Volume 82 — Kansas Reports

<p>Appeal from Johnson district court; Winfield H. Sheldon, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Liability of a City — Misfeasances of Officers Acting in a Governmental Capacity. The state does not guarantee the judgment or fidelity of its officers and agents in their conduct of political affairs, and municipal corporations, erected for purposes of local government, are not liable for misfeasances of their officers when acting in a governmental capacity with respect to matters of general public concern. The principle of respondeat superior does not apply in such cases.</p>

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

Galle, judge. STATEMENT. The defendant was treasurer of the city of Newton from April, 1898, to May, 1905. He was sued for an amount alleged to be due to the city because of errors, omissions and incorrect charges in his accounts. A trial before a referee resulted in a judgment against him, from which he appeals. The referee resided in Hutchinson. The defendant’s attorney resided in Newton.

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

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Breach of Warranty — Encumbrance—Sale of Leased Land — Ratification of Lease — Advanced Rental. In March the owner of farm land leased it for the season, the tenant paying $100 at the time on account of the hay crop, and agreeing to deliver two-fifths of the other crops. In June the owner conveyed the land, warranting against any encumbrance. The grantee accepted from the tenant two-fifths of the other crops and sued the grantor for damages, claiming their measure to be the value of the hay crop at the time the deed was executed. Held, that he was entitled to a recovery, but only to the amount of $100.</p>

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

Lobdell, judge. STATEMENT. On March 18, 1901, the appellee brought an action in the district court of Hodgeman county to recover a judgment on a note of $600 and to foreclose a mortgage given on land in that county to secure the payment of the note.

<p>Appeal from Decatur district court; William H. Pratt, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds — Selling Price Omitted — Misstatement of Cost of ■ Redemption — Presumptions. A tax deed based upon a sale to the county and an assignment of the certificate, which does not in terms state the sale price and which misstates the cost of redemption, which was the consideration for the assignment, is not void on its face if, from data furnished by the deed and the law, aided by the presumptions which may legitimately be indulged, the sale price may be ascertained and the recital corrected.</p>

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

STATEMENT. The appellants brought action in the district court of Crawford county and in their petition alleged that on January 6, 1908, they were the owners of certain described land; that on that day they entered into a written contract with the appellee by the terms of which, in consideration of certain royalties to be paid, they granted to the appellee the right to mine the coal from the land; that $15,000 advance royalty was paid by the appellee to them as provided by…

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

Meckel, judge. STATEMENT. This is an action to recover a judgment for money. The appellant is a corporation engaged in loaning money and is located at Emporia, Kan. The appellee resides at Shenandoah, Iowa, where he has lived about thirty years and has been engaged in buying and selling real estate, farming, cattle raising, and in mercantile and banking business. He owned real estate in Butler county, Kansas, near the town of Atlanta, in Cowley county.

.Swarts, judge. STATEMENT. The appellee recovered a judgment against the railway company for injuries received at Harper, while in the employ of the company as a brakeman. From his ■evidence it appears that a freight train on which he was a brakeman ran between Medford and Hutchinson ■on a branch of the railway.. At Harper this branch was connected by a “Y” with the Panhandle division, ■extending west from Wellington.

<p>SYLLABUS BY THE COURT.</p> <p>1. Compromise Tax Deed — Separate Sale of Contiguous Lots— Consideration — Taxes Compromised. A compromise tax deed' which had been of record more than five years purported to-convey a block of ground in a city. Four of the lots were sold separately for a specified amount, eight of the lots were-sold together for a stated sum, and the remaining sixteen lots of the block were sold together for a single consideration. The lots so sold constituted the entire block, and all were-owned by the same person. The recitals showed that the subsequent taxes for each year after the sale and before the-compromise were included in a single charge, and all taxes,, interest and charges against the entire block were compromised and the interest of the county assigned for one gross sum. In an attack on the deed because it did not state the-consideration for which each lot was sold and conveyed it is held, that the instrument is not void on its face for that reason; that it contains the essential recitals of a compromise-tax deed; and that it is not void because the compromise did. not include the taxes of the year in which it was made.</p> <p>2. -Acknowledgment of Execution by County Clerk. An-abbreviated acknowledgment of the execution of the tax deed held to be sufficient.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Vacation—Mistake—Issues Presented by Pleadings — “Irregularity.” Under the provision (Civ. Code, § 568, subdiv. 3; Gen. Stat. 1901, § 5054, subdiv. 3) that a judgment may be set aside at a subsequent term “for mistake, neglect or omission of the clerk, or irregularity in obtaining” it, a court may vacate a judgment rendered on the pleadings because of a misapprehension as to what allegations they in fact contained.</p> <p>2. Limitation of Actions — Removal of Cloud from Title. The right to maintain an action to remove a cloud from a title is a continuing one to which the statute of limitation is not applicable.</p> <p>3. Foreclosure — Recovery against Defendant Not in Privity ■ with Mortgagor — Proof that the Mortgagor Had Title. In an action brought to foreclose a mortgage, in order to establish a ground of recovery against a defendant who does not claim under its maker, the plaintiff is required to show that the mortgagor had title to the property, so that the mortgage created a lien.</p>

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

Pickler, judge. STATEMENT. This is an action of ejectment. The plaintiffs owned a section of school land in Osborne county and occupied and improved the same until 1889, when they removed to Oklahoma. They continued to control and rent the land until 1893. After this date the interest due the state and the taxes were not paid.

<p>SYLLABUS BY THE COURT.</p> <p>1. Parties — Action for Injury to Growing Crop by Landlord Who is to Receive Crop Rent. A landlord who is to receive a share of the crop as rent may maintain an action without joining the tenant and recover from a railway company which obstructed a river, resulting in flooding the land and injuring and destroying part of the crops growing thereon, but can only recover to the extent of his share.</p> <p>2. Damages — Destruction or Injury to Groiuing Crop. The measure of damages for the destruction of a growing crop is the value of the crop in its condition at the time and place it was destroyed, and, if only injured, it is the difference in value before and after the injury.</p>

Pickler, judge. STATEMENT. James T. Butler was adjudged guilty of an indirect contempt and appeals from the judgment.

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Rolls — Prima Facie Evidence of Ownership. The tax rolls of a county showing the assessment of land in the name of a person as owner are prima facie evidence of ownership by such person in an action to set aside a tax deed of the land issued to him.</p> <p>2. Tax Deed — Grantee Part Owner of Lot Sold as One Tract— Redemption of Entire Lot. Where portions of a city lot belonging to different owners are taxed together and sold for taxes as one tract, a tax deed to one of the owners operates as a redemption of the whole tract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Master .and Servant — Notice of Defeats — Assumption that Master Has Discharged His Obligation. A railway engineer is not bound to know every defect existing in the ties and rails of the track over which he runs his engine. If the track, ties and rails are in place he has the right to assume that the company has discharged its obligation to keep them in reasonably safe repair.</p> <p>2. - Assumption of Risk. In an action by a railway engineer against the company to recover for personal injuries received in the derailment of his engine, caused by defective ties and rails, where the defects had existed for such a length of time that the railway company was bound to have notice of them, and where it was shown that the engineer had no knowledge of the defects and no opportunity of knowing of their existence except such as came to him in operating his engine over the track, held, that the risk as to the condition of the roadbed was not one which he assumed.</p> <p>3. Railroads — Agreement by Employee to Give Notice of Claim for Injuries — Waiver. In the action mentioned in the preceding paragraph the answer set up as a defense the failure of the plaintiff to give notice in writing of his claim for injuries, within thirty days, as provided in the contract of employment At the trial the plaintiff, without objection, testified that some one from the claim department of the company came to his house three weeks after the accident and took from him a written statement concerning the accident and his injuries. The defendant then introduced in evidence the written statement itself, signed by the plaintiff, stating the time, place, manner and cause of his being injured and the nature and extent of his injuries. Held, that the taking of the written statement constituted a waiver by the company of the failure to give the notice.</p>

