Volume 85 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Entry and Detainer — Adverse Claimants — Priority . of Possession. As between two claimants to the possession of a tract of land, each basing his claim upon an assertion of title, the one who first obtains peaceable possession is entitled to maintain it until devested by the judgment of a court of competent jurisdiction.</p>

<p>Appeal from Sheridan district court.</p>

<p>Appeal from Cowley district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Evidence—Amount of Award. The mere fact that commissioners in laying out a right of way for a railroad had allowed a certain item of damages affords no evidence on the trial of an appeal from their award that such damages had in fact been sustained.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Devise by Wfife — Consent of Husband. The testatrix, who had a husband but no children, had a right to devise one-half of her property to her brothers and sisters without the consent of her husband.</p> <p>2. - Confidential Relations — Undue Influence ■— Presumptions. Her sister, a beneficiary under the will, nursed and cared for testatrix during an 'illness of several months and the relations between them were affectionate and confidential, but these facts of themselves do not raise a presumption that, the sister exerted undue influence over the testatrix in the making of the will.</p> <p>3. -:— Evidence of Fraud or Undue Influence. Upon the request of the testatrix her sister asked the scrivener to prepare a will and communicated to him the provisions which the testatrix desired to be written in it and was in the house with the testatrix when the will was executed, but there is no testimony that she attempted to influence or control the testatrix in the disposition of her property, a disposition which, under the circumstances, was not unnatural nor illogical. Held, that these facts do not of themselves warrant an inference that the will was executed through fraud or undue influence.</p> <p>4. - Same. The mere fact that the testatrix desired that her husband should not know of th,e will, and that it was executed without his consent or knowledge, and that the sister and scrivener were aware of this purpose, does not create a presumption of undue influence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Lease—Sublease—Duration. A clause in a lease authorizing the tenant to sublet, and to make such a lease as the subtenant may require, does not authorize him to execute a contract extending beyond the life of the original lease.</p> <p>2. - Cancellation of Lease — Ratification—Estoppel. Where by mutual agreement of the parties a lease is canceled before its expiration, and the lessor accepts from the lessee an assignment of a sublease purporting to extend beyond the life of the original lease, he does not thereby ratify the unauthorized portion thereof; nor is he precluded from demanding possession of the premises at the end of the original lease by the fact that in giving notice to the occupant of its termination he specifies a date slightly later than the actual time.</p> <p>3. - Tenant from Year to Year — ■Termination of Tenancy —Notice—Failure to Dispossess — Estoppel. Under the statute (Gen. Stat. 1909, § 4691) providing that when a tenant for one or inore years, with the assent of the landlord, continues to occupy the premises after the expiration of the term, he shall be deemed a tenant from year to year, such assent of the landlord is not shown by the fact that in a notice of the termination of the lease he names a date slightly later than the actual time, nor by the further fact that for several months he takes no steps to dispossess the tenant.</p> <p>4. Forcible Entry and Detainers-Notice — Laches. A delay of two months and a half in the commencement of an action of forcible entry and detainer, after the giving of the statutory notice thereof, is not necessarily fatal to the proceeding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Measure — Automobile Agency. The measure of damages for breach of a contract giving the plaintiff the exclusive agency for the sale of automobiles where the manufacturer invades the plaintiff’s territory is the amount of commissions or discounts of which the plaintiff is deprived by sales made by the defendant.</p> <p>2. - Employer Selling in Agent’s Territory — Estoppel. In such an action the defendant by selling in the plaintiff’s territory in violation of the agreement is estopped to claim that if he had not done so the plaintiff would not have made the sales.</p>

<p>Appeal from Cowley district court.</p>

STATEMENT. IN the opinion, for the sake of brevity and clearness, the effect is stated of several documents and matters of record which are not set out in full, nor quoted from with literal exactness.

<p>Appeal from Sherman district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Information—Duplicity. An information is not bad for duplicity which charges the defendant with enticing, decoying, talcing and receiving a female child under the age of eighteen years into a certain house of ill fame and disorderly house for the purpose of prostitution.</p> <p>2. - Joinder of Counts. One who does all the things mentioned in one transaction commits only a single offense and incurs but a single penalty, and it is proper to charge all conjunctively in a single count.</p> <p>3. -r Ignorance of Material Fact No Defense. It is no defense that defendant did not know the age of the girl or that the girl represented herself to be more than eighteen years old.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Heeds — Name of Grantee Left Blank — Delivery to Agent to Negotiate Sale — Wrongful Delivery by Agent to Third Person —Innocent Purchaser. Where the owner of real estate executes and acknowledges a deed thereto, leaving the name of the grantee blank, and intrusts it to another with authority to negotiate a sale of the land, fill in the name of the buyer, and deliver the deed upon certain conditions, and the holder of the deed in violation of his instructions delivers it to a third person, who fills in his own name and records the deed, an innocent purchaser of the property upon the faith of the record acquires such a right that his claim of title can not be adjudged void at the suit of the Original owner without compensation being made for what he has lost by the transaction.</p>

<p>Appeal from Greenwood district court.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

STATEMENT. The appellants, Dr. W. S. Lindsay, Christ’s Hospital and others were charged with keeping and maintaining for compensation and hire an insane asylum or retreat in cottages upon the grounds of Christ’s Hospital in Topeka without having a license so to do and in violation- of -the statute.

