Volume 90 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Former Judgment — No Bar to Defense in Present Action ■The pleadings, issues and judgment in an action to foreclose a mortgage wherein the parties to this action were made defendants are examined, and it is held that the judgment in that action does not estop the holder of the patent title in possession from asserting a defense in this action brought by the holder of the tax title to recover the land.</p> <p>2. Ejectment — Patent Title — Holder of Tax Deed Never In Possession. — An action to recover land by the holder of a tax deed can not be maintained against the holder of the patent title who has held adverse possession for more than two years, and the tax-title holder has never taken possession,' although the tax deed is valid upon its face and has been of record more than five years.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Commerce — How Interstate Freight Rates are Established. Under the interstate commerce act the.carrier is required to file with the commission its schedules of rates and also to promulgate and distribute them in order that the shipper may have access to them and ascertain their terms.</p> <p>2. - Counterclaim by Shipper for Injuries to Property Transported. The provisions of that act do not preclude the. shipper, after payment of the legal rates, from receiving or recovering for injuries to the property transported caused by the carrier’s negligence.</p> <p>3. Limitation op Action — When Not Available as a Defense by Foreign Corporation. A foreign corporation which sues a Kansas shipper here to recover for an alleged balance due according to the legal rates can not, to a counterclaim for damages negligently caused to the property transported, successfully interpose the statute of limitations.</p> <p>4.--Nature of Action — When Counterclaim May Be Interposed. Such action to recover for a claimed balance still due according to the legal tariff rates in force when the shipment was made, is not one upon the contract of shipment but is one to recover regardless thereof, and hence the plaintiff can not use such contract to defeat such counterclaim.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Principal and Agent — Purchaser Found — Sale Made — Purchaser Forfeited Contract — Commission Earned. A broker was employed to find a buyer for a tract of land at a fixed price net to the owner, under an agreement that any excess obtained above that price should go to the broker as his commission, and that the commission should be paid out of the first money received on the sale. A purchaser was found, acceptable to the owner, -with whom he entered into an enforceable contract of sale under which a cash payment was made, and the balance of the purchase price was to be paid in two annual installments with the condition that if the payments were not made at stipulated times the owner might elect to forfeit the payments already made. The purchaser failed to make the payments as agreed upon, and the owner thereupon elected to and did declare a forfeiture, but declined to pay the broker the stipulated commission because the contract had not been fully carried out by the purchaser. Held, that the broker had fully earned his commission when, without fraud or concealment, he produced a purchaser who was accepted by the owner and with whom the owner entered into a contract of sale, and he could not be deprived of it because the purchaser did not make the deferred payments at the stipulated times.</p>

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

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

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

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

<p>Appeal from Shawnee district court, division No. 2.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Careless Coemployee — Complaint Made — Assumption of Risk. Where two employees in a factory are associated in operating a machine therein and one complains to the master that he is afraid to work with the other and the master replies that the one complained of is incompetent and careless and that he will place him on some work where he can not hurt the one complaining, the one complaining may thereafter continue in the employment for a reasonable time without assuming the risk of injury from the negligence of his fellow laborer.</p> <p>2. - Same. In such case the master assumes liability for injuries received by the one who complained through the negligence of the other.</p> <p>3. - Contributory Negligence — Question of Fact. The question whether the appellee was guilty of contributory negligence was, under the instructions, for the determination of the jury, and, there being no special question submitted thereon, the general verdict in favor of appellee inferentially acquits him of such negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Life Insurance — Premiums Not Paid on Specified Date — Acceptance for Years — Waiver of Forfeiture of Policy. A life insurance policy provided for the .payment of premiums on the first day of each month, and forfeiture for nonpayment. It also provided for reinstatement during the life of the insured at any .time within twelve months of the date of lapse by the -payment of past due premiums and a fine of ten per cent per annum on such overdue premiums. Premiums were paid on the policy for over six years on or about the 20th' day of each month. The premiums so paid were accepted without objection or comment by the company, and its receipts were given therefor. The last payment was in November, 1909, and the insured died on the' 6th day of December following. The receipts contained no allusion to reinstatement and were in ordinary form. No fines were requested or paid, and no notice or intimation was given that the payments were not accepted as payments of monthly premiums as they purported to be. It is held that the facts were sufficient to support a finding that the company had waived payment of premiums on the appointed day.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Ground — Impotency — 'Not Established. When the issue is the alleged impotency of the defendant and seven physicians who made an examination testified that such party was physically normal, a refusal to decree a divorce will not be disturbed.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Deed-: — Conveys Life Estate — Without Power to Alienate or Encumber It. A deed recited .that the first parties, for and in consideration of love and affection for the second party, their daughter, and to furnish support for her, did sell a certain tract of land, describing it, “unto the said party of the second part for life and upon her decease unto her children should she die leaving issue absolutely and should she die leaving no issue then unto the heirs, of the party of the first part. The said land and premises to-be held by the said• Lydia Ann Abbott solely under and by virtue of these presents' without power to her to sell,, mortgage or convey any interest in the said premises, nor to sell or incumber her life interest therein.” Held, that the instrument conveyed only a life estate in the land without power in the grantee to alienate or encumber it; and held, further, that the provision restricting the power of the grantee to sell, mortgage or encumber the land is not inconsistent with the grant nor invalid because of repugnancy.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Mortgage Foreclosure — GenvAneness Denied■ — Verification of Answer. In an action to foreclose a mortgage an answer verified on information and belief is sufficient to put in issue the genuineness of the mortgage.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence by Violation of Statute — Injury Must be of a Kind Contemplated by Act. In order for the violation of a criminal statute to constitute actionable negligence the injury complained of must be of the sort the legislation was intended to prevent.</p> <p>2. - Same. The statute making it a misdemeanor for a railway company to allow cars to stand upon a street for more than ten minutes at a time, in such a way as to reduce the opening in the traveled part thereof to less than thirty feet, is intended to prevent obstructions to travel, and acts in violation thereof do not necessarily constitute negligence for the purposes of an action in which the plaintiff relies upon'the fact that the position of the ears, by obscuring his view of the track, prevented his seeing an approaching engine in time to avoid a collision.</p> <p>3. - City Ordinance — When it Takes Effect. An ordinance requiring a railway company to provide a flagman at a street crossing, which purports to take effect upon publication, is in force from that time, irrespective of whether the company had actual notice, or in the exercise of reasonable diligence ought, to have learned of it.</p> <p>4. Contributory Negligence of Husband — Not Imputable to> Wife. Inhere a woman is injured through the negligence of a railway company, she is not precluded from recovery by the fact that a contributing cause of her injury was the failure of her husband to exercise due care in the management of the automobile in which they were riding.</p> <p>5.. Special Findings — Fact Determined — Final on New Trial. A special finding that the defendant is not guilty of one of several acts of negligence charged against him, which is not affected by any erroneous ruling, may be treated as a final determination of that question, notwithstanding a new trial is .granted upon other issues.</p>

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

<p>Appeal from Sedgwick district court, division No- 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Action Based on Plaintiff’s Own 'Turpitude — No Recovery. The owner of certain land conveyed it to R., who did not record his deed. Afterwards a holder under a void tax deed quieted his title as against a defendant of the same surname as the grantee in the conveyance, and the title thus quieted was subsequently purchased for $800 by the defendant, who placed lasting and valuable improvements upon the land. C. by deceit then procured from the orginal owner a deed for $15 and sought to eject the defendant. Held, that C. is barred from recovery by virtue óf the maxim “Ex turpi causa non oritur actio.” . .</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Probate Court — Jurisdiction to Appoint Guardian — Decision Final. A probate court has general jurisdiction as to the care of estates of minors, and the matter of appointing a guardian for a minor and authorizing the transfer of property through a guardian being within its jurisdiction its decision in respect to them is binding and not open to collateral attack.</p> <p>2. Guardian — Appointment by Foreign Court — Proper Authen>tication of Records. A document which recited that a certain person had been appointed by the probate court of a territory as guardian of a minor, and which was signed by the .probate judge, who, under the law, is his own clerk, had attached thereto a certificate of the same probate judge to which the seal of the court was attached certifying that the foregoing document was a true, correct and complete copy of the original letters of guardianship as shown by the records of his office. Held, that it was in substantial compliance with the provisions of section 368 of the civil code governing the authentication of the records and proceedings in courts of other states.</p> <p>3. Foreign Guardian — May be Appointed Same Guardian in This State — Necessary Evidence. An appointment of a guardian in another state may, for the purpose of securing an appointment of the same guardian in this state, be proven by a duly authenticated copy of the original appointment, but it is not the exclusive method of proving that such appointment had been made. Other proof, admissible under the general rules of evidence, may be received for that purpose.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Railroad Company — Obstructions to Vision at Highway Crossing. Liability of a railway company for injuries occasioned by a collision at a highway crossing may be founded upon its negligence in allowing unnecessary obstructions to vision to exist upon the right of way.</p> <p>2. Automobile — Negligence of Driver — No Imputed Negligence to Invited Guest. One who, while riding in an automobile as the guest of the driver, is injured by a collision at a railroad crossing, caused by the negligence of the company, is not precluded from recovering damages therefor by the fact that the failure of the driver to exercise due caution was a contributing ■cause of the injury.</p> <p>3. Jury — Failure to Answer Special Questions — Error. The , failure of the jury to return sufficient answers to certain special questions held to require a new trial.</p>

