Volume 80 — Kansas Reports

Error from Rawlins district court; William H. Peatt, judge. STATEMENT. This suit was brought by James C. Brooks to foreclose a mortgage on land owned by Robert S. Hendricks.

Error from Coffey district court; Frederick A. Meckel, judge. STATEMENT. H. B. Stone, the owner of a farm in Coffey county, brought this suit to enjoin the defendants from maintaining an embankment which obstructed an underground' passage connecting the two portions of his farm separated by the railroad, and to recover damages sustained during the time the obstruction continued.

Sheldon, judge. STATEMENT. This action was commenced in the district court of Johnson county, by Charles R. Justice, to recover damages for injuries received while in the employment of the St. Louis &• San Francisco Railroad Company. The injuries were sustained February 8, 1907. This action was commenced September 21, 1907. Mr. Justice was employed as a section-hand, under a foreman by the name of George Nelson.

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Failure to Read — Signature Obtained by Fraud. A recognized exception to the rule that a party is held to know and be bound by the provisions of a writing which he signs is where one party procures another to execute the writing" by falsely and fraudulently representing that it contains the stipulations previously agreed upon when in fact it does not and where the party signing the writing relies upon the faith of these representations and is thereby induced to omit the reading of the writing which he signs.</p> <p>2. Fraud — Proof. A charge of fraud may be established by a preponderance of the evidence. The preponderance which overcomes the presumption of honesty and innocence and all opposing evidence, and is such as will lead a reasonable man to the conclusion that fraud exists, meets the requirements of the law.</p> <p>3. Instructions — Request—Estoppel. A party has no right to complain of an instruction which he requests the trial court to give.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Control of Automobile Driven upon a Highway. Any person having control or charge of an automobile has the right to drive it-upon'any public street or highway, but in so doing he must exercise every reasonable precaution commensurate with the apparent danger to prevent the frightening of horses and to insure the safety of any person riding or driving the same. .</p> <p>2. -Duty to Look for Travelers — Presumption of Notice. It is the duty of one in charge of. an automobile, driving upon a public street or highway, to look ahe?td and see all persons and horses in his line of vision, and in case of accident he will be conclusively presumed to have seen what he should and could have seen in the proper performance of such duty.</p>

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

Error from Reno' district court; Peter J. Galle, judge. STATEMENT. The city of Hutchinson desired to construct a drainage canal, and caused its engineer to make plans and specifications therefor. It then invited bids for doing the work.

<p>Error from Shawnee district court; Alston W. Dana, judge.</p> <p>STATEMENT.</p> <p>This is an action to recover for legal services rendered in the courts of Missouri. In their petition plaintiffs alleged that they were engaged in the practice of the law, and further alleged: ■</p> <p>“That the said defendant, Mary K. Quinton, was on the 12th day of April, 1900, by the Honorable L. S. Dolman, probate judge of Shawnee county,. Kansas, duly appointed administratrix of the estate of L. B. Kendall, deceased, and thereafter, to. wit, on the 12th day of April, 1900, duly qualified and entered upon her duties as such administratrix, and is still,acting in said capacity, and has been so acting since such appointment.</p> <p>“Plaintiffs further complaining allege that upon the 25th day of June, 1903, the said défendant, Mary K. Quinton, administratrix as aforesaid, through her duly authorized agent and attorney, Eugene S. Quinton, employed these plaintiffs, as attorneys for her in her behalf, to prosecute a certain claim in the courts of Buchanan county, Missouri, which action w-as duly commenced and prosecuted during the month of February, 1904, and known as No. 12,676, S. B. Isenhart, Trustee, v. L. M. Crawford et al.; that said Mary K. Quinton, administratrix, through her said agent and attorney, Eugene S. Quinton, as_aforesaid, at the time of said employment, agreed to pay to the said plaintiffs, for the services therein to be rendered, so much as such services should be reasonably worth.”</p> <p>Plaintiffs then alleged that'they had performed the services contemplated by the employment, which the parties agreed were reasonably worth $1000, but that the debt had not been paid, and for that sum plaintiffs asked judgment. In the title of the petition plaintiffs described defendant as “Mary K. Quinton, Administratrix of the estate of L. B. Kendall, deceased.”</p> <p>Defendant answered as administratrix, and denied generally the averments of the petition.</p> <p>When the case came on for trial defendant objected to the introduction of evidence because the petition did not state a cause of action, which objection was sustained. Leave to amend the petition was obtained, but later plaintiffs declined to amend and stood upon the allegations of the petition as filed. The court adhered to its former ruling, holding that no cause of action was stated against the defendant, and dismissed the proceeding. On this ruling error is assigned.</p>

Original proceeding in quo warranto. STATEMENT. THIS is an original proceeding in quo warranto, brought by the state to oust the defendant from the office of chief of police of the city of Kansas City. A commissioner was appointed to take the evidence and make findings of fact.

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Lipense-tax—Domestic Business of Express Companies. The legislature has authorized the offi- ° eers of a city of the first class to impose a license-tax on express companies and agencies conducting an express business within the state- — -that is, the business of receiving packages from persons in the city and transmitting them to persons in other places within the state, and of receiving and delivering packages transmitted from other places within the state to consignees in the city. (Topeka v. Jones, 74 Kan. 164.)</p> <p>'2. License-tax — Interstate Commerce. An occupation tax imposed on express companies, under an ordinance wherein it is expressly provided that it shall only apply to domestic business and never to interstate business, is not a regulation of or a burden upon interstate commerce.</p> <p>-3. - Same. A tax may be imposed upon the business done within the state although the express company in carrying the packages from one point to another within the state passes for a short distance over the soil of another state.</p> <p>4. - Domestic Business of Express Companies. It is not an objection to the tax that much the larger part of the business of such company is interstate. If a small but separable and definite part of the business is domestic the express company can not escape payment of the state tax imposed on that part.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Appeal—Time of Filing Transcript of the Record. Section 287 of tbe criminal code, even as now amended (Laws 1903, ch. 389, § 1), relates solely to the manner of procuring a stay of execution, and does not change the rule that in order to procure a review of a judgment in a criminal case the appellant must file in this court a transcript of the record within thirty days after giving notice of an appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Club-rooms—Statute Not Repealed by Implication. The “club-room section” of the prohibitory law (Gen. Stat. 1901, §2466), forbidding the keeping of a place for the sale of intoxicating liquors to the members of a club, was not repealed by implication by the act of 1901 relating to the maintenance of a place where intoxicating liquors are sold in violation of law, which was held to cover the whole of the subject-matter of the original “nuisance section” and therefore to have superseded it.</p>

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

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

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

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

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

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

<p>Negotiable Instruments — Innocent Purchaser — Notice. The evidence held not to justify a finding that a purchaser of a negotiable note had notice of a defense.</p>

<p>1. Practice, Supreme Court — Motion for a New Trial — Review of Ruling on a Question of Law." Where the facts were agreed to the only question presented to, or passed upon by, the trial court was one of law, and a motion for a new trial was unnecessary to procure a review of the decision.</p> <p>2. Tax Deeds — Residence of Grantee. A compromise tax deed recorded five years was not void on its face because of its failure to state the address or residence of the grantee.</p>

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

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

<p>Tax Deed — Selling Price Omitted. A tax deed held void on its face because it failed to show the amount for which the land was bid in by the county.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Breach of Contract. A party entitled to recover on the breach of a contract should be allowed such damages as are the natural, direct and proximate result of the breach.</p> <p>2. - Same. Where G. and M., in consideration of the conveyance to them of a farm, agreed to transfer a stock of goods to L. and L. and to furnish a buyer fo'r a one-half interest in the goods for a certain sum, and the transfer of the goods and conveyance of the farm were duly made but G. and M. failed to furnish such buyer, the measure of damages for such default is the difference between the market value of such one-half interest and the sum for which it was to have been sold had a buyer been produced as agreed, together with.interest on the amount of such difference.</p> <p>3. Evidence — Measure of Damages — Breach of Contract. The amount received upon the sale of such one-half interest at an auction fairly advertised and conducted, of which the defendants had notice, is evidence of such value, but is not conclusive, and the defendants had the right to offer evidence of such value to show that it was greater than the amount so received.</p> <p>4. Contracts — Consideration. A statement or promise made by L. and L.’after the conveyance and transfer had been completed, without any new consideration, purporting to waive the obligation of. G. and M. to find such purchaser, which was not acted upon to their loss or injury, is ineffectual to relieve them from liability.</p>

Error from Montgomery district court; THOMAS J. Flannelly, judge. STATEMENT. THIS action was commenced in the district court of Montgomery county by Calista J. Brock to recover damages for injuries sustained on account of her horse becoming frightened and running away, causing her to be thrown from her buggy. The horse was frightened by an automobile owned and operated by the defendants, George Francis and Will Francis.

