions — Amendment of Petition. Amendments which only amplify or make more specific the averments of the original petition, or which state the wrong suffered or right relied on, are ordinarily permissible and’ will relate back to the beginning of the action; but where the amendment sets forth a new and.different cause of action the statute of limitations continues to run until the amendment is-filed. ...</p> <p>2. -Injury by Fire.. In an action to recover damages for the negligent setting out of a fire which destroyed the plaintiff’s trees the original petition alleged that the fire was negligently set out at a certain time and place,- and after the period of limitation had-expired the plaintiff obtained leave to amend his petition so as to aver that the damage .resulted from another and different fire,.which was started five miles distant from the one relied on ip the original petition. ’ Held, that the amendment set out a distinct and different tort and ■a new cause of action, upon which a recovery was barred by the statute of limitations.</p>

<p>Error from Cloud district court; William T. Dillon, judge.'</p>

Error from Cloud district court; William T. Dillon, judge. STATEMENT. This action was commenced by the defendants in error against the plaintiff in error in the district court' of Cloud county. The petition set forth a written contract, which the plaintiffs alleged was entered into between them and defendant’s agent, for the purchase of a bill of jewelry.

Error from Scott district court; Charles E. Lob-dell, judge. STATEMENT. The plaintiff, B. Vogeli, brought this action against the bank to recover the proceeds of a check for $1800, the signature to which he claims was forged. The facts, briefly stated, are as follow: On May 4, 1904, plaintiff had on deposit in the defendant bank the sum of about $4000.

<p>SYLLABUS- BY THE COURT.</p> <p>1. Limitation op Actions — Municipal Corporations. . The rule that statutes of limitation do not apply to actions by the state unless a legislative intention that they shall do so is shown by express language or appears by the clearest implication also applies to subordinate political bodies,' including municipal corporations, with respect to any litigation- to enforce ■ governmental rights. ■ -</p> <p>2. -Recovery of Taxes Paid by a City and Diverted by a County. Where a county diverts to its own treasury a part of the money it has collected upon taxes levied by a city no statute of limitation runs against an action by the city to recover the amount so wrongfully withheld.</p>

Error from Smith district court; Richard M. Pickler, judge. STATEMENT. On the evening of March 4, 1904, C. Hansen, while attempting to cross the Chicago, Rock Island & Pacific railroad at a road-crossing about five miles west and south of Smith Center, was killed, and his administrator commenced this action in the district court of Smith county to recover damages sustained by the next of kin on account of such death.

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation of Actions — Review of Order Overruling a Demurrer. An order pverruling a demurrer made and entered more than one year before the filing of the record in the' supreme court can not be reviewed.</p> <p>2. - Subject-matter in Custodia Legis — Suspension of the-Statute. . The fact that the subject of an action is held in. custodia legis in another action in which the defendant is not. a party nor in privity with a party, and over which he has no-control, will not suspend the running of the statute in his favor.</p> <p>3. -- Acknowledgment of a debt. An acknowledgment in writing that a debt once existed, but which does not contain an admission of a present, subsisting debt on which the party is liable, is insufficient to avoid the bar of the statute of limitations.</p> <p>4. Jurisdiction — Joinder of Parties — Process Served in Another County. A defendant who is served with summons in a county other than the one in which the action is brought will not be held bound by such service if the resident defendant was joined for the purpose of obtaining jurisdiction of the person of the former and not in good faith to recover a judgment against him.</p> <p>5. - Same. The rule above stated will not be applied against an innocent party who, in good faith and in the honest belief that his cause is just and that he has a right to recover against the resident defendant, is defeated by him upon the plea of the statute of limitations, after a full trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. ADULTERY^Fuidewce. The sexual intercourse of a married man with a woman other than his wife, whether married or single, is adultery upon his part within the meaning of the statute making adultery a misdemeanor.</p> <p>2. Slander — Evidence—Pleading. Where a petition in an action for slander alleges that the defendant said of the plaintiff, a married man, intending thereby to charge him with the offense of adultery: “B. was undoubtedly down the railroad track with some woman; I believe it; he is guilty, I know he is,” it is error to sustain an objection to the introduction of any evidence upon the ground that the words complained of are not susceptible of the meaning attributed to them or that sufficient facts are not pleaded to show that they were used in that sense.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Interest of Insured in Benefit Fund. While the beneficiary named in the certificate of a member of a fraternal benefit society may be changed by the member, in accordance with the laws of the society, the insured has no interest in the fund derived from his membership, nor can such fund become a part of his estate or liable for his debts.</p> <p>2. --- Act Disposing of Insurance Money Not Applicable. Chapter 271 of the Laws of 190E relates to insurance companies and ordinary insurance, and has no application to fraternal benefit societies or to the benefits resulting from membership in such societies.</p>

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

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

<p>Error from Atchison district court; Benjamin F. Hudson, judge.</p>

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. The plaintiff in error brought this action in the district court of Sedgwick county to recover damages for , the loss of a horse and household and other goods, which were shipped on the 28th day of May, 1903, over the defendant’s line of railroad at Galesburg, 111., to be delivered at Wichita, Kan., on the same line.