<p>Appeal from Sedgwick district court.</p>

<p>SYLLAJBUS BY THE COURT.</p> <p>1. Railroads — Duty of Person Crossing Tracks — Contributory Negligence. A railroad track is itself a warning of danger to an approaching traveler and it is the duty of one about to cross, who is competent to exercise care for his own protection, to use his faculties of sight and hearing in the manner of an ordinarily prudent person, and the omission to do so is an omission of ordinary care which will bar a recovery for injuries resulting from a collision with a train, notwithstanding the negligence of the. railroad company in failing to sound a whistle eighty rods from the crossing.</p> <p>2. - View of Track Obstructed — Duty of Person about to Cross Tracks to Look Again after Passing Obstruction. The fact that the view of one approaching a railroad track is obstructed for a short distance requires the exercise of greater vigilance and care on his part to learn if there is a present danger in crossing, and it is incumbent on him to look again when he passes the obstruction and when an opportunity exists to look and listen for an approaching train.</p> <p>S. Verdict — General—Special Findings Inconsistent with General Verdict. The presumption invoked in support of the general verdict, that the deceased looked and listened and otherwise exercised due care for his own safety, is overcome by the special findings of the jury which show that if he had looked and listened, where there was an opportunity, he must have seen the approaching train and could have saved himself.</p> <p>4. - Same. Where the general verdict of the jury is in favor of the plaintiff but the special findings returned with the verdict show that the plaintiff is not entitled to recover, judgment should be entered on the special findings in favor of ■ the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Solicitor Is Agent of Company, Not of Assured. An agent for a life insurance company whose authority is limited to negotiating for, taking and transmitting applications for the approval or rejection of the company is the agent of the company and not of a person whom he solicits to take insurance, and for those purposes he has all the power the company itself possesses.</p> <p>2. - Company Bound by Agreements of Agent. Agreements made between such an agent and a person whom he solicits to take insurance as to what the application shall contain are in legal effect made with the company and bind it as to the contents of the application.</p> <p>3. - Duty of Agent to Properly Prepare Application — Company Bound by Acts of Agent. It is the duty of such an agent to prepare the application of a person solicited to insure so that it will accurately and truthfully state the result of the negotiations, and the agent’s failure to do so is in legal effect the fault of the company.</p> <p>4. -Knowledge of Agent Knowledge of Company. If such an agent fail to write into the application an agreement which he has made with the applicant respecting the terms'of the insurance desired his knowledge of the agreement is in legal effect the knowledge of the company.</p> <p>5. - Acceptance and Retention of Initial Premium — Issuance of Policy — Binding Contract. If in the case .stated in paragraph 4 the company accept and approve the application, receive and retain the initial premium and issue the policy, a binding contract of insurance is effected according to the agreement.</p> <p>6. -Reformation of Policy — Parol Evidence — Varying Terms of Contract. In the case just stated the company can not, in an action brought for the .purpose, successfully oppose the right of the insured, or of the beneficiary after the death of the insured, to have the contract reformed according to the agreement, notwithstanding a provision in the application that statements not in writing shall not bind the company, and notwithstanding a provision in the application that the contract formed by the application and policy taken together can be varied only by the president or secretary of the company in writing.</p> <p>7. - Failure of Insured to Examine Application and Policy Not Negligence. An applicant for insurance without knowledge to the contrary may assume that the agent has prepared the application according to agreement and that the company has written the policy according to the application and he is not negligent in failing to examine such instruments for errors and omissions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pences — Inclosure of Another’s Land — Liability for Rent. One who either alone or in cooperation with adjoining landholders maintains a fence so as to inclose the land of another with his own, and treats the entire inclosure as his pasture, excluding all other stock therefrom,' is liable for rent to the owner of the tract so inclosed.</p> <p>2. - Same. Under such circumstances his liability is not affected by the existence of a public road through the inclosure, across which he maintains gates, or by the fact that he has made an offer, which was rejected, to share with the owner of the inclosed land the expense of fencing so as to separate their tracts.</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Special Findings Inconsistent with General Verdict — Judgment Non Obstante. Answers to special questions are not a sufficient basis for a judgment non obstante unless they are clearly, inconsistent with the general verdict.</p> <p>2. - Same. In order to separate water and other foreign substances from natural gas flowing through its pipe, a company maintained a drip pipe, in connection with which was a valve, and also a perpendicular pipe about two feet high into which gas from the conveying pipe could be released by a valve turned by a wrench. A boy nine years old, playing with the appliance — the wrench having been left on the core of the valve — turned the valve, and the force of the released gas instantly killed him. The father, who recovered damages for the death, was found to have known that escaping gas was dangerous to persons inháling the same and to have known the use of the pipes and appliances. Held, that such findings are not sufficiently inconsistent with the general verdict to warrant a judgment non obstante.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Voluntary Appearance — Time of Commencing Action. In an action to foreclose a mechanic’s lien the petition was filed and the cross-petitions of other lien-holders who were made defendants were filed before the sixty-day period had elapsed in which the owner is not liable to an action. No summons was issued for the defendant owner, who was a nonresident, and no attempt was made to procure service by publication. After the sixty-day period had elapsed the owner voluntarily appeared and answered. Held, that, as to the owner, the action was commenced at the date of the voluntary appearance, and hence, that the suit was not prematurely brought.</p> <p>2. -- Husband Acting as Agent for Wife — Personal Liability. While the statutory power of a husband to create a mechanic’s lien upon his wife’s property (Civ. Code, § 649) does not extend to binding her personally for the price of material furnished to him under his own contract, she may constitute him her agent in fact and in that capacity he may create a personal liability on her part, as well as a lien upon her property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Designation of Defendant “Company” Not Specific — Waiver. Where a defendant is designated in the petition as a “company,” and in its answer describes itself by the same designation, a judgment against it will not be reversed on the ground that the record nowhere shows whether it is a partnership, a corporation or an individual doing business in that name.</p> <p>2. Conversion — Warehouseman—Refusal to Deliver Goods on Demand — Liability. The proprietor of a warehouse is liable, in an action of replevin, to the true owner of goods stored with him by some one else, where he has refused to deliver them on such owner’s demand, notwithstanding he has asserted no claim upon them in his own right.</p> <p>3. Judgments — Replevin—Consignor Not Bound. The consignor of goods which are replevined while in transit is not bound by a judgment against the carrier, although he has notice of the litigation, where he is not a party and takes no part in the proceedings.</p>

<p>Appeal from Miami district court.</p>

<p>Appeal from Cowley district court.</p>

<p>Appeal from Cherokee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Petition—Amendment—Time. A petition alleging that the defendant unlawfully carried away stone from • land owned by the plaintiff, and asking treble damages therefor, sufficiently states a cause of action under the act (Gen. Stat. 1909, § 9692) allowing treble damages against one who carries away stone in which he has no interest or right, from land which is not his own, so that even after the lapse of the period fixed by the statute of limitations it may be amended to conform strictly to the language of that act.</p> <p>2. Damages — Diligence in Stopping Trespass — Statute. The fact that the plaintiff did not exercise diligence to discover and stop the trespass constitutes no ground of defense, or for the reduction of damages, in an action under that statute.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Passenger on Freight Train — Willful Negligence. A passenger on a freight train was injured while attempting to alight from the steps of the caboose while the train was moving. Before becoming a passenger he signed a release relieving the company from liability for injuries except those occasioned by willful negligence. In an action to recover damages he set up two causes of action, the first charging that his injuries were caused by the willful negligence of the conductor of the train. Held, there being no evidence tending to show willful or wanton negligence of the company or its employees, the demurrer to the evidence to the first cause of action should have been sustained.</p> <p>2. Damages — Unlawful Detention — Proximate Damages. The plaintiff was a man seventy-five years of age. When he fell one of the bones of his right leg was broken. After the accident the conductor came to where he was lying on the platform and informed him that the law required him to obtain from the plaintiff a written statement. Relying upon the truth of what the .conductor told him, he consented to remain and make the statement, and was detained thereby from fifteen to twenty minutes before he was taken home. Held, that evidence of such facts justified a finding that his detention was unlawful and that the company is liable for such, damages as were the natural and proximate result thereof.</p> <p>3.--- Unlawful Detention — Authority of Conductor of Freight Train. It appearing that the conductor was instructed by the railway company to obtain from injured passengers written statements, it is held that he was acting within the scope of his authority in detaining the plaintiff for that purpose.</p> <p>4. -■ Unlawful Restraint by Words or Acts or Both. In such a case it is held that there was no error in giving an instruction that if the company detained the plaintiff against his will and prevented his being taken immediately to his home, such action would amount to an unlawful restraint of his personal liberty, and that all that is necessary to constitute an unlawful restraint of one’s liberty is that he be restrained without any sufficient legal cause therefor, and by words or acts which he fears to disregard.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Demurrer—Misjoinder of Causes of Action. Under section 93 of the code misjoinder of causes of action is not a ground for demurrer to a petition.</p> <p>2. - Petition — Demurrer. A petition which alleges in substance that each of three corporations successively became the assignee of an oil-and-gas lease and that the three by some arrangement unknown to the plaintiffs claimed the right to operate and had operated the lease and had used and were using gas for which the terms of the lease required payment to the lessor, without paying for it, states a cause of action.</p> <p>3. Rents and Royalties — Oil and Gas Produced by Same Well —Liability. In such an action to recover rental for gas used it is no defense that the wells produced both oil and gas, or that the latter had to be removed to save injury to the former and to the machinery, when under the terms of the lease and the pleadings the material question relates to the length of time the gas has been actually used by the defendants for their benefit, aside from the mere matter of its removal from the wells.</p>

<p>Appeal from Bourbon district court.</p>

STATEMENT. The railway company appeals from a judgment against it for damages for personal injuries to a passenger. The negligence complained of was a sudden starting forward of the car while the appellee was alighting and before he had a reasonable time to do so, causing him to fall. The appellee entered a west-bound car, and notified the conductor that he wished to leave it at Oak street.