Thompson, judge. STATEMENT. On October 1, 1888, Frank Cessna was the owner of 160 acres of land, the subject of this action. On that day he mortgaged the land to H. B. Buckwalter to secure the payment of a promissory note for $300, due in five years, with interest to be paid semiannually.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Regulations Imposed upon Shipper to Whom Free Transportation Was Given. A cattle shipper was given free transportation to accompany his. stock, subject to the following restrictions contained in a signed contract:</p> <p>“We further agree to specially observe the following regulations: (1) Remain in a safe place in the caboose attached to the cars while the train is in motion. (2) Get on and off said caboose only while the same is still or stationary. (3) Will not get on or be on any freight car while switching is being or is to be done at stations or other places or at any other time.”</p> <p>Held, the regulations were reasonable and not in contravention of law or sound public policy.</p> <p>2. - Duty of Shipper to Comply with Conditions of the Contract. A cattle shipper using such transportation must regulate his conduct at stopping places by his contract, and hence is obliged to ascertain and know whether he has time to examine his stock and return to his place in the caboose before the train proceeds on its journey.</p> <p>3. -Injury to Shipper — Passenger or Licensee — Waiver of Conditions of the Contract. A cattle shipper using transportation of the character described completed an examination of his stock at a station just as the train commenced to move. The caboose was some twenty cars to the rear. He started to walk toward the caboose, when the conductor told him he had better get on, that the train would be going so fast by the time the caboose got there he could not get on. He then climbed the ladder of a freight car, and before he reached the top was raked off by a water crane overhanging the track. Held, the conditions of the contract were waived, that he was-, not a mere licensee, and that the carrier is liable in damages, for the injuries he sustained.</p> <p>4. - Contributory Negligence of a Passenger. Under the-circumstances of this case it is held, that the question whether the shipper referred to was guilty of contributory negligence was one for the jury to decide.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Accidental Injury to One Driving Over Temporary Railway Crossing — Defendant Not Negligent. The plaintiff was driving along a highway with a load of hay, and came to a railway crossing. The railway company was engaged at the time in repairing its track and roadbed, and had taken np the crossing and raised the rails several inches. The plaintiff stopped his team, got down from the wagon, went to the crossing, and talked with the foreman in charge of the work. The forerfian said he would have the crossing ready for him in a few minutes, and the section men, under the direction of the foreman, put back the crossing boards and threw in some dirt. The foreman then said to the plaintiff: “The crossing is ready for you; do you think you can cross?” The plaintiff said he thought he could. In attempting to drive over the temporary crossing the load of hay was overturned and the plaintiff was injured. Held, in an action to recover damages, that in using the temporary crossing which had been placed there for his use the plaintiff acted upon his own judgment, with full knowledge of its condition, and that there was no negligence on the part of the railway company which would entitle him to recover.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Notice — Lessee of Land — Lis Pendens — Appeal—Action for Rent. In a divorce proceeding the wife claimed a certain farm as her separate property, but the district court decided that it belonged to the husband. Upon an appeal the supreme court reversed that judgment and decided that the title-to the farm was in the wife, and that the husband never had owned it. After the appeal had been taken the husband leased' the land to another and collected the rent for the same. Held, in an action by the wife to recover from the tenant for the use of the land: (1) That the tenant was bound to know that an appeal had been taken from the judgment and therefore took his leasehold interest at the risk of a reversal of the judgment. (2) Although no supersedeas bond was given on the appeal the tenant was bound by the result of the appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mobs — Destruction of Property — Reputation and Conduct of Plaintiff — Mitigation of Damages. In an action against a city for damages occasioned by a mob through injury to the person of a saloon keeper and the destruction of his liquors and saloon fixtures and paraphernalia the conduct and reputation of the keeper may be given in evidence in mitigation of the damages to the property.</p>

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

<p>Original proceeding in quo warranto.</p> <p>Judgment for the defendants.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Cities — Bonded Indebtedness — Limitation. Section 1 of chapter . 91 of the Laws of 1909 and section 8 of chapter 62 of the Laws of 1909, as to the provisions relating to the amount of bonds thereby authorized to be issued by cities of the second or third class, are construed as one act, and limit the amount of bonds which may be issued to one and one-half per centum of the assessed value of taxable property in the city for the year previous to the issuance of the bonds, except, as provided in chapter 91, such cities may issue bonds in an amount not to exceed the existing floating indebtedness of such city, such bonds to be used in the redemption of the orders, warrants and scrip of such city outstanding May 1, 1909.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Injunction—Fraudulent Assessment — Demurrer to Petition. While the decision of the tax commission in fixing and equalizing the assessment of property is plenary and final when honestly, although erroneously, made, the petition of a taxpayer for an injunction, in which it was alleged that the tax commission had fixed an exorbitant and excessive valuation upon plaintiff’s property, one which the commission knew to be grossly excessive, and that it had placed a valuation on plaintiff’s property much higher than it had placed on similar property owned by others, stated a good cause of action for equitable relief, and the demurrer thereto should have been overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds — Construction—Consideration for Assignment of Certificate. A tax deed over five years old will not be held void because in undertaking to state the amount for which the-tax-sale certificate was assigned it names the sum for which the original sale was made, where it can be ascertained from a liberal construction of other recitals that the assignment was in fact made for a larger amount, equal to the cost of' redemption.</p>

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

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

<p>, Appeal from Anderson district court; Charles A., Smart, judge.</p>

<p>1. Personal Injuries — Permanency—Construction of Pleadings. An allegation in a petition that the plaintiff did not believe she would ever recover from her injuries held equivalent to saying that the injuries were permanent.</p> <p>2. -Permanent Injuries — Evidence—Presumption on Review. It was held that where the evidence in a personal-injury case does not show permanent injuries it will not be inferred that the jury allowed for such injuries.</p>

<p>Tax Deeds — Compromise ■ — ■ Authority for Assignment — “No Person Bid.” A finding that a five-year-old compromise tax deed was valid sustained.</p>

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

<p>Appeal from Wyandotte court of common pleas; Lewis C. True, judge.</p>

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

<p>Appeal from Osborne district court; Richard M. Pickler, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Findings op Fact — Presumptions. To find a fact by presumption or inference, the inference should be a logical deduction and reasonably certain in the light of all other proper presumptions and of all collateral facts.</p> <p>2. -Evidence. Where there is no substantial evidence, direct or circumstantial, tending to prove a material fact in issue, a finding that it exists can not be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Officers — Shade Trees Growing in Streets— Nuisance — Abuse of Discretion. In the exercise of their delegated powers to grade and improve streets municipal authorities are vested with discretion to determine whether growing trees are nuisances and what obstructions shall be removed, and when their decision is made every reasonable intendment of good faith should be indulged, but an arbitrary decision by an 'officer, not made in good faith, that shade trees of an abutting pwner are a nuisance, when in fact they are not and where there is no reason or public necessity for cutting them down, is no protection or defense to the officer who cuts them down when an action is brought against him to recover for the injury and loss.</p> <p>2. -Resolution or Qrdinance. It is competent for the city council to pass, a resolution directing the officers in charge of the grading of a street not to cut down certain shade trees until such action shall have been authorized by the council.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Specific Performance — Grounds. The ground upon which a court, notwithstanding the statute of frauds, may compel the complete performance of an oral contract for the sale of real estate, which has been partly performed, is that such a decree may be necessary in order to avoid injustice toward one who in reliance'upon the agreement has so altered his position that he can not otherwise be afforded adequate relief.</p> <p>2. -Possession Taken with Owner’s Consent. The mere fact that a proposed buyer has taken possession of real estate with the consent of the owner, upon the faith of an oral agreement for its purchase, does not in and of itself avoid the effect of the statute and justify a decree for the specific performance of the contract.</p> <p>3. -Possession and Deposit of Check for Purchase Price. In the absence of any further showing as to the injury that would result to the plaintiff by a denial of that relief, a decree for the specific performance of an oral contract for the sale to him of a dwelling house is not justified by evidence that, having deposited a valid check for the purchase price with a third person, mutually agreed upon, to be delivered upon the execution of a deed, he took possession of the premises by the owner’s permission, but was on the same day served with a notice to vacate.</p> <p>4. Ejectment — Evidence of Plaintiff’s Title — Admissions. In ejectment, where the defendant claims a right of possession only under a contract with the plaintiff for the purchase of the property, evidence of title on the plaintiff’s part becomes immaterial.</p>

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

Smart, judge. STATEMENT. The plaintiff, a section man engaged in track repairing, was tamping stone under a crosstie when a. fellow laborer, who was tamping stone under another crosstie behind him, negligently struck the plaintiff’s hand with a tamping pick, inflicting the injury for which the action was brought.