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Special Assessments • — • Injunction — Limitation of Actions. Section 130 of chapter 122 of the Laws of 1903, which forbids any action or suit to be maintained for the purpose of enjoining any special assessment for public improvements after the expiration of thirty days from the time the amount of such assessment is ascertained, applies to cases where the assessments have been relevied, and notwithstanding the suit to enjoin is based upon a judgment holding the original levy void.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Net Profits — Computation and Division — Agreement between City and Gas Company — Sale of ■ Gas for “Domestic Purposes.” In consideration of the franchise and the transfer of certain leases, wells and city bonds the defendant company agreed to pay to the city, annually, one-fifth of the actual net profits derived from the sale of gas to the inhabitants of Erie for domestic purposes. In a suit for an accounting and recovery of such profits it is held: (1) That the company, with the aid contributed by the city, was to create and own the necessary instrumentalities for producing and distributing gas, in which the city has no proprietary interest and in the cost of which it has no voice or concern. (2) In computing, the profits to be divided the expenditures of the company for these instrumentalities can not be charged as expenses against, its receipts from the sale of gas. Such expenditures constituted the company’s contribution to the plant with which it was to. produce and distribute the product. (3) The cost of operating, the plant in furnishing gas within the city upon which profits, are to be divided, including necessary repairs, should be charged as expenses, to be deducted from the amount received for such gas, in order to determine the profits thereon. Such expenses will not include expenditures for new wells, mains or other permanent improvements or betterments; nor the cost of supplying gas and making other sales in the profits of which the city does not share. (4) “Domestic purposes,” as the term is here used, includes gas furnished, for homes,, churches, stores, offices, and the opera-house, where its principal use is for heating and lighting, and not for power.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Time of Payment Not Conditional. A written instrument by which the maker acknowledges an indebtedness and agrees to pay it as soon as. he can is to. be ■ construed as a promissory note payable within a reasonable time. ' '</p> <p>2. Pleadings — Action on a Note — Defendant’s Financial Ability to Pay. In an action upon such an instrument the plaintiff is not required to plead that the defendant has the financial ability to pay it.</p> <p>3..- Wayit of Consideration. A promissory-note recited as its consideration a personal indebtedness owing by the defendant to the plaintiff. In an action thereon the answer alleged that the note was given without consideration, and set out additional facts showing that at the time of its execution the defendant held the amount of the note in trust for the plaintiff and another person. Held, that the answer was good as a plea of want of consideration, and that the recital of a personal indebtedness in the note did not conclusively establish a settlement of the trust.</p> <p>SYLLABUS BY THE COURT.</p> <p>WILLS — Construction. Upon a question involving the interpretation of a part of a will reading “I . . . make the following disposition of my property . . . eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton without bond — they to pay heirs such rate of interest as shall be agreed upon, until children become of age — and she remains unmarried' — -in such case money shall fall to my legal heirs,” held, that the words “in such case” are equivalent to “in case she remarries.”</p>

Error from Rawlins district court; Abel C. T. Geiger, judge. STATEMENT. The plaintiff in error brought this action in the district court of Rawlins county to recover the possession of a certain tract of land, and for the rent thereof. The •defendant answered and set up a tax deed to the land which had been of record more than five years, under which he claimed full title to the land, and denied the plaintiff’s right to recover.

Error from Cowley district court; Carroll L.. Swarts, judge. STATEMENT. On July 5, 1905, Eleanora Miles, a widow, executed and delivered to T. M. James, as trustee, a certain deed. The deed recites that Mrs. Miles, who resided at Burden, Cowley county, owned and possessed certain real estate and personal property. The real estate, which is fully described, consisted of several farms-in Cowley county and a number of city lots in Kansas City, Mo.

Error from Clay district court; Sam Kimble, judge. statement. This is a suit to compel the specific performance of a contract. The contract sought to be enforced consists of an ordinance passed by the city of Clay Center, the provisions of which have been performed by the defendant in error. The ordinance was enacted April 22, 1886. The provisions thereof which are involved in this controversy read: “Section 1. Franchise, Grant of.

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

<p>Error from Pottawatomie district court; Robert C. Heizer, judge.</p>

<p>Judgments — Res Judicata — Special Tax — Injunction. A judgment enjoining a city from making a special assessment for-an improvement on account of irregularities in the proceedings did not prevent the city from relevying the assessment, by proper proceedings.</p>

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

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

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

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

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

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

<p>Error from Rush district court; Charles E. Lobpell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Employee — Assumption of Risk. “.A servant assumes the ordinary risks of his employment in cases where its dangers are open to common observation and are as fully known to him as to his employer, and where he is as capable of knowing and measuring the dangers of such' employment and is not induced to continue in. the work by any promise of betterment or indemnity from his; employer. In such a case the servant can not recover from. his employer damages for any injury that may come to him; in the course of his employment.” (Walker v. Scott, 67 Kan-814 [syllabus], 64 Pac. 616.)</p>

Error from Marion district court; Oscar L. Moore, judge. statement. Arthur Assman, while attempting to cross the track of the Chicago, Rock Island & Pacific Railway near Tampa with a load of coal drawn by a team of young horses owned by his brother, Carl Assman, was struck by a passing freight-train and injured, the team being killed. The brothers each brought an action in the district court of Marion county.

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Incompetent Testimony Introduced by One Party —Repetition by the Other' Party. If a party by cross-examination elicits and restores to the record incompetent testimony which, upon his motion, had been stricken out, he is not prejudiced by the repetition of such testimony on redirect ex- . amination.</p> <p>2. Contracts — Liquidated Damages. The extent of a possible future loss to be paid in the event of a breach of contract may be agreed upon in advance, where there is difficulty in determining the extent of the loss and the resulting damages are uncertain. In such a case the amount so fixed, if reasonable, will be allowed when the default occurs.</p> <p>3. - Same. This principle is often applied to contracts for building, and when the sum named is not excessive it is generally held to be liquidated damages and not a penalty.</p> <p>4. - Construction. The use of the words “forfeiture,” “penalty” and “liquidated damages” in such contracts is not controlling, although due weight should be given to such expressions, in connection with other parts of the agreement, the subject-matter, and other facts and circumstances.</p> <p>5. - Transportation — Notice to Carrier of Consequences of Delay — Damages. Where materials for a building had been delivered to a carrier for transportation, which was unreasonably delayed, and the consignor paid to the contractor, who was the consignee, the • amount previously agreed upon as damages for the delay in the completion of such building caused by failure to receive the materials in due time, the carrier will be held liable for the amount so paid, in the absence of evidence of bad faith in making the settlement or that the amount paid was excessive, if properly notified at the time of shipment of the use intended and the consequences of delay.</p>

Error from Lyon district court; Frederick él.. Meckel, judge. STATEMENT.

