Volume 9 — Kansas Reports

Ei-ror from Douglas District Court. Tiijb action below was commenced by Isaac M. Ruth against George Ford, Rachael H. Ford, Witter S. McCurdy, Gurdon Grovenor, and Wyllys King. The object of the action was to establish Ruth’s title to the undivided half of a certain thirty-acre tract of land. King answered, and by a cross-petition against his co-defendants set up title in himself to the undivided half of twenty acres of said land.

Error from Miami District Court. Replevin, brought by E. Á. Guptil and Charles JJinton, ¡as partners, against David Anderson, sheriff of Miami county, to recover certain personal property described in the petition .as follows: “About 300 ‘lbs. of fresh pork, worth $19.50; .about 700 lbs. of fresh beef, worth $45.50; 100 lbs. of smoked hams, worth $12.50; 125 lbs. smoked shoulders, worth $18.00; one bbl. of pickles, worth $12.00; 60 lbs. -dried beef, worth $9.60; 100 lbs. of…

Error from Saline District Court. Two ACTIONS, brought by the K. P. Railway Companyr one against Culp, and the other against Prescott, to quiet plaintiff’s title to 'certain lands, and remove pretended tax-titles held by defendants, and which plaintiff claimed were clouds upon its title. Culp claimed 160 acres of land in section 31, town 7 south, range 4 west; and Prescott claimed 160 acres in .section 3, township 13 south, range 1 west.

Error from Shawnee District Court. Branner sued Stormont & Bailey, physicians and surgeons, for alleged malpractice in the treatment of a broken leg. The action was tried at the June Term 1869, before T. R., judge pro tern., and a jury. The jury found for the defendants. New trial refused, and judgment on the verdict. Branner brings the case here by petition in error. The facts, and the instructions given and refused, are sufficiently stated in the opinion. 1.

Error from Anderson District Court. Action brought by Foster & Foster, as plaintiffs, against J. M. Silvers, A. B. Harper, Frank R. Shryock, A. F. Royer, and Ellridge L. Hawk. The plaintiffs counted upon a promissory note of which the following is a copy: “$375.

This case involves a single question of practice. The State undertook to appeal from a decision of the district court made in a criminal cause. The appellees having failed to appear the question is, has this court jurisdiction of the case?

Error from Neosho District Court. In an action to foreclose a mortgage, executed by Susan F. Hovey and her husband, judgment was rendered in favor of .Johnson for the sale of the mortgaged premises consisting of eighty acres of land in Allen county, and lots No. 7 and 9, in block 13 in the city of Osage Mission, in Neosho county. . An order of sale was issued to the sheriff of Allen county, but for want of bidders the land there situate was not sold.

Error from Crawford District Court. Proceedings under Article 13 of the Justice’s act, cli. 81, Gen. Stat., to recover the possession of 160 acres of land, to which plaintiff Price claimed the right of possession.

Error from Franklin District Court. Action on a delivery or forthcoming bond. Weatherwaxbrought suit against Johnson, and sued out an order of attachment, A4rhich aatis executed by the sheriff of Franklin county. The attached property consisted .of a lot of cattle, appraised at $442. To release this property Johnson executed to and in favor of the sheriff a forthcoming bond, Avith Thompson Jones, as surety.

Error from Bourbon District Court. Mitchell and two others brought their separate suits • upon three several promissory notes. Except as to the amount, the payee, and day of payment, the notes were alike. The following is a copy of one of the notes: “$677.81.

Error from Marshall District Court. The action below was commenced by plaintiff in error against the director, clerk and treasurer of School District No. 17, of Marshall county, to enjoin them from-issuing certain school district bonds. The injunction was refused, and the plaintiff brings the case here, where it was disposed of upon a question of practice.

Error from Bourbon District Court Defendant in error brought her action for a divorce, for the custody of the children, and for alimony.

Error from Bourbon District Court. Menhart filed an affidavit before a justice of the peace ■charging one J. R. with having threatened to commit injuries to the person of complainant. The proceedings were under ¡art. 2 'of the criminal code. R. was arrested, examined, and «discharged; and the justice thereupon adjudged Menhart liable ifor the costs of the proceeding, taxed the costs against him, ¡and gave judgment therefor.