Swarts, judge. STATEMENT. THIS action was brought to recover amounts alleged to have been forfeited by the failure of the railway company to furnish cars demanded by' the Udall Milling Company for the shipping of freight between Udall and other points in Kansas. In their petition the milling company alleged that they had made eight different applications for cars, which .the railway company did not furnish.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Construction. Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by subsequent vague or doubtful expressions.</p> <p>2. - Same. A will contained a provision in these words: “the residue of my estate I hereby give and bequeath'to my husband, S. E. G. Holt, during the term of his natural life, and at his decease the residue that may be left after his death, I hereby give and bequeath to my adopted son, William N. Holt, if lie be living at the time, but if he dies before that time and leaves a child or children living, then the said residue of my estate is bequeathed to said child or children.” Held, that this clear devise of the absolute fee of the estate to the adopted son was not cut down to a mere life estate" with a vested remainder by the following subsequent language: “but if the said William N. Holt shall die without issue either before or after the first legatee’s estate expires, then and in that case, I’ direct that the whole of said estate be and the same is bequeathed and given to Martha M. Wilson or her heirs.”</p> <p>3. -- Construction — P%mctuation. A rule of construction as applied to wills is that punctuation is not to be regarded if any change therein will render the meaning of the instrument more obvious.</p>

<p>Appeal from Neosho district court; Oscar Foust, judge pro tem:</p>

<p>SYLLABUS BY THE COURT.</p> <p>Chattel Mortgages — Property to be Kept by Mortgagor at a Certain Place — Removal—Possession. A stipulation in a chattel mortgage that the property- shall be kept by the mortgagor at a certain place gives to him no right to continue in its possession at another place to which it was "removed without the knowledge or consent of the mortgagee and contrary to his direction.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Devisees — • Witnesses — Proof of Execution. The statute (Gen. Stat. 1909, § 9786) making void a devise or bequest to a witness to a will which can not be proved without his testimony applies only to attesting witnesses, not to other persons called upon to testify when the will is offered for probate.</p> <p>2. -- Separate Sheets of Paper — Identification. Where a will offered for probate consists of several separate sheets not permanently fastened together, only the last one bearing the signature of the testator, the connection of the subject matter may be sufficient to establish prima facie the identity of the other sheets.</p> <p>3. -Relation of Draftsman to Testator — Undue Influence. The fact that a will is written by the daughter of the testator, who is named as the executrix, but is not otherwise favored over the other children, does not raise a presumption of undue influence.</p> <p>4. -Draftsman a Beneficiary — Knowledge of Contents— Independent Advice. The fact that a will is written by a daughter of the testator, who shares its benefits equally with the other children, does not make a case for the application of the statutory provision (Laws 1905, ch. 526, §1; Gen. Stat. 1909, § 9787). that a will written by the principal beneficiary, who was the confidential agent or legal adviser of the testator or who occupied any other position of confidence or trust to him, shall not be held valid unless it shall be affirmatively shown that the testator knew the contents and had independent advice with reference thereto.</p> <p>5. -- Revocation — Erasure—Signature. No error appears in the admission to probate of a will, where there was evidence that the testator had duly signed it in ink, below the attestation clause, in the presence of the subscribing witnesses, and a few weeks later had delivered it to the executrix, who retained possession of it until his death, although when it was produced in court the testator’s signature had been partially erased by knife scratches, and his name had been written in pencil above the attestation clause, apparently by himself, and no further showing was made as to when, by whom or with what purpose the changes had been made.</p>

<p>Appeal from Haskell district court; William H. Thompson, judge.</p>

<p>Appeal from Leavenworth district court; Eli Nird-XINGER, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Liability to Shippers for Injury to Goods. Except as limited by the terms of the bill of lading, the liability of a railway company is for all losses of goods intrusted to it for shipment, except those occasioned by the act of God, the public enemy or the contributing negligence of the shipper.</p> <p>2. -Notice of Injury and Claim for Damages. The failure to instruct the jury as to a stipulation in the bill of lading providing that a shipper shall present any claim for loss or damages to the railway company within thirty days after it has been sustained is not a ground for reversal where it appears that the railway company had acquired full knowledge of the loss within a few minutes after it occurred and upon learning the cause of the loss had instituted negotiations to provide for the payment of the same, and where it denied liability for the loss upon other grounds than a lack of demand.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Duties of Shippers Accompanying Stock to Look and Listen before Crossing a Track. Persons carried on a freight train on which their live stock is in transit, in going to and fro between the caboose and a depot, are not absolved from the duty of looking and listening when about to cross an intervening track, their obligation in that respect being greater than that of persons passing back and forth between a station platform and a passenger train that has stopped to receive and discharge passengers.</p> <p>2. -Injury to Passenger on a Freight Train — Contributory Negligence. In a personal-injury action against a railway company there was evidence tending to show these facts: The plaintiff accompanied live stock in shipment; he was told to wait at a depot until a train arrived to which his cars were to be attached, and to be ready to take it there at any time; he saw it approaching on a track sixty feet away, and started toward it; in crossing an intervening track he was struck by a switch engine which was running three or four miles an hour, receiving the injury on account of which he sued; a shadow prevented the engine from being visible to him until it had reached a point within forty-five feet of the place of the accident, after which he could have seen it if he had looked, but he failed to do so. Held, that whether under the circumstances his failure to look constituted contributory negligence was a question of fact for the jury.</p>

<p>Appeal from Bourbon district court; John C. CANNON* judge.</p>

<p>Appeal from Chautauqua district court; Granville P. Airman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Validity — Default — Amendment of Pleadings — Time of Rendition — Vacation. In an action to foreclose a first mortgage upon real estate the mortgagors and owners of the mortgaged premises and the holder of a junior lien were made parties defendant. The owners of the real estate filed as their answer to the petition a general denial, unverified. Neither the petition nor the answer stated facts which in any manner challenged or affected the interests of the other lienholder, and he did not plead in the action, but made default. Afterward the court permitted the owners of the mortgaged premises to amend their answer by alleging that .their codefendant held a warranty deed of the property but it was merely intended as a mortgage, and the debt which it secured had been fully paid and discharged; and they prayed the court to adjudge such deed to be a mortgage and cancel the same. Within six days after the amended answer was filed judgment as prayed for „ was taken, in the absence and without the knowledge of the holder of such deed. At the time the amended answer was filed and the judgment taken the defendants filing such answer well knew that the debt secured by the deed had not been paid. The holder of the deed then filed a petition stating fully the facts and asked for a new trial. A demurrer to the petition was overruled. Held, not error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Surplusage—Notice of Injury by Fellow Servant —Nondelegable Duty of the Master. An allegation in a petition that notice of an injury had been given as required by the-fellow servant act (Laws 1907, ch. 281, § 1; Gen. Stat. 1909, § 6999) will be treated as surplusage where the negligence claimed is that of the master failing to exercise proper care in furnishing to the servant a safe place in which to work.</p> <p>2. - Allegations of Negligence — Definiteness. The allegations of negligence by which it is claimed that a laborer in a coal mine was injuréd are examined and found to be sufficiently definite.</p> <p>3. Personal Injuries — Assumption of Risk — Contributory Negligence. Where the evidence tends to prove that a laborer in a coal mine had become aware of the presence of gas in the room in a mine where he had been directed to work, and made complaint about it, and was then directed to proceed with his work in the same room and was there injured by an explosion of gas, an instruction following the rule given in the second paragraph of the syllabus in Wurtenberger v. Railway Co., 68 Kan. 642, is not erroneous.</p> <p>4. --- Same. Whether in such a situation the servant, in the exercise of reasonable care for his own safety, knew or ought to have known of the impending danger, and whether it was so' obvious that a person of ordinary prudence would not have incurred the risk, were questions for the jury, and there was no error in overruling a demurrer to the evidence.</p>

<p>Appeal from Bourbon district court; Walter L. Simons, judge.</p>

<p>Appeal from Norton district court; William H. Pratt, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Bonds — Aid of Railroads — Authority. Section 7049 of the General Statutes of 1909 (Laws 1907, ch. 286, §1) is not repugnant to section 8 of article 11 of the state constitution.</p> <p>2. -- Registration — Duty of Auditor of State. It is the duty of the auditor of state, upon presentation for that purpose, to register and certify bonds issued under the above act if he is satisfied that such bonds have been issued in accordance with the provisions of the act and that the signatures thereto of the officers signing the same are genuine.</p> <p>3. --- Showing of Expenditures by Railroad Not a Prerequisite to Registration of Bonds. As a prerequisite to registering such bonds the auditor of state is not authorized to require a showing that the holder of the bonds has expended a • sum of money equal in amount to the face value of the bonds for land to be used for right of way, depot grounds and terminal facilities in the city which issued the bonds.</p>

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

<p>Fraternal Insurance — Age of Applicant — Representations—• Findings. Where a fraternal insurance society refused to pay a death benefit on the ground that the deceased had misrepresented his age in his application for membership, a finding that his age was correctly stated in the application held conclusive on review.</p>

<p>Appeal from Haskell district court; William H. Thompson, judge.</p>

<p>Motion to retax costs.</p>

<p>Rehearing on objection to taxing costs.</p>

Madison, judge pro tern. STATEMENT. This was an action in ejectment to recover the possession of 160 acres of land in Kiowa county. After issues were joined a jury was waived. The court made findings of fact which are, in substance: (1) C. L. Davidson held a mortgage on the land, • dated July 2, 1887, payable five years after date. (2) Soon after the execution of the mortgage the land was abandoned by the owner of the fee.