Error from Doniphan district court; William I. Stuart, judge. STATEMENT. This is a suit to set aside certain deeds executed by Sarah E. Brady in her lifetime, and also for a partition of the property among her heirs. She died in February, 1906, leaving the plaintiff, Martha A. Fuller, and her other children, named as defendants, as her only heirs.

<p>SYLLABUS BY THE COURT.</p> <p>Sales — Abstract of Title — Refusal to Accept Proffered Title. A contract for the sale of land provided that the vendor should furnish an abstract showing satisfactory title to the property. In an action against the vendee for damages for his failure to perform it was alleged that the vendor furnished an abstract showing a good and sufficient title. Held: (1) The vendee was the party to be satisfied. (2) It was immaterial that the title was good if the vendee in good faith was not satisfied with it. (3) In order to withstand a demurrer it was essential that the petition either allege that the title was satisfactory to the vendee or show that the vendee did not act in good faith.</p>

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

Error from Franklin district court; Charles A. Smart, judge. STATEMENT. This action was brought by the defendant in error to recover of the plaintiff in error the sum of $33.25, excess freight charges claimed to have been paid by Eelf to the railroad company for transporting a carload of freight from El Eeno, Okla., to Harris, Kan. Judgment was rendered for the amount claimed, and the railroad company brings the case here.

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Transcript—Incorporation in the Record — Procedure. Under the provision of chapter 320 of the Laws of 1905, a party who desires to cause the evidence taken in an action to be made a part of the record may do so in the following manner: (1) By obtaining a certified transcript of the evidence from the official stenographer and filing it with the clerk of the district court where the trial occurred. (2) By giving notice in writing of such filing to the adverse parties or their attorneys of record, as provided in section 3 of such chapter. (3) The adverse parties, if they find the transcript, incorrect, may, within fifteen days after it has been filed, suggest amendments thereto, and present the same, after five days’ notice to the adverse party, to the judge who tried the case for settlement, after which it will become a part of the record. (4) If no objections be made to the transcript within fifteen days after it has been filed with the clerk, it will become a part of the record without further action. (5) After the evidence has been made a part of the record in this manner it must be included in every transcript of the record of such action. (6) If the party preparing such transcript so desires he may, without waiting for the expiration of the fifteen days, upon notice to the adverse parties or their attorneys of record, present the transcript for settlement to the judge who tried the case, and, if the adverse parties consent thereto, such settlement will be deemed the same in effect as if done at their suggestion. (7) The certificate of the stenographer is sufficient to authenticate the transcript of the evidence in the first instance; if it is subsequently settled by the judge, his certificate is sufficient to authenticate it as a full, true and complete transcript; and a transcript of the record which includes the settled transcript of the evidence, certified by the clerk in the form prescribed by the rules of this court, will be deemed sufficient to confer jurisdiction upon this court.</p> <p>2. CONVEYANCES — Expectancy—Judgment Lien. Where a debtor against whom there existed a valid judgment lien expected to inherit certain real estate from his mother (who was seriously ill andAOon thereafter died), and conveyed by warranty deed, while his mother was living, the lands which he expected to inherit from her, the grantee in the conveyance took the property subject to the judgment lien.</p>

<p>Error from Allen district court; Travis Morse, judge pro tern.</p>

<p>Error from Dickinson district court; R. F. Thompson, judge pro tem.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Injury to Employee — Assumption of Risk. An employee of a railroad company, by continuing to use a defective appliance with full knowledge of its condition, thereby waives the right to recover for an injury caused by such defect, and assumes the risk incident thereto.</p> <p>2. -Promise to Repair Defective Appliance. An employee who has waived the right to recover for an injury caused by a defect in an appliance and assumed the risk, as above stated, will be relieved from such responsibility if he requests the company to repair the defect and receives a promise that the requested repairs will be made, and, because of such promise, remains in such employment.</p> <p>3. -Same. Before such a request and promise will relieve an employee of the assumption of risk, the request must be made for the purpose of securing protection by the employee from apprehended danger to himself, and his continuance in the employment thereafter with the defective appliance must be induced by the promise to repair.</p> <p>4. Railroads — Defective Appliances — Assumption of Risk by Injured Employee. The plaintiff was a section-hand in the employment of a railroad company. With other employees he used a hand-car that had brakes which were so worn and defective as to be practically useless. This defective condition continued for more than two weeks. It was open to ordinary observation, and for this period was well known to the plaintiff. The plaintiff spoke to the foreman about the defect and told him it ought to be repaired. The foreman stated that he intended to repair it, but they would use it without the repairs for the present.' At this time the plaintiff did not regard the defect as dangerous, and his only purpose in calling the foreman’s attention to it was that, if repaired, the car could be handled more conveniently in their work. Some days afterward the plaintiff was thrown from the car and injured. The injury was d :e to the.defective brakes. Held, that the plaintiff waived the defect and assumed the risk, and the railroad company is not liable in an action for damages for such injuries.</p>