<p>Appeal from Pottawatomie district court.</p>

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

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

<p>Appeal from Riley district court.</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal from Lyon district court.</p>

<p>Appeal from Neosho district court.</p>

<p>Appeal from Miami district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Taxation — Stock of Corporation — Resident Owner — Validity of Statute — Title of An Act — Defective Records. Stock of a foreign corporation which does not have its principal office in Kansas held to be taxable at the residence of the owner .in this state; the statute on the subject held not invalid on account of its title or the defective record of its enactment.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Judgments — Validiy—Publication Service — Notice—Irregularities. Judgments based upon publication service held not to-have been rendered void by various irregularities.</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal. from Neosho district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Evidence-Conflicting Testimony. On the trial of a case, where there is conflicting evidence on the one hand tending to establish a material fact, and on the other to disprove it, it is error for the court to sustain a demurrer to the evidence, however strongly in the opinion of the court the preponderance of the evidence may be against the party on whom rests the burden of the issues.</p> <p>2. Evidence — Experiments — Illustration of a Fact in Issue. Evidence of experiments offered as an illustration of a fact in issue, which experiments are taken under widely different, conditions from the facts sought, to be illustrated, are not admissible in evidence.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — General Denial — Lien for Taxes Allowed. The defendant in ejectment may under a general denial introduce in evidence a tax deed to the land in controversy, and, if defeated, may have the lien for the taxes assessed.</p>

<p>Appeal from Shawnee district court.</p>

<p>OPINION ON REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Practice, • Supreme Court — Decision on Question of Law no Trial of Issues De Novo. The question whether an error occurring in a judicial proceeding materially and prejudicially affects the rights of the party against whom it was committed is one of law and its determination on appeal does not involve a trial of the issues de novo.</p> <p>2. District Judge — Disqualification to Sit Not Equivalent to Want of Jurisdiction. The disqualification of a district judge to sit in the trial of a case is not equivalent to want of jurisdiction and does not deprive him of all power to act except to • change the venue.</p> <p>3. Change op Venue — Order Denying, Not Appealable Until after Final Judgment. An order denying an application to change the venue because of the disqualification of the district judge is not an order from which an appeal can be taken at once. It can be reviewed on appeal only after final judgment has been rendered.</p>

<p>Appeal from Riley district court.</p> <p>(Original opinion not reported.)</p>

<p>Appeal from Franklin district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Bourbon district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Foreclosure — Invalid Tax Deed — First Lien. A mortgagee assigned the mortgage and guaranteed that he would pay the interest on the mortgage debt when due and the principal within a fixed time. He also purchased the mortgaged land at a tax sale and subsequently assigned the tax-sale certificate to another and upon this certificate an invalid tax'deed was issued. After the guaranty had become barred by the statute of limitations the owner of the mortgage brought an action to foreclose it, making the holder of the invalid tax deed a defendant and asking that he set up his lien or claim and have it determined to be subordinate to the mortgage lien. Held, that, notwithstanding the guaranty, the mortgagee was not under any obligation to pay the taxes nor barred from purchasing the land at a tax sale, neither was his assignee precluded from taking an assignment of the tax-sale certificate, and that as the holder of the invalid tax deed was invited into court to have the priorities of the mortgage and tax liens determined it was competent and proper for the court to adjudge that the holder of the invalid tax deed was entitled to a first lien for the taxes, interest and penalties.</p>

<p>Appeal from Douglas district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin —■ Property in Hands of Receiver — Discretion of Court. Whether a claimant shall be permitted to bring replevin for property in the hands of a receiver or required to seek a remedy in the proceeding in which the receiver was appointed, is ordinarily a matter resting within the discretion of the court.</p> <p>2. -Leave to Sue Receiver May be Withdrawn. Where leave to sue a receiver is granted ex parte, without specifying the character of the action, and replevin is brought for property in his official custody, the court may ordinarily, in its discretion, withdraw such leave and dismiss such action.</p> <p>3. —-Dismissal of Action — Not Error. Where such a replevin action is dismissed upon a motion of the receiver filed therein asking a withdrawal of the leave to sue and a dismissal of the replevin action, the dismissal will not be reversed because no evidence was introduced, or because no formal order was made withdrawing the les-ve to sue.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Mutual Demurrage Law” — In What County Actions Maybe Brought. Under the provisions of section 50 of the old code (Gen. Stat. 1901, § 4480, Code 1909, § 52), as amended by section 1 of chapter 379 of the Laws of 1903, an action may be brought against a railroad company, to enforce a liability under the mutual demurrage act (Laws 1905, ch. 345), in any county of the state in which is located the principal office or place of business of such railroad company.</p> <p>2. -- Claims United in One Action. In such an action it is proper to unite all claims for damages directly flowing from the one transaction, the effort of the shipper to procure and the failure of the railroad company to supply cars for the transportation of freight, whether the damages be such as are determined in amount by the statute and are generally designated. as penalties or forfeitures or are such as are not .so determined or designated.</p> <p>3. -Law is Constitutional. Chapter 345 of the Laws of 1905 is not void for the reason that the title thereof does not conform to the requirements of section 16 of article 2 of the constitution of Kansas, but such title is sufficient to embrace the provisions of the act. If chapter 286 of the Laws of 1901 is deficient in this respect, such deficiency does not invalidate the act of 1905 which is amendatory thereto.</p>

<p>Appeal from Finney district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Rights of Minor to Redeem After Attaining Majority — Evidence. A party who was seeking to redeem land from á tax deed and had received a deed for the land when a child testified that his grantor, acting for him, accepted an offer of the subsequent grantee in the tax deed to pay the taxes for the use of the land. The defendant held by quitclaim from the grantee in the tax deed. The evidence was excluded because the former minor’s grantor was deceased. Held, that as neither party was executor, administrator, heir at law or next of kin to the deceased, the evidence was competent.</p> <p>2. - When Minor May Redeem. A minor may within one year after reaching majority redeem from a tax sale notwithstanding the five-year limitation found in section 9483 of the General Statutes of 1909 (Laws 1876, ch. 34, §.141).</p>

<p>Appeal from Johnson district court.</p>

<p>Appeal from Anderson district court.</p>

STATEMENT. This is an appeal by Ashford W. Greenwood from an order made by the district court of Riley county setting aside a contract for the sale of land entered into between Annie M. Greenwood and himself. The original judgment and decree in this case was rendered on the 2d day of December, 1897, a little more than twelve years prior to the filing of the motion upon which the order complained of was made.

<p>Appeal from Haskell district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contributory Negligence — Demurrer to Evidence Properly-Sustained,. A railroad crossing in a city was required by ordinance to be guarded by gates let down when cars were passing. One of the gates was out of repair, but plaintiff, who drove up from the east in a buggy with back and side curtains; down, saw that the other gate was down at the farther side of the crossing, and it indicated to him that a train was likely to be passing at any time. He was familiar with the crossing and knew that he could not see a train approaching from the south until his horse reached the east switch track, but after halting or stopping, and looking, twelve feet back, he proceeded in a “sort of jog trot” until his horse reached the track, when it was frightened by a freight car backed from the south, and plaintiff was injured. No signal or warning save the west gate was Seen or heard by him until just as he saw the car, when some one exclaimed “Look out!” He testified that he was going to cross the switch track and then he could go north or south (before reaching the main track), to another street. That he could either have done that or “stayed in there until they passed.” That he made up his mind to take that chance at his own hazard and risk before he received any injury at all. Held, that the trial court properly sustained a demurrer to plaintiff’s evidence.</p>

<p>Appeal from Cheyenne district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Tax Deed — Who May Attack. The rule that one must show an interest in the property in order to attack a tax deed applies only to a party who is seeking-affirmative relief. One who stands wholly upon the defensive may, without proving his own interest, show that a tax deed less than five years old, upon which a decree quieting title against him is sought, is invalid as a conveyance of title because of irregularities not showing on its face.</p> <p>2. - Same. Where an action to quiet title upon a tax deed is brought in the alternative; against one who if alive owns the patent title, and against his unknown heirs if he is dead, the grantee in a conveyance executed after the commencement of the action, by those who are the heirs if such death has taken place, is in substantially the same position as an original defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contributory Negligence — Question for Jury. Contributory negligence is usually a question of fact for the determination of a jury.</p> <p>2. -Burden of Proof on Party Alleging It. Contributory-negligence is a matter of defense, and the burden of establishing it rests upon the party who asserts it and not upon the opposite party, in the first instance, to disprove it.</p> <p>3. Demurrer — When Wrongfully Sustained. Unless it can be-said that the evidence of a plaintiff seeking redress for injuries to himself or another affirmatively shows that the injured party was guilty of contributory negligence, a demurrer to the evidence of the plaintiff on this ground should not be-sustained.</p>