<p>Error from Seward district court; William H. Thompson, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Foreign Corporations — Interstate Commerce — Parties. Section 1283 of the General Statutes of 1901, providing that no foreign corporation doing business in this- state shall maintain an action in any of the courts thereof without first filing certain statements with the secretary of state, applies to foreign corporations engaged in this state in interstate commerce. The statute in question is not repugnant to the commerce clause of the federal constitution; nor does it impair the obligation of contracts; nor abridge the privileges or immunities of citizens of the United States; nor does it deprive any person of property without due process of law; nor deny to any person within the jurisdiction of the state the equal protection of the laws.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Water-works—Control and Maintenance. Under the provisions of chapter 135 of the Laws of 1907 power is delegated to cities, of the second class to make, by ordinance, any necessary and reasonable regulation for the control, operation and maintenance of water-works plants supplying the inhabitants of the city, provided such regulation be not in derogation of the laws of the state nor subversive of the property rights of the inhabitants.</p> <p>2. - Ordinance Requiring Consumer to Furnish Water-meter Held Reasonable. An ordinance of a city of the second class owning and operating water-works to supply its inhabitants with water which prohibits consumers from taking from its mains any water except such as shall have been measured by means of a water-meter, and which provides that meters of the kind and make ordered by the mayor and council shall be furnished and the expense thereof be borne by the consumers severally, also reserving to the city the right to stop the supply of water for a violation of the regulations, is not unreasonable, but is valid.</p>

Error from Labette district court; Elmer C. Clark, judge. STATEMENT. This is an action on an insurance policy covering a stock of merchandise at Mound Valley. The answer sets up a number of defenses, substantially as follow: The property was insured only when located in a certain building, as described, on lot 12, and after the issuance of the policy the plaintiff removed his stock of goods to a building situated on lot 10, where the rate of fire-insurance was higher.

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

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

<p>SYLLABUS' BY THE COURT.</p> <p>1. Railroads — Interstate Commerce. Freight received by a rail- ' way company in Kansas, to be transported over its own and a connecting line, on a through bill of lading and by a continuous trip, to a point beyond the state, is deemed to be interstate commerce.</p> <p>2. - Rates — Jurisdiction of Interstate Commerce Commission. In such a case, where the rate charged for the through shipment is the aggregate of the local rates on the two lines, and where the connecting line had previously adopted and filed with the interstate commerce commission a tariff under which its proportion of the charge on the through shipment was collected, and there is a claim by the shipper that the charge made is excessive, unreasonable and unjust, his redress must be through the interstate commerce commission, and can. not be obtained in a state court.</p>

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

Error from Edwards district court; Charles E. Lobdell, judge. STATEMENT. ' This action was brought by the plaintiff in error, January 19, 1907, to recover from the defendant in error 160 acres of land in Edwards county, the title and right of possession to which the plaintiff claimed under a school-land patent from the state. The defendant answered by a general denial. . The case was tried to.the court. Judgment was rendered in favor of the defendant.

<p>SYLLABUS BY THE COURT.</p> <p>11. 'Agency — Authority—Liability of Agent. Where persons enter into a written contract, assuming to act as agents for another, and receive money to be paid to the principal as part of the consideration but which is retained in their hands, and the principal refuses to be bound by the contract, an action may be maintained against them for money had and received to the use of the person from whom they received it.</p> <p>12. -Implied Contract — Money Retained by Agent. Defendants entered into a written contract with the plaintiff for the sale of lands, assuming to act as agents for the owners, and received $150 as part of the consideration. The owners of the land refused to be bound by the agreement, and the money was not paid them but was retained by the defendants. Held, that, independent of anything in the contract itself that would bind the defendants, the law under such circumstances implies an agreement on their part to restore the money, because the contract which they assumed to have authority to make has failed and they have the money of the plaintiff in their hands.</p>

Error from Cherokee district court; Corb A. Mc-Neill, judge. STATEMENT. This suit was commenced by the J. R. Crowe Coal & Mining Company, in the district court of Cherokee county, to obtain a perpetual injunction against Lillie and Ed Atkinson. The defendants insisted that the remedy sought by the plaintiff could be obtained only in an action of ejectment. They, therefore, demurred to the plaintiff’s petition.

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Equal Protection of the Law — Attorney’s Fee — Abatement of Liquor Nuisance. The statute providing for the abatement of a nuisance maintained in violation of the prohibitory liquor law, which authorizes the court in awarding judgment in favor of the plaintiff to allow and tax as costs an attorney’s fee for plaintiff’s attorney (Laws 1903, ch. 338), is not repugnant to the guaranty of the equal protection of the law made by the federal constitution.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations —Injury by a Mob■ — Instruction Defining a Mob. In an action under the statute making cities liable for injuries done by mobs an instruction that “a mob is an unorganized assemblage of many persons intent on unlawful violence, either to persons or property,” is not erroneous because it makes no reference to a determination on the part of those composing the assemblage to resist opposition.</p> <p>2. - Charivari Party — Unlawful Violence. Where the members of a charivari party forcibly place .a bride and groom in a wagon against their will, and draw them up and down the streets, they are engaged in an act of unlawful violence within the meaning of such definition. The fact that they are good natured and intend no serious harm to any one does not absolve the corporation from liability.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School-land — Forfeiture — Evidence. Where a new purchaser of school-land who is the defendant in ejectment seeks to show a valid forfeiture of the plaintiff’s contract, and offers parol or other testimony to supply omissions in a defective return of the notice of forfeiture, the testimony, while competent for the purpose under the provisions of section 1 of chapter 373 of the Laws of 1907, is not conclusive or binding upon the court. Its weight and credibility are to be passed upon the same as any other controverted fact, and a judgment in favor of the plaintiff in such a case amounts to a finding against the validity of the forfeiture proceedings on the weight of evidence.</p> <p>2. Constitutional Law — Legislative Declaration of the Truth of Facts — Invasion of Province of the Judiciary — Due Process of Law. Section 3 of chapter 373 of the Laws of 1907, so far as it attempts to make the posting in the office of the county clerk of a copy of a notice of forfeiture of school-land conclusive evidence of proper service of such notice, is a legislative declaration of the truth of facts — an invasion of the province of the judicial department of the government, to which alone belongs the power to inquire whether facts upon which rights exist are true or false. For this reason, and because it denies to the holder of the original certificate due process of law, it is unconstitutional and void.</p>

Error from Neosho district court; James W. Finley, judge. STATEMENT. The plaintiffs in error own land upon which there is an oil-and-gas lease. The defendants in error own the lease and operate thereunder.

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Validity—Motion to Set Aside. Where the court has jurisdiction of the parties and the subject-matter, a judgment entered by default quieting the title of a party in possession of land under a tax deed void upon its face as a conveyance is not a nullity, and will not be set aside on motion of a defendant filed more than three years afterward.</p>

Error from Clay district court; Sam Kimble, judge. STATEMENT. * This action was begun by Mitchell Wheeler to re- ' cover from the Chicago, Rock Island & Pacific Railway Company for four head of cattle killed at a railway-•crossing. At the first trial the plaintiff obtained a judgment against the railway company, which-' was reversed because of the erroneous admission of evidence and the submission to the jury of questions, not embraced within the pleadings.

<p>Error from Butler district court; Granville P. AikMAN, judge.</p>

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

Error from Jefferson district court; Marshall GepHART,,judge. STATEMENT. W. S. Buker (under the name of the Farmers’ Mutual Telephone Company) and a number of officers and members of the Blue Mound Mutual Telephone Company brought this suit for an injunction against George McKeever.