<p>SYLLABUS BY THE COURT.</p> <p>Highways — Appeal from. Award — Evidence of Prior Establishment of Highway. On an appeal to the district court from an award of damages allowed by the county commissioners for the establishment of a highway the county attorney in his statement to the jury said that the land did not belong to the appellant, as a public highway had long ago been established upon that same line by the legislature. On the trial the county attorney introduced an act of the legislature by which, in 1872, roads were established on all section lines in that and other counties. At the proper time the ap pellant requested the court to instruct the jury to disregard the fact that a public highway had been established on such line, which was refused. Held, error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mineral Lease — Cancellation for Insufficient Development— Adequacy of Remedy in Damages — Burden of Proof. An oil- and-gas lease provided that the lessee should pay $50 per year for each gas well upon the leased premises during the time gas should be marketed therefrom. Adhering to the decision on a former hearing (Howerton v. Gas Co., 81 Kan. 553) that the contract contemplated that other wells should be drilled with reasonable diligence to utilize this lease, it is further held, that the burden of proof is upon the plaintiff to show that a remedy in damages is not an adequate remedy for the failure of the lessee to proceed to drill other wells to protect the land from drainage and to obtain gas therefrom.</p> <p>2. - Same. Having failed to make this showing, the decree for cancellation can not be sustained.</p> <p>3. - Measure of Damages for Failure to Drill Wells. The measure of damages is the sum of $50 per year for each well from the time it ought to have been drilled.</p> <p>4. - Alternative Decree for Breach of Agreement by Lessee to Operate. If it be determined that such a rule of damages can not be applied, an alternative decree may be entered, upon proper proof, providing that the defendant shall proceed, within a time to be fixed, as before indicated, to drill such wells as may be necessary to protect and develop the land and utilize the gas thereon, and pay for such wells as stipulated, or that the lease be canceled.</p>

<p>Original proceeding in quo warranto.</p> <p>Judgment for the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Forgery — Signing a Different Name than that Intended. Where one affixes to a note a signature which he intends shall be regarded as that of another person the act is not prevented from, being forgery by the circumstance that the name is not correctly written.</p> <p>2. - Rule Applied to “Heinis” and “Hein.” Where the name Henry “Heinis” is signed to a note with the intention that it shall be supposed to be the signature of Henry “Hein,” it can not be said as a matter of law that the difference is so great as to prevent the deception of any person of ordinary prudence.</p> <p>3. Criminal Law — Evidence of Another Offense than the One Charged. Upon the trial of an employee on the charge of uttering a note payable to his employer, which he had forged for the purpose of covering up a shortage, evidence that he had forged other notes for the same purpose is competent.</p> <p>4. Information — Amendment after Plea of Not Guilty. By leave of court an information may be amended in matter of substance as well as of form after a plea of not guilty has been entered and before the trial is begun.</p>

<p>Appeal from Thomas district court; Charles W. Sjiith, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Objections to Referee’s Report— Old Code. Under the provisions of the old code (§§ 293, 295), a report of a referee appointed by the district court could be assailed by a motion to set it aside or by proper exceptions thereto filed upon the coming in of the report, and it was not essential that exceptions be taken to errors occurring on the trial before him if such errors appeared of record.</p> <p>2. - New Code. The amended code makes no provision for exceptions or for bills of exception. (Laws 1909, ch. 182; Gen. Stat. 1909, ch. 95.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Attachment of Money — Loss of Profits — Injury to Credit. In an action to recover damages for the wrongful attachment of money and notes by way of garnishment, where there is no malice nor grounds for the recovery of exemplary damages, the measure of damages is interest on the money and notes during the time they were held under the garnishment process and the necessary expenses incurred in regaining possession of the property. Neither the loss of prospective profits in the general business of the owner because a part of his property was garnished nor injury to his credit are elements of damage.</p>

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

<p>Appeal from Atchison distinct court; Benjamin F. Hudson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Lien for Taxes — Purchaser of a Void Tax Deed. After the tax roll of 1888 had been delivered to a county treasurer an assessment upon two lots for building a sidewalk in a city of the second class was certified to the county clerk, who certified it to the treasurer, who entered it upon the tax roll against each lot thus: “S. Walk 6025.” Other taxes upon the property for that year were paid in due time, but each lot was sold at the tax sales of 1889 for a delinquent sidewalk tax of $60.25, and in 1893 a .tax deed was issued thereon to the assignees of the certificate, who were in possession under it when this suit was brought by the owner of the lots for possession. The tax deed was void upon its face. Judgment was rendered for the plaintiff for possession, but a lien was given to the defendants for all taxes paid, with interest and costs. Held, that the plaintiff, who appealed from the judgment allowing the lien for taxes, should not be relieved therefrom.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. False Imprisonment — Definiteness of Officer’s Answer Justifying Arrest — Statement of Offense and (Grounds for Arrest. The failure of an officer, in his answer justifying an alleged illegal arrest and detention, to state particularly the offense with which the plaintiff was charged and the grounds for which the arrest was made is not material error, where it appears that the plaintiff was fully informed as to the nature of the charge and the cause of his arrest and was not depi-ived of any right because of a lack of such information.</p> <p>2. - Authority of Officer — Appointment—Confirmation—■ Oath — Commission—Signature to Oath. A city marshal was regularly appointed and confirmed by the mayor and council and was sworn into office by a competent officer, but no commission was given to him, nor did he subscribe to an oath. He entered upon the discharge of his duties and later arrested, without a warrant, one who was committing a public offense in his presence. Held, that the failure of the officer to receive a commission and to subscribe to an oath did not diminish his authority, nor prevent him when sued for false imprisonment from justifying the arrest on the ground that he was an officer.</p>

<p>Appeal from Decatur district court; William H. Pratt, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Petition Containing Several Counts — Sufficiency of Each Count. Where a pleading consists of more than one count each count must, as against a general demurrer, be considered as if standing alone and constituting the entire pleading.</p> <p>2. -• Same. In such a case neither facts involved in the action nor the averments of another count, unless incorporated by reference into the pleading demurred to, can properly be considered upon such hearing.</p> <p>3. Waiver — Erroneous Denial of New Trial — Refusal of Applicant to Specify Errors. Where, upon the hearing of a motion for a new trial, the court requests the applicant to point out specifically the defects complained of, and such applicant declines and neglects to do so, such failure will be regarded as a waiver of any error committed by the court in denying such motion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Instructions — Duty of Master to Furnish Safe Place to Work— Immaterial Error. In a case where strict accuracy of expression required an instruction that it is the duty of an employer to exercise ordinary care to furnish his employees with a reasonably safe place in which to work, the omission of the words italicized is not ground of a reversal where the jury were also told that the employer is liable only for such injuries to his employees as result from his negligence and that negligence is the failure to use ordinary care.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Publication Service — Age of Affidavit When Order is Procured — Validity of Judgment. An affidavit, such as is prescribed by chapter 326 of the Laws of 1905, was presented to the district court for the purpose of obtaining an order to serve defendants by publication. The court, after examination of the affidavit, found it .in all respects in compliance with the law, and thereupon made the order. Notice by publication was given in accordance with such order, and at the proper time a decree to quiet title was entered against all the defendants, upon default. Thirty-seven days intervened between the date when the affidavit was sworn to and when the order was made. Held, that this lapse of time alone does not make the decree void.</p> <p>2. Jurisdiction — Waiver — Proceedings to Vacate Judgment. Where a judgment has been entered in an action against defendants over whom the court did not have jurisdiction, and such defendants voluntarily request the court to open such judgment under section 77 of the code (Gen. Stat. 1901, § 4511) and permit them to plead in the action, which request is granted, and the pleadings are filed and the issues made thereby are litigated by such parties, all questions of jurisdiction are thereby waived and the parties are in court for all the purposes of the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Justices of the Peace in Douglas County — “City Courts.” The term “city courts” in the proviso of section 1 of the justices’ civil code limiting the jurisdiction of justices of the peace in counties where city courts are established, does not include the county court of Douglas county, and the jurisdiction of justices in that county was not affected by that proviso.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Validity of Renewal Contract — New Policy Not Issued Nor Premium Paid at Time of Loss. A parol contract to renew an existing contract of insurance, between those having authority to contract, by which the same property was to be insured again upon the same terms and conditions as in the original policy, is binding upon the parties although a policy for the new insurance was not issued nor the premium paid when the loss occurred, providing a credit is given and the payment of the premium is not a condition precedent to the validity of the contract.</p> <p>2. -Parol Renewal on Same Conditions as Original — Approval by Company. A stipulation in a renewal contract that the property shall be insured on the same terms and conditions as in the former contract is interpreted to include the essential elements of a contract of indemnity, and does not refer to the steps or methods by which the original contract was reached or executed.</p> <p>3. - Authority of Agent — Approval of Contract by Principal. The fact that the representative of the insurance company had no authority to consummate the original contract of insurance and that the approval of the home office was necessary to its validity is no reason why the renewal contract, made by the same agent, should be likewise approved, where it appears that such agent had in the meantime been clothed with authority to consummate contracts and to issue policies.</p>