<p>opinion denying a rehearing.</p> <p>SYLLABUS BY THE COURT.</p> <p>Foreign Statutes — Adopted by this State — When Construction of by Foreign Court Not Binding on Courts of this State, The rule that courts in construing a statute adopted from another state are bound by previous decisions as to its effect rendered by the court of last resort of that state is subject to this exception among others: The decision of the court of the other state will not prevail over a contrary decision previously rendered by the supreme court of the adopting state, arising upon a statute substantially similar so far as relates to the question involved, and resulting from a different view of some general principle of law or public policy.</p>

<p>Appeal from Franklin district court.</p>

<p>Appeal from Smith district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>“Factory Act” — Gives No Right to Father for Loss of Services of Minor Son. A father sued the proprietor, of a manufacturing establishment for loss of services resulting from an injury received by his minor son .by reason of failure to guard the machinery as required by the factory act. (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683.) Held, that such act gives the father no rights in this respect in addition to his rights at common law, and only the son himself can recover for such injury.</p>

<p>Appeal from Greenwood district court.</p>

<p>Appeal from Cherokee district court.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

STATEMENT. The statute allowing attorneys’ fees, the substance of which is .stated in the opinion, is here given in full. The words in brackets were used in the act of 1893 (Laws 1893, ch. 102), but omitted at the time of the amendment in 1897 (Laws 1897, ch. 142) ; the new matter which was then added is printed in italics. “Section 1.

<p>SYLLABUS BY THE COURT.</p> <p>1. Trust Deed — Construction—Intention Must Govern. In construing a deed of trust requiring the disposition of property among various persons, the rule favoring vested rather than contingent remainders does not operate to change or subvert language and intention clearly expressed- in such deed. In construing such instruments manifest intention is of first importance.</p> <p>2. - Grantee’s Right to Direct Disposition of Property. In such deed of trust executed by a husband and wife was a provision setting apart to the wife, for her sole and separate use and management, certain land, she to have and enjoy the entire rents and profits derived therefrom unless she should otherwise elect; the trustees therein agreed to pay the taxes during the life of the -wife and to pay off any encumbrance thereon; it further provided that the husband, in consideration of one dollar and the covenants and agreements contained in such deed, granted, bargained, sold and conveyed unto the wife this land, to have and to hold during her life; if she should die intestate then it should descend in equal shares to the children of the husband and wife, but she should have the right to will the land to any one or more of such children. Held, that the wife, by virtue of these provisions, had the irrevocable right to say to which of such children the land should go at her death, and her testamentary disposition thereof as provided, after the decease of her husband, was valid.</p>

<p>Appeal from Lyon district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Maturity op Debt — When Question for Jury. When the written contract is vague and uncertain as to when the indebtedness matures, oral evidence relating thereto is competent, and the maturity of the debt becomes a question for the jury.</p>

<p>SYLLABUS B.Y THE COURT.</p> <p>1. Usury — Bona, Fide Purchaser of Note Bearing Lawful Rate of Interest Not Chargeable with Usury. One who buys at less than its face value a negotiable note bearing the highest legal rate of interest is not chargeable with usury because of the fact, of which he had no knowledge or notice, that the note was executed by the maker for the accommodation of the payee.</p> <p>'2. Indorser — Indorsement of Note by Payee — Not Borrowing Money. The fact that the payee upon the sale of a negotiable note becomes by indorsement liable for its payment does not characterize the transaction as a loan to him.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutes — Presumed Valid — Record Claimed to Show Invalidity of Must be Pleaded. Error will not be predicated upon a judgment rendered in accordance with a duly certified and published statute of the state because of an adverse pleading that some constitutional requirement was not observed in one branch of the legislature in passing the act — no record being exhibited to sustain the contention.</p> <p>2. - Same. Acts of the legislature are presumed to be constitutional and valid and no challenge thereof should be entertained unless the particular constitutional provision alleged to be violated or the particular controlling record to prove the invalidity be pleaded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Specific Performance — Complete Performance Impossible — Partial Performance Denied. Upon the findings of fact it is held, that the trial court properly refused to compel the partial performance of a written contract for the exchange of real estate.</p>

<p>Appeal from Seward district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Change op Venue — Where Evidence of Prejudice is Conflicting Refusal Will Not be Reversed. A ruling refusing to grant an application for a change of venue because of the prejudice of the citizens of the county will not be reversed where the decision is based on conflicting evidence as to the existence of such prejudice.</p> <p>2. Jury — Impartial Jury Guaranteed by Constitution. The constitutional guaranty of an impartial jury and the statutory .provision that a juror may be challenged who has formed or expressed an opinion on an issue or material fact to be tried are intended to secure for a defendant a jury free from bias, prejudice or interest, and the fact that a juror who has read • a newspaper report of an offense may, in answer to questions, state that he has or has not an opinion is not necessarily -conclusive as to his qualification.</p> <p>.3. - What Constitutes a Disqualification. Whether what a juror calls an opinion disqualifies him is a question of fact to be determined from his appearance, manner, character of his answers, the form of questions to which his answers are .given, and the source of his information, and from these, and perhaps other things, the court is to determine whether his •opinion is fixed and positive or only a light impression, and if it appears that he is an unprejudiced man, whose opinion or impression is not fixed or positive, but is wholly contingent upon the truth or falsity of the report or rumor he has read or heard, he is not subject to challenge.</p> <p>4. - Qualification of Juror — Question for the Court. The finding of a trial court as to the qualification of a juror is reviewable like any other finding of fact based on evidence; and if, upon the evidence, the trial court decides that the juror is free from bias, prejudice or interest, and has no disqualifying opinion, its decision will not be disturbed on appeal unless disqualification appears as a matter of law or it is disclosed that there has been an abuse of the discretion with which the court is vested.</p> <p>5. Evidence — Record of Conviction of Principal — Admissible on Trial of Accessory. Upon a charge that the accused counseled, aided and abetted another in the commission of a crime, the record of the conviction of the principal is prima facie proof of the fact and is admissible in the trial of an accessory.</p> <p>6. - Testimony of Witness on Preliminary Examination Admissible on Trial. The testimony of a witness, voluntarily given in the preliminary examination of the charge on which the accused is on trial, is admissible in evidence where the accused had full opportunity to cross-examine the witness and the direct testimony of the witness had become absolutely unavailable to a party by reason of such witness claiming the statutory privilege of withholding his direct testimony because of being the husband of the accused.</p> <p>7. - No Prejtidicial Error. The fact that the trial court permitted counsel for the state to ask the witness a number of questions which he declined to answer because of his privilege is not material error where the former testimony of the witness on the subjects of inquiry was already before the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Crime — Evidence—Other Acts of Defendant and Prosecutrix Competent. In a prosecution for carnal knowledge of a female under the age of eighteen years evidence of anterior and subsequent acts of sexual intercourse between the prosecutrix and the defendant may be received in evidence to show the relations existing between the parties as well as their disposition toward each other.</p> <p>2. -■ Same. Evidence of such other acts are not admitted to show other offenses but as tending to show the offense on which a conviction is sought, and the testimony is not rendered inadmissible because it may tend to prove the commission of other offenses.</p> <p>3. - Uncorroborated Evidence of Prosecutrix Sufficient. In a prosecution of this kind there may be a conviction on the uncorroborated evidence of the prosecutrix if it is believed by the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Pees and Salaries — Special Act Not Superseded by General Statute. A general statute authorized clerks of the district court to retain all fees collected up to a certain amount, fixed according to population. This amount in counties ranging in population from 3000 to 10,000 was fixed at $900. Later a special act was passed allowing such officer (in Edwards county, which was within that class, to retain fees to the extent of $600, and providing that if his collections fell short of that amount the county should make up the difference. Still later the general act was amended, and, as an incident to the amendment, reenacted, the only change being the addition of a provision that where the fees fell below the amount the clerk was allowed to retain, as therein regulated, the deficiency should be made up by the county. Held, that the special act was not superseded by the subsequent general act, but re-, mained in force and limited the compensation of the clerk to $600.</p>