<p>Error from Neosho district court; James W. Finley, judge.</p> <p>STATEMENT.</p> <p>This action was commenced in the Neosho county district court by the Bank of Commerce to recover a balance due upon a promissory note which was executed by the other defendants in error. One of the defendants in the action, Edwin Erwin, was a non-resident of the state. The plaintiff caused an attachment to be issued against such defendant and had it levied upon his undivided interest in an oil-and-gas plant. The oil-and-gas plant was owned by several persons, who styled themselves the Chappie Oil Company, and were organized as a joint stock company. The contract of organization indicates how the original promoters intended the property should be held by the stockholders. The provision relating to the capital stock, so far as material here, reads:</p> <p>“(12) The amount of the capital stock of this company shall be one hundred thousand dollars, divided into one hundred shares of the par value of one thousand dollars each. The interest of each shareholder shall be evidenced by a certificate or certificates in denomination of one thousand dollars, or any multiple thereof, or in certificates representing one-half share, of the par value of five hundred dollars. Certificates shall be transferable by indorsement on the back thereof and delivery to the purchaser. When so indorsed and delivered the holder shall become and be entitled to all the rights and privileges of the original holder thereof and entitled to all the rights and privileges in said company, and the assets thereof, as fully and to the same extent as other certificate holders.”</p> <p>“(14) All persons receiving or holding certificates as hereinbefore provided, and their assigns and legal representatives, are to be deemed and considered members of this company as fully and to same extent as if they had signed these articles and subject to all-of the conditions and liabilities 'and entitled to all the benefits and privileges thereof.”</p> <p>The defendant Edwin Erwin was the owner of twenty-five shares of stock in this company. The Citizens’ National Bank of Fort Scott held a promissory note executed by Edwin Erwin, upon which there was due the sum of $12,871.20. To secure the payment of this nóte Erwin assigned and delivered his stock in the Chappie Oil Company to E. W. Minturn, in trust for the use and benefit of the Citizens’ bank, as collateral security for the note. This assignment was made and delivered to E. W. Minturn prior to the commencement of the action in which the attachment was levied. The Citizens’ bank set up these facts in this action in an interplea, to which a demurrer filed by the plaintiff bank was sustained. The interpleader prosecutes error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Publication Service — Description of Parties — Assignment of Interest Not Recorded. An assignment of a mortgage was made to “Jessie L. Williams, wife oí Edward H. Williams,” and was duly recorded: In a suit to quiet title, brought afterward by the holder of a tax deed to the mortgaged lands, this assignee of the mortgage was made a party by the designation “Mrs. Edward H. Williams,” and by that name was given notice by publication. She had assigned the mortgage to another party (under whom the plaintiff in this suit claims) before the judgment in the suit to quiet title, but this assignment was not recorded until afterward. Mrs. Williams whs a widow at the date of the publication, and resided in Massachusetts. Judgment was rendered in that suit by default against the defendants therein, including Mrs. Edward H. Williams, quieting title and barring the defendants named from any interest in the land. The plaintiff in that suit then sold and conveyed the land to another, under whom Doyle holds through mesne conveyances by warranty deed for a valuable consideration, and Doyle was in possession claiming such title when this suit was brought by the investment company to foreclose the mortgage which it so held by assignment. Held, that under the facts stated in the opinion the designation of Jessie L. Williams as “Mrs. Edward H. Williams”'in the petition and notice published was sufficient to permit an adjudication of the interest and claims of the plaintiff, holding under her by an assignment not recorded when the publication was made, the title to the mortgage appearing at that time by the records to be in her.</p> <p>2. Parties — Transfer of Interest before Suit — Transfer Not Recorded — Proceeding in Error. Where the records show a 'title in one who is made a defendant in a foreclosure suit in order to bar his interest in the land, and he pleads title to the land in fee, and the issues arising upon such pleading are fully tried and' adjudicated against him, he may maintain a petition in error upon such judgment, although it was shown upon the trial that a conveyance from him to another person, not a party to the suit, had been made before the suit was brought, it being also shown that such conveyance was not recorded until afterward and that no motion was made for substitution. In this situation the plaintiff who made him a party and obtained a judgment against him can make no valid objection to his presenting the judgment to this court for review.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Liquor Nuisance — Restraining Order by Probate Judge — Contempt. In a proceeding brought under chapter 338 of the Laws of 1903 to enjoin the maintaining of a place where intoxicating liquors are sold and kept for sale a temporary restraining order may be granted when the suit is begun; and in case of the absence of the district judge from the county or of his disqualification or inability to act when the application for the injunction is made the probate judge may grant a temporary restraining order, and the disobedience .of such an order may be punished as a contempt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Notice — Establishment of a High School — Statutory Provisions Mandatory. The statute providing for a high school in Gove county (Laws 1903, ch. 445) directed the county commissioners at their first regular session after the passage of the act to publish a notice for six weeks that they would consider a petition for the establishment of such school. No action was taken by the board until July 11, 1903, when it considered the petition and made an order that the school be established. A notice signed by the chairman of the board and the county clerk had, however, been published for seven weeks prior to such meeting, but only five weeks after June 1, the date when the statute took effect by publication. Held, that the publication of the notice as required by law for six weeks after the act took effect was a condition precedent to the establishment of such school, without which it could not be legally established.</p> <p>2. -Same. Until the act took effect the commissioners had no more power to give the notice than to make the final order, and the words “the passage of this act,” in section 3 of the statute, relate to the time that it should take effect.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Physical Objects. Generally physical objects which constitute a portion of a transaction or which serve to-unfold or explain it may be exhibited in evidence whenever the transaction is under judicial investigation.</p> <p>2. Murder — Garments Worn by Deceased — Evidence. Appellant was tried for murder in the first degree for shooting his wife-with fatal effect. The jacket she wore at the time she was shot was introduced in evidence. It was pierced in the back by two bullet holes, and the lining was stained with blood. Eye-witnesses described the "shooting, and a physician described the location, direction and extent of the wounds on the body of the deceased. Held, the garment was properly admitted in evidence.</p> <p>3. - Same. When the jacket was offered in evidence counsel for appellant stated that the defense would offer no evidence as to the shooting. Held, insufficient to deprive the state of the right to the evidence afforded by the jacket.</p> <p>4. - Same. After the jacket was introduced in evidence it was permitted to remain, without objection or request for its removal, in full view of the jury for five or six days, to the-end of the trial. Held, not error.</p> <p>5. Evidence — Physical Objects Permitted to Remain in View — • Attempt to Prejudice the Jury. The time when and the manner in which such objects may be presented and the length of' time they shall remain on exhibition are subject to regulation by the trial court, and the exercise of discretion in this respect, will be approved except in cases of abuse.</p> <p>6. - Same. Spectacular displays of physical objects germane to the transaction under investigation, cunningly devised to arouse passion or to excite prejudicial emotions on the part of the jury, should be thwarted or promptly suppressed; but legitimate evidence can not be excluded merely-because it is grewsome and may tend to move the jury’s feelings.</p> <p>7. Murder — Insanity—Partial or General — Instructions. If the-trial court see fit it may recognize monomania, or so-called partial as distinguished from general insanity, when instructing the jury in a criminal case involving that form of' mental derangement as a defense, but it is not imperative-that it should do so; and if the proper tests of criminal responsibility for the act in question be stated in the instructions: the substantial rights of the defendant are sufficiently protected.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Sale of Grain — Deduction from Actual Weight — Sale in a Foreign State. Chapter 525 of the Laws of 1905, providing that sales of grain, seed, hay and coal shall be deemed to be made on the basis of the actual weight thereof, and that any purchaser of such commodities who, without express agreement with the seller, shall deduct any amount from the actual weight and withhold payment therefor under a claim of right by virtue of custom or board-of-trade rule shall be guilty of a misdemeanor, and fined, has no application to a deduction and withholding of payment occurring in a settlement between purchaser and seller made in a foreign state.</p> <p>2. Contracts — Sales—Place of the Contract. The owner of a car-load of wheat in Kansas consigned it to a member of the board of trade in Kansas City, Mo., for sale on the floor of the board. The grain was sold there, and the bill of lading was there delivered to the purchaser, who was'also a member of the board, and who ordered the grain stored in his elevator in Kansas City, Wyandotte county, Kansas. The wheat was weighed in Kansas by the state weigher, and a certificate of the true weight was sent to the purchaser in Missouri. Contrary to the Kansas statute, the rules of the Kansas City, Mo., board of trade allow a deduction of 100 pounds from the true weight of each car of whe.at. Settlement for the wheat was made on that basis, and the price was paid at the board of trade in Kansas City, Mo. The wheat did not leave the state of Kansas at any time. Held, the sale was made in the state of Missouri.</p> <p>3. Criminal Law — Jurisdiction. The purchaser in the transaction described can not be prosecuted in Wyandotte county for a violation of the Kansas statute.</p>

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

<p>Error from Gove district court; Jacob C. Ruppenthal, judge.</p>

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

<p>Cross-petition — Summons Not Necessary. The rule applied that a new summons need not be issued upon a cross-petition.</p>

Error from Ford district court; Gordon L. Finley, judge. STATEMENT. Charles E. Gibson brought this suit, August 2, 1906, to foreclose a mortgage on a quarter-section of land in Ford county, Kansas. The defendants answered setting up title to the land. Their title is based upon a tax deed, or rather two tax deeds, which were pleaded and offered in evidence. The first deed was issued October 1, 1892, and recorded October 3, 1892.

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

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. This was an action upon a joint beneficiary certificate issued by the National Aid Association to William A. Gilliam and Maggie A. Gilliam, payable to the survivor upon an assessment to be made on the members of the association, for the sum of $2000 or so much as should be derived from the assessment.