<p>Appeal from Pratt district court; PRESTON B. GlLlett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appearance Bond — Forfeiture—Appearance by Attorney— Discretion. In a criminal case pending before a justice of the peace on a charge of misdemeanor, where a continuance has been granted and the defendant has been released upon a bond given to secure his attendance at a certain day and hour, at which time the case is set for trial, it is within the discretion of the court, if the defendant appear only by attorney at the time and place specified for trial, to proceed with the trial or to refuse to proceed and to forfeit the bond.</p>

<p>Appeal from Bourbon district court; John C. Cannon, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation of a Judgment — Fraud. The fraud for which a judgment may be set aside must be actual fraud, involving intentional wrong, as distinguished from legal or constructive fraud.</p> <p>2. - Same. Assuming, but by no means deciding, that the rule forbidding a judgment to be set aside for fraud in a matter thereby adjudicated does not apply where the defendant had no actual notice of the pendency of the action, no ground for its vacation is established by a showing that it was based on a claim insufficient in law but admitting of assertion in good faith.</p> <p>3. -Limitation of Action. One against whom a decree quieting title has been rendered upon publication service and without actual notice can not, after the lapse of three years, have the judgment set aside as fraudulent merely by showing that the plaintiff’s title was based solely upon a tax deed which showed upon its face that it was not effective as a conveyance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Exemplary—Amount of Award — Negligent Delivery of a Telegram. In an action for damages for the failure to deliver a death message, held, that the evidence shows such wanton and reckless disregard of the rights of the plaintiff as to warrant exemplary damages, and that the sum of $700 allowed by the jury is not excessive.</p>

<p>SYLLABUS BY' THE COURT.</p> <p>1. Contracts — Accrual of Action for a Breach — Performance Prevented by Defendant. A owned a business located in Kansas City, Kan. He wished to dispose of a one-half interest therein to some person who was familiar with it and capable of becoming manager thereof, and with whom he might subsequently form a partnership. B, who claimed to understand the business, proposed to purchase one-half thereof, and they entered into an agreement which was, in substance, as follows:</p> <p>B' was to manage the business and receive out of the profits thereof the sum of $15 per week for his services. When the profits amounted to the sum of $800 A was to have the whole amount thereof, which was to be in full satisfaction for the one-half interest sold to B.</p> <p>The contract was carried out as contemplated until the profits amounted to $779.52, when A, without cause, forcibly ousted B and terminated the contract. Held, that a cause of action for damages accrued in favor of B immediately.</p> <p>2. -Measure of Damages for a Breach — Evidence. In an action by B founded upon the facts above described the measure of his damages would be such sum as would fairly compensate him for the loss sustained. In estimating this amount it would be proper to consider the value of the property to which he would have been entitled if the contract had been completed, and how much of the agreement was unfinished at the time he was ousted.</p> <p>3. - Action for a Breach — Demurrer to Petition. Where, in such an action by B, his petition alleges the execution of the contract, its performance in good faith by him until practically finished, and his wrongful exclusion from the opportunity to complete the contract and receive the benefit of the property thereunder as stipulated, a demurrer to such petition should be overruled.</p>

Gillpatrick, judge. STATEMENT. This action was brought by William S. Read, against Mary R. Loftus and Thomas J. Loftus, for the cancellation of a note and mortgage and the rescission of a contract under which they were given.

<p>SYLLABUS BY THE COURT.</p> <p>Words and Phrases — “Unknown Heirs” — Publication Service. The term “unknown heirs,” as used in the sections of the code providing for service by publication in cases relating to real property and where the relief demanded is to exclude defendants from any interest, title or estate in real property, means all kinds of heirs, including heirs of heirs of such defendants as well as the legatees of heirs.</p>

<p>SYLLABUS BY THE COURT. ■</p> <p>Quieting Title — Pleading—School Land — Invalid Forfeiture— Purchase by Holder of Defective Tax Deed — Parties Entitled to Complain. The state issued to a purchaser a certificate of purchase of school land. A forfeiture was attempted, and a certificate was issued to a second purchaser, but the forfeiture proceedings were void. The land was sold for taxes, a tax deed was issued, and the tax purchaser paid out the first school-land certificate and obtained a patent. The tax proceedings were defective. In an action by the patentee to quiet his title the two holders of school-land certificates set ■up their titles and asked for affirmative relief. Judgment was rendered for the patentee, and only the second certificate holder appealed. Held, it is no longer material whether the plaintiff proceeded under the statute or in equity, and the appellant can not complain of defects in the tax proceedings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parole Law — Constitutionality. The “parole law” (Laws 1907, ch. 178; Gen. Stat. 1909, ch. 28, art. 5), as applied to ■ this case, is not retroactive, nor is it in violation of article 1 of the fourteenth amendment to the constitution of the United States, but is valid.</p> <p>2. District Court — Parole of Prisoner Held for Nonpayment of .Costs. Where a person convicted of violations of the prohibitory liquor law is sentenced to a term of imprisonment in the eounty jail and also a fine is imposed as the penalty, and is adjudged to pay the costs and to stand committed till the fine and costs are paid, and where after the commitment to jail the governor of the state issues to the prisoner a full pardon, so far as he has the power, but the prisoner is held in jail for nonpayment of costs, the district court may parole the prisoner and six months thereafter may finally discharge such prisoner.</p> <p>3. Counties — Inability for Costs — Prisoner Paroled by District Court. If the prisoner be found insolvent and unable to pay or give security for the costs they must be paid by the county, and the county shall become liable therefor at the expiration of one month from such release if such costs are not paid by the defendant. (Laws 1907, ch. 178, § 10; Laws 1887, ch. 165, §5; Gen. Stat. 1909, §§2468, 4378.)</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Redemption from Tax Sale — Minoi—■Limitation of Actions. The right of a person, given by statute, to redeem his land from a sale for taxes during the period of his minority and for one year thereafter is not hindered by the provisions of another statute which requires that a suit to avoid a sale or conveyance for taxes, except in cases where the taxes have been paid or the land redeemed, shall be commenced within five years from the time of recording the tax deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negotiable Instruments — Consideration — Mutual Promises — ■ Bank Check Given by a Purchaser — Refusal to Accept Delivery. The mutual and concurrent promises of parties in the sale and purchase of cattle, wherein a check is given by the purchaser as a partial payment for the cattle sold, constitute sufficient consideration for the check; and when an action is brought by the payee against the drawer on the protested check the drawer can not defend on the ground that no cattle were received by the purchaser, when it appears that the cattle were tendered to him and that the nondelivery of them was due to the failure of the purchaser to perform his part of the agreement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fire Insurance — Assignment of Policy to a Vendee — Consideration for Policy — Consent of Mortgagee to Assignment. A mortgage clause in the usual form was attached to a policy insuring the owner of property against loss by fire. The owner then assigned the policy, with the assent of the insurer, to a vendee of the property. Held, the original premium supported the insurance of the two interests — that of the owner and that of the mortgagee — and the policy was sustained by that consideration in the hands of the assignee. Held, further, that since the mortgage clause reserved no right to the mortgagee to approve assignments of the policy the want of such approval did not affect the validity of the policy in the hands of the assignee.</p>

<p>SYLLABUS BY THE COURT.</p> <p>:i. PLEADINGS' — Amendment — Answer Signed after Judgment. Where a petition is filed in the district court and an answer is filed thereto purporting to be the answer of the defendants, but is entirely unsigned, and the case is set for trial and tried in all respects as if the answer had been signed, and the attention of the court is not called to the failure of the defendants to sign their answer until after judgment, it is not error then to permit the answer to be amended by signing the same.</p> <p>■ 2. Practice, Supreme Court — Conclusiveness of Findings — Motion for a New Trial. Oh a motion for‘a new trial, based on alleged accident and surprise growing out of an alleged agreement as to a waiver of evidence between the attorneys for the parties, the finding of the court as to the existence of such agreement, made upon conflicting affidavits, and the denial of the motion in accordance with such finding, can not be reviewed here.</p> <p>• 3. Landlord and Tenant — Purchase of Tax Deed by Tenant. Land in the hands of the receiver of a corporation was sold for delinquent taxes in September, 1900, to F. In May, 1902, P. sold the tax certificate to H. March 1, 1903, H. rented the land of the receiver and took possession of it as tenant. In September, 1903, H. received a tax deed to the land, and thereafter claimed possession and right to the land under the tax deed, but paid his rent according to contract. Held, that as such tenant he was under no obligation to pay the taxes and was -not estopped from taking the tax deed and holding thereunder.</p> <p>•4. Corporations — Receiver—Interference by Creditors Enjoined - — Purchaser of Tax Certificate. By buying the tax certificate H. did not become a creditor of the corporation, and was not barred by an order of the court appointing the receiver which restrained creditors of the corporation from interfering with the property of the corporation.</p>

