Volume 8 — Kansas Reports

Error from Lemermorth District Cou/rt. Action upon a policy of insurance, brought by Mary Cur-ran, as administratrix. In April, 1867, John Curran procured his dwelling in Leavenworth to be insured for the sum of $600 by the Germania, Niagara, Hanover, and Republic Ins. Cos., of New York.

Error from Lemermorth District Court. McDonald brought his action in the district court to recover judgment for fifteen hundred dollars for that much money had and received to and for the use and benefit of plaintiff.

Error from Lea/oenworth District Court. Action by Lucien Scott and Charlotte E. Scott against Perry Fuller and Alexander McDonald, upon an alleged guaranty of a promissory note. One McWhirt made his promissory note payable to the order of Scott, Kerr & Oo. The note and indorsement are set forth in full in the opinion of the court.

Error from Lememoorth District Oov/rt. Action brought by Henry Hale on ’a promissory note dated May 14th, 1867, payable to L. Turner or order, six months after date, for $500, signed by Truman H. Craig, Will E. Tm-ner, J. 8. Jelly, and indorsed by L. Turner and Rob’t H. Howsley, Defendants answered separately, setting up sundry defenses.

Error from, Lea/oenworth District Gowrt. In 1865 and 1866, William H. Hays and Jobn B. Ludlum, partners as Hays & Ludlum, were trading as merchants at the city of Leavenworth. They were indebted to the Boston and Somdwich Glass Company, a corporation organized under the laws of Massachusetts, in the sum of $1,153.24 for goods sold. William H. Hays died March 26, 1866, and in July thereafter Ba/rrmel 8.

Error from Douglas District Oov/rt. George ~W. Seibert as assignee of W. H. R. Lykins brought suit against James F. True to recover $1,880.67 for thirty-seven head of cattle sold by Lykins to True in October, 1867.

<p>1. Equity Jurisdiction; Parties; subject-matter. Wiere a court of equity bas all the parties before it, it will adjudicate upon all the rights of the parties connected with the subject-matter of the action, so as to avoid a multiplicity of suits.</p> <p>2. Sureties ; Securities taken by one Oo-swrety inure to the benefit of all. It is a settled principle of equity that if one of several co-sureties subsequently take a security from the principal for his own indemnity it inures to the common benefit of all the sureties.</p> <p>3. -A. and L. gave their promissory note to T. for money loaned by T. to E. By a subsequent arrangement between E., D. and A., D. conveyed a certain lot in payment of said note, and also in payment of a debt of his own to A., and A. was to pay T. the amount of said note. Afterwards, A. assigned said lot, for the benefit of his creditors gener ally, to S.: Seld — 1st, That L., as a co-surety with A. of the debt evidenced by said note, has a right to have said lot sold and the proceeds apxilied in payment of said note; and 2d, That T., the principal creditor, has, if he chooses, the right, under and through L., to have the said lot sold and the proceeds applied in payment of said note.</p>

Error from, Douglas Disi/riet Oov/rt. Action for an injunction, brought by the plaintiffs in error against the defendants in error. The petition shows that defendant Hoysradt is an attorney and counselor at law; that the law firms of “Hoysradt & Oree,” and “Hoysradt, Brown & Oree,” had rendered professional services for plaintiff Geo.

Error from Douglas District Oowrt. Snyder was prosecuted before tlie police judge of tbe city of North Lawrence for an alleged violation of an ordinance of said city in keeping and using in said city “ a wagon drawn by more than two horses” without paying the license tax required therefor. He was convicted, and fined twenty dollars and costs.

JError from Salme District Oov/rt. Replevin for a horse, brought by Sarah A. Orns, as plaintiff, against Thomas J. Govng. The petition alleged plaintiff’s general ownership and right of possession, and a wrongful taking by defendant.