Error from Shawnee District Court. This case involves only a construction of the statute limiting the time for bringing civil actions, ancl for the purposes of the decision, and the grounds therefor, the facts are sufficiently stated in the opinion. ■ The question tvas, whether the action arose ex contractu, or ex delicto. The district court held that it arose ex delicto, and was barred. The plaintiff, excepted, and brings the case here by petition in error.

Error from Crawford District Court. Copeland brought replevin before a justice of the peace to recover possession of a two-year-old heifer. The case was taken to the district court by appeal, and was tried at the September Term 1871. Verdict and judgment for defendant, and plaintiff brings the case here on error. No briefs on file.

Error from Shawnee District CoxCrt. Gekman brought suit before a justice of the peace to recover' a balance due on a promissory note, the costs and fees of protesting said note, and the six per cent, damages given by § 14,. ch. 14, Gen. Stat. The following is a copy of the note: “$600.

Error from Brown District Court. Defendant in error was the divorced wife of Thomas Anderson; and she brought this action to set aside a deed of the homestead, made by said Thomas and herself before the divorce, to Daniel Anderson, plaintiff in error. She alleged that she executed the deed under duress. Her former husband, and Daniel, were joined as defendants. The case tried at the August Term 1871.

Error from Marshall District Court. The opinion contains a/ sufficient statement of the fácts to a proper understanding of the questions determined. The case was tried at the October Term 1870. The court made separate findings of fact and of law, and gave judgment in favor of Schmidt, plaintiff below. Brumbaugh excepted, and a new trial being refused he brings the case here on error. 1.

Taylor Horne was charged by information with murder in the first degree, and convicted of murder in the second degree. He was charged with the killing of James Curran, at Osage Mission, in Neosho county, on the 15th of December 1870. The case was tried at the April Term 1871. An application for a change of the place of trial was made by defendant, and refused by the court!

Error from Leavenworth District Court. Action upon an undertaking given by defendants as sureties in an action of replevin. The undertaking, and the facts in the case, arc 'set forth in the opinion. The action was tried at the February Term 1871, and judgment was given in favor of the defendants. New trial refused, and plaintiff brings the case here on error. 1. The court erred in refusing to permit the plaintiff to introduce any evidence.

M'ror from Leavenworth District Court. The charter of the Kansas Central Railway Company was filed in the office of the Secretary of State June 1st, 1871.

Error from Atchison District Court. Challiss brought his 'action against Pcvrker, as Treasurer of the County of Atchison, to enjoin the collection of speciál assessments of $11.40 each on seven different lots levied by the city council of the city of Atchison by ordinance as the cost* of constructing a sidewalk in front of said lots. A temporary injunction was granted. The action was tried at the March Term 1871.

Error from Coffey District Court. Kennedy & Pieeatt, as plaintiffs, brought suit in the district court against Henderson & Garnick on a promissory note made and executed by the latter. The amount claimed by plaintiffs, principal and interest, was $235.10. Defendants demurred, “ for that it appeared on the face of the petition that said district court has no jurisdiction of the subject of said action.” The case was heard on this demurrer at the May Term 1871.

FJrror from Atchison District Coivrt. Tomlinson presented to the board of commissioners a bill or claim, as follows: “ The County of Atchison, Kansas, to P. M. Tomlinson, Jailor, Dr., For supplying prisoners committed in criminal actions, as follows.” Then foil oat the names of thirty prisoners, the date and number of days’ confinement of each, shoAving an aggregate of 536 days, “ at $2 per day, $1,072.” This claim Avas SAvorn to by Tomlinson on the 31st of October 1870, and…

Error from Labette District Court. Replevin, brought by Mary Fuller to recover possession of a span of horses, double harness, and wagon. The pleadings are sufficiently stated in the opinion.