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

<p>Appeal from Shawnee district court, division No. 2.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attorney at Law — Disbarment—Accusation Sustained. The evidence in original proceedings for disbarment examined and held insufficient to sustain certain of the charges in the accusation, but sufficient to sustain two charges of misconduct, one of which it is held relates to the administration of justice and seriously affects the professional and personal integrity of the accused.</p> <p>2. --— Criminal Libel — Purpose—To Defeat the Administration of Justice. While an original proceeding brought in this court to disbar an attorney was pending and undetermined an information was filed against the attorney in a district court charging him with criminal libel. On a trial of the criminal action he was acquitted. Thereafter a supplemental accusation was filed in this court, setting up as an additional ground for his disbarment that he was guilty of the criminal libel of which he had been acquitted and that the object and purpose of the libel was to induce the libelee to' use his influence to have the disbarment proceedings dismissed. The court finds that the evidence sustains the supplemental accusation, that the purpose of the libel was to defeat the administration of justice, and that the charge seriously affects the professional and 'personal integrity of the accused, for which reasons judgment of disbarment is ordered.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Highways — Damages—Appeal—Injunction—Estoppel. Where a landowner appeals to the district court from the allowance of a claim lor damages lor the laying out of a road through his land*he thereby affirms that his land has been taken and damaged by the laying out of the road, and he can not afterward be heard to say that the road was not in fact-laid out.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Factory Act” — Widow May Maintain Action for Death of Husband. If no personal representative has been appointed, the widow may maintain an action against the owner or operator of a manufacturing establishment for the death of her husband, while employed therein, which is caused by the wrongful omission of safeguards or precautions required by the factory act.</p> <p>2. - Petition Amended — Limitation of Actions. If, after commencing such action in time, the widow be appointed administratrix of her deceased husband’s estate and she accordingly amends the petition more than two years after the death, her action as administratrix is not barred by the two years’ statute of limitation.</p>

<p>SYLLABUS BY THE’ COURT.</p> <p>1. Supreme Court — Appellate Jurisdiction — Implied Powers. A grant of appellate jurisdiction implies that there is included in it the power necessary to its effective exercise and to make all orders that will preserve the subject of the action and give effect to the final determination of the appeal.</p> <p>2. -Power to Allow Temporary Alimony and Attorneys’ Fees. In the exercise of its appellate jurisdiction the supreme court has the power to allow temporary alimony to a party pending an appeal in an action of divorce and to order the payment of attorneys’ fees or suit money necessary to a prosecution of the appeal, and may likewise provide for the temporary custody of children until the determination of the appeal.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Plea of Guilty — Continuance for Sentence— Jurisdiction Not Lost. A justice of the peace did not lose jurisdiction by continuing a case for thirty days for sentence upon a plea of guilty, where he secured the'attendance of the defendant in eight days after the continuance and passed sentence upon him.</p> <p>2. -Plea of Guilty — Costs Paid — Right of Appeal Lost. The defendant in the case above referred to at the time of entering his plea paid the costs, but after sentence was pronounced appealed from the judgment. By paying the costs he acquiesced in the anticipated judgment and recognized its validity, and his appeal should be dismissed and the sentence executed.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Habeas Corpus — Want of Jurisdiction — Must Clearly Appear. To permit of petitioner’s release on habeas corpus on the ground that the crime for which he was convicted was committed at a place which did not permit of the trial court’s having jurisdiction, such fact must clearly appear.</p> <p>2. -Former Jeopardy — Venue—Not Considered in Habeas Corpus. Error in overruling a plea of former jeopardy, or in the matter of change of venue, can not be considered on habeas corpus.</p>

<p>SYLLABUS.BY- THE COURT.</p> <p>County Seat — Removal from Santa Fe to Sublette — Number of Votes Required. To relocate and remove a county seat where buildings costing at 'least ten thousand dollars have been ■ erected for county-seat purposes, or when such county seat has been eight .years-or.more continuously at any une place by a •vote of the electors of the county, three-fifths of the legal electors voting on the question of relocation must vote in favor thereof,‘but it is not essential that three-fifths of those whose •names ‘appear on the registration list sháll -thus vote.</p>

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

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

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

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

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

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Contempt- — Injunction—Cities and City Officers — Notice. Where a city and its officers have been permanently enjoined from licensing lawbreakers and doing other illegal acts, city officers who subsequently take possession of the offices of such city are ordinarily bound to take notice of such injunction, and especially where the acts enjoined are in themselves public offenses.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Rotary Boring Machine — -Lever Valve without Safety Device. In a personal-injury case the petition alleged that the plaintiff was injured by the unexpected start-ing up of a rotary motor, driven by compressed air, caused by the opening of a lever Valve in a double connection attached to a movable hose; the mechanism was described and negligence was charged in that the valve was defective. The jury returned a verdict for the plaintiff and found specially that the defendant’s negligence consisted in using a valve without a locking or. safety device, and that they did not know what caused the valve to open. Held:</p> <p>(1)-Averments of Petition Sufficiently Specific. Although the petition was attacked for indefiniteness with respect to the allegation of negligence, no substantial prejudice resulted to the defendant from the want of more specific averments.</p> <p>(2)- Plaintiff’s Conduct Not Fatal to Recovery. The fact that a screw valve was provided at another point by which the plaintiff could have cut off the compressed air is not fatal to his recovery, since to have used that valve would have cut the air off from another machine as well as from that which he was using.</p> <p>(3)-1 Findings of Jury Sufficiently Definite and Verdict Sustained. Although the jury were unable to say in what manner the valve was opened, their verdict is sustained on the ground that it was a fair question for their determination whether, under all the conditions shown, it was negligence to use a lever valve without a locking device, in a situation such that it might in various ways be accidently opened.</p> <p>(4)- Admission of Opinion Evidence — ■Not Sufficient Ground for Reversal. The admission of opinion evidence that the valve, when used in the situation described, was unsafe is not sufficient ground for the reversal of the judgment, even if erroneous, as it does not seem probable that, the verdict was affected by it, there having been competent evidence from which the jury could draw the same conclusion.</p> <p>(6)--— No Error Justifying a Reversal Shown. Upon the entire record no error is shown which justifies a reversal. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Death Presumed after Seven Years’ Absence (89 Kan. 11) — Assured Appears Pending Rehearing of Appeal— New Trial Ordered. A judgment upon an insurance policy based upon the presumption of the death of the insured person after an unexplained absence of over seven years was affirmed. Afterwards, and while the action was pending upon a motion for a rehearing, evidence was filed in this court tending to prove that the insured person was still alive. A rehearing was granted upon the question whether the issue of death should be again tried in the district court, and upon that question, on leave given, to both parties, additional evidence was filed in this court tending further to prove that the insured is living. No evidence is presented to the contrary. It is held: (1) that upon the circumstances of this case the defendant is not precluded from asserting that the insured is still alive by its failure to discover and produce proof of that fact at the trial; (2) that this court has jurisdiction to allow a new trial of the single issue of death.</p> <p>2. - Jurisdiction of Supreme Court — Extraordinary Situation. While this court has no jurisdiction to determine the issue of death presented in the pleadings, it may, in the exercise of appellate jurisdiction, consider the new evidence in determining the question whether that issue shall be retried in the district court.</p> <p>3. - Same. In the extraordinary situation presented, in order that the truth may be ascertained and justice done, a new trial of the issue to determine whether the insured person was living when the action was commenced is allowed.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Franklin district court.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mining Act — Not an Adoption of Pennsylvania Statutes— Decisions of that State Not Controlling. While the statute enacted to protect the health and safety of mine workers embodies subjects covered by the mining act of the state of Pennsylvania, such act was not adopted as the law of Kansas, and the decisions of the supreme court of Pennsylvania interpreting it are persuasive only and not controlling.</p> <p>2. - Mining Statute — Constitutional—Assumption of Risk —Contributory Negligence. The statute referred to is not unconstitutional as discriminating against mine owners and operators because it abolishes the defenses of assumption of risk and contributory negligence in certain actions which it authorizes.</p> <p>3.-Mining Statute a Valid Exercise of • Police Power. The statute referred to is the result of a valid exercise of the police power of the state, and is not in contravention of the provisions of the constitution of the United States or the' amendments thereto.</p> <p>4. - Negligence — Violation of Mining Act. The decision in* the case of Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617, approved and followed.</p>