<p>Original proceeding in mandamus.</p> <p>Order concerning pleadings.</p>

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

<p>Appeal from Wilson district court; James W. FinLey, judge.</p>

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

<p>Railroad Bridge — Obstruction of a Stream — Duty to Anticipate Overflow. A petition held to state a cause of action in virtue of allegations that a railroad in laying its track over a stream and the adjacent lowland negligently omitted to provide an outlet for water that overflowed the banks in times of floods that were to have been anticipated, thereby causing injury to the plaintiff’s land.</p>

<p>Ejectment — Demurrer to Evidence. In an action of ejectment a demurrer to the defendant’s evidence was improperly sustained.</p>

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

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

<p>Temporary Injunction — Dissolution on Final Hearing — Continuance in Force by Appeal. Where a party who obtained a temporary injunction was defeated on the final hearing, the injunction was not continued in force by his appeal.</p>

<p>Redemption — Foreclosure of Purchase-money Lien. The right of redemption from a sheriff’s sale upon the foreclosure of a purchase-money lien limited to six months instead of eighteen, because one-third of the total price had not been paid. (Code 1909, § 503.)</p>

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

<p>SYLLABUS BY, THE COURT.</p> <p>1. Statute op Frauds — Lease for More than a Year Signed by One Partner Only — Obligation of the Firm. Where one of two partners enters into a contract in writing for the lease of a building for a term of three years, for the benefit of the firm, although the contract is made only in the name of one, and is signed by him as the lessee and by the lessor, and the partners thereafter enter into the possession of the leased property and occupy it for a time, the lease is the written contract of the partner who did not sign the same as well as of the partner who did sign it.</p> <p>2. - — • Lease for More than a Year — Oral Assignment by Lessee — Oral Agreement by Assignee to Comply with Terms. Where a contract of lease for a term of three years is executed by one person as lessee and by the lessor, and the lessee takes possession of the property and occupies it. for a time under the terms of the lease, and thereafter sells all his stock of merchandise in the building leased and all his rights under the lease to a third person, by oral agreement only, and such third person enters into the possession of the property and occupies it for a considerable time and orally agrees with the lessor to comply with all the terms of the lease, and for several months pays the rent in accordance with the terms of the lease, the lease becomes the written contract of such third person.</p>

Lob-dell, judge. STATEMENT. W. S. Gregory brought suit against Willis Jennings to recover a commission of $101 for the sale of a farm. Kennedy Brothers filed an interplea, claiming that the commission was due them. Jennings deposited the amount of the commission with the court, and by agreement of the parties Kennedy Brothers were substituted as defendants.

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Opinion Testimony — Speed of an Automobile. A person injured upon a street crossing by an automobile, who sees it approaching him at a distance of ten or fifteen feet and who has frequently observed the passage of automobiles and other vehicles, and ridden in them, and made observations of their rate of speed, may give his opinion of the speed of the car at the time of the collision.</p> <p>2. -Error Rendered Immaterial by Special Findings. In view of the explicit findings of the jury that the plaintiff failed to exercise due care for his own safety and that the defendant was not negligent, and all the circumstances proven, it is held, that the error in excluding the testimony referred to was not prejudicial.</p> <p>3. Personal Injuries — Contributory Negligence — “Last Clear Chance” — Instructions. Instructions relating to the doctrine of the “last clear chance” are examined, and the rule stated in Dyer son v. Railroad Co., 74 Kan. 528, is followed and applied.</p>

<p>Appeal from Wyandotte circuit court; Frank D. Hutchings, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Joinder op Causes op Action — Reformation and Enforcement of Chattel Mortgage. Where a chattel mortgagees intended by the parties thereto to run to the administrator of a deceased person, but by mistake the grantee is described as the deceased person, the instrument may be corrected and reformed in the same action in which it is sought to be enforc'd.</p> <p>2. Parties — Action to Reform and Enforce Chattel Mortgage. In an action brought to reform a chattel mortgage, - and to enforce the same by a judgment against a third party for the proceeds of the sale of property included in the mortgage, the makers of the instrument are proper parties defendant.</p> <p>3. - Appeal and Error — Disclaimer in Trial Court. In such an action, where the mortgagors enter their appearance and file a written consent that the mortgage may be reformed, but take no part in the other proceedings in the case, they are not necessary parties to an appeal in this court by the defendant against whom judgment for the value of the property is rendered.</p> <p>4. --- Foreign Corporation. By the provisions of chapter 153 of the Laws of 1903 (Gen. Stat. 1909, §1907) a foreign corporation holding a mortgage on real or personal property in this state may maintain an action to enforce the same without being authorized to engage in business within the state.</p> <p>5. Evidence — Transactions with Persons Since Deceased. A witness is not incompetent under section 322 of the old code (Gen. Stat. 1901, §4770; Code 1909, § 320) in a case where the adverse party is the assignee of the administrator of an estate.</p>

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

Pratt, judge. STATEMENT. Case No. 16,462 was tried in the court below without a jury, under an agreement that all the evidence, findings and proceedings should apply equally to case No. 16,463, and the findings of fact and conclusions of law made by the court therein are as follow: “FINDINGS OF FACT. “This is an action in ejectment, brought by the said plaintiffs against the defendants to recover possession of the southeast quarter of section sixteen (16) in township one…

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Factory Act — “Manufacturing Establishment.” Under section 7 of the factory act (Laws 1903, ch. 356; Gen. Stat. 1909, § 4682), besides certain named establishments any other establishment is a “manufacturing establishment” wherein any natural products or other articles or materials of any kind, in a raw or unfinished or. incomplete state or condition, are converted into a new or improved or different form.</p> <p>2. - Same. An establishment wherein railroad iron, old stoves, old waste iron and scrap iron of every description is • cut into lengths known as grade No. 1, grade No. 2, and busheling scrap, by means of machines known as alligator shears and operated by power, to meet standing specifications of mills which purchase the product, is a “manufacturing establishment” within the meaning of the factory act.</p> <p>3. - Construction — Statute Not Adopted from Another State. None of the sections of the factory act is a transcript from the law of any other state and consequently had not been given a settled and definite meaning by the highest court of any other state when the statute was enacted.</p> <p>4. -Duty to Safeguard Machinery Not Limited to Work- ' men Engaged in “Ordinary” Duties Only. Section 4 of the factory act (Laws 1903, ch. 356; Gen. Stat. 1909, §4679), relating to safeguards for machinery and appliances, is not limited in its application to workmen engaged in their ordinary duties only. It is designed to protect persons employed or laboring in manufacturing establishments while in the performance of any duty, whether ordinary and general or exceptional and occasional.</p> <p>5. - Common-law Duty of Master Supplanted by Statutory Duty. The factory act ignores the common-law duty resting on the factory owner or operator to exercise reasonable care to prevent foreseeable injuries and establishes a statutory measure of prudence, by making specific precautionary re-* quirements relating to specified places, structures and appliances; and in an action founded on the act for damages consequent upon injuries to an employee acting in the scope of his duty, caused by the absence of a prescribed safeguard, it is no defense that the injury could not, with reasonable prudence, have been anticipated.</p> <p>6. - Statute Can Not be Evaded by Rules Relating to Use of Machinery. The protection of the factory act extends only to persons acting within the scope of some employment or labor. But the factory owner can not evade the requirements of the act, as that belt shifters shall be provided, by means of rules or instructions relating to the use of appliances, as that belts shall be shifted only while the machinery is not in motion.</p> <p>7. - Contributory Negligence of Injured Employee No Defense to Action under the Statute. The civil action, for damages authorized by the factory act is not a common-law action, but is a statutory remedy for the enforcement of a positive duty enjoined by law in the interest of the public welfare, and the contributory negligence of the injured employee or laborer is not a defense to such an action. The first paragraph of the syllabus of Madison v. Clippinger, 74 Kan. 700, is overruled.</p> <p>8. - Constitutionality — Police Regulation. The factory act falls within the legitimate scope of the police power of the state, and the remedy prescribed for its enforcement is not obnoxious to either the state or the federal constitution.</p> <p>9. -- Evidence Sufficient to Establish Liability in the First Instance. Under section 6 of the act (Laws 1903, ch. 356; Gen. Stat. 1909, § 4681) it is sufficient, in order to establish liability, for the plaintiff to prove, in the first instance, that death or injury resulted in consequence of failure to provide the required safeguards, or that failure to provide such safeguards directly contributed to such death or injury, and it is not necessary for the. plaintiff to go further, in those cases where the subject is pertinent, and prove the practicability of such safeguards. The third paragraph of the syllabus of Henschell v. Railway Co., 78 Kan. 411, is overruled.</p>