<p> Appeal from Osage District Court. </p> <p>Complaint in writing, and on oath, was made before a justice of the peace by Geo. Herold, alleging that W. M. Stand-ford and Henry Her old, “on or about the 15th of November 1870, at the county of Osage, did trespass on the N.E.J of sec. 3, township 17 south, range 16 east, by cutting down trees and making rails, and carrying said rails away, being on land not their own, and that the parties charged have no interest or right therein.” The parties were arrested, tried and convicted, and appealed to the district court. The county attorney dismissed the action as against Standford. An amended complaint was filed against Herold, and the case against him was tried at the October Term 1871. In the amended complaint the ownership of the land was alleged to be in the United States, and that said land was a part of the Sac and Fox Diminished Reservation. Verdict of guilty. New trial refused, and judgment that defendant pay a fine of ten dollars and costs. Herold brings the case here by appeal. The record contains the instructions of the court, but no part of the evidence. The character and ownership of the land, as shown by the instructions, and the nature of certain testimony admitted on the part of the prosecution, are stated in the opinion.</p> <p>1. The court charged the jury in effect “that if the defendant within the proper time and place carried away rails off another man’s land then they should find the defendant guilty.”</p> <p>The defendant insists that such an act would not necessarily constitute a public offense. Such a definition of an offense against the public would violate every principle of right and justice. Suppose the rails mentioned had been the property of the defendant ? suppose he had authority from the owner thereof to remove them? suppose he had purchased them of the reservees, and was moving them off the reservation? all of which he might lawfully do, and still be liable to conviction, under the charge of the court. It is plain that the legislature intended more should be proved than what the mere language of the statute expresses. A complaint in the language of the statute would certainly not be sufficient in a civil action at common law, nor under the code. Should it be less definite in a criminal charge ?</p> <p>2. The court in effect also charged that the Sac and Fox Reservation is a person within the meaning of the statute, or as afterwards charged, that the United States is a person within the meaning of the statute. Section 314 of the crimes act, (ch. 31,) only defines the term person within the meaning of that act, and can have no application to any other offense than those therein described. Section 321 of the criminal code, and subdivision 13, of §1, ch. 104, Gen. Stat., provide that the word person may, not shall, mean a body politic. If it did mean a body politic as under this act (ch. 113, Gen. Stat.,) when enacted in 1855, (ch. 160,) and re-enacted in 1859, (ch. 208,- Comp. Laws,) then it included the Territory and State of Kansas, as well as the United States. But the legislature did not so understand in 1861 when they passed the act (ch. 207, Comp. Laws,) to prevent trespasses on school lands. If the term has come to mean more than formerly, when did the change take place ? That this act never was intended to protect the property of the United States we may infer from several reasons: First, an act that would punish persons with treble damages, and a fine and imprisonment, for cutting grass on government land, where millions of acres are made of no use whatever except as, fuel for the prairie fires, would seem to be ridiculous. Second, the government of the United States has the authority to, and has passed ample laws for the protection of its own territory. Brightley’s Dig., 77, § 9. Third, the United States has a remedy at common law for trespass committed against its property. Fourth, the term “person” in its usual acceptation would have no reference to the United States. Fifth, the legislature of 1861 must have understood this act as having no reference to public property.</p> <p>3. Another error is the declaration made by the court that for two years prior to the committing of the alleged offense the courts of the state had jurisdiction of this kind of offenses on. the Sac and Fox diminished reservation. It seems to us that § 1 of the Act of Admission, takes the reservation out of the State of Kansas, and prevents the state from interfering with the United States in making any regulation respecting these lands. Could this state punish a member of the Sac and Fox tribe for trespass on the reservation ? Could the United States government, or the Sac and Fox nation, bring a civil action under this statute for trespass on this reservation ? ■</p> <p>4. It was error in the court to instruct the jury that if they found the alleged trespass to have been committed on the Sac and Fox reservation, then it was a trespass on the lands of the United States. That this was not true we find by the terms of the treaty made with the Sac and Foxes, February, 1867, and ratified by the senate with amendments July 25th 1868; see 16 U. S. Stat. at Large, 495, by which allotments were made to resérveos. The defendant contends that as a legal principle the Sac and Fox diminished reservation is not the property of the United States to that extent that it could maintain a civil action for damages. Chief Justice Marshall said, in the case of Cherokee Nation v. The State of Georgia, 5 Peters, 16, “Though the Indians are acknowledged to have an unquestionable and heretofore unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government,” “they occupy a territory to which we assert a title independent of their will which must take effect in point of possession lohen their right ■of possession ceases.” Now by the terms of the treaty of 1867, as amended, the Indians had not as yet surrendered their possession to the United States at the time of the alleged trespass, but were in full possession as they ever had been except to that portion alloted to reservees or others.</p> <p>1. The information or complaint follows almost literally the language of the statute, which is sufficient as to statutory offenses; Wharton’s Am. Cr. Law, §§364 to 370; and our statute does not require the statute to be literally followed: § 108, crim. code, Gen. Stat., 838.</p> <p>2. The court did not charge “ That the Sac & Fox Reservation was a person, within the meaning of the statute.” The theory of the instruction is, that the lands of the Sac & Fox Reservation belong to the United States, and that the United States is a “person” within the meaning of subdivision 13, § 1 of ch. 104, and § 321, ch. 82 of General Statutes of 1868. That the U. S. own and have the title io the land of■ all Indian Reservations, though the Indians have the right of possession is well settled: Brown v. Bdmarcl, 3 Kas., 41. If this is correct, then the ownership was properly averred to be in the United States. Said ch. 113 is but the re-enactment of the territorial act of the same title, approved February 10, 1859: Comp. Laws, 896. This act took effect June 1st 1859, as also did “an act concerning the construction of statutes:” Comp. Laws, 839. Subdivision 13 of § 1 of the last-mentioned act reads: “The word person may be extended to bodies politic and corporate.” So that ever since the treble-damage trespass act has been in force, the word “person” has meant the same as now.</p> <p>The fact that the U. S. government has authority, and has passed laws for the protection of its own property, would not prevent the State of Kansas from protecting it too. The U. S. has not exelusive jurisdiction over lands lying in this state merely because it owns the land.</p>