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Cross-examination of Witnesses — New Matter. Except as to matters affecting his credibility, the cross-examination of a witness should be confined to the subjects on which he testified on direct examination. If a party desires to examine the witness on new and independent matters he should make the witness his own.</p> <p>2. Chattel Mortgages — Description of Property — Notice — Identification of Property. A mortgage, in which the property was described as “two-thirds (%) of ninety (90)-acres of growing wheat, all this wheat on Mrs. Tea’s farm, one mile south and one mile west of city of Kiowa; on farm which is northeast quarter (14) of section No. 17, township No. 29, range No. 12, Woods county; Oklahoma. This instrument covers wheat in field, shock, stack, wagon, granary or wherever found, which said above-described property, at the date of these presents, is in possession of said parties of the first part,” etc., is not invalid on its face for indefiniteness of description ; and after a witness had testified in a trial to enforce such a mortgage that the mortgagor had more than ninety acres of wheat on the farm described, and the correctness of the other parts of the description was unquestioned, the question whether third parties, under the description given and by reasonable inquiries suggested by the instrument, could identify the property intended to be mortgaged was for the determination of the jury.</p>

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

Error from Lincoln district court; Rollin R. Rees,, judge. STATEMENT. On the 13th day of April, 1898, John H. Dugan, as plaintiff in.two separate actions before a justice of the peace in Lincoln county, obtained two separate judgments against W. P. Harman and wife, one for $291.55 and $2.26 costs, the other for $76.52 and $2.47 costs. Each judgment bore interest at 10 per cent, per annum..

Error from Lyon district court; Frederick A. Meckel, judge. STATEMENT. A. W. Brown was in the employ of the defendant railway company as a brakeman. It seems that on his run the company had a detective, garbed as a tramp, who rode from Florence to Newton on the train upon which Brown was employed.

Error from Shawnee district' court; Alston W. Dana, judge. STATEMENT. Ella D. Coltrane recovered a judgment against the defendant for the sum of $1710 for injuries alleged to have been received while a passenger on one of its trains. Defendant prosecutes error. The action was begun in the district court of Shawnee county, August 10, 1905.

<p>Error from Kearny district court; William H. Thompson, judge.</p>

Error from Cherokee district court; Cokb A. Mc-Neill, judge. STATEMENT. ' This action was tried upon an agreed statement of facts, in substance as follow: ■ H. D. Hart became a member of a subordinate lodge of the Ancient Order of United Workmen, a fraternal benefit order, on April 16, 1895, and received a beneficiary certificate therein for $2000, payable to his wife.

<p>SYLLABUS BY THE COUKT.</p> <p>Suretyship — Bond of City Depositary — Designation—Repeal and Reenactment of Statutes- — Release of Surety. In chapter 37 of the Laws of 1881, relating to cities of the first class, was a provision authorizing the mayor and council to designate a bank as a depositary of the public funds upon the giving of a bond conditioned that the deposits should be promptly paid upon the checks and drafts of the treasurer. In chapter 34 of the Laws of 1883 this provision was slightly amended, and under it a depositary was designated and the bond in question, which was signed by the defendant, as surety, was given. In 1903 there was a revision of the laws relating to cities of the first class (Laws 1903, ch. 122), and the provision relating to depositaries was reenacted substantially as it had appeared in the prior acts. When the new provision was enacted the section containing the prior provision was repealed. In an action upon the bond, held: (1) The provision relating to depositaries continued uninterruptedly in force notwithstanding the changes in the form of the statutes, and the enactment of the later act did not abrogate the ordinance passed in pursuance of the earlier one. (2)' Where a bank is named as a depositary of city funds and tenders a bond signed by sureties, in which it is recited that the bank has been “duly designated” as a depositary, and then for a number of years the funds of the city are deposited in the bank in reliance upon the bond, and thereafter there is a default in the conditions of the bond, the bank will be deemed to be at least a de facto depositary, and the,sureties on such bond will be held liable although the steps prescribed by law in making the designation . of the depositary may not have been strictly followed. (3) A designation of a bank as a depositary is effectual so long as the city shall continue to deposit its funds in the bank, and the bond given in pursuance of such designation is deemed to be a continuing obligation upon which the sureties will continue to be liable for defaults, unless they have taken the necessary steps to terminate their liability on such bond.</p>

<p>Error from Rawlins district court; William H. Pratt, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Pleadings—Admissions. Where a plaintiff files a petition in an action, to which the defendant files an answer and cross-petition, which is afterward dismissed, such pleading . may be used by the plaintiff as evidence upon the trial, if it contain statements which amount to admissions of the defendant material to the plaintiff.</p> <p>2. Personal Injuries — Measure of Damages — Future Pain and Suffering. A person who recovers damages for a personal injury is entitled to compensation for future pain and suffering, where the evidence shows that such pain and suffering will ^>e a reasonable result from the injury sustained.</p> <p>3. Instructions — Negligence. Instructions examined and sustained. '</p>

<p>Error from Finney district court; William H. Thompson, judge.</p>

<p>SYLLABUS BY THE' COURT.</p> <p>1. Insane Persons - — • Liability of Estates for Cost of Maintenance at State Hospital — Constitutional Provision. The provision of the constitution (art. 7, § 1) that “institutions for-the benefit of the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require,, shall be fostered and supported by.the state, subject to such regulations as may be prescribed by law,” does not prevent legislation making the estates of persons committed to the-state hospital for the insane liable for the cost of their maintenance there.</p> <p>2. Constitutional Law — Uniform and. Equal Taxation. Nor is. such legislation in conflict with the constitutional provision requiring uniformity and equality in the rate of taxation.</p> <p>3. Insane Persons — Liability of Estates for Maintenance at-State Hospital. Under the provision of the statute in relation to the state hospital for the insane (Gen. Stat. 1889, §3726; Gen. Stat. 1901, § 3988) that if the probate court shall find; that a person adjudged to be insane has sufficient means for-his maintenance and that of his family, without impoverishment, it shall order his guardian to pay for his maintenance-out of his estate, the state may upon the death, of a patient in such hospital recover from his administrator the cost of his maintenance for any period during which he was possessed of' means not needed for the support of any one dependent upon him.</p> <p>4. - Same. The rule stated in the foregoing paragraph is. not altered by the fact that the form of commitment prescribed in that statute, directing the patient to be received and maintained at the expense of the county or the guardian,. was changed in a revision (Laws 1901, ch. 353, § 60) to read' “at the expense of the state.”</p> <p>5. Judgments — Bes Judicata. The fact that the probate court found that a person adjudged insane was without sufficient. means for his support, and ordered that his maintenance-should be at the cost of the state, does not constitute an ad-, judication against the contention of the plaintiff in an action brought by the state to charge the estate of such person after ■ his decease with the cost of his maintenance at the hospital?., for the insane.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Murder — Burden of Proof — Self-defense—Instructions. In a murder case, where there is some evidence which tends to show a killing in self-defense and that previous threats had been made by the deceased against the defendant, but the defendant makes no request for special instructions and the court instructs the jury as to the burden of proof and in general terms as to the law of self-defense, it is not error to fail to expand the instructions on those subjects so as to apply them to tfye facts which the defendant claims the evidence shows.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — “Crime or Misdemeanor, Not Amounting to a Felony.” The “crime or misdemeanor, not amounting to a felony,” mentioned in section 12 of chapter 31 of the act relating to crimes and punishments (Gen. Stat. 1901, § 1997), need not necessarily be independent of and separate from a homicide intended by such section to be reduced from murder to manslaughter in the first degree, but it may be involved in and constitute a part of such homicide.</p> <p>2. --r- Manslaughter--Attempt to Perpetrate an Assault. Where a homicide is committed under such circumstances as would otherwise be murder, it may be reduced to manslaughter in the first degree if committed while attempting to perpetrate an assault or other crime or misdemeanor less than a felony upon the deceased.</p> <p>3. Practice, District Court — Change of Venue. A change of venue on account of the prejudice of the inhabitants of the county against the defendant should not be granted unless it is made to appear to the satisfaction of the court that the defendant can not have a fair trial in such county on account of such prejudice.</p> <p>4. New Trial — Misconduct of Juror — Finding of Trial Court Conclusive. Where, upon a motion for a new trial, it is contended that a juror, after being impaneled to try the cause,, made statements indicating that he entertained a decided and hostile opinion against one of the parties, which is denied, and the question is presented to the court upon the oral testimony of witnesses, and upon the hearing the court decides the question by denying the motion, such decision will be deemed final and conclusive here.</p> <p>5. Criminal Law — Instructions. Instructions examined and sustained.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Street-railways — Operation on City Streets — Authority. A street-car company lias no authority to lay its tracks and operate its cars in the streets of a city without first obtaining permission to do so from the city.</p> <p>2. - Construction of Ordinance Granting a License. A city ordinance granting a street-car company a license to lay its tracks in the streets of the city must be strictly construed against, and be strictly observed by, the grantee.</p> <p>3. Words and Phrases — “As Near as May be.” A license requiring street-car tracks to coincide “as near as may be” with the center of the streets over which they pass means as nearly as practicable.</p> <p>4. Street-railways — Departure from- Prescribed Route in Laying Tracks — Nuisance. If a street-car company acting under such a license depart from a practicable route in the center of the street it acts without authority, its conduct is unlawful, and its tracks, constitute a continuing nuisance. Slight and inconsequential deflections unintentionally made may not furnish ground for action, but substantial deviations fall as completely outside the license as if the tracks were laid at a forbidden place.</p> <p>5. Nuisance — Obstruction of a Street — Injunction—Parties. An abutting property owner who would suffer special damage may object to the laying of street-car tracks on one side of the street under such a license, if it be practicable to locate them in the center of the street; and in such a case injunction is a. proper remedy.</p> <p>6. - Right of Abutting Property Owner to Use of Street. An abutting owner has the right to the exclusive occupation of' a limited portion of a city street in front of his property for such temporary purposes incidental to the proper use and enjoyment of his premises as necessity may require. The necessity justifying the encroachment need not be absolute. It is. sufficient if it be reasonable according to the usages of reasonable men, having due regard for the convenience of the trav-.. eling public.</p> <p>7. - Same. The owner of a livery-barn located on a public street who conducts a feed and sales business" and also practices the profession of veterinary surgeon has no right to keep'.. horses, habitually lodged in the street, nor to use the street as an addition to his barn for the storage of vehicles, nor to use. the street as a place for the regular practice of his profession. If his facilities are not sufficient he should enlarge his barn. But exigencies may frequently arise in the conduct of his business rendering it entirely reasonable that he should use a por-, tion of the street temporarily for all such -purposes. '</p> <p>8. - Same. The right which such a property owner has of' access to his premises from the street includes not only his. own right to unobstructed passage into and out of his barn but the right of unobstructed accessibility to patrons who may come and go and who may need, without inconveniencing- • others, to stop for brief periods in the street in front of the. barn.</p> <p>9. -- Obstruction of a Street — Injury Special to Abutting Property Owner. An obstruction to the lawful use of the-street for the purposes referred to consequent upon the wrongful location of a street-car track inflicts an injury upon the abutting property owner peculiar to himself, independent of' and differing from the general detriment to the public.</p> <p>10. -Injunction — Defense—Avoidance of Injury by Plaintiff. In an action of injunction to prevent the unauthorized laying of a street-car track near the curbing in front of a. livery-barn instead of at the center of the street it is no de-. fense that the owner of the barn has an entrance other than the one wrongfully obstructed which he might use without., inconvenience from the track. He is under no obligation to., suffer any encroachment on his rights by a wrong-doer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Carriers — Injury to Stock in Transit — Measure of Damages. Where animals delivered to a railroad company to be transported to the end of its line and there turned over to a connecting carrier for transportation to a further point are negligently injured on the road of the first company, and afterward unloaded at its terminus, and the shipper there changes their ultimate destination, in an action against that company he has a right to make the measure of his recovery the difference between their market value as delivered at such terminus and what they would have been worth there if no injury had occurred.</p>