<p>Error from Cherokee district court; Corb A. Mc-Neill, judge.</p>

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

<p>Error from Neosho district court; Leander Still-well, judge.</p>

<p>syllabus BY THE COURT.</p> <p>.'Practice, Supreme Court — Amount in Controversy — “Exclusive of Costs” — Attorney’s Fee. The words “exclusive of costs,” as used in subdivision 3 of section 542 of the civil code, mean such costs as are provided for by statute and may be computed and taxed by the clerk of the court, and do not include any allowance as an attorney’s fee to the prevailing party, the amount of which can not be computed and determined under statutory provisions but must be determined judically by the court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Interest of a Partner. The interest of each partner in the partnership property is his share of the surplus after the payment of all partnership debts and the settlement of all accounts between himself and his partners.</p> <p>2. -Sale of a Partner’s Interest to a Third Person — Limitation — Accounting. A partner may dispose of his interest in the partnership to a third person. The only limitation on this . right is that he can not, by such transfer, introduce the purchaser into the firm without the consent of the other partners. In equity the purchaser acquires the right to call for an accounting and settlement.</p> <p>3. -Purchase and Sale of Real Estate — Tenants in Common — Accounting. A number of persons formed a partnership for the purpose of carrying on a lumber and tie business, and purchased a tract of land, taking the title in one of the number in trust for the partnership. No attempt .was made to carry on any business. In view of the construction placed upon the partnership agreement by the parties, and the absence of anything in the agreement to the contrary, held: (a) The partners owned the real estate as tenants in common, and one partner could sell his interest therein at any time without the consent of his partners. (5) The purchaser of the interest of one of the partners is entitled to an accounting for his share of the proceeds as against one who purchased the interests of the other partners and disposed of the real estate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Reply — New Matter. Where a defendant in a civil action files an answer which, in addition to a defense to the cause of action- stated in the petition, alleges facts which constitute a new and independent cause of action by way of set-off, and prays for judgment thereon, the plaintiff may not in his reply aver new matter which constitutes a counter-claim or set-off upon which he asks for affirmative relief, but his statements must be confined to facts which constitute a defense to the answer.</p>

<p>SYLLABUS BY THE COURT)</p> <p>1. Navigable Rivers — Evidence. The fact that a government surveyor meandered the banks of a river is evidence that the river was navigable, but is not conclusive of that fact.</p> <p>2. -Same. Chapter 97 of the Laws of 1864, declaring the Smoky Hill and other rivers not navigable, does not conclusively establish the fact that they were navigable before, although affording an implication that they had been theretofore so considered.</p> <p>8. - Same. Both upon the evidence in this case and as a matter of judicial knowledge the finding of the district court that the Smoky Hill river was not navigable is affirmed.</p> <p>4. Title and Ownership — Mill-dam Site — Evidence. The finding of the district court that the defendants’ ancestor owned the land on the banks of the river where he erected the dam in 1874 is sustained by the evidence reviewed in the opinion.</p> <p>5. Waters and Watercourses — Mill-dam—Abandonment—Forfeiture. The conclusions of the district court that the defendants’ mill-dam had been only partially destroyed, and that reasonable efforts were made to rebuild the same, the mill being intact, were supported by the findings; and the forfeiture provided by section 16 of the mill-dam act (Gen. Stat. 1901, § 4108) if the owner, “in case the said dam and mills connected therewith shall be destroyed, shall not begin to rebuild it one year after such destruction, and finish it in three years,” did not take effect.</p>

Error from. Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. The petition in this case alleged a partnership between the plaintiff and others associated with him for the purchase and sale of a tract of real estate on speculation. The title stood in the name of James S. Foote. The firm of Johnston & Blackwelder, real-estate agents, assuming to represent Foote, procured the sale to be made.

Error from Sumner district court; CARROLL L. Swarts, judge. STATEMENT. E. V. Snively brought this action in the district-court of Sumner county, and his amended petition purported to state two causes of action: (1) For damages for the breach of a written contract of employment, and (2) for a balance claimed to be due him under the contract for the full term of employment specified, therein.

<p>SYLLABUS BY THE COURT.</p> <p>Corporations — Misconduct of Officers Prohibited by By-laws— Dealing in Futures — Good Faith — Ratification — Notice — Joinder of Actions. A company was chartered to purchase, sell, ship and handle grain, live stock and other farm products. Its by-laws prohibited the company or any of its officers from speculating in options on grain or other farm products, and provided that any officer guilty of such misconduct should be personally liable to the company for any damage resulting therefrom. In an action by the company against one who acted as its general manager to hold him personally liable for losses caused by his speculation in options with the funds of the company, held: (1) A petition which sets up several causes of action which are alleged to have resulted from the failure of the defendant to perform his duties as manager of the company is not subject to demurrer on the ground of misjoinder of causes of action sounding in tort and on contract. (2) The following language of the by-laws of the company: “or shall engage in speculating, or in options on grain, stock, or produce,” taken with its context, means the making of contracts in which the parties speculate in the rise and fall of prices. (3) Where it appears from the findings that the company, under the direction and management of the defendant, engaged in speculating in options on grain, the real question at issue is not whether the transactions were illegal and void, but whether they were in violation of the by-laws and resulted in loss to the company for which the defendant is liable, (4) The fact that the board of directors knew that the defendant was violating the by-laws and failed to take any action to prevent him from so doing can not be held a ratification by the company of his unlawful conduct. The board of directors could not bind the association by ratifying transactions which the by-laws expressly prohibited, for the reason that the by-laws furnished the rules of conduct for the officers of the association and applied as well to the directors as to the defendant. (5) In such an action it is no defense that some of the losses which accrued to the company arose out of speculative transactions which were made by the defendant in good faith and for what he deemed the best interests of the company. (6) Upon the findings showing the manner in which the business of the company was conducted and the necessity for the employment of an assistant general manager the court can not say, as a matter of law, that it was the duty of the defendant to know each day all that- was done by his assistant.</p>