<p> Error from Miami District Oowrt. </p> <p>Action to establish a trust, and to require trustee to execute conveyance, brought by Wm. G. Krutz and E. S. Campbell as plaintiffs, against Alpheus Fisher as defendant. The material facts alleged in the petition are these: Charles "W. Statham, a resident of the State of Virginia, was the owner in fee of several tracts of land lying in the county of Miiami, in /this State. - He appointed George Eisher, (the father of the defendant,) an agent “ to sell the lands, pay taxes, protect the timber,” etc. '. Eisher resided on lands adjoining the lands of Statham; and the latter transmitted money to Fisher with which to pay the taxes on said lands for the years 1858 and 1859, and a small balance was left in Fisher’s hands as agent. The taxes for 1860 were not paid when due, and before the tax sale for said year Statham was within the “ Confederate lines,” and unable to hold communication with his said agent. Statham’s lands were sold for the taxes of 1860, and were struck off to the county. On the 29th of August, 1863, said George Fisher took an assignment of the certificates of tax sale to himself for the avowed purpose of protecting himself for advances for the taxes; and in the September thereafter said Fisher died. On the 4th of October, 1865, the county clerk made to .the heirs of said Fisher a tax deed for said land, which deed was duly recorded on the next day. By subsequent partition in the' district court of Miami county, all the right of George Fisher’s heirs in a certain quarter-section of the Statham lands, (described in the petition,) became vested in the defendant, Alpheus Fisher, who at the commencement of this action was the holder of the same. The title of Statham became vested in the plaintiffs by deeds conveying the same. The plaintiffs prayed that defendant might be held as trustee, and ordered to surrender his title to plaintiffs, tendering $300 as the amount defendant was entitled to as money advanced on the purchase of the tax-sale certificate, and for taxes, together with interest and costs thereon, and plaintiffs prayed for such other order as equity and good conscience might require. This petition was filed on the 23d of March, 1870. The defendant filed a demurrer, which was overruled. He then answered setting up, first, a general denial; second, title and adverse possession since 1863, derived through a tax-title, with valuable improvements on the land; third, three years limitation; fourth, two two years limitation; fifth, five years limitation; sixth, ten years limitation. The plaintiffs demurred to the last four clauses of the answer jointly. The four clauses of the answer setting up the bar of the statute are as follows:</p> <p>“ 3d.-The cause of action set forth in the petition of the plaintiffs, at the time of the assignment or transfer of the tax certificate of sale to George Fisher, to-wit, Aug. 29,1863,” did not accrue to said plaintiffs within three years before this action was commenced.</p> <p>“ 4th.-Plaintiffs’ cause of action did not accrue within two years from Oct. 5th, 1865, the date of filing and recording of the tax deed for the land in said petition described, before this action was commenced.</p> <p>“ 5th.-The cause of action set forth in plaintiffs’ petition did not accrue within five years before this action was commenced.</p> <p>“ 6th.-The cause of action set forth in plaintiffs’ petition did not accrue within ten years before said action was commenced.”</p> <p>The demurrer to these defenses was overruled, and plaintiffs excepted. The case was then tried by the court on the issues of fact, and judgment was rendered for the defendant, to which plaintiffs excepted. The court did not state the findings of fact, nor does the record contain any part of the evidence. The record shows the finding of one fact only, and that is, that Fisher when he purchased the tax-sale certificate avowed that he was still the agent of Statham. As a conclusion of law, the court found “ that the right of action of plaintiffs is barred by the limitation contained in section 116 of chapter 107 of the General Statutes of 1868.” *</p> <p>The only error assigned in the petition in error, and complained of in this court, is, “ that the district court erred in overruling plaintiffs’ demurrer to the third, fourth, fifth, and sixth defenses in defendants’ answer contained and set forth.”</p> <p>1. The case does not fall either within the letter or the spirit of § 116, ch. 107, Gen. Stat. It is not an action for the recovery of real property sold for taxes. Tbe object of tbe action is not to defeat or avoid a sale or conveyance of land for taxes; Tbe petition is framed on tbe theory that tbe legal title, by reason of tbe sale and conveyance for taxes, was vested in tbe heirs of George Eisber, as trustees of tbe original owner; and tbe prayer is that they may be compelled to convey whatever title they might home acgui/red by reason of said sale and conveyance, to tbe equitable owners of tbe premises.</p> <p>Tbe defendant in error stands in tbe shoes of bis father. By tbe father’s death, and tbe subsequent partition proceedings, tbe legal title vested in him; and it was bis legal and moral obligation to convey such legal title to the plaintiffs in error, and thus discharge tbe trust, tbe plaintiffs tendering defendant tbe money expended in payment of taxes on tbe land and a reasonable compensation for tbe services of bis father as agent.</p> <p>2. To entitle tbe defendant to tbe protection of the’statute of limitation in this case, it ought to appear that, without knowledge of tbe relation of principal and agent existing between bis ancestor and Statham, and without notice of tbe equities of tbe plaintiffs and in good faith, and relying on bis “ color of title,” be made an entry, and has held adversely for tbe requisite length of time.</p> <p>The possession held by Eisber and his heirs was not adverse. It was tbe possession of their principal; and until they bad openly and notoriously, and after full notice to tbe principal, discharged themselves from bis agency, they could not assert hostile title, or bold adverse possession.</p> <p>There can be no diversion of a trust, although tbe exercise of an adverse possession for a great length of time may in equity bar and extinguish a trust. Nothing'short of tbe full statutory period which would bar a legal estate or right of entry is permitted to operate in equity as a bar of tbe equitable estate. This doctrine seems to be admitted by tbe authorities ever since tbe great case of Gholmondeley v. OUnton, 2 Jac. & "Walk. See cases cited in 2 Story Eq. Jur., §§ 1520, 1522, and. Story Eq. PL, §§503, 751, 759; and see 6 Wheaton, 481.</p> <p>3. An agent whose duty it is to pay taxes cannot become the purchaser of his principal’s land at a tax sale. Blaekw. Tax Titles, 401; 5 B. Monroe, 458; 32 Maine, 305; 7 Watts, 472.</p> <p>4. Can it be claimed that the placing of the tax deed on record was an open and notorious renunciation of the ageney % Fisher himself took an assignment of the certificate merely to protect himself for money advanced as agent. The act of the heirs in procuring a deed on the certificate, and placing it upon record after the death of their father, was & fraud; and to sustain their plea of the statute of limitations would permit them to take advantage of their own wrong.</p> <p>5. The rule that a trustee is not allowed to make a profit out of his trust, is based on a principle of human justice, that no person having a duty to perform shall be allowed to place himself in a situation in which his interest and his duty conflict. This principle applies to and includes executors, administrators, guardians, attorneys, agents, assignees, commissioners, sheriffs, and all persons, judicial or private, ministerial or counseling, who in any respect have a concern in the business entrusted to them. 22 N. T., 325; 37 Mo., 559; 42 id., 189; 43 id., 153; 44 id., 444; Sug. on Tend., 566.</p> <p>The case of Baker v. Whitmg, 3 Summer’s O. C., 475, decided by Story, J., is a case similar in fact, and passes upon the questions arising in this case.</p> <p>1. When Fisher took the assignment of the certificate of tax-sale, there was no consideration moving between him and Statham, and no one present on the part of Statham to consent or bind; so that, at that time, no new rights accrued to Statham. The previous agency had terminated; all communication between the parties had ceased.</p> <p>2. The only theory on which plaintiffs can maintain their action is, that George Fishér was, at the time of taking the assignment, the trustee of Statham, for the land, either expressly created, or by implication of law. It is not pretended that there was an express trust; and wre maintain that upon the facts, as shown, there is no trust by implication of law.</p> <p>3. The several pleas of the statute are admitted by the demurrer. Admitting the statutes properly pleaded, are they all, or either of them, a good defense to the plaintiff’s action? The statute begins to run from the date of filing the tax deed for record, which was Oct. 5th, 1865. It does run unless legally prevented. Fraud may prevent it; but no fraud is here shown. A simple breach of trust, even if it existed, is not fraud. Angel on Lim., § 187. There was no conceahnent; and unless there is fraudulent concealment on the part of the defendant, the plea of the statute is not avoided: 3 Greenl., (Me.,) 405.</p> <p>The recording of the tax deed on the 5th of October, 1865, declared the intention of the heirs of George Fisher. This action was commenced March 23d, 1870. More than four years had intervened. The statute bars the action in two years. Gen. Stat., ch., 107, § 116.</p> <p>4. It is nowhere denied by plaintiffs that the possession of Fisher was adverse to that of Statham. Fisher held possession under the tax certificate of sale assigned to him. The heirs oi Fisher held under the tax deed; and Alpheus Fisher under partition and conveyance. All the parties were innocent holders, without any knowledge of Statham’s claims.</p> <p>It is enough that the possession of land be under a claim of color of title to clothe with the character of an adverse holding, to give it efficacy as a defense when of sufficient duration to be a bar. (Tyler on Adverse Possession, p. 863.) Adverse possession may be set up against any title whatsoever, and a title made out under the statute in favor of the possessor. 4 How., 118; 7 Johns. Oh., 113; 6 Penn. St.,210; 8 Ohio, 159; 2 Story Eq., § 1520®.</p> <p>A trustee may deny the right of his cestui que trust, abandon his fiduciary character, and assume absolute ownership of the property held in trust; and the statute of limitations will bar a recovery. Angel on Lim., §§ 174, 472.</p>

Petition for a Writ of Habeas Corpus. Petition filed in this court on behalf of J. W. Wye, for a writ of habeas corpus. The petition alleged that Wye was illegally restrained of his liberty by E. IT. Coates, the sheriff of Lyon county, at the county jail in Emporia; that such restraint was “ upon an order of arrest issued against said Wye in an action before Eelix Gr.

Error from Lea/oen/worth District Qowt. In February, 1865, the corporators of The Missowi Bwer Railroad Company filed their articles of association, or charter, in the office of the… Held: and a board of directors duly chosen. The directors qualified on that day, and elected the usual officers of the corporation for the year. Richards was elected secretary. He entered at once upon the duties of his office, and held such position from that time until August 11th, 1866.

Error from Lyon Listriot Oowrt. Daniel Ulrich and John Bowen, as executors of the last will and testament of Jacob Ulrich, deceased, filed their petition against Barzillad Gray, William Miller and Jane Hicks, for the purpose of setting aside and canceling a certain deed executed by said Jane Hicks to and in favor of said Gray and said Miller, as grantees, conveying or purporting to convey the undivided one-fourth interest in 640 acres of land in Lyon county.