<p>Appeal from Sedgwick district court, division No. 2.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Mining Company — Duty to Provide Safe Place for Employees to Work. It is the duty of a mining company to exercise ordinary diligence to keep the roof of its mine reasonably safe for its laborers. This duty requires inspections with such care and frequency as reasonable prudence demands in the conditions existing.</p> <p>2. - Same. The evidence is examined and held sufficient to support a finding that the defendant was negligent in failing to properly examine and prod the roof of a zinc mine from which a boulder fell and injured the plaintiff, a laborer therein.</p> <p>3. Witness — Cross-examination—Not Error. A witness who had procured a statement from the plaintiff of his injuries, having testified in direct examination that he was acting at the instance of an attorney, was asked whom the attorney represented, and answered “the insurance company.” This answer was within the reasonable limits of cross-examination.</p> <p>4. Trial — Instructions Urging Importance of Making True Findings. An instruction which impresses upon the jury the importance of making true findings of fact from a candid consideration of the evidence is not prejudicially erroneous because it included a statement that a mistake of law may be corrected by the court while a mistake in a finding of fact upon conflicting evidence can not be corrected and other findings substituted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>■ Life Insurance — Default of Assessments — Guarantee Deposit— Forfeiture. The articles of incorporation of an association doing business on the mutual assessment plan, together with its by-laws and other writings which entered into the contract of insurance between the member and association, examined, and it is held that neither the guarantee deposit made by a member when he is admitted to the association nor any part of the guarantee fund of the association .can be applied in payment of delinquent assessments.</p>

<p>Appeal from Wyandotte district court, division No. 2.</p>

<p>Appeal from Sedgwick district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeals — From Justice’s Court — Consolidated in District Court — Jurisdiction. Where one plaintiff brings two actions in a justice court against the same defendant for an amount of money, in each case, within the jurisdiction of that court, and judgment is therein rendered in each case for the plaintiff, and the defendant appeals from both judgments to the district court, in which court the appellant moves to consolidate the cases, which is done; Held, no error, although the sum of the two claims is more than $300, and further, if the ruling were erroneous the appellant would not here be heard to urge an error which he had affirmatively invited.</p> <p>2. Negligence — Delay in Shipping Cattle — Notice of Loss in Weight. Loss of market or of price resulting from delay in transportation is not within the provisions of a contract requiring notice of loss before cattle which are shipped should be removed or mingled with other stock, but loss by shrinkage in weight is within such provision.</p> <p>3. -. Carrier Can Not Limit Liability for its Own Negligence. Section 20 of chapter 3591 of 34 U. S. Statutes at Large prohibits a common carrier from limiting by contract, rule or regulation its liability for damages resulting from its own negligence or the negligence of any other common carrier into whose possession the property may come for transportation by virtue of the bill of lading which the section requires the initial carrier to issue to the shipper. It does not limit the right of the common carrier to make a reasonable con-' tract with the shipper requiring a- notice of loss or damage or limiting the time within which an action to recover damages may be brought.</p>

<p>SYLL'ABUS BY THE COURT.</p> <p>Statute op Limitations — Promissory Notes — Payments — In- ■ struetions. In a controversy as' to whether or not an action upon a promissory note was barred by the statute of limitations, in which it was claimed that a partial payment indorsed upon the note tolled the statute, and where there was testimony by the holder that a payment was made on the date of the indorsement, and also testimony of such payment by another witness who was unable to fix the particular . day when it was made, an instruction to the effect that unless it was shown that the payment was made on the particular date ,of the indorsement the bar of the statute had fallen and no recovery could be had upon the note and the refusal of a request for an instruction that the action would not be barred if a payment had been made at or near the date of indorsement and within the statutory period of limitation was error.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Common Carriers — Interstate Railroads — Grain Shipments Within the State with “Milling in Transit" Privileges and “Proportional Rates” on Reshipment to Points Beyond State— Power of State to Enforce Penalty for Delays in Transportation. In an action under section 7205 of the General Statutes of 1909 by a shipper against an interstate railroad to recover a penalty for delays in the transportation of grain in carload lots from Oneida,’ Kan., to Elwood, Kan., held, (a) Under the facts stated in the opinion the action may be maintained. (6) Whether the shipment be regarded as completed when the grain was unloaded into the elevator of the purchaser at Elwood, Kan., -and therefore intrastate, ■or whether it was interstate in character — because of a custom and arrangement, of which the plaintiff had no notice or knowledge, which existed between the carrier and the owner of the elevator giving the latter “milling in transit” privileges and “proportional rates” on grain of like quality and quantity when reshipped to points outside the state, nevertheless the state, in the proper exercise of the police power, may enact and enforce reasonable regulations designed to prevent unnecessary delays in such transportation occurring within its borders, (c) Section 7205 of the General Statutes of 1909 is a proper exercise of the police power and, applied to the facts of this case, does not place an unreasonable burden upon interstate commerce.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence ■ — ■ Personal Injuries ■ — ■ Inconsistent Findings — New Trial. The rule that when the special findings are inconsistent with one another, arid some of them with the general verdict, the case has not really been decided and a new trial should be granted, followed.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Action — For Board and Washing — When Maintainable by the Wife. Where one lives with a family consisting of a husband and wife under such circumstances as to incur an obligation to pay for his board, no express contract being made, a recovery thereon in the name of the wife can not be denied upon the ground that the right of action was in the husband, where the husband gives testimony in support of the wife’s claim.</p>

<p>Appeal from- Brown district court.</p>

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

<p>Appeal from Sedgwick district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — False Representations■ — Number of Acres in Railroad Right of Way. Fraudulent representations made by the grantor of land as to the number of acres taken and occupied as the right of way of a railroad through the tract sold, and upon which the grantee relied to his injury, entitle him to a recovery of damages for the loss actually sustained, although he learned from the instrument of conveyance and other sources that the railroad company had a right of way over the land but did not know the extent of the same.</p> <p>2. -jEvidence Sufficient to Go to Jury — Demurrer Erroneously Sustained. On the testimony in the record it. is held that there was a' question of fact for the determination of the jury as to the fraudulent representations of the grantor and the reliance of the grantee thereon to his damage, and therefore a demurrer to the evidence offered by the grantee in support of his defense should have been overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>.1. Process — Returned as Served “at Usual Place of Residence” —Void Under the Facts. The statutory definitions of the terms “residence” and “usual place of residence” applied to the facts, and held that the service of a summons returned as served at the appellant’s usual place-of residence was void.</p> <p>2. Judgment — Void for Want of Service — Injunction—Pleadings — Evidence. In an action to enjoin the execution of a money judgment void for want of any service the plaintiff is not required to plead in detail and fully prove a meritorious defense to the cause of action upon which the judgment was founded. It is sufficient that he satisfy the court by a fair showing that he is not simply delaying justice by compelling the adverse party to resort to regular procedure.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Revivor — Judgment—Notice May be Given by Publication. Section 437 'of the code, in effect, provides for the revivor of a judgment in the manner prescribed by section 427 of the code for the revivor of an action before judgment and that service of the notice may be made by publication.</p> <p>2. - Same. Where the judgment debtor is alive, the word “defendant” in the affidavit for publication should be substituted for “the representatives of the defendant” and such other changes as are necessary to show that the proceeding is against a live defendant instead of against the representatives of a deceased defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Building Contract — Payments to Contractor — “Pinal Payment ” Construed. A contract for the erection of a building contained a clause which, after reciting the whole sum to he paid for work and materials, provided “that such sum shall be paid by the owners to the contractors, in current funds, and only upon the certificates of the architects as follows: on or before the first of every month the architects shall make written estimates of all work and material furnished on the contract during the preceding thirty days and eighty per cent of same shall be paid the contractors by the owners when presented. The final payment shall be made within ten days after the completion of the work included in this contract, and all payments shall be due when certificates for the same are issued.” Held, that “the final payment” referred to the twenty per cent of the amount of the estimates after the eighty per cent had been paid.</p> <p>2. -Indemnity Bond — Paitare to Retain Required Percentage — Surety Released. A bond of indemnity was executed by a surety company against pecuniary loss resulting from the failure of a contractor to comply with the terms of a building contract. The bond referred to the contract and contained a condition that no liability should attach to the surety unless the owner should give notice to and obtain the consent of the surety before making the final payment ■ provided for in the contract. Held, that the failure to retain the required percentage discharged the surety to the extent of the premature payments.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Consignment — Piano—Not a Sale — Illegal Mortgage. An order and contract for the consignment of a piano are examined, and held to create an agency, and that a mortgage made by the agent is not effective against the principal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Money Belonged to Estate — Res Judicata. The decision in Hunt v. Remsberg, 83 Kan. 665, 112 Pac. 599, was an adjudication that ■ the insurance money involved belonged to the estate, and not to the plaintiffs, and was binding on the parties.</p> <p>2. -Same. This appeal amounts to a second application for a rehearing of the former case, and the decision thereof and the opinion therein are adhered'to.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Insurance — Oral Contract — Written Policy Not Completed— Company Liable. The owner of property contracted with an agent representing several insurance companies to insure property for a certain amount, hut did not designate the particular company in which the insurance should be taken, and at the same time he paid the premium and arranged with the agent to hold the policy and thereafter to keep the property insured. A policy was issued in a company, which shortly afterwards was canceled, and the agent then placed the insurance in another company represented by him, and that policy, too, was canceled. He then placed the insurance in the defendant company and began to write out a policy, but an interruption prevented its completion at the time and before it was finished the property was destroyed by fire. Held: (1) That the steps taken by the authorized agent of the company constituted a binding contract of insurance with the defendant; (2) that under the contract as pleaded the failure to furnish proofs of loss did not operate as a forfeiture; (3) that the action of the agent in agreeing with the property owner to hold the policy and keep his property insured was not repugnant to the duty of the agent to the defendant, nor did it affect the validity of the contract of insurance.</p>