<p>^Evidence — Judgment—Objection—Presumption. A judgment having been offered in evidence, a specific objection to it was made and sustained. On review it was held that the objection was untenable, and that it could not be presumed in support of the ruling made that some other ground of objection existed which was not shown by the record.</p>

<p>Service by Publication — Affidavit—Notice—Petition. An affidavit for service by publication, the publication notice and the petition held sufficient against a collateral attack.</p>

<p>Service by Publication — Affidavit—Notice—Petition. An affidavit for service by publication, the publication notice and the petition held sufficient against a collateral attack.</p>

<p>Tax Deeds — Consideration. A tax deed held void on its face because it did not state the amount of the delinquent taxes or-the amount for which the land was sold.</p>

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

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

<p>Practice, Supreme Court — Assignments of Error — Motion for a New Trial. Judgment affirmed because the denial of the motion for a new trial was.not assigned as error.</p>

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

<p>Criminal Law — Appeal—Time of Filing Transcript. Although an appeal from a conviction for the violation of a city ordinance was not properly perfected, the transcript not having •been filed within thirty days after the appeal was taken, the proceedings were examined and the ordinance, complaint and evidence found to be sufficient.</p>

Error from Osage district court; Robert C. Heizer, .judge. .STATEMENT. The preliminary facts leading up to the bringing of this action are stated in the opinion in Troutman v. DeBoissiere, 66 Kan. 1.

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Contributory Negligence of a Traveler at a Crossing. Upon' a review of the evidence it is held that the question whether the deceased person for whose death damages are sought was chargeable with contributory negligence was one of fact for the jury.</p> <p>2. - Evidence — Tests of Hearing or Sight. The rule stated in Mo. Pac. Rly. Co. v. Moffatt, 66 Kan. 667 (par. 4 of syllabus), and in Railway Co. v. Townsend, 71 Kan. 524, relative to the admissibility of the evidence afforded by tests made by witnesses of the effect of an intervening bluff in deadening the sound made by an approaching train, is held to be applicable to such testimony relating to the effect of the embankments of a cut through which a railroad track extended in preventing a view of the smoke or steam from an engine approaching through such cut.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Instruments — Construction — Question of Law. The construction of written instruments is a question of law for the court, and ordinarily it is error to submit such a question to the jury.</p> <p>2. Evidence — Immaterial Testimony Ground of Reversal if Prejudicial. It is reversible error to submit irrelevant and immaterial testimony to a jury when it is materially prejudicial to the rights of the complaining party.</p>

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

Smith, judge pro tern. STATEMENT. The appellant was arrested upon a warrant charging-him with the forgery of a check, drawn by him as county treasurer upon the Phillips County Bank for-$4000, and with having presented this forged check to the bank, which was the depositary of county funds, and having obtained the money thereon.

<p>SYLLABUS BY THE COURT.</p> <p>1. Preliminary ExAMiNATiON-Jhwposes — Effect of Waiver on Introduction of Evidence. The purpose of a preliminary examination is threefold: (1) To inquire concerning the commission of crime and the connection of the accused with it, in order that he may be informed of the nature and character of ,the crime charged against him, and, if there be probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to perpetuate testimony; (3) to determine the amount of bail which will probably secure the attendance of the accused to answer the charge. The right of the state to introduce evidence at a preliminary examination can not be defeated by the accused waiving an examination.</p> <p>2. - Court of Topeka — Jurisdiction. The act creating the court of Topeka (Laws 1899, ch. 129) confers upon the judge of that court the power and jurisdiction of a justice of the peace in preliminary examinations of persons accused of felony.</p> <p>3. - Transcript — Subsequent Attestation. Where the clerk of a city court has failed to sign the certificate attached to the transcript of a preliminary examination held before the judge of such court it is proper for the district court to permit the certificate to be amended by having the clerk attach his signature.</p> <p>4. Larceny — Identification of Property. In a prosecution for larceny, where the money described in the information and claimed to have been stolen is introduced in evidence and exhibited to the jury, it is not necessary that the particular bills should be identified as the ones described in the information.</p> <p>5. - Judicial Notice of Value of Money. Courts take judicial cognizance of the value of money. In a prosecution for the larceny of certain United States treasury notes and national bank notes, where the particular bills which it is claimed were stolen are offered in evidence, proof of their value is unnecessary.</p> <p>é. - Title of Stolen Property may be Laid in Possessor. The actual status of the legal title to stolen property is no concern of the thief. In an information charging larceny the title to .the property may be laid either in the owner or the person in whose possession it was when it was taken, even though that person had stolen it from some one else.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Petition—Collateral Attack. Where a court has jurisdiction of the subject-matter of an action and of the parties, a petition which alleges sufficient facts to challenge the attention of the court as to its merits, and to authorize the court to deliberate and act, is sufficient to sustain a judgment rendered in the action upon evidence, as against a collateral attack on the ground that the judgment is void; and this although the petitión may have been demurrable on the ground that it did not state facts sufficient to constitute a cause of action.</p>

<p>Error from Morton district court; WILLIAM H. Thompson, judge.</p>

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

Error from Seward district court; William H. Thompson, judge. STATEMENT. Leo N. Leslie commenced a suit to quiet title against several parties, including Archibald J. Berry and the Showalter Mortgage Company. Service was by publication, and judgment was rendered upon default against all the defendants. Within two years after the judgment had been entered Charles E. Gibson filed a-motion to open the judgment and for leave to defend.