Error from Wyandotte .District Court. The action below w£ts commenced in replevin by Bruce to recover the possession of 4,000 railroad ties and 150 cords of wood cut and manufactured by Buhe from timber standing and growing on the W.J of S.W.ij of sec. 29, and E.J of S.E.J of sec. 30, township 10 south, range 24 east, in Wyandotte county.

Error from Shawnee District Court. The Hartford Fire Ins. Co.' applied to the auditor of state in 1867 for authority to transact the business of fire insurance in Kansas under the laws of this state. Such authority was issued, and an annual renewal certificate was issued for the years 1868, 1869, and 1870, respectively. Such certificate for 1870 expired on the last day of February 1871.

Error from Lyon District Court. Ejectment, brought by Hunt, who claimed to be the legal and equitable owner of the premises in controversy. Britton, answered, admitting possession, but denying plaintiff’s title and right of possession. The case was tried at the December Term 1870, upon an agreed statement of facts, a sufficient statement of which appears in the opinion.

<p>1. Default ; .Amending Pleadings. A petition is filed containing- two counts. Tlie defendant answers one count and demurs to tlie other. The demurrer is sustained, and the plaintiff obtains leave to amend his petition, and does so by re-writing it, making no change save in the prayer for the relief and afterwards obtains leave to reply to the answer, which he files. Held, that the defendant was not in default.</p> <p>2. Jury Trial; Might of Party. Where in a suit on a note and mortgage a personal judgment against the defendant is sought, and the answer sets "up payment of the note, and the reply traverses the allegation of payment, the defendant, in an issue made up, is entitled to a jury, and to refuse a demand therefor is error.</p>

Error from Douglas District Court. Action brought by Nichols, Kennedy & Co. to recover damages for cattle lost and injured through carelessness and negligence of the railway company. The petition alleged that the K. P. Ely.

Error from Anderson District Court. Isaac M. Euth was found dead in bed at Ms residence in the city of Lawrence, Douglas county, on the morning of April 27tli, 1871. His death was claimed to have been produced by means of poison.

Error from Leavenworth District Court. Henry D. Smith and fourteen other persons united as plaintiffs, and brought an action against the Board of Comity Commissioners, and Alexander Repine, treasurer of said county, to enjoin the collection of certain taxes levied upon their real property in and for the year 1870.