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

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

<p>Appeal from Shawnee district court, division No. 2*.</p>

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

<p>SYULABUS by the court.</p> <p>1. Master and Servant — Safe Place to Work — Actionable Negligence. The law of this case as declared in a former appeal (84 Kan. 347, 114 Pac. 217) is followed.</p> <p>2. -Evidence — Issue Properly Presented to Jury. The evidence is reviewed and it is held that questions of fact relating to the charges of negligence were properly submitted to a jury.</p> <p>-3. -Evidence — Photographs of Place of Accident Properly Admitted. Photographs purporting to be of the bank in a shale pit where the injury occurred, identified by the photographer,' were properly admitted in evidence.</p> <p>4. -Death of Minor Son — Measure of Damages. Where a youth seventeen years of age, physically strong, who had worked in his father’s store and for others, earning fair wages, is killed through negligence, an instruction that in awarding damages the jury may, if they find that he had previously contributed anything to his parents, consider what he might reasonably be expected to contribute to them after arriving at the age of twenty-one years, is not erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attractive Nuisance — City Dump — Erroneous Instructions. In an action for damages alleged to have been sustained by a boy eleven years old while playing on a city dump, by falling into a smouldering fire — such dump being clearly an attractive nuisance — the court gave correct instructions at the request of the plaintiff, but also gave several at the request of the defendant which were erroneous. Held, that as the jury, which found for the defendant, were as likely to be influenced by the wrong as by the right instructions, the plain- ' tiff has not had his case presented under a proper interpretation of the law, and a new trial should be granted.</p> <p>2. -Maintenance of, Not its Establishment, Material. In such a case the maintenance of the dump by-the city and not its establishment was material, and the city was required to use reasonable care to keep children away and from being injured there.</p> <p>3. -Insufficient Warning — Instructions. Such dump being in charge of a boss employed by the city, it was material whether or not he, with the knowledge and acquiescence of. the city, exercised control over the whole dump rather than whether or not he had express authority so to do. A mere warning to the plaintiff to be careful, uttered by a private person engaged in unloading spoiled fruit at such dump, would not relieve the city from liability even if the plaintiff was sufficiently intelligent to appreciate the danger of going over the embankment, which formed a part of the dump, after spoiled fruit, but proceeded and sustained injuries “at a place where a prudent person would not anticipate any one would go,” if the testimony should show that the place where the injury occurred was a smoldering fire of some weeks’ probable duration, over the embankment, of. which fire the plaintiff had no knowledge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Extension by Bank Cashier — New Security —Release of Sureties. It is assumed, but not decided, that a cashier has authority, in virtue of his office, to extend the time of payment of a note belonging to the bank, even if sureties are thereby released, where new security • is taken.</p> <p>2. New Note= — Presumed to Suspend Time of Payment of i Old Note. Where a new note, payable at a future date, is taken for the same debt evidenced by a past due note, which is not surrendered, the parties are presumed to intend that action on the old note shall be suspended until the maturity of the new one, in the absence of anything to indicate a contrary intention.</p> <p>3. - Stockholder Signing Note of Corporation Not Released by Extension. Where one of the principal stockholders, who is also a director, signs a note with the corporation, given to raise money for its benefit, intending to be bound only as a surety, he is not entitled to the same liberality of treatment that the law accords to volunteer sureties; and ■ where the corporation is granted a valid extension of time, without his knowledge, he is not thereby released from liability unless he suffers some injury therefrom.</p>

<p>Appeal from Shawnee district court, division No. 1.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — In Favor of Corporation — Judgment Assigned — - Corporation Dissolved< — Judgment Not Dormant. Where after a judgment has been assigned the assignor, a corpora-' tion, is dissolved, no revivor in the name of the assignee is necessary, and the judgment may be kept alive by executions issued in the name of the plaintiff corporation after its dissolution.</p> <p>2. Judgment — May be Assigned by Parol. A judgment may be assigned by parol, and after -the assignment may be enforced, by the assignor in the name of the original plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Death — At Street Crossing — Evidence — Negligence—Contributory Negligence. The plaintiff seeks a recovery for the death of her husband, caused by the negligent operations of • a train at a street crossing. The evidence and findings are reviewed, and it is held, (1) that there was sufficient evidence to warrant the finding of negligence; (2) that the question of contributory negligence was one of fact for the jury.</p> <p>2. -- Evidence — Habits of Decedent in Crossing Tracks. The plaintiff was called as 'a witness by the defendant and testified that her husband was familiar with the crossing, and that she had often been over it with him. On cross-examination she was allowed to testify that he always drove carefully, watching for dangers, and at night stopped to look and listen. It is held that the testimony, if incompetent, was still not prejudicial under the findings.</p> <p>3. -. Instructions — Presumptions that Decedent “Stopped, Looked and Listened.” An instruction was given, stating in substance that in the absence of any evidence on the subject the jury were authorized to presume that from natural instinct to protect his person and preserve his life the deceased looked and listened for approaching trains before venturing upon the crossing, and if his situation was such as to require him to stop, that he did so. In connection with other instructions defining the duty of the deceased to look and listen, and stating the circumstances in which he was required to stop, the foregoing is approved.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Death of Husband — Nonresident at Time of Death — Action by Widow — Failure to Plead Foreign Statute. In an action brought in time by a widow to recover damages for the negligent killing of her husband in the operation of a railway train the omission to allege in the petition that the deceased was a nonresident of Kansas but was a resident of another state and that by the laws of such other state the widow was the only person authorized to bring the action does not render such action a nullity.</p> <p>■2. -Amended Petition — Statute of Limitations. Where in such case the plaintiff, more than two years after the death of her husband, on leave of court files an amended petition in the action and recites therein substantially the same facts as in her original petition and adds the omitted allegations with reference to the nonresidence of the deceased, the authority to bring the action under the laws of the other state, etc., her action is not barred by the two years statute of limitations relating to actions of this class.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Defective Appliances — Personal Injuries — Assumption of Bisk — Duty of Master to Inspect Appliances. A laborer in a foundry was required to assist in carrying a crucible of molten brass weighing 275 pounds by means of a brail holding the crucible by a ring around it from which handles projected. The crucible was new and larger than those ordinarily used. Because of this fact none of the brails on hand was large enough, and the foreman took one to the blacksmith shop in the foundry and gave orders to stretch it in a hurry, which was done by heating and hammering the ring. The hot metal was then carried to the mold by the reconstructed brail, and in piouring in into the mold the handle upon which the plaintiff was lifting broke at its connection with the ring, spilling the metal upon him. It is held: (1) That the doctrine of assumption of risk has no application to the facts of this case; (2) That the employer who manufactures or alters an appliance is chargeable with knowledge of any defects which ordinary care in the process would have disclosed. Beyond this, if an appliance as ordinarily used is liable, if defective, to injure the employee a duty of reasonable inspection is cast upon the employer and he is chargeable with notice of such defects as the inspection would have revealed. (3) This duty of inspection is a continuing one, and arises from the primary obligation to exercise ordinary diligence to provide safe instrumentalities. Whenever an inspection is fairly incidental to such diligence it must be made.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Negligence — Defective Locomotive — Notice of Defect. Where a railroad fireman is injured by the breaking of a locomotive on account of a defect in its construction, and the broken parts-had been constructed in defendant’s own shops, and the defects must have been obvious to those engaged in the work, the defendant is liable.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Highways — Damages — Injunction — Inconsistent Actions. A landowner can not in the same court at the same time in one action maintain a claim that a portion of his land has been ap- , propriated for a public highway and demand damages therefor and in another action claim that this land has never been so appropriated and seek to enjoin the board' of county commissioners from opening such public road thereon.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Foreign Corporation — Unauthorized to Do Business in Kansas —Agents—Ouster. Where an individual is doing- business in this state in the name of a foreign corporation which has not obtained a permit therefor, a court has jurisdiction to render a judgment of ouster, whether the individual has authority to act for the corporation or not. If he has such authority the corporation may be ousted from doing business here; if he has no such authority he may be ousted from doing business in the corporate name.</p>