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds — Presumption of Contiguity of Lots. It may fairly be inferred from the recitals in a tax deed which has been of record more than five years and which purports to convey several lots consecutively numbered in a certain block of a city and bid in by the county for a gross sum, where a single charge was made for the subsequent taxes of each following year, that the lots were contiguous and comprised only a single parcel for purposes of taxation.</p> <p>2. - Compromise — Assignee Required to Pay All Taxes Due. In effecting a compromise of taxes on lots bid in by the county, which have stood unredeemed for three years without any one offering to purchase the same for the amount of the taxes, interest and penalties due thereon, the purchaser to whom the certificate is assigned under the order of the county commissioners may be required to pay all subsequent taxes due on the land at the time of the compromise.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sale of Land by an Option-holder. A contract granting an option to purchase a tract of land and binding the owner to convey on stated terms does not, before acceptance by the option-holders, yest in them any estate or interest in the land; but since they have such control of the title that by performance they can compel a conveyance, and so secure the land to themselves, they may, before the option expires, lawfully make a sale of it to a third party.</p> <p>2. - Agent to Account to Option-holder. An agent of option-holders effecting a sale of the land for them under an arrangement whereby the option is relinquished and the owner conveys directly to the purchaser can not refuse to account for the profits of the transaction because his principals had no estate or interest in the land.</p> <p>S. Variance — Unnecessary Allegation in Pleading Disregarded. In an action by option-holders against their agent for profits which he has fraudulently secured to himself in making a sale of the land for them to a third party it is not necessary to allege or prove that the option-holders were equitable owners of the land, and an allegation to that effect in the petition may'be disregarded.</p> <p>4. Principal and Agent — Accounting. Whatever the situation of a principal with reference to a tract of land may be, if an agent lawfully undertake to sell it for him, make the sale, and secure to himself the fruits which the agency was created to obtain, he is bound to account to his principal.</p> <p>5. - Forfeiture of Commission by Bad Faith. If by suppressing the truth and 'misrepresenting the facts an agent to sell land for option-holders should obtain a relinquishment of the option, effect a sale to a third party, and secure to himself the profits of the transaction, he forfeits his commission.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Judgment by Default — New Party — Notice of Proceeding. In a mortgage-foreclosure suit judgment was taken by default against the mortgagor, who was served personally. At the same time it appeared that a person claiming an interest in the land had been omitted, and an order was included in the foreclosure decree allowing him to be made a party. The petition was amended and he was duly served. He answered setting up a second mortgage given by the defaulting defendant, and prayed a personal judgment against him, which in due time was entered without further notice or appearance. Held, the defendant in default was bound to take notice of the proceedings and the judgment against him is not void.</p>

Error from Atchison district court; D. S. Hooper, judge pro tern. STATEMENT. Held: and on that date called upon the justice who rendered the judgment and tried to get him to stop the sale; that the plaintiff was not present at any time during the sale, and gave no notice to the public that he claimed the sale was illegal; that Schott had no notice or knowledge that the sale was illegal, and bought the wool in good…

Error from Chase district court; Frederick A. Meckel, judge. STATEMENT. This action was commenced in the district court of 'Chase county, by the administrator of the estate of P. P. Schriver, deceased, to recover damages sustained by the next of kin on account of the death of P. P. Schriver, who was killed while crossing the defendant’s railroad near Cedar Point, in that county.

<p>Error from Cherokee district court; CORB A. MC-' Neill, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Administrator’s Bond — Liability of Surety. An administrator with the will annexed died in office without having accounted for money which he had collected belonging to the testator’s estate. His successor obtained judgment in the district court against his administrator for the sum found to be due. The judgment was presented, allowed and classified in the probate court as a claim against his estate, but no order was issued upon his administrator for its payment, and it was not paid. Held, such an order is not a condition precedent to recovery against the sureties on his bond.</p>

<p>Error from Smith district" court; Richard M. Pioneer, judge.</p>

Error from ■ Reno district court; Peter J. Galle, judge. STATEMENT. This action was commenced in the district court of Reno county, August 10, 1907. An amended petition, containing two causes of action was filed November 8,. 1907. To this petition as amended a demurrer was. filed, on the ground that the petition showed on its face: that action upon each count was barred by the statute of limitations.

<p>Error from Jefferson district court; MARSHALL Gephart, judge.</p>

Error from Jefferson district court; Marshall Gephart, judge. STATEMENT. The plaintiff, Henry McClenny, sued the defendants, Inverarity and Dedrick, for damages for conspiracy, abuse of process, false imprisonment, intimidation and extortion, whereby they obtained from him a sum of money. The plaintiff had given to Inverarity a note for $175, secured by a chattel mortgage given and recorded in Jefferson county, where the parties then lived.

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Joint and Several Obligation. ■ A personal judgment against two defendants is a joint and several obligation, which the plaintiff may enforce against either of them at his option.</p> <p>2. - Death of One Debtor — Revivor Unnecessary to Hold the Other. The fact that one of two judgment debtors dies and there is no revivor or proceeding had to keep the judgment alive as to his estate does not extinguish the liability of the other, nor bar a proceeding to revive, the judgment as against' such surviving defendant.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Court-house Square — Dedication—County Liable for Local Assessments. Where a block in a town plat is designated as a “public square,” and in the certification to the plat the streets, alleys and the square designated on the plat are dedicated to the use of the public and to the town, the legal title to the public square vests in the county; and where a county takes possession of such square by building a court-house thereon, and continuously occupies the square for more than forty .years, the county is liable for the payment of an assessment made by an ordinance of the city for the cost of macadamizing and curbing the streets abutting upon the public square.</p>

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

Error from Graham district court; Charles W. Smith, judge. STATEMENT. THIS is an action of ejectment. It was commenced in the district court of Graham county by W. W. Good-row, against G. W. Stober, to recover the possession of a part of a lot in the town of Fremont, now called Morland. Judgment was rendered in favor of the defendant, and the plaintiff prosecutes error.

Error from Chautauqua district court; Granville P. Aikman, judge. STATEMENT. In February, 1903, Melissa Thompson was in possession of lots 5 and 6, containing about 57 acres, under a tax deed, and was the owner in fee of lots 7 and 8 adjoining. At that time she made an oil-and-gas lease to L. A. Lockwood on the four lots, in consideration of one-tenth of the oil produced upon the property, to be delivered to her, and certain other rentals.

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Judgment 'by Default — Vacation—Retrial„ In an action by a subcontractor to recover a personal judgment against the contractor and to foreclose a- mechanic’s lien on the building and premises of the owner, a judgment by default was first rendered against the contractor and the foreclosure of the lien was adjudged. Subsequently the owner moved for the vacation of the judgment and the motion was allowed, but the personal judgment against the contractor was not formally set aside. No defense was made by the contractor and the court proceeded to try the case as if the entire judgment had been vacated, and upon the trial allowed the owner to contest the amount due and the extent of the lien to be adjudged against his property. Held, that the court should have formally set aside the personal judgment against the contractor, but that it was not prejudicial error to try the question of the amount due to the subcontractor without having made such formal order.</p> <p>2. -Action by Subcontractor — Defense by Owner — Counter-claim. In an action brought by a subcontractor, uwhere the original contractor does not defend against the claim, the owner may defend, and for the purpose of ascertaining the amount due and reducing the extent of the lien to be established against his premises may, allege and prove damages resulting from defects and omissions in the work performed or the material furnished by the subcontractor.</p> <p>3. - Tender — Withdrawal—Discharge of Lien. Where the owner asks for the withdrawal of an amount of money which he had tendered and paid into court to meet the claim of the subcontractor and which the subcontractor declined to accept, and the court grants his request and permits the withdrawal of the deposit, such tender and deposit can not be regarded as effecting a discharge of a lien properly perfected.</p>

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

Error from Pottawatomie district court; Robert C. Heizer, judge. STATEMENT. Walter brought this suit against Bingman.