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

Flannelly, judge. STATEMENT. On November 9, 1906, an information was filed in the district court of Montgomery county against appellant which reads: “In the name, and by the authority, of the state of Kansas, I, Thomas E. Wagstaff, county attorney, of Montgomery county, in the state of Kansas, who prosecutes for and on behalf of said state in all courts holden in said county, and duly authorized and empowered to inform of all offenses committed therein, come now here and…

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Officers — Ordinances—Publication. Where the revised ordinances of a city of the first class are published in a book by authority of the city, an ordinance embraced in such book in which it is provided that it shall take effect upon such publication is sufficiently published, and will take effect accordingly, if more than fifty copies of such book are issued.</p> <p>2. Criminal Law — Complaint—Date of Alleged Offense. A complaint for the violation of an ordinance relating to labor on Sunday which alleges that the offense was committed on the - day of October, 1907, on the first day of the week, commonly called Sunday, is sufficiently specific as to time.</p> <p>3. - Violation of Sunday Labor Law. To keep open, manage and superintend a theater and sell tickets therein on Sunday is labor within the meaning of an ordinance which provides that “every person who shall either labor himself, or compel his apprentice, servant or any o.ther person in his charge or control to labor or perform any work other than the household offices of daily necessity, or other work of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor.”</p>

<p>Error from Marion district court; OSCAR L. MOORE, judge.</p>

<p>Sales — Agency—Authority—Termination. Agents employed to find a purchaser of real estate contracted to sell the land, at an agreed price. The owner sent the deed to a third party, with instructions to deliver it on receipt of the purchase-price. Subsequently the agents made a different contract with the vendee, but it was not binding on the landowner.</p>

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

<p>Office and Officers — Forfeiture—Neglect of Duty — Intoxicating Liquors. A judgment of ouster was rendered against a mayor who neglected to notify the county attorney of known violations of the prohibitory liquor law or make a bona fide attempt to enforce the law, and who sanctioned the' imposing of fines upon the joint-keepers at regular intervals as a means of raising revenue for the city.</p>

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

<p>Motions relating to the disposition of a fine imposed by the supreme, court.</p>

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

<p>Error from Wyandotte district court; J. McCabe Moore, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation of'Actions — Action on a Note — Foreclosure of a Mortgage. In a suit to recover upon a promissory note, and to foreclose a mortgage given to secure the payment thereof, the limitation of time for bringing the action is prescribed by section 4446 of the General Statutes of 1901 (Civ. Code, § 18), and section 4444 (Civ. Code, § 16) is not applicable thereto.</p> <p>2. - Debt and Security — Absence from the State. In such a suit the same limitation applies to each branch of the case, and if the action is maintainable upon the note it is maintainable upon the mortgage.</p>

STATEMENT. This suit was commenced by the filing of a petition in the district court of Jackson county, in the name of the state, on the relation of the county attorney, as plaintiff, against the appellant, J. H. Johnston, his wife, and the city of Holton, as defendants, perpetually to enjoin the maintenance of a nuisance.

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

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Wanton Negligence — Evidence—Proximate Cause. Plaintiff’s intestate was- riding in the caboose of a freight-train, with the permission of the conductor, but without having paid or. offering to pay any fare, and under such circumstances that the railway company ow.ed him no duty except not to injure him wilfully or wantonly. While the train to which the caboose was attached was standing at a station, in the daytime, a freight-train following ran into the caboose, demolishing it, and the deceased received injuries from which he died. In an action against the railway company to recover for his wrongful death, on the ground that the injury was caused by the reckless and wanton negligence of the company’s employees, held: (1) That the fact that a collision occurred is not prima facie evidence that it was caused by reckless or wanton negligence. In such a case, before the railway company can be held liable, there must be some fact or circumstance in evidence from which the natural and reasonable inference arises that the injury was caused by the reckless or wanton negligence of the employees of the company. (2) The evidence in this case examined and held not sufficient to justify a recovery on the ground that the injury was caused by the reckless or wanton negligence of the employees of the defendant. (3) Upon the findings of the jury that the engineer of the second train saw the first train standing on the track at the station when his train was more than a mile and a half distant, no recovery can be based upon the failure of the crew in charge of the forward train to send back a flagman to warn the rear train, as such failure could not have been the proximate cause of the injury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — General Appearance — Motion. A motion by a defendant to set aside a judgment rendered against him, which contains both jurisdictional and non-jurisdictional grounds, constitutes a general appearance in the ease.</p> <p>2. -Defective Service Cured. In a suit to recover a judgment on a promissory note, and to foreclose a mortgage on real estate given to secure such note, the maker of the note and mortgage having died his administratrix and minor heirs were made parties and served with summons. A decree of foreclosure was taken against the minors as upon default, they not .appearing in the suit. More than ten years afterward, and eight years after the youngest heir had reached the age of majority, they moved to set aside and vacate the judgment on the grounds, first, that they had not been legally served with summons, and, second, that the petition did not state facts sufficient to constitute a cause of action. The district court denied the motion for the reason that the last ground of the motion constituted a general appearance in the case and cured the defective service of summons complained of in the first ground -thereof. Held, not error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Delivery—Evidence. “What constitutes a sufficient delivery of a deed is largely a matter of intention, and the-usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby devest himself of title?” (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.)</p> <p>2. - Same. The controlling question .in this case arises upon the delivery of a certain deed. The evidence is examined, and found to be sufficient to support the conclusion of the district court that the deed had been duly delivered.</p>