Error from Brown District Court. Trespass, brought by Bobbins to recover damages for injuries done to his growing crops by the cattle of Baher. The case involves the rights and liabilities of occupants of adjoining lands between whom there is no partition fence. The material facts are stated in the opinion. The alleged injury was committed in December, 1870.

Error from Leavenworth District Court. Dependant in error was county attorney of Leavenworth ■county during the years of 1869 and 1870. In August 1871 Brenoer brought suit in the district court for $1,287.50 for services rendered by him in 1869 and 1870 for his county,, at the request and instance of the board of county commissioners, in the action of “Randlett v. The Board of Go.

Error from, Atchison District. Court. Reicheniker was appointed by Sumner as his agent to sell sewing machines and musical .instruments. He gave a, bond, with E. S. Wills and J. S. Pierce as his sureties, for the faithful discharge of his duties as such agent, and that he would account for and pay over all moneys, etc. The action below was commenced by Sumner on said bond.

Error from Shawnee District Court. Action brought by Ortman to quiet his title to a certain, lot in the city of Topeka.' The case was tried before A. L. W., judge pro tern., at the June Term 1869.

Error from, Leavenworth Eistriet Court. Ejectment, brought by Mrs. Alice A. Thomas to recover the possession of Lot 15, Block 48, in the city of Leavenworth, and for the rents, issues and profits of said lot. Plaintiff claimed possession as owner in fee simple.

Error from Leavenworth Kistrict Court. Ejectment brought by Thomas to recover the possession of lot 24, in block 45, in the city of Leavenworth. The main facts are identical with those of -the case of Higginbotham v. Thomas, ante, p. 328.

Error from Leavenworth District Court. Injunction, brought by Mitchell to enjoin the collection of $468.05, including penalty and costs, levied as'taxes on a certain personal-property assessment for the year 1870. The board of county commissioners, sheriff, and treasurer of Leavenworth county, were joined as defendants. The action was tried at the September Term 1871.

Error from Doniphan District Court. Et.tza Ann Johnson brought her action against The City •of Atchison, alleging that she was the widow and sole heir at law, of George Johnson deceased, and that the said George, within the corporate limits of said city, in January 1870, .being then in full life, of good bodily health, and of sound mind, and while keeping the peace toward all men, and conducting himself in an orderly and quiet manner, was, by a crowd of men, consisting of…

Error from Atchison District Court. ■ The City of Atchison, as plaintiff, brought an action against Frank Smith, Louis Manley, Samuel C. King, John A. Martin,. John M. Price, and P. H. Wilbor. Smith and Wilbor were not served, and did not appear.

Error from. Wyandotte District Court. On the 3d of May 1871 Johnny calce commenced an action to foreclose a mortgage executed to and in his favor by Elizabeth Stover and her husband.

Error from Cherohee District Court. McClure brought his action in the district court for the purpose of having a certain title bond executed by him to and in favor of the Mo. Diver, Fort Scott & Gulf Did. Co. for eighty acres of land adjudged to -be void-, and to have the same and the record thereof canceled, as being a cloud upon his title. The land adjoins the city of Baxter Springs.

Error from Allen District Court. J. R. Rudisill recovered a judgment in the district court against Wm. C. Keith, which judgment remained unpaid and unsatisfied. Rudisill was indebted to Nelson E. Acers, and Acers brought his action against Rudisill in the district court, obtained an order of attachment, and caused Keith to be summoned as garnishee of Rudisill.

Error from, Bourbon District Court. Ejectment, brought by Shields against Miller, JPratel, and Rogers, to recover possession of 160 acres of land in Bourbon county. The case ivas tried at the December Term 1870, and a new trial granted under the statute. A second trial was had at the June Term 1871.