<p>Final Order ; Practice. The denial of a motion to dismiss an action made by the defendant, is not one of the orders of the district court from which, error lies to the supreme court until the final disposition of the action in the court below.</p>

Error from Lea/omworth District Cov/rt. Trespass, brought by McOa/rty. The facts are as follows: In 1862 The Union Pacific Pathway Oo., E. D., commenced proceedings in the district court to have the right of way condemned through the lands of. McCarty, and some fifty other persons. The proceedings were commenced and prosecuted under the provisions of §§ 8 and 9, ch. 86, Territorial Laws of 1855, pp. 916, 917. Viewers were appointed, and their report was filed February 2,1863.

Error from Davis District Oov/rt. James W. Streeter and S. M. Strigklbr presented tlieir petf tion to tbe district court for tbe appointment of commissioners to assess tbe damages sustained by them, as tbey alleged, because of tbe construction of tbe railroad of tbe plaintiff in error over certain lands of theirs.

Error from Dams District Gowrt. Ered Rawallie, defendant in error, brought suit against Ili/ram F. Hale and Elliot W. JRice, to recover $15,000 deposited by him with them on the 25th of March, 1868, and so carelessly and negligently kept by them that it was wholly lost to him. Plaintiffs in error were-bankers in Junction City, and received a package containing the money as a special deposit to be kept over night.

<p> Error from Lememoorth District Oowt. </p> <p>Sarah J. Moore and six others, heirs at law of James C. C. Moore, brought ejectment against Stephen L. North and Maria, J. North to recover possession of a certain lot in the city of Leavenworth. The defendants answered, admitting possession by them, and alleging that on the 15th of September, 1863, in a certain action in the district court of Leavenworth county, wherein Samuel M. Davidson and others were plaintiffs, and James C. C. Moore (ancestor of the plaintiffs) was defendant, a decree was entered whereby the lot in question was to be sold, and that the same was sold and conveyed under said decree, in December, 1863, to 0. and S., who afterward, on the 28th of December, 1863, conveyed said lot to defendant Maria J. North, by deed in fee simple, and that the conveyances were duly recorded. The answer further states that said Ma/ria had ever since occupied said premises by virtue of said purchase, and had made large and lasting and valuable improvements thereon, planting trees and building houses thereon, paid taxes on the premises, etc., and asking, in case her title should fail, that she have the benefit of the “ occupying claimant act.” The plaintiffs filed a reply containing a general denial.</p> <p>The second trial of the action was at the July Term, 1868, before J. A. B .fudge pro tern.; and a jury being waived, the court made a special finding of facts, from which it appears that James 0. C. Moore was the patentee from the government of certain lands .including the lot in controversy; that in 1859 Moore contracted, in and by a title bond, to sell and convey said lot to certain parties, wbo, in June, 1863, commenced an action against said Moore, on said bond, to compel tbe specific performance of said contract; tbat a decree was made and entered in said action, Sept. 15, 1863, “ ordering, adjudging, and decreeing that said James C. 0. Moore within forty days from date of said decree convey tbe said lot to said S. M. D., W. H. L., and S. II., and in case such conveyance should not be made said decree should stand and operate as such conveyance;” tbat in a subsequent proceeding between said D., L., and II., for a partition of said lot, tbe lot was sold pursuant to an order of tbe court, and conveyed by tbe sheriff to 0. and S., wbo by their deed of warranty, sold and conveyed said lot, December 28th, 1863, to Maria J. North; tbat said Moore died in September, 1865; that plaintiffs are bis widow and children. None of tbe evidence is preserved. It was claimed tbat the judgment or decree of Sept. 15, 1863, divesting Moore of bis title was void; and respecting this point tbe record shows tbat tbe court found as follows: “ That in June, 1863, said D., L., and H. commenced an action against said Moore to compel a specific performance of said contract, in which action the summons against Moore was returned ‘not found,’ and steps were taleen to secure constructive service by publication; that after the death of Moore, and in May, 1866, his death was duly suggested to tbe court, and bis administrator, widow, and children were substituted as defendants in said action, and on their application tbe said district court vacated and set aside tbe said judgment or decree of 15th of September, 1863, and declared tbe same to be null and void, and of no effect whatever, for wcmt of jv/risdiotion of the person of James G. O. Moore, the defendant.”</p> <p>As conclusion of law, tbe court found that tbe defendants in error (tbe heirs of Moore) were entitled to recover possession of tbe lot in controversy, and judgment was given accordingly, to which plaintiffs in error excepted. The record continues:</p> <p>“And thereupon came tbe said Maria J. North, by H. & S., her attorneys, and made application to tbe court here for tbe valuation of improvements, and assessment of damages, under the statute ‘for tbe relief of occupying claimants;’ and the court having considered the same, are of the opinion that the said Ma/ria J. North is entitled thereto; whereupon it is ordered that further proceedings may be had in the premises agreeably to the provisions oí said statute as to all improvements made since the 28 th of December, 1863. To which ruling, refusing the benefits of said statute for improvements made prior to said time, said defendants except.”</p> <p>Proceedings were then had as provided by the “ occupying claimant act.” (Oomp. Laws, ch. 25, §§ 3 to 7, p. 122; Gen. Stat., Civil Code, §§ 603 to 607.) No notice was given to plaintiffs in error of the time the jury would proceed to view the premises and assess the value of the improvements; but their counsel attended and took part in the proceedings. The jury assessed the value of the improvements made by Mrs. North since December 28th, 1863, at $250, and the value of the rents and profits of the premises for the same length of time at $222.21, leaving an excess in favor of Mrs. North of $27.79'. Plaintiffs' in error moved to set aside this assessment as being too small, and filed a number of affidavits (all taken without notice to plaintiffs below) in support of said motion. The motion was overruled, and plaintiffs in error excepted.</p> <p>Time had been given to plaintiffs in error to make a case. They prepared and presented their case to the court at the next (September) Term, at which time H. "W. I. was on the bench as judge pro tem. Said judge refused to sign the case, assigning as a reason for such refusal that “ the said cause had not been tried before said H. W. I., judge pro tem.” Plaintiffs in error excepted, and now bring the case to this court on error for review.</p> <p>1. The findings show that a decree of conveyance was made by the district court against the ancestor of the plaintiffs below, and while that decree remained Inform as valÁd and binding, conveyances were made so as to invest the plaintiffs in error with title,'if by virtue of such a decree title could be acquired by an innocent purchaser.</p> <p>The court had jurisdiction of the subject-matter and the contract, but after the conveyance to the plaintiffs in error the decree was set aside on motion of Moore’s administrator and heirs, for want of sufficient service by publication.</p> <p>Section 83 of the code of 1862, (§ 77 code of 1868,) provides for the security of innocent purchasers in case judgment is after-wards opened. 13 Ohio, 445; 15 id., 447, 505; 17 id., 409; 2 Ohio St., 443; Hammond v. Da/oenport, 16 Ohio St., 183. The same reason applies under our statutes that applies in Ohio, as the statutes are copied from that of Ohio.</p> <p>2. The proceedings under the occupying claimant law were restricted by the order of the court to such improvements as had been made after a certain day, being the day on which the deed was made to plaintiffs in error.</p> <p>The statute has received by this court the same construction as that given the same provisions in Ohio; (4 Kas., 353.) The limitation to the operation of the statute deprived the plaintiffs in error of neai’ly all substantial benefit from the law.</p> <p>But we claim that when plaintiffs in error bought of the purchasers at the judicial sale, (who assumed to have and convey title in fee simple,) they occupied the same position as their grantors, and their rights related back to the date of the judgment of Sept. 15th. To deny this proposition is to reach the absurd conclusion that the vendee, by absolute deed, would be estopped from denying the title of any antecedent vendor in the chain of title, and is untenable. 3 Mete., 42; 11 Miss., 298; 1 Ohio St., 390; 3 Ohio St., 344.</p> <p>3. The plaintiffs in error were entitled to a reasonable notice of the time of making the assessment. No such notice was given. 11 Ohio, 35.</p> <p>4. The court erred in refusing to settle the “ case.” It was in the power of the eowrt to settle and sign a ease made, and the defendants could only have excepted to it at the time the first order was made, giving the sixty days, which they did not do. 4 Kas., 563; 1 Monroe, 130, 216; Hardin, 479; 2 JDana, 287; 10 B.,Mon., 37; 1 Gaines, 511; 3. Ohio, 49; 6 Ohio St., 12; 8 id., 201. '</p> <p>1. The defendants below, North and North, acquired the title conveyed by the title bond, and no other or greater. They cannot occupy any better position as against the heirs of Moore than his vendee himself could under said bond. The stream cannot rise higher than its fountain. 3 Kas., 293; 21 Iowa, 474.</p> <p>2. That the defendants, occupying the position that they did, were estopped from denying the title of the plaintiffs, is well settled. An agreement to purchase lands estops the purchaser, and those claiming under him from denying the title of the vendor. 2 Greenl. Ev., §§ 305, 331, note 5; 4 Johns., 202; 14 id., 224; 1 Wend., 418; 7 Cow., 637, 717; 2 Pet., 265, 295; 16 111., 78, 416; 2 Wheat, 224; 2 Eng. L. & E., 325.</p> <p>3. It was not error to limit the benefit of the occupying claimant law to such improvements as were made by the defendants after the 28th of December, 1863. The defendants should not have been allowed for any improvements, their title not being adverse to the title of the plaintiffs. 21 Iowa, 474; 11 id., 473; Walk. Ch., 175; 6 Johns. Ch., 398.</p> <p>For aught that appears in the record, the defendants below had full notice of the title of the plaintiffs below, and did not act in good faith in making any inrprovements. 1 Ohio St., 118.</p> <p>4. The application for the benefit of the occupying claimant law is a separate and distinct proceeding from the main action. 1 Ohio, 156.</p> <p>The proceedings to assess the value of the improvements were regular. There was no error in refusing to set the assessment aside. If any notice was necessary it was waived by the appearance of defendants by their attorney before the jury and taking part in placing evidence before them. The assessment of the value of the improvements was a question for the jury, and their disposition of it cannot be interfered with.</p> <p>Neither the judge jyro tern., (H. W. I.,) nor the court of which he was then acting as judge, erred in refusing to settle and sign the case made and presented, for the reason that he was only a temporary judge, and the case had not been tried before him. He could not on any disputed point decide between the parties. And there is this further reason: the case or copy had not been served as required by law and the rules of the supreme court, such service being necessary in order to give the court or judge jurisdiction. 30 Yt., 277 ; 7 Mo., 250; 19 Johns., 246; 8 Cowen, 746.</p> <p>If the refusal of the court or judge, or both, was correct, it makes no difference whether the reasons given for the' refusal are correct or not. Such refusal is not ground for reversal. The party should proceed by mandamus. 1 Halsted, 370.</p>