<p>Appeal from Atchison district court; William A. Jackson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial — Questions of Fact Submitted to Court — Jury is Waived. During a trial the judge asked what there was in the case for a jury to settle. The plaintiff’s attorney answered that there was a question of damages. The judge then said that he would submit the question of damages to the jury and would decide the other questions himself.- No objection was made to this, proposal, and the court, also without objection, submitted to the jury only the question of what the amount of recovery should be, first, in case the plaintiff was right in his principal contention, and second, in case he was wrong. Held, that the plaintiff waived the right to have any other issues submitted to the jury.</p> <p>2. Highway — Fence Recognized as Line for Fifteen Years— Width of Road Established. Where the owner of land bordering upon a highway, the legal width of which is forty feet, sets out a hedge, intending to mark the line so as to show a greater width, and the strip so marked is used as a road by the public for fifteen years, a highway of the width indicated results, notwithstanding the hedge is not maintained throughout the. entire distance for all of that time.</p> <p>3. -; — • Township May Recover Damages to Road by Landowner. A township is entitled to recover from an individual an amount which it has necessarily expended in making repairs to a highway which were occasioned by his wrongful act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Shipping Contract — Governed by United States Statutes and Federal Decisions. The shipment from Burr Oak, 111., to Abilene, Kan., was an interstate shipment and was governed by the statutes of the United States- and the federal decisions interpreting those statutes.</p> <p>2. -=- A Maximum Valuation of Property Shipped May be Agreed Upon. The law applicable to this case is determined by the supreme court of the United States in the Croninger case, cited in the opinion, as follows: “A common carrier can not exempt himself from liability for his own negligence or that of his employees, but the rigor of this rule may be modified by a fair, reasonable and just agreement with the shipper which does not include exemption from such negligence; and the right to receive compensation commensurate with the risk involves the right to agree upon rates proportionate with the value of the property transported.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Special Findings — Assumption of Risk— Verdict Set Aside. Where the special findings establish that plaintiff’s injuries resulted from one of the ordinary risks which he had assumed when he entered into defendant’s employ, it was the duty of the court to set aside the general verdict in his favor and render judgment for the defendant.</p> <p>2. - Samé. A section hand, while walking at the outside of the rails behind a push car, stumbled over the end of a tie and thereby received injuries. Held, that he can not recover from the railroad company on the ground of its negligence in allowing the track to be overgrown with weeds and the ties to project at irregular intervals, where the jury find that he was familiar with the condition of the ties and knew that the track was overgrown with weeds.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Interstate Shipping Contract — Governed by Interstate Commerce Law. A contract for the shipment of horses from a point in this state to a point in another state is governed by the provisions of the acts of congress relating to interstate commerce.</p> <p>2. --■ Limiting Time in which Action may be Brought — ■ Valid. Following controlling decisions of the federal supreme court, it is held that there is nothing in the policy of the acts referred to prohibiting an agreement by the parties upon the time within which to bring an action to, recover damages for injuries to the property transported. In the circumstances shown in this case a period of ninety days is not unreasonably short.</p>

<p>Appeal from Leavenworth district court; John H. Wendorff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Cherokee Indian Lands — Death of Allottee — Deed from Heirs within Five Years from Ratification of Treaty — Void. A member of the Cherokee tribe of Indians who was duly enrolled in accordance with the provisions of the treaty with the Cherokees approved by act of congress on July 1, 1902, and ratified by the Cherokee Nation on August 7, 1902, died subsequently to September 1, 1902, and before he received the allotment of land to which he was entitled. Afterwards the land was allotted in his name for the benefit of his heirs. Held, that the lands descended to the heirs subject to the restrictions in section 14- of the treaty and that the heirs had neither the right nor the power to alienate the lands so inherited by them for a period of five years from the ratification of the treaty.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Civil Rights — Denial of Entrance to Train — State of Con-' ductor’s Mind — Competent Evidence. Where the ground of action is a violation of the plaintiff’s civil rights by discriminating against him on account of his race and color, and the elements of willfullness and malice are involved, the person charged with making the discrimination may testify directly to the state of his mind during the transaction complained of.</p> <p>2.'-Honest Misunderstanding — No Malice — No Oppression — -No Discrimination. Where a person of African descent is denied admission to a limited train through an honest misunderstanding of the Pullman conductor as to the privileges claimed, and the transaction is free from malice, fraud, or oppression, he is not entitled to relief on the ground of discrimination against him on account of his race and color.</p> <p>3. - Damages — Plaintiff Can Not Recover Price of Ticket Not Used. The plaintiff purchased a railroad ticket good one day from the date of sale. He was excluded from one train and was obliged to take another later in the same day. He could have used the ticket, but chose to keep it as evidence, and purchased another. Held, he is not entitled to recover the price of the first ticket.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Expense of Moving Drilling Outfit — No Expense— No Recovery. A well-drilling rig was set up by the owner, with which drilling was done upon defendant’s farm until he ordered the work to stop. A clause in the contract provided that the defendant should allow the expense of moving out the drilling outfit, not exceeding the cost of transporting if from Humboldt to the defendant’s farm in Morton county. Without removing the rig from the place where the work had been done, the plaintiff demanded that the defendant should ship it back to Humboldt, and upon refusal to do so sued to recover what the expense of such removal, if made, would have been. The defendant did not assume the responsibility of shipping the apparatus and was only bound to pay the necessary expense thereof in case it should be removed by the defendant. As such removal has not been made, and no expense has been incurred, the plaintiff can not recover.</p>

<p>Appeal from Shawnee district 'court, division No. 1; Alston W. Dana, judge.</p>

<p>Appeal from McPherson district court; Charles E. Branine, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>' 1. Insolvent Bank — Appointment of a Receiver — Not a Judicial Act.. The appointment by the bank commissioner of a receiver for an insolvent state bank, under the banking act of this state, is not a judicial act which must be performed by a court and not by an executive officer.</p> <p>2. - Receiver May Sue Without Authority from, any Court. The power given by statute to a receiver of an insolvent stale bank to wind up the affairs and business of the bank for the benefit of depositors, creditors and stockholders includes the power to bring suit in his own-name and without previous authority of court to enforce the liability of directors of the bank for permitting excessive loans, for permitting overdrafts, and for gross negligence in the discharge of official duties, whereby the bank suffered loss.</p>

<p>Appeal from Edwards district court; Albert S. Foulks, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute op Limitations — Belief on the Ground, of Duress. The provision of the statute of limitations governing actions for relief on the ground of fraud has no application to an action for relief on the ground of duress by threats.</p> <p>•2. - Same. The statute of limitations does not commence to run against an action for relief on the ground of duress by threats while the mind of the aggrieved party continues to be dominated by the threats.</p> <p>3. - S^ame. So long as the influence of duress continues, conduct in apparent recognition of the validity of contracts procured by that means does not constitute ratification.</p> <p>4. Note and Mortgage — Duress—Limitation of Action — Evidence. The evidence considered and held to support a judgment canceling notes and mortgages on the ground that they were procured by duress, in opposition to pleas of the statute of limitations.and ratification.</p>

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

<p>HEADNOTE BY THE REPORTER.</p> <p>Pleadings — Contract — Performance — Petition — Demurrer. Where a petition set forth a copy of a written contract of employment, and alleged performance by the plaintiff, and that a certain amount was due and unpaid to plaintiff for services performed under the contract, the petition stated a cause of action.</p>