Error from Bourbon Distriot Court. Bledsoe sued Hyde for “ work and labor done and performed by said plaintiff for the defendant, and at defendant’s .instance and request.” Hyde answered that the work and labor sued for “was done for the United States, in mowing grass in the National Cemetery at Fort Scott; that said Hyde was the duly-appointed superintendent of said cemetery, and in the management thereof, and in making said contract with plaintiff, said Hyde acted solely…

Error from Anderson District Court. Defendants in error sued Alvey and one Cavender, before a justice of the peace, as partners, and joint makers of a promissory note. Both were duly served. Alvey did not appear, and plaintiffs, without further notice to him, dismissed their action as to Cavender, filed an amended bill of particnlars, declaring against Alvey alone on said note, and took judgment against him.

Error from Leavenworth District Court. Trespass, brought by Franks, against D. W. Houston and. James C. Fenlon, to recover the value of a stock of goods-taken and carried away.

Error from Leavenworth District Goivrl. Alvina Fry brought her action against Samuel E. Edwards and Mary A. his wife to compel them to specifically perform an alleged contract for the sale of a tract of land.

Error from Leavenworth, Listriet Gowrt. Action for false imprisonment, brought by Thiebold' against Gillett. The facts are sufficiently stated in the opinion.. The case was tried at the September Term 1871. The jury found for the plaintiff, and assessed his damages at $300.. New trial refused, and judgment on the verdict—and Gillett brings the case here on error.

Error from Allen District Court. Conrad brought his action to close up an alleged partnership, and to compel E[ottenstein to account, etc. Upon his petition, which was--, verified,-and upon-affidavits, he moved for and obtained the appointment of a receiver. Hottenstein answered, denying the partnership, and he verified his answer. The averments of the pleadings, the motions made and overruled, and the facts, are sufficiently stated in the opinion.

Error from, Coffey District Court. Ejectment, brought by Ellis Woodworth, to recover the-possession of 164 acres of land, and for the rents, issues and-profits thereof. The petition was filed October 6th 1870, and-alleged that Woodioorth was the legal owner, and entitled to-the possession of the premises described.

Error from Franklin District Court. Injunction, brought by Carrie R. Lathrop■ to restrain the-board of county commissioners of Franklin county from-executing the power conferred upon them by ch. 85, laws of 1871, (p. 202.) Secs. 1 and 3 of said chapter are as follows: “Sec. 1.

Error from Atchison District Court. In June 1870, May, Weil A Co. obtained a judgment against J. H. Ham and A. (¿. Monroe, partners as Ham & Monroe, and execution thereon was issued and returned unsatisfied. Said Monroe owned and occupied a quarter-section of land in Atchison county, as a homestead. In December 1870 he exchanged this quarter-section to a Mr. Rose, for a house and lot in the city of Atchison, and $1,600 to be paid in money.

Error from Miami Bistrict Court. Ejectment, brought by Iiobson, to recover the possession, of a quarter-section of laud in Miami county.

Drror from Johnson District Court. This action was commenced by plaintiff in error on the 6th of January 1871, to set aside and enjoin the collection of a tax amounting in the aggregate to $11,871.14, levied by the officers of said county upon the track, road-bed, right of way, depot buildings, machinery, rolling-stock, moneys, credits, and all other property of plaintiff in enw, and upon an alleged illegal and unauthorized assessment and valuation of .said railroad…

Error from I/yon Distinct Court. Crowe brought his action against the Railway Co. to recover damages for breaking and entering the close of the plaintiff, the-N.’W.-J of sec. 14, township 19 south, of range 11 east, in Lyon county, unlawfully, and with force, on the 15th of December 1869, and on divers days and times since that day, and digging up clay, of the value of $100, said clay being and lying on lands not belonging to the defendant, but on said lands of plaintiff.

Error from, Miami District Court. This action is here for the second time. It was heard and decided in this court at the January Term 1871, in connection with the case of “Krutz and Campbell v. Alpheus Fisher,” and is reported in 8 Kas., pp. 90 to 98. (See note to, that case, page 92.) A full statement of the facts will be there found On pp. 90, 91.

Drror from Wyandotte District Court. Luke bought from Johnny calce 160 acres of land, and for the deferred payments gave two notes, and secured said notes, by a mortgage on the premises purchased, executed by himself and wife. After one of said notes had become dueJohnwycahe brought his action to foreclose said mortgage. A trial was had, the verdict set aside, and a new trial granted.