Error from Douglas DisPriet Oou/id. Judgment of foreclosure and sale liad been entered in an action wherein Andrew A. Moore was plaintiff, and O. M. Meelc and others were defendants. The mortgaged premises were sold under the judgment, and were struck off'to Ann Smith. Upon return being made by the sheriff, and pending the motion to confirm the sale, Moore moved for an order to correct the judgment, to be entered mmo fro tumo. The facts are fully stated in the opinion.

Error from Leavewworth District Gowrt. Action upon two policies of insurance, brought by Christian Berry and Magdalena Berry, his wife, against the Mansas Ins. Go., of Leavenworth. The Inswra/nce Go., in June, 1868, issued a policy to plaintiffs for the sum of $1,600 upon two store houses situate in the town of Tonganoxie; and in August following they issued a second policy to same parties in the sum of $1,500 upon a stock of goods in one of said stores.

Error from Bowrbon District Oowrt. Replevin, brought by Westenberger, as plaintiff, against Wheaton, as defendant. The plaintiff made and filed the affidavit required by § 177 of the civil code, and upon giving the undertaking required by § 178 he obtained an order for the immediate delivery to him of the property described in his petition and affidavit. The order was executed by the coroner, and the property delivered to Westenberger.

Error from Dea/oenworih District Cowrt. Cohen sued Abeles before a justice of the peace upon an account for goods sold and delivered. The case was appealed to tbe district court, where it was tried in May, 1870. The facts are fully stated in the opinion. Yerdict and judgment for Cohen for $139.98, and Abeles brings the case here on error. [All the propositions contained in their brief are set forth in the opinion of the court.] 1.

<p>1. Mechanic’s Lien; Date of contract; Drror ma/y he corrected. "Where a written statement filed with the clerk of the district court under section 633 of the civil code; in order to preserve a mechanic’s lien, contained a statement that the contract was made “ on or about the 30th day of June, 1869,” such statement, where no one has been misled by it, will not prevent the party claiming the mechanic’s lien from showing that the contract was in fact made about the 22d of said June, and prior to the 28th of said month.</p> <p>2. -Lien attaches at date of contract. Under section 630 of the civil code (General Statutes, 755,) a mechanic’s lien dates from the time of making the contract.</p>

Error from Lea/oenrmorth District Cowrt. Action upon, a stipulation or agreement in a lease to pay taxes, etc. GooUdge owned lot 14, in block 76, in Leavenworth city. In 1865 be leased said lot to Gla/rh for a term of five years.

Error from Lea/oermorth District Gou/rt. Action to foreclose mortgages, brought by John B. Bu/rnes against Wm. A. Smith and Mary Jame, his wife. Eour several mortgages were included in one action. They were given by the same' parties, and upon the same premises. In one of said mortgages the “right of redemption” was waived; in the other three there was no waiver of such right.

Error from Blia/wnee District Oov/rt. The question presented by the record in this case is one of practice, and arises upon the alleged misconstruction of the pleadings, and the instructions thereon given to the jury. The pleadings and instructions, material to the question determined, are set forth in the opinion. The action was ejectment; Willetts had judgment, and Static brings the case here for review.

Eisher was charged by information with having “ on purpose, and of malice aforethought,” wounded one J. A. E., by shooting at said J. A. E. with a loaded revolver, a deadly weapon, with intent to kill him. Plea, not guilty. The case was tried at the March Term, 1871.

<p> Error from Marshall District Gov/rt. </p> <p>Stewart brought his action to foreclose a mortgage executed by Glarh and wife. The mortgage contained a stipulation that all “ incumbrances ” on the land were to be paid before any further payments were to be made on the mortgage. The defense was that certain road taxes assessed on the land were unpaid. The action was tried at the April Term, 1871. Judgment for the defendants. Stewart brings the case to this court.</p>

Error from, Shawnee .District Ooivrt. Action by Phillips on a promissory note. The petition alleged the note was made in April. . At the trial, December Term, 1870, a note made in March was offered in evidence, and being objected to, Phillips asked and obtained leave to amend his petition. This is the error complained of. Judgment for the plaintiff, and Wilson brings the case here for review.