<p>Appeal from Kingman district court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Admissions — Voluntary Statements Admissible. • Statements made by one charged with murder to a county attorney and county commissioner, giving in detail the facts of the crime, are properly received in evidence when there is no showing that such statements were procured by duress, promise of reward, or other improper means.</p> <p>2. Evidence — Shoe-tracks Admissible. The description and measurement of tracks at the scene of the crime which correspond with the shoes worn by the defendant and introduced in evidence are competent.</p> <p>3. Bloodhounds.— When Conduct of Admissible as Evidence. Before evidence of the conduct of bloodhounds alleged to have been put upon the trail of the defendant can properly be received it should appear that the dogs in question were able, at the time and under the circumstances, to follow the scent or track of a person. When such foundation has been laid and the evidence showing the conduct of the dogs has been received, a charge in substance that before the jury can consider such conduct they must find that the dogs in question were accurate, certain and reliable in following the trail of human footsteps, and if they find from the evidence touching the matter that they were and are reliable and accurate in this regard then the evidence of their work and its result may be considered, together with all the other evidence in the case, as a circumstance determining the guilt of the defendant, is not prejudicially erroneous as to such defendant.</p> <p>4. - Weight of Such Evidence for Jury. While the competency of such evidence must be determined by the court before its admission and not left to the jury, still after its admission and after cross-examination or rebuttal it may become so weakened that the jury should disregard it.</p> <p>5. - When Conduct of Bloodhounds Should Not he Considered. If a proper foundation for such evidence be subsequently so weakened or destroyed as to render the jury unable to find that the dogs were able to take or follow the trail in question, then the evidence of the conduct of such dogs should not be considered and the quoted instruction was proper.</p>

<p>Appeal from Meade district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — From District Court — When Perfected. Under the provisions of the code of 1909 an appeal is perfected so far as to give this court jurisdiction thereof when notice of appeal with proof of service has been filed with the clerk of the trial court, and the failure or neglect of such clerk to send up the papers until after the expiration of a year from the rendition of the judgment or order appealed from will not prejudice the rights of appellant or defeat this court’s jurisdiction.</p> <p>2. -Jurisdiction — Dismissal. The failure of the appellant to follow up his appeal by compliance with the rules of this court respecting security for costs, payment of docket fees, service of abstracts and briefs may furnish grounds for dismissal of the appeal, but can not defeat the jurisdiction of the court or affect the computation of the period within which the appeal must be perfected.</p>

<p>Appeal from Leavenworth district court.</p>

<p>Appeal from Geary district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>School Lands — Title—Patent—Lease—Right to Purchase. Title to school lands based upon a patent from the state and a deed from the patentee is prima facie a perfect title and can not be defeated by one who claims a preference right to purchase the land by reason of having “settled” on the land while a lease thereto was in full force.</p>

<p>Appeal from Wilson district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Conversion — Exemptions. In an action for conversion of corn claimed to be exempt, when the issue is fairly submitted to the jury on competent but conflicting evidence and proper instructions and the verdict of the jury is approved by the trial court, the verdict will not be set aside by this court on the ground that it is contrary to the weight of the evidence.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Wills — Setting Aside — Undue Influence. In an action to set aside a will on the ground of undue .influence the evidence held to support a finding upholding the will.</p>

<p>Appeal from Wyandotte district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Real Estate — Brokers’ Authority to Execute Contracts. The written authority of brokers to sell lands contained the following clause: “I . . . F. M. Claudel ... do hereby authorize Mahin & Mahin ... to bargain and sell in my name” the property described, stating the terms of sale. This conferred power on the agents to negotiate for the sale, and to conclude a contract in the owner’s name binding him to make a conveyance, the language quoted not being limited or qualified in any way.</p> <p>2. - Valid Contract. An agreement for the sale of land reciting the names of parties, the sale of the land described, and the consideration and terms of payment, contained the following clause:</p> <p>“Party of the first part is to convey said land by warranty deed and furnish an abstract of title showing said land to be free and clear of all incumbrance and title perfect. Party of the second part is to take said lands subject to the lease now on the same for the year 1906.”</p> <p>It is held that the instrument' created mutual obligations— of the vendor to convey and of the vendee to accept the conveyance and pay the consideration according to the terms stated.</p> <p>3. - Specific Performance — Not .Barred, by Laches of Vendee. The vendee in the contract above referred to delayed the commencement of an action for three years and fifteen days after the repudiation of the agreement by the vendor. During about half of that time an action by the agents of the vendor to recover their commission was pending against him, wherein he interposed as a defense the want of authority of-the agents to conclude a binding contract in his name, which is one of the defenses presented in this action. The vendor stated to third persons that if defeated in that action he would make the conveyance, and this statement was communicated to the vendee. The vendee’s attorneys advised that the commencement of this suit should be delayed until the determination of the action referred to, which was determined adversely to the vendor. Upon these facts and the attending circumstances the conclusion of the district court that specific performance was not barred by laches will not be reversed.</p>

<p>SYLLABUS BY THE COURT,</p> <p>1. Quieting Title — Adverse Possession — Trusts—Agreement to Reconvey. In 1888 the plaintiff’s ward, in order to avoid the payment of a note for one hundred and seventy-five dollars given for a patent fence machine and to prevent his liability thereon from becoming a lien on his homestead, conveyed the latter to his wife. In a short time she reconveyed, and soon thereafter departed this life. In the same year he deeded his homestead to a daughter with- the understanding that she should deed it back to him when the note should be out of the way. He continued for more than fifteen years to occupy the land, asserting and exercising dominion over it. When requested to reconvey, the daughter, fearing that he contemplated remarriage, delivered to him a life lease made out on a warranty deed blank, which he supposed for some time to be a good deed of conveyance. In 1895 he was adjudged insane and placed in an asylum, symptoms of mental unsoundness having been manifested as far back as 1888. The daughter was shown to have made numerous statements that she did not pretend to own the land but intended to deed it back. During the father’s occupancy he placed valuable improvements upon the land, rented portions of it at times and collected the rent, and repeatedly offered it for sale. Held, that the facts warranted a finding of adverse possession.</p> <p>2. - Homestead — Fraudulent Conveyance. The land being the homestead of the grantor, his creditors could not have been defrauded by his conveyance thereof.</p> <p>3. - When Occupation Not Subservient. Under the conditions and circumstances indicated such occupancy was not in subservience to the title of the grantee.</p> <p>4. --- Adverse Possession — Good Title. The title fully vested by such adverse possession for the statutory period can be quieted as against the daughter in a suit by the father’s guardian.</p> <p>5. -Adverse Possession — Affirmative Rights. Such adverse possession and the operation of the statute .of limitations created a title which can be used either offensively or defensively.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Lease — Oil-and-gas Land — Non-user—Cancellation. In an oil lease the lessors granted to the lessees the exclusive right, for five years, to enter upon a tract of land and drill for oil, for which a small cash consideration was paid, and the lessees-were to deliver, in tanks, to the lessors, one-eighth of the oil produced, and it was provided that if oil in paying quantities was discovered the right of the lessees to operate should con-] tinue as long as it was found in paying quantities, and when; abandoned for such purposes the grant should cease and b4 no longer binding on either party. The lessees drilled five wells, in which oil was found, and cased them, but the lessees claimed that the prevailing prices of • oil of the kind and quality found did not warrant operation, and so the wells were capped and no oil was ever pumped from them. In this action, begun more than five years after the execution of the lease, it is held that the lessors were entitled to a cancellation of the lease.</p> <p>2. -■ Right of Lessee to Remove Machinery and Fixtures, In the lease was a provision giving the lessees the right to remove any machinery and fixtures which it might place on the premises. Under this provision it is held that the lessees are entitled to remove the casing which it placed in the wells drilled and which it found could not be operated with profit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Discharged—When. Where no evidence is offered to the contrary, the trial court is justified in sustaining a motion to discharge land from an attachment made by a stranger to the action on the ground that he is the real owner although the record title is in the defendant, where the motion is supported by the affidavits of the claimant and the defendant that prior to the levy the defendant sold the land to the claimant and executed a deed which by mistake described another tract instead of that intended to be conveyed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Removal of Causes — Failure Other Than on Merits — Not Res Judicata. The- removal of a cause from a state court to a federal court does not so invest the federal court with jurisdiction of the subject matter as to preclude the plaintiff from again suing-upon the same cause of action in a state court; and the provisions of section 22 of the code apply to an action which has been commenced in a state court, been removed to a federal court, and has there failed otherwise than upon the merits.</p> <p>2. Evidence — Written Instrument — Interpretation for Court. Where a written instrument has been offered in evidence which the court should have interpreted by proper instruction but erroneously submits its interpretation to the jury, and it clearly appears that the -jury have given to such instrument a correct interpretation, the error in submitting the question to the jury is not ground for reversal.</p> <p>3. Contributory Negligence — Pleadings—Instructions. Where-a passenger of a street railway sues to recover for personal injuries alleged to have been caused by the negligence of the railway company, an answer which alleges as a separate defense that the plaintiff’s injuries were caused by her own act in stepping from the car upon- which she was a passenger while it was in motion sets up a plea of contributory negligence and invites an instruction upon the doctrine of contributory negligence, unless there is an absence of any proof in support of such defense.</p>