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds — Quitclaim, Deed to the Purchaser from the Mortgagor — Merger. One who is not under' any obligation to pay taxes upon land, nor in privity with one so liable, may obtain a tax title thereto, and when in possession and claiming title under such a tax deed, apparently valid, may accept a conveyance from the former owner without incurring thereby the risk of losing his land for failure to pay a mortgage given by such former owner and outstanding when the taxes bécame delinquent, although the mortgagor had covenanted in the mortgage to pay the taxes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Limitation op Actions — Fraud—Tax Deed — Payment of Taxes —Principal and Agent — Estoppel. Where the owner of real estate directed an agent to purchase it at tax sale, take the certificate in his own name and then assign and send the certificate to the principal, and the agent purchased as directed but failed to assign or transmit the certificate, and instead thereof treated it as his own, paying all subsequent taxes thereon, and at the end of four years took out a tax deed fair on its face for himself, and thereafter transferred the property to an innocent purchaser, who entered into possession of the same, and the principal made no demand for the certificate or tax deed nor for possession, paid no subsequent taxes on the property, and made no claim of ownership for about eleven years after the tax sale and about seven years after the execution and recording of the tax deed, at which time the principal executed a deed to the plaintiff, who then brought an action to recover the property, held, that, the tax deed under which defendant holds having been of record for more than five years before the litigation was begun, the action was barred by the five-year statute of limitations, and held, further, that neither the principal nor the plaintiff is- in a position to defeat the tax deed as against the defendant on the theory that the purchase of the real estate by the agent at the tax sale was only a payment of the taxes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors and Administrators — Sale of Real Estate to Pay Debts — Statute of Limitation. The provision that an action for relief not otherwise provided for in the statute of limitation can only be brought within five years after the cause of action shall have accrued has no application to a proceeding instituted in the probate court by an executor for the sale of real estate to pay debts of the testator.</p> <p>2. - Reasonable Time in which to Sell. There being no statute of limitation relating to the matter, the requirement of the law is that, such a proceeding can be maintained only if begun within a reasonable time, in view of all the circumstances of the case.</p> <p>3. - Delay in Petitioning for a Sale Explained. A delay of six years by a foreign executor to petition for the sale of land in this state to pay the indebtedness of the testator is not unreasonable when it is occasioned by the pendency of litigation carried on in good faith to determine the validity and amount of such indebtedness.</p> <p>4. --- Order Allowing Claim — Prima Facie Evidence. In a proceeding to subject real estate to the payment of the debt of a decedent, the allowance of the claim against the executor or administrator by a court having jurisdiction is prima facie evidence against the heirs or devisees of its validity and due presentation. This is true even of an order made by the court of another state, in virtue of the provision of the statute (Gen. Stat. 1901, § 2950) authorizing a foreign executor or administrator, where none has been appointed in Kansas, to sell real estate of the decedent situated in this state for the payment of debts in the same manner as though he had been appointed here.</p> <p>5. - Innocent Purchaser, from Devisees. One who buys land in this state from the devisees, seven years after the death of the testator, while a resident of another staj;e, is not protected as an innocent purchaser against proceedings thereafter brought to subject it to the payment of debts of the estate.</p>

Error from Reno district court; Peter J. Galle, judge. STATEMENT. This action was commenced by school district No. 45 against school district No. 127.

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Fraud—Undue Influence. In an action between the heirs of a deceased person for the recovery of real estate to which the defendants claimed title by virtue of conveyances executed by the deceased in her lifetime the court instructed the jury that, in deciding whether or not the deceased was of sound mind or was unduly influenced at the time of making the deeds in question, they had the right to take into consideration the reasonableness or unreasonableness of her act in making the deeds; and if they believed that a woman of sound mind would not have been likely to do such an act in the free exercise ■ of her judgment, discriminating against one daughter in favor of another daughter and her family, then they had the right to infer from the act itself that undue influence was used to secure the deeds, though not bound to do so. Held, error. A person of sound mind who is not unduly influenced may make such disposition of his property as he desires, without regard to its fairness or unfairness.</p> <p>2. Ejectment — Misjoinder of Actions. In an action of ejectment, brought for the recovery of several distinct and separate parcels of land, where the plaintiff’s title as to all the defendants is the same, and the answer sets up a misjoinder of causes of action because some of the defendants claim separate interests in separate portions of the real estate, but admits that all the defendants are in possession of all the real estate, the misjoinder furnishes no ground for objection to the introduction of testimony on the trial or for a demurrer to the evidence; and where in such a case none of the defendants asks for a severance or a separate trial, and the action proceeds as though there was no misjoinder, it will be regarded as immaterial.</p>

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

<p>Appeal from Stafford district court; Jermain W. Brinckerhoff, judge.</p>

Original proceeding in quo warranto. STATEMENT. The plaintiff and the' defendant were rival candidates for the office of judge of the district court in the thirteenth judicial district, at the general election in November, 1908.

<p>SYLLABUS BY THE COURT.</p> <p>1. JURY and Jurors — Qualifications — Contradictory Answer st Contradictory answers of a juror while under examination concerning his qualifications do not necessarily prove his unfitness to serve, and if after proper instruction by the court he appears to be duly qualified it is not error to overrule a challenge based upon such answers.</p> <p>2. Intoxicating Liquors — Joinder of Misdemeanors in One Count — Election. The unlawful acts specified in the prohibitory law in defining a common nuisance may be charged conjunctively in one count, and it is not error to deny a motion of the defendant to require the prosecuting attorney to 'elect upon which of the acts so charged he relies for conviction.</p> <p>3. Criminal Law — Instructions in Writing — Oral Repetition. The oral repetition of an instruction to the effect that no inference of guilt can be drawn from the omission of the defendant to testify, which was one of the instructions properly given in writing, is not a material error, if error at all.</p> <p>4. - Argument to the Jury — Reference to Defendant’s Failure to Testify. A statement by the prosecuting attorney in the closing argument that there was no testimony to contradict the evidence of a sale of liquor on a certain day, if warranted by the proof, does not afford a ground of reversal although the defendant did not testify on the trial.</p> <p>5. -Instruction Not Pertinent. An instruction requested, although stating a correct proposition of law, should be refused if not pertinent to the evidence or if it- be included in substance in the others given.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Office and Officers — Duties—Performance. The duties of a public office include all those which fairly lie within its scope; those which are essential to the accomplishment of the main purposes for which the office was created, and those which, although incidental and collateral, are germane to or serve to promote or benefit the accomplishment of the principal purposes. All such duties are official and the incumbent may be compelled to perform them. Duties not so related to an office are unofficial, can not rightfully be attached to it, and the incumbent is not obliged to perform them. '</p> <p>2. Jury and Jurors — Selection—Judicial Function. To make effectual the constitutional guaranty of the right of trial by jury the district court possesses, by virtue of the sovereignty reposed in it, inherent power to provide itself with a jury. The legislature may aid and regulate the exercise of this power, but the selecting of jurors from the inhabitants of the proper territory to determine issues of fact in court is a court function, cognate with that of hearing and deciding, and is not “administrative” in origin, purpose or character in the true sense of that term.</p> <p>3. - Jury Commissioner — Duty Imposed upon District Judge. Chapter 232 of the Laws of 1907 requires the judge of the district court in certain counties to perform the duties of jury commissioner, and authorizes him to appoint a jury clerk to assist him in the performance of such duties. Held, the duties prescribed are not administrative in character, fall within the scope of the office of judge of the district court, and do not appertain to another office within the meaning of section 13 of article 3 of the constitution forbidding a judge of the district court to hold any other office of profit or trust.</p> <p>4. Office and Officers — New Duties — Additional Compensa,tion. When a public official takes office he undertakes to perform all its duties, although some of them may be called into activity for the first time by legislation occurring after he enters upon his term. In such an event he must perform the increased service without increased compensation, unless the legislature has the power and sees fit to grant him additional pay.</p> <p>5. Constitutional Law- — Additional Compensation for Judicial Officer. The act of 1907 referred to in paragraph 3 contains a provision increasing the salaries of district judges performing the services specified from $3000 to $3500 per annum. Section 13 of article 3 of the constitution provides that judges of the district courts shall receive such compensation for their services as may -be provided by law, which shall not be increased during their terms of office, and that they shall receive no fees or perquisites. Held, that district judges in office when the statute took effect were obliged to render the increased service without increased compensation for the remainder of their terms.</p>

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

<p>Error from Gove district court; Jacob C. Ruppenthal, judge.</p>

<p>Building and Loan Associations — Evidence. The charter of a foreign corporation examined and held to show that it is a building and loan association within the meaning of the statute (Gen. Stat. 1901, §1421) requiring associations of that character to procure authority from the bank commissioner before doing business'in this state.</p>

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

<p>Error from Doniphan district court; Sam Kimble, judge pro tern.</p>

<p>Error from Stanton district court; William H. Thompson, judge.</p>

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

<p>Error from Miami district court; S. D. Scott, judge-pro tern.</p>

<p>Limitation op Actions — Tolling the Statute — Absence from the State. The evidence held not to establish the absence of a ■ mortgagor from the state so as to toll the statute of limitations.</p>

<p>Adverse Possession — Evidence. The evidence held to support a finding that a vtitle had not been acquired by adverse possession.</p>