Error from Zea/oenworth District Gowrt. Lobenstein sued Pritchett upon au alleged contract of bailment, to recover the value of sixty-six ounces of gold dust.

Error from By on Distriet Oou/rt. Trespass, brought by Ballou, to recover damages for injuries committed to his sheep by Humphrey’s dogs. The petition alleged that the defendant’s dogs had killed 22 of plaintiff’s sheep, and had injured others of them, and contained the aver-meat that defendant kept “ certain dogs which he well knew were accustomed to hunt, chase, bite, and worry and kill sheep and lambs.” Answer, general denial.

<p>1. Misnomer ; Name of Corporation; Wamw'. A misnomer of the defendant, a corporation, is waived by an appearance and filing an answer to the merits, and cannot be raised by an objection to the admission of testimony.</p> <p>2. Verdict, Setting aside of; Conflicting testimony. Where the evidence is conflicting a reviewing court will not reverse an order of the district court refusing to grant a new trial on the ground that the verdict is contrary to the evidence, unless the preponderance should be very great,</p>

Error from Bov/rbon District Oowrt. Bond brought suit against Wilson to foreclose a mortgage.

The defendant Ethaoi A. McOord was charged by information with the crime of murder in the first degree. Held: then and there willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought did discharge and shoot off, to, against, upon, and through the said L. H.; and that the said E. A. M. with the divers, to-wit, three leaden bullets aforesaid, out of the revolving pistol aforesaid, then and there by force of the…

Error from Lea/oen/worth District Cowt. Caldwell brought his action to recover the value of a mantel mirror, which he alleged was broken and destroyed through the carelessness and negligence of the plaintiff in error.

Error from Ooffey District Oovrt. Achon brought by Venard against Gross, to enjoin defendant from flowing plaintiff’s lands, and to abate defendant’s mill dam.

Error from, Grcmforct District Gowrt. This case was twice brought to this court on error — first by Iloggett, appealing from an order of the district court overruling his demurrer to the petition; afterward by Emerson “ That by the laws of Illinois said notes were not barred by the statute of limitation until they had been due sixteen years, and that said time has not yet elapsed: That in the year 1867 defendant secretly left the State of Illinois, which State had been the…

<p>1. Keplevtn; Undertaking. An undertaking in replevin, otherwise conforming to the statute, and omitting only the clause “ if the property be delivered to him,” is sufficient.</p> <p>2. Exempt Property ; Conveyance not Fraudulent. A voluntary conveyance of property exempt from execution is not void as against creditors.</p> <p>3. Yebdict — Special; Irregulm'; Practice. Where a general verdict is rendered, an objection to an answer to a particular question of fact that it is not sufficiently full and specific, must be made at the time the verdict is rendered, before the jury are discharged.</p> <p>4. Judgment in Replevin; Form of. WTiere a petition in replevin alleges ownership and right to possession in plaintiff, and wrongful detention by defendant, a general verdict for plaintiff finds all these issues in his favor, and the judgment may be entered accordingly. And in such case a judgment that the “ plaintiff have and recover of the defendant the possession of the property described in the petition, or the value thereof in case a delivery cannot be had,” is in proper form.</p> <p>5. Demand — Damages; When demand necessary to maintain Replevin; When Damages recoverable. A detention of property purchased at a judicial sale is not wrongful even against the true owner, until after a demand has been made. Damages in a replevin suit can only be recovered for a wrongful detention.</p>

Error from Woodson District Go%i/rt. Eepleyin, brought by “ The lnhabitcmts of the Town of Leroyf as plaintiff, against W. W. P. McOormell and IF 8. Goss, to recover the immediate possession of the printing press, type, and materials used in printing a certain weekly newspaper at the Town of Neosho Falls. The petition averred the incorporation of the plaintiff under and pursuant to the provisions of the “ Act relating to corporate Towns and Villages,” (ch. 17 Comp.

Error from Miami District Oowrt. Action brought by defendant in error against Samuel Dale and Ma/ry Dale, to recover damages for an alleged breach of a covenant of seisin in a deed of conveyance executed by the Dales. The case was tried at the December Term, 1870, before E. B. M., judge pro tern. The facts and the controverted questions are fully set forth in the opinion. The plaintiff’ Shwely, had judgment for $1,020.50, and the Dales bring the case here on error. 1.

Error from Leavewworth District Oowrt. Injunction, brought by Lcmg, in March, 1871, against The Board of County Commissioners, the… Held: “ that if injustice had been done to the property-owner on account of no notice being given, then he would be entitled to some remedy.” 7 Kas., 226. In this case the assessment was changed from $1,185 to $8,000, without notice, and without legal excuse. The taxes levied on the excess valuation, are illegal, and were rightly enjoined.

Defendant Armell was prosecuted criminally before a justice of the peace for a violation of the provisions of § 1, cb. 113, Gen. Stat., p. 1095.

Error from Nemaha District Oov/rt. Eeplevin, brought by Rising & Sonto recover the possession of five yoke of work oxen. Both parties claimed the cattle under contracts made with one E. Gr. Smith; the Risings, by virtue of a chattel mortgage executed by Smith to them on the 9th of August, 1870;' Wolfley, by virtue of a sale made by Smith to him on the 25th of July, 1870.

Origmal Proceedings vn Quo Warrcmto. On the 5tli of May, 1871, Borton filed in this court Ms petition for a writ of quo wa/rranto agaipst Bucle.

Error from Jefferson District Cou/rt. The case in tbe district court was an appeal by Earding from tbe award of commissioners appointed by the district court to assess damages under tbe Mill-Dam Act. John Fmik and William Dailil erected a mill dam on their own lands, and thereby caused tbe water to overflow tbe lands of Eardvng. Tbe commissioners awarded no damages to Eard/mg; and on tbe appeal, tbe jury, in tbe district court, found that Ea/rdvng’s land bad not been injured.

Error from Labette District Oowrt. Action brought by G. H. Bent, B. F. WilUams, and FT. H. McOlavn, to compel the specific performance of a contract made by Graft to convey to them a certain tract of land. The case was heard upon demurrer to the petition, at the July Term, 1870, of the district court. Judgment was given for the plaintiffs below. Graft brings the case to this court on error. The facts are stated in the opinion 1.

Origi/nal Proceedings in Quo Wa/rranto. In June, 1871, Bond filed his petition in this court claiming to be entitled to the office of sheriff of Montgomery county, and to oust defendant White therefrom, alleging that said White had usurped and intruded himself into said office and unlawfully withheld it from plaintiff. White answered, and plaintiff demurred. The facts are fully stated in the opinion.

Error from, Shawnee District Cowrt. Injunction, brought by Washbwm College as plaintiff, against The Doa/rd of Commissioners of Shawnee Co., as defendants, to enjoin the collection of taxes levied for the year 1870 on a certain quarter-section of land owned by the plaintiff, and held for the use of said college, and for no other use or purpose.

Error from Douglas District Oou/rt. Defendant was ebarged by information witb tbe crime of grand larceny. Held: a legal court? and are not all the proceedings thereunder held cor am, nonjudice? If so, there was no necessity of an exception, and the judgment appearing upon the record should be reversed. The prisoner stands on all his rights, and waives nothing which is irregular. 1 Seam., 476. 3.