Error from Atehison District Court. Blair and Newcomb sued Sumner to recover certain sums alleged to be due the estate of their testator upon a lease of a store-room. The opinion of the court contains a full statement of the facts, and so much of the evidence and instructions as are material. The case was tried at the June Term 1871 of the district court. The plaintiffs had judgment, and Sumner brings the case here. 1.

Error from Johnson District Court. On the 15th of December 1870 Susan Knaggs, and A. E[. Knaggs her husband, brought their action against Mastín, praying that a certain paper purporting to be a deed be adjudged and decreed to be null and void, and the same, and the record thereof, canceled.

Error from Atehison District Cov/rt. Mes. King brought her action against The City of Atchison to recover damages for injuries received by her by reason of defects in a sidewalk of said city. The action was tried at the June Term 1871.- Yerdict and judgment for plaintiff. The pleadings and the evidence are sufficiently stated in the opinion.

Error from Douglas District Court. Action brought by Blacklidge to recover $1,340 alleged to be due upon a certain contract. The case was tried at the June Term 1871 of the district court, and Blacklidge had judgment for the amount claimed, and interest, and costs. Jones excepted, and now brings the case here for review. The opinion contains a full statement of the facts. 1.

Error from Osage District Court. This is a proceeding to contest an election held for the purpose of relocating the county-seat of Osage county. Held: by persons acting in the. interest of Lyndon, for the perpetration of fraud, and its concealment after it was perpetrated. On election day the election law was completely ignored, and nothing was left undone to achieve their object in carrying the election.

Original Proceedings in Mandamus. Jacob Feizel filed in this court his duly verified petition) for a writ of mandamus, alleging, among other things, “that the said plaintiff is a minister of the gospel, a preacher of the M. E. Church, duly licensed and ordained as a deacon •and elder in said church by the proper church authority,, according to the rules and discipline of said church, and a member of the Southwest German Conference of said church; that Jacob Munzenmeyer,…

Error from Bourbon District Court. Beal sued Wells to recover damages sustained by reason 'of Wells’ hogs breaking into his mclosure in the township of ‘Scott, on the 1st day of June 1869, ahd destroying his growing crops of wheat and corn.

<p>Pasty; Witness; Competency of, when opposite Party is Legal Representative of a, Deceased Person. Section 322 of tlie code docs not prohibit a party sued by an administratrix for a debt due the deceased from testifying as to any question raised by the issues, where such testimony is not in resv>ect to any transaction or communication had personally by such ■ party with the deceased person.</p>

Error from Atchison District Court. Challiss, Drury & Co., merchants, brought suit against 'the city to recover damages for injuries sustained to their goods.

<p> Error from Marshall District Court. </p> <p>Two actions—one brought by Park against Tinkham, the other by Sherry against Frazier. In each action the plaintiff therein claimed to be “the legal owner, in fee simple,” of certain lands in Marshall county; and the object of the action was to set aside and annul “a pretended deed of conveyance, known as a tax deed,” under and in virtue of which the defendant claimed to own and be’ entitled to the plaintiff’s land. The petition alleged that said pretended tax deed was “a cloud upon the title of the plaintiff,” and prayed judgment that the said tax deed “may be set aside and held for naught,” etc. Other features of the petition are stated iu the opinion. In each case the defendant demurred to the petition “for that it does not state facts sufficient to constitute a¡ cause of action.” The cases were heard at the April Term 1871 of the district court, and said court sustained the demurrer, and judgments were rendered against the plaintiffs for costs. NeAV trials refused, and the plaintiffs respectively brought their cases here by petition in error, and they AArere heard and decided together.</p> <p>The two cases are exactly alike, and are therefore presented together. The actions are brought-under §§ 116, 118, 119, of the Tax LaAV of 1868, p. 1057. The petitions state facts sufficient to constitute causes of action. They set out the making of tax deeds to the defendants from the county clerk, and assign fifteen reasons Avhy the tax sale and deeds are A'oid. Any one of said errors or irregularities Avould aArnid the sale. As to the errors in said tax proceedings, see the Tax Law of 1866, ch. 118, LaAvs of 1866, (under AAhich said proceedings Avere taken,) §§25, 26, 58, 59, 66, 67, 68, 76, 89; and the Tax Lrav of 1868, p. 1055.</p> <p>The fourth ground assigned in the petition is, “ That said lots Avere not sold for taxes at the time and place required by laAV.” And the 14th ground assigned is, in Substance that the tax deed was not executed by the proper officer, nor in the manner and form provided by Lav. These matters are admitted by the demurrer—and they arc fatal to the A'alidity of the tax deed.</p>