<p>Appeal from Neosho district court; OSCAB Foust, judge pro tem.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Purchaser at Void Foreclosure Sale — Subrogation — Mortgagee in Possession. A grantee in good faith',, holding possession under a sheriff’s deed in foreclosure proceedings which did not devest the title of the mortgagor, is-properly subrogated to the rights of the mortgagee, and considered as a mortgagee in possession.</p> <p>2. - Limitation of Actions — Quieting Title — Ejectment. In, the circumstances stated above the heirs of the mortgagor will-not be given a decree quieting their title against the party so held to be a mortgagee in possession, nor will they be-awarded the possession until they first satisfy the mortgage-debt, although an action thereon would be barred by the-statute of limitations.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. School Land — Invalid Forfeiture — Rights of Assignee of Original Purchaser. After an attempted forfeiture of a sale of school land a person who, relying upon the regularity and validity of the forfeiture'proceedings, purchases the land, and afterward ascertains that the forfeiture is invalid, may take an assignment from the former purchaser and perfect his rights to the land under such former certificate.</p> <p>2. -Forfeiture — Notice—Assignee—“Purchaser.” Where a purchaser of school land assigns the certificate and the assignment is brought to the knowledge of the county clerk, who enters it upon the records of his office, the assignee will thereafter be deemed to be a “purchaser” within the meaning of the statute providing for forfeiture proceedings; and in such proceedings notice must be served upon him as the statute directs.</p> <p>3. - Notice of Forfeiture Issued Only to Assignor — Second Sale Invalid. Where in proceedings to forfeit the sale of school land the notice is issued to a person who is shown by the record in the county clerk’s office to have assigned his interest in such land to another, and no steps are taken to give notice to the assignee or to any one holding under him, the proceedings can not be upheld and a subsequent sale will -be held to be invalid.</p> <p>4. - Patent — Assignee—Mandamus. Where in such a ease a purchaser who buys the land in good faith, relying upon the ' regularity and legality of the forfeiture proceedings, subsequently ascertains that such proceedings are invalid, and obtains an assignment of the former certificate of sale and completes the purchase thereunder, he will be entitled to a patent to the land; and it will be the duty of the state auditor to make the proper certificate authorizing such patent upon demand.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Trade-marks — Eight to Use of One’s Own Name. A person will not be prohibited from using his own name upon marks or brands placed upon articles of his own manufacture merely because it has first been rightfully used by another, who has established the reputation of, and built up trade in, like articles by the use of the same name in a trade-mark, sign or label thereon; but such person will not be permitted -by any artifice or device, or otherwise, to induce the belief of customers or others desiring to purchase that the articles so marked are the products of the other.</p>

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

<p>Appeal from Jewell district court; Richard M. PlCKLER, judge.</p>

<p>Appeal from Leavenworth district court; Eli NirdLINGER, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Notice — Defective Bridge — Chairman of County Board — Injury to a Traveler. The plaintiff brought an action against a county to' recover for injuries occasioned by a defective bridge. Held, that the evidence showing knowledge of the ’■ chairman of the board of county commissioners of the defective condition of the' bridge was sufficient as against a demurrer.</p>

<p>Appeal from Barber district court; Preston B. Gillett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>4. Tax Deed — Grantee Dead When Deed Was Executed — Action by Heir of Grantee to Quiet Title and Enjoin Defendants in .Possession. A party whose only title to land is under a tax deed made to a grantee who was dead when it was executed, which was delivered to such party as the heir of the deceased person, who caused the deed to he recorded and paid the taxes on the land, but who never took actual possession, can not maintain an action to quiet title or for an' injunction against one who holds under the government title and who is in actual possession of the land.</p> <p>'2. Words and Phrases — “His Heirs and Assigns” — Void Tax Deed. The words “his heirs and assigns,” following the name of the deceased person so designated as grantee in the deed, did not operate to vest title in such heir, and the deed is void as a conveyance.</p> <p>■'3. Reformation of Instruments — Tax Deed — Substitution of Plaintiff as Grantee — Application for á Second Deed. A person who, as heir of the deceased owner of a tax-sale certificate, took out a tax deed thereon, wherein the name of the deceased person was inserted as grantee, can not maintain an equitable action to have the deed reformed by a decree substituting her own name as grantee therein. She might, upon due. application to the county clerk, have obtained a deed made to herself as grantee; notwithstanding the issuance of the for-, mer instrument.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Names — Idem Sonans — Notice by Publication — Default Judgment. A default judgment quieting title, based upon service made by publishing a notice which states “the defendant’s name as Joseph Remer, is valid against Joseph Renner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Exchange of Lands — Writing Construed. A writing that describes itself as a contract between two parties, each of whom agrees to sell a tract of land at a stated price, and that includes a computation showing the amount of a mortgage oh each tract and the cash balance to be paid by one party to the other, is fairly to be interpreted as an agreement for the exchange of the tracts on the basis stated.</p> <p>2. - Statute of Frauds — Memorandum — Description of Land. The statute of frauds renders demurrable a petition declaring upon a contract for the sale of land, evidenced by a memorandum which describes it only as situated in a certain county and containing a certain number of acres, there being no allegation that it was the only land in that county owned by the party undertaking to sell it. The pleading is not aided by an averment that such party had recently showed to the-proposed buyer a tract of the size mentioned in the county referred to.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Performance Except in Certain Particulars— Damages — Expense of Completing Contract. A subcontract for plumbing and heating work in a building, amounting to over $7000, was performed except in certain particulars. A comparatively small expenditure was necessary to supply the omissions and remedy the defects. It is held, that the reasonable expense necessary to make the work conform to the contract is the proper measure of damages to be allowed to the owner upon his counterclaim in an action against him for the contract price.</p> <p>2. Evidence — Opinions and Conclusions — Immaterial Error, The admission in evidence of a general statement of the contractor to the effect that he had performed the contract fully is not prejudicial, when testimony relating to the various items is given and findings are made thereon relating to all the defects pleaded in the answer.</p> <p>3. - Collateral to the Issue — Cross-examination. It was not error to restrict the evidence to the particular defects pleaded.</p> <p>4. Practice, District Court — Consolidation of Actions — Amendment of Pleadings — Discretion. The refusal of the court to permit the consolidation of this action with another action in which another party was impleaded, and in refusing to allow an amendment of the answer, were within the discretion of the court, which, in the circumstances shown, was not improperly exercised.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Duty to Stop Train Long Enough to Enable Passenger to Alight with Safety. It is the duty of a railway company to use the highest degree of care which is reasonably practicable in transporting passengers and in setting them down at their destination, and the failure to stop a train at the destination of a passenger and afford him an opportunity to alight with safety is culpable negligence.</p> <p>2. - Contributory Negligence of Passenger Alighting from Moving Train under Direction of Conductor. Where the railway company fails to stop its train at the destination of a passenger, and as it is passing the station the conductor of the train advises and directs the passenger to alight from the train while it is moving at a speed of from three to four miles an hour, the question whether the passenger who acts on the direction of the conductor and is injured is guilty of contributory negligence is one for the determination of the jury.</p> <p>3. Special Findings — Consistency—Evidence—Duty of Jury to Follow Instructions. The special findings of the jury examined and found not to be without support in the evidence nor contrary to the instructions of the court, and not inconsistent with the general verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Severable or Entire — Drilling Wells — Time of Payment. A provision of a written contract that one party shall drill a certain number of wells, and in case gas is found in any or all of them in paying quantities the other party shall own and possess such well or wells by paying the cost of drilling the same, implies that a payment is due whenever a paying well has been drilled.</p> <p>2. -Abandonment — Action to Recover for Part Performed. Where under such a contract a payment has become due, but the party liable therefor refuses to make it, contending that nothing need be paid until all the wells are completed, the party entitled to receive it has a right to abandon further work and sue for that already done.</p> <p>3. - Limitation of Actions. Such an action is one upon the contract, and the statute of limitations applicable thereto is that relating to agreements in writing.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Acceptance of Benefits by One Not a Party or Assignee. If a written contract executed by A and B be accepted by C, and acted upon by A and C, although the contract be not assigned by B it becomes the contract of C as fully as if formally assigned to him.</p> <p>2. - Construction — Parol Evidence. The intention of the parties to a contract is to be determined primarily by the language employed therein, construed in its ordinary meaning. If a provision be fairly susceptible of two meanings, then the general scope and purpose of the entire transaction and all the surrounding circumstances are to be considered in determining which meaning was intended.</p> <p>3. -Enforcement — Fairness—Agreement Not Unconscionable. Equity will not enforce an unconscionable contract; but the mere fact that one provision of a legal contract, or even the entire contract,' is more favorable to one party than to the other does not ordinarily render it unconscionable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Title of Act — Statutory Construction. When a statute is attacked as being in violation of section 16 of article 2 of the constitution, for the reason that it is not within the title of the act, such title will be liberally interpreted for the purpose of upholding the law.</p> <p>2. -Same. It is not necessary that the title contain every detail of the entire act. It will be sufficient if it fairly indicates, though in general terms, its scope and purpose. “Ev- • erything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the body of the act without violating the constitutional inhibition.” (Lynch v. Chase, 55 Kan. 367.)</p> <p>3. -Statute Relating to Intoxicating Liquors Held Valid. Section 4371 of the'General Statutes of 1909, being originally section 16 of chapter 128 of the Laws of 1881, the title to which enactment reads, “An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,” is within such title and is not unconstitutional.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Publication Service — Defendant Not Alive. In an action quieting title to lands a judgment obtained on service by publication only is void where the action is not commenced until after the person named as defendant is dead. .</p> <p>2. -Unknown Heirs — Order Authorizing Publication Service. Where an attempt is made to obtain service by publication upon the unknown heirs or devisees of a defendant, under section 78 of the code (Gen. Stat. 1901, §4512), without an order of the court authorizing the same, the service is void.</p> <p>3. Wills — Nonresident—Record—Notice—Purchaser in Good Faith — Tax-deed Holder. A tax-deed holder is not within the protection of section 9827 of the General Statutes of 1909, which provides that the title of a purchaser in good faith, without knowledge of a will, derived from the heirs of any person who is not a resident here at the time of his death shall not be defeated by the production of the will unless the same shall be offered for record within two years of the final probate. In order to bring himself within its protection he must be a purchaser in good faith and have acquired his title from the testator or the heirs or devisees of the testator.</p> <p>4. Laches — Quieting Title — Plaintiff in Possession. Laches is ordinarily no defense in an action to quiet title or remove a cloud where the plaintiff is in possession.</p> <p>5. -Equitable Estoppel — Mere Lapse of Time Insufficient. The doctrine of laches is founded to some extent upon the principles of equitable estoppel. Where, by reason of acquiescence or long lapse of time, there is a possible loss of testimony or increased difficulty of defense, the doctrine may be applied in the discretion of the court; but laches does not consist in mere lapse of time.</p> <p>6. --Defendant without Equitable Rights. The doctrine of laches is never invoked in aid of a party where the equities are not in his favor.</p> <p>7. -Rights of Tax-deed Holder Not Equitable, but Statutory. There aré no equities in favor of a tax-deed holder as-against the owner of land. The rights of a tax-title holder are purely statutory.</p> <p>8. - Action to Annul Tax Deed — Holder Not in Adverse Possession. Laches can not be imputed to the owner of land for failure to begin an action to annul a tax deed, where the tax-title holder is not in adverse possession.</p> <p>9. -- Quieting Title against Holder of Defective Tax Deed Less than Five Years Old. Where the holder of the legal title to land brings an action to quiet his title, a defendant whose claim rests upon a defective tax deed less than five years old can not avail himself of the defense of laches on the ground that the plaintiff failed to pay the taxes, or to file his title papers for record or assert his ownership of the land by taking actual possession until after the defendant acquired his rights.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>School Land —- Appraisement — Fraudulent Undervaluation — Proof. In an action by the state to set aside the appraisement of school land and to cancel certificates of purchase issued thereon it appears that land, which the evidence tends to show was worth from $5 to $10 per acre, was appraised at $1.50 per acre, but that this was done through an honest exercise of judgment by appraisers fairly chosen, and no fraud is shown, unless inferable from the undervaluation so made. It is held, that the evidence is insufficient to sustain the charge of fraudulent undervaluation.</p>