<p>Appeal from Rush district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Conversion—Mortgaged Property — Bate of Interest on Judgment. The holder of a note and chattel mortgage made to secure the same sued for the wrongful conversion of the mortgaged property and rightfully recovered a judgment for the amount of the note up to the day of trial, including the rate of interest specified in such note, 10 per cent. Held, that such judgment can under sections 4347 and 4348 of the General Statutes of 1909 bear only 6 per cent interest.</p>

<p>Appeal from Hamilton district court.</p>

STATEMENT. This action is to recover commissions claimed by the plaintiff, Hillyard, a real-estate agent and broker at Lakin, Kan., from Banchor, the defendant, landowner, of Boston, Mass., and also the amount of a payment advanced upon the contract for the purchaser, whose claim, if any, had been assigned to the plaintiff. Judgment was rendered for the amount of the advance payment, but the claim for commissions was not allowed. Both parties appealed.

<p>Appeal from Neosho district court.</p>

<p>Appeal from Osage district court.</p>

<p>Appeal from McPherson district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Allen district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — •■Custody of Minor Child. In determining the custody of a child his welfare is the paramount consideration. Even parental love must yield to the claims of another, if after due judicial investigation, it is found that the highest good of the child requires it.</p>

<p>Appeal from Sumner district court.</p>

<p>Appeal from Johnson district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Jackson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal LAW' — “Speedy Trial”- — Continuances — Discharge When. Under section 221 of the criminal code, providing that if a person under indictment or information be not brought to trial before the end of the third term of the court in which the cause is pending he shall be entitled to be discharged unless the delay happened on his application or be occasioned by want of time to try the cause at such third term, it is not essential that an application be specifically for delay in order to forfeit the right to a discharge. It is sufficient if an application on the .part of the defendant necessarily and directly cause the delay to happen.</p> <p>2. --- “Speedy Trial," “Application” Defined. The word application as used in the statute referred to signifies means to accomplish an end and denotes affirmative action, not passive submission.</p> <p>3. - “Speedy Trial” — Delay on Defendant’s Application. In this case the defendant interposed an objection to the authority of a qualified judge pro tem. to try him under circumstances rendering a postponement of the trial beyond the term inevitable. Held, the delay happened on the defendant’s application.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Quo Warranto — “Soldiers’ Preference Law” — Civil Service Examination. The statute requiring certain appointments im cities operating under the commission form of government to be made from a certified list of candidates who have excelled in a civil service examination is not limited in its operation by the earlier statute requiring the appointment of an ex-soldier whenever one who is competent is an applicant for a position in the public service; as to any office covered by the later law an ex-soldier to be eligible for appointment must have taken the examination and been placed upon the certified list.</p>

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

<p>OPINION DENYING A REHEARING.</p> <p>HEADNOTEBY THE REPORTER.</p> <p>Insurance — Attorneys’ Fees. The judgment in this case (ante, p. 367), allowing attorneys’ fees in an action on an insurance policy covering rents of real estate affirmed. Rehearing denied.</p>

<p>HEADNOTEBY THE REPORTER.</p> <p>Highways — County Commissioners May Act as Viewers. Under the statute providing for the appointment of viewers of a public road the members of the board of county commissioners may themselves act as viewers without appointing anyone else for the purpose.</p>

<p>Appeal from Lyon district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>ORDER FOR A REHEARING.</p> <p>HEADNOTEBY THE REPORTER.</p> <p>Salaries of Clerks of District Court's. In Wilson v. Edwards County, ante, p. 422, a rehearing is granted and it is ordered that all parties who may he affected by the result of the action, whether parties thereto or not, may file briefs in the case.</p>

<p>Appeal from Miami district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Devise by Husband of all His Property — When Invalid. A husband can not devise or bequeath away from his wife more than one-half of his property without her consent, and a will purporting to give the whole of his lands to persons other than his wife, when her consent has not been given, will not operate to transfer or affect the half interest to which she is entitled.</p> <p>2. - Law Makes Election when Widow Fails to Elect. A widow may elect whether she will accept the provisions made for her in a will executed by her husband or take what she is entitled to under the statute of descents and distributions, but if she fails to make an election the law makes one for her, and, therefore, her failure amounts to an election to take the share she would have taken if her husband had died intestate.</p> <p>3. - Failure of Widow to Contest or Elect — Limitation of Actions. In such a case the fact that she did not contest the will within the period allowed for contest in sections 19 and 20 of the act relating to wills (Gen. Stat. 1909, §§ 9795, 9796), and the further fact that she did not elect whether she would take under the will or under the statute, will not bar or preclude her from claiming and defending her interest and share in her husband’s property.</p>

<p>Appeal from Marshall district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Declaration of Person Since Deceased. Declarations made by a person since deceased against his pecuniary or proprietary interest concerning facts within his knowledge, which are material and relevant to the issue, are admissible in evidence although not a part of the res gestse, and although the declarant was not a party nor in privity with a party to the action.</p> <p>2. -Same. The statement of the holder of promissory notes to one of the joint makers that “the notes are settled and paid so far as you are concerned” is not material evidence for such joint maker in an action for contribution by another joint maker who gave a new note for the indebtedness, which he afterward paid.</p>

<p>Appeal from Osborne district court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury — Challenge to Array — Refused—Not Error. Under the law relating to jurors in counties having a population of 100,000 or over (Gen. Stat. 1909, §§4630-4639), requiring the jury list to be revised each year, it was not error to overrule a challenge to the array on the ground that such revision had not been made, it appearing that several hundred names of competent jurors still remained in the box.</p> <p>2. Riparian Rights — Accretion—Reliction—Avulsion. A deed describing land as beginning at a point on the bank of a navigable river, running thence along the river bank, presumptively carries with it the rights of accretion and reliction, but if the land adjoining the bank has been recently lost-by avulsion such deed will not estop the grantor from subsequently claiming such land upon its reappearance otherwise than by natural accretion or reliction. Land added to the bank by accretion or reliction unaided by artificial means belongs to the grantee.</p> <p>3. - “Avulsion” Defined. To constitute avulsion along the Missouri river bordering upon Kansas, the bank must be. destroyed or removed suddenly, visibly, rapidly, violently, in substantial quantity, and in a manner unusual to that river.</p> <p>4. -Same. To constitute avulsion it is not essential that the land torn away be removed intact so as to be capable of location or identification.</p>