Error from Atchison District Court. . Pointer sued the Railway Company, ancl recovered a judgment for the sum of $6,500, for injuries alleged to have been received in being knocked- down and- run over by the cars of plaintiff in error while he ivas walking down laterally upon the railroad track with his back to the approaching train!

Error from Brown District Gourt. Action brought by Johnson to annul and cancel a tax deed issued by the county clerk of Brown county July 10th, 1867, purporting to be for taxes assessed for the year 1864. Said deed was recorded July 19th 1867, and the action below was commenced July 17th 1870. The deed recites that the land “could not be sold,” that it was “bid off by H. P. Stebbins,” that said Stebbins assigned “the certificate of sale” to Geo.

Error from Riley District Court. Mandamus, brought by the board of commissioners of' Davis County to compel the board of commissioners of Riley' County to act upon an account or claim of $256.10, alleged to-be due to Davis county for fees and costs paid in criminal cases, but for which Riley county was ultimately liable.

<p>1. Notes and 'Mortgage ; Assignment; Priorities. A mortgagee holding' two notes, secured by one mortgage, can transfer one note and the mortgage, so as to give that note priority in satisfaction out of the mortgaged property.</p> <p>2.--- An indorsement of the one note, with an assignment of “all the ' right, title and interest of the mortgagee in the mortgage” will be sufficient in the absence of all circumstances indicating a contrary intention, to give to the holder of such note priority.</p> <p>3. Protest Damages. Before protest damages can be recovered, there must be such demand and notice as will charge the indorser.</p>

Error from Bourbon District Court. Shepard sued the Railroad Company to recover damages for certain alleged trespasses committed at divers times between July 1st, 1869, and the commencement of this suit, February 6th, 1871.

Error from Douglas District Court. Fielding Burnes and Lewis Burnes, as plaintiffs, recovered a judgment against 8. N. Simpson and Edwin Bucle, jr., as defendants, “In the First District Court of Kansas Territory sitting in Leavenworth county-for the trial of causes arising under the laws of said Territory.” Said judgment was rendered on the 4th of June 1859, and for the sum of $3,054 and costs.

Original Proceedings in Mandamus. At the April Term 1871 of the Morris county district court, IJon. John IP. Watson, judge of the Fifth District, presiding, an action pending in said, court, wherein J. G. Munkers .and W. P. Tenoilliger were plaintiffs, and the M. K. & T. Railway Co. was defendant, came on for trial.

Error from Atchison District Court. In 1859 John T. Scott owned a half-section of land which he mortgaged to Foreman. Afterward, and in the same year, Scott sold and conveyed by deed one quarter-section of said land to Joseph J. Carter, the mortgage thereon not being paid or discharged.

Error from Atchison District Court. Two actions were brought by L. C. Challiss in the Atchi- ' ,son district court. In No. 152 James A. Headley wad. Joseph , F. Carr were defendants; the petition was filed in December 1861, an order of attachment sued out and served, and service' by publication, the answer-day being June 14, 1862. In the-other suit, No. 271, said Headley and Carr, and Rosaline P. Carr, Lizzie P. Abbott, Thomas Wise, and Wm. Crookham were defendants.

Action brought by the Commercial National Bank of Cleveland, of Cleveland, Ohio, as plaintiff, against The City of lola, ns defendant, to… Held: known to be without legal authority, and show also that the particular purpose for which the bonds were to be voted, (and issued, if voted,) was to aid a private enterprise, said ch. 80 is here inserted in full, and is as follows: An Act to legalize a certain election for Bonds to aid in constructing and operating Foundry and…