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

<p>1. Office and Officers — Violation of Duty — Injunction. Injunction by the state held to be a proper remedy to prevent a violation of duty by a public officer.</p> <p>2. - General Deposit of Public Funds — Authority of County Treasurer. A county treasurer held to have no authority to place public funds on general deposit in a bank not designated by the county commissioners as a depositary.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contempt — Attempt to Defeat the Purpose of an Order — Parties —Fines. The court rendered a final judgment ousting a city from the exercise of the unwarranted power of in effect licensing the sale of intoxicating liquors under the guise of collecting fines by simulated prosecutions for the violation of the prohibitory law. To evade the effect of the judgment a number of saloon-keepers raised a fund from which they for a time paid the salaries of some -of the city’s officers and employees. Held, that all concerned in Jhe carrying out of this arrangement, whether or not they are to be regarded as having violated an injunction directed against them, are guilty of contempt of court in virtue of their having attempted to defeat the purpose of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>IRailroads —■ Defective Appliances — Injury to Employee — Demurrer to Petition. A petition which in substance alleges that the injury complained of was caused wholly by the negligent manner in which the defendant maintained its road-bed, track and switches at the place where the accident occurred, by not having the frog of the switch and the guard-rail blocked, and that therein the defendant failed to use ordinary care for the protection of its employees, states a cause of action as against a general demurrer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Petition—Insufficient Facts. Where any fact or facts essential to be established by evidence to sustain an acción are entirely omitted from the petition a general demurrer co such petition should be sustained, and the overruling of such demurrer is error.</p> <p>2. - Error Cured by Trial of Issue Not Pleaded. When after the overruling of such demurrer the defendant answers, although his answer in no way cures the defect in the petition, and upon the trial both parties treat the omitted facts as in issue and. introduce evidence pro and con thereon, and the issue is determined by the judgment of the trial court, the error will not' be regarded here as prejudicial nor will the judgment be reversed by reason thereof.</p> <p>3. Conveyances — Resulting Trust. The finding and judgment awarding to the plaintiff the land in controversy and decreeing in effect that the defendants inherited from their deceased father only the bare legal title thereto, which he held as a resulting trust for the plaintiff, to whom passed the equitable title, is supported by the evidence and is in accord with the statute of trusts and powers. (Gen. Stat. 1901, §§ 7875-7893.)</p>

Error from Jackson district court; Marshall Gep:hart, judge. STATEMENT. Thomas Fennell lived in Jackson county, Kansas, .'and was the owner of a half-section of land in that «county, being the east half of section 5, in township 9, of range 13. The amount of his personal property, if any, •does not appear. On the 26th day of March, 1907, he • died, leaving a widow — Anne Fennell, four sons — Edward, Joseph, Enos, and John, and three daughters— Lucy, Catherine, and Anne.

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

Error from Montgomery district court; Thomas J. Flannelly, judge. STATEMENT. - This suit to foreclose two mortgages involves the ownership of one and priority between the two. The plaintiff, Joseph P. Rossiter, set up a note executed by Charles M. Merriman and wife on June 15, 1897, for $450, and a mortgage on a lot in Coffeyville securing the note, as well as an assignment of the note and mortgage to himself by the Mid-continent Cooperative Loan Company, the mortgagee.

<p>SYLLABUS BY THE. COURT.</p> <p>1. Mineral Leases •— Covenant to Work and Mine “Continuously.” In the absence of provisions indicating a contrary intention a covenant in a mining lease that the lessee shall work and mine the property continuously means continuously to the end of the term.</p> <p>'2. - Oral Agreement — ^Specific Performance — Mutuality of Obligation and Remedy. The owner of mining lots made an oral agreement to lease them for a long term of years, the lessee to work and mine the lots continuously, in good faith and in a miner-like manner. The lessee was put in possession and for three years carried out in good faith the terms of the contract. Meantime the lessee installed machinery, erected improvements, sunk shafts, ran drifts and otherwise developed the property until it became very valuable, and in so doing expended the sum of $30,000. After repeated demands the lessor refused to execute a lease for the agreed period. Held, that as against a claim of want of mutuality in the obligation and remedy of the parties specific performance of the oral agreement should be decreed.</p>

Error from Lyon district court; Frederick A. Meckel, judge. STATEMENT. E. E. Roth was head brakeman on a freight-train operated on the defendant’s railroad. On January 13, 1907, his train became disabled and was compelled to take a side-track at Mission Siding. At this time a train from the west was due at that station, and Roth was sent forward to flag and stop the coming train until the main track could be cleared.

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Nuisance—Lien on Premises for Fine and Costs. Where three persons jointly maintain a common nuisance in violation of the prohibitory law, upon premises owned by two of them, and the other is alone convicted of the offense, a lien for the fine and costs adjudged against him attaches to the premises so entered upon, occupied and used by the three as partners.</p> <p>2. -Discharge of Lien. An agreement between the prosecuting attorney and the person so convicted that upon the payment of a sum of money, to be applied, first, upon the costs accrued in another pending criminal prosecution for the unlawful sale of intoxicating liquor, and the remainder to be applied upon the costs included in the judgment of conviction upon which he had been committed to jail, and that the pending prosecution should be dismissed, although executed, does not discharge the lien for the fine and the costs still remaining unpaid.</p> <p>3. - Same. The consent of the prosecuting attorney that the prisoner may he released from imprisonment upon such payment being made, given in expectation of a pardon from the governor, which was afterward issued, and in anticipation of favorable action by the county commissioners upon the prisoner’s application for release from jail under section 253 of the criminal code, which action was not taken, does not discharge such lien.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Bight to a Review — Change of the Status Quo. Where the trial court refuses an injunction the right of review is not necessarily defeated by the full performance pending an appeal of the act sought to be enjoined. The court has jurisdiction to order the restoration of the original status, if the nature of the case is such that.the order can be made effective.</p> <p>2. Drainage — Location of a Ditch — Route Described in the Petition. Under the provision of the drainage s_tatute (Gen. Stat. 1901, § 2538) that upon the filing of a petition for a ditch, setting forth a substantial description of its proposed starting-point, route and termination, the township trustee shall upon certain conditions locate such ditch “as substantially conforms with the route described in the petition,” it is not necessary that the termini and route of the ditch as constructed shall correspond exactly with the description in the petition. A considerable variation in this respect is not ground for declaring the proceedings void when collaterally attacked.</p> <p>3. - Finding that Establishment of Ditch is Necessary. Under the statute (Gen. Stat. 1901, § 2538) providing that the township trustee shall locate a drainage-ditch under certain conditions if he finds it necessary, and that the clerk shall make a full and complete record of all the proceedings in connection therewith, an order for the establishment of such a ditch will not upon a collateral attack be held’void because no formal finding of its necessity has been recorded.</p> <p>4. - Location of Ditch — Parties Benefited. The requirement of the statute (Gen. Stat. 1901, § 2539) .that for the purpose of apportioning the cost a drainage-ditch shall be divided into “sections not less in number than the number of owners of land through which the same may be located” does not imply that each owner is to construct so much of it as lies upon his own land.</p> <p>5. - Obstruction of Ditch — Repairs—Notice. The statute (Gen. Stat. 1901, § 2539) providing that whenever such drainage-ditch is obstructed it shall be the duty of the township trustee, “after five days’ notice having been given by any person damaged thereby,” to cause it to be repaired does not make the giving of such notice a prerequisite to action by the trustee; when he is satisfied of the need of repairs he may act, upon his own initiative.</p>

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

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

<p>Notice — Pendency of an Action. A finding that a defendant’ served by publication did not have actual notice of the pendency of the action in time to defend held conclusive on review.</p>

<p>1. Motion to Open Judgment — Notice of Pendency of Action. An application to open a judgment reiidered upon publication service, on the ground that the defendant did not have notice of the pendency of the action, was properly denied.</p> <p>2. -Evidence — Affidavits by the Adverse Party. A deposition offered in evidence to show that the defendant had notice that the action was pending was an affidavit within the meaning of section 77 of the .civil code.</p> <p>3. -,-Evidence. It was said that section 77 of the civil code does not prohibit the court from hearing any competent evidence tending to show that the defendant had notice of the pendency of the action in time to defend.</p>

<p>1. Mortgages — Release by Executor — Certificate of Appointment — Notice. A release of a mortgage of record by an executor held insufficient because not accompanied by a certificate of his appointment.</p> <p>2. - Satisfaction. A claim that a mortgage had been satisfied was not sustained.</p> <p>3. -Limitation of Actions. The statute of limitations was not available as a defense in a foreclosure suit.</p>

<p>Contracts — Agency — Independent Contractor. It appearing-that the plaintiffs were employed by one who was an independent contractor, and not an agent for the defendant, a. demurrer to the plaintiffs’ evidence was properly sustained in' an action to recover for services rendered.</p>

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

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

<p>Appeal from Atchison district court; Benjamin Ft Hudson, judge.</p>

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

<p>Error from Gove district court; JACOB C. Ruppentpial, judge.</p>

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

<p>Error from Logan district court; Jacob C. Ruppenthal, judge.</p>