<p>Appeal from Stanton district court.</p>

<p>Appeal from Labette district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Specific Performance — Oral Contract — Statute of Frauds. Where a contract has been made in writing for the-purchase and sale of real estate, which provides that the-purchaser may pay the entire purchase price in cash or may assume the payment of a mortgage as a part of such purchase price, and where thereafter the seller, on request therefor, refuses to pay off the mortgage, preparatory to closing the transaction, an oral agreement between the parties that the purchaser will assume the mortgage does not constitute a new contract.</p> <p>2. - Same. In such case, the oral agreement that the-purchaser will elect to close the deal upon the alternative provision of the option, does n.ot render the written contract, unenforceable under section 6 (Laws 1905, ch. 266, § 1, Gen. Stat. 1909, § 3838) of the statute of frauds and perjuries.</p> <p>3. - Specific Performance — Deed to Third Party — Pendente Lite. In an action for the specific performance of a contract to sell and convey land, it constitutes no adequate defense if the defendant proves that subsequently to the commencement of the action he has executed, acknowledged and delivered a deed to another for the same land.</p> <p>4. Deeds — Presumption as to Time of Delivery. A deed purporting to convey land, in the absence of evidence as to the time of delivery, will be presumed not to have been delivered prior to the date of acknowledgment.</p> <p>5. -Purchaser Pendente Lite. One who accepts a deed to such land after the commencement of such action is a purchaser pendente lite and his title to the land is subject to the result of such action.</p>

<p>Appeal from Doniphan district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Parol Evidence Admissible to Vary Memoranda on Bank Cheek. The general rule that parol evidence can not be received to vary the terms of a written contract does not apply to a bank check, given in payment for property, containing a recital of the consideration for which it was given, unless the parties understood and intended that the check should contain the final contract between them for the sale of the property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compromise and Settlement — Payment—Mistake—Recovery. An overpayment made by mistake upon an amicable settlement of an account may be recovered back, and this is especially true when the parties were not upon equal terms as to knowledge concerning the items included in such settlement.</p>

STATEMENT. This is an action to recover damages for the death of the plaintiff’s husband caused by the alleged negligence of the defendant. Marple was walking east on the north side of Laurent street in Topeka. About the time he reached the curb on the west side of Kansas avenue an electric street car approached the crossing of Laurent street running south on the avenue.

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>.1. Judgments — Trespass to Real Estate — Tort—Contract. A judgment for damages for a trespass to real estate where the tort benefited the tort feasor’s estate to the full extent of the actual damages recovered by the injured party is not a judgment upon a tort pure and simple, but upon a cause of action so far contractual as to bring the judgment within the protection of the provisions of the federal constitution against legislation impairing the obligation of a contract.</p> <p>,2. Stockholders — When Liability Attaches. Where such a judgment was rendered against a corporation June 30, 1906, upon a cause of action which accrued prior to 1899, neither . the statute of 1898 (Laws 1898, ch. 10, §14), which took effect January 11, 1899, changing the remedy of a stockholder from a single action to an action by a receiver; nor the act of 1903 (Laws 1903, ch. 152) repealing all provisions for enforcing the liability of stockholders; nor the constitutional amendment of 1906 limiting the stockholder’s liability to the amount of the stock owned by him, deprived the judgment creditor of the right to maintain a suit on such judgment against a stockholder under the statute as it existed at the time the cause of action accrued.</p> <p>3. -Same. The right of the judgment creditor in the case mentioned in the preceding paragraph to maintain such an action is preserved by the general saving clause (Gen. Stat. 1909, § 9037, subdiv. 1), which provides that the repeal of a statute shall not affect any right which ‘ accrued under it, although no action or proceeding was commenced for the enforcement of such judgment until after the repeal of the statute.</p> <p>4. Stockholder’s Liability — Revivor of Judgment Unnecessary. The revivor of a judgment against a corporation is unnecessary in order to maintain a suit to collect the amount thereof from a stockholder. It is still evidence of the validity, character and amount of the creditor’s claim.</p> <p>5. Liability — Of Estate of Deceased Stockholder — Heirs. The estate of a deceased stockholder is liable upon stock held and owned by him in the same way and to the same extent that he was liable in his lifetime. The heirs at law or devisees of a deceased stockholder are liable in a suit upon a judgment rendered against the company after the stockholder’s death to the extent of the property inherited by or devised to them.</p> <p>6. Judgment — Execution—Action Against Stockholder — Laches. A judgment was rendered against a corporation June 30, 1906. Execution issued February 15, 1907, and was returned unsatisfied for want of property on which to levy. Held, (1) there was no unreasonable delay in the issuance of an execution; (2) the right to maintain an action against a stockholder upon the judgment accrued upon the return of the execution unsatisfied; (3) the judgment creditor had three years thereafter in which to begin an action to enforce the judgment against a stockholder; (4) the claim of a judgment creditor of the corporation against the estate of a deceased stockholder is not provable in the probate court until it has been reduced to judgment against the estate, and the limitation contained in the executors’ and administrators’ act has no application to such a claim. •</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutes — Creating Entomological Commission — Constitutional. The statute creating the entomological commission and providing for the extermination of San José scale and other orchard pests (Gen. Stat. 1909, §§ 8727-8739) is a valid exercise of the police power.</p> <p>2. -Same. The statute is not invalid because it delegates to the commission the power to declare the existence of conditions which- call into operation the provisions of the statute.</p> <p>3. -Same. The legislature of the state may declare that to be a nuisance which is detrimental to the health, morals, peace or welfare of its citizens, and may confer power upon local boards or tribunals to exercise the police power of the state when in the judgment of such tribunals the conditions exist which the legislature has declared constitute such nuisance.</p> <p>4. -Same. Nor is the statute in question unconstitutional on the ground that it provides for taking private property without due process of law. It rests wholly with the legislature whether, in the exercise of its power of police regulation, the individual whose property is destroyed shall receive compensation ■ therefor.</p> <p>5. -Same. The statute is designed to protect and promote the horticultural interests of the state and, in effect, makes all orchards, trees, shrubs and plants infested with the pests mentioned in the statute public nuisances, and being a proper exercise of the police power is not unconstitutional because it authorizes the expense of abating such nuisance to be charged against the property of the owner.</p> <p>6. - Same. Nor is the statute unconstitutional because no separate tribunal is provided by which the owner may contest the amount of expense which shall be charged against his property. The act requires notice to be served upon the owner stating the amount of expense incurred by the commission and notifying him that unless such expense be paid within twenty days the same will be taxed against his property. Held, that, ample notice being provided which gives the property owner an opportunity to question the amount of such expense in an action in any court of competent jurisdiction before his property is affected, he is afforded due process of law.</p> <p>7. -Abating Nuisance — Expenses — Lien—Constitutional. The lien given by the statute upon premises for the expense of abating such nuisance thereon is not for a delinquent tax but for an indebtedness due the county, and the provision authorizing such’expense to be collected as other taxes are collected is not obnoxious to any constitutional inhibition.</p>