Error from Neosho District Court. Jones brought suit .before a justice of the peace against School District No. 47, Neosho Co., to recover $150 alleged to be due the plaintiff as assignee of H. O. W. for three months’ services of said EC. C. W. as a teacher of the district school under “ a certain contract ” made by and between the district board of said School District No. 47 and said EC.

Error from Jefferson District Gou/rt. Diefendorf instituted proceedings against GlmerwA another as garnishees of Eobb. The case was tried at the November Term, 1868. The facts are fully stated in the opinion. The district court found that Olimer was not liable as garnishee, and gave judgment in his favor for costs; and Diefendorf brings the case here by petition in error. 1.

Error from Wycmdotte .District Oou/rt. Action byougbt by Thomas E. Tutt, Dent O. Tutt, and Jolm F. Boher, as plaintiffs, against Ferguson, as late sheriff of Wyandotte county, and the sureties on his official bond, to recover certain moneys 'received by Ferguson as sheriff.

Error from, Brown District Gowrt. Action brought by Samuel W. Wade as plaintiff, to declare a certain deed to be a mortgage, and to compel defendants to reconvey tbe mortgaged premises to him. Tbe action was commenced against Samuel G. Moore and Mora bis wife, and David P. WilUams and Mahala bis wife.

<p> Error from Dmis District Gowt. </p> <p>Pause imprisonment, brought by Jungren against EC. P. Hynes and Dmdel McGlea/ry. The petition alleged that in June, 1870, the defendants “ unlawfully assaulted, beat, and maltreated the plaintiff, and imprisoned and kept him in the jail of the city of Junction City for the space of thirty-six hours, without any reasonable or probable cause,” etc. The defendants justified, alleging that McGleary was a constable, and that the imprisonment of plaintiff was upon and in obedience to an order of arrest duly issued in a certain civil action brought by IT. P. Hynes and M. Stewart, as plaintiffs, against said Jungren as defendant. The case was tried at the September Term, 1870. Jwngren proved the arrest and imprisonment, and that he was discharged on habeas corpus. Defendents gave in evidence the record of the case of “Hynes <& Stewart v. Jungren,” brought and tried in a justice’s court. The affidavit for the order of arrest, which was made by Hynes, wholly omitted the “statement of the facts” required by the last clause of § 18 of the justice’s act. Other facts are sufficiently stated in the opinion. The jury found for the plaintiff, and assessed his damages at $550. New trial refused, and judgment on the verdict. Hynes and McGlarey bring the case here by petition in error.</p> <p>1. The court erred, in admitting the answer of Mrs Johnson, an unprofessional witness, as to the alleged pains and suffering of the plaintiff</p> <p>2. The court erred in his ruling in regard to the constable’s keeping of the plaintiff before producing him before the justice. If Jungren was violent and in no condition to go_ before the court, the constable had a right to shut him up' until he was in proper condition.</p> <p>3. It was error also to hold Ilynes responsible for illegal acts of the justice in the supposed commitment upon verbal order. He had no control over the action of the court or its officer; and if he employed an attorney he is presumed to have employed him only to seek his rights.</p> <p>4. There was error in making Hynes responsible for willful and malicious conduct of the constable in the unlawful imprisonment of Jungren after judgment. McCleary was not Hynes’ agent, but was a constable, the minister or officer of the law. 1 Mete., 34; 6 id., Ill; 7 Cush., 385.</p> <p>The principal is not responsible for the willful or malicious conduct of his agent. 17 N. Y., 365; 1 East, 106; 19 Wend., 343; 1 Hill, 480. Story’s Agency, §§456 to 462.</p> <p>5. The court erred as to the measure of damages. There was no evidence to justify the instructions as to exemplc/ry damages ; and the court makes no discrimination between the two defendants as to their different relations and degrees of liability; and the instructions allowed the jury to give exemplary damages against both defendants.</p> <p>6. The damages are excessive. The verdict is not sustained by the evidence, since it is obvious that the jury must have regarded Hynes as being equally in fault in matters occurring after the judgment before the justice.</p> <p>1. The answer of the witness, Mrs. Johnson, did not require professional knowledge and skill. The court simply permitted the witness to state facts within her own knowledge, and so expressly ruled.</p> <p>2. It was the duty of the constable to have taken the defend ant in error upon the order of arrest issued by the justice forthwith before said justice. Gen. Stat., page 779, §§ 22, 23;</p> <p>2 Wait’s Law and Practice, 116, 117; Hilliard on Eem. for Torts, 243, § 9. Defendant had a right to have his trial commence at once, oi give bail, and thus avoid the pain and disgrace of incarceration; but without excuse he was thrust into the calaboose and kept there several hours.</p> <p>3. Tbe manner of making tbe arrest was unnecessarily severe and violent, and afforded evidence of malice. Hynes participated both in making the arrest and in tbe imprisonment of defendant, and. was equally guilty with McCleary; in fact McCleary acted as the agent and under direction of Hynes.</p> <p>4. Hynes is responsible for illegal process issued by tbe justice at bis suit and instance, and for wrongful imprisonment under such process. Tbe law gave him tbe power to control tbe action of tbe justice in tbis respect: Gen. Stat., p. 780, §26; 9 Johns.,117; 6Wend.,597; lHilliard on Torts, 227,232; 2 id., 233, §13. He is also responsible for tbe acts of bis attorney; 7 Cowen, 251; 5 Hill, 242; 5 Duer, 122.</p> <p>Tbe imprisonment after judgment was clearly illegal. It was made without legal process, and by a person having no authority to make it.</p>

Error from Douglas District Gou/rt. The only question decided in this ease is one of practice. The facts so far as material are stated in the opinion. The district court referred the case to N. 0., who reported the tacts found, and conclusions of law, as provided by § 293 of the code, and upon such report the defendant in error, at the November Term, 1870, had judgment. The defendants below bring the case here for review.

Error from Lyon District Cou/rt. Action brought by Naomi Gasebolt to cancel a deed. Tire facts and the evidence are set forth in the opinion. The district court made separate findings of fact and of law. The deed in question was on its face a conveyance in fee simple made by Naomi Oasebolt to Henry GunHe.

Error from, Lemem/oorth District Oov/rt. The plaintiff filed her petition on the 23d of February, 1871, praying for a divorce from the defendant on the ground of extreme cruelty. The defendant filed his answer, or cross bill, setting up in substance, First, general denial; Second, adultery; Third, habitual drunkenness; and Fourth, gross neglect of duty. The plaintiff filed a reply, denying all the allegations of the answer. The cause was tried at the May Term, 1871.