<p>Appeal from Cowley district court; George H. Buck-man, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Beneficiary Insurance — Statements in Application — Warranties. Express warranties of the truthfulness of answers to questions were made in an application for a beneficiary certificate and the certificate recited that it was issued subject to the statements made in the application, “which are hereby warranted to be full, complete and true, and made a part of this contract.” The statements referred to are held to be warranties.</p> <p>2. - Applicant’s Health — Questions and Answers — Presence of XJremia. The following questions and answers appear in the application:</p> <p>“Q. Have.you ever had loss of consciousness? A. No.</p> <p>“Q. Have you had any illness, constitutional disease or injury that has confined you to the house during the past five years? If so, give particulars. A. A year ago, yes, had uremia — Dr. J. F. Hassig, Kansas City, Kansas, pronounces him cured — I find no trace myself.”</p> <p>The illness referred to occurred seven months before the answers were made instead of one year, but no further question was asked concerning the date. The medical examiner of the association applied the best known tests for, uremia, and then appended to the applicant’s answer her own statement, “I find no trace myself.” It is held that the association was sufficiently informed of the disease. The precise date being within the period covered by the question was not considered important by the association, and should be treated as superfluous. •</p> <p>3. - Unconsciousness a Manifestation of Uremia. The evidence shows that unconsciousness is an ordinary incident or manifestation of uremia. Having been informed of the disease, the association is chargeable with knowledge of this incident.</p> <p>4. - Acceptance of Risk — Waiver—Estoppel—To Claim Breach of Warranty. The association waived the conditions of the policy relating to previous illness from the disease referred to by accepting the risk and issuing the policy with knowledge of such illness, and is estopped from insisting upon a breach of warranty that the applicant had not had such disease or that its ordinary manifestations had not appeared.</p> <p>5. Appeal — Counterclaim—Not Limited to $100 — Case Appeal-able.- In an action to recover an installment of $100 upon a beneficiary certificate, where the defendant interposed a counter-claim for the forfeiture of the certificate, and prayed for cancellation, this court has jurisdiction of an appeal by the defendant from a judgment for the plaintiff for the recovery of the installment sued for.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Not All in Record — Presumptions in Favor of Verdict. The rule that the general verdict will he presumed to be supported by the evidence when the record fails to contain it all, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser — Advance Payments — When Forfeited. Where partial payments are made on a purchase of land under an agreement that the sums paid shall be forfeited if final payment is not made at a fixed time and there is a default in the final payment and a forfeiture due only to the delay and fault of the purchaser he is not, in the absence of a waiver of the right of forfeiture, entitled- to recover back the partial payments previously made.</p> <p>2. - Granting Extension — Does Not Waive Forfeiture. The granting of an extension giving a purchaser the opportunity to pay the balance due on the land on a future specified date can not be regarded as a waiver of the right to insist on a forfeiture stipulation if payment is not made at that time. It is a general rule that' no mere indulgences or silent-acquiescence can be construed as a waiver of the right unless some element of estoppel is involved in the transaction.</p>

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

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

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Pleadings — Answer Stricken Out — New Answer Filed — Error Waived. Where a supplemental and amended answer is stricken out, and defendant obtains leave to file a second supplemental and amended answer, he thereby waives any error in the striking out of the first supplemental and amended answer.</p> <p>:2. Lease — Action for Breach — Proper Counterclaim. In an attachment suit by a landlord for money claimed under the lease the defendant may set up in a supplemental answer a counterclaim for damages resulting from the wrongful seizure of his property under the attachment proceedings and also for damages to his reputation and character caused by maliciously slanderous statements made by plaintiff and growing out of the same transaction.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Mechanic’s Lien — Contract Abandoned — Time in Which Lien . Must be Filed. Where a contractor for the erection of a building wholly abandons his contract before its completion and the owner completes the building upon his own account and credit the lien cf a subcontractor for materials furnished is lost unless he files a statement therefor within sixty days from the last furnishing of material to such contractor. .</p>

<p>SYLLABUS BY THE COURT.</p> <p>Reformation of Deed — Quieting Title — Res Judicata — Rights-of Unborn Children. A deed was executed purporting to-convey a life-estate to the grantor’s son, with a remainder to the son’s heirs. Later an action was brought by the-grantor to reform the deed so that it should vest an absolute-title in his son. The son, his wife, and his only child were-made parties, being duly served, and a decree was rendered as asked. Thereafter the son brought an action to quiet title against his wife and child. A judgment was rendered declaring him to be the owner in fee simple, and reciting that, any of his children thereafter born Would have no interest in the property. The defendant appealed. Held, that the-recital concerning the unborn children is without effect as an adjudication, but no error was committed against the appellants.</p>

<p>Appeal from Miami district court; Jabez 0. Kankin,. judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — Accounting — Product of Gas Wells — Measure of Damages. In an action for an accounting by a tenant in common of lands from which the defendant had taken the product of six producing gas wells for a period of several years and had sold the same, marketing it through pipe lines to which other wells belonging to the defendant were connected, the measure of damages is the fair and reasonable value of the gas at the time and place at which it was taken.</p> <p>2. -Bufden of Proving Allowances for Expenses on Defendant. In the case stated, the plaintiff is entitled to recover the amount the gas sold for, less the fair and reasonable expense of marketing; the rule in suits for accounting generally obtains, and the defendant has the burden of proving what allowances he is entitled to.</p> <p>§• - Findings Based in Part on the Trial Court’s General Information and Knowledge of Local Conditions Upheld. Where in such a case the defendant fails to produce proof showing the approximate quantity of gas taken, or the net price it sold for, or evidence showing the reasonable rental value of the pipe lines, and there is a wide variance in the testimony of the witnesses and the claims of the parties, estimates of the quantity taken and the fair and reasonable expense of transporting the same to market, made by the trial court upon a consideration of all the evidence as well as upon the court’s general information and knowledge of the history and conditions of the gas field where the wells are located, will be upheld.</p> <p>4. -- Improper Charges by the Gas Company. In the case stated, the defendant, the Kansas Natural Gas Company, owned a large interest in the stock and securities of the pipe lines through which the gas in question, together with the product of many other gas wells, was transported to market. Held, that the plaintiff can not be charged w'ith the burden of paying any part of the sums expended in the purchase of the stock and securities of the underlying companies, or in sinking funds to redeem bonds issued in payment of the original cost of the construction of the pipe lines, or for drilling new wells for the defendant; and further, that the fair and reasonable rental value of the use of the pipe lines for transporting gas can not, in a case like this, be established by proof, of such payments.</p> <p>5.- Findings — Supported by the Evidence. In this case it is held, that none of the findings appears to be so contrary to any well known physical facts as to require another trial, or to abrogate the established rule that the findings of the trial court made upon conflicting oral evidence are conclusive.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Under Fraudulent Power of Attorney — Purchaser Chargeable with Notice. Where a power of attorney to sell and convey real estate is fraudulently obtained' from the owner of the property, and a sale is made purporting to he under the power to a person having knowledge of circumstances sufficient to excite the suspicions of a prudent person and put him upon inquiry, he will be charged with knowledge of the facts which a diligent inquiry would have disclosed.</p> <p>2. -■ Same. The evidence is examined and it is held to he sufficient to authorize a finding that the grantee in this case is chargeable with notice of the fraud.</p>

<p>Appeal from Kingman district courtPreston B. Gillett, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute op Limitations — No Defense to an Action by the State. As a general rule statutory limitations do not run against the state when it sues in its sovereign capacity, unless the statute expressly includes the state or the legislative intention to include it is shown by the clearest implication.</p> <p>2. -Nuisance — Perpetual Injunction — Lien for Costs — No Execution for Five Years — Judgment Not Dormant. The code provisions limiting the time within which a revivor of an action or judgment must be had in case of the death of one or more of the parties thereto does not include the state or apply to it, and in order to keep alive a judgment in favor of the state perpetually enjoining the maintaining of a common nuisance under the prohibitory liquor law on certain premises and adjudging that the attorneys’ fees and costs in the case ' be a lien thereon it is not necessary that an execution be issued upon the judgment within five years from the rendition of it as is required to prevent dormancy of an ordinary judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Obstructing the Execution of Process. Where an officer seizes personal property upon attachment and delivers it to a custodian to be held subject to his order, a stranger to the writ who claims to own the property, and makes demand for it upon the custodian, is not guilty of obstructing the execution of process, whatever his motives may have been, where he employs no deceit and the property is voluntarily delivered in response to his demand.-</p>

<p>Appeal from Sedgwick district court, division No. 1;</p> <p>Thomas C. Wilson, judge.</p>