<p>Appeal from Reno district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — School Board — Extra Work — Evidence. In an action to recover for extra work and material the petition alleged that the basement of the building in question was made one foot and four inches deeper than called for by the plans ánd specifications. A blue print called “plans” was offered in evidence, the witness stating that this was the plan on which he made the bid and by which he worked, and after-wards that the basement was made three feet deeper than called for by the blue print. An objection to this blue print on the ground that it was incompetent, irrelevant and immaterial, no proper foundation being laid, was overruled: Held, that as it did not appear whether any other portion of the plans and specifications had reference to the basement, and as the defendants might have required the production of them all, the ruling was proper.</p> <p>2. Evidence — Demurrer — Directing Verdict. When the evidence shows without dispute that the plaintiff is entitled to recover and the defendant elects to stand upon a demurrer to the evidence, held, that it is proper to direct a verdict for the plaintiff.</p> <p>3. Contracts — Extra Work — Ratification by School Board. When a school district, through its board, contracts for the erection of a building and one of the board directs the basement to be made deeper than called for by the plans and specifications, assenting to a suggestion by the workman that such work will have to be paid for and the different members of the board are upon the work from day to day overseeing and watching the same, and the building with the basement so deepened is accepted and used for a year or more by the district for school purposes, held, that the district is liable for the reasonable value of such extra work although no contract was made therefor by the board in session.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Misconduct or Jurors — Not Prejudicial. While the evidence was being presented at the trial of the defendant for murder one of the jurors drew an inaccurate sketch of the scene of the homicide in his notebook, so that he could follow the movements of the principals, and others, as detailed by the witnesses, more intelligently. When the jury entered upon its deliberations it felt the need of a sketch to visualize the scene, and no other being available, commenced to draw one, when the juror submitted his, which was used for the purpose. Held, a new trial will not be granted for misconduct of the juror or of the jury, or because the jury received “evidence, papers or documents not authorized by the court,” as provided for in section 275 of the code of criminal procedure.</p> <p>2. - Same. The jury agreed on a verdict of guilty but were unable for a time to agree on the degree of the crime, some favoring murder in the second degree and some favoring manslaughter. A letter to the judge was written asking all clemency for the defendant that could be given in second degree murder, and it was agreed that if a verdict of that kind were reached the letter would be signed' and sent to the judge. A ballot was then taken, resulting in a unanimous verdict of murder in the second degree, which was duly returned, and the letter was signed and delivered as proposed. Held, the verdict will not be set aside for misconduct of the jury, or because it was reached by artifice, or because it represents other than a fair expression of the opinion of the jurors.</p> <p>3. - Impeaching the Verdict. On the hearing of the motion for a new trial the defendant, to impeach the verdict, offered in evidence the affidavits of those jurors who, before the letter was written, voted for a verdict of manslaughter, which affidavits stated that the jurors making them were induced to vote for murder in the second degree because- they believed the judge had power to lower the degree of guilt to manslaughter. Held, the court properly refused to consider the affidavits.</p> <p>4. Trial — Conduct of Trial Judge — Examining Witnesses. The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and whenever in his judgment the attorneys are not accomplishing the full development of the truth it is not only his right but it is his duty to examine and cross-examine the witnesses. The presumption is that this liberty will be honorably and impartially exercised in the interest of justice, and in this case it was not abused by the trial judge.</p> <p>5. Private Stenographer — Refused—Not Prejudicial. The court refused an application made near the end of a long trial to permit the defendant to make use of a private stenographer to take down such portions of the evidence and proceedings as he might desire. No showing is made and no claim is made that the official record subsequent to the application is incorrect, incomplete or inadequate to the defendant’s needs, or that he was embarrassed or hindered or caused any discomfort in completing his defense, or in presenting his motion for a new trial or in preparing his appeal. Held, that prejudice will not be presumed and that the error committed was without prejudice to the defendant’s substantial rights.</p> <p>6. Self-defense — Instructions. The law of self-defense can not be presented, illustrated and applied all at once in a single statement to the jury. There must be arrangement and sequence in the presentation of declaration and limitation, proposition and qualification, statement and supplementary statement. It is not necessary that such a presentation conform to the rules of rhetoric or that any particular order be followed. It is sufficient if all the necessary statements clearly appear, and when they do so appear they will be read together for the true scope and sense of each.</p> <p>7. —-Same. In this ease instructions upon the law of self-defense, modeled in part upon those given in the case of The State v. Bohan, 19 Kan. 28, are held to be defective in form, but not, therefore, so erroneous or misleading as to require a reversal of the judgment.</p> <p>8. Malice — Instructions. Instructions upon the subject of malice considered and held neither incorrect nor insufficient because the expression “malice express or implied” was used without discussing the distinction between express malice and implied malice, and without stating that actual malice is always intended.</p> <p>9. Verdict — In Open Court — Recess. It is not indispensable that the verdict in a murder case be returned in open court as provided in section 238 of the code of criminal procedure. It may be received during a recess of the court if the forms prescribed for preserving its authenticity are observed and the defendant is not deprived, against his will, of opportunity to protect his substantial rights.</p> <p>10. -Absence of Judge — By Consent. A defendant on trial ' for murder may lawfully waive the presence of the trial judge at the return of the verdict, and he does so by an agreement made in open court, with the consent of the court, that the verdict may be received by a designated attorney in the ab- ■ sence of the judge, when the proceeding is in all other respects regular.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Nuisance — Error in Description of Place Immaterial. In a prosecution for the maintenance of a liquor nuisance an error in the information in describing the place is immaterial, where if the erroneous portion is rejected there still remains an accurate and definite description, and no actual prejudice results to the defendant.</p>

<p>Appeal from Montgomery district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Shawnee County Jail — Maintenance. Under the governing statute the jail of Shawnee county is to be maintained at the expense of the county and the county is liable to the sheriff for • necessary repairs and for necessary supplies, such as furniture, bedding, light, heat, water, disinfectants, soap, toilet necessities, mops, brooms and matches.</p> <p>2. -Same. Such repairs and supplies are not included within the term “boarding and lodging,” for which a specific compensation is fixed by the statute.</p> <p>3. - Same. The rooms occupied by the jailer, in pursuance of the statute, constitute a part of the jail, and the county is liable for the maintenance of the entire institution.</p> <p>4. Shekiff’s FEES' — Attenda/nce on Probate Court. The sheriff is entitled to a fee for attendance upon the probate court, although he may have been absent from the court room several times during the hearing of a case, where it appears that he was within calling distance all the time, ready to respond to any request, direction or order made to or upon him by the court or the counsel engaged in the trial.</p> <p>5. -Mileage. Under the statutory provision fixing the compensation of the sheriff for travel in serving or endeavoring to serve process the mileage is to be computed on the round trip basis, giving him ten cents per mile or fraction of a mile ofi the whole journey. He is not entitled to the full fee for the fraction on the going trip and for another fraction on the return trip.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Inducing Witness to Absent Himself — Consent. In a prosecution under a statute making it a misdemeanor to induce a witness to absent himself from a trial, where the information charges that such result was accomplished by abducting and carrying away the witness, proof that the witness consented to being taken away is not fatal to a conviction.</p> <p>2. —¡- To be a “Witness” no Subpoena Need be Served. In order that one shall be deemed a “witness” within the meaning of that statute it is not necessary that he shall .have been served with a subpoena.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Redemption — Property Sold Under Execution — Abandonment— Evidence. In determining whether property sold upon execution has been abandoned or is not occupied in good faith cases may arise where the court should consider, with the' other circumstances, the failure of the owner to pay taxes or to keep the property insured, but it cannot be said that the failure to do either or both compels such a finding, which is necessary before the court has power to shorten the period of redemption. (Civ. Code, § 476.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insane Persons — Discharged from, Hospital — Rights of Citizenship. A person adjudged to be insane and committed to a state hospital for the insane, who was afterward discharged from the hospital as improved, is not, by reason of such discharge, entitled to the entry of an order restoring him to his rights as a citizen.</p> <p>2. - Same. Only such patients as have been discharged from the hospital as cured, or are not insane, are entitled to an order of restoration.</p> <p>3. -Same. The term “discharged as improved” is not the equivalent of “discharged as cured” within the meaning of the latter term as used in section 8484 of the General Statutes of 1909.</p>

Appeals from Leavenworth district court. STATEMENT. ' In the foregoing cases the attorney-general of the state and the county attorney' of Leavenworth county filed petitions in behalf of the state, the averments in ■each being substantially the same.

STATEMENT. This is an action by a property owner to enjoin- j;he mayor and commissioners-of the city of Topeka from entering into a contract for paving. The court made very full findings, from which the following material facts are deduced: Topeka is a city of the first class, governed by a mayor and four commissioners under the-commission form of city government.

<p>Appeal from Jackson district court.</p>

<p>Appeal from Dickinson district court.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Ellsworth district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Information — Indorsing Names of Witnesses. It is not error - to permit the county attorney to indorse the names of additional witnesses on the information two days before the trial..</p> <p>2. -Knowledge of Complaining Witness — Instructions. Where there is no evidence that the complaining witness was without information of the facts stated, the court properly refused an instruction that the jury could only find the defendant guilty of offenses concerning which the complaining-witness had knowledge when the information was filed.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Intoxicating Liquors — Verified Information — Sale to One Not Mentioned in “Bill of Particulars.” In a prosecution for violating the prohibitory law, the fact that a sworn statement showing a sale to one person accompanies an information positively verified does not confine the issue to the sale to such person; but a conviction may be had on a sale to anyone, since, the information being positively verified, such accompanying statement is unnecessary and immaterial.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Woodson district court.</p>

<p>Appeal from Graham district court.</p>

<p>Appeal from Barber district court.</p>

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