<p>1. Condemnation oe Lands; Appeal from Assessment of Damages; Approval of Bond. The county clerk is the proper officer to approve the appeal bond given by the land-owner who appeals from the decision of the county commissioners as to the appraisement and assessment of damages to land appropriated by a railroad company for a right of way.</p> <p>2. Title oe Action, on Appeal; Practice. It seems that suoli an appeal is properly entitled by making the apellant plaintiff and the Railroad Company defendant. But if such entitling be incorrect, the error is not a cause for dismissal of the appeal.</p> <p>3. Amendment; Signing Pleading. After the jury was empaneled to try the case, the court permitted the appellant to sign his petition, and refused to give the defendant time for further answer because of said signing: held, that there was no error in the ruling.</p> <p>4. Evidence ; Report of Commissioners. On an appeal the report of the commissioners in the condemnation proceedings, and the accompanying map, are proper and legal evidence for the appellant to show what land was condemned.</p> <p>5. - Witness; Examination. A reviewing court will not consider the propriety of a question asked, and allowed by the trial court to be answered, when it does not appear to have been answered.</p> <p>6. - When objection to be made to Question. Where a witness for one party is asked a question which is itself objectionable, but to which no objection is made, and he makes a direct and appropriate answer thereto, such answer will not be stricken out on motion of the adverse party. Objection should have been made to the question itself, not to the answer merely.</p> <p>7. Damages; Value of Land. On the trial of an appeal from the assessment of the value of land condemned and taken by a railroad company, evidence is properly admitted showing the value of the land immediately before and after the location of the road.</p> <p>8. Deed — Delivery; Title. A deed takes effect as a conveyance of title from its delivery, and not from the date of its being recorded.</p> <p>9. Practice — Error not presumed. Where no evidence is preserved showing the applicability of instructions asked and refused, to the facts of the case, this court will presume they were correctly refused without-examining whether the instructions enunciate correct principles of law.</p> <p>10. Title to Land; Possession. Possession of land is prima facie evidence of title thereto; and an exclusive possession and occupancy for ten years under a claim of absolute title, and where there is no adverse showing, is sufficient evidence for a jury to infer a title in fee simple in the occupant, on an appeal from the appraisement and assessment of county commissioners, of land taken for a railroad.</p> <p>11. Damages ; Interest. The measure of recovery is the amount of damages, and interest from the time of the appropriation of the land.</p>

Error from Nemaha District Oov/rt. This action is very similar to tbe preceding case of Qulf Railroad Go. v. Owen. Defendant in error appealed from the decision of the board of commissioners of Nemaha county acting as board of appraisers to condemn and appraise lands in their county taken for the use of the Bt. Joseph c& Dewoer City Railroad Oo.

Error from Brown District Oourt. Action of slander, brought by Bcvrrington against Miles. Miles had been prosecuted before a justice of the peace for an assault and battery, and on the trial thereof Harrington had testified as a witness on the part of the state.

Error from Wabaunsee District Court. Action brought by Walker against The Board of County Com/m’rs of Wabasmsee Co. to recover the sum of $474.36, paid to the treasurer of Wabaunsee county as interest on delinquent taxes. The defendants demurred. The facts are fully stated in the opinion. The district court, at the November Term, 1867, overruled the demurrer, and gave judgment in favor of the plaintiff for the sum claimed and interest, amounting to $568.24.

Error from Lemewworth District Oowrt. The controversy in this case arose in consequence of an attempt by tbe legislature to fix tbe term of office of county commissioners for Leavenworth county at one year; (§ 9, ch. 25, Gen. Stat. 1868.) B. B. Moore and eleven other persons were duly elected commissioners for such county at the November election, 1867, under the laws then in force, (ch. 87, § 2, Comp.

Error from, Wyandotte District Oowrt Euth A. Noble brought suit against The Oity of Wyandotte to recover damages for injuries sustained to certain lots and property in said city.

Error from Labette District Gonj/rt. Huber was duly charged by information with the crime of murder in the first degree, and was tried upon such information at the June Term, 1871, of the district court. The jury returned a verdict finding “ the defendant guilty in manner and form as he is charged in the information.” The defendant was sentenced to suffer the penalty of death, but the record does not show the entry of such judgment upon the journal.

Error from Shawnee District Court. Gardiner brought suit against Emerson for carelessly and negligently ” burning up, destroying, and damaging plaintiff’s property. Answer, a general denial. The action was brought in a justice’s court, and appealed to the district court where it was tried at the June Term, 1868.

Error from Douglas District Gou/rt. The action below was brought by Muzzy against Krdght and wife to foreclose a mortgage, and against several other parties claiming some interest in the mortgaged premises. As between Muzzy and Knight there was but one question, and that was whether interest was payable annually on the note. The note was payable five years from date; it was not due, and it said nothing as to when interest thereon was payable.

Original Proceedings in Mandamus. N. P. Elsbree, as relator, filed Ms motion in this court— notice of the bearing whereof was required to be given to respondent — for a writ of mandamus to compel Bridgman, as county treasurer of Labette county, to pay to relator certain moneys claimed by Mm.

Error from, Franklm, District Cowrt. Elder, in an action against three non-residents for the partition of real property, applied for and took judgment two days before the day designated in the published notice as that on which defendants were required to answer. Such judgment was given at the March Term, 1870, and none of the defendants had appeared or answered.

Error from Marshall District Court. The action below was brought by Eirhwood against W. H. Pearsoll and wife to foreclose a mortgage given by them July 28th, 1860, to one John Potter and by Potter assigned to plaintiff. Thomas W. Watterson and some six other persons were joined as defendants as having some claim or interest in the mortgaged premises accruing subsequently to the mortgage.

Error from Davis District Court. Tiie action below was brought by Sale to compel the Bridge Company to convey to him 1,074 acres of land which he claimed under the terms of a resolution adopted by the board of directors of said Bridge Company, April 8th, 1869, and which resolution is set forth in the opinion.

Error from Bowrbon District Cowrt. The action below was by H. W. Converse, as administrator of the estate of Mrs. L. M. Hansbrough, against C. H. Wool-edge, EllaEis wife, and Presley F. Hansbrough. Defendants Presley and Ella were son and daughter of plaintiff’s intestate.

Error from, Dyon District Oov/rt. McCulloch brought ejectment against Dodge and Holden to recover the possession of 220 acres of land. The summons was duly served. The answer-day was January 5th, 1871. Defendants failing to answer, the plaintiff, at a special term of the court, on the 18th of January, moved for and obtained final judgment against defendants for the recovery of tbeland.

Error from Shawnee District Comet. Millington & Orrison, partners as Millington & Co., filed their petition against Hairgrove and Murphy, alleging that they were judgment creditors of Hairgrove/ that they had caused an execution to issue against said EL, and placed tbe same in tbe bands of tbe sheriff of Shawnee county, who bad returned said execution endorsed “No property found whereon to levy;” tbat on-tbe 1st day of January, 1866, tbe said Hair-grove, being insolvent,…

Error from Leavenworth District Oowrt. Wm. McN. CuouGn and L. B. Wheat, partners as Olough 1. The city and county could lawfully employ plaintiffs as attorneys for the purposes designated in the contracts: 9 Bosw., 433, 434; 10 id., 544, 545; 2 Saudf. S. 0., 460; 12 Wis., 509, 562; 23 Barb., 370; 33 id., 603; 59 E. C. L., 534. Besides which we refer to the common practice of cities and counties to employ attorneys other than their own officers.

Error from Donipham, District Gou/rt. Action by Brenner to quiet his title to two lots in the town of Doniphan. The opinion contains a full statement of the pleadings, and of the findings of the court. The action was tried at the September Term, 1869. The bill of exceptions does not contain any of the testimony.

Error from 8Timonee District Oowrt. Nichols sued the Union Pacific Baihoay Oo., E. D., for injuries sustained by the upsetting of a car in which plaintiff was riding, laying his damages at $25,000. The averments of the petition are sufficiently stated in the opinion.

Error from Shawnee District Court. Ejectment, brought by John P. Creer and M. D. Moore, against Higgvns, for 160 acres of land. The case was tried at the June Term, 1869. Both parties claimed by deed from Manfred Stafford. The principal questions below, and here, are as to the competency of certain testimony, and its effect upon the rights of the plaintiffs. The facts are stated in the opinion. Judgment was given for Higgvns, and plaintiffs bring the case here for review. 1.