<p>Appeal from Stafford district court; Daniel A. Banta, judge.-</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Stock in Railroad — Signed by One Party Only— When Binding. A valid contract in writing signed by one of the parties only but fully recognized and acted upon by both parties is binding.</p> <p>2. Evidence — Conclusions of Witness — Received without Objections — No Prejudicial Error. Findings of fact supported by testimony of witnesses, who without objection give their conclusions as to the nature and effect of conversations and discussions instead of the language used in such conversations and discussions, will not for that reason be set aside.</p> <p>3. Street Railway — Extension—Agreement of Landowner — Default — Removal of Tracks — Injunction. Landowners who by purchase of stock procured the extension of a street railway and an agreement to operate the same over their lands for five years in consideration of their platting and placing such lands on the market can not, after failing so to do for four years, maintain injunction to prevent the removal of such extension, the company being solvent and the trial court having determined that the damages, if any, could be recovered in an action at law.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Boards of Education — Cities—No Power to Acquire Lands for Agricultural Purposes. Chapter 86 of. the Laws of 1909 (Gen. Stat. 1909, § 7860), authorizing the board of education in cities of the first or second class, or any school district in which is located a city of the third class, to acquire land for use as sites for school buildings, playgrounds, additions and extensions thereto, does not confer upon such boards power to purchase land to be used for the purpose of teaching agriculture to the pupils of such schools.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyance — Husband to Wife — No Trust by Implication. The mere fact that a conveyance is between husband and wife or parent and child or between persons occupying similar intimate relationships, and that no valuable consideration passes, is not sufficient to raise a trust by implication. There must be fraud, active or constructive, some betrayal of a confidence reposed or some breach of duty imposed by such relation. Neither character of fraud will be presumed from the fact alone that the relationship of the parties is such as to suggest that a fiduciary relation might have existed.</p> <p>2. Trusts — When Constructive ' Trust Arises — Equity. A constructive trust will arise whenever the circumstances under which the property was acquired make it inequitable that it should be retained by the person who holds the legal title, but equity has no power to declare a trust and enforce it to prevent injustice merely because the transaction results inequitably to other parties.</p> <p>3. - Inequitable Conveyance to Wife — Equity Powerless to Raise a Trust by Implication. However harsh or unjust or inequitable it may appear for a husband to make a gift to his second wife of his real estate and thus deprive the children of his first marriage of all interest therein, even though ho acquired the real estate from moneys derived from their mother’s separate property, equity is powerless to raise a trust by implication and enforce it on the ground that it is necessary to prevent a failure of justice.</p> <p>4. Conveyance — By Husband to Wife — Where Burden Rests to Prove a Trust. A conveyance of real estate by the husband to the wife or a purchase in her name, the consideration being furnished by him, is presumed to be a gift, and the burden rests upon those who assert that the transaction was intended as a conveyance of the legal title to the wife to be held in trust for the husband.</p> <p>5. ■-• Husband Making Gift to Wife — When Valid. A husband may make a gift of his real estate to his wife when no rights of creditors interfere, and it will be upheld as against his heirs notwithstanding they were at the time the conveyance was made and continue to be dependent upon him for subsistence and support.</p> <p>6. Evidence — Fails io Establish Constructive Trust. Upon the facts and circumstances shown in the evidence in the present case it is held that a constructive trust was not established, and that the evidence was not -sufficient to overcome the presumption that certain conveyances to the wife were intended by the husband as a gift to her, and therefore that the demurrer to the evidence was rightly sustained.</p>

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

<p>Appeal from Miami district court; Jabez 0. Rankin, judge.</p>

<p>Appeal from Saline district court; B. A. Mason, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Exchange — Merchandise for Land — “Forfeit” Money Deposited — Default—“Forfeiture” Not Enforceable. - A stock of merchandise to be valued at the cost price of each article at wholesale was traded for a tract of land to which a certain value was assigned. The contract provided that the merchandise should be invoiced and if it amounted to less than the price placed upon the land the vendor should pay the difference in cash. If it amounted to more the vendee should pay the difference in cash. The contract further provided that each party should stake as a forfeit the sum of $500, to be placed in the hands of a third person, and should either one fail to keep all and singular the terms of the agreement the deposit should be forfeited to the other. Held, the language of the contract providing for a forfeiture and not for stipulated damages should control in the absence of circumstances indicating a different intention;' that actual damages resulting from a breach of the contract were readily provable without entering into the realm of speculation and conjecture; that the amount of the stake was fixed without reference to compensation for loss in case of a breach; and that upon default by one party the other could not enforce the forfeit. .</p> <p>2. -Pleading — Amendment Changing Cause of Action — Judicial Discretion. In an action by the vendee to recover the vendor’s forfeit from the stakeholder the vendor was interpleaded in a county other than that of his residence. After the petition had been once amended and after a great lapse of time the action came on for trial and a demurrer was sustained to the plaintiff’s evidence. The plaintiff then asked leave to amend by changing the cause of action- to one for actual damages for breach of contract. Held, it was not an abuse of discretion to deny the request.</p> <p>3. Judgment — Not Reversed to Allow Nominal Damages. A judgment will not be reversed and the cause remanded merely for the purpose of allowing the defeated party to recover nominal damages.</p>

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

<p>Appeal from Finney district court; Gordon L. Finley, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Witnesses — Husband and Wife — For or Against Each Other. The husband and wife are competent witnesses for or against each other concerning transactions in which one acted as the agent of the other, notwithstanding the fact that in the revision of the code (§321) there is no express provision to that effect.</p> <p>2. Motion for New Trial — When Unnecessary to Set Forth Ex-eluded Evidence. Section 307 of the civil code, providing that where the ground of a motion for a new trial is the exclusion of evidence, such evidence shall be produced at the hearing, is held not to apply where it appears from the testimony of the witnesses themselves given at the trial what the evidence would have been had it not been excluded.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Railroad Tricycle — Negligence—Public Crossing — Personal Injuries. In an action for damages alleged to have been caused by a railroad employee recklessly driving a railroad tricycle over a public crossing and frightening a horse, the evidence strongly tends to show that the' driver of the tricycle was guilty of culpable negligence, and no error appearing in the record the verdict will be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Title to Beal Estate — Will—Conflicting Evidence. The title to a tract of land appeared of record in the name of George Z. Work 'at the time of his death. He left a will devising his entire estate to his widow. In thq envelope enclosing the will was found a paper stating that his brother, A. S. Work, owned a half interest in the farm “after he pays for what money I have spent on same as shown by my checks and books.” In an action of ejectment brought by A. S. Work against the devisee the plaintiff was defeated upon the following claims of legal and equitable, ownership:</p> <p>A. That at the time of George Z. Work’s death the farm was a part of the assets of a partnership composed of the plaintiff and George Z. Work, in which they shared equally.</p> <p>B. That the widow was estopped to dispute the plaintiff’s claimed interest in the farm because of- certain conduct of hers upon which he had relied.</p> <p>The testimony took a wide range and covered the subject of compliance with the terms of the writing found with the will. Held, the rule applies that so far as a judgment depends upon conclusions of fact drawn from conflicting evidence, a material part of which consists of oral testimony, it will not be disturbed on appeal.</p> <p>2. Trial — Rejected Evidence — Not Prejudicial Error. Claims of error based upon the refusal of the court to admit evidence offered by the plaintiff considered, and held: The evidence was improper, or inconsequential, or covered by other proof, or not properly presented to the trial court .at the hearing of the motion for a new trial.</p> <p>3. Evidence — Sufficient Description of Real Estate. Under the circumstances stated in the opinion a description of real estate as “476 acres of land near Humboldt, Kansas, that Work Brothers & Co. got from Z. Miller,” is sufficiently definite to identify the land in controversy.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Passenger — Alighting at Intermediate Station — Stumbled on Platform — Contributory Negligence. A passenger on a railroad train who leaves the train at an intermediate station for a temporary purpose is, in the exercise of ordinary care in crossing the station platform, bound to look upon the platform to avoid collision with any object usually or necessarily thereon which may impede his progress and do him injury. If without any sufficient reason he neglects so to do and he receives injury by coming in contact with an obstruction he is guilty of contributory negligence and can not recover damages from the railroad company for the injury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Jurisdiction of Supreme Court — Amount Directly; Affected by Alleged Error Less than $100. The supreme court, has jurisdiction of an appeal notwithstanding the amount m. controversy directly affected by the error relied upon for reversal is less than $100, if there is a fair basis for the contention that the error affects the entire verdict and indicates that the complaining party has not had a fair trial upon a claim involving in the aggregate more than $100.</p> <p>2. Verdict. — Not at Variance with Evidence. The verdict in the present case is not shown to be so at variance with the evidence as to require a new trial, and the judgment is affirmed.</p> <p>S. Grain in Transit — Shrinkage—Judicial Notice. The courts will take judicial notice of the natural shrinkage of grain in transit; and the legislature having recognized the fact that wheat in transit will naturally shrink as much as .one-fourth of one per cent of its total weight, no proof is required of this well-known fact.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Equitable Title — Contract of Purchase Fully Performed— Possession Taken. The title of a vendee of real estate who has fully performed the contract of purchase and taken and held possession for many years, and paid all taxes upon the property, is a complete equitable title.</p> <p>2. Quitclaim Deed — Former Purchaser in Possession — Notice of Outstanding Equities.. One who takes a quitclaim deed from the vendor of real estate many years after the vendee has performed the contract, without inquiry or examination concerning outstanding equities, is in no better position respecting the title than his grantor.</p> <p>3. Taxes — Payment—Notice of Interest in the Land. The fact that a party pays taxes upon real estate is evidence that he claims some interest in the property, which should lead one taking a quitclaim deed therefor to inquire concerning his • rights.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Tax-lien Holder — Owner in Fee — Real “Party in Interest.” Land in possession of a tax-lien holder was deeded to a third party by the fee owner for the purpose of securing a debt. Held, that the grantor could thereafter maintain ejectment against the one thus in possession.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Individual Excavating Street by Permission— Personal Injuries — City Liable. A city given control of its streets and charged with the duty of maintaining them in a safe condition can not, by any permission it may give to individuals to plow the streets and to remove earth therefrom, avoid liability for injuries resulting to travelers from the negligent manner in which the work is done or the dangerous condition in which the street is left.</p> <p>2. Same — Notice of Condition of Streets■ — Duty of City to the Public. Where a city grants permission to a third party to plow or excavate in a street it is bound to exercise diligence for the protection of the traveling public and to know the condition of the street while the work is in progress and after it is done, the same as it would where the work is directly done by its own officers or agents.</p>