<p>Error from Cherokee disrict court; Corb A. Mc-Neill, judge.</p>

<p>■ Appeal from Cherokee district court; Corb A. Mc-Neill, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Appeal from Police Court — New Complaint. Under a statute providing that “on the trial” of'a cause appealed from the police court, “should the complaint be quashed or set aside for insufficiency, or for any other reason, the same may be amended or a new complaint filed” (Laws 1903, ch. 122, § 108a), it is competent for the district court to allow a new complaint to be filed before the trial and without any order having been made quashing or setting aside the original complaint.</p> <p>2. -- Nexo Warrant. In such a case, the defendant being under recognizance, no new warrant need be issued.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Criminal Appeal — Record—Evidence — Instructions. This court can not, on an appeal froni the judgment of a district court in a.criminal action, review any alleged trial errors when the transcript of the proceedings omits all of the evidence introduced, all rulings of the court thereon, and all the instructions of the court to the jury,' given or requested.</p> <p>2. -Review of Evidence. Where the district court has, upon a motion for a new trial, determined facts upon conflicting affidavits and oral testimony, this court will not undertake to weigh such evidence.</p>

<p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Elections — ■Nomination by Primary — Contest. Under the provisions of the primary election law enacted at the special session of the legislature held, in the year 1908 the nomination of a candidate for member of the house of representatives in a district comprising a single county^ may be contested before the tribunal created by section 2703 of the General Statutes of 1901.</p> <p>2. - Filing Objections — Limitation. In such a case the three days’ time allowed for filing objections after the nomination papers have been lodged with the proper officer begins to run from the filing of the certified determination of the state board of canvassers with the secretary of state.</p>

<p>1. Indirect Contempt — Affidavit and Accusation — Verification. In a proceeding for indirect contempt the affidavit and accusation were not defective because they were verified by a stranger to the injunction suit.</p> <p>2. - Evidence. The admission in evidence in a contempt proceeding of matter of which the court would have taken judicial notice was not prejudicial.</p>

<p>1. Contempt — Waiver of Irregularities in the Proceedings. A failure to object to contempt proceedings and the giving oí an appearance bond waived any irregularities up to that time.</p> <p>2. -Jurisdiction — Presumption on Review. It was said it would not be presumed that the district judge acted outside his jurisdiction.</p> <p>3. - Accusation — Copy of Judgment Violated — Judicial Notice. In a contempt proceeding it was not necessary that a copy of the judgment violated should be attached to the accusation.</p> <p>4. - Accusation — Waiver-—-Answer. An answer to the merits waived all technical defects in the accusation.</p> <p>5. - Verification of Accusation — Jurisdiction of Justice of the Peace — Venue—Presumption. The statement oí venue at the top of an affidavit showed that a justice of the peace acted in his county, and in the absence of evidence to the contrary it was presumed he acted in his township.</p>

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

<p>Original proceeding in disbarment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Injury to Real Estate by Fire — Evidence—Value of the Land. In an action against a railway company to recover damages caused by fire, where the property injured was. attached to, and had become a part of, real estate, it is error for the court to refuse to permit the railway company to inquire into the value of the land before and after the fire.</p>

<p>Error from Wyandotte district court; J. McCabe Moore, judge.</p>

Error from Barber district court; Preston B. Gillett, judge. STATEMENT. Charles T. Rudolph was a brakeman and an employee of the Atchison, Topeka & Santa Fe Railway Company. On January 18, 1902, while engaged in the performance of his duties at Sharon, in Harper county, he fell in front of a moving car and was killed. His widow commenced this action in the district court of Barber county to recover damages on account of the death of her husband.

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Corporations — Implied Authority of Officers — Injury to Employee. It is a general rule that persons dealing with the officers of a municipal corporation must ascertain the nature and extent of their authority, but in matters which are the proper subjects of municipal action, where there is no provision of law requiring that such authority shall be given by formal action of the governing body, it may be shown by a course of conduct which induces others honestly to assume and rely upon its existence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Libel — Newspaper Comment — Official Conduct and Character —Privileged Matter. If the publisher of a newspaper circulated throughout the state publish an article reciting facts and making comment relating to the official conduct and character of a state officer, who is a candidate for reelection, for the . sole purpose of giving to the people of the state what he honestly believes to be true information, and for the sole purpose of enabling the voters to cast their ballots more intelligently, and the whole thing is done in good faith, the publication is privileged, although the matters contained in the article may be untrue in fact and derogatory to the character of the candidate.</p> <p>2. - Candidate for State Office — Publication Outside the State. Generally, publication should be no wider than the moral or social duty to publish. If it be designedly or unnecessarily or negligently excessive, privilege is lost. But if a state newspaper published primarily for a state constituency have a small circulation elsewhere, it is not deprived of its privilege in the discussion of subjects of state-wide concern because of that fact.</p> <p>3. Practice, Supreme Court — Instruction Rendered Inconsequential by Special Findings. If on the trial of a suit for libel the jury should find specially from the evidence that the plaintiff suffered no damages from the publication complained of, it will not be presumed that the finding was induced by instructions regarding particular questions in the case not related to that of damages; .and the question whether such instructions misstate the law becomes immaterial, because they could not affect the plaintiff’s substantial rights.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Conveyances — Deed Presumptively a Mortgage. Where at the time of the execution of a deed the grantee and grantor execute a contract by which the former agrees to sell and the latter agrees to buy the land for the amount constituting the consideration of the deed the transaction is at least presumptively a mortgage.</p>

Error from Kingman district court; Preston B. Gillett, judge. STATEMENT. One William Calhoun, in his lifetime, conveyed a. number of tracts of land to his seven children, one of whom was the plaintiff in error, Catherine Calhoun,, and the children at the same time mortgaged the lands-to the father in the sum of $5000.

Error from Shawnee district court; Alston W. DANA, judge. STATEMENT. This is an action to recover the value of a lot of pipe and casing, such as are used in drilling oil- and gas-wells, which the plaintiff claims was converted by the defendants to their own use and benefit, April 3, 1906. The petition of the plaintiff was filed in the district court of Shawnee county on May 12, 1906.