Error from Bou/rl)on District Gowrt Action upon a simple promissory note executed by a married woman to secure her husband’s debt. Demurrer to defendant’s answer; and judgment thereon, at the March Term, 1871, in favor of the plaintiff, Boyle. Mrs. Deering, defendant, brings the case here on error.

Error from Damis District Court. McCoy sued the Railway Compcuwy for $5,127.50, being tbe amount claimed by bim upon an alleged contract for procuring cattle to be shipped and assisting in tbe shipping of such cattle on tbe company’s railroad at Abilene. Tbe case was tried at tbe March Term, 1871. Tbe jury found for tbe plaintiff, assessing bis damages at $5,04-2, for which be bad j udgment, New trial refused, and the Railwa/y Company bring tbe ease here on error.

<p>1. Shawnee Lands ; Treaty of May 10,1854. Lands that were allotted in severalty to members of the Shawnee tribe of Indians, under the second article of the Treaty of May 10, 1854, and afterwards abandoned for other lands, do not become a part of the “ surplus lands ” which was set apart for the absentee Indians by the President of the United States.</p> <p>2. •-- Chiefs, no right to sell lands. The chiefs of the Shawnee tribe have no authority, even with the consent and approval of the Secretary of the Interior, to dispose of said lands and make deeds therefor; and a deed so made confers no title.</p>

Error from Salime District Gowrt. Injunction brought by the Kansas Pacific Ply. Go. to restrain the collection of taxes levied on an assessment of their property in the vear 1868. At the time of the assessment the name of the company was “ Union Pacific Eailway Co., Eastern Division.” The collection of the taxes having been stayed until July, 1870, the defendant 8.

Error from Ooffey District Oowrt. Injunction, to restrain the collection of taxes.

Error from FranMi/n District Oov/rt. Robb Brothers, merchants, were in failing circumstances, and on the 26th of September, 1870, they made an assignment of all their stock, goods, accounts, etc., to plaintiff Olarh, for the benefit of their creditors, reserving in and by the terms of said deed from their said goods “property to the value of $400 each,’5 which they “ shall elect to retain as ‘ stock in trade,5 under the laws exempting certain projierty from execution.55…

Error from Lea/oem/worth District Oou/rt. Action for false imprisonment. Bauer and Olay were neighbors. Bauer permitted his hogs to run at large, and Olay took them up as strays, under the stray law. Bauer made an affidavit before a justice that his hogs had been stolen, and that they were detained by Olay and on his (Clay’s) premises.

Error from Leavenworth District Court. Ejectment, brought by C. 8. Creeley and seven others, against Wm. A. Simpson and eight others, to recover the possession of 611 acres of land. The petition alleged that plaintiffs were owners of said lands in fee, and contained a demand also for the recovery of the rents, issues and profits of said lands for twenty-two months, and damages for cutting down and carrying away timber. The petition was filed December 9th 1868.

Error from Leavenworth District Gov/rt. The questions in this case, and all the facts necessary to a clear understanding of the questions determined in this court, are stated in the opinion. The case was tried in the district court at the November Term 1868, before Mr. Justice Brewer, then district judge. Judgment was given in favor of the defendant Fenlon, and Haas db Go., plaintiffs, bring the case here on error. 1. The contract was not void.

Error from Shawnee District OouH. Jacob Smitii brought ejectment for the undivided three-tenths of a certain section of land in Shawnee county, being a parcel of the tract known as the Kansas Half-Breed Indian Lands. James U. Brown, and eighteen others (including the heirs of Adel Bellmard) were made principal defendants, and were alleged to be in possession of the lands, denying plaintiff’s title and right of possession, and excluding him therefrom.

<p>1. Default ; Eailwre to Answer to Amended Petition. Whore a defendant lias answered a petition, putting in issue all tlie averments thereof, and the plaintiffs afterward amend tlieir petition in some mere matter of form not affecting liis defense, as hy alleging an assignment of the claim sued upon to one of the plaintiffs, or by joining new parties defendant, and the answer of such defendant to the original petition remains on file, such defendant is not required to answer the amended petition; and it is error for the court to adjudge him in default for want of an answer thereto.</p> <p>2. Record; Error must be Affirmatively Shown. The entire record must be considered and construed, not disconnected parts thereof only, to determine the action of a tribunal whose proceedings are complained of. Where the record of the proceedings of the district court does not show any error, the judgment of such court will be affirmed.</p>

Error from Damis District Court. The firm of Reynolds, Semour “ Release.- — In consideration of the Nansas Pacific Railway Company contracting to transport live stock, as follows: [designating the cars, and number of head of cattle in each:] consigned to L. Ashbrook & Co., St. Louis, from Ogden to State Line, at the rate $45 per car load, it is hereby agreed both for the shipper, (he being, or acting for the consignee or owner,) that the said Nansas Pacific Railway Company…

Error from Shawnee District Cowrt. The plaintiff Dow filed Ms petition to recover $25,000 damages alleged to have been sustained by Mm wMle in defendant’s employ, and in. tbe discharge of his duty as a brakeman on defendant’s road in July 1869; that he was such brakeman on a freight train running between Kansas City and Junction City; that said train was in charge of Gr.

Error from Lea/oenworth Disi/riet Cowrt. Miluken brought his action to recover damages for the loss of his right hand. He was in the employ of the Railway Compamy as watchman and yardman at Ellsworth, and a part of his duty was to assist in making up trains at that point. While engaged in coupling cars, and in the line of his duty, in March 1868, a train moved violently, and without any warning against one of the two cars plaintiff was about coupling together.

<p> Error from, Leavenworth District Gowrt. </p> <p>Action by Eornig to recover damages for the loss of a hand while in defendant’s service. The case is almost exactly like that of the Union Pacific Ply. Go. v. MUUlcen, ante, p. 617. Crane was the name of the engineer whose alleged incompetency and negligence caused the injury. The case was tried at the May Term 1869. The instructions given and refused, so far as they are material to the question decided, are stated in tbe opinion. Yerdict and judgment for plaintiff for $9,000 damages. Tbe railway company bring the case bere on error.</p>

Error from Leavenworth District Oourt. A. H. Peck and M. II. Peck made and delivered their three several promissory notes to Almeron Jacobs, and A. LI. Peck and Sa/mh his wife executed a mortgage to said Jacobs on real property to secure said notes. The notes and mortgage bore date August 20th 1868. On the 2d of- October 1869 Jacobs transferred the notes and mortgage to the Fi/rst National JBa/ik of Stwrgis. The action was commenced October 31st 1870.

Error from Brown District Oou/rt. Ejectment, brought by KcmZbach as plaintiff under § 595 of tbe code. Butler answered to the petition, setting up two defenses: Eirst, a general denial. Second, that the plaintiff KcmZbach was the original owner of the property in controversy; that defendant máde application to him by letter to purchase it; that KcmZbach answered by letter as follows: “ Townsend, August 30, 1868. “E. B. Butler, Sir.' Your letter of Aug. 12th is received.

Error from Brown District Oowrt. Action brought by Morrill to quiet his title to certain lands upon which he resided, of which he had peaceable possession, and to which he claimed the legal title.