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

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

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY- THE COURT.</p> <p>Judgment — Application to Set Aside After Term — Insufficient Application. An application to set aside a judgment and grant a new trial, presented after the term at which the judgment was rendered and based upon the ground that it had been 'taken when there was a previous agreement between counsel for the parties that no further proceedings in the case would be had, can not be granted unless the application sets forth the judgment against the defendant and also .facts showing that he has a valid and meritorious . defense to the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Collection Agent — Contingent Fee — Fee Recovered Not Unreasonable. A bank delivered notes which had long been charged to profit and loss to -an attorney under an agreement that if they could be collected or secured the bank would pay him a “lively fee,” since whatever the bank received would be clear gain. The attorney expended time, labor, skill and judgment in a diligent effort to realize on the notes, and then in an effort to secure judgment on them without publicity and with little expense. After securing judgment by default 'he discussed with the bank on different occasions the best course to pursue and prompted the issuance of an execution. After that the bank ceased to consult him, kept the judgment alive itself, and eleven years after the date of rendition compromised it and satisfied it of record. Held, the attorney was entitled to compensation for his services, and that a verdict, supported by substantial testimony, for fifty per cent of the proceeds of the collection is not unconscionable.</p> <p>2. Attorney — Compensation Contingent on Collection — Statute of Limitations. The right of the attorney to compensation being contingent on collection^ no cause of action arose in his favor until the collection was made and the statute of limitations did not begin to run against his claim for fees until that time.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Gas Company — Mortgage Sale — Liability of Purchaser Operating Plant under Same Franchise. Where a mortgagee of a gas-distributing company took possession of the mortgaged plant and franchises, together with its records, books and business, and carried on the same business with the same property under the same franchise, it will be presumed', in the absence of evidence to the contrary, that the mortgagee intended to respond to corresponding obligations imposed by the franchise, or incidental to the rates it collected.</p> <p>2. New Corporation — Operating under Same Franchise as Old Corporation — Agent of Parent Corporation. Where a corporation, organized by the officers of an investment company for the purpose of purchasing property and franchises of a gas-distributing company mortgaged to the investment company, purchased the property at a mortgage sale without consideration except the interest its incorporators might own in the mortgage as shareholders in the investment company, and thereafter the new company carried on the business first conducted by the mortgagor, and afterwards by the mortgagee, it is held that the new company should be considered as an agent of the parent company in the purchase and operation of the plant.</p> <p>3. Gas Company — Franchise — Discontinuing Business — Conditions Imposed by Court Reasonable. While in possession and carrying on the business the investment company and the new company enjoyed the franchises and privileges granted by ordinance of the city to the mortgagor, collected rates and settled outstanding accounts with customers upon the books, and otherwise continued the business as their predecessor, the mortgagor, had done. The new company desired to discontinue the business and remove the property. The district court permitted this to be done, but required that it should first give thirty days’ notice of its intended withdrawal and repay to consumers deposits which had been made with the mortgagor as security for the payment of gas bills. It is held that these conditions are reasonable in view of the nature of the service and the conduct of the companies so taking possession of the property, continuing the business and receiving the benefits.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

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

<p>Appeal from Seward district court; William II. Thompson, judge.</p>

<p>Appeal from Wyandotte district court, division No. 2; F. D. Hutchings, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Poll Tax — General Road Law Applicable to Cities — No Ordinance Required. The passage of an ordinance under the per missive authority given to cities of the second and third classes by the general road law (Laws 1911, ch. 248) to carry out the provisions of the act relative to poll taxes is not a 'condition upon which liability for the tax depends.</p> <p>2. - Same. In the absence of such an ordinance a resident of a city liable for the tax may be prosecuted in a justice’s court for failure to make payment after due notice.</p>

<p>Appeal from Clark district court; Gordon L. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Trial Delayed Beyond Third Terra — “Want of Time” — Rights of Defendant. The statute providing for the discharge of a defendant who is not brought to trial before the end of the- third term of court after the information is filed is qualified by exceptions therein excluding from its operation a delay happening upon his application or occasioned by want of time to try the cause at such third term. (Crim. Code, § 221.) The latter clause refers to the time that can be reasonably given for the trial, consistent with an orderly assignment of causes and diligent dispatch of business.</p> <p>2. --- Same. A continuance was ordered at the third term held after the information had been filed. The entry recited that the continuance was ordered because of the illness of the county attorney which prevented him from trying the cause at that term. Notwithstanding this finding the district court did not err in considering affidavits at the next term upon a motion to discharge the defendant, to determine the fact whether the illness of the county attorney at the third term left sufficient time to try the cause within the rules above stated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Abortion — Information—Manslaughter in First Degree. An information alleging the use of a certain instrument to procure the abortion or miscarriage of a woman pregnant with a vitalized embryo, not necessary or medically advised to be necessary to preserve her life, resulting in her death, charges a crime which would be murder at the common law, and which is manslaughter in the first degree under section 12 of the crimes act (Gen. Stat. 1909, §2600).</p> <p>2. - Same. The averment that such instrument was used with the intent to procure such abortion or miscarriage renders it unnecessary to allege that it was without a design to effect death, the presumption in favor of the defendant being sufficient to negative an intent more malevolent and criminal than the one expressly charged.</p> <p>3. Abortion. — Consent of the Woman — Crime Committed. Although such instrument was used with the assent of the woman, for the sole purpose of procuring an abortion or miscarriage, still such use and purpose being immoral, violative of the law of nature, deliberate in character, reckless of life, and necessarily attended with danger to the mother and likely seriously to injure her, if her death result the common law will imply malice and hold the person so using such instrument guilty of her murder, regardless of whether she was pregnant with a quick child or with a vitalized embryo.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Probate Court — Refusal to Appoint Administrator — Appeal. An appeal may be had from a decision of a probate court refusing to appoint an administrator and grant administration of the estate of a nonresident intestate where the decision is based upon the ground that such intestate left no property in the state to be administered.</p> <p>2. Situs — Capital Stock in Kansas Corporation — A,t Domicile of Stockholder. The situs of shares of capital stock in a Kansas corporation owned by one who was a resident of another state • at the time of his death, for purposes of administration is at the domicile of the decedent rather than in the state in which the. corporation is organized and has its place of business.</p>

<p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Evidence—Records of United States Rev.enue Collector. In a prosecution by a city for maintaining a place where intoxicating liquors are unlawfully kept and sold an authenticated copy of the records of the United States internal revenue office showing that the accused had paid a tax as a retail liquor dealer is competent evidence. The possibility that some one else may have paid the tax and obtained a receipt without the knc-wledge or consent of the accused did not render the evidence incompetent.</p> <p>2. Trial — Police Court — Indorsing Names of Witnesses on Complaint — Unnecessary. The process and proceedings in a police court in cities of the first class are governed by the law regulating proceedings in justice court in criminal cases, and in an appeal from a conviction in the police court no error was committed by the district court in refusing to require the prosecution to indorse the names of witnesses on the complaint.</p> <p>S. City Attorney — Arguments—Refusal of Accused to Testify. A statement by the city attorney that certain material testimony offered in behalf of the city had not been contradicted does not violate the statutory rule which prohibits the prosecuting attorney from referring to the neglect or refusal of the accused in giving testimony in his own behalf.</p>

<p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Paving Statute — Enrolled. Bill — Signed by the Governor — Published — Impeached by the Legislative Records. An enrolled bill, signed by the governor and published as a statute, may be held not to be a valid enactment, where words which it contains, and which are essential to its operation, are shown by the journal of one of the branches of the legislature to have been stricken out by amendment before the bill passed that body, and where other record evidence confirms the correctness of the entry on the journal, and accounts for the discrepancy between it and the enrolled bill.</p>

<p>Appeal from Marion district court; Roswell L. King, judge.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

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