Error from Labette district court; Thomas J. Flannelly, judge. STATEMENT. This action was commenced in the district court of Labette county, on March 29, 1905, to recover moneys advanced on certain bills of lading issued by the defendant, the Missouri, Kansas & Texas Railway Company, to J. K. Davidson & Co. and assigned to the plaintiffs. The defendant operates a line of railway extending from Kansas City, Mo., to Galvestbn, Tex.

<p>SYLLABUS BY THE COURT.</p> <p>Bridges — Authority of Township Boards. Section 7826 of the General Statutes of 1901 does not authorize township boards to provide, either in whole or in part, for the construction of a bridge costing $15,000, and a subscription made by such a board for such purpose in the sum of $1200 is void.</p>

<p>Error from Cherokee district court; Corb A. Mc-Neill, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Administrators — Appointment—Jurisdiction. The appointment by the probate court of a county of this state of an administrator of the estate of one who at the time of his death was an inhabitant and resident of another county thereof is wholly void, and a release of a mortgage belonging to the estate, executed by one so appointed as administrator under color of an order of such court, is without legal effect.</p> <p>2. Estoppel — Heirs■—■ Acquiescence in the Release of a Mortgage — Innocent Purchaser. Where upon the death intestate of the owner of a real-estate mortgage an order is made by the probate court appointing his widow as administratrix, and with her consent a further order is made that she release such mortgage on the ground that at the time of its execution the parties agreed that it was not to be enforced after his death, although such proceedings prove utterly void because taken in the wrong county she can not, after undertaking to release such mortgage on the record as administratrix, assert a right in her own behalf thereunder against one who purchases the land covered thereby in reliance upon such transaction.</p>

Error from Jewell district court; Richard M. Pickler, judge. STATEMENT. B. F. Spatz bought a thrashing-machine from the John Deere Plow Company, for which he gave three notes. The machine was warranted to work, and, if it did not, the notes were to be returned upon delivery of the machine. It did not work, and was returned, and the notes were demanded by Spatz.

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire-insurance — Election of Grounds of Forfeiture by Insurer — Waiver. Where an insurer bases its refusal to pay a loss entirely upon a forfeiture caused by the failure of the insured to comply with a particular condition of thé policy it can not, when sued for the loss, maintain a defense founded upon another alleged forfeiture for violation of other conditions not referred to in such refusal and of which it had knowledge when the refusal was made.</p> <p>2. -Forfeiture — Waiver. A waiver of the forfeitures alleged from the breach of conditions not referred to in such refusal may, in the circumstances stated, be properly found by a jury, when such waiver is an issue upon the trial;</p> <p>3. - Evidence — Waiver of Forfeiture. Making and collecting an assessment upon the premium note given for insurance, after the examination and report of an adjuster showing that a forfeiture for violation of a condition in the policy had been made, and indorsing the payment of such assessment as a credit upon the note after consideration of the report of the adjuster by the executive board of the company, and after knowledge of the circumstances upon which such forfeiture is claimed, were facts from which the jury could properly find that such forfeiture had been waived.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Employee — Assumption of Bisk —Contributory Negligence. An employee of a brick manufacturer was killed by a wall in course of construction falling upon him. His widow sued to recover damages, alleging negligence of the defendant in the construction of the wall, whereby the place in which the employee worked became unsafe.' The defense was based mainly upon an alleged assumption of risk by the employee, and upon his contributory negligence. The jury found- for the plaintiff upon both of these matters. Held: (J) That the findings of the jury approved by the district court, if sustained by competent evidence, must stand; (2) that the findings were sustained by the evidence; (3) that a demurrer to the evidence was properly overruled.</p>

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Forfeiture — Waiver. A fraternal' benefit association will not be permitted to assert a forfeiture-because assessments were not paid at the time stated in the by-laws, where by the adoption of a custom or the course of' its conduct it has led the insured members honestly to believe that the assessments may be paid and will be received, at times other than those 'specified in the rules. (Foresters v.. Hollis, 70 Kan. 71, 78 Pac. 160.)</p> <p>2. Petition — Waiver of Imperfect Allegations. The defendant joined in an issue of fact upon a.n imperfect allegation of the-existence of such a custom, without moving for a more definite' statement, and the question thus presented was fully tried upon the merits. Held, that the defendant can not justly complain of the insufficiency of the petition to present an issue in which it thus voluntarily joined.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Unconstitutionality of a Statute. The unconstituti.onality of a statute or of proceedings under a statute need not be pleaded with any greater definiteness or certainty than other issues, and the determination of whether a material constitutional question is presented is to be made by construing the pleadings according to the usual methods.</p> <p>2. Taxation — Special Assessments — Property Owner’s Right to Notice and a Hearing. The fundamental fact upon which the validity of special assessments rests is an increment of benefit to the property taxed resulting from the improvement, and the property owner must, at some stage of the proceedings, have notice and opportunity to be heard, or the equivalent of such notice and opportunity, before a special assessment can become a valid charge against him.</p> <p>3. - Same. The legislature may lawfully prescribe the rule by which the benefits accruing to real estate from a local improvement shall be apportioned. Should it do so the theory of the daw is that the property owner has been given the equivalent of notice and a hearing upon that subject by representation in the legislature.</p> <p>4. - Same. When one or more essential features of a special-assessment proceeding are committed to some tribunal tor body inferior to the legislature, notice and an' opportunity to contest them must be allowed.</p> <p>-fi. - Same. It is not necessarily fatal to a special-assessment statute that it does not contain an express provision relating to notice and a hearing. When the terms of the statute ^¡permit, such a provision may be implied.</p> <p>*6. -Method of Apportioning Benefit's — ■Front-foot Rule. The legislature may lawfully prescribe the front-foot rule as a reasonable method of apportioning the benefits accruing to real estate from a local improvement. If palpable injustice, result from the application of that rule equity may' interfere, but unless it be patent and obvious that the burden imposed is entirely disproportionate to benefits received the claimed excess will not be enjoined.</p> <p>7. - Notice and a Hearing — Act Unconstitutional. Chapter 132 of the Laws of 1903, providing for the sprinkling of streets in cities of the first and second classes and authorizing such cities to levy a tax therefor, delegates certain essential features of the proceeding to a class of property owners in a manner excluding notice and a hearing to others interested. Therefore it is unconstitutional and void.</p> <p>8. -Special Assessments — Street-sprinkling. The question whether street-sprinkling benefits abutting real estate in the sense that it may be specially assessed to defray the cost is not decided.</p>