<p>Appeal from Allen district court; OSCAR FOUST, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Evidence Procured by Intimidation — Involuntary Confessions — Self-incriminating Testimony. At a trial on the charge of murder, neither the rule excluding proof of an involuntary confession nor that relating to self-incrimination forbids evidence that the defendant produced from a hiding place a revolver similar to that with which the homicide was known to have been committed, although such production was brought about by intimidation.</p>

Original proceeding in mandamus. STATEMENT. This is an original proceeding in mandamus to compel the defendants to subscribe for certain stock of the plaintiff and to issue railroad-aid bonds in exchange-therefor. The county clerk is ready and willing to. issue the bonds, and has filed a disclaimer.

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

<p>Appeal from Johnson district court; JABEZ 0. RANKIN, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School Land — Assignment of Certificate of Purchase — Improvements — Patent. Where a purchaser of school land sells his right to the land and the improvements to another, and' assigns his certificate and gives possession to such other, the assignee becomes the owner of the improvements; and when he has completed the purchase under the certificate by full payment of the purchase price he is entitled to a patent.</p> <p>2. -Improvements — Ownership. In such a case the state does not become the owner of the improvements, and a sale • of the land for the appraised value thereof separate from the improvements is proper.</p> <p>3. -Patent — Duty of State Auditor. In such a case the , assignee of the certificate, who has paid the state the purchase price of the land in full, is entitled to a patent, and it is the duty of the state auditor upon demand to make the proper certificate for such patent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Stock of Corporation — Resident Owner. The resident owner of shares of stock in a corporation which is organized in another state and has its principal office in such state, and not in the state of Kansas, is required by the statutes of this state to list such shares for taxation at the full value thereof, and is not entitled to any deduction from the assessment thereof although all, or practically all, of the capital of such corporation is invested in real estate and personal property which is taxed in this state.</p> <p>2. - Double Taxation — Validity of Statute. Such taxation of such shares of stock is not double taxation, and the statutes authorizing the same are not void as in conflict with section 1 of article 11 of the constitution of the state of Kansas, but are valid.</p>

Original proceeding in disbarment. STATEMENT. Chajrges were presented against W. B. Washington, an attorney of the bar of this court.

<p>Pleadings — Demurrer—Practicability of Guarding Machinery-Factory Act — Injury to Employee. , In an action under the section of the factory act (Gen. Stat. 1909, § 4679) requiring certain machinery to be guarded where practicable, an allegation that it was the defendant’s duty to guard the cogwheels by which the plaintiff was injured held to imply that such guarding was practicable, no motion having been filed to make the pleading more definite in that regard.</p>

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

<p>1. Practice, District Court — Admonition to Jury — Duty to Agree. An admonition to the jury presenting to them in strong language their duty to agree if possible held not to constitute error.</p> <p>:2. -— Same. An oral admonition to the jury, after their deliberations had begun, directing their attention to the instructions regarding the burden of proof and adding,, “when you can not decide a matter in favor of the party who has the affirmative, because the weight of the evidence is not that way, you should decide the other way,” held not to be reversible error.</p> <p>3. Jury and Jurors — Misconduct — Consideration of Matters Not in Evidence. Where the speed of a street car was in issue, the fact that one member of the jury told the others during their deliberations that he was a railroad man and knew within what distance a train could be stopped when running at a certain speed, and used that fact in arguing against the plaintiff’s right to recover, held not to be ground for reversal.</p>

<p>1. Evidence — Demurrer—Weight and Credibility. The rule that in considering a demurrer to the evidence the court may not reconcile conflicting testimony or determine the weight of the evidence applied.</p> <p>2. Highways — Defective Culvert — Notice to Township Trustee. Whether a township trustee had notice of defects in a culvert was a question of fact.</p>

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

<p>Embezzlement — State Officer — Statutory Construction — “Estate” Erroneously Used for “State.” In the statute (Gen. Stat. 1909, §2578) forbidding the embezzling by an officer of the state of money “belonging to . . . such ... estate,” the word “estate” is manifestly intended for “state,” and must be so construed.</p>

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

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

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

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

<p>Appeal from Johnson district court; Jabez O. Rankin, judge.</p>

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

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

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

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

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

<p>Appeal from Wyandotte district court; Edward L. Fischer, judge.</p>

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

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

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