<p>Error from Clark district court; Gordon L. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Sale — Redemption Notice — Time in which to Redeem. Where a delinquent tax sale was held on September 4, 1900, and the final redemption notice stated that lands sold at that sale must be redeemed on or before September 4, 1903, or they would be deeded to the purchasers, such notice gave full three years after the sale for redemption, and was not void.</p> <p>2. - Amount Necessary to Redeem — Consideration Stated in Tax Deed. Where a tax deed recites the amount which the grantee in the deed paid for the certificate, giving the date, and also states the amount of subsequent taxes paid, without giving the date of payment, and the final redemption notice gives as the amount necessary to redeem a sum claimed to be in excess of the proper amount, the deed will not be deemed invalid for that reason if the amount of these payments, with interest computed on each sum from the earliest date at which it could have been legally paid, equals or exceeds the sum stated in such notice.</p> <p>3. Practice, District Court — Reopening Case — Additional Evidence. Where the district court, after the trial of a case without a jury, takes it under advisement, and one of the parties on the next day, when court is in session, makes application to introduce further testimony, which is refused for the reason that the evidence should have been presented at the proper time, this court can not say that such action of the court is an abuse of discretion and therefore erroneous.</p>

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

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

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Testimony of Accused Given at a Former Trial Admissible. Where a defendant on trial on a charge of felony voluntarily goes upon the witness-stand and testifies in reference to his connection with the offense charged and the circumstances connected therewith, and after judgment procures a new trial, his evidence, properly identified and reduced to writing by a stenographer at the first trial, may be introduced in evidence by the state upon the second trial.</p> <p>2. -Privilege of Accused — Waiver. In such case, if the accused waives his privilege and takes the witness-stand in his own behalf at any stage of the prosecution, he waives it for every subsequent stage.</p> <p>3. -Absence of a Witness — Testimony Given at a Former Trial. The state may use the evidence of a witness upon the second trial of a felony when the evidence given by the witness on the first trial was reduced to writing and properly identified and at the time of the second trial the witness was dead or was not within the boundaries of the state.</p> <p>4. - Conduct of Prosecuting Attorney in Argument — Discretion of the Court. The extent to which a prosecuting attorney may go in his closing argument in illustrating before the jury what he claims the evidence proves, by placing other •persons or himself in certain positions, is a matter within the ■discretion of the court, and, unless it is shown that such discretion was abused and that the defendant was prejudiced by .an illustration not justified by any evidence in the case, error will not be predicated upon the ruling of the court allowing the same.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — “Reputation” or “Character” of a Witness for Truth^and Veracity. The defendant in a criminal action was charged with larceny, and was a material witness in his own behalf. At the trial the state attacked his reputation for truth and veracity. The defendant then called witnesses and offered to prove by them that they knew his “character” for truth and veracity, and that it was good. An objection was sustained to the testimony on the ground that his “reputation” and not-his “character” for truth and veracity was involved. Held, that inasmuch as the distinction between “reputation” and “character” is not commonly understood by witnesses and the terms are frequently used without discrimination both by the courts and the lawmakers, it was error to exclude the testimony. Under the circumstances of this case, held, the error was prejudicial.</p>

'Wilson, judge. STATEMENT. The appellant was convicted in the police court of the .•city of Wichita of the unlawful sale of intoxicating liquors, and of maintaining a nuisance by keeping a .place where intoxicating liquors were kept for sale, in violation of the ordinance of such city.

<p>Original action in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Larceny—Possession. Where one attempts to steal an article from the person of another, but only succeeds in dislodging it so that it falls to the floor, without having had control of it fór a single instant, the offense of larceny is not complete.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Pleading—Injury to Licensee. In an action for • the recovery of damages for personal injuries the plaintiff can not recover upon any ground of negligence which is not alleged in his petition.</p>

Error from Finney district court; William Easton Hutchison, judge. STATEMENT. This is a suit for the specific performance of a contract for the sale of a quarter-section of land in Finney county. John H. Burnside is the real plaintiff. He had resided in Finney county at the time of the contract for about five years. He was well acquainted with the land and personally interested in other land in that vicinity.

<p>SYLLABUS BY THE COURT.</p> <p>1. Elections — Contest—-Evidence—Estoppel. One who is contesting the returns of a canvassing board and produces the-county clerk and proves by him, “for the information of the-court,” what the returns of the board in fact show, does not. thereby assert the correctness of such returns, nor is he-thereby estopped from proving by a recount of the ballots the-true result of the votes cast at the election.</p> <p>2. - Recount of Ballots — Custody. Upon the trial of an election contest, before the ballots returned at the election-should be recounted by the court as the best evidence of the-result of the election it should be shown that such ballots have-been in the -continuous possession of the officials prescribed by statute, and have been so kept as to render it improbable-that they could have been tampered with; but it is not essential that it should be shown that no alteration thereof was-possible.</p>

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

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

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

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

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

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